text:
    STRUDGEON v. VILLAGE OF SAND BEACH.
    1. Municipal Corporations — Defective Sidewalks —Notice-Evidence.
    Where the declaration in an action against a municipality for injuries sustained by reason of a defective sidewalk avers that the entire walk in front of a specified block had been allowed to become and remain in a dangerous and unsafe condition, evidence of the generally defective condition of such walk is admissible for the purpose of showing notice to the municipal authorities.
    2. Same.
    In an action against a municipality for injuries from a defective sidewalk, evidence that notice was given to the corporate authorities that the walk “from the schoolhouse to the village,” which included the walk on ’ which the accident occurred, was in a dangerous condition, is admissible to charge the defendant with notice of the defect in question.
    3. Personal Injuries — Physical Examination.
    An order requiring the plaintiff in an action for personal injuries to submit to an examination by physicians, necessarily involving the use of anaesthetics, is properly refused.
    4. Same — Evidence—Exclamations of Pain.
    The natural and ordinary exclamations of present pain and suffering by the plaintiff in an action for personal injuries, though made after the commencement of suit, are admissible in evidence, if the surrounding circumstances are free from suspicion. So held where the expressions were made by a child of tender years, in his own home, and in the presence only of the immediate members of the family.
    5. Witnesses — Contradictory Statements — Sufficiency of Foundation.
    A witness who, on being asked whether he met a certain person at a specified time' and place, replies that he knows no such person, and, upon further inquiry, denies having had a certain conversation with any person at such time and place, may be impeached by showing that he did have such conversation with the person mentioned.
    6. Same — Expert Testimony.
    An expert witness cannot be asked whether, in his opinion, the jury would be justified in basing a verdict upon his testimony.

      7. Personal Injuries — Pleading—Damages—Diminished Earning Capacity.
    Under a declaration in an action by an infant for personal injuries, averring that plaintiff has lost the use of his right arm, and has become and will continue to be a confirmed invalid, a recovery may be had for the impairment of plaintiff’s ability to pursue the ordinary vocations of life, since such result necessarily follows the injury complained of.
    8. Contributory Negligence — Aggravation op Injuries.
    One who, when injured through the fault of another, employs a reputable physician to treat him for so long a time as the latter shall deem necessary, and who thereafter follows the directions of such physician in caring for his injuries, cannot be charged with a negligent aggravation of damages because the result of the injury is more serious than anticipated.
    9. Same — Inpants—Question por Jury.
    A boy 10 years of age, who is injured, while running upon a sidewalk, by stepping into a hole therein, of the existence of which he has knowledge, is not guilty of contributory negligence, as a matter of law, but it is for the jury to say whether he used such care and discretion as boys of his age usually exercise under'like circumstances.
    10. Trial — Remarks op Counsel.
    A statement by plaintiff’s counsel in his closing argument to the jury in an action against a municipality for personal injuries, that the corporate authorities had conspired to defeat the plaintiff’s recovery, and that counsel had been threatened by witnesses for the defendant, and was a “spotted” man, because of his acting for the plaintiff, is ground for a reversal, where the only basis for the statement consists in the fact that a witness not connected with the municipal go vernment in any way had told such counsel that he was being injured by his connection with the case, and the further fact that some of the authorities, prior to the trial, had sent for certain children, who were afterwards sworn for the defense, and put to them leading questions, to ascertain what they knew about the accident.
    Error to Huron; Eldredge, J., presiding.
    Submitted October 25, 1895.
    Decided December 24, 1895.
    Case by Jolm C. Strudgeon, by bis nest friend, against tbe village of Sand Beach, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Charles L. Sail and Elbridge F. Bacon, for appellant.

      W. T. Bope, John F. Murphy, and S. L. Chipman, for appellee.
   Montgomery, J.

This is an action to recover for injuries sustained by the plaintiff by means of a defective-sidewall!;. The plaintiff recovered, and defendant brings-error. The record contains 39 assignments of error, some of which have not been discussed in the brief of counsel. A large number are, however, relied upon. It would extend this opinion beyond any reasonable length to discuss in detail each of the assignments of error. It will suffice to say that, as to the points not specially discussed, we discover no error.

1. The declaration counted on a defective sidewalk in front of block 52, which was 264 feet in length; and plaintiff was permitted to give in evidence, against defendant’s objection, the generally defective condition of the sidewalk in front of this block and in the immediate vicinity of the place where the injury occurred. This-evidence was admissible for the purpose of showing-notice to the village authorities. Campbell v. City of Kalamazoo, 80 Mich. 660; O’Neil v. Village of West Branch, 81 Mich. 544; Edwards v. Village of Three Rivers, 102 Mich. 156; Fuller v. City of Jackson, 92 Mich. 197; Corcoran v. City of Detroit, 95 Mich. 84.

2. Plaintiff offered testimony to show that notice was given to the street commissioner that the walk from the schoolhouse to the village was in a dangerous condition. The walk from the schoolhouse to the village included the walk in question. The testimony was competent to show notice. It was for the jury to say whether, if the commissioner had acted on this information, the performance of his duty would have led to the discovery of the defect in question.

3. At the conclusion of the testimony of Dr. Davis, who was examined in behalf of the plaintiff, the defendant requested the court to make an order requiring the plaintiff to submit to an examination as to the condition of his arm; such examination to be made by Drs. Davis, Oldfield, and Wagener, who were the physicians employed by the plaintiff in treating the arm when it was. injured. The plaintiff consented that an examination be made in open court, provided -no anaesthetics or drugs or harsh methods were used; but defendant insisted that the examination should not be made in open court, and that the physicians should take such means as they deemed necessary to make a complete examination. It was apparent from the testimony of the physicians that they deemed it necessary to administer anaesthetics in order to make a complete examination. We think the circuit judge was right in refusing to require the plaintiff to submit to the administration of anaesthetics. As was said in Graves v. City of Battle Creek, 95 Mich. 266, the circuit judge is, in such cases, vested with a large discretion ; and we all agree that it would have been an abuse of such discretion to make the order asked for.

'4. Error is assigned on a ruling permitting the witness John Strudgeon to testify to exclamations of pain made during the pendency of the action. The general rule is. well settled that declarations of present suffering are admissible in evidence, and are not objectionable as hearsay, so long as they do not amount to narrations of past conditions. Johnson v. McKee, 27 Mich. 471; Mayo v. Wright, 63 Mich. 32; Lacas v. Railway Co., 92 Mich. 412; Girard v. City of Kalamazoo, Id. 610. But it is insisted that a different rule obtains where the exclamations are made during the pendency of the case, or after a controversy has arisen; and defendant’s counsel rely upon Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. In that case the testimony which was held inadmissible related to exclamations or statements of suffering made by the plaintiff at the time she was undergoing an examination by a physician, who was called in the expectation that he would give testimony on the trial as to the results of the examination. The court said:

“We cannot think it safe to receive such statements, which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to aid or give medical treatment. * * They were sent for merely to enable the plaintiff to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were, therefore, made under a strong temptation to feign suffering, if dishonest, and a hardly less strong tendency, if honest, to imagine or exaggerate it.”

Defendant’s counsel also cite Laughlin v. Street Railway Co., 80 Mich. 154. In that case, although the opinion does not fully set out the facts, the record shows that the exclamations of pain were made in the presence of one who had been asked to become a witness for the plaintiff, and who was called to testify to exclamations of pain made on substantially the same occasion; thus bringing the facts within the Huntley case. In the same line is Jones v. Village of Portland, 88 Mich. 598. But the court never has laid down the rule that such exclamations would be excluded solely for the reason that they were made after the controversy, and after the suit was commenced. In the present case the exclamations were made by a child of tender years, in his own home, and not in the presence of any medical attendant, and under circumstances which indicated that they were natural and ordinary exclamations of pain, called out by the suffering of the plaintiff, and not by any motive of making testimony for himself.

5. One Upton was a witness for the defense, and testified that he saw the plaintiff when he fell, and that his fall resulted from slipping on the walk; that he did not step in a hole in the walk, as he claimed, and that there was no hole there. He was asked on cross-examination if, on the 3d of November preceding the trial, he had not had a talk with Frank Pawlowski at Boman Jaroszewski’s meat market. He answered that he had spoken of it at his place, but did not remember whether Pawlowski was present or not. He then further testified as follows:

“Q. Now, during the same day, and shortly after-wards, did you see William Strudgeon upon the street at Leszezynski’s corner, in Sand Beach?
“A. I don’t know him, that I know of.
“Q. Did you meet any person there at the corner of Leszezynski’s, and tell him that you saw the boy fall in a hole in the sidewalk five' or six rods east of the corner of Fifth street?
“A. I never did. I never had any conversation with any person on the corner of Leszezynski’s, to my knowledge.”

On rebuttal Frank Pawlowski testified under objection as follows:

“I recollect a conversation that occurred between the witness Upton and William Strudgeon on the 3d of November last. It was on the corner at Leszezynski’s store.
“Q. At that time, did the witness Upton say to William Strudgeon that he saw the boy, Johnnie Strudgeon, fall in a hole five or six rods east of Fifth street?
“A. Yes, sir.”

The objection was that the attention of the witness Upton was not properly called to the conversation. It is urged that the question above quoted, put to the witness Upton, was general; but we think this objection was much too technical. The rule is that the attention of the witness must be called to the alleged contradictory statement, giving the time when, the place where, and usually the person to whom, the words are claimed to have been spoken. In this case the attention of the witness was called to the time and place and to William Strudgeon, but the witness denied any acquaintance with Strudgeon. He must, however, have understood that the inquiry whether he had made the statement at the time and place still referred to Strudgeon. Had the effort been to show a conversation with a third party, not mentioned, the question presented would be a different one.

6. Dr. Davis was called as a witness, and on cross-examination testified:

“The examination I had before the trial in October last was not such an examination as I could give an opinion from. It was based a good deal upon his expressions of pain and finding that 1 could not move it. Of course, to get a perfect and clear knowledge of the facts in this case, you would have to put him under the influence of chloroform, or something of that kind. From my present means of knowledge I have here now, I would not be able to give an opinion positively.”

He was then asked:

“In other words, as a surgeon, you would hardly ask us business men here, these gentlemen over at my right, to find a verdict based upon your opinion as to that boy’s arm, without a full examination, would you, doctor?”

This question was excluded, under objection of plaintiff’s counsel, and we think properly. It was not for the witness to determine what evidence the jury should act upon.

7. The circuit judge charged the jury as follows:

“If you find from the proofs admitted before you that the boy is permanently disabled, and rendered unable hereafter to earn as he would otherwise have been able, you should, in your good judgment, allow him therefor such sum as shall appear to you he would have been able to earn if not injured, over what he may be able to earn hereafter.”

The declaration contains the averment that plaintiff has lost the use of his right arm, and has become and will continue a confirmed invalid, to his great detriment, etc. It is claimed that this declaration is not sufficiently specific to admit of recovery for the impairment of plaintiff’s ability to pursue the ordinary vocations of life, but we think it is. The fact that a boy 10 years of age has his arm permanently disabled certainly impairs his ability to earn money. It is not a special damage, but a result naturally and necessarily following upon the injury. See Montgomery v. Railway Co., 103 Mich. 46, and cases cited; Kinney v. Folkerts, 78 Mich. 687; Indiana Car Co. v. Parker, 100 Ind. 181; Chicago, etc., R. Co. v. Hastings, 136 Ill. 251; 1 Suth. Dam. p. 763. The case of Hurst v. Detroit City Railway, 84 Mich. 539, was an action by an administrator to recover damages for the death of his intestate. In such, cases pecuniary loss to the next of kin are all the damages which can be recovered, and, as they do not necessarily follow from the injury, must be alleged.

8. Defendant assigns error on the refusal of the court to give the following instructions:

“The defendant can be held liable only for the natural and proximate consequence of its own negligence; and, if the plaintiff was injured, it was his duty to lessen the damages by necessary, proper, and reasonable care in treating the injury; and, if reasonable care was not used in treating the injury, and in consequence of such neglect the injury has been aggravated and the consequences increased, the defendant is not liable for the damage occasioned by such neglect and aggravation of the injury.”

The court did charge the jury as follows:

“Bight here counsel on both sides agree that any aggravation of the damages, occurring by reason of the negligence, if any such negligence existed, in caring for the arm after the injury, should not be allowed. I so instruct you. But if there was employed to care for his arm a reputable physician, who treated him as long as such physician deemed proper, and until he discharged himself, and from that the boy and his parents followed the directions of such physician as to the use and treatment of his arm, he cannot be charged with negligence affecting his rights in this case because the result is not as expected. But if he has negligently failed to follow directions as to the use and treatment of his arm, and thereby his damages have been aggravated, that aggravation should be considered, and should reduce his claim.”

We think this instruction to the jury was all that the defendant was entitled to have given on this subject.

9. Defendant’s first request was as follows:

“The evidence in the case shows that plaintiff knew of the existence of the hole in which he claims he fell, and that at the time of the injury he was running upon the walk, in company with other boys, and did not look at the sidewalk, or take any care to avoid injury to himself, but was looking at the boy ahead of him; and that, if he had looked, or taken reasonable care, he would have seen the hole, and avoided the injury; that his neglect was such as to amount to contributory negligence upon his part, and that plaintiff cannot recover.”

The circuit judge, instead of giving this request, left it for the jury to determine whether plaintiff used such care as boys of his age and discretion usually exercise on like occasions. This correctly stated the law. The request preferred implied that a prior knowledge would necessarily establish contributory negligence. Such is not the law. Graves v. City of Battle Creek, 95 Mich. 266, and cases cited.

10. Exception is taken to the language of plaintiff’s counsel used in the course of his argument to the jury. The language used was as follows:

“Gentlemen of the jury, it is a mean insinuation and a defense that seems to be sustained on the part of the village to trample upon the rights of this child. You will see arrayed against this child the president of the village, and the large property owner right here, opposed to this child, and it is their right to do it; but I say, men of Huron county, that this is conspiracy on the part of this corporation to trample upon the rights of this child.
“{Mr. Hall: Objection, and take an exception to that.)
“I do not mean to say that Mr. Hall or Mr. Nims intimated to these children what they were to testify to, but I do mean to say that the children met there with the— The children were not brought here at the last trial. I say the children, before they met there at Mr. Monroe’s house, had the impression in their minds that they were to testify to a certain place along there.
“(lMr. Hall: Object to that. There is no such evidence.
“(The Court: You should follow the evidence, and not lay yourself open to such objections; and they should not be made frivolously.)
“Look, gentlemen, and I will show you a vile conspiracy in this case. Gilbert comes to my office, and says, to me that by being in this case for that child, that innocent little boy, he says, 'Murphy, you are injuring yourself in Sand Beach.’
“(Mr. Hall: Object to that.)
“American citizens, what does that imply? It implies that Murphy is a spotted man, and boycotted already;- and why? Because I protect a defenseless child against a powerful corporation. Because I tried to do it, I was myself threatened by the witnesses of this corporation,, and I am a spotted man.
“(Mr. Hall: There is no such testimony. Object to that, and take exception.)”

Mr. Gilbert was not connected with the village government, and there is nothing to show that the municipality was in any manner responsible for what he said to Mr. Murphy. The only basis of the statement is this: On-cross-examination of Mr. Gilbert he testified: “I haven’t taken any interest in this case. I might have told you less than two weeks ago that your connection with this case would injure you in Sand Beach. I told you a good many things in political times.” The only foundation for a charge of conspiracy — a very grave charge, indeed, to make — is the fact that some of the village authorities sent for these girls who were witnesses, and questioned them in regard to the transaction, and put to them leading questions, for the purpose of ascertaining what they knew about the accident; and my brethren are of the opinion that this was not sufficient to justify the intemperate language employed, that the error was damaging to tbe interests of defendant, and that tbe judgment should be reversed, and a new trial ordered.

Tbe other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    SAMMON v. WOOD.
    1. Contract — Promise to Pay at Death.
    An agreement to pay for services at death is valid, and enforceable against the estate of the promisor.
    2. Parent and Child — Action for Services — Evidence.
    It is not essential to a recovery by a child for services rendered to a parent that a formal contract be established in relation thereto, but if the facts and circumstances attending the performance of the work and its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted upon the understanding that they were to be paid for, the parent is liable.
    3. Same — Question for Jury.
    Where, in a suit by a daughter to enforce a claim against her father’s estate for services, there is evidence that the services were valuable, that, during the period of their performance, the father frequently stated in the presence of the claimant that he intended to convey his farm to her in consideration of such services, that he did make such conveyance, but that the same was inoperative, the question whether the services were rendered and accepted with the understanding that they were to be paid for should be submitted to the jury.
    4. Deed — Homestead.
    A deed of a tract of land including a homestead, in which the wife does not join, is void as to the entire tract, if the homestead is incapable of severance.
    5. Action for Services — Evidence of Value — Failure of Title to Land Conveyed.
    In an action to recover for services rendered under an agreement that they should be compensated by a conveyance of real estate, evidence of the value of the land, which was conveyed as agreed, but the title to whiob has failed, is admissible to prove the value of the services.
    Error to Ionia; Davis, J.
    Submitted October 25, 1895.
    Decided December 24, 1895.
    Mary Summon presented a claim against the estate of her deceased father, Michael Sammon, for services rendered, the allowance of which was resisted by O. Scott Wood, the administrator of his estate. The claim was disallowed in probate court, and the claimant appealed to the circuit, where a verdict disallowing the claim was directed by the court. Claimant brings error.
    Reversed.

      Ohaddoch c£- Seully, for appellant:
    If the facts and circumstances were such as would have authorized a finding that the services were rendered in the expectation by claimant of receiving and by her father of making compensation therefor, claimant was entitled to go to the jury, although no express promise on the part of the father was shown. Sioord v. Keith, 31 Mich. 253; Killebrands v. Nibbelink, 44 Mich. 413; Allen v. Allen, 60 Mich. 635; Seully v. Scully, 28 Iowa, 548; Oowan v. Musgrave, 73 Iowa, 384; Marietta v. Marietta, 90 Iowa, 201; Donahue v. Donahue, 53 Minn. 460.
    An agreement by a father to compensate his child in land at his death will rebut the presumption that the services were gratuitous. YanFleet v. YanFleet, 50 Mich. 1; Dickerson v. Dickerson, Id. 37.
    Where services are rendered upon an agreement that they are to be compensated in part by a testamentary provision, and no such provision is made, the estate of the employer is liable for enough to make up what the services were reasonably worth. Patterson v. Patt&rson, 13 Johns. 379; In re Bayliss v. Bstate of Pricture, 24 Wis. 651; JilsonY. Gilbert, 26 Wis. 637; Bilis v. Gary, 74 Wis. 176; Wallace v. Long, 105 Ind. 522.
    Although a contract by a father to pay for services rendered by a child remaining at home after coming of age will not be implied, yet, if an express contract to pay is proved, but the rate of wages is not agreed upon, a recovery may be had upon the quantum meruit. Friermuth v. Friermuth, 46 Cal. 42; Manseauv. Mueller, 45 Wis. 430; Byrnes v. Clark, 57 Wis. 13,

      Ternon H. Smith, for appellee:

      To justify a recovery by the claimant, an express contract on the part of the father to pay tor her services must be clearly shown. Robin-son v. McAfee Estate, 59 Mich. 375; Allen v. Allen, 60 Mich. 635; Bank v. McLean, 84 Mich. 625; Wright v. Senn Estate, 85 Mich. 191; Burgess v. Burgess, 109 Pa. St. 312; Martin v. Wright, 13 Wend. 460.
   McGrath, C. J.

The plaintiff presents a claim against her father’s estate for services. In his lifetime, in 1890, he conveyed to her a farm of 80 acres, and she gave back a life Rase. This 80 acres included the homestead upon which plaintiff, her father, and her mother resided at the time. The mother’s mind was impaired, and she was not in a condition to transact business, and did not join in the deed. When claimant discovered that the deed was invalid as to the homestead, she presented a claim against her father’s estate for services. She was born in 1858, and remained at home until her father’s death, in 1894. She had brothers and sisters, but they had married and gone, — the last one of them about 8 years before the father’s death.

It appeared that, for a number of years before his death, the father’s health was poor, and he was able to do little, if any, farm work; that for years he had been unable to put on his shoes, harness a horse, or get into a buggy unassisted; and that plaintiff had not only done the household work, but most of the outdoor work upon the farm, “laying fences, plowing, cultivating, drawing wood and hay, husking corn, drawing wheat and oats, and everything else that a man would do on a farm.” The testimony offered on her behalf further tended to show that the father had frequently said to his neighbors and to Ms other children, in the presence of plaintiff and elsewhere, that his other children had left him; that Mary had remained with them, and taken care of them; that he could not get any one else to live with them; that he did not know what they would do without her; that he could not keep house if she left; that she was faithful, had looked after them and their wants, and had worked and was working hard; that he intended to pay her for her work;'that he would pay her well; that he intended to deed the farm to her for her services; that he had deeded the farm to her, and given her the personal property on the farm, for her services.

It cannot be said, under such circumstances, that there was no testimony to go to the jury tending to show that the services rendered by claimant were performed and accepted with an- understanding that they should be paid for. In Sword v. Keith, 31 Mich. 247, it was held that where services have been performed by one during his minority, under an agreement or with the understanding that they should be paid for, the person for whom performed would be under legal obligation, after performance, to pay for the same. It was further held in that case that, if the circumstances shown would authorize the inference that both parties had acted upon the understanding that such services would continue to be rendered, this would be equivalent to a promise to render such services; and, further, that an agreement to pay at the death of the promisor is binding upon the estate. Upon this point, see, also, De Moss v. Robinson, 46 Mich. 62, 64.

In Westra v. Westra’s Estate, 101 Mich. 526, the instruction given, which was approved by this court, was:

“If you find that claimant did the work or paid out the money upon an understanding that he should be repaid the expenditures and compensated for his work, he would be entitled to recover for his services and expenses.”

I do not understand that it is necessary, in this class of cases, to show that, at a given time before the rendition of the services, a formal contract was entered into, on the one part to work, and on the other to pay, in order to authorize a recovery. If the facts and circumstances attending the performance of the work and its acceptance are sufficient to rebut the presumption which obtains in such cas.es, and authorize the inference that both parties.acted upon the understanding that the services were to be paid for, that would be equivalent to a promise to pay for such services.

In the present case, the testimony clearly tended to show that, before the conveyance was made, the decedent, in the presence of the claimant, frequently stated that he intended to convey the farm to her, in consideration of her services, and of the fact that she had remained with him, and looked after him and his wife, at a time when both were decrepit and that care was a great burden. It was entirely competent for him to agree that, if she should remain with him and look after his wants and those of her mother, she should have all his property, however generous such a proposition might seem, or however much of gratitude might enter into it. The only question in any such case is, was such a promise made? If made, and subject to no other objection, it would be enforceable against his estate. The decedent did more than promise; he actually conveyed the farm. In doing so, he stated what the consideration was. He thereby recognized his obligation to her, and treated the conveyance as in fulfillment of his promise. The consideration was ample. The case should have gone to the jury.

The conveyance was a nullity so far as the homestead is concerned, and it may be that the homestead is incapable of severance, — that is, it may be impossible to locate it; and in such case the title to the entire farm must fail. Engle v. White, 104 Mich. 15, and cases cited. In either event, the value of the land to which .the title fails is admissible in evidence upon the question of the value of the services. In re Williams’ Estate, 106 Mich. 490, and cases cited.

The judgment is reversed, and a new trial granted.

The other Justices concurred.


author: McGrath, C. J. Hooker, J.

text:
    CRANE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroad Companies — Accident at Crossing — Contributory Negligence.
    Plaintiff’s intestate, a boy 12 years of age, was killed at a railroad crossing, while attempting to drive across the track. The testimony tended to show that by reason of obstructions between the highway and the railroad, which ran parallel for a considerable distance, an approaching train could not be seen from the highway, for a distance of several hundred feet from the crossing, until the horse was within two feet of the track; that the statutory signals were not given upon the approach of the train; that, although the deceased was notified when at some distance from the crossing that a train was coming, and remarked that he would have to hurry if he made the crossing, he was afterwards seen driving slowly along, in the apparent exercise of due care, and that a train passed shortly after such conversation, before the deceased reached the crossing. There was no testimony as to decedent’s conduct immediately before entering upon the track. Held, that the question of his contributory negligence was for the jury.
    2. Same — Evidence—Failure to Give Statutory Signals.
    Testimony of persons who were near a railroad crossing at the time of an accident, and whose attention had been directed to-an approaching train, that they did not hear the train whistle for the crossing, is sufficient to justify a finding that the whistle was not sounded, although other witnesses testify positively that the signal was given.

      3. Same — Conclusion op Witness.
    It is not error in such case to permit a witness to be asked whether he could have heard the signal if it had been given, the question being merely equivalent to an inquiry as to whether he was within hearing distance. Hooker and Grant, JJ., dissenting.
    Error to Kalamazoo; Buck, J.
    Submitted November 8, 1895.
    Decided December 24, 1895.
    Case by Edgar A. Crane, administrator of the estate of Daniel A. Crane, deceased, against the Michigan Central Railroad Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Edwards & Stewart (Ashley Pond and Henry Mussel, of counsel), for appellant,

      William G. Howard and Alfred J. Mills, for appellee.
   McGrath, C. J.

Plaintiff’s intestate, who was 12 years of age, and another lad, who was 16 years of age, were killed while on the highway in a top buggy at a railroad crossing. Both highway and railroad way ran in the same general direction for some distance east and west from Comstock station. The crossing is about one mile west from the station. Both railroad and highway ran parallel, in a northwesterly direction, from the station to the crossing in question. The railroad way then curves to the south, crossing the highway, and running on the south side thereof. The boys were driving west, and the engine evidently picked up the buggy from the rear thereof. Both highway and railway are in cuts from the crossing easterly for some 600 feet. Plaintiff’s testimony tended to show that the embankment of earth between the highway and the tracks was between 4 and 5 feet above the bed of the highway for some distance east of the crossing; that on the crest of this embankment the railroad company had erected a board fence,, which was between 4 and 4-} feet in height; that; since the construction of the railway, earth has been thrown up from the railroad way on top of this embankment; that shrubbery had grown along the line of the fence; that the fence was on the line between the company’s right of way and the highway; that a train approaching from the east could not be seen from a buggy on the highway, even by standing upon the buggy seat, until the front feet of the horse were within two feet of the track; that in going westerly, for some distance east of the crossing, both highway and railroad way were on the same down grade; that a train bound east had, within a very few minutes before the collision, and while the boys were within 100 rods of the crossing, made the crossing, and was side-tracking west of Comstock station; that the passenger train which struck the vehicle did not stop at the station, but was from 20 to 25 minutes late, had slowed up before reaching the station, to get the signals, but had recovered its speed, was endeavoring to make time, and was running at the .rate of 60 miles per hour, to get out of the way of the North Shore Limited, the fastest train on the road, and that the Limited came up within a few minutes after the collision; that the horse was thrown high in the air, and the train ran 100 rods after the buggy was struck; that the train whistled for the station, but did not whistle for the crossing.

The testimony was conflicting relative to the giving of the crossing signal, and the difficulty in observing the approaching train, and the claim is made that the testimony was sufficient to overcome the presumptions which ordinarily obtain in such cas.e, as to the observance of ordinary care on the part of the boys. It is insisted that the statements of witnesses that they did not hear the whistle ought not to be considered, where there is positive proof that the whistle was actually given. There was a strong wind from the northwest. Witnesses who were just east of the station testified that they heard the station whistle, hut that they heard no crossing whistle. Witnesses who were west of the crossing, north of the railroad right of way, and in a position to look up and down the railroad right of way-towards the approaching train, and who were watching it, and saw the boys approach the crossing, say that they heard no whistle, and did not see the escape of steam which usually attends the giving of the signal. These witnesses had their attention attracted to the train, not only by the fact of the collision, but before the collision. The testimony was competent, and its weight for the jury. The court very properly instructed the jury upon this point as follows:

“ ‘The mere fact that parties testify that they did not hear the whistle or bell — one or both — is not conclusive proof that the whistle was not sounded or the bell rung. The testimony of any person positive as to what he saw or heard is ordinarily of greater value than testimony of any number of persons who did not see or hear, although such, persons might have seen or heard, had their attention been attracted to the spot or thing. One whose duty it is to look out and observe may be much more likely to see and hear and know what was being done and taking place than any number of persons who are neither paying attention nor required to see or hear.’ That instruction, gentlemen, is correct, but it is also true that the whole matter is for your consideration and your determination. While it is ordinarily true, as stated in this instruction, that the testimony of one who says that a certain thing was done, and that he observed it, is of greater value than of other people who say it was not done, and who may have had equal means of observation, yet that is subject to this limitation: that the jury are to take all the facts and circumstances into consideration. They are to take into consideration the credibility of the witnesses. They are to take into consideration their means of observation, their likelihood of remembering. And so no other rule can be given a jury, upon a matter of this kind, than that the whole testimony is for them, and they are to decide according to the fact.”

■A witness who had testified that he was watching the approach of the train from a point west of the crossing, and that he heard no whistle, was asked if he would have heard it if it had whistled. This question was objected to as calling for a conclusion. The objection was overruled, but the question was not answered. The witness was then asked if he could have heard it from where he then was, if it had whistled. This question was not objected to, and was answered. The question answered was a different one from that objected to, and was equivalent to an inquiry as to whether or not he was within hearing distance.

Counsel endeavor to demonstrate mathematically the ability of a person approaching such a crossing to see over the embankment, or over or through a fence of the character named; but there was evidence of other obstructions, and, at any point within two or three hundred feet of the rails, a party looking in the direction of the approaching train would be below the top of the fence, and would be looking easterly along the line of the fence and embankment, and not northerly, or at right angles with the fence.

A witness says that he met the boys some distance west pf Comstock station, and about 2,100 feet east of the crossing; that one of the boys asked witness if there was a train coming, and he said to them, “Yes; it is right up on top of the hill;” that one of the boys then said, “We will have to hustle, if we make the crossing;” that they started the horse upon a trot; that at this time one of the boys was down on his knees in the bottom of the buggy, with his face to the east,“playing or fooling in some way.” The witness says he referred to the west-bound train, but it does not appear that he communicated that fact to the boys. However that may be, the train from the west came immediately after this interview; and two witnesses say that they saw the boys after that interview, that their horse was on a walk, and that the boys were on the buggy seat, conducting themselves properly. There is no other testimony tending to show that the boys were negligent,except the circumstances under which they drove upon the track. The court very properly left the question of negligence to the jury. No error is assigned upon the instructions given, the point relied upon being the refusal to direct a verdict for defendant.

We find no error, and the judgment is affirmed.

Lon-g and Montgomery, JJ., concurred with McGrath, O. J.

Hooker, J.

(dissenting). I think the judgment should be reversed, for the reason that the question to the witness Anderson, “Could you have heard the whistle from where you stood, had it been blown?” called for a conclusion in relation to a question which should have been left to the jury, upon the circumstances shown.

Grant, J. I concur with my Brother Hooker, but express no opinion on the other points.


author: Grant, J. MONTGOMERY, J.

text:
    STEELE v. CHICAGO & GRAND TRUNK RAILWAY CO.
    1. Railroad Companies — Accident at Crossing — Sufficiency of Declaration.
    A declaration in an action against a railroad company, alleging that plaintiff’s intestate was negligently signaled by a flagman in defendant’s employ to pass over the track at a public crossing, which the deceased thereupon attempted to do in a careful and prudent manner, and that while on said track, by reason of defendant’s negligence as aforesaid, he was run into and killed by a passing train, is not subject to the objection, raised . , for the first time on appeal, that it does not specifically aver that the deceased relied upon the signal given.

      2. Same — Question for Jury.
    In an action for the death of plaintiff’s intestate, caused by a collision at a railroad crossing, the testimony tended to show that a freight train had parted near the. middle, apparently without negligence on the part of the defendant; that the flagman stationed at the crossing, after the first section of the train had passed, signaled that the track was clear; that the deceased thereupon attempted to drive across the track, and was struck by the second section of the train, which was following the first at a distance of about 100 feet; that it was very dark at the time; that it was the custom to maintain lights at the rear of a train, and that there were none upon the last car of the first section. It further appeared that the flagman had been employed at such crossing for two years, during which time no train had parted; and that, upon the occasion in question, almost immediately after giving the signal to cross, he discovered the approach of the second section, and did all that he could to prevent the accident. Held, that the question 'of the flagman’s negligence was for the jury. Grant, J., dissenting.
    Error to Lapeer; Moore, J.
    Argued and submitted April 19, 1895. Reargument ordered July 2, 1895. Reargued November 8, 1895.
    Decided December 24, 1895.
    Case by Mary M. Steele, administratrix of the estate of Newman Steele, deceased, against the Chicago & Grand Trunk Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The defendant’s road, consisting of a single track, runs east and west through Imlay City. Almont avenue, one of the principal streets, runs north and south, crossing the track at right angles. From a point nearly a mile west to the crossing, it is down grade, so that a train will run between these points, of its own accord. On the evening of January 6, 1891, about 8 o’clock, a freight train, consisting of 22 loaded cars, 5 empties, and a caboose, going east, parted about in the middle, at some point on the down grade, on account of the breakage of a coupling pin. The night was very dark. A flagman named Stanley was stationed at the crossing. The little house he occupied was situated on the south side of the track. On the approach of the train he emerged from the house, and walked across the highway, on the south side, swinging his lantern east and west, as a signal to warn travelers upon- the highway that a train was approaching. Plaintiffs decedent, with his son, was riding in a road cart drawn by one horse along Almont avenue, from the north. Two witnesses, Mr. and Mrs. Donaldson, were driving in the same direction, and a little ahead of the deceased. Mr. Donaldson, on seeing the flagman’s signal, stopped his horse between 40 and 50 feet from the track, on the west side of the highway. Mr. Steele stopped on the east side, 15 or 20 feet behind Mr. Donaldson. As the first section of the train was passing, Donaldson walked his horse slowly towards the track, so that, when the first section passed, his horse’s head was within 20 feet of it. Donaldson heard the train before the flagman came out. Just as the first section went past, Mr. S'teele drove fast past Mr. Donaldson. The second section came along just as the head of Mr. Steele’s horse had reached the track. The horse reared, and turned to the east. The road cart was thus thrown round, striking the car, and Mr. Steele was killed. His horse was not killed. The pin showed a fresh, bright break, and nothing unusual was shown to have caused it. The train was entire at the summit of the grade when the engineer shut off steam. The front and rear brakemen set the usual number of brakes to steady the train on the down grade. After passing what is known as the “P., O. & N. Crossing,” the engineer gave the signal to let off the brakes, which was done; the front brakeman returning to his place in the cab, and the rear brakeman to his place in the caboose. The P., O. & N. crossing is 2,500 feet from Almont avenue. None of the trainmen knew that the train had parted until they had passed some distance beyond the city. The conductor and rear brakeman first discovered it when the train slackened while going up another grade, about a mile east of the city. The rear brakeman saw the light carried by the front brakeman as he was setting the brakes.
    The engineer, a witness for the plaintiff, testified:
    “After I got down the grade, I commenced working steam, after I passed the P., O. & N. crossing. J'ust as soon as they let off the brakes, I commenced using the steam. I didn’t commence using the steam until I felt that the brakes were off. I can tell when the brakes were let off. The cars would crowd up a little on the engine.
    * ■* * I know the train was all together and all right when we were coming down the grade, because I could tell the way it came down by the brakes holding the train.”
    The train was going about 20 miles an hour. The rear section at Almont avenue was about 100 feet in rear of the first, and must have been going nearly as fast. The train parted at some point between the P., O. & N. crossing and Almont avenue.
    Mr. and Mrs. Donaldson testified that, after the first section had passed, the flagman walked towards the track, swinging his lantern north and south, as a signal that the train had passed, but that almost immediately, discovering the other section coming, he again swung his lantern vigorously east and west. The flagman denied that he gave any signal to cross, by swinging his lantern north and south. The flagman had been stationed at this crossing for two years, during which time no train had ever before parted. The trainmen, who had been on the road much longer, also testified that during their employment no such thing had happened there before.
    Mr. and Mrs. Donaldson were the only eye-witnesses to the transaction sworn on the part of the plaintiff. Mr. Donaldson’s testimony is as follows:
    “The cars came along from the west to the east, and his horse was going south, and, as far as I could see with my lantern and the lamplight, — it was a very dark night, and a very cold night; and the horse raised right up on his hind feet, and as he touched, as far as I could ascertain, the side of the car, the horse turned his head to the east, the same way the cars were going, and threw the cart around so that I heard the crash of the little wheels.
    * * » While the train was going along, my horse kept moving, up a little towards the track, and, at the time the first section went by, I think, my horse’s head had got within 20 feet of the track; and, as the train went by, the watchman had passed, and I saw him at the west side. In the first place he stood very near the walk, with his lantern close by him. That was when he first came out. I didn’t see him come out of his little flag station. I saw him when he just started from there, going across to the west. When he first swung the lantern, he was within 20 feet of his little office, making west. I heard the train before I saw him come out. After the first section went by, he moved over a little nearer to the west side of the track, and the lantern, as he was walking, was swung by his side, east and west, as he crossed just in that way, as he came over by the station, and then he turned around near the west sidewalk. He faced north, —had his face towards the crossing between him and me. As long as the first section hadn’t gone by, he kept swinging his lantern. After the first section went by, when I saw him, he was standing still, with the lantern by his side, right by the west sidewalk, and the lantern was standing right down in his hand, — in his right hand!, by his side; and just then he started to come on north, to come up towards me. I should say he was about 20 feet from the south side track. I think he must have taken 3 or 4 steps. My horse had worked up a little towards the west, and a little south; and, just as soon as the first section went by, Newman Steele started his horse, and his horse went by me fast. He started. You could see a vacant place, and he could see it. I didn’t notice any lights on the end of the first section. I didn’t pay any attention to it. I didn’t think "anything about it.

      “Q. And, just the moment that the forward section went by, Newman Steele started .up his horse, didn’t he, instantly, on a very sharp gait?

      “A. He started as quick as — about the same time that —the old gentleman came on. He went by me quickly, at a rapid gait. When tbe train went by, my mare cramped to tbe west, and I tried to make ber go ahead because tbe signal bad stopped. Then Mr. Steele passed me on a trot, and just as be came along I came along, and my borse kept going onto tbe track, and then tbe other section came along. Mr. Steele bad driven by me before my borse bad straightened up so I could go. I saw tbe second section coming, and stopped my borse. Tbe train was just on the edge of tbe highway, and when I stopped my horse be was from 10 to 12 feet from tbe first track. * * * I knew as soon as the train went by, and it wasn’t necessary for the flagman to tell me. I would go right on myself. And on this occasion, just as soon as tbe train went by, I thought everything was through, and tried to start right along, — tried to go. I didn’t notice whether there -was any caboose at that time or not. I didn’t pay any attention to it. • If we bad been paying attention to tbe rear end of tbe first part of tbe train, I could have told whether there was a caboose or not. * * * As soon as tbe other section was coming, I could see him swing it across again. I think I saw him swing the lantern twice or three times before the second section same along. It was a very short time before Mr. Steele was killed. That and the noise caused me to stop my horse. * * *

      ‘ A. So he came along then, and when he stopped, close to the side track, he shook it the other way.

      “Q. Now, that was before you started at all ?

      ‘A. Before I had started at all.

      “Q. And that must have been before Steele went by you, too, wasn’t it? Nad Steele gotten by you at that time, Mr. Donaldson?

      ‘A. Ne ivas very likely very near opposite.

      “Q. About opposite you, when he commenced to swing it, you say, right across the track again ?

      ‘A. Yes, sir.

      UQ. But his horse was going so fast that he could not cheek it 9

      ‘A. That’s right.

      “Q. And that is about the way you think it occurred, isn’t it, Mr. Donaldson?

      ‘A. Yes, sir.”

    Mrs. Donaldson’s testimony is substantially the same as that of her husband. In describing the time, she testified:

      “It was all done in a great deal less time than we are talking about it, — within a second or two. Our borse name very near the track. He had turned his head to the west, and it seemed as if the train must have struck him. It does seem as if the first and second sections were 100 feet apart. Our horse had just time to stop before the .second one came along.”
    She also testified that, after swinging the lantern north and south, the flagman commenced to swing it very violently east and west again, and that Steele was then somewhere between her and the cars, and that it was the second car of the second section which struck the deceased.
    Mr. Stanley, the flagman, testified as follows:
    “After I saw that the train was approaching the crossing, I went out on the side track on the south side, and I gave a signal to the engineer that the crossing was all right, and swung my lantern east and west, crossways of the track, to signal any person who might be approaching the crossing to stop. When the train went by me, I saw they were broken in two; and then I signaled at the crossing north and south, and, for fear any one might be coming, I hallooed out, and told them to keep back, the cars were coming; and I scarcely had the words expressed until the cars came right up, — that is, the second section. * * * It was a very dark night. I didn’t see any one approaching after the first section went by. 1 didn’t see Mr. Steele coming; but, the reason I hallooed, I thought somebody might be coming up on the other •side, so I hallooed out as loud as I could. I told them the cars were coming, — to keep back; and I also swung my lantern across the track. This was immediately after the first section went by. This occurred about eight o’clock in the evening, standard time. When I discovered there was no light on the rear end, I was in the center of the side track, on the south side. I commenced to halloo right away, and I scarcely had the words expressed when the rear section was right to me.”
    The above is a substantial statement of all the testimony from which negligence can be inferred. While several acts of negligence are alleged in the declaration, ■only one was submitted to tbe jury, viz., whether the flagman was negligent in not sooner discovering that the train had parted, and that other cars were coming, and in swinging his lantern north and south, as a signal to travelers to cross.
    Geer & Williams, for appellant.

      Sticlcney & Kaljnn, for appellee.
   Grant, J.

(after stating the facts). The plaintiff’s position is thus stated in her brief:

“The defendant was negligent, through the flagman, in signaling the parties to advance and go upon the track under the circumstances, for the flagman was in a position and so near the rear section that he must have known that another train, or section of a train, was rapidly advancing on the crossing. A glance at the rear of the retreating train would have satisfied or informed him that there was trouble with the train, and, as a flagman, he was bound to know whether the track was clear, and it was safe for the parties to pass over the track, before he gave the signal to advance.”

There is no evidence, nor was it contended in the oral .argument, that the flagman had actual knowledge that the second section was approaching when he swung his lantern north and south. Such an act would not only be gross negligence, but would be criminal. It was argued by counsel for plaintiff, upon the oral argument, that it was the absolute duty of the flagman to know that the track was clear before signaling, and that, although he acted prudently and with due caution, still the defendant is liable. This would result in holding the defendant to be an absolute insurer of safety when it has a flagman, and to establish a liability without negligence. In other words, it would establish the rule that, when one invites another upon or across his premises, he guarantees their safety. There is no such rule, nor was this ■case submitted to the jury upon any such theory. The sole basis of the verdict is that he did not use due diligence to ascertain whether the track was clear, and gave the signal without first performing that duty. In determining this question, the court, as well as the jury, must consider the situation as it appeared to the flagman at the time. It is easy afterwards to see how most accidents could have been avoided, but that is not the question, but, rather, could the accident have been avoided by the exercise of reasonable care and diligence?

The flagman did all in his power to give notice of the approach of the rear section as soon as he discovered it. Should he, in the exercise of common prudence, have discovered it earlier? Upon the answer to this question depends the defendant’s liability. He swore positively that he immediately discovered the trouble, and gave warning. If it were the fact that he saw the second section coming, and gave no warning, then the negligence, if any, would be in failing to give a signal, instead of giving one. The duty to give the signal was imperative the moment the danger was discovered. The flagman did in fact discover the rear section approaching before it reached the crossing, and immediately thereupon vigorously signaled. Mr. Steele’s horse had not then reached the track, nor had he reached it when the first car of the rear section was upon the crossing, but he was very near it. He reared and plunged to the east, and the cart was thrown against the second car. No one places the distance between the two sections at the crossing in excess of 100 feet. The time was so short that Mrs. Donaldson said it was a second or two. According to Mr. Donaldson, the flagman had swung his lantern two or three times as a warning after the first section passed, and before the second came. Whether Mr. Steele, in driving rapidly towards the crossing, acted upon the signal supposed to have been given, or upon the natural supposition that the train had passed, as did Mr. Donaldson, is not, of course, known. One would naturally presume that the entire train had passed. Mr. Donaldson testified that he would not wait for a signal after the train had passed. But is it not a fair inference that if he had seen the signal, as did Mr. and Mrs. Donaldson, he could have stopped his horse in time to avoid the accident, provided he had him under proper control?

The flagman had been there for two years. No such accident as the parting of a train had ever occurred there. To hold the flagman guilty of negligence under these circumstances is to say that it was his duty to look out for an unusual and unexpected accident; to determine instantly that the train had parted, and that the rear section was immediately following; to see that there were no lights upon the rear car of the first section, and determine whether it was an unlighted caboose or a freight car; to then look to the west, and if he saw a light, which to him would appear stationary until very near him, to determine that it was upon the caboose, and that it was approaching; and then to swing his lantern as a signal to travelers upon the highway, whom he cannot see, and of whose presence he may be ignorant; and to do all this in a night so dark that objects can be seen but a few feet distant. The law of common prudence and care does not require such instantaneous action of mind and body, nor “does it require men to be on a constant lookout for da,ngers that cannot be expected to exist.” Grand Rapids & Ind. R. Co. v. Martin, 41 Mich. 670. In my judgment, the flagman acted with all the promptness and care which the law requires. This was one of those unfortunate and distressing accidents which could not well be foreseen, which no one could be expected to anticipate, and for which no blame attaches to any one.

An important question is raised upon the pleadings, which, in my view of the case, it is unnecessary to discuss.

. The judgment-should be reversed, and, since no different state of affairs can possibly be shown upon a second trial, none should be ordered.

MONTGOMERY, J.

The statement of facts prepared by Mr. Justice G-rant covers the main features of the case. It is only necessary to add that there was evidence for the jury that the flagman swung the lantern north and south, and that this was intended for a signal to advance. Mrs. Donaldson testified: “As we approached the crossing, I saw the flagman swinging the lantern, and then we stopped, and heard a train coming; and afterwards, after the first section passed, we saw him there, swinging the lantern north and south.” The flagman testified that the signal which he was accustomed to give to indicate that it was safe to advance was to .swing his lantern north and south.

1. It was insisted, on the argument that the declaration was defective in that it failed to aver that the deceased relied upon the signal to advance. The declaration contained the averment:

“The said Newman Steele was then and there negligently and carelessly signaled by said flagman * * * to pass over said track, as said track was clear, which the said Newman Steele then and there attempted to do, by going upon said track in a careful and prudent manner at said crossing; and while on said track at said crossing, and by reason and on account of such carelessness and negligence on the part of said defendant as aforesaid, the said Newman Steele was run into.”

This certainly states, by inference, that Newman Steele was on the track because of this negligence of defendant; and, while the manner of stating the fact was open to objection by special demurrer, the defect was not pointed out in this manner, or in any other manner, specifically, on the trial. The nearest defendant’s counsel came to making the point was during the taking of testimony, when an objection was made as follows: “We object to this under the declaration, because there is nothing in the declaration that would indicate negligence on the part of the defendant company in giving, him-the signal to come on, or in omitting to -give the signal for him to stop, before the second section arrived.” This gave no-intimation that defendant claimed any fault in the averment that deceased relied upon the signal. The defect,, if it had been pointed out, was subject to amendment, and the judgment ought not to be disturbed on this ground.

2. In our opinion, there was a question for the jury in this case. Certainly great care was due from the flagman, and to be expected by the public. So dangerous is an attempt to cross a railroad track without an assurance of safety that it is held negligence, as a matter of law, for a traveler to make the attempt without .assuring himself, by the use of his senses, that the way is clear. The very purpose of maintaining a flagman is to give this assurance to the traveler, and the care required should be measured in view of the consequences likely to result from an error in judgment, or want of the most accurate attention. In this case it appears that the flagman was experienced; that he had never known a freight train to pass without a caboose in the rear, and at night there was always a red light in the rear of the train, and white lights at the side of the caboose. In fact, it is unnecessary to say that the maintaining of this rear light is essential to the safety of the trainmen and the property of the company. These lights were wanting on that portion of the train which passed the flagman. By the defendant’s theory, the gap between the two sections of the train was only about 100 feet. I think we cannot say, then, as a matter of law, that if the flagman had looked he would not have seen the light, or that he was not negligent in failing to discover that these lights were missing from that portion of the train that had passed, or that he was in the exercise of such care as the occasion and circumstances demanded, in giving assurance of safety to the deceased by the signal to .advance. It is' said in the brief - of defendant’s counsel that it was the duty of the flagman to look in the direction from which the train had come, not where it was going. There is strong ground for the inference that, if he had looked in that-direction, he would have seen the approaching detached section. But, in our view, his duty did not consist wholly of looking in the one direction. It was certainly his duty to satisfy himself that the train had passed, before signaling the deceased to approach; and, in looking to ascertain this, he would most naturally have looked for the rear light. If this was missing, what would its absence suggest, and what was then the-duty of the flagman?. These, we think, were questions for thé jury.

We find no error. Judgment affirmed.

McGrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.


author: Hookee, J. McGrath, C. J.

text:
    ELLIS v. BOARD OF STATE AUDITORS.
    1. State Officers — Illegal Payment of Salary — Remedy of State — Authority of Board of Auditors.
    Joint resolution No. 16 of the legislative session of 1895, authorizing the board of state auditors to ascertain the amount paid as salaries to certain state officers in excess of the amounts fixed by the Constitution, .to inquire into the facts and circumstances thereof, and to make such a settlement with the several officers as should, in the opinion .of the board, be just and equitable in each case, and requiring the board, if any sums should be found due to the State, to commence suit therefor, did not empower the board to compromise with such officers, but merely to determine whether the State had a lawful claim against them, and, if so, to bring suit thereon. McGrath, C. ‘ J., dissenting.

      2. Constitutional Law — Compromise op State Claim.
    The legislature cannot authorize the compromise of a claim of the State for moneys paid out in violation of the Constitution, on grounds of abstract justice and equity. Whether it may do so because of a doubt as to the legality of the claim, or the ability to enforce its collection, — qucere.
    3. Payment — Mistaee op Law.
    Payments made under the erroneous supposition that a constitutional amendment imposing such obligation had been adopted by the people are made under a mistake of law, and not of fact.
    4. Same — Recovery by State.
    Money paid out by a ministerial officer of the State under a mistake of law may be recovered back, since in making such payments the officer acted beyond the scope of his authority. Mc-Grath, C. J., dissenting.

      Mandamus by Adolphus A. Ellis to compel the board of state auditors to take the steps necessary to arrive at a just and equitable settlement of the claim of the State against relator for an excess of salary received by him, pursuant to a joint resolution of the legislature.
    Submitted November 5, 1895.
    Denied December 24, 1895.

      A. A. Ellis, in pro. per.

      Fred A. Maynard, Attorney General, for respondent.
   Hookee, J.

At the spring election in 1891, an amendment to the Constitution increasing the salary of the attorney general was submitted to the electors. The -vote was canvassed, and the amendment was declared to be carried. Similar action was had relative to another amendment submitted in 1893. Salaries were paid at the increased rate, until a recanvass, in obedience to the order of this court, resulted in the determination and declaration that the respective amendments had been defeated. Relator alleges that meantime, believing said amendments to have been legally adopted, he, in good faith, received from the state treasurer the sum of $5,218.08 in excess of the amount legally due him under the former constitutional provisions; that, after ascertaining that fact, he attempted to adjust the same with the State, but before any adjustment was reached, and at the last session of the legislature, the following joint resolution (No. 16, Pub. Acts 1805, p. 603) was adopted:

“Whereas, certain moneys were from time to time paid as salaries, under and by virtue of act eighty-seven of the public acts of one thousand eight hundred and ninety-one, and acts one hundred twenty-seven and one hundred twenty-eight of the public acts of one thousand eight hundred ninety-three; and
“Whereas, certain parts of each of said acts have, in effect, been held unconstitutional by the Supreme Court of this State, and no decision having been made as to the rights of the parties to whom the salaries were paid, and no settlement having been had with the several parties receiving the same: Therefore
“Resolved hy the Senate and House of Representatives, that the board of state auditors be and- are hereby authorized to ascertain the amount paid under and by virtue of either or any of said acts, and -to inquire into the facts and circumstances thereof, and to make such a settlement with the several parties as shall, in the opinion of the board, be just and equitable in each case, and, if any sum or sums shall be found due to this State, said board of state auditors are hereby authorized and required to commence suit therefor, in the name of the people of the State of Michigan.
“This act is ordered to take immediate effect.”

The petition states, further, that the board of state auditors caused a notice to be served upon relator to appear before them, for the purpose of adjusting the claim of the State against him for the excess received by him, over and above his lawful salary, and that he appeared accordingly. This meeting* was adjourned to a subsequent day, when said board, acting under and in accordance with an opinion furnished them, at their request, by the attorney general, determined that they were not vested by said resolution with authority to compromise said claim, but only to ascertain the amount overpaid, and to demand payment of the same, and commence an action therefor in case payment should be refused; and said board, without inquiring into the facts and circumstances, or the rights or equities of relator, adopted a resolution instructing the clerk of said board to notify the relator that there 'was due to the State from him the sum of $5,218.08, and that, unless the same should be paid within 60 days from the date of service of said notice, the attorney general was thereby authorized to commence an action to recover the amount, which notice was served upon him. Belator asserts that the board has not made inquiry concerning his rights and equities in the premises, and refuses to do so, acting under the opinion of the attorney general, which he claims not to be a just construction of said law; and “he claims the right, under said resolution, to present his case to the board of state auditors, and claims that it is the duty of said board to inquire into the facts and circumstances, and make a just and equitable settlement, and use their honest judgment in the premises, and that the last clause of the said resolution simply authorizes the board, after they have made such a settlement, if any sum be found due, to sue and collect the same.” He prays that a writ of mandamus be issued to said board, “commanding and requiring them to hear the petitioner as to his rights and equities, and to make a just and equitable settlement with the petitioner, according to the terms and spirit of the said joint resolution.” The answer admits the truth of the facts alleged in the petition, and the question is thereby reduced to a construction of the joint resolution.

The relator contends that he is entitled to a hearing before the board; that the board is authorized to compromise the matter upon principles of abstract justice and equity; and that, if action is to be brought, it is only after such settlement with the relator shall have shown something due the State. To recapitulate, the relator contends:

1. That the State has no legal claim against him, for the reason that the payment was voluntary, being made and received under a mistake of law.
2. That he is entitled to a hearing before said board.
3. That the board is required to settle with him upon principles of abstract justice and equity, as contradistinguished from legal and equitable rules.
4. That no action can be brought until a settlement is reached.

We are asked to set the board in motion, unless we shall determine that the State has no valid claim.

The brief of the relator discusses the first proposition in connection with the question whether the legislature has the power to authorize a compromise of such claims as this, inasmuch as it had not the power to authorize the payment in the first instance. Whether the legislature might lawfully provide for the acceptance of a sum less than the amount paid, as a means of adjusting a claim that is doubtful, either because of supposed legal impediments in the way of recovery, or from an inability to enforce the collection, would be one thing, while to authorize a compromise by the board in accordance with its opinions of abstract justice and equity, after payment, is another. The fundamental law forbids the raising of the attorney general’s salary by the legislature. Of this, not only the members, but every citizen of the State, must be supposed to be informed. The facts that the Constitution had been declared amended, and that office had been accepted under that belief, would not have enabled the relator to recover the increased salary had payment been refused, though, in a certain sense, it may be said that in “justice and equity” he had earned it, and should be entitled to it. In such case he would be obliged to suffer the disappointment; and the fact that payment was made does not materially change the situation. He has received money to wbicb be was not lawfully entitled. His only excuse was that be was ignorant of tbe law, an excuse sufficient to protect bim from tbe criminal law, but one wbicb does not make the money justly and equitably bis, unless tbe existing principles of law and equity, as judicially administered, entitle bim to keep it, and forbid its recovery by tbe State. If it were clear that tbe legislature bad attempted to authorize tbe board to fore-go its claim, simply because tbe relator bad taken bis office and performed bis duties under tbe mistaken belief that be was to receive tbe increased compensation provided by tbe supposed amendments, we should feel constrained to say that they bad exceeded their power in tbe premises.

Tbe following are some of the logical results of such a construction as is contended for by tbe relator:

(1) Tbe board should not bring action if, in its opinion, tbe State has no legal claim to this money, because paid and received under a mistake of law.
(2) It should not bring action if, in its opinion, tbe State should recognize an abstract equity in tbe relator to keep the money received.
(3) If tbe board should think tbe 'claim of tbe State a legal and just one, it still could not bring action until tbe amount due should be determined by it.
(4) This determination must be reached by agreement with relator, wbicb implies that tbe resolution is futile unless tbe relator shall consent to state an account, wbicb obviously might be made ridiculously low at bis option, or refused altogether, thereby effectively preventing action, or limiting tbe sum to be sued for to an amount admitted by the relator.

We are of tbe opinion that this resolution should not receive such construction. The preamble alludes to the unsettled condition of these matters, and tbe failure of this court to pass upon tbe rights of tbe parties in a former proceeding, and impliedly, at least, indicates that differences exist between tbe State and these officers. Reading this in tbe light of tbe last paragraph of tbe opinion filed in the case of Rich v. Board, of State Canvassers, 100 Mich. 465, which the legislature cannot be supposed to have overlooked, we think that it was the design to submit to the board the question of the legality of the claims by the State, upon the respective officers, for the sums so paid. This is indicated by the first provision of the resolution, which authorizes the board to ascertain the amounts paid, and by the last clause, which “requires” them to commence suit for any sums that shall be found to be due to the State. If, as relator seems to contend, this power to sue does not exist until after they have been able to agree with him upon an amount due, it is, as already said, an empty one, for they might not be able to agree. It is significant that the resolution does not say that these officers shall have a hearing before the board, nor does it in clear language state that the claims may be compromised. Relator’s contention that he has a right to be heard rests on the authority given the board to ascertain the amount paid, and to inquire into the facts and circumstances thereof. The amount (in this case, at least) is not in dispute, and it appears from relator’s petition that he went before the board upon a notice. Presumably, this was for the purpose of hearing his version of the facts. Just what took place ■does not appear, further than that an adjournment was taken, and the opinion of the attorney general sought .as to the discretion and right of the board to settle the •claim.

Our view accords with the opinion of the attorney general that the legislature intended that the board should determine whether or not, in their opinion, the State had a lawful claim against the relator, and, if so, the suit was to be commenced. We think that it was not designed that tjiey should surrender by compromise a part ■of a claim which, in the opinion of the board, was a legal one, and then resort to a suit to determine whether it was a legal one or not, if relator should not choose to pay; and we think there was no intention to constitute the board a tribunal, to finally settle by its conclusions, irrevocably, so far as the State is concerned, the question of whether any sum, and, if so, how much, was due the State. Had they determined that, in their opinion, the State had no legal claim for the money paid, we think the matter would not be res judicata, but would be open to further action. It must be plain that a decision that a valid claim exists would not conclude the relator. Indeed, his brief substantially asserts as much. If it were otherwise, the resolution would have the effect of conferring a power upon this board that properly belongs to the courts, which we think has not been attempted. It was intended that they should ascertain the facts from reliable sources, in their own way. We can think of no more proper way for them to ascertain the law applicable to such facts than to take the opinion of the legal adviser of the State. Upon such light as they were able to obtain upon the facts and law, they were to determine whether any sum was due to the State. If, in their opinion, nothing was due, their duties were at an end. If a sum was found due, and payment was refused, they had no alternative but to commence action.

We need not consider the power of the legislature to compromise a claim the payment of which, in the first instance, was clearly a transgression of the State Constitution. It is unnecessary, for the reason that we ought not lightly to infer a willingness to surrender claims of the State, except upon legal grounds. This record does not indicate a danger of loss upon these claims. Indeed, relator’s petition asserts a willingness to pay such sum as shall be found to be legally and equitably due. The resolution, in our opinion, ought not to receive such construction.

Counsel have discussed and intimated a desire for a decision of the question of the validity of the claim of the State. We are asked to compel this board to proceed and settle the amount due upon this claim. From our construction of this act, it follows that the only question for the board to consider would be whether the State has a valid claim, -which can be enforced by action or suit. If it has not, they should not institute proceedings. It is plain that, under the admitted facts, the relator owes the entire amount paid to him, or he owes nothing. Hence this must depend upon whether the payment was a voluntary one, made under a mistake of law, and therefore one which, under the rule stated, cannot be recovered by the State. There is no dispute upon this record but that the money was paid and received in good faith, in the belief that the Constitution, as amended, authorized it. We think this was a mistake of law, rather than of fact; for, were we to hold otherwise, it would be difficult to find a case of a mistake of law that might not be said to be a mistake of fact. A mistake of fact was involved in the promulgation of the law, but the parties were mistaken about the law, as much as they would be in a case of the unwarranted publication of a law erroneously supposed to have been passed by the legislature.- It is a general proposition, supported by the preponderance of authority, that money paid under a mistake of law, but with a full knowledge of all. the facts, cannot be recovered back. A large number of cases pro and con will be found in a note to 18 Am. & Eng. Enc. Law, pp. 223-225. But there are cases which hold that this rule is not applicable to cases where ministerial officers have made illegal payments of public money to public officers. This is upon the ground that such officers are in the position of agents, and, in acting beyond the scope of their authority, do not bind their principals. The mistake is the mistake of the agent, and not that of the principal. The officer thought he had authority of law to make these payments, but in this he was mistaken. Attorney General v. Perry, 2 Comyns, 481; Seal v. Dent, 8 Moore, P. C. 319; U. S. v. Bartlett, 2 Ware, 17; U. S. v. City Bank, 6 McLean, 139; U. S. v. Kirkpatrick, 9 Wheat. 735; Hunter v. U. S., 5 Pet. 187; Cooke v. U. S., 91 U. S. 397; Bayne v. U. S., 93 U. S. 642; Story, Ag. § 398, and note; Com. v. Field, 84 Va. 26; Heald v. Polk Co., 46 Neb. 28. The cases cited by counsel for the relator from our own reports, wherein it has been said that the State is bound by any defenses that might be set up as against private individuals, are not conclusive of this question.

There would, then, be but one legitimate conclusion for the board to reach, and as we cannot suppose that this writ is invoked to that end, and the board seems to have already arrived at that result, there is no occasion for our intervention.

The writ will therefore be denied.

LONG, Graht, and Mohtgomerx, JJ., concurred with Hooker, J.

McGrath, C. J.

(dissenting). I am inclined to think that the legislature regarded the right of the State to recover the amount paid to relator as open to question, and, with that view, empowered the board of auditors to inquire into the matter, and adjust it.

It is well settled that money paid under a mistake of law cannot be recovered back, and, unless an exception is made in favor of the State, the case comes within the rule on the merits. In State v. Railroad Co., 89 Mich. 481, it was held that the State was not exempt from the doctrine of estoppel; and, if so, I fail to see why, upon principle, the rule referred to is not applicable as to payments made by the State. The doctrine of State v. Railroad Co. may be questionable; but, while it is recognized as law, I cannot concur in the opinion of the majority.

         Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225; Same v. Hammond, Id. 527; Ambler v. Auditor General, 38 Mich. 746.


author: Montgomery, J.

text:
    MILLER v. ROSS, BRADLEY & CO.
    1. Sale — Payment—Question for Jury.
    Whether a note given, upon a sale of chattels was taken as payment, and with the intention of passing title, is, on conflicting evidence, a question for the jury.

      -2. Same — Estoppel.
    One who, having contracted for the sale of personal property, stands by and permits his vendee to sell the same to an innocent purchaser, is estopped to assert, as against the latter, that title had not passed under the contract, or that he is entitled to a lien for the purchase price.
    Error to Bay; Maxwell, J.
    Submitted November 6, 1895.
    Decided December 24, 1895.
    Replevin by Albert Miller and another against Ross, Bradley & Company, a corporation. From a judgment for plaintiff's on verdict directed by the court, defendant brings error.
    Reversed.
    Simonson, Gillett & Courtright, for appellant.

      McDonell & Hall, for appellees.
   Montgomery, J.

Plaintiffs are engaged in the business of manufacturing and selling lumber and lath, and defendant is a dealer. In 1890 plaintiffs made a verbal contract with Vance & Oo. to sell to them their season’s cut of lath. Plaintiffs’ testimony was to the effect that monthly statements of the cut were to be made, and Vance & Co. were to advance their paper for the amount, but that these monthly settlements were not to be considered as final unless the notes were paid. On November 11th or 12th, Vance & Co. made a sale of the lath in question to defendant, who afterwards drew them away; and plaintiffs brought replevin, claiming that the title to the lath had not passed to Vance & Co., or, at least, that plaintiffs retained a lien for the purchase price, — charging that paper had not been given for the full amount of the last statement, and that the paper which had been given had not been paid at maturity. The circuit judge at first gave a general charge to the jury, submitting the question whether the title to the lath had passed to Vance & Co., making this to depend upon whether the notes were received as payment. After the jury had deliberated for a time, the circuit judge withdrew all questions from them, and directed a verdict for plaintiffs. Defendant brings error, and insists that there was evidence that the notes were received as payment, and also that plaintiffs were estopped from contesting defendant’s title, for the reason that, when the sale was being made to defendant by Vance & Co., plaintiffs knew of the negotiations, and did not assert any title to the property.

1. We think that there is some evidence tending to show that the notes were received as payment by plaintiffs, and with the intention to pass title. Whether this testimony was sufficient to overcome the presumption to the contrary, and the testimony of the plaintiffs, was a question for the jury. It appears that statements were rendered from time to time, in which Vance & Co. were charged with the amount of lath cut during the preceding month, and credited by note or three-month paper; and in one instance the statement is indorsed, “Paid by note at three months,” and signed by plaintiffs. While these statements are not necessarily conclusive, they have a bearing on the question, and, when construed with the testimony of Mr. Vance, tend to controvert plaintiffs’ testimony. The testimony, of Vance was in part as follows:

“Q. How were the payments to be made for those lath?
“A. He was to estimate the lath once a month, and I •was to give him my note for it.
“Q. And to be paid for by giving paper?
“A. Yes, sir.
“Q. What time was the paper to be given at?
“A. Ninety days.
“Q. So that each month he was to send you an estimate of the amount of lath on hand, and you were to give him 90-day paper in payment for the same?
“A. Yes, sir.”

2. There is testimony tending to show that when Mr. George Ross, acting for the defendant, was, in company with Mr. Vance, going to examine these lath, with a view towards purchasing them, they met one of the plaintiffs, and that Vance stated that he was about to sell the lath to Ross, Bradley & Oo., and that afterwards members of the firm were present when the lath were marked with the initials of the defendant, and that no claim of lien or ownership was made by plaintiffs. It is true this testimony was strenuously denied by plaintiffs, and Vance does not corroborate Ross; but the question presented is whether, if the testimony of Ross is credited, there is an estoppel, and we think there is. Jones, Liens, § 846; Stoveld v. Hughes, 14 East, 308.

Judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    SECORD v. CHICAGO & MICHIGAN LAKE SHORE RAILROAD CO.
    1. Master and Servant — Injury to Brakeman — Assumption oe Rise.
    A brakeman will be held to have assumed the risk of injury from an imperfect kind of drawbar in use on the road on which he is employed, where he has daily used such drawbars, and is therefore familiar with the dangers attending their use.

      2. Same — Contributory Negligence.
    A brakeman cannot recover for injuries sustained by reason of a defective drawbar while attempting to make a coupling, where he discovered the danger when the cars were several rods apart, and might, by stopping the train and adjusting the bar, or by adjusting it in another way than that attempted, have avoided the injury.
    Error to Van Burén; Hawes, J.
    Submitted November 6, 1895.
    Decided December 24, 1895.
    Case by Norman A. Secord against the Chicago & Michigan Lake Shore Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Smith, Nims, Hoyt & Hrwin, for appellant.

      Henry M. Dubois, for appellee.
   Hooker, J.

In July, 1875, the plaintiff recovered a judgment for $5,000, for the loss of his thumb and finger in coupling defendant’s cars. The undisputed evidence shows that the train was made up at Chicago, and included a box car belonging to defendant. This car, when built, was provided with what is called the “Potter draw-bar,” with three sockets to receive coupling links from cars of different heights. This bar had been removed from one end of the car, and a single drawbar, which was thinner, had been substituted. A saddle, provided for the Potter drawbar, was not removed, and the effect of this was to let the end of the single drawbar drop below a horizontal position, making it necessary to raise it when the coupling was to be made with another car. When the train reached Black River station, the plaintiff uncoupled three fiat cars from the train, to be left upon the siding, and, when he undertook to make the coupling between the two sections of the train, he provided himself with a block to put under the drawbar upon the saddle, to raise the bar to the proper height to enable him to make the coupling. He raised the bar by taking bold of the link and lifting upon it with his right hand, while he attempted to adjust the block with the left hand. At that time the car was about three car lengths from the car to which he intended to couple, and he approached it walking, and at the same time fixing the block. He kept his right hand upon the link until the cars came together, and it was caught between the drawheads of the two cars.

His own testimony shows that he was in the daily habit of thus adjusting such drawbars, which were in common use upon this road, where he had been at work for some months. It was usual for the men to use sticks and stones for this purpose, although crooked links were provided for use where couplings were to be made between drawheads of different heights. It is assumed that a car with a drawbar which may be thus raised and lowered in the saddle is a defective car, or at least is not a safe car. If this be conceded, it was as apparent to the plaintiff as to the defendant, and the plaintiff’s own testimony shows that he was engaged in the daily operation of such cars, and it is manifest that he was familiar with any danger attendant upon their use. He must, therefore, be held to have assumed the risk incident to such employment. See Grand v. Railroad Co., 83 Mich. 570, and cases cited in Ragon v. Railway Co., 97 Mich. 270.

It may be added that, upon the occasion of the accident, the plaintiff discovered the condition of the drawbar when three car lengths distant from the place of coupling. He testified that he could have raised the drawbar without taking hold of the link, thus avoiding any danger of his hand being pinched, and that he would not keep hold of the link so long again in making such a coupling. Moreover, he did not stop the train and adjust the draw-bar, as he might have done if he considered it defective, but chose to walk in front of the car, trying to raise and block up the bar as he went.

Under the circumstances of this case, we think the defendant was not liable for the injury, and a verdict should have been directed in its behalf.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.


text:
    FIRST NATIONAL BANK OF FLINT v. UNION CENTRAL LIFE INSURANCE CO.
    1. Bills and Notes — Proof of Execution — Pleading.
    Under Circuit Court Rule No. 79, where suit is brought upon a draft against the drawer and an indorser, and both defendants plead the general issue, without denying the execution of the indorsement, it is unnecessary for the plaintiff to prove the genuineness of the indorser’s signature, even as against the defendant drawer. Lobdell v. Bank, 33 Mich. 408, followed.
    2. Same — Evidence—Indorsement of Payment.
    A general receipt of payment, indorsed on the back of a draft by the payee before acceptance and before notice of dishonor, raises no presumption of payment by either drawer or drawee.
    3. Same — Transfer by Indorsement.
    The' character of an indorsement of negotiable paper is not affected by the use of the words “ Received payment” in connection with the signature of the indorser.
    Error to Lapeer; Moore, J.
    Submitted November 8, 1895.
    Decided December 24, 1895.

      Assumpsit by the First National Dank of Flint against the Union Central Life Insurance Company, impleaded with Gary E. Goodrich and John Eock, on a bill of exchange. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Durand & Oarton (Lawrence Maxwell, Jr,, Robert Ramsey, and John D. Oonely, of counsel), for appellant.

      Geer & Williams, for appellee.
   Montgomery, J.

Plaintiff sues on a bill of exchange for $7,000, purporting to be drawn by the defendant insurance company on the American Exchange National Bank of New York, payable to the order of Gary E. Goodrich. The draft was indorsed as follows:

“June 18, 1892. Received payment.
“Gary E. Goodrich.” •
Below: “John Rock.”
And below these indorsements:
“I believe above signature of mine to be genuine.
“Gary E. Goodrich.
“Witness: James EL McFarland to Goodrich’s second signature.”

Also:

“Pay to the order of National Park Bank, New York City, for collection, for account of First National Bank, Flint, Mich.
“C. S. Brown, Cashier.”

The defendant life insurance company gave notice, under its plea of the general issue, that the possession of the draft was obtained by fraud, and'that it was not, for this reason, the draft of defendant. There was no denial of the execution of the indorsements by the indorsers. On the trial the defendant insurance company objected to the introduction of- the writing in evidence for the reason that the genuineness of the signatures of the indorsers was -not proven, and for the further reason that the indorsement, “Received payment. Gary E. Goodrich,”— was prima facie evidence of the payment of the draft by the party bound to make payment, and no evidence of an indorsement made with the purpose of transferring title. The additional certificate of the circuit judge, which we have permitted to he filed, shows that the case was submitted under an understanding that these were the only questions involved. The objections raised were overruled, and the defendant insurance company brings error.

1. Circuit Court Rule 79 is as follows:

“Upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant, unless the defendant or some one in his behalf shall file and serve a copy of an affidavit denying the same, and this rule shall apply in actions brought against indorsers as well as other parties.”

This is a rule of practice which has been long since construed by this court, and while, if the question raised by defendant were new, we would consider the arguments addressed as of great Aveight, we think that this judicial construction placed upon the rule by the court which promulgated it should, in determining a question of practice, be controlling. The question was directly decided in Lobdell v. Bank, 33 Mich. 408. On the argument it was suggested that the report of the case did not necessarily show that the question was raised by the objection of the maker alone, but that the objection might have been a joint objection by all the defendants, in which case the question presented would be different from that here in-Arohred; but, from an examination of the manuscript record in that case, it appears that the question arose upon the objection of the maker alone, and there is no room to distinguish that case from this.

2. What is the meaning of the words, “Received payment,” appearing above the signature of the indorser? It is undoubtedly the rule, as contended by defendant’s counsel, that a receipt of payment on the back of a note or accepted bill is primia facie evidence of payment by the person -legally obligated to pay, namely, the maker or acceptor (Graves v. Key, 3 Barn. & Adol. 313; Scholey v. Walsby, Peake, 34), although it is said that slight circumstances will overcome the presumption (Byles, Bills, 439). In the present case there was no acceptance of the draft, so that at the time of the indorsement, June 18, 1892, there was no liability on the part of the drawee, and there was no immediate liability on the part of the drawer, for .the reason that there was no -notice of dishonor. Under such circumstances, we think the presumption of payment by either of these parties is overcome. The presumption is somewhat analogous to that arising from the possession of a draft, and the rule is that the‘possession of a draft before maturity or acceptance raises no presumption that it has been paid. 3 Band. Com. Paper, § 1476. See, also, Pfiel v. Vanbatenberg, 2 Camp. 439.

We think no error was committed, and the judgment will be affirmed, with costs.

The other Justices concurred.