author: Grant, J. Moore, C. J.

text:
    MAYER v. DETROIT, YPSILANTI, ANN ARBOR & JACKSON RAILWAY.
    1. Master and Servant — Injuries.to Servant — Action—Issues— Street Railroads.
    In an action by a motorman against a street-railroad company for injuries, where the negligence declared on is failure to equip the car with “sand boxes and sand,” the question whether there was a pail of sand and a shovel on the car is immaterial.
    2. Same — Evidence—Admissibility—Other Accidents.
    It being claimed that the injury resulted from the motorman’s losing control of his car for want of sand to use on a grade, evidence that other runaways had occurred on the same hill, under like circumstances, from the same cause, is competent.
    3. Same — Questions—Objections.
    Exclusion of a question asked a witness, as to how many other cars he had known of having run away on the hill, furnishes no basis for the claim that plaintiff was prevented from showing other similar runaways from similar causes upon the same portion of the road, where the witness was not a street railroad man and showed no special knowledge of the causes or circumstances of the previous runaways.
    4. Same — Negligence — Street Railroads — Equipment — Sufficiency of Evidence.
    Evidence examined, and held, sufficient to show that defendant was negligent in not equipping its cars with automatic sand boxes. Carpenter and Grant, JJ., dissenting.
    5. Same — Master’s Duty — Ordinary Care:
    A street-railroad company owes its motormen the duty of furnishing those appliances which, measured by the standard of good railroading as actually conducted, can be said to be reasonably safe, and is not bound to equip its cars with every possible appliance to insure safety.
    6. Same — Actions—Instructions.
    Where a motorman was, before being placed in charge of a car, instructed in the usual manner and for the usual time considered necessary to enable motormen to run a car, and was trained to the satisfaction of his instructors, who" are not claimed to have been incompetent, in all the moves necessary to start and control a car at all points, it was error for the court, in an action for injuries to the motorman, to charge that he was only a motorman, without other training or experience than what was merely sufficient to start and stop the car, and possessed no mechanical training, but was an inexperienced young man recently from the country.
    7. Same — Assumption of Risk.
    A motorman, who had been working on a street railroad for about six months, and fully understood the ordinary operation of his car, and was familiar with sand boxes and sand and the purpose for which the sand was used, and knew the danger of its absence, and failed to use the sand provided him when he saw the slippery condition of the track over which he was running, assumed the risk of his car’s running away on a down grade.
    Error to Washtenaw; Kinne, J.
    Submitted October 6, 1905.
    (Docket No. 15.)
    Decided December 30, 1905.
    Case by Albert E. Mayer against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    Plaintiff, while in defendant’s employ as motorman, on January 7, 1902, was very seriously injured. The defendant was found guilty of negligence, and a substantial verdict recovered. Defendant’s street railway line in the city of Ann Arbor runs northerly from Catherine street ¿ down Detroit street, with its northerly terminus near the Michigan Central depot. There is a gradual incline from Catherine street, down Detroit street, to a point west of the Michigan Central depot, which point is called “ Bridge Point ” in the record, and is a short distance south of the bridge over the railroad tracks. At that point the rOad turns abruptly to the right down a steep grade to within a short distance of the depot. Opposite its terminus, and a few feet therefrom, is a stone pillar of the depot. The average grade from Catherine street to Bridge Point is 2.5 per cent. In some places it is nearly level; in others the grade varies from 9 inches to 5.15 inches per 100 feet. The weather previous to January 7th had been cold. On that day it was sufficiently warm to melt snow upon the streets. There was no snow or ice upon the rails. Towards noon the frost came out of the rails, causing slippery, or, as the railroad men called it, “greasy tracks.” No difficulty had been experienced in going over this street until the trip before that in which the plaintiff was injured. Plaintiff’s run commenced at 8 o’clock a. m. from defendant’s car barns, and continued until 4:40 p. m. Each trip took 40 minutes. The accident occurred about 10 minutes past 12. There was nothing in the condition of the tracks in the morning to cause apprehension. Plaintiff testified that it got more frosty and slippery as the day went on. A car had gone down and back just before the plaintiff went down and was injured. The cars passed each other on a switch near Catherine street. There are several cross-streets between Catherine and Bridge Point, among which are Division, Kingsley, and Fuller streets; Fuller is about 350 feet from Bridge Point, and Kingsley 1,150 feetr The record fails to show the distance from Division street to the point. Plaintiff testified:
    “ I was going down Detroit street slowly. When near Division street my car began to slide. I released my brakes and put on my reverse current, threw my reverse lever, put on the reverse current, and stopped the car somewheres about Division street — somewheres in that vicinity between Fuller and Division — and I shut off the current, but did not change» the reverse lever, but left it in proper position to reverse again if necessary; left the car to roll slowly down the hill, gathering up my brakes, but it began to slide again, and I reversed. I began to slide the last time somewheres about Fuller street. I reversed again, but the rail was so slippery that it was impossible to stop the car. * * *
    “ Q. Did you stop the car ?

      “A. I did not.

      “ Q. Go on and state how it happened, and what further occurred.

      “A. It skidded all the way down. The car skidded all the way down to the depot down hill.
    “ Q. What do you mean by that ?

      “A. It slid all the way down.
    “ Q. All the way down where ?

      “A. All the way down as far as I knew anything about it.
    “ Q. Do you know whether it turned to go down to the depot ?

      “A. It did.
    “ Q. Did it go down that hill ?

      “A. It did.
    “ Q. Were you able to stop it when it got to the top of the hill going down to the depot ?

      “A. No, sir.”
    He also testified that by means of his reverse current he ' stopped the car after it had skidded a little ways, and ran it back a short distance before starting again down the incline; that he applied the brakes as soon as the car started the second time, and let it roll slowly down with, the brakes on; that after going from two to four rods he became satisfied that the brakes were not going to hold the car, and he then threw off the brakes and again reversed. The car ran off at the end of the track and struck the stone pillar, badly demolishing the car and severely injuring plaintiff.
    The grounds of negligence alleged in the declaration are:
    1. Failure to keep its tracks free from ice, snow, and frost.

      2. Failure to equip its cars with sand boxes and sand.
    3. Failure to warn and instruct the plaintiff against the dangers attendant upon running cars when the tracks were covered with ice and snow, and in assuring him that there was no danger in running the car down grade when the track was thus covered.
    4. The failure to equip the car with proper brakes and other appliances for stopping it.
    The first and fourth grounds of negligence were properly eliminated from the consideration of the jury, as there was no evidence to sustain them.
    The evidence on the part of the plaintiff shows that on the day in question the track became suddenly unusually slippery or “greasy.” Plaintiff testified that he had no trouble in holding his car at any other time. The motorman who made the trip 30 minutes before, and who had been in the employ of the company about ten months, testified :
    “ I never saw them in worse condition. * * *
    “ Q. When did you first notice this slippery condition caused by the frost coming out of the rails; that is, what time of the day ?
    “ A. I noticed that it was especially bad the trip before Mr. Mayer got hurt; that is, 30 minutes before.
    “ Q. Had you noticed it before then that day ?

      “A. I had not noticed it enough to be alarmed about it. It is a condition that comes on very quickly. The condition was not the same on all the rails on that part of our route. It was only particularly slippery from Kingsley street to the depot. On my trip before Mayer was hurt, I made the trip, by being careful, without any accident. I had never run off the end of the track at the depot.”

      Another motorman, who made the trip immediately preceding that of the plaintiff, testified: “It was the worst track I ever saw, slippery.”
    The case was submitted to the jury upon the second and third grounds of negligence. Upon the second ground of negligence the court instructed the jury as follows:
    “ The negligence of which the plaintiff complains, and which he charges against the defendant as causing this accident, is the failure of the defendant to provide its railway cars with sand boxes or the appliances for the casting of sand upon the rails of said railway track when the rails were slippery, and when there was danger by reason of the wheels sliding and thereby losing control of the car. * * * It is the duty of the defendant, in 'view of the grade of its roadbed and the liability of its tracks to become slippery in certain conditions of the weather, to use reasonable care and diligence to furnish its cars with such devises and appliances for controlling the speed of its cars as good railroading demands; and if you shall find from the evidence in this case that the defendant failed to do so, then it would be guilty of negligence. It was the duty of the defendant to use reasonable care and diligence to provide for the use of the plaintiff such appliances as were in common use upon other roads as would be adequate to control the speed of its cars at any point on its road in the city of Ann Arbor during any conditions of its track which the defendant knew, or by the exercise of ordinary care and diligence ought to have known, was liable to exist; and if you shall find from the evidence in this case that the defendant failed to do so, then it would be guilty of negligence.”
    Upon the third ground of negligence the court instructed the jury as follows:
    “ In this case, if you should find that from the evidence that the danger and risk which caused this accident was as open and apparent to the plaintiff as it was to the defendant, and that he remained in the employ and service of the defendant with this knowledge of this risk and danger, then he cannot be heard to complain, and must be regarded as having assumed these dangers, and he cannot recover. It appears, however, that he was only a motorman without other training or experience or knowledge than what was merely sufficient to start and run and to stop the car, and he possessed no mechanical or other scientific knowledge or training, but was an inexperienced young man recently from the country. Under those circumstances I instruct you as follows:
    “ If you find from the evidence that he became uneasy and solicitous about his ability as a motorman to properly handle and hold the cars without sand boxes or other like appliances, and that on the morning of the accident he went to the superintendent of the company and communicated his fears, and that the superintendent of the company assured him that there was ,no danger if due care was exercised; and if you further find from the evidence that he relied upon this information and assurance of the superintendent, and that he did so because he believed he could safely depend upon the opinion and judgment of the superintendent, whom he believed' to possess knowledge superior to his own, then it seems to me, and I so instruct you, that the defendant company ought not to be allowed to urge against the plaintiff that he has assumed the risks and dangers which he sought to have avoided, and which he might have escaped but for the assurance of the superior officer of the railroad company to whom he went for counsel and for safety to himself and the public.”
    Any further facts so far as essential will be stated in connection with the discussion and determination of the legal questions.

      Corliss, Leete & Joslyn (Bay B. Morgan, of counsel), for appellant.

      A. J. Sawyer & Son, for appellee.
   Grant, J.

(after stating the facts). In the briefs and oral arguments it was asserted by plaintiff’s counsel— and denied by defendant’s counsel — that there was not a pail of sand or a shovel provided on plaintiff’s car with which he could throw sand upon the track in case of emergency. Under this record the question is wholly immaterial. ■ No such ground of negligence is alleged in the declaration. The duty of the defendant alleged in the declaration was to ‘ ‘ equip and supply its said car with sand boxes and sand.” It is apparent that the case was tried solely upon this theory, so far as the use of sand is concerned. Neither the plaintiff nor any other witness testified that his car was not supplied with a pail of sand and a shovel. The other motormen testified that on their cars they had pails of sand. Plaintiff testified that his car was equipped substantially the same as others. The argument of the attorney for plaintiff before the jury, as printed in the record, is evidently based upon the failure to provide sand boxes and sand, which could be used automatically, and not a failure to provide a pail of sand to be used by hand.

The inquiry made by the plaintiff of the superintendent in the morning, before he commenced his day’s work, whether the cars should not be equipped with sand boxes and sand, was not made with reference to the slippery condition of the track which developed at noon. It was made with a view to equipping the cars with this automatic arrangement for use on all occasions when necessary. There was evidence that the president of the street railway employés’ union .had requested Mr. Merrill, the manager of the road, to place sand boxes on the cars, and that Mr. Merrill said he did not think it was necessary; also that the superintendent of the road in Ann Arbor told plaintiff, on the morning in question, that he did not think it was necessary. There is evidence of but one other runaway, on account of the slippery condition of the track, on this road during the several years of its existence, and that happened several years before the plaintiff’s accident. Evidence of this came from one Mullison, a motorman, who had been in the employ of the company for six years as motorman and conductor. Whether this runaway of Mullison’s commenced upon Detroit street, or whether it commenced on the steep grade from Detroit street to the depot, the record fails to show. From the fact that the result was not very serious, it might be inferred that Mullison lost control of his car as it commenced to go down the steep grade by the depot. Defendant asserts in its brief that this was so, and that there never had been an accident of any kind on Detroit street. But, as already stated, the record does not show what the fact is, and the onus probandi is upon the plaintiff. If other runaways had occurred going down this hill, under like circumstances and for the same cause, it would not only be competent, but very important, evidence; for this would have been notice to the defendant that it should have made all reasonable efforts to avoid a danger imperiling the lives and limbs of its employes and passengers.

Counsel for plaintiff, however, insist that they were prevented by the ruling of the court from showing other similar occurrences. Counsel’s basis for this claim is found in the exclusion of thp following question, propounded to the depot master, one of plaintiff’s witnesses:

“ How many cars do you know of having run away and run down that hill before this,- since you have been there — getting away and running down that hill, and Tunning into that depot or something there ? ”

This was objected to as incompetent, and the objection sustained. No attempt was made to show, by Mr. Mullison or any other employe of the road, similar runaways. Mr. Mullison’s testimony was admitted without objection. Its competency is too clear to admit of doubt, if that runaway occurred on Detroit street. There was no attempt to show that the depot master knew anything about the cause or circumstance of any other runaways, if there were any, nor whether they occurred in running down the very steep grade from Detroit street to the depot, or whether they started above on the street. This question furnishes no basis for an argument that plaintiff was prevented from showing other similar runaways for similar causes upon the same portion of the road.

Having disposed of these preliminary questions, we now •come to the first main question, viz.: Was there evidence that the defendant was negligent in failing to provide its cars with sand boxes and sand, for use so that they could be used automatically when occasion required ? There is no evidence that, during the several years in which defendant had operated its road in the city of Ann Arbor, any such runaway had occurred down Detroit street, or that there had been any difficulty in controlling the cars thereon. So far, therefore, as this record shows, there had been no difficulty in controlling the cars with, the appliances which the defendant had furnished. It was customary, evidently, for them to use sand, when deemed necessary, with a shovel. This was more inconvenient, and undoubtedly involved more labor; but the record fails to show that its use in this manner was insufficient to avoid accident. Whether the president of the union requested the manager to equip the cars with sand boxes to work automatically, because they were more convenient and labor-saving, or whether because it was safer, does not appear. Defendant’s cars were small and light. There is no evidence that similar cars on other roads were equipped with sand boxes, except that in the city of Detroit two small cars were thus equipped. These were the only two in use in that city; the others being the large cars. Defendant’s counsel assert that the ordinance of the city of Detroit requires all its cars to be supplied with sand boxes and sand. We find no evidence of the ordinance upon the record. This witness (the president of the union ) was then asked:

“ State whether or not, at the time of this accident, good railroading demands that these cars should have sand boxes and sand supplied upon the cars ?
“A. I believe they would have been safer.
Q. Would it have been good railroading to have done it?
“A. I believe it would have been good railroading to have done it; yes.”

On cross-examination he gave his definition of the meaning of good railroading as follows:

What I mean by good railroading is that everything should be done possible in equipping a car to insure safety.”

This is not the rule, and renders this witness’ opinion valueless, and his testimony should have been stricken out. Ordinary care is the rule applicable to this case. 4 Thompson on Negligence, §§ 3768, 3769; Lamotte v. Boyce, 105 Mich. 545. The means furnished must be those which, “measured by the standard of good railroading as actually conducted, can be said to be reasonably safe.” Balhoff v. Railroad Co., 106 Mich. 606; see, also, Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. It does not appear by this record that experience had shown that sand boxes were essential for safety in running defendant’s cars. Neither is it shown that it is the custom of other roads similarly situated and running similar cars. It follows that there was no negligence shown in the failure to supply its cars with these appliances. A new trial, if one be had, may show a different state of facts. We now determine the question only upon the record before us.

2. I think it was error for the circuit judge to say to the jury that—

“He [plaintiff] was only a motorman without other training or experience or knowledge than what was merely sufficient to start and run and to stop the car, and he possessed no mechanical or other scientific knowledge or training, but was an inexperienced young man recently from the country.”

I find nothing upon this record to indicate that plaintiff was not instructed in the usual manner and for the usual time considered necessary to enable motormen to run one of these cars alone. It is not a difficult thing to do. It was not necessary, neither was it expected, that he should understand all the mechanism of the car. No scientific knowledge was required. When he had been instructed and had learned how to control such mechanism by the use of the lever and the brakes he had acquired all that is essential. If anything happened to disable his car, the rules required him to have the next car. take it back to the barn for repairs. He is not, as is a railway engineer,, required to understand the mechanism of the machine. and be able to repair it. That duty was very wisely left to others, educated for that purpose. The plaintiff had been employed as motorman of defendant’s road for six months prior to the accident. No complaint is made that competent men did not instruct him, or that they did not instruct him for a sufficient length of time. He understood all the moves necessary to be made in order to start and control the car around curves, descending inclines, and at all other danger points. All of his instructors considered him competent. After a week’s instruction he acted as motorman on defendant’s cars in Ann Arbor until the 1st of November following. He was then placed under instruction for two weeks upon the main line between Ann Arbor and Detriot, engaged in running heavy cars, after which he returned to run the small and light cars in the city of Ann Arbor. His instruction was both by example and precept. He was familiar with sand boxes and sand. He used them on the main line; had run the cars for nearly six months without them in the city of Ann Arbor. He knew for what purpose the sand was used; he knew its effect as well as any one; he knew the danger of its absence as well as any one; and if he had it upon the car, and failed to use it when he saw the slippery condition of the track, he should be held to have assumed the risk. But for some assurance by the superintendent that the use of sand was unnecessary, plaintiff would clearly have assumed the risk. The assurance upon which he says he relies he states as follows:

“I asked him the question whether he did not think there would be; or ought to be, sand and sand boxes upon those cars, and he said, ‘ No;’ that it was not the car, it was the man, who was to blame. He said he could take a car down there at any time, and go down there safely, and so could any other man who would go down there carefully.”

Every motorman, so far as appears from this record, had taken his car down Detroit street in safety. If this were so, the superintendent was justified in his statement. But the assurance was not that the úse of sand in any manner was not necessary. It was only that sand boxes, constructed so as to feed sand automatically, were not necessary.'

Judgment must be reversed, and new trial ordered.

Carpenter, J., concurred with Grant, J.

Moore, C. J.

I agree with Justice Grant that the case should be reversed, but think there was evidence tending to show the defendant Was negligent in not equipping its cars with automatic sand boxes. '

Montgomery and Hooker, JJ., concurred with Moore, C. J.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    JULIUS KESSLER & CO. v. VEIO.
    Sales — Offer and Acceptance — Executed Contract.
    An offer and acceptance by letter for 10 barrels of whiskey, followed by a segregation of them in the seller’s bonded warehouse and the issuance of warehouse receipts and invoice therefor, constitute an executed contract which transfers title to the whole quantity, though only two barrels are shipped to the buyer at the time of the sale.
    Error to Cheboygan; Shepherd, J.
    Submitted October 6, 1905.
    (Docket No. 21.)
    Decided December 30, 1905.
    Assumpsit by Julius Kessler & Company against Joseph Veio and Fred Veio, copartners as Veio Bros., for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court for less than the amount claimed, and it brings error.
    Reversed.
    Plaintiff is an Illinois corporation, with its headquarters in Chicago. It owns United States bonded distillery warehouses at several points in Kentucky. Defendants are retail liquor dealers in Cheboygan, Mich. Negotiation for the purchase and sale of some liquor was began by the defendants writing a letter to the plaintiff on January 29, 1903, in which they said:
    “We are in the market for ten barrels whiskey. If you can furnish us satisfactory prices, we will give you the business. Kindly quote us prices on five bbls. W. H. McBrayer Spring 1896, five bbls. Sam Clay Spring 1896. * * * If you will make the Spring 1896 W. H. McBrayer at $1.25, and the Sam Clay Spring 1896 at 65 cents, we will take five barrels of each, and you can ship one of each at once, and the b'lance we will order as we want it. * * * We would want them reduced to 95 proof. We always pay cash thirty days, less discount. Look us up in Bradstreet.”
    To this plaintiff replied January 31st, as follows:
    “We have filled the order for the Sam Clay, as well as for the W. H. McBrayer, at your own figures, and beg to hand you herewith invoice for the ten barrels, amounting to $448.32. You may deduct four per cent, from this amount if you remit within thirty days. We enclose also warehouse receipts Nos. 7,304 and 8,371 for four barrels Sam Clay and four barrels W. H. McBrayer’s Cedar Brook, respectively. We have ordered one barrel of each tax paid and shipped to you reduced to 95 per cent., and will draw for the government tax after shipment is made. * * * Please note that you will have no warehouse charges to pay on these goods prior to January 31, 1903; in other words, the warehouse charges begin only with this date.”
    Plaintiff sent this letter, the warehouse receipts, and invoices by registered mail, and they were received by the defendants February 2d. The warehouse receipts read as follows:

      “ Received and stored in our United States bonded distillery warehouse of our Paris Distillery No. 77, situated in Paris, in the 7th district of Kentucky, five (5) barrels Sam Clay whiskey, to be held .by us on storage and on account of and subject to the order of Veio Bros., deliverable only upon payment of the United States taxes and all other taxes and charges and storage on said whiskey at the rate of (5) cents per barrel per month from date of entry and payment'of the purchase price of said whiskey or of the notes given therefor and upon the return of this receipt properly indorsed and the written order of the holder thereof. Loss or damage by the elements, fire, riots, accidents, evaporation, leakage,' shrinkage, or natural decay shall be at the risk of the owner or holder of this receipt. Storage, State and county tax paid up to date of sale.”
    The other receipt was the same, except that it described another warehouse and the other brand of whiskey. Upon the back of each receipt was indorsed the following:
    “Address all correspondence in regard to shipment of the within-described whiskey to Julius Kessler & Co. {Inc.}, Distiller, Ashland Block, Chicago.”
    The invoice described the same 10 barrels of whiskey mentioned in the warehouse receipts and identified them in the same manner. The two barrels were withdrawn from the warehouse in the usual manner and shipped. Plaintiff made application in due form to the collector of internal revenue to reduce the whiskey to 95 per cent, proof, as directed by defendants. Plaintiff drew a draft upon the defendants for the amount of the tax advanced by plaintiff, which the defendants paid upon receipt of the two barrels. Oil' February 26, 1903, defendants wrote plaintiff that they had just opened the two barrels of whiskey, and upon gauging the same found that they were only 80 per cent, proof, instead of 95, stating they could not use either package, asked plaintiff to send draft for amount paid, including freight, and further stating that they would return the goods and warehouse certificates and consider their business relations closed. Upon regauging, defendants found that their gauger had made a mistake, and that the whiskey was found to be on a second gauging 90 and 92£ per cent. A small sample was drawn and sent to the plaintiff at its request, and it had it regauged, and wrote a letter to defendants, dated March 10th, acknowledging that one of the samples fell below 95 proof. Plaintiff afterwards requested the Michigan collector of internal revenue, in the district where the defendants lived, to re-gauge the whiskey. This was done, and he reported that it was 95 proof. This report was sent to the defendants, but was ignored by them. Considerable correspondence-passed between the parties which is immaterial to here state. Defendants kept and used the two barrels. About May 25th they returned the warehouse receipts and a check in payment for the two barrels, but declined any liability for the other eight barrels. The receipts and check were promptly returned by plaintiff to defendants, and this suit instituted to recover the price of the 10 barrels. The court declined, as requested, to direct a verdict for plaintiff for the entire amount, but directed a verdict for plaintiff for the price of the two barrels used by the defendants, and plaintiff appeals.

      Frost & Sprague, for appellant.

      C. S. Reilley, for appellees.
   Grant, J.

{after stating the facts). Plaintiff insists that the contract was executed, and title passed. Defendants insist that the contract was executory, and that-no title passed except to the goods shipped. Defendants’ letter plainly contemplated the purchase of ten barrels of whiskey, not two barrels. The price per gallon for ten barrels might be less than the price for two barrels. Plaintiff accepted defendants’ offer as to price, quality, quantity, and terms of payment, and in its reply gave its construction to defendants’ order, viz., that it was to be a sale of ten barrels at so much per barrel, cash payment 30 days, less discount. In compliance with this order plaintiff set aside in United States bonded warehouses the ten barrels ordered, numbered them, marked them, issued warehouse receipts therefor, made out an invoice, and sent the same to defendants. The warehouse receipts also notified them that loss or damage by the elements, etc-., was at the risk of defendants, or of the holder of the receipts, should they transfer them. Defendants evidently understood that the sale was subject to payment by them of the government tax. The evidence shows that the only person authorized to gauge the whiskey to the proof asked is a duly appointed United States gauger, and that the two barrels shipped were certified by said gauger as reduced to 95 proof. Defendants’ action in retaining these warehouse receipts, the invoice, and the. letter accompanying them about 24 days, without any objection, is a ratification of the contract as stated in the plaintiff’s letter and thé accompanying documents. Defendants could take it all at one shipment, or they were at liberty to leave it in the bonded warehouses, to' be ordered shipped as they desired. The indorsement on the back of the receipts to whom and where to address orders for shipment has no tendency to show that it was not the intention to pass title. The only act left for the defendants to do was to order shipments as they desired, and the only act left for the plaintiff to do was to ship as ordered. In order to get the goods which were left in possession of the plaintiff by the agreement of the parties, an order was necessary from the defendants. The same order, and the same compliance therewith, would have been required if this indorsement had not been made. The delivery of the warehouse receipts was a sufficient delivery to pass title. Actual delivery is not essential to transfer title to property sold. Rail v. Lumber Co., 47 Minn. 422; People v. Sheehan, 118 Mich. 539.

Though the sale may be for cash, cash payment may be waived, in which case the title will pass. Scudder v. Bradbury, 106 Mass. 422; Fishback v. Van Dusen, 33 Minn. 111. Where the agreement is on the part of one to sell and the other to buy a specified article, “the title passes to the purchaser at once, unless the terms of the contract indicate the intention to have been otherwise, and delivery is not essential to the passing of title as between the parties and their privies.” People v. Sheehan, supra. The law will carry into effect the intention of the parties as appearing from their agreement. Lingham v. Eggleston, 27 Mich. 329. The letter and the documents accompanying it were a notice to the defendants that the property had been set aside and designated as their property, and subject to their control. They could have sold and transferred the warehouse receipts, and thereby conveyed a valid title to the property therein described. Merchants’ & Manufacturers’ Bank of Detroit v. Hibbard, 48 Mich. 123; First Nat. Bank of Green Bay v. Dearborn, 115 Mass. 219; Second Nat. Bank of Toledo v. Walbridge, 19 Ohio St. 419; 30 Am. & Eng. Enc. Law (2d Ed.), p. 71.

We think that the contract was executed, and that the title had passed.

Judgment reversed, and new trial ordered.

Moore, O. J., and Carpenter, Montgomery, and Hooker, JJ., concurred.


author: Blair, J.

text:
    KING v. HARRIGAN.
    1. Appeal and Error — Dismissal — Assignment oe Errors — Record.
    When errors are assigned under Rule 11 of this court, it is no ground of dismissal of the writ of error that the procedure for settling a case or bill of exceptions was not observed.
    2. Same — Garnishment—Disclosure oe Garnishee — Report of Testimony — Exhibits.
    Exhibits referred to by a garnishee in his oral examination, if desired to be made part of the record, must be filed with the transcript of his testimony, and a writ of error to review a judgment against him will not be dismissed because the record does not contain them.
    Garnishment proceedings by Robert King against James Harrigan as garnishee defendant of Richard Burden. Plaintiff recovered judgment, and defendant brings error: On motion to dismiss.
    Submitted October 31, 1905.
    (Calendar No. 21,032.)
    Motion denied December 30, 1905.

      Stickney & Reed, for the motion.

      John Loughnane (Geer, Williams & Halpin, of counsel ), contra.
   Blair, J.

The plaintiff obtained judgment against the principal defendant in the circuit court for Lapeer county. Garnishment proceedings were instituted against the garnishee defendant, who filed a disclosure denying liability. Thereupon plaintiff filed a demand for the oral examination of the garnishee, a transcript of whose testimony on such oral examination was signed by him and filed, as required by 3 Comp. Laws, § 10603. In his oral testimony the garnishee defendant again denied his liability. On the day the transcript was filed the court rendered final judgment against the garnishee defendant, to review which judgment he has taken out a writ of error from this court, assigning errors under Supreme Court Rule 11.

Plaintiff moves to dismiss the writ of error for the reasons that no bill of exceptions was settled and signed, no case was made and settled, the record is not signed and certified by the circuit judge, no notice was ever served of a settlement of a bill of exceptions or case made, and because the record filed is not full and complete and does not contain all the evidence produced on the trial.

The evidence which it is claimed is omitted consists of two exhibits, a bill of sale and a bond, referred to by the garnishee in his oral testimony, and which, if desired to be made part of the record, should have been filed with the transcript of his testimony on his oral examination. The report of the testimony of the garnishee defendant, when filed, forms part of the statutory issue to be thereafter tried, unless such testimony admits liability. 3 Comp. Laws, § 10610. Whether the effect of the testimony in the case before us is to admit liability will be a proper question when the case is heard.

Appellant contends that he was entitled to a trial of the statutory issue, and that the judgment of the court, rendered upon the filing of the transcript of this testimony, which framed the issue, and in advance of such trial, was irregular and void. We think that, so far as the reasons upon which the motion is based are concerned, appellant has pursued the proper practice to review the judgment, and the motion is denied, with costs.

Moore, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Me Alva Y, J.

text:
    RECOR v. COMMERCIAL & SAVINGS BANK OF ST. CLAIR.
    Í. Exemptions — Evidence—Amount of Debtor’s Property.
    On the issue whether money in the hands of a garnishee is exempt from garnishment, the amount of property owned by defendant is immaterial.
    •2. Garnishment — Motion to Quash — Questions in Issue.
    Whether an indebtedness owing by defendant to plaintiff accrued prior or subsequent to the death of defendant’s husband is, if material, a fact to be disposed of by trial on the merits, and which cannot be summarily determined on a motion to quash a writ of garnishment.
    ■3. Beneficial Associations — Exemptions—Proceeds of Certificate.
    The proceeds of a benefit certificate, which have been paid over by the association, and which are on deposit in a bank to the credit of the beneficiary, are not exempt under section 15, Act No. 35, Pub. Acts 1903.
    Error to St. Clair; Tappan, J.
    Submitted October 19, 1905.
    (Docket No. 81.)
    Decided December 30, 1905.
    Garnishment proceedings by Edward C. Recor against the Commercial & Savings Bank of St. Clair as garnishee defendant of Arabella Recor. There was judgment quashing the writ, and plaintiff brings error.
    Reversed.

      Henry Baird and Frank T. Wolcott, for appellant.

      J. B. Mcllwain and William, Baird, for appellee.
   Me Alva Y, J.

This is an appeal from a judgment entered in the circuit court for St. Clair county quashing the writ of garnishment and releasing the garnishee defendant. Plaintiff sued defendant in assumpsit for money paid by him for her use and benefit as part owner of a certain barge called “Golden Rule;” plaintiff being the managing owner of said vessel. The bank, garnishee defendant, was duly summoned, and disclosed an indebtedness in its hands, in cash, belonging to the principal defendant of $1,140. The principal defendant, appeared and after pleading the general issue, made a motion to quash the writ of garnishment and discharge the garnishee defendant for the reasons that the alleged indebtedness arose prior to the death of her husband; that the only money on deposit to her credit in the bank was the proceeds of a benefit certificate held by her deceased husband in a fraternal beneficiary association; and that, under the provisions of the statute, such money is exempt from garnishment. This motion was heard upon affidavits, counter affidavits, and the files and records in the case. The pleadings are not set out at length in this record. From the bill of particulars it appears that the claim of plaintiff is that as owner of three-fourths of the barge ‘ Golden Rule,” he paid out moneys for the use and benefit of defendant, owner of a one-fourth interest in said barge, from March 29, 1902, to April 8, 1904. Said account sets forth all of the items debit and credit, and charges defendant with one-fourth of the balance.

In deciding the case the trial judge filed a learned opinion in which the authorities are cited and discussed at length, arriving at the conclusion that under the statute the money in the hand of the bank was exempt from garnishment. That this money was the balance of the proceeds of the benefit certificate does not appear to be disputed. The court found that this was the entire means of the principal defendant, and also that the indebtedness was incurred prior to the death of her husband. It seems to us that whether she had little or much property is entirely immaterial, and that the question as to whether the indebtedness accrued prior or subsequent to the husband’s death, if material, was a fact in issue in the principal case, which plaintiff was entitled to try, and which could not be 'summarily disposed of upon motion. The material matter in dispute in this case is the construction of the section of the statute relied upon. The section reads as follows:

“ Sec. 15. The money or other benefit, charity, relief or aid to be paid, provided or rendered by any association authorized to do business under this act, shall not be liable to attachment by trustee, garnishee or other process, and shall not be seized, taken, appropriated or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of a certificate holder, or of any beneficiary named in a certificate, or of any person who may have any right thereunder. And all dues, assessments and other payments and the accumulations thereof, held and possessed by said association for the payment of death, sick or disability benefits, and the reserve, emergency and other mortuary funds of said association shall be exempt from taxation for State, county and municipal purposes.” Act No. 53, Pub. Acts 1903.

It is claimed that under the provisions of this section the proceeds of the benefit certificate after having been paid by the fraternal order, and in the bank on deposit subject to check, is not liable to attachment, garnishment, or other process, and may not be seized or taken by any legal or equitable process, or by operation of law, to pay any d.ebt or liability of the certificate holder, or of any beneficiary, or of any person who may have any right thereunder.

This question is for the first time before this court. In other States similar statutes have been construed, but the decisions are not harmonious. The earliest case is from New York. Bull v. Case, 41 App. Div. (N. Y.) 391 (affirmed 165 N. Y. 578). The wording of the New York statute is almost identical with the one in this State. The case arose in a suit by attachment against defendant, who had received the proceeds of a benefit certificate he held by his deceased wife, which proceeds he had invested in a mortgage. The attachment was levied upon this property which was claimed to be exempt from levy. The majority of the court held it not to be exempt, that the exemption was confined to money “to be paid.”

The statute of Maine is identical in language with ours. In Hathorn v. Robinson, 96 Me. 33, the supreme court of Maine decided that money received by a beneficiary from such organization does not continue exempt from seizure or attachment after it has come into his possession; following the construction given a Federal statute in an earlier case. Friend v. Garcelon, 77 Me. 25. This statute provided an exemption for pensioners:

“No sum of money due orto become due to any pensioner shall be liable to attachment, levy, etc., whether the same remains with the pension office, or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall enure wholly to the beñefit of such pensioner.” Section 4747, U. S. Rev. Stat.

In that case the court said:

“ It is money due orto become due, and not money collected that is protected by the law. * * * When the money is actually in the possession of the pensioner the protection is gone.”

Illinois has a similar statute. It was construed by the supreme court in Martin v. Martin, 187 Ill. 200. This was a garnishee case like the one at bar. The court followed the New York case of Bull v. Case, supra, holding that the money collected from such society and in the possession of an agent of the beneficiary, is subject to garnishment for the beneficiary’s debts.

In Rumbold v. Supreme Council Royal League, 206 Ill. 513, the same court cited and approved Martin v. Martin, supra.

The statute of the United States (section 4747, U. S. Rev. Stat.) providing for exempting pension money as above quoted in the Maine case was construed in Iowa. Webb v. Holt, 57 Iowa, 712, was a case of garnishment where a bank was garnishee of a defendant, who was a pensioner under circumstances similar to the case at bar. The court held that after the money had been paid to the pensioner it was no longer exempt. See, also, Spelman v. Aldrich, 126 Mass. 113.

As to this pension statute a contrary doctrine- has been held in Folschow v. Werner, 51 Wis. 85; Eckert v. Mc Kee, 9 Bush (Ky.), 355; Hayward v. Clark, 50 Vt. 612. These last two cases cited can be distinguished, as in neither of them does it clearly appear that the proceeds of the check had come into the hands of the pensioner. In Minnesota, under a statute like the one in Michigan, with the exception that the words “ to be paid ” are omitted, and that it provides for exemption from seizure for the debts or liability of a member of the association only, the question has been before the Supreme Court several times. In re How, 59 Minn. 415, 61 Minn. 217. In that case a woman whose husband was deceased made an assignment for the benefit of creditors. In her inventory of assets she scheduled policies and proceeds thereof in the sum of $15,800, which her husband had in eight benefit associations, and claimed the entire sum as exempt under the statute. The court sustained this contention as to the whole amount. See, also, Brown v. Balfour, 46 Minn. 68 (12 L. R. A. 373). It appears from an examination of the cases that the weight of authority is in favor of a strict construction of this statute, all the courts so holding where the statute contains the words “tobe paid.” In New York, after the decision herein cited, the legislature amended the act.

If the construction is sustained as contended by defendant, the entire amount of money paid beneficiaries will be removed from being subjected to taxation or legal process. If the benefit is exempt in the form of money the claim will logically follow that a change to other personal property, or to real estate will be protected by law so long as it can be identified, and neither creditors or the State may reach it for any purpose. It would seem that the statement of the facts in the Minnesota case is very suggestive of the actual and practical operation of the construction claimed. There is under the statute no restriction as to the amount, and a creditor, if eligible to become a beneficiary in or to obtain rights under a certificate, can claim the same right to exemption as the members of the immediate family. We do not think the statute will bear such an interpretation or that the legislature intended it should. The language of the statute does not so indicate. If the intention of the legislature had been to make so important and unlimited an exemption, it would have used language indicative of such intention. "We do not so construe the language used.

The statute exempts money “ to be paid.” Before payment the fund cannot be reached by the creditors of the deceased or his beneficiary. It is preserved intact until after payment, when it becomes the sole property of the beneficiary, to be owned and held as any other property, not exempt from legal process unless made so by the general laws of the State.

The order quashing the writ of garnishment and releasing the garnishee defendant is vacated, and the cause will be remanded to the court below to proceed according to the provisions of the statute.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    BOARD OF EDUCATION OF DETROIT v. ANDREWS.
    1. Officers — Liabilities on Bonds — Defenses Available to Sureties.
    Where it does not appear that the fact that the treasurer of a board of education was a stockholder in the bank in which, with the board’s consent, he deposited the board’s funds, was known to the board as a whole, the sureties on his bond cannot successfully claim that the board knew of his purpose to violate the law.
    2. Same — Misconduct in Appointment.
    Misconduct of a board of education in appointing a certain per-sou. treasurer, in consideration of his promise to pay interest on the funds in his hands, does not render the appointment void, and cannot be urged as a defense by the sureties on the treasurer’s bond.
    3. Same — Control of Funds.
    Mere assent by a board of education to a deposit of its funds in the bank of which its treasurer is an officer, does not make the deposit the board’s act, so as to release the sureties on the treasurer’s bond, where the funds were at all times under control of the treasurer, and he could at any time have withdrawn the entire amount.
    Error to Wayne; Hosmer, J.
    Submitted October 19, 1905.
    (Docket No. 88.)
    Decided December 30, 1905.
    Assumpsit by the board of education of Detroit against Henry B. Andrews, principal, and Cullen Brown and others, sureties, on a bond. There was judgment for plaintiff, and defendant Brown brings error.
    Affirmed.

      John W. Beaumont, for appellant.
    P. J. M. Hally (T. E. Tarsney, of counsel), for appellee.
   Montgomery, J.

This action is on the bond of the defendant Andrews as treasurer of the plaintiff. The other defendants are sureties on the bond.1 Judgment was entered on a directed verdict. Defendant Brown brings error.

The main facts developed in this record are stated'in the case of Board of Education of Detroit v. Union Trust Co., 136 Mich. 454, and will not be here repeated. The ■question presented in that case was whether the deposit of the plaintiff’s funds in the City Savings Bank was a special deposit in such sense as to entitle plaintiff to priority over the general depositors. We held that the plaintiff had such knowledge of the deposit of the funds in the bank and had acquiesced therein in such manner that it was not entitled to treat the deposit as other than a general deposit. It was implied in the opinion that resort could be had to the bond of the treasurer to make good any deficiency.

It is contended in this case that the board of education was guilty of such fraud as releases the bondsmen. The record discloses that before the appointment of defendant Andrews, he addressed a letter to the board, offering to pay 2£ per cent, on daily balances if re-elected as treasurer, and that he was thereupon elected. It also appears that it was expected that Andrews would deposit the funds in the bank of which he was an officer. It is also asserted that it was known to the plaintiff board that Andrews was a stockholder in the bank; but this we think was not proven. It is true that one member knew of this fact or had heard of it, but it does not appear that all the members of the board nor that a majority knew of the fact. The fact (hat it did not appear that Andrews was a stockholder was held to differentiate Board of Education of Detroit v. Union Trust Co. from Board of Eire & Water Com’rs of Marquette v. Wilkinson, 119 Mich. 655 (44 L. R. A. 493). So, in the present case, the fact that it does not appear that the knowledge that Andrews was a stockholder was known to the board as a whole furnishes an answer to the claim that the board knew of a purpose to and of an actual violation of the law in making a deposit in a bank in which the treasurer had a pecuniary interest.

It is apparent, however, that there was misconduct on the part of the board in appointing Mr. Andrews in consideration of a promise to pay interest on the funds in his hands. This did not render his appointment wholly void, but voidable. He was in fact appointed treasurer and required to give the bond in suit. The law makes it the duty of the board to exact a bond for the protection of the public. We are of the opinion that under these circumstances the misconduct of the members of the board cannot be urged as a defense by the sureties. There is a distinction in the law as to the duty owing by an obligee to the surety between private persons and public officials acting on behalf of the public. Hogue v. State, 28 Ind. App. 285; City of Detroit v. Weber, 26 Mich. 284. The rule established by the weight of authority and recognized by this court is that, where the bond is given for the benefit of the public, there is no implied condition that other public officers shall perform their prescribed duties, and that one who becomes a surety on the bond of a public official must be held to have entered into the engagement with knowledge of this rule. Hart v. United States, 95 U. S. 316. This distinction was clearly made by Mr. Justice Campbell in City of Detroit v. Weber, 26 Mich., at page 294. See, also, County of Waseca v. Sheehan, 42 Minn. 57 (5 L. R. A. 785); Throop on Public Officers, § 202; Buhrer v. Baldwin, 137 Mich. 263.

The defendant’s counsel makes the further contention that the funds were never in the hands of the treasurer as such, but that the deposit was made with the bank by the direction of the board, and that the responsibility for the solvency of the bank must be held to have been assumed by the plaintiff. We held in the case of Board of Education of Detroit v. Union Trust Co., supra, that the board had assented to the keeping of their fund in the bank, and could not insist that it was a special deposit. The question of whether it was as between the board and the treasurer in the custody of the latter was not involved. We think on this record it clearly appears that the funds were at all times within the control of the treasurer. He could at any time have withdrawn the entire amount. He was at liberty to take the funds into his own custody or deposit the same in any other bank.

No error appears.

The judgment is affirmed.

McAlvay, Grant, Blair, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    GORDON HOLLOW BLAST GRATE CO. v. GORDON.
    1. Trade Names — Unfair Competition — Name op Individual.
    An inventor, after disposal of his interest in a firm organized to manufacture and sell his invention, which has become well known to the trade by his name, will not be permitted to use his name in connection with the manufacture of a similar article in such a manner as to lead the trade to believe that the article manufactured by him is that of the original firm.
    2. Same — Injunction—Deoree.
    A decree that enjoins any use of his name in such way as to lead the public to believe his firm is manufacturing articles patented by him is too broad where it in fact is manufacturing under patents granted to him, and the decree will be modified so as to permit his firm to advertise that it is manufacturing under patents granted to him, provided the advertisements also state in language equally prominent that his firm is distinct from the original one.
    Appeal from Montcalm; Davis, J.
    Submitted November 10, 1905.
    (Docket No. 116.)
    Decided December 30, 1905.
    Bill by the Gordon Hollow Blast Grate Company against Elonso J. Gordon and others to restrain unfair competition. From a decree for complainant, defendants appeal.
    Modified and affirmed.
    Complainant filed its bill to restrain defendants from using the name “ Gordon” in connection with, grate bars, and from using the names “Gordon Hollow Blast Grate,” “Gordon Blast Grate,” “Gordon Grate,” or any name embodying any combination of these words or either of them upon their advertising matter or in their advertisements, and from the use of the name “ E. J. Gordon & Company ” as manufacturers of grates.
    The case was heard on pleadings and proofs taken in open court, from which it appeared that defendant Gordon, being the inventor and patentee of an improvement in grate bars, entered into a partnership organized for their manufacture, which, after several years’ successful operation at Greenville, was succeeded by complainant corporation which became owner of the patents and continued the business at that place. Gordon subsequently disposed of his stock in the corporation, and he having made and patented other improvements of the same nature, certain persons began their manufacture at Greenville under the name of “ E. J. Gordon & Co.,” paying Gordon a royalty for the use of his patents and name. These persons after-wards transferred their rights to the defendants joined with Gordon in this bill, who removed the business to Big Rapids. Complainant and the partnership which it succeeded expended large sums in advertising the Gordon Hollow Blast Grate, and said grate became well and favorably known to the trade, the sales thereof amounting to many thousand dollars annually. Defendants’ advertisements and circulars were very similar to those used by complainant, the name “Gordon” being given much prominence, and readers were urged ,to “buy Gordon grates from Gordon,” and to note that the business had been removed from Greenville to Big Rapids.
    The decree entered enjoined defendants, together with their associates, attorneys, counselors, servants and agents, and each and every of them, from in any way or manner advertising or claiming the fact to be that they have removed their business of manufacturing grates for use under steam boilers from the city of Greenville to the city cf Big Rapids; from advertising ór claiming to the public that they are manufacturing Gordon grates, or grates patented by Gordon, or Hollow Blast grates, or any combination of these words in such advertising; and from carrying on the business of manufacturing grates for use under steam boilers under the name of E. J. Gordon and Company, or under any individual, firm or corporate name which shall include the word “Gordon” as an integral part thereof; but not from manufacturing and selling grate bars for use under steam boilers, under the name of any person, firm or corporation which does not include as an integral part thereof the word “Gordon” or the words “ Hollow Blast;” nor from manufacturing and selling such grates under the name of “Economy Blast Grates,” or under the name of “ Hot Blast Grates.”

      N. 0. Griswold, for complainant.

      Frank Dumon and E. J. Marsh {Douglas Roben, of counsel), for defendants.
   Ostrander, J.

The familiar principle that no man has a right to sell or to advertise his business or goods as those of another, and so mislead the public and injure the business of the other, is applied in this case in the decree appealed from. The testimony leads fairly to the conclusion that defendants designed by use of the partnership name, by the connection of the partnership name with the names of articles manufactured by the partnership, and by advertising matter, to mislead the public and to injure the business of complainant, to the profit of the partnership business. To some extent what was designed has been accomplished. The facts are much like those in Penberthy Injector Co. v. Lee, 120 Mich. 174. The decree is claimed to be, and we think is, too broad. Defendants are restrained from claiming to the public that they are manufacturing grates patented by Gordon. They are in fact manufacturing such grates, under letters patent issued subsequently to those protecting the grates made by complainant.

The decree and injunction will be so modified as to per- . mit defendants the right to state the fact that they manufacture a grate under letters patent granted to E. J. Gordon, in connection with the further statement, made equally prominent, that the concern is distinct from and has no connection with the complainant company. In other respects the decree is affirmed. No costs are awarded in this court.

Moore, C. J., 'and McAlvay, Montgomery, and Hooker, JJ., concurred.


text:
      In re STANTON’S ESTATE.
    1. Taxation — Inheritance Tax — Statute—Construction.
    By section 21 of the inheritance tax law of 1899 (Act No. 188) the legislature intended the tax to be measured by property which it is within the power of the State to tax, and not by property which State policy has selected for purposes of general taxation.
    2. Same — Statutes—Adoption prom Sister State — Prior Construction.
    The inheritance tax law of 1899 (Act No. 188) was adopted, together with its judicial interpretation, from the State of New York.
    3. Same — Property Taxable — Personalty, op Non-resident Decedents.
    Personal property situated in this State, belonging to a nonresident decedent, is taxable here under the inheritance tax law of 1899 (Act No. 188), notwithstanding a similar tax has been levied by the State of his domicile upon the theory of the fiction that the situs of personal estate is the domicile of the owner.
    4. Same — Land Contracts.
    Land contracts owned by a decedent as vendor are taxable to his estate as personal property under the inheritance tax law of 1899 (Act No. 188).
    Error to Wayne; Hosmer, J.
    Submitted November 10, 1905.
    (Docket No. 121.)
    Decided December 30, 1905.
    Stephen E. Stanton, executor of the last will and testament of Mary B. Stanton, deceased, appealed to the circuit court from an order of the probate court determining the amount of an inheritance tax. There was a judgment sustaining the tax in part, and the executor brings error.
    Affirmed.

      Gray & Gray, for appellant.

      JoknE. Bird, Attorney General (Roger Irving Wykes and Thomas Ambrose Lawler, of counsel), for the people.
   Ostrander, J.

The probate court for the county of Wayne determined the inheritance tax to be paid from the estate of Mary B. Stanton, deceased. Act No. 188, Pub. Acts 1899. The executor, who is the plaintiff in error, appealed to the circuit court. The court heard the case without a jury, and made a finding of facts and of law:

ct 1. Said Mary B. Stanton died in the city and State of New York on March 29, 1901, being then, and having for upwards of 23 years then last past been, a resident of the said city of New York.
“2. Under her will, duly admitted to probate, the beneficiaries and their relations to her and their places of residence are as follows: Stephen K. Stanton, husband, New York City; Samuel M. Stanton, son, New York City; Lawrence M. Stanton, son, New York City; Stephen B. Stanton, son, New York City; Alexandrine M. Spalding, daughter, Cambridge, Mass.— all of whom are of full age.
“3. At the time of her death, said Mary B. Stanton owned a farm near Big Rapids, valued at $1,250, which was the only real estate in the State of Michigan absolutely owned by her at the time of her death.
“ 4. That at the time of her death said Mary B. Stanton held the following promissory notes, all secured by mortgages upon lands in the State of Michigan:
Amount unpaid.
William Nelson...... ........ $300 00
E. N. Fitch__________ ........ 300 00
E. N. Buck.......... ......100 00
Samuel Bush________ ......__ 300 00
Julius Kranzier_____ ........ 680 00
Edgar Starret------- ........ 1,400 00
Margaret O’Donnell -. ........ 433 03
Alexander Mortimer .....— 680 00
Thomas Collins...... -------- 1,000 00
John Viner.......... ________ 625 00
Mary C. Peckham____ ........ 2,000 00
$7,818 03
“5. That at the time of her death said Mary B. Stanton owned 37.50 shares of the capital stock of the Chicago, Wilmington & Yermillion Coal Company, a corporation organized under the laws of the State of Illinois and whose business office and all of whose property were situated in the State of Illinois. Said stock was of the value of $2,250.
“ 6. That at the time of her death, said Mary B. Stanton owned 100 shares of the capital stock of the Detroit National Bank, a corporation organized under the banking laws of the United States and doing business in said city of Detroit. Said stock was of the value of $13,800.
“ 7. During her lifetime said Mary B. Stanton had sold upon executory land contract five parcels of land situate in the State of Michigan, the legal title of which remained in her at the time of her death. The several amounts unpaid thereon were as follows:
Christine Smith______________________________,. ■ -$3,000 00
John J. Traver__________________________________ 1,335 01
F. A. Pfannenschmidt........................... 1,368 03
Frederick Kingsland__________________________905 00
A. M. Traver.................................... 1,680 74
$7,388 78
“8. That at the time of her death said Mary B. Stanton had on deposit to her credit in said Detroit National Bank the sum of $6,862.45.
“9. That during the time of the residence of said Mary B. Stanton and Stephen K. Stanton in the city of New York, said Stephen K. Stanton kept an office in said city of Detroit, and that the notes and mortgages above described in paragraph 4, the certificate of stock in the Chicago, Wilmington & Vermillion Coal Company, above described in paragraph 5, the certificate of stock in the Detroit National Bank above described in paragraph 6, and the land contracts described in paragraph 7, were at the time of the death of said Mary B. Stanton actually in said office of Stephen K. Stanton in said city of Detroit.
“10. That said Stephen K. Stanton held a power of attorney from Mary B. Stanton, authorizing him to draw checks against the deposit in the Detroit National Bank, and to receive moneys payable to her, and to discharge mortgages held by her.
“ 11. That the State of New York assessed and has collected from the estate of Mary B. Stanton an inheritance tax upon the personal property herein described in accordance with the laws of that State.
“ 12. That the property so owned by said decedent and represented at the time of her death by such securities and deposit (mentioned in paragraph 9, except the certificate of stock in the Chicago, Wilmington & Vermillion Coal Company) was possessed by said decedent (though not in the same form) prior to her removal from Detroit to New York, and has since been invested in Michigan and reinvested there when collections were made or loans terminated. That the mortgages and papers representing such property have always been kept in Michigan for the purposes of collection, deposit and reinvestment, though they might have been temporarily taken to New York.
“conclusions op law.
“1. That there is no inheritance tax payable upon the real estate.
“3. That the stock .of the Chicago, Wilmington & Vermillion Coal Company cannot be considered as within the State of Michigan, and no inheritance tax is, therefore, payable thereon.
“3. That all the remainder of the property above described must be considered as within the State of Michigan, and therefore an inheritance tax is payable thereon, less the statutory exemption of $5,000, at the rate of one per centum.”

It is assigned as error that the facts found do not support the third conclusion of, law. The propositions of counsel for the executor may be thus stated:

“The principle which supports the levying of an inheritance tax is that it is a tax upon the right of succession, and not upon property. Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487, 493.
“ The right of succession is an intangible right, and has no situs except in the State creating the right, and a State has not power to impose a tax upon a succession right granted by another State.
“ The Federal decisions and those of the State of New York, holding such a right to be taxable in a State other than that of the domicile of decedent, have ignored the principle which alone supports the right to tax.
“In any event, our statute measures the tax to be imposed by the property which is by the law of the State generally taxable, and not by the property which the State may tax. This last proposition requires that there be no inheritance tax imposed, in this case, upon the succession to the mortgage notes, the land contracts (treated as personal estate), and the deposit in the bank.
‘ ‘ It should be held that the interest represented by the land contracts is real and not personal property.”

The words requiring interpretation, found in section 21 of the act, are:

“ Shall include all property or interest therein whether situate within or without this State, over which this State has any jurisdiction for the purposes of taxation.”

There are three reasons for holding that the legislature intended the tax to be measured by property which it is within the power of the State to tax, and not by property which State policy has selected for purposes of general taxation.

One reason is that the statute is adopted, together with a judicial interpretation of the language above quoted, from the State of New York. Stellwagen v. Wayne Probate Judge, 130 Mich. 166. And, as interpreted by the courts of New York, the design of the legislature to tax the transfer of everything which it has the power to tax is found in the act. Matter of Whiting, 150 N. Y. 27 (34 L. R. A. 232); Matter of Houdayer, 150 N. Y. 37 (34 L. R. A. 235); Matter of Sherman, 153 N. Y. 1; Matter of Hellman, 174 N. Y. 254. See, also, Blackstone v. Miller, 188 U. S. 189; Plummer v. Coler, 178 U. S. 115. The second reason is that a policy of general taxation, which recognizes, to some extent at least, the rule of universal succession and the theory of taxation of personal property, generally, at the domicile of the owner, is not logically controlling of the interpretation of a statute imposing a tax upon a right of succession or upon a transfer of property which can only be tangible and enforceable — be made effective — in the jurisdiction, and by virtue of the laws and institutions, of the situs of the property. A third reason is that, as a tax upon succession or transfer, uniformity of operation and an equal measure of the tax to the property of residents and nonresidents can be, with no other construction, secured. There is property situated within the State, belonging to nonresidents, which the State does not tax, generally (Village of Howell v. Gordon, 127 Mich. 517, Baars v. City of Grand Rapids, 129 Mich. 572), though it might taxit (Catlin v. Hull, 21 Vt. 152; New Orleans v. Stempel, 175 U. S. 309). Property of the same class owned by residents is taxed, generally.

It has been before this pointed out (Blackstone v. Miller, supra) that under a statute like ours, in cases like the one at bar and with reference to the same property, one State imposes a succession tax upon the theory of the fiction that the situs of personal estate is the domicile of the owner, while another State imposes it upon the ground that the actual situs is within that State, and the same State may assume either position, as the domicile of the decedent or the presence of his property within the State requires it. Courts are properly concerned only with the questions of legislative purpose and the power to give the ascertained purpose effect. In this case, both of these questions are resolved against the appellant.

Counsel for the executor directs attention to the opinions in Re Estate of Pulling, 97 Mich. 375, and Bowen v. Lansing, 129 Mich. 117 (57 L. R. A. 643), with the statement that, as the last case does not refer to the earlier one, the precise character of the property owned by the vendor in a land contract may be said to be undetermined; that as real estate it passes in the, cáse at bar to the children, and is not considered in levying the tax, while as personal estate it is valued. The point seems to be ruled, for this case, by the decision in City of Marquette v. Iron Co., 132 Mich. 130.

The order and determination of the circuit court is affirmed, with costs.

Moore, C. J., and McAlvay, Montgomery, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    BAKER v. PERE MARQUETTE RAILROAD CO.
    Infants — Actions — Next Friend — Judgment — Payment — Authority to Receive.
    The next friend of an infant has authority to receive payment and satisfy a judgment recovered by him in the name of the infant. Section 10458, 8 Comp. Laws.
    Error to Bay; Shepard, J.
    Submitted November 10, 1905.
    (Docket No 122.)
    Decided December 30, 1905.
    Scire facias proceedings by Oscar W. Baker against the Pere Marquette Railroad Company to enforce a judgment. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      jF. W. Stevens (John G. Weadock, of counsel), for appellant.

      Lee E. Joslyn (Oscar W. Balcer, of counsel), for appellee.
   Hooker, J.

The plaintiff suffered the loss of a leg in 1887, being then seven years old, by being run over by the engine or cars of the Flint & Pere Marquette Railroad Company. An action was brought by his father, James H. Baker, as next friend, which resulted in a judgment for $5,000 against that company. This judgment was paid by the check of the Flint & Pere Marquette Railroad Company for $5,000, payable to James H.. Baker, next friend, etc., and delivered to counsel who tried the case. He caused it to be indorsed by James H. Baker, and himself collected the cash upon the check, retained one-half of the amount for his fees, according to agreement, and paid the remainder to James H. Baker, the next friend. It is claimed that the defendant is the successor of the Flint & Pere Marquette Railroad Company, through a consolidation, and liable under the contract to pay its debts and obligations, of which this is said to be one. The proceeding is by scire facias. A jury was impaneled to try the case. The circuit judge held that there were no disputed questions of fact, and directed a verdict for $5,393.93 in favor of the plaintiff, which was the amount of the original judgment and interest, less the amount paid counsel, and the sum of $100 paid to plaintiff by his father. The defendant has appealed.

The questions in the case are two:

1. Was the delivery of the check and its payment to counsel and the next friend a satisfaction of the judgment ?
2. If not, is the defendant liable to the plaintiff upon the judgment in this proceeding ?

Our statute (3 Comp. Laws, § 10458) provides:

“Sec. 5. Before any person shall be appointed next friend for an infant in any suit to recover any debt or damages, he shall, if required by the officer to whom application for such appointment shall be made, execute a bond to such infant, in a penalty at least double the amount claimed in such suit, with such sureties as shall be approved by such officer, conditioned that such next friend shall duly account to such infant for all moneys which-may be recovered in such suit.”

It is admitted that this statute was adopted as early as 1846 from the statutes then in force in the State of New York. 2 Rev. Stat. N. Y. (1st Ed.) pt. 3, chap. 8, tit. 2. Prior to the enactment of 1846 it had been before Chancellor Walworth in a case where there were several infant plaintiffs. In re Frits, 2 Paige (N. Y.), 374. A petition was filed on their behalf for a next friend to enable them to join with other adult legatees, under the will of their grandfather, for the sale of certain real estate of the testator, to satisfy their legacies charged thereon. The petition stated that it would be expensive to the infants to procure the appointment of a next friend for each. The appointment was made, and the court said, with reference to the requirement of a bond :

“ It would be a useless and unnecessary expense to ex-cute a bond to each of the 30 infants in this case. And as the premises must be sold under the direction of a master, if a sale is decreed, to pay the legacies, the court can control the fund without suffering it to pass into the hands of the next friend. The security may therefore be dispensed with, under the particular circumstances of this case.”

It is evident that the learned chancellor was of the opinion that the statutory provision for a bond was to secure the infants against misappropriation of such funds as should be recovered and paid to the next friend. Otherwise it would have been sufficient to say that as the next friend had no authority to receive, and the commissioner making the sale none to pay to him, any portion of the proceeds of the sale, a bond would be unnecessary. It may be said that this was no more than an unnecessary and inappropriate reason, for his conclusion, upon a matter of discretion, his determination of which did not depend upon his reason, or for that matter upon his giving any reason for his holding, and therefore that it should not be given the weight of an authoritative determination that a next friend may collect and discharge a judgment. We entertain the opinion that this was not such a decision as to foreclose the question now before us in the courts of New York.

The practice of appointing next friends to prosecute actions for infants was of statutory origin, and was apparently provided to avoid the difficulty of obtaining the application of the infant for the appointment- of a guardian. See 1 Coke upon Littleton, f. 135b and note. Such guardians may have had authority to receive payment and satisfy judgments. See White v. Hall, Moore, 852 (A. D. 1616). Whether such authority was intended to be given to next friends, seems never to have been decided by the English courts. The cáse of Morgan v. Thorne, 7 Mees. & W. 400, contains such a dictum, in language which indicates little doubt on the part of the court. The case of Collins v. Brook, 4 H. & N. 270, 5 H. & N. 700, is sometimes cited as authority to the same effect, but it is not clearly so, and much that was said in that case is consistent with a different theory. Freeman and Black on Judgments limit the right to cases where there is no regularly constituted guardian, and cite these cases to support the text. 2 Black on Judgments, § 986; 2 Freeman on Judgments, § 462. The case of Baltimore, etc., R. Co. v. Fitzpatrick, 36 Md. 624, is to this effect. The American cases are at variance upon the point, many denying the authority; and it must be admitted that a strong argument can be made in denial of the right as appears from these cases. The courts of Tennessee, Alabama, South Carolina, Kentucky, Texas, and West Virginia, and perhaps other States, deny the right. On the other hand the courts of Massachusetts, Ohio, Maryland, and Pennsylvania sustain defendant’s claim.

We have said that our statute (which we have quoted) was taken verbatim from the statutes of New York some years after it received a construction at the hands of Chancellor Walworth. In re Frits, supra. It is true that this may be called a dictum. Nevertheless it was never questioned, and many years later the rule in New York was changed by statute. Aside from this consideration, we find in the statute itself a provision that indicates the understanding of the legislature to have conformed to the decision of Chancellor Walworth. It authorized the court to require a bond to the infant from the next friend. It required it to be executed and delivered to the officer before the appointment should be made. It was to be conditioned that such next friend account to the inf ant tor all moneys which might be recovered in the suit. We think this inconsistent with any other theory, except that the next friend had authority to receive payment of the judgment that should be recovered. This view has been taken in the construction of statutes of other States, where- a bond has been required. See Neal v. Spooner, 20 Fla. 38; Jones v. Steele, 36 Mo. 326; Burkham v. Cooper, 2 Ohio Cir. Ct. R. 77; 14 Enc. of Pl. & Prac., p. 1037, and notes.

There is'another reason that suggests itself as a possible obstacle to plaintiff’s recovery, viz., that the attorney of record in the case received the payment. It is true that the check was. made payable to the next friend, but it was delivered to the attorney, who obtained the money upon it. Unless we should hold that he had not the usual authority of attorneys in other cases — i. e., to collect and satisfy judgments — the payment to him would be sufficient. This question was not argued, however, and it is unnecessary to decide it..

The judgment is reversed; and a new trial ordered.

Moore, C. J., and MoAlvay, Montgomery, and Ostrander, JJ., concurred.


author: McAlvay, J.

text:
    AYRES v. SHORT.
    1. Witnesses — Competency — Matters Within Knowledge op Deceased.
    On a bill for specific performance of a contract between complainant and defendants’ ancestor for the conveyance of land, testimony of complainant’s wife as to matters equally within the knowledge of the deceased will be excluded from consideration.
    2. Specific Performance — Conveyance of Land — Oral Contract —Part Performance.
    Full performance on complainant’s part of a contract with defendants’ ancestor, by the terms of which he agreed to buy and improve a house and lot and leave it to complainant on consideration that complainant should move into the house and make a home for the ancestor as long as he should live, entitles complainant to specific performance after the ancestor’s death.

      Appeal from Lenawee; Chester, J.
    Submitted November 7, 1905.
    (Docket No. 97.)
    Decided December 30, 1905.
    Bill by John B. Ayres against Homer E. Short, individually and as administrator of the estate of Riley Short, deceased, and others to compel the specific performance of a land contract. From a decree for complainant, defendants appeal.
    Affirmed.

      J. L. O’Mealey and Grant Fellows, for complainant.

      Bird & Sampson; Haggart & Hicks, and Smith, Baldwin & Alexander, for defendants.
   McAlvay, J.

The bill of complaint in this cause was filed to enforce the specific performance of a certain contract made between complainant and Riley Short, deceased, relative to a certain house and lot in the city of Adrian. Defendants are the representative and only heirs of said Riley Short interested in said property. The cause was heard upon pleadings and proofs taken in open court. A decree was granted for complainant. Defendants appeal.

The bill of complaint alleges that Riley Short, in June, 1900, came to the home of complainant in Adrian with his horse and carriage, seeking for board and lodging for a short time; that he was received as a boarder upon arrangements made for himself and his horse, and continued to live with complainant from that date until October following; that he was an old gentleman of some means; that he had a divorced wife living, arid two sons, Edward Short and Homer E. Short; that he was somewhat estranged from his family, and had become dissatisfied with living with his cousin, Wilbur Short, with whom he had made his home for the previous years; that several times Riley Short proposed to complainant that he would buy a house and lot in Adrian, put the same in repair, the property to belong to complainant on his death, provided he would move with his family into said house and care for Mr. Short and make a home for him as one of the family as long as he lived; that these parties finally entered into such an agreement; that about October 1, 1900, the house was purchased and repaired, and complainant, who had a home of his own, moved his family and furniture into it, and proceeded to take care of and make a home for the old gentleman according to the agreement, the details of which need not be specifically set forth; that the relations between the parties were pleasant and satisfactory; that complainant and his wife cared for Mr. Short, who expressed himself to many persons as satisfied, and also at different times told of the arrangement above stated as to the disposition of this property; that complainant was an attorney and did Mr. Short’s business, and often talked with him about making a deed or will of this property to complainant; that Riley Short died May 3, 1902, having made a will without complainant’s knowledge, August 2, 1901,.of the contents of which he was not informed until after his death. By this will this property and all other property was disposed of to different relatives.

An objection was properly made to the testimony of complainant’s wife as to matters equally within the knowledge of the deceased. It is evident from the ruling of the court that such testimony was not considered, and this court excludes it from consideration. The case must be determined entirely upon the facts. We have carefully examined all the evidence, and find that an agreement was made between these parties as claimed by complainant; that the property was selected, improved, and repaired with the understanding that complainant would move, into it and care for Mr. Short during his lifetime, all of which was done and performed by complainant; that the old gentleman stated that he had bought the property for complainant, who was to care for him and have it after his death; that he was satisfied, and said he had a good home and was well taken care of. The proofs also show that complainant in all respects fully performed' his part of the agreement, and is entitled to the relief prayed for. No proofs were offered on the part of defendants.

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

Moore, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    DURFEE v. RISCH.
    Wills — Revocation—Feme Sole — Marriage—Birth of Child.
    Marriage and birth of a child to a woman revokes a will made by her prior to her marriage (§§ 9270, 9285, 3 Comp. Laws).
    Case made from Livingston; Smith, J.
    Submitted November 7, 1905.
    (Docket No. 96.)
    Decided December 30, 1905.
    Edith Durfee presented for probate the last will and testament of Anna B. Risch, deceased. The will was disallowed in the probate court, and proponent appealed to the circuit court. There was judgment for proponent on a verdict directed by the court, and contestant appeals.
    Reversed.

      Louis E. Howlett, for appellant.

      Shields & Shields, for appellee.
   Montgomery, J.

On appeal from the probate court, the circuit judge directed a verdict admitting the will in question to probate. Contestant appeals.

Testatrix, while unmarried, executed the will in question. She subsequently married, and had issue, one child, who survives. The sole question is whether the will of a single woman is revoked by her subsequent marriage, followed by the birth of a child or children. Our statute of wills (section 9270, 3 Comp Laws), which prescribes the formalities required for the revocation of wills, provides that “nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” There is no doubt that at the common law the marriage of a male testator, followed by birth of issue, operated to revoke a will. This revocation was implied from the changed relations and obligations of the testator, and was based upon the presumption that, had the same conditions and obligations existed at the time of the execution of the will and been taken into account, a different will (if any) would have been made. Page on Wills, § 283; 1 Woerner on American Law of Administration (2d Ed.), § 54. It is difficult to suggest any reason why the same implication of a revocation should not arise in case of a female testatrix. The presumption that, had the same conditions existed at the time of the execution of the will as existed later, the disposition of the estate would have been different, is certainly as strong in the case of a wife and mother as in case of a husband and father.

The proponent argues that the rule as to the revocation of the will of a female was, at the common law, that her subsequent marriage alone revoked the will; that since by statute a married woman may now make a valid will, and since it is generally held that the effect of this statute is to abrogate the rule that marriage alone (in the case of a woman) revokes the rule, it follows that there is left no common-law rule upon which a revocation of a will by a female can be predicated. This is ingenious, but not convincing. It is true that the weight of authority sustains the view that, where statutes like our married women’s act (section 8690, 3 Comp. Laws) exist, marriage of a feme sole does not of itself operate to revoke the will. Kelly v. Stevenson, 85 Minn. 249 (56 L. R. A. 754) In re Will of Ward, 70 Wis. 251. This is the rule in this State. Noyes v. Southworth, 55 Mich. 173.

The common-law rule as to the implied revocation resulting from marriage of the testatrix rested upon the ground that, after marriage, she could not make a new will, and as a will is ambulatory during the life of the testator, the continuing purpose to continue the will previously made in force could not be presumed from mere inaction on the part of one who, because of disability, could not act. Where, as in this State, the reason for this rule fails, the rule fails. It does not follow, however, because the marriage alone does not revoke the will, that marriage and birth of issue do not. The abrogation of this rule places the male and the female on the same plane-as to this, i. e., that the subsequent marriage does not of itself revoke the will. But it is illogical to say, because the existence of a more restricted rule to the wills of females prevented the application of the general rule of the common law, that such rule should not be applied to male and female alike, when the removal of the latter’s disability makes the general rule applicable. As was said of a similar question in Lansing v. Haynes, 95 Mich. 16, the common law is not so unbending as to lead to this result.

“The reason of the law is the essence and soul of the law.”

In Noyes v. Southworth, supra, it was said:

“ Our Constitution has done away with all the disabilities of coverture on this head, and expressly authorized every married woman to make wills of her estate as if she were sole. This leaves her case to be governed by the same rule which would apply to any one else on change of condition. * * * There is no sound reason that we can perceive why, in the absence of statute, implied revocations should be extended, or should be differently treated as between men and women, when the property rights of married women have ceased to be hampered by marriage.”

But it is further insisted that, as section 9385, 3 Comp. Laws, makes provision for a child born after the making of his father's will, the rule that marriage and birth of a child revokes a will previously made by the father is abrogated. It is contended that this provision applies only to a man’s will, and it was so held in Cotheal v. Cotheal, 40 N. Y. 405; but it is at the same time urged that, inasmuch as the rule as applied to a woman’s will is applied by analogy, it follows that if the statutes have abrogated the rule as to men it follows that the rule has to women no existence. This contention does not take account of the fact that we are to apply a principle of the common law, and that that principle is not affected by the withdrawal of a class of persons from those to be affected by its operation. We regard this principle of the common law as controlling, and hold that the marriage of the testatrix and subsequent birth of a child to her resulted in a revocation by operation of law.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


text:
    WRIGHT v. CRANE.
    1. Pleadings — Amendment at Trial — Discretion—Review.
    Allowing an amendment, at the trial, of a declaration charging a negligent personal injury, by making more specific the averment of care on the part of plaintiff, is a matter resting in the sound discretion of the trial judge, the exercise of which will not be disturbed unless abuse is shown.
    3. Highways — Use for Travel — Automobiles.
    Owners of automobiles have the same rights in the public highways that drivers of horses have, but the right of either class is not to use the means of locomotion without regard to the right of others traveling on the highways.

    3. Same — Negligent Use of Automobile — Question for Jury.
    Whether it is negligence for the owner of an automobile to run it in the dark without the warning to one approaching from the opposite direction which a headlight gives, is a question for the jury.
    4. Evidence — Opinion—Competency of Witness.
    A witness who testifies that the automobile which caused his horse to turn was but 30 feet from his horse’s head when first discovered, that when approaching in the dark it made no noise heard by him, that when running at a high rate of speed it makes but little noise, and that when running at a low rate, of speed it makes much more noise, is not competent to estimate the speed of the automobile.
    5. Same — Prejudicial Error.
    Where, in an action for injuries received in consequence of a horse becoming frightened by an automobile approaching in the dark, there was a sharp dispute on the facts, and any testimony showing a reckless rate of speed in running the automobile was calculated to affect the verdict, the error in permitting an unqualified witness to estimate the speed of the automobile was prejudicial error.
    Error to Benzie; Chittenden, J.
    Submitted November 9, 1905.
    (Docket No. 107.)
    Decided December 30, 1905.

      Case by Blanche Wright against Martin Crane for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      D. G. F. Warner, for. appellant.

      Louisell & Nevius, for appellee.

       Por law governing automobiles, see note to Christy v. Elliott (Ill.), 1 L. R. A. (N. S.) 215.

   Montgomery, J.

The plaintiff, in company with another young lady and a Mr. Upton, was riding on the main highway, south of South Frankfort, in a single carriage. Mr. Upton was driving a horse which the testimony tends to show was gentle, and which had been owned by Mr. Upton’s father and used as a family horse for several years. The time was about half past 8 in the evening. It was dark at the time, so that an approaching vehicle could not be seen for a great distance. The plaintiff’s testimony and that of Mr. Upton tended to show that they were keeping a- lookout ahead for teams or vehicles, and that suddenly the defendant’s automobile, which had been running so quietly as not to be heard, and which displayed no headlight, appeared at a distance of about .20 feet ahead of the horse, causing the horse to take fright, turn about, and overturn the carriage, throwing the plaintiff from the carriage against a barbed wire fence. Plaintiff was seriously injured. The declaration counted on defendant’s negligence in running the automobile at a high rate of speed and without headlights. The plaintiff recovered a verdict and judgment of $650. Defendant brings error.

Complaint is made of a ruling permitting an amendment to the declaration on the trial making more specific the averment of care on the part of plaintiff. The granting of the amendment was not improper. The question was one resting in the sound discretion of the trial judge, and no abuse of discretion is shown by this record.

The principal question discussed in defendant’s brief is whether a verdict should have been directed for the defendant. The contention that a verdict should have been ■directed rests in part upon the claim that the horse took fright while the automobile was some 300 feet away. We think the testimony on this point was so clearly conflicting that it is impossible for us to treat with the question as one of law. There was a question for the jury, unless we are prepared to hold, as matter of law, that the failure to have a light was no evidence of negligence. We are convinced that such a holding would be unwarranted. There is no doubt ijhat owners of automobiles have the same rights in the streets and highways of the State that the drivers of horses have, but the right of either class is not to use the means of locomotion without regard to the right of others having occasion to travel the highway. The degree of care required of either the driver •of a horse or the chauffeur of an automobile is governed by the character of the agency employed. The automobile is usually, or at least often, driven with much greater speed than horses attain. Whether it is the exercise of due care to run such a machine in the dark without the warning to one approaching from the opposite direction which a headlight affords is, we think, a question for the jury. It is significant that the evidence shows that the automobile in question was provided with lanterns. The charge of the court fairly presented the issues to the jury.

Mr. Upton was a witness for the plaintiff, and after testifying that the automobile was but 30 feet from the horse’s head when first discovered, and that the automobile made no noise when approaching heard by him, and that when running at a high rate of speed it makes but little noise, and when running at a low speed it makes much more noise, was permitted, against defendant’s objection, to testify as to the rate of speed of the automobile on the occasion in question. An estimate of speed should have as a basis at least a reasonable opportunity to judge. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich., at page 540. It is so obvious that this witness was not in a position to estimate the speed of this vehicle that we feel ¡constrained to hold that it was error to admit this testimony. -Nor are we able to say that it was error without prejudice. There was a sharp dispute on the facts, and any testimony showing a reckless rate of speed was well -calculated to turn the scale in favor of the plaintiff.

The other questions discussed are not likely to arise on a new trial.

For the error pointed out, the judgment is reversed, and a new trial ordered.

Moore, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.