text:
    PORTER v. MARINE SAVINGS BANK.
    1. Banks and Banking — Corporations—Stock—Lien.
    No lien for an indebtedness due from tbe Teeord owner of bank stock to the corporation attached where the stock did not belong to the apparent holder, who was a mere trustee, and the true beneficiary brought suit to compel the corporation to recognize her interest and transfer it on the books in her name, and where the evidence showed that the bank cashier knew the facts and had notice of complainant’s rights.
    2. Same — Evidence—Ownership—Presumptions.
    The presumption that the person in whose name stock is held is the true owner is prima facie and rebuttable.
    3. Same.
    Persons who are not charged with notice of the trust may deal with such holder of record in good faith without being affected with the trust, and the books are prima facie evidence of title in the stockholder of record.
    4. Same — Equity—Stockholders—Books of Record.
    Upon the refusal or neglect to transfer the trust stock to the name of the true and beneficial owner, the cestui qui trust may obtain a decree of the court of equity compelling the corporation to recognize her rights.

      Appeal from St. Clair; Law, J.
    Submitted April 27, 1915.
    (Docket No. 154.)
    Decided June 7, 1915.
    Bill by Faye L. Porter against the- Marine Savings Bank and others to require defendant bank to transfer certain stock to complainant’s name. From a decree for complainant, defendants appeal.
    Affirmed.

      P. H. Phillips, for complainant.

      Walsh & Walsh, for defendants.
   Stone, J.

The learned circuit judge, who heard this case in the circuit court filed a written opinion which so clearly sets forth the conceded facts, and the law of the case, that we insert it here:

“Complainant in her bill of complaint alleges that she is the owner of 26 shares of the capital stock of the defendant bank, which she inherited from the estate of her mother, Alice E. Porter, and that this stands on the books of the bank in the name of L. Recor; that she has caused a demand to be made upon the proper officers of the bank that this stock be transferred to her and a certificate therefor issued in her name and delivered to her; and that this demand has been refused. She prays the court to decree that she is the owner of the said 26 shares of stock and to require the proper officers of defendant bank to transfer said stock to her name and to issue to her a certificate therefor.
“The defendants have answered. To the answer is added a cross-bill in which the defendant bank claims a lien on the stock claimed by complainant for the debt of Lambert Recor, in whose name the stock stands on the books of the bank. Defendants pray that the court declare that the bank has a lien on said stock and decree a foreclosure thereof.
“The following statement of facts is taken from complainant’s brief and is in accordance with the testimony offered at the hearing:
“ ‘John W. Porter, deceased, on the 17th day of January, 1900, and at the time of his death he was and had been for a long number of years cashier of the Commercial Bank of the City of Port Huron. A number of years prior to his death, Mr. Porter, in company with George W. Carman, owned and operated a private bank in the city of Marine City, Mich. Later they organized a State bank known as the Marine Savings Bank, which took over the assets of the private bank. Mr. Porter was elected the first president of the bank and Mr. Car-man its cashier. Mr. Porter continued to hold the office of president of that bank up to the time of his death, and Mr. Carman has been continuously, and still is, cashier of the bank. Mr. Porter in his lifetime owned 100 shares of the stock of the bank, which he continued to own up to the time of his death. He died testate, leaving surviving him Alice E. Porter, widow, Rhoda E. Porter, Faye L. Porter, and Lloyd S. Porter, children. By the terms of his will his wife was made sole legatee and executrix and the stock1 above mentioned came into her possession.
“ ‘At the time of Mr. Porter’s death, this stock was represented by three certificates; No. 48 for 10 shares, No. 62 for 50 shares, and No. 76 for 40 shares, the first certificate standing of record in the name of 'Mr. Porter, and the other two in the name of Robert J. Porter, a brother. The certificates standing in the name of Robert J. Porter were indorsed by him in blank and were in the possession of Mr. John W. Porter. On the 15th day of May, 1901, these certificates were surrendered by Mrs. Porter and new certificates issued in lieu thereof as follows: Certificates Nos. 95, 96, 97, for 50 shares, 40 shares, and 10 shares, respectively. They were all issued in the name of Hattie Skinner, who was Mrs. Porter’s stepmother, but were at once indorsed by Mrs. Skinner and were at all times in the possession of Mrs. Porter.
“ ‘Subsequently, on the 8th day of October, 1904, Mrs. Porter surrendered these certificates and had issued in lieu thereof certificates Nos. 112, 113, 114, 115, for 10, 20, 20, and 50 shares, respectively. These certificates were all issued in the name of L. Recor, being immediately indorsed by him and were at all times in the possession of Mrs. Porter.
“ ‘In 1905, Mr. Carman, cashier of the bank, began negotiations with Mrs. Porter and her brother, George A. Skinner, for the purchase of some of this stock. Mr. Skinner was assisting his sister in the management of her affairs, and acting as her agent, which he continued to do up to the time of her death. At the time “the negotiations began, Mr. Carman stated to Mr. Skinner that, this stock all being owned by a nonresident (Mrs. Porter having taken up her residence in. Detroit), it was of little benefit to the bank, and that he desired to interest some citizens of Marine City with a view to having them purchase some of the stock for the reason that it would be advantageous to his bank so to do. In consequence, and on the 3d day of January, 1905, Mr. Carman sold 10 shares to Elizabeth Fitzgerald, Mrs. Porter surrendering certificate No. 112 for this purpose, and certificate No. 116 was issued to the purchaser for the same number of shares. Thereafter, on the 6th day of March, 1905, Mr. Carman sold 10 shares of the stock as follows: 2 shares to Andrew Frederick, 2 shares to Joseph Blattert, 3 shares to Charles Dupont, and 3 shares to L. Recor. To conclude the transaction Mrs. Porter surrendered stock certificate No. 113 for 20 shares, and in lieu thereof there was issued certificates as follows: 117 for 2 shares, 118 for 2 shares, 120 for 3 shares, 123 for 3 shares, and 121 for 10 shares. The first four certificates were issued to the purchasers above named, and certificate No. 121 was issued in the name of B. Recor and was immediately indorsed by him and forwarded by Mr. Car-man to Mr. Skinner on behalf of Mrs. Porter. When the stock was sold to Mrs. Fitzgerald by Mr. Carman, a draft was forwarded by him to Mr. Skinner for the purchase price. Likewise when the next 10 shares of stock were sold by Mr. Car-man he forwarded a draft of the defendant bank to- Mr. Skinner for the amount obtained on the sale, together with certificate No. 121.
“ 'Mrs. Porter died intestate on the 29th day of December, 1905. Mr. Skinner had been conducting her affairs under a power of attorney for a period of upwards of a year prior to her death. On the 3d day of January, 1906, he applied for administration of her estate and was appointed administrator by the Wayne county probate court. On the 8th day of January, 1909, Mr. Skinner was appointed guardian of Lloyd S. Porter, who was a minor and did not attain his majority until March, 1912.
“ ‘On the 16th of August, 1909, Mr. Skinner presented certificates Nos. 114, 115, and 121 to the defendant bank and had issued in lieu thereof certificates Nos. 154, 155, 156, and 157, the first three for 26 shares each, and No. 157 for 2 shares. This was done for the purpose of dividing the stock between the three heirs, Rhoda, Faye, and Lloyd S. Porter; the two shares being taken in a separate certificate on account of the fact that it was not advisable to issue fractions of a share. The new certificates were issued as follows: The first named, No. 154, to Rhoda E. Porter, and the other three in the name of L. Recor. The last three certificates at the time of issue were all immediately indorsed by Mr. Recor and were at no time out of Mr. Skinner’s possession.
“ ‘During the lifetime of Mrs. Porter, and up to the year 1910, all of the dividends payable upon 'the stock in question were paid either to Mrs. Porter or to Mr. Skinner. The dividends were drawn to the order of L. Recor, but his name was indorsed thereon, per George A. Skinner, and the checks were all paid to July, 1910.
“ ‘In August, 1911, certificates Nos. 155, 156, and 157 were presented to the bank and demand made for transfer as follows: 26 shares to Faye L. Porter, 26 shares to George A. Skinner, as guardian of Lloyd S. Porter, and 2 shares to George A. Skinner as trustee for the three heirs of Mrs. Porter. This demand was refused by the bank. Thereafter, and prior to the commencement of this suit, another demand was made for transfer as aforesaid, but this demand was also refused. There can be no question under the record but that Mr. Carman, the cashier of the bank, was at all times advised of who the actual owners of this stock was or were, and that Mr. Recor never did own any of the stock.’

“I hereby add the following as a part of this finding:

“At the times the demands for a transfer of this stock were made as above stated, Lambert Recor was indebted to the defendant bank in an amount exceeding the value of the stock, and this indebtedness was past due; but the officials, of the bank did not rely upon the Porter stock as security at the time any of these loans to Mr. Recor were made.
“On the 16th day of August, 1909, when Mr. Skinner presented certificates Nos. 114, 115, and 121 to defendant bank and had issued three certificates Nos. 154, 155, 156, for 26 shares each, and one certificate, No. 157, for 2 shares, he was acting as administrator of the estate of his sister, Alice E. Porter, deceased, and as guardian of the minor, Lloyd S. Porter. Mr. Carman, as cashier of the bank, knew that Mr. Skinner was acting in these capacities, and must be held to have known that this transfer of stock and the issuance of the four certificates were for the purpose of making an equal division of the 80 shares of stock belonging to the estate of Alice E. Porter among her three children who inherited her property.
“There can be no doubt but that the 100 shares of stock in defendant bank which were owned by John W. Porter from the time of the organization of the bank until his death, and which his wife, Alice E. Porter, acquired, as a legatee of John W. Porter, and 80 shares of which came to the children of Alice E. Porter as the heirs of their mother, have been issued at different times in the' names of third parties to escape the high rate of local taxation which prevailed in the place of the residence of the real owner, or owners. This scheme should not be approved by equity courts. If an owner of bank stock thus endeavors to conceal it in order to escape his just share of the public tax burden and permits some other person to remain as the registered owner, a court of equity should not decree that he has the right to recover the stock against a bank which claims a statutory lien on the stock for a past due debt of the registered owner. Certainly not, where the officials of the bank are ignorant of the real ownership of the stock. But in this case the bank officials must be charged with full knowledge of the ownership. Moreover, on the 16th of August, 1909, when Mr. Skinner presented certificates Nos. 114, 115, and 121 to the defendant bank and had issued in lieu thereof certificate No. 154 for 26 shares to Rhoda E. Porter, certificates Nos. 155 and 156 for 26 shares each in the name of L. Recor, and certificate No. 157 for 2 shares in the name of L. Recor, Mr. Skinner was acting in a trust capacity as administrator of the estate of Alice E. Porter and as guardian of Lloyd S. Porter. Mr. Carman, as cashier of the defendant bank, knew this and knew that Mr. Skinner’s object in dividing the 80 shares of stock was to distribute it among the heirs of Mrs. Porter. Mr. Skinner had no right to take certificates Nos. 155, 156, and 157 in the name of L. Recor. Complainant cannot be charged with connivance in or condonation of the wrong thus perpetrated against herself and her brother.
“In the'able brief filed by the solicitor for the defendants, it is argued with much force that the statute (3 How. Stat. [2d Ed.] § 6404), which gives a bank a lien on the stock of the registered owner should prevail. The object of this statute is to give protection to banks, not to enable the banks to do injustice. A bank has no lien on the stock of its stockholders at common law. 5 Cyc. p. 439.
“Statutory liens have always been looked upon with jealousy and strictly construed. 25 Cyc. p. 662.
“A lien will not attach to stock held in trust when the bank has knowledge it is so held. 5 Cyc. p. 441.
“Under the determined facts in this case, it must be held that the knowledge of Mr. Carman, its cashier, is the knowledge of the defendant bank, and that the legal eifect of this knowledge is to free the stock from any lien as against the plain rights of complainant.
“For direct authority as to the eifect of notice to the president of a bank of the transfer of stock, see the well-reasoned case of Curtice v. County Bank, 118 Fed. 390 (56 C. C. A. 174). This case holds that:
“ ‘The president of a bank, to whom a pledgee of stock exhibited the certificate held by bim to ascertain with certainty that it bad been regularly issued, stating tbe fact of tbe pledge, received sucb information while acting in bis official capacity, and tbe bank was thereby charged with notice of tbe pledge, so as to render its statutory lien on tbe stock for a loan subsequently made to tbe pledgor, although some two or three years afterwards, subject to tbe rights of tbe pledgee, whose debt bad not been paid.’

“In Just v. Savings Bank, 132 Mich. 600 [94 N. W. 200], it is held that:

“ ‘A T)ona fide purchaser or pledgee of bank stock for value does not take it subject to tbe bank’s lien * * * for a debt subsequently falling due, where tbe bank has notice of the purchaser’s or pledgee’s rights.’
“Under these authorities as applied to the determined facts in this case, Mr. Carman, as cashier of the defendant bank, and consequently the corporate body, the bank itself, must be held to have known that this stock in question belonged, first, to John W. Porter, then to his wife, Alice E. Porter, and after her death to the heirs of Alice E„ Porter. The bank must be held to have known when Mr. Skinner took out certificates Nos. 155, 156, and 157, on August 16, 1909, that he was acting in a trust capacity, and that he had no right to take them out in the name of Mr. Recor, and that the stock still belonged to the heirs of Alice E. Porter. At this time neither Mr. Carman nor any officer of the defendant bank seemed to have any idea that the bank had any lien upon this stock.
“A decree may be entered declaring complainant to be the owner of said certificate No. 156 for 26 shares of the stock of the defendant bank, free and clear of any liens in favor of defendant bank, and requiring the proper officials of the defendant bank to transfer this stock to complainant’s name and issue to her a certificate therefor on the surrender of certificate No. 156. The bill of complaint does not contain a prayer specifically asking that the defendant bank account for and pay to her the past due dividends on her stock, but I think this relief may be granted under the prayer for general relief, if complainant so desires. Complainant is entitled to recover her costs in this suit.”

The proposition that a lien will not attach to stock held in trust, where the bank has knowledge it is so held, is well supported by the authorities. Alexandria, Mechanics’ Bank v. Seton, 1 Pet. (U. S.) 299. In that case, as here, the bill was filed against the bank to compel the transfer of stock. The stock was standing in the name of one Lynn, but it was avowedly purchased and held by him as trustee for one Wise. The transfer had been refused because Lynn was a debtor to the bank. It became necessary to construe section 21 of the Act of Congress incorporating the bank. That section provided:

“That the shares of the capital stock shall be transferable at any time, according to such rules as may be established by the president and directors; but no stock shall be transferred, the holder thereof being indebted to the bank, until such debt be satisfied; except the president and directors shall otherwise order it.” Act May 16, 1912, chap. 87, 2 U. S. Stat. 739.

The court said:

“The construction of the twenty-first section will depend upon the interpretation to be given to the word ‘holder,’ as there used. This term is not, necessarily, restricted to the nominal holder. • It will admit of a broader and more enlarged meaning; and may well be applied to the party really and beneficially interested in the stock. And there can be no good reason why it should not be so applied, when the bank is fully apprised of all circumstances in relation to the stock, and knows who is the real holder thereof. This provision was intended to put into the hands of the bank additional security for debts due from stockholders. But, when it is known that the person in whose name the stock stands has no interest in it, he will acquire no credit upon the strength of such stock; and that such was the understanding of the bank, in this case, is clearly shown by the evidence. * * * To permit the bank, under such circumstances, to avail itself of this stock to satisfy a debt contracted without any reference to it as security, and with full knowledge that Lynn held it in trust for the complainants, would be repugnant to the most obvious principles of justice and equity. Suppose the trust had been expressly declared upon the transfer book of the bank, would there be the least color for sustaining the claim now set up? And yet Lynn would be the legal holder of the stock, in such case, as much as in the one now before the court. Full notice of a trust draws after it all the consequences of an express declaration of the trust, as to all persons chargeable with such notice.”

In commenting upon the above-cited case, counsel for defendants say:

“It is clear that, had the words ‘registered holder’ been used in the statute, the court would have reached the opposite conclusion.”

We cannot agree with counsel in this claim. Obviously the word “holder” in the above-quoted statute meant holder of record, or “registered holder,” and the trust relation, if shown, would apply to one as well as to the other. There is no claim in the instant case that the defendants did not know that the stock in question belonged, at all times subsequent to 1892, to the Porter family, or estate, and they knew that Recor never claimed to own it, and he never obtained any credit upon the strength of it. See, also, Prince Investment Co. v. Land Co., 68 Minn. 121 (70 N. W. 1079).

That a bank may waive its lien is beyond question. National Bank v. Bank, 105 U. S. 217, and cases cited in note. The last-cited case is also instructive upon the powers of a cashier. .

That the one whose name appears on the stock book is presumed to be the real owner, unless some one else is clearly shown to be such, is undoubtedly the rule. It is equally clear that this is a rebuttable presumption. See cases cited in 5 Cyc. p. 442, note 3.

All persons, unaffected with notice to the contrary, are at liberty to act upon the faith of the title of stock being where it appears upon the corporation books to be. Fisher v. Bank, 5 Gray (Mass.), 373.

Where the name of an individual appears on the stock books of a corporation as a stockholder, this is presumptive evidence that he is so. The burden of proof is thrown then upon the defendant to show the contrary. Hoagland v. Bell, 36 Barb. (N. Y.) 57.

Books of a corporation are prima facie evidence as to who possesses the stock ownership. The object of the stock book in requiring transfer of stock to be recorded by the corporation is for the protection of the corporation, to enable it to know who are its members who are entitled to its dividends. And in the case of a dispute as to a right to vote the books of the corporation are prima facie evidence. If the real owner wishes to have his name, or the true state of facts, appear on the books, he has his remedy in equity to compel a transfer. Hoppin v. Buffum, 9 R. I. 513 (11 Am. Rep. 291). There is a line of cases holding that the record is deemed conclusive of ownership. An examination of the cases will show that they relate to stockholders’ liability. See Plumb v. Bank of Enterprise, 48 Kan. 484 (29 Pac. 699). That was a proceeding to enforce the individual liability of several stockholders of the Kansas Harvester Company, a corporation organized under the laws of Kansas. It was there held that the general rule is that the books of the corporation furnish evidence as to what persons are entitled to the rights and privileges of stockholders, and as to whom the creditors may look for payment in the event of insolvency of the corporation.

“Creditors of a corporation are presumed to have relied upon the books; and, where a stockholder sells his stock, but permits his name to stand upon the books of the corporation as one of its stockholders, he is in no condition to claim exemption from individual liability. If he has attempted in good faith to have the transfer recorded, and, having done all in his power to that end, fails, other conditions would arise; but where he negligently permits the stock to stand upon the books in his own name, and fails to do that which is necessary to transfer the legal title of the stock in accordance with the statute, he is not released from individual liability by the mere assignment and delivery of the certificates.”

In such case the liability of the trustee remains, although he may look to his cestui que trust for reimbursement. Richmond v. Irons, 121 U. S. 27 (7 Sup. Ct. 788); Hawkins v. Glenn, 131 U. S. 319 (9 Sup. Ct. 739).

The equities of the case are with the complainant.

The decree of the circuit court is affirmed, with costs to the complainant.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. AYERS.
    1. Criminal Law — Impeachment—Evidence.
    For purposes of impeachment, in a prosecution for statutory rape, an affidavit of the complaining witness made as a basis of the warrant was admissible in evidence, but not for the'purpose of -substantive proof.
    2. Same — Rape.
    While such testimony was not incompetent for the purpose of impeaching the witness, it was not sufficient to justify submitting the evidence to the jury without other proof of respondent’s guilt, and her statement, made in the presence of the justice of the peace, after a previous trial, that she had testified to the truth, were hearsay and incompetent for the purpose of conviction.
    Exceptions before sentence from Cass; Des Voignes, J.
    Submitted April 23, 1915.
    (Docket No. 120.)
    Decided June 7, 1915.
    Oliver Ayers was convicted of rape.
    Reversed.

      Grant Fellows, Attorney General, and Otis Huff, Prosecuting Attorney, for the people.

      C. M. Lyle and W. J. Barnard,, for defendant.
   Stone, J.

Respondent was charged with statutory rape, alleged to have been committed on April 27, 1911, in Penn township, Cass county, upon one Mabel Bowerman, a female child under the age of 16 years. Upon the first trial of the case it appeared that said Mabel Bowerman gave birth to an illegitimate child on January 22, 1912, and she testified that respondent was the father of this child, as the result of sexual intercourse with her which occurred “on the Underwood Farm in the house,” where she was a member of the family of respondent, and had been for a number of years, although not legally adopted. The conviction of the respondent upon the first trial was reversed by this court. People v. Ayers, 182 Mich. 241 (148 N. W. 383). After the first trial, the girl, Mabel, retracted her charge against respondent, and upon the second trial — which is now before us for review — she testified that respondent had never had sexual intercourse with her; that her testimony upon the first trial was false; “that she was scared into it;” and that one Charles Rogers was the father of her child. Upon the last trial of the case the people were permitted, against the objection and exception of respondent’s counsel, to offer and read in evidence an affidavit as to the parentage of the child, made by the girl' before the warrant was issued. Upon objection being made to this, the trial court said:

“Here is an affidavit, the basis of the warrant in this case, made by the girl, and it is either admissible or not. If it is not admissible, there is no case here; if it is admissible, why, it should go in. For that reason it may be received at this time, subject to your objection.”

She was also interrogated, and examined at length as to the testimony which she gave upon the former trial, and the same was read to her from the minutes of testimony taken by the official stenographer, and in some instances she testified that she did not remember her former testimony. The stenographer also testified to such former testimony from the transcript which was read to the jury. Upon objection being made as not proper matter of impeachment, the court said:

“Well, now, our court has held that where a person testifies that they don’t remember, you have the right, if you are entitled to impeach at all, to impeach that because that is not a denial, or rather is not an admission; it is a denial in part and you have a right to impeach. The question I have ruled upon here — ■ that is, I am giving the prosecutor the right to show what was testified to in the former trial, not necessarily for the purpose of impeaching this girl, but for the jury to determine what was the truth in relation to what she stated before.

“Respondent’s Counsel: That is the purpose of it, is it?

“The Court: And for the reasons given, and others that have been stated on the record, I think counsel may now interrogate the operator as to the transcript that he-has made in this case purporting to be the testimony taken of the girl, Mabel, on a former trial. Without reading the questions, I think you have a right to refer from page so and so of exhibit so and, so, and ask the witness if that was transcribed by him as reporter and if it was so testified at the former trial.
“Respondent’s Counsel: We object to it on the ground that it is in violation of the United States Constitution, that the accused is entitled to be confronted with his witnesses; for the further reason that it is not substantive proof, and a transcript of this kind is not admissible.
“The Court: He may answer.
“(Exception for respondent.)”

The justice of the peace who issued the warrant was permitted to testify, over the objection and exception of respondent’s counsel, that the same was incompetent and, no foundation being laid, was hearsay; that about a week after the first trial the girl, Mabel, came to his office, with her. brother, and there stated, not in the presence of respondent, that upon the first trial she had “stuck to her story and that the attorneys on the other side tried to shake her, but she told the truth.” The witness, Mabel, had not been interrogated as to this conversation, and no foundation had been laid to impeach. In admitting this testimony, the court said:

“Your objection would be good were it not for this fact: Subsequent to this trial, the complaining witness denied the truthfulness of her statement. It was made the basis for a motion for a new trial. * * * Now, anything that this girl said about the time she made this recantal, or rescission, rather, and all in connection with that, with reference to the fact as to whether it was true or untrue, is a proper subject for consideration here, now, in my opinion. Otherwise there could be no examination, there could be no trial in this case; and for that reason, gentlemen, I will permit the answer to be made, as bearing upon the fact of the truthfulness of the assertion as to her first testimony, and as to the second.”

Similar testimony was given by the brother of Mabel as to what she said to the justice after the trial, and received against the objection and exception of respondent’s counsel that the same was hearsay and not proper impeachment. In admitting the testimony, the court said:

“It is not for the purpose of impeachment. The prosecutor misstates the proposition. The witness testified in a certain suit to a certain state of fact. The allegation still is upon the old suit that this defendant was guilty of wrongdoing as charged therein, in that he is the father of this child. Now, then, the statement made by the witness heretofore, and what may be gathered in that connection now, may go to the jury, not for the purpose of impeaching this girl, but in arriving at what the truth is as to that matter now. That is the purpose' of it.”

Upon exception being taken, the court said:

“Well, it stands on either branch, whether on that suggested by the court or yours.
“Respondent’s Counsel: We will add this further, that it is not admissible as substantive evidence.
“The Court: Well, the Michigan cases that counsel cites say that it is, and the court has ruled that it may be received as bearing upon the fact of substantive proof and accounting for it. In this particular case it is evidence of fact for the jury to consider upon the main fact.
“(To which ruling respondent’s counsel excepted.)”

Upon the close of the people’s case, respondent’s counsel moved for a directed verdict upon the ground that there was no evidence or substantive proof offered pf the commission of the offense in the case. This motion was denied, to which respondent’s counsel excepted. Respondent's counsel also requested the court to charge the jury as follows: '

“(1) That under the undisputed evidence in the case your verdict should be not guilty.”
“(3) You are instructed that the girl, Mabel Bowerman, has been questioned by the prosecutor in relation to what she swore to on the former trial of this case, and said testimony has been offered in evidence together with an affidavit taken before Justice Dona-hoe, wherein she stated that Oliver Ayers, the respondent, had sexual intercourse with her; and I charge you that this testimony cannot be considered by you as tending to prove the offense charged, but only can be considered as bearing on the veracity of the girl, Mabel Bowerman. That testimony is not substantive proof, that is, it is not original and competent proof of the guilt of the accused; and, further, you have no right to consider it as testimony corroborative of substantive facts.”

Neither of these requests was given, and the court charged the jury, among other things, as follows:

“The people further contend that the girl stated under oath to Justice Donahoe, and in this court upon a former trial, that Oliver Ayers did have intercourse with her in April, 1911, and begat her with the child born in January, 1912. It is, the contention of the people that the girl now takes the witness stand and denies such intercourse, and denies what she stated upon the former trial in that relation. The people contend that, after the other trial was terminated, the defendant secured the possession of the girl, or at least she went to the home of this respondent, and thereby induced her to repudiate her former statement. The people further contend that at a later date, that is, while she was in the employ of parties at Dowagiac, the defendant, Oliver Ayers, visited the city of Dowagiac, and after Mabel left his home during the summer, and having a conversation with Mabel’s brother, one Glenn Bowerman, and the peopie contend that the defendant then told young Bowerman that if she (Mabel) swore out a warrant against him he was gone to hell. * * *
“The people contend that not until the girl, Mabel, left the home of defendant and was away from his influence, and when fear was removed, did she freely and of her own accord tell the facts and the truth as it was at that time, which she now refutes.
“Now, these are some of the contentions of the people, gentlemen; they are not all of them. It is not the duty of the court to recite all of them, but it is your duty to remember all of them for yourselves, and remember when you come to deliberate upon this case.”

In another portion of the charge the trial court used the following language:

“Now, the court permitted the people to show contradictory statements made by the girl, Mabel, a hostile witness whom the people were compelled to call. This was not done for the purpose of proving the offense, but for the purpose of affecting the credibility of the witness, Mabel, and you will only consider such evidence for that purpose. You should take into consideration all the evidence, all the facts and circumstances as they appear here, and as they have been unfolded here under the testimony, analyze the evidence with all of the other circumstances, measure it by the rule of common sense, by the surroundings, in the light of the environments of this girl, consider her age, her acquaintance with defendant, and in fact all of the circumstances and conditions as they appear under the evidence at the time of the alleged assault. If you believe that any witness has testified falsely to any material fact in this case, then you are at liberty to reject the testimony of such witness, as it would be evidence that such witness cannot be restrained by the obligation of his or her oath.”

The trial resulted in a verdict of- guilty, and the case is before us upon exceptions before sentence. There are many assignments of error, some of which we shall not find it necessary to notice.

1. By appropriate assignments of error, the question is raised whether the affidavit made by the girl, Mabel, before the warrant issued, and her testimony upon the former trial, could be received as substantive evidence of the guilt of the accused. This question has been before this court, and it has been distinctly ruled that such statements, or testimony, are not admissible as substantive proof for' the .purpose-of convicting the accused, and that they are only competent for purposes of impeachment of the witness. People v. Nichols, 159 Mich. 355 (124 N. W. 25); People v. Elco, 131 Mich. 523 (91 N. W. 755, 94 N. W. 1069); People v. Miner, 138 Mich. 290 (101 N. W. 536).

While it appears from the record that in the admission of this testimony the trial court did not restrict it to purposes of impeachment, and failed to give respondent’s second request to charge in the language there stated, we are of opinion that the court did finally, in one instance, in its charge, state the correct rule. The only criticism which could be made of the trial upon this branch of the case is that in the remarks which we have quoted, made by the court in the admission of this testimony, it would appear that it was received for purposes other than that of impeachment, and as tending to prove the substantive offense. The danger in such a case is that the jury, becoming impressed with the remarks of the court so frequently made in the admission of the testimony, may not have clearly understood the charge of the court upon that subject.

2. It will be observed from what we have said that the court permitted evidence of the statements of the girl, Mabel, made in the absence of the respondent, as testified to by the justice and Mabel’s brother, without having laid any foundation for such statements. The record shows that the attention of Mabel had not been called to these matters, and, she being a mere witness in the case and not a party, such statements were hearsay. People v. Elco, supra; People v. Fowler, 104 Mich. 449-453 (62 N. W. 572), and cases there cited. We think this was error.

3. After a careful reading of this entire record, we are impressed with the fact that there was no substantive proof of the commission of the crime charged against the respondent upon the trial of this case. The testimony of the girl, Mabel, was positive and direct, of his innocence. Her testimony upon the former trial at most could be received only as tending to impeach her, and could not be considered or received as substantive proof for the purpose of convicting the accused. The other independent bits of testimony of circumstances are not sufficient in our judgment to warrant submitting the case to the jury. We are of opinion that it was the duty of the court, under the state of the record, to have directed a verdict of not guilty, as requested by respondent’s counsel.

A number of assignments of error relate to the argument of counsel for the prosecution before the jury. Some of this language was intemperate and improper, but will probably not be repeated should another trial take place.

Being of the opinion that there was not sufficient evidence to warrant submitting the case to the jury, and in fact no question of fact for the jury, the conviction of the respondent is set aside, and a new trial granted.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Stone, J. McAlvay, J.

text:
    GROGITZKI v. DETROIT AMBULANCE CO.
    1. Amendments — Pleading—Declaration—Personal Injuries.
    In the trial of an action for personal injuries, plaintiff’s attorney, in order to meet the objection raised by defendant that evidence of injuries sustained to plaintiff’s ear was not covered by the declaration, asked for and procured leave to amend the pleading. Although defendant claimed to be surprised and requested a continuance the court permitted the amendment. The declaration as originally framed charged that plaintiff was greatly wounded and bruised in and about the head, face, body and limbs and became sick, sore, lame and disordered. Held, that as originally framed the declaration warranted the admission of the proofs that plaintiff’s hearing was affected by the injury, also that no reversible error was committed by permitting the amendment
    2. Evidence — Hearsay—Complaints Made by Injured Person— Expert Testimony — Pain and Sueeering.
    It was improper to admit in evidence the statement of plaintiff’s physician as to complaints of the patient and exclamations of pain made during a treatment which took place some weeks after the alleged injury, though the physician did not make an examination for the purpose of obtaining evidence but in the ordinary course of . his duties as a physician.
    Ostrander, Steere, and Stone, JJ., dissenting.
    3. Automobiles — Negligence—Highways and Streets — Presumptions — Evidence.
    The trial court, in an action for injuries sustained in a collision between the vehicle in which plaintiff was riding and an automobile ambulance owned by the defendant which defendant’s servant claimed was trying to pass plaintiff’s conveyance and was compelled to ;urn so as to avoid striking another passing vehicle, throwing out the plaintiff and injuring him, committed reversible error in charging the jury that any presumption of negligence of the defendant arose from the occurrence of the accident.

      4. Same — Trial—Charge,
    It was also erroneous to instruct the jury that such presumption of negligence might he rehutted by testimony which satisfied the jury that the agent of defendant exercised ordinary care and prudence, as such instruction cast too onerous a burden upon the defendant to establish freedom from negligence.
    5. Same.
    Defendant was also entitled to have the jury instructed, as requested, that it did not follow, because an accident was shown, that plaintiff could recover, that an injury caused by some actionable negligence must have occurred and that the jury must find plaintiff was free from contributory negligence; that the injury must be found to have been caused by defendant’s negligence and not by the unexpected turning or stopping of the vehicle passing in the highway; that if the plaintiff was sleeping or nodding he was guilty of contributory negligence.
    Error to Wayne; Codd, J.
    Submitted April 19, 1915.
    (Docket No. 1.)
    Decided June 7, 1915.
    Case by Frederick Grogitzki against the Detroit Ambulance Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      James H. Pound, for appellant.

      W. C. Gottman, for appellee.
   Stone, J.

This is an action on the case to recover damages for personal injuries claimed to have been sustained by the plaintiff on October 13, 1911, caused by one of the servants of the defendant negligently operating defendant’s automobile ambulance, and driving it into the vehicle of plaintiff while on their way to the city of Detroit, in the vicinity of Dearborn. The declaration alleges that the defendant’s servant drove said automobile ambulance at an unreasonable and improper rate of speed and omitted to give due and timely warning of the approach of said automobile ambulance while both vehicles were being driven in an easterly direction toward the city of Detroit, between the hours of 1 and 2. o’clock in the afternoon of said day, while the plaintiif was riding in a vehicle commonly called a one-horse market wagon, drawn by one horse; that while the plaintiff had turned his horse and vehicle to the right to allow an approaching wagon drawn by a team of horses, and driven by one Wendt, going in a westerly direction, to pass, with due care and caution on his part, and without any knowledge of the approach from behind of said automobile ambulance, the servant of said defendant so negligently, carelessly, and recklessly drove said ambulance from behind against the market wagon of the plaintiif, with great force and violence, that by reason thereof plaintiff was violently thrown off from said market wagon, a distance of 15 feet or thereabouts, into a ditch or excavation alongside the public highway—

“whereby the said plaintiff, without any fault or negligence on his part, but wholly by and through the negligent fault of the said defendant, its agents, servants, and employees, was greatly wounded and bruised in and about the head, face, body, and limbs, and injuring his spine to such an extent that he is compelled to use crutches in order to walk, and that he will be compelled to use crutches for the remainder of his natural life, and because and by reason of such injury he became sick, sore, lame, and disordered, and has so remained and continued, and still does so remain and continue, up until the present time, during which time the said plaintiff has suffered and does suffer great bodily pain and mental distress, and was obliged to undergo surgical and medical treatment, and is still under the care of a physician, on account of said injury, whereby the said plaintiff was and is thereby hindered and prevented from performing and transacting his necessary affairs and business, to wit, the business and vocation of farming, whereby he has lost great gains and profits which otherwise would have accrued to and been earned by him,” etc., to the damage of the plaintiff $25,000.

Upon the trial the evidence tended to show that, while riding upon his wagon toward the city of Detroit from the west on said day, plaintiff’s wagon was severely struck by defendant’s automobile in the manner described in the declaration. It appeared upon the trial that the defendant, whose business is that of operating one or more ambulances in the city of Detroit, had been engaged in taking a patient to the hospital in Dearborn, and was returning to the city of Detroit. The evidence tended to show that the accident was occasioned by the ambulance driving up in the rear of plaintiff’s wagon, and that some confusion was occasioned by one Wendt, the driver of another team going in an opposite direction, driving up alongside the plaintiff s wagon, leaving but little or no space for the ambulance to pass the plaintiff’s wagon. It was the claim of the defendant, which claim was supported by testimony, that the driver of the other team, which was going west, when opposite the plaintiff’s wagon, stopped his team and threw the defendant’s servant thereby into confusion, and th^t in order to save a more serious injury he collided with the left wheel of the plaintiff’s wagon, thereby jarring and throwing him from his load into a ditch at the right-hand side of the road, whereby he was more or less seriously injured.

There was a conflict in the evidence as to whether the defendant’s servaht sounded its bell and gong, and it was the further claim of the defendant that, had not the driver of the other wagon attempted to pass plaintiff at the same time that defendant’s servant was seeking to pass plaintiff’s wagon, there would have been no collision; that defendant’s servant applied his brake with the utmost force, so that it was broken; and by using every effort to stop, and to save the horses upon the team going west from injury, defendant’s driver scraped plaintiff’s left hind wheel, doing no serious injury; and there was further testimony on the part of the defendant that plaintiff was asleep and not attending to his business at the time of the collision.

A recovery was had by the plaintiff in the sum of $600 damages, and after the denial of a motion for a new trial based upon the grounds that the verdict was excessive, against the great weight of evidence, and of newly discovered evidence, the defendant has brought the case here upon writ of error. There are many errors assigned, some of which we do not deem it necessary to mention.

1. Error is assigned upon the ruling of the court in refusing to entertain a challenge for cause against a juror named Popke. An examination of the record has led us to the conclusion that the court did not err in its ruling; that the examination of the juror did not disclose a state of facts that disqualified him from sitting. The juror was afterwards peremptorily challenged, but the defendant, having exercised its statutory number of peremptory challenges, claimed error as above stated.

2. During the direct examination of the plaintiff the following occurred:

“Q. How was your hearing before the accident?
“A. Good.
“Defendant’s Counsel: I object.
“Q. How is it now? (Same objection and exception.)
“A. I can’t hear in this ear. * * *
“Defendant’s Counsel: I object to it; it is not covered by the declaration.”

Thereupon plaintiff’s counsel asked leave to amend the declaration, setting forth the affected hearing. After some colloquy between court and counsel, the court permitted the amendment to be made, against the objection and exception of defendant’s counsel that he was surprised; and he asked for a continuance. This was refused, and exception duly taken, and error assigned thereon. It was contended by plaintiff’s counsel that the original declaration was sufficiently broad to permit testimony tending to show that plaintiff’s hearing had been affected by the injury. The rulings of this court have been very liberal upon this subject. Were this a new question, we should be in doubt whether the declaration was sufficient to admit evidence of this character without an amendment, and should doubt the propriety of compelling defendant to proceed in the trial of the case without time to prepare for the new claim; but beginning with the case of Johnson v. McKee, 27 Mich. 471, followed by the cases of Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Beath v. Rapid Railway Co., 119 Mich. 512-518 (78 N. W. 537); Fye v. Chapin, 121 Mich. 675-680 (80 N. W. 797); Leslie v. Traction Co., 134 Mich. 518-520 (96 N. W. 580); Comstock v. Township of Georgetown, 137 Mich. 541-558 (100 N. W. 788); Renders v. Railroad Co., 144 Mich. 387-391 (108 N. W. 368); Groat v. Railway, 153 Mich. 165-168 (116 N. W. 1081); Mueller v. Railway, 162 Mich. 313-315 (127 N. W. 325); Ralph v. Gies-Gear Co., 164 Mich. 44-46 (129 N. W. 8); Markoff v. Railway, 169 Mich. 37-42 (134 N. W. 1101); Bosek v. Railway, 175 Mich. 8-13 (140 N. W. 978) — we are of opinion that the declaration, as originally framed, was sufficiently broad to admit this evidence, and there was no reversible error in the ruling of the court permitting the amendment.

3. Error is alleged upon the ruling of the court in admitting the testimony of Dr. Henry L. Berdino. This witness testified that he had been the family physician of the plaintiff for five or six years; that he had treated him before the accident for rheumatism, and testified that before the injury he was a robust man. His evidence then proceeded as follows:

“I was first called to treat him in relation to this injury on the 12th day of November after the accident. I treated him for this accident. I made an examination of him.
“Q. What examination did you make?
“A. Well, he complained of a great deal of pain—
“Defendant’s Counsel: I object to that, and I ask that it be stricken out. (Objection overruled and exception.)
“Q. Go on and explain it.
“A. He complained of pain in his back, and I told him to remove his clothing and get on the table, and I found tenderness along the muscles of the back, from his neck down to the end of the spine. I examined him by palpation; it is with your hand.
“Q. What result did you find?
“A. I found certain spots along the muscles that If I touched him he would flinch, and say it would cause him pain. (Further objection and exception by defendant’s counsel.)
“Q. Do you remember how long after the accident you were called in there to treat him?
“A. I don’t know exactly, I judge about one month.
“Q. How was he physically at that time in .relation to walking?
“A. He was using crutches.
“Q. About how long did he use crutches?
“A. About a month, or a month and a half.
“Q. Did he call upon you, or did you call upon him?
“A. He came to my office. * * *
“Q. Doctor, from your examination that you have made of him, do you think these injuries of his are permanent in character?
“A. No, sir; it may last for months, they may last for months yet.
“Q. What is his condition at the present time?
“A. He complains of pain in the back and he is nervous.
“Q. What is that the result of, Doctor?
“A. It is hard to tell, he never complained of it before the injury to me.”

Upon cross-examination the following occurred:

“Q. Can you swear he has any pain of your own knowledge — that he has got any pain?
“A. I should say he has; yes, sir.
“Q. How do you know, can you see it?
“A. No, sir.
“Q. No evidence of it at all?
“A. Yes; his actions.
“Q. By his actions you mean his flinching?
“The Court: I want you to understand the ruling of the court as to your objections, that exclamations of pain, or statements of pain, that are given by the plaintiff to a doctor at the time of the examination in getting his history of the case at the first examination, I will admit; but any statement made later, as regards the statement that he has suffered pain, or his sufferings at the present time, I will exclude that.
“Defendant’s Counsel: I would not object to exclamations of pain about the time of the injury, but I do not understand that he saw this gentleman at all until months after the injury — just about a month after. I will concede that what was said in a few days after would be all right, but I don’t think it is proper a month after.
“The Court: I don’t understand when this doctor came there. I think, if your contention is correct that it was a month afterwards, it would be hearsay testimony. He can testify to exclamations of pain, but the testimony was that he said he was suffering pain.
“Plaintiff’s Attorney: He said that he flinched when he examined him, and palpated.
“The Court: That may stand, but anything that is spoken or said by the plaintiff to the witness as to his condition I will exclude.
“Plaintiff’s Attorney: That is all right, but I ask that his exclamation of pain at the time of the examination — ■
“The Court: I think that the fact that he said he was suffering pain would not be material. All that testimony will be excluded as to what this plaintiff said to the doctor.”

It will be noted that this witness was the family physician of the plaintiff, and that what took place was while he was treating the plaintiff for the alleged injury. There are a number of rulings of this court upon this subject, notably the following cases: Grand Rapids, etc., Railroad Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Comstock v. Township of Georgetown, supra; O’Dea v. Railroad Co., 142 Mich. 265 (105 N. W. 746); Marshall v. Railroad Co., 171 Mich. 180 (137 N. W. 89); Norris v. Railway, 185 Mich. 264 (151 N. W. 747). This treatment and examination began about one month after the injury, and it continued to a greater or lesser extent down to the time of the trial. This suit was begun on December 27, 1911, and the tidal occurred on June 13, 1913.

In the Huntley Case this court held that exclamations of pain were properly excluded from evidence in an action for personal injury, where they were made at a medical examination conducted after the controversy arose, for the purpose of obtaining testimony and not for treatment. In Comstock v. Township of Georgetown, supra, it was held that expressions of pain, vocal or otherwise, made to physicians called by plaintiff, not to give medical aid, but to make up medical testimony, were inadmissible. In O’Dea v. Railroad Co., supra, it was held that complaints of present sufferings made to a physician called by plaintiff in a personal injury- case, not for treatment, but to make testimony, are not natural expressions, but voluntary statements for an ulterior purpose, and are not admissible. In Marshall v. Railroad Co., supra, many other cases are cited, and the rule is there reiterated.

•The instant case may be readily distinguished from those above cited. Here the witness was the family physician, called to examine and treat the plaintiff for his alleged injury; and in our opinion the doctrine of the above-cited cases does not apply, and we do not think the court erred in its final ruling upon the subject, which seems to have permitted a part only of the evidence to stand. The ruling of the court was not as clear as might be desired, but we take it that it was the intention to exclude all testimony as to what the plaintiff said to the doctor.

Among defendant’s requests to charge were the following:

“XIV. It does not follow that because there was an accidént and some injury there can be a recovery by the plaintiff in this case. It must have been an injury caused by some actionable negligence of the defendant’s servant, from which plaintiff was. free, and while he himself was guilty of no negligence. And you must also find that the injury was not caused by the unlookéd for and unexpected action of Mr. Wendt.” -
“XVII. If he was sleeping or nodding, he was guilty of contributory negligence, and cannot recover.”

The court, in its charge to the jury, used the following language:

“In order for a person to recover any damage for an injury suffered by an accident, he must present proof to you to satisfy you, by a preponderance of evidence, that the accident in question was caused by the negligence of the defendant or the defendant’s, agent; also that he himself was free from any negligence that contributed to the injury.”
“Now, in this case, gentlemen of the jury, under the law, the occurrence of this collision, as has been testified to, in the defendant’s agent coming from behind and striking the plaintiff, would raise a presumption of negligence. That presumption of negligence, however, gentlemen of the jury, may be rebutted by testimony, and if that testimony satisfies you that the defendant’s agent exercised the ordinary care and prudence that a person is required to exercise in operating a vehicle upon a public highway, and that he performed the other duties that he is required to perform, that presumption of negligence may be rebutted, and it would then become a question of fact for you to determine whether or not that ordinary care was exercised by the defendant’s agent, and whether or not he performed the duties required under the law to perform in operating his vehicle on a highway.”
“Now, gentlemen of the jury, Michigan avenue, where this accident occurred, is a public highway, upon which all citizens have a common right to travel with any kind or mode of conveyance allowed by law, so long as they use the same in the ordinary conventional manner, they are not guilty of actionable negligence. The defendant ambulance company had as much right to be on Michigan avenue at the time that the injury happened as had the plaintiff. Their servant had the right to pass plaintiff, if, in the exercise of the judgment of an ordinary man skilled in the operation of an automobile, it could be done with safety, and if in a careful attempt to do so defendant’s agent was prevented by the unexpected stopping of Mr. Wendt, a cotraveler along the same roadway at the time, and the breaking of the brake of the automobile in an endeavor to avoid an injury, that would not be in and of itself negligence. It was the duty of the defendant and the defendant’s agent to operate his automobile in a careful and prudent manner. It was his duty, in approaching any vehicle ahead of him and in attempting to pass by, to give a warning of his intention so to do — to give warning of the fact that he was approaching. It was a duty imposed upon him by our statute, and if you find from the testimony that he failed to perform his duty — and, as you know, there is a dispute in that respect — and you find that he failed to give warning as required by law, and the failure to give that warning as required by law was the cause of the injury in question, then that constitutes a negligence for which the defendant would be liable.”

Error is assigned upon the refusal of the court to give each of the aforementioned requests to charge on behalf of defendant, and upon that part of the charge in which the jury were instructed that the occurrence of the collision raised the presumption of negligence of defendant, but that this presumption of negligence might be rebutted by testimony, and if that testimony satisfied the jury that the defendant’s agent exercised the ordinary care and prudence that a person is re-' quired to exercise in operating a vehicle upon a public highway, and that he performed the other duties that he is required to perform, that presumption of negligence might be rebutted, and it would then become a question of fact for the jury to determine whether or not that ordinary care was exercised by defendant’s agent, and whether or not he performed the duties required under the law to be performed in operating his vehicle on a highway. Counsel have' not aided us in their briefs upon this subject'. We have looked in vain for any authority that would justify that portion of the charge of the court just referred to relating to a presumption of negligence of defendant. By the undisputed evidence iii the case the collision occurred, and was in fact occasioned largely, by the conduct of the man Wendt in driving as he did, and stopping his team, as claimed by the .defendant, unexpectedly, as well as by the breaking of the brake in a sudden application to prevent the injury, and we think that the ordinary rule of negligence should have been applied, that question being one of fact for the jury, and that there was no presumption that the defendant was guilty of any carelessness or negligence; and we know of no rule of law under the circumstances of this case which threw the burden upon the defendant to satisfy the jury that the defendant’s agent exercised the ordinary care and prudence that a person is required to exercise in operating a vehicle upon a public highway. The burden of proof upon -the subject of negligence of defendant was on plaintiff. The charge was, in our opinion, contradictory, and the vice which exists in it' is that it casts too heavy a burden upon the defendant, which we think was not removed by any portion of the charge. For this reason we are of opinion that the charge was prejudicial to the rights of the defendant, and that prejudicial error here intervened. We think that the fourteenth and seventeenth requests to charge should have been given. For these errors we. deem it our duty to reverse the judgment of the circuit court.

There were numerous other objections and exceptions, which were covered by the assignments of error; but, as the questions involved are not likely to arise upon a new trial, they do not require any further attention,

For the errors pointed out, the judgment of the court below is reversed, and a new trial granted.

Ostrander and Steere, JJ., concurred with Stone, J.

McAlvay, J.

I concur in the result, but believe that evidence as to exclamations was improperly admitted under the authorities cited.

Brooke, C. J., and Kuhn, Bird, and Mooré, JJ., concurred with McAlvay, J.


text:
    BOOS v. TOWNSHIP OF NORTHFIELD.
    1. Municipal Corporations — Highways and Streets — Animals— Evidence — Townships.
    In an action for personal injuries brought against the defendant township for leaving a sand pile in the highway and frightening plaintiff’s horse which it was claimed was a gentle and well trained animal, testimony of a Witness for plaintiff that the sand pile frightened his own team, one of Which was gentle and the other a somewhat wild animal, was incompetent.

      2. Same.
    And evidence of a witness who might have passed the same place, so far as his testimony showed, after the accident occurred.to plaintiff, was not admissible to show the condition of the surrounding objects as proof of the condition at the time of plaintiff’s injury.
    3. Same — Constructions'—Personal Injuries — Negligence.
    Where a bridge under repairs had been partly completed and thrown open to- public use, before the work was finished, and objects were left at the side of the beaten path whereby plaintiff’s horse was frightened, the charge of the court that plaintiff could not recover unless the jury-found that defendant was negligent in leaving the objects and material near the highway was as favorable as plaintiff was entitled to expect.
    4. Same — Negligence—Repairing Bridge.
    Where the highway was 22 feet wide at the place the injury occurred, and plaintiff’s horse took fright at a pile of sand or other objects left in the highway, and it appeared that the highway was sufficiently wide for the passage of vehicles, and that the plaintiff’s horse became frightened and uncontrollable at the approach to the bridge, which was left during the repairs without railings at one side, the court might properly have directed a verdict in favor of defendant township, and any possible error that may have been committed in the charge of the court at the trial was therefore immaterial and furnished no ground for complaint to the plaintiff on error.
    Error to Washtenaw; Kinne, J.
    Submitted April 16, 1915.
    (Docket No. 136.)
    Decided June 7, 1915.
    Case by Frederick Boos against the township of Northfield for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Cavanaugh & Burke, for appellant.

      John P. Kirk and Arthur Brown, for appellee.
   Stone, J.

Action on the case to recover damages for personal injuries by reason of an alleged defective highway. The plaintiff was injured on Monday, August 5, 1912, while driving from the village of Whitmore Lake to his home in Webster township. About three weeks before the injury to the plaintiff the defendant township commenced the construction of a concrete and iron bridge over a small stream crossing the highway which leads to Whitmore Lake. The work was in charge of a foreman hired by the commissioner of highways, who ordered the bridge opened for use on the Saturday preceding the day of the injury. The bridge was 18 feet by 14 feet, the longer way being with the stream. The approach on the eastern side of the bridge was 22 feet in width, tapering as it neared the bridge, and was about 100 feet long, and near and at the bridge was about 9 feet above the stream. The bridge proper was furnished with iron railings on either side; but when the bridge was opened, and at the time of the injury to the plaintiff, there were no railings or barriers on either side of the approach on the eastern side of the bridge. People had traveled over the bridge after it was opened and before the plaintiff was hurt. About 30 or 40 feet west of the bridge the Ann Arbor and Whitmore Lake highway, from the south, joins the Webster highway from the west, and in the triangle-shaped portion formed by the junction of these highways the defendant, through its agents, had placed about two loads of sand. On top of the sand defendant had placed a mortar box 8 feet long by 5 feet wide, and covered with white mortar. Under the box and protruding from beneath it there were some papers or paper bags, the number and amount being in dispute; it appearing, however, that the quantity of paper exposed to view was not larger than a man’s cap. These materials were left at this point when the bridge was opened. The occasion for leaving the sand and' box there was because the job was not completed. The foreman testified as follows:

“After we finished the work of constructing the bridge and put up the iron rails that had alreády arrived and were there, we had a little more work to do to that bridge before it was completed, and that work consisted of setting these iron rails (meaning the rails for the approaches). They had to be set in cement, and we required some of this gravel and sand to set the iron rails in, and we required it to put over the cement top to the bridge. * * * I put that sand on top of the bridge, and that sand in the triangle was material that I had there on the ground for the building of this bridge, and it was used for that purpose. I did not call the bridge complete until those rails were put on there, those 16-foot railings. This sand and gravel brought in and put in the triangle was for the purpose of making a gravel or dirt top or cover for the cement top of the bridge, and for everything we wanted.”

The commissioner of highways testified as follows:

“I told them to leave the box there until the iron came to put on the approaches. The gravel that was there on the triangle was left to cover the bridge. I told Mr. Roper as soon as the road was passable that he should open it. * * * I heard it was opened on Saturday, and this sand, gravel, and cement were left there by my orders on this triangle to be used to complete the bridge.”

On the occasion of the injury, the mortar box, sand, and other articles in the triangle could be observed by one on the bridge facing the west, but coming from the other side toward the bridge only the pile of sand could be seen.

While the plaintiff was driving his horse, which was well broken and gentle, and about nine years old, westward along the highway which crosses the bridge, and just as he reached the bridge, the horse became suddenly frightened at the objects in the triangle to the west of the bridge, stopped short, snorted, became unmanageable, and backed up and pushed the buggy, while the plaintiff was seated therein, over the embankment on the north side of the eastern approach at the point where the eastern approach joined the bridge, and where there was no railing or barrier. The horse and buggy fell a distance of 7 or. 8 feet, and the plaintiff was seriously injured; the whole thing happening very quickly.

The declaration alleges negligence on the part of the defendant in allowing the materials to remain in the road, and in failing to maintain a railing or barrier along the northerly side of the- eastern approach to the bridge. The case was tried before a jury, which returned a verdict of no cause of action, and judgment was rendered on the verdict for the defendant. Plaintiff made a motion for a new trial which was overruled, and he has brought the record to this court upon a writ of error.

Upon the trial of the case one Herman Fisher was sworn as a witness for the plaintiff. He testified that he had driven over the bridge on Sunday at noon; that he did not remember any paper, but he saw the sand box.

“Q. Why do you remember that? Tell the jury why you remember seeing it, if you do remember it.
“Counsel for Defendant:' I object to that as incompetent and immaterial.
“Q. What occurred when you passed over this bridge on the Sunday previous?
“Counsel for Defendant: We are only chargeable here with the complaint made by Mr. Boos, and with no complaints made on the part of this gentleman, if he has any.
“The Court: I think he may show what he saw.
“Plaintiff’s Counsel: We are trying to show that other rigs were passing over there on Saturday and Sunday prior to this accident, and had trouble.
“The Court: I am inclined to think you ought not to try any other matters than this. I think he may testify to everything he saw, but not whether he had any mishap.
“(Exception for plaintiff.)”

This question was renewed in different forms, with the same objection, ruling, and exception.

This same witness further testified:

“I have a gentle horse and I have a wild horse. I saw this obstruction in the street before I got up to it, because my horses were looking at it; I did not pay much attention to it.”

One J. B. Moore was also sworn as a witness for the plaintiff, and, among other things in his testimony referring to the articles in the triangle, the following occurred:

“Q. You may explain where those were placed that you saw.
“A. On Monday in particular — Friday I did not notice much — but Monday I was with a single rig, and in particular in coming home (when I went'over I did not notice it much), but when I came back the mortar box was lying down on top of some gravel, and there were some papers or bags under there or north of it that my horse—
“Counsel for Defendant: I object, that is incompetent.
“Q. Did you have some difficulty in getting past there? (Same objection.)
“The Court: I don’t think that should be admitted. You may show the conditions; I don’t know that you can show any experience this man may have had with his horse. (Exception for plaintiff.)”

The case was submitted to the jury, and, among other things, the court charged them as follows:

“There has been a large number of requests handed to me. I have looked at them as well as I can. Counsel has the right to present them, and as far as I think they are correct I give them to you.
“On the part of the defendant there are the following:
“In this cause it was the duty of the defendant township to rebuild said bridge or culvert, and said township had the right to construct said bridge or culvert out of such material as was suitable for such purpose. It was the further right of the township to place the material so needed for such construction in some place convenient to said bridge or culvert while said construction was going on, and said township would be entitled to a reasonable time after the completion of the bridge in which to remove any unused portion of said material or tools from said highway. The officers of said township in the performance of this work were only required to exercise the care and skill that ordinarily prudent persons would exercise in matters of this kind, and if from the evidence in this case you find that the officers of the said township were not negligent in leaving the material at the point in said highway where it was on the day in question, and if said material so piled in said highway was not such an obstruction in said highway as would ordinarily tend to frighten horses in passing along said highway, then the plaintiff cannot recover in this action, and your verdict should be for the defendant.
“The absence of the iron rails along the approaches to this bridge or culvert has no bearing upon the plaintiff’s right to recover, unless you find from the evidence that the township was negligent in allowing this material to remain in the highway where it was on the day in question, because the absence of the iron railings did not cause the fright of the horse, and unless you find that such materials were so piled in said highway on the day in question as to tend to frighten horses ordinarily roadworthy while being driven along the highway, then the fact that said railings were not in place has nothing to do with the cause, as the proximate cause of the accident was the fact that the horse became frightened at the material in the highway, and not because of any defect in the highway or bridge.
“Highways cannot be repaired, bridges and culverts cannot be built, without the use of materials and tools with which tó do the work, and the owners of horses, in driving over public highways, must be prepared to guard against the fright of their animals at all such material and tools in the highway as it is customary and usual to use for such, work, and if the officers of this township left this material in said highway in such a condition as ordinarily prudent men would do, and if the condition of such material was not such as would frighten horses, or such as might have reasonably been expected to frighten horses in passing along the highway, then the plaintiff cannot recover, and your verdict must be for the defendant.
“The fact that the plaintiff was‘injured does not give him the right to recover from the defendant, township for such injuries unless you find that the defendant was negligent in -leaving the material where it was on the day in question, and the plaintiff has no right to demand compensation for his injuries, no matter how severe such injuries may be, unless said defendant has been guilty of negligence in this case.

“On the part of the plaintiff the following requests are given:

“It was the duty of the defendant township of Northfield to keep and maintain the bridge in question and the approaches thereto in a reasonably safe condition for public travel. If you find from the preponderance of the evidence that on the day in question and at the time of the injury of said plaintiff in the way described in the testimony there were no railings, barriers, or other protection along the north side of the approach to said bridge from the east and at the place where the north side of said approach met the northeast corner of said bridge, and if you further find from a preponderance of the testimony that at said time the defendant permitted objects, such as sand, gravel, mortar box, screen, cement, and other bags, or either of said objects to be and remain in or upon the approach of said bridge leading from the south and west, or upon the space that has been described in the testimony as the triangle west of said bridge, and that the said horse being driven by said plaintiff at said time, without any fault or ■ negligence on the part of the plaintiff, became and was frightened thereby, and thereby became unmanageable and beyond the control of said plaintiff, and because thereof suddenly snorted and wheeled around, or partly turned or wheeled around, and backed the vehicle driven by said horse at said time off and over the north side of the approach to said bridge at or near the place where said approach joined the northeast corner' of said bridge and thus precipitated, and threw and pushed said vehicle and said plaintiff down and over said' embankment, followed by the said horse, and thereby injured the said plaintiff, and if you find from the evidence that the township was guilty of negligence in the respects that I have stated and to which I have already called your attention, then in such case I instruct you that the plaintiff would be entitled to recover.”

The questions involved in the errors assigned and relied upon may be summarized as follows:

(1) Did the court err in refusing to permit the witness Fisher to testify to a certain accident or occurrence which happened to him prior to the injury to the plaintiff, and under the conditions stated?
(2) Did the court err in refusing to permit the witness* Moore to testify to a certain accident or occurrence which had happened to him on the same day that the plaintiff was injured, and under the conditions stated?
(3) Did the court err in charging the jury that the plaintiff could not recover unless they should find that the defendant was negligent in leaving the •. materials in question in the highway?

1. It is the claim of plaintiff’s counsel that, under the authority of Woodworth v. Railway, 153 Mich. 108 (116 N. W. 549), and Branch v. Klatt, 173 Mich. 31 (138 N. W. 263), the court erred in excluding the testimony of the witness Fisher, above referred to. In the Woodworth Case the deceased’s vehicle had caught in a vacant space between the planking and the defendant’s track at a crossing, and it was held that evidence of prior accidents of a similar nature was admissible to show negligence on the part of the defendant in maintaining its crossing in that manner. And in the Branch Case the plaintiff had fallen down a flight of steps in a theater, and the following question was asked of a witness:

“How many times per day, while you were standing in the rear of the theater, did you find people stumbling across that place?”

In the first case it will be observed that there was a claim of. a defective highway, and of a defective and dangerous stairway in the last-named case.

In the instant case it is not claimed that there was any defect in the traveled portion of the highway proper, but that certain objects had been piled upon a triangle at the side of the traveled portion of the highway. We think the instant case can be readily distinguished from the cases cited. There is a further objection which is sufficient to sustain the ruling of the trial court. The plaintiff claims that the horse which he was driving was a gentle and well-broken animal. The witness Fisher had testified that in his team, which he was driving, he had a gentle horse and a wild horse. The conditions, therefore, were very different. A wild horse in a team might shy much more readily than a gentle horse, and the fact that Fisher’s wild horse shied would be no evidence for the jury to consider that a gentle horse would shy also.

2. Was there error in excluding the offered testimony of the witness Moore? Clearly not; for, under the Branch Case, already cited, this court held that it was not permissible to prove what happened after the accident even in a defective way, citing the case of McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955). From aught that appears in the testimony of the witness Moore, he may have crossed the bridge after the accident to plaintiff. To permit subsequent occurrences to be offered in evidence would be to carry the rule too far. We should adhere to the rule we have already indicated.

3. Was there error in the charge of the court? It was the claim of the plaintiff, and seems to be conceded, that the court in its charge stated that the plaintiff could not recover unless the jury should find that the defendant was negligent, under the circumstances, in leaving the material in or near the high-* way. We have set forth the substance of the charge, for the purpose of showing that it was as favorable to the plaintiff as he could reasonably expect. While it is true that this bridge had been thrown open to public use, it is equally true that the job was not yet completed; that the township authorities left the articles that were piled upon the triangle there for the purpose of completing the work. Whether this was reasonable conduct upon the part of the defendant township was, we think, fairly left to the jury.

The case of Agnew v. City of Corunna, 55 Mich. 428 (21 N. W. 873, 54 Am. Rep. 383), is in point. This court there held that a statute that makes a municipality liable for an injury that is due to a street being out of repair applies only where the want of repair is the immediate cause of the injury; and it is not putting a highway out of repair to let things stand in it for a time that form no part of it. So held where a horse was frightened at the sight of a boulder that had been dug out of the roadbed and left between the gutter and the traveled part of the way until it could be removed by a person who had asked for and obtained it for building purposes.. There, as here, there was no testimony that the roadway was out of repair, or that any damage claimed arose from defects in the track or highway. The court there left the question to the jury as to the cause of the accident, and the failure in duty of the corporation to remove the stone within a reasonable time, as well as the further question whether the stone in its place was calculated to frighten horses. Justice Campbell, speaking for this court, there said:

“It is customary in all towns to allow ditches to be dug, and building materials of all kinds and colors to be piled up and kept for considerable periods, in the body of the street. In many, if not in most, places, the right to do this can only be had by license from the corporation, and it cannot be claimed that such a license can be granted to do a wrong, or create a nuisance. Such stones as that described are often used for building purposes,' and left in the street like other building materials, and sometimes, broken up for use or sawed for use. It does not seem reasonable to hold that such things can be allowed to await the convenience of a person who wishes to use them nearby, and yet not to await removal somewhere else. If this stone had been hauled to the place it occupied, in order to be used for building purposes, and left there for a considerable time, no one would think of regarding it as an actionable grievance. The use of streets for such purposes is too common to justify the owners of horses to assume it will not be allowéd, and they should be prepared to guard against their animals’ freaks and fears of such ordinary appearances.”

The above case has often been referred to with approval. See, also, Gilbert v. Railway Co., 51 Mich. 488 (16 N. W. 868, 47 Am. Rep. 592); Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014); Lambeck v. Railroad Co., 106 Mich. 512 (64 N. W. 479).

The question whether, under all the circumstances, the defendant was guilty of negligence in leaving this material where it was deposited seems to have been fairly submitted to the jury.

In Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883), plaintiff’s horse, while being driven on a country highway, took fright, from some unknown cause, at a point 14 feet from a bridge, and backed the carriage down the embankment, injuring the plaintiff. No railings were maintained along the sides of the highway at this point. It was held that the fright of the horse, and not the absence of railings, was the proximate cause of the accident, and that there could therefore be no recovery against the township. Chief .Justice Grant said:

“There are but few miles of country road in Michigan where the same result might not follow, if a horse became frightened and backed to the roadside. All country roads usually have ditches on each side of them. The law does not require townships to furnish protection against frightened and unmanageable horses. Only when their own misconduct causes the fright do they become liable, and then because their negligent act caused the fright, and not because of negligence in not maintaining rails or barriers. That is the settled doctrine of this State” — citing many cases, including Agnew v. City of Corunna, supra.

In Bell v. Village of Wayne, 123 Mich. 386 (82 N. W. 215, 48 L. R. A. 644, 81 Am. St. Rep. 204), a majority of this court held that a horse which becomes frightened, and backs or plunges so that, even with proper management, it cannot be kept within a good roadbed, wide enough to permit teams to pass in safety, is beyond control, within the rule relieving municipalities from liability for certain accidents where a horse is uncontrollable, but charging them where it “simply shies to an extent common and probable among horses.” It was also held that, where the driver of a horse which becomes uncontrollable through fright not attributable to the negligence of the municipality charged with keeping the highway in repair sustains injuries which would have been avoided had proper barriers been maintained at the place of the accident, the fright, and not the lack of barriers, is, as a matter of law, the proximate cause of the injuries, and hence no action will lie against the municipality. See, also, Stoll v. Laubengayer, 174 Mich. 701 (140 N. W. 532).

In the instant case the highway at the point of approach to the bridge where the injury occurred was 22 feet wide, certainly wide' enough to permit teams to pass in safety. Whether the fright was attributable in this instance to the negligence of the municipality by storing the articles where they were placed, and whether the material, so placed was likely to frighten horses of ordinary gentleness, were questions which were fairly submitted to the jury, and we think the plaintiff cannot justly complain of the charge of the court, for it might very properly have directed a verdict for the defendant.

The judgment of the court below is affirmed.

Brooke, C. J., and McAlvay,' Kuhn, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.