text:
    KARWICK v. PICKANDS.
    1. Customs and Usages — Evidence—Contracts.
    Parties dealing in a business governed by a general usage are presumed to deal subject to tbe custom, in the absence of stipulations to the contrary.
    2. Same — Towing Contract — Navigation.
    The court should have permitted defendant to introduce proofs in support of her offer to show that plaintiff, who contracted with defendant to tow logs upon Lake Huron, dealt subject to a usage in that community, known among raftsman, tug-men and those doing business with them, that the owner should bear the loss of a break-up.
    8. Same — Trial.
    It was not an answer to the objection made that the jury found the contract was as plaintiff claimed; if the custom had been shown, the jury might have believed defendant’s version.
    4. Same — Requests to Charge — Trial.
    Defendant’s claim, supported by disputed testimony, should have been presented to the jury in accordance with her requests, that if plaintiff’s authorized agent, who inspected the boom, directed what booms were to be taken, and that they were then used by defendant, plaintiff could not recover for insufficiency in quantity or quality thereof. The court erred in limiting the request to the issue as to quality of the boom sticks.
    5. Same.
    If the responsibility up to the time of the storm was on plaintiff, because of such acceptance of the boom, by his agent, he could not shift the responsibility to defendant at the time of storm by stating to defendant that the logs were in her charge.
    Error to Cheboygan; Shepherd, J.
    Submitted June 4, 1912.
    (Docket No. 5.)
    Decided July 22, 1912.
    Assumpsit by John W. Karwick against Marion R. Pickands for breach of a contract of towage. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Frost & Sprague, for appellant.

      D. H. Crowley and C. S. Beilley, for appellee.
   Stone, J.

The plaintiff, who was a clothing merchant, and had also for about 15 years been engaged in lumbering, on July 14, 1909, had a quantity of logs and posts in Grace Harbor, about 30 miles from Cheboygan, which he desired to have towed to the Lakeside mill near Cheboygan for manufacture. Plaintiff and defendant on the day aforesaid entered into a parol contract relative to the towing, or assisting in the towing of these logs and posts, the exact nature of which contract is in dispute. The plaintiff in his declaration alleged: That in andby the contract the defendant—

“ Agreed to tow said logs and posts from the said point where they were then situated, to wit, on the shore of Lake Huron, to the city of Cheboygan, and that, under and by virtue of the terms of said contract, the said defendant then and there agreed to furnish a tug and crew to operate the same for the purpose of towing said logs and posts as hereinbefore mentioned, and also to furnish for the purpose of towing said logs and posts while they were being towed from the shore of Lake Huron to the city of Cheboygan as aforesaid sufficient boom sticks to make a double wrap around said logs and posts, it being then and there represented by said defendant, her agents and servants, that 120 of said boom sticks would be sufficient for said purpose, the said defendant then and there agreeing to furnish at least 120 boom sticks for said purpose as hereinbefore set forth, and it was also agreed by said defendant, her agents and servants, that said boom sticks so to be furnished as aforesaid would be of good quality and of sufficient size and strength for the intended use thereof. That said plaintiff, in consideration of the covenants and agreements on the part of said defendant as hereinbefore mentioned, agreed to pay said defendant the sum of $25 for each 12 hours the said logs and posts were being towed as aforesaid, and $25 for each 24 hours during the time while the defendant was performing the said contract, other than the actual towing, and the sum of $10 for each 12 hours the said boom sticks were used in the towing of said logs and posts as aforesaid. That thereafter, and on, to wit, the 22d day of July aforesaid, the said defendant, under and by virtue of the terms of said contract, proceeded with her said tug to the point on the shore of Lake Huron where the said logs and posts were located, and that said plaintiff had placed his logs and posts in the water at said point, and that defendant, her agents and servants, then and there violated the terms of said contract, in that she did not cause to be placed around the logs and posts of said plaintiff a sufficient quantity of boom sticks to secure their safe conveyance to the port of Cheboygan, and that said defendant, instead of stringing around the raft of plaintiff a double wrap, then and there placed around said logs and posts a single wrap; and that under and by virtue of the terms of said contract it was the duty of said defendant to have placed around the logs and posts of said plaintiff at least 120 boom sticks, and that defendant also made default in that regard, in that she caused to be placed only 91 boom sticks around said logs and posts, and that the boom sticks so furnished as aforesaid were old and rotten, and insufficient to properly protect the property of said plaintiff in towing same from the point aforesaid to the city of Cheboygan, and that in utter disregard of the rights of said plaintiff, in that an insufficient number of boom sticks were furnished, and in that said boom sticks were of insufficient size and strength, said defendant, her agents and servants, with said tug proceeded to tow the said logs and posts upon the waters of Lake Huron to the city of Cheboygan aforesaid. Plaintiff further alleges that thereafter, and on, to wit, the night of July 22, 1909, and while said logs and posts were so being rafted and towed as aforesaid, the said raft broke up by reason of defendant’s neglect to perform her said contract as herein-before mentioned in this regard, that she failed to furnish a sufficient amount of boom sticks, and that the boom sticks so furnished were of insufficient size and strength, and that, by reason thereof, the said logs and posts became scattered upon the waters of Lake Huron and shores, and that defendant, her agents and servants, then and there neglected and refused to notify plaintiff that his said property had been so scattered and lost as aforesaid. And said defendant, her agents and servants, made no attempt to recover plaintiff’s said logs and posts as it was her duty then and there to do. And plaintiff suffered great loss, in that he was compelled to employ a large number of men to collect the said logs and posts as aforesaid, and plaintiff then and there suffered great loss in that 2,500 of said logs and posts could not be found, and plaintiff lost them forever. And plaintiff in recovering his said logs was then and there compelled to lay out and did lay out and expend large sums of money by reason of defendant’s action as hereinbefore mentioned, to plaintiff’s great damage of $2,000, and therefore he brings suit.”

Under the plea of the general issue the defendant gave notice, among other things, that she would show that all of the said work done and services rendered by her were under the direction and control of said plaintiff, and as he directed, and that the number of boom sticks furnished were the same as ordered and demanded by the plaintiff.

Upon the trial the testimony on the part of the plaintiff tended to support his declaration as to the terms of the contract, except that plaintiff testified that defendant agreed to furnish 125 boom sticks instead of 120, as alleged. The testimony on the part of the defendant tended to show that she agreed to furnish the use of her tug Clayt and boom sticks at $25 per day for the tug for lying time, and $50 per day for the tug when pulling, and $10 per day of 24 hours for the use of boom sticks, and that plaintiff agreed to pay $2 per day for 25 boom sticks to be used by him in holding the logs at the mill.

Defendant denied, and the testimony in her behalf tended to support her denial, that she ever agreed to furnish any particular number of boom sticks, or boom sticks of any particular size or quality, but that plaintiff was to have such and so many boom sticks as he might select, and that plaintiff through his authorized employé, to wit, one Burnell, his boomman, examined and selected the boom sticks to be taken, and that these boom sticks were taken. Defendant also offered testimony tending to show that the plaintiff represented to defendant that he had from 200,000 to 225,000 feet of logs to be towed, while the plaintiff claimed that he represented that he had 800,000 feet. It also appeared without dispute that the logs were much smaller than the average run, there being about 40 to the thousand feet, and that an average run would be about 20 to the thousand feet, and that, on that account, it would require a great many mpre booms to enclose them than would be required for logs of the average size, and defendant claimed that the fact, of the size of the logs was not disclosed to her in making the contract. There is no question that plaintiff employed the boomman, Burnell, and paid him, and introduced him to the captain of defendant’s tug as his head boomman, before the booms were selected or the work started. Burnell and another boomman, also employed by the plaintiff, went down with the booms. Plaintiff also employed another tug, the Kane, to assist, the defendant. ' It was the claim of the defendant at the trial, and she produced testimony to support it, that before starting for the logs, and before selecting the booms, the plaintiff stated to the captain of defendant’s tug that his boomman would know how many boom sticks would be required, and that the whole subject of the number and quality of the boom sticks to be selected, and which were in fact selected, was left to the judgment and discretion of the boomman, Burnell, with the knowledge and assent of the plaintiff. This was denied by the plaintiff, and there was a sharp conflict in the testimony upon this subject, as well as to who actually had charge of the boom at the time of the breaking up of the boom, whether the captain of the defendant’s tug or the boomman, Burnell.

In the examination of the witness. E. J. Laway, captain of the tug Kane, on behalf of the defendant, the following occurred:

Defendant’s Attorney: Do you know whether there is a custom or usage in this community known among raftsmen, tugmen, and those doing business with them, as to responsibility, where there is a breakup — whether it falls upon the log owner or the tugman ? Was there a usage in that respect ?
Plaintiff’s Attorney: Objected to as not material or proper.
‘ ‘ The Court: It seems to me that that is a matter that is too vital to be left to a local custom.
Defendant’s Attorney: I offer to show by the witness and by others, so that I won’t have to put on other witnesses and simply take up the time of the court — I have witnesses here for that purpose — I offer to show that there was a custom among raftsmen and tugmen and those doing business with them, known to them, generally known, notorious, and one that is definite, and one that is thoroughly used, that where a tug is employed with booms by the day, that the responsibility for the breakup or loss, if there is a loss on account of the breakup, falls upon the log owner, and not upon the owner of the tug or booms.
Plaintiff’s Attorney: We submit, your honor, that even upon proof of a custom of that kind, we wouldn’t be bound by it in this case.
“Defendant’s Attorney: I want to make that very definite: That the custom is certain, definite, universal, and notorious in this community.
“Plaintiff’s Attorney: Mr. Sprague, do you offer that and include in that offer — do you mean to say that you offer to prove that there is a custom in this community, definite and certain, irrespective of any special contract, irrespective of the responsibility of the owner of the boat, or the captain of the boat, irrespective of whether they are negligent in that care and in the work, that there is such a custom as that? Do you offer to prove that?
“Defendant’s Attorney: I didn’t embody those—
Plaintiff’s Attorney: I say, do you offer to prove that ?
Defendant’s Attorney: No, sir. I offered just what I placed upon the record—
Plaintiff’s Attorney: Then I object.
“Defendant’s Attorney: It is applicable to this contention and proof in this case.
The Court: I will sustain the objection.
“ Defendant’s Attorney: What I mean by applicable to this contention and proof is the proof as to the hiring and letting and the use of the tug — that the custom is applicable to that. I understand the court sustains the objection, and the court will give me the benefit of an exception.
The Court: Certainly.
Defendant’s Attorney: I understand from this time it will not be necessary for me to place upon the stand those various witnesses to ask them these questions because it will simply take up the time of the court.
“Plaintiff’s Attorney: We insist upon that objection if the testimony is proposed.
Defendant’s Attorney: And you waive my producing witnesses upon that particular point and asking the question?
“Plaintiff’s Attorney: Yes.”

The plaintiff testified that, when he got to the tug Clayt the night of the breakup before the logs were lost, she was about two miles from the shore with the raft, that, when he got to the tug, he spoke to the captain about the wrapper around the logs, and that the captain spoke of the want of boom sticks, and plaintiff said:

“Did you wrap up the logs?” The captain replied: “ No; we ain’t got no booms.” The plaintiff then asked: “ What did you come here without booms for ? You are supposed to have booms, double booms around this raft, and an apron, and they have only One wrap around the logs.” The captain said he could not do it. The plaintiff testified that he then said: “Well, I am leaving the logs in your charge.”

Whereupon the plaintiff left for Cheboygan in the gasoline boat. This claimed interview was denied by the captain.

The case was submitted to the jury, and resulted in a verdict for the plaintiff of $1,207.

The defendant requested the court to charge the jury as follows:

“ (2) If you find that the plaintiff hired defendant’s tug and booms, and that defendant did not agree to furnish any particular number of booms, and that plaintiff’s boom-man, Burnell, looked over the booms, and directed what booms were to be taken, and such booms were taken and furnished by defendant, then I charge you that the plaintiff, by his boomman, accepted said booms as sufficient, and yoúr verdict must be for the defendant and against the plaintiff — no cause of action — so far as plaintiff’s claim for damages is concerned.”
“ (6) If the jury find that plaintiff, through his authorized boomman, accepted booms to be taken, the fact that Mr. Karwick said to Capt. Snetsinger at the raft ‘ the logs are in your charge,’ if he did say so, would not place the responsibility on defendánt for a breaking up of the raft caused by the booms taken not being sufficient in number or quality.”

A judgment pursuant to the verdict was entered, and the defendant has brought the case here upon writ of error.

Many errors are assigned that we shall not specifically refer to.

The fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth assignments of error relate to the ruling of the court in not permitting the witness. E. J. Laway to answer the questions relating to the custom or usage, above set forth. It was not claimed that plaintiff did not know of the custom, the objection being that, conceding such a custom to exist, the plaintiff was not bound by it. It should be borne in mind that defendant’s version of the contract differed from plaintiff’s. Defendant’s version was that she agreed to furnish her tug and boom sticks at a certain sum per day — a hiring by the day. It was her claim that there was no agreement as to any particular number or quality of boom sticks, simply such as plaintiff might select, and which his boomman did select, and she took. That contract, defendant claimed, was made with reference to the custom that the responsibility for the break-up and the resulting loss was on the plaintiff, the owner of the logs. It is urged that the offer to prove the custom was made under the defendant’s version of the contract, and that, under that version, it was admissible, and its exclusion was prejudicial error.

It is a general rule that, if there is a general usage applicable to a particular profession or business, parties employing an individual in that profession or business are supposed to deal with him according to that usage. It is said that all trades have their usages, and, when a contract is made with a man about the business of his craft, it is framed on the basis of its usage, which becomes a part of it, except when its place is occupied by particular stipulations. 12 Cyc. p. 1044. In Van Hoesen v. Cameron, 54 Mich., at page 614 (20 N. W., at page 611), it is said:

“ In cases where evidence of usage is admissible at all, it is only on the ground that the parties who made the contract are both cognizant of the usage, and must be presumed to have made their agreement with reference to it.”

It may be urged that the offer was not broad enough to show that both parties were cognizant of the custom or usage, but we think that the offer to show that “there is a custom or usage in this community known among rafts-men, tugmen, and those doing business with them,” was broad enough to have permitted the evidence to go to the jury. Pennell v. Transportation Co., 94 Mich. 247 (53 N. W. 1049). The ruling of the trial court was so broad that it shut out all evidence upon the subject.

But it is said by counsel for the plaintiff that the jury found that the contract made was as alleged by the plaintiff. Whether such would have been the result had the evidence relating to the claimed custom been received we cannot' say. It is one of the things complained of by the defendant that she was not permitted to get her version of the contract before the jury.

The thirty-seventh and thirty-eighth assignments of error complain that the court modified the second request to charge by adding thereto the words, arising from the quality of the booms;” so that the request as modified and given was as follows:

“ I charge you, further, that if you find that plaintiff— that is, Mr. Karwick — hired defendant’s tug and booms, and that defendant did not agree to furnish any particular number of booms, that the plaintiff’s boomman, Mr. Burnell, looked over the booms, and directed what booms were to be taken, and such booms were taken and furnished by defendant, then I charge you that plaintiff, by his boomman, accepted said booms as sufficient, and your verdict must be for the defendant and against the plaintiff —no cause of action — so far as plaintiff’s claim for damages arising from the quality of the booms is concerned.”

It is the claim of defendant’s counsel that this modification took “ the heart out of the request.” Upon this subject plaintiff claimed two things: that the booms were insufficient in number and quality. Defendant claimed that there was no agreement as to number or quality. The testimony on her behalf tended to show that such and so many booms were to be taken as plaintiff selected; that Burnell, plaintiff’s authorized' boomman, went over the entire string of booms, discarding some sticks, putting in lake booms where needed, examining and selecting all the booms and chains, thus selecting the booms to be taken, and which were taken.

Under defendant’s version of the contract, and under her testimony, she claimed that plaintiff, through his boomman’s examination and selection, accepted the booms, both as to number and quality. The request was presented in that view. The court gave the request as to quality, but refused to give it as to number. Manifestly, under defendant’s version of the contract, plaintiff could accept the booms as to number as well as to quality, and if plaintiff, through his authorized boomman, did accept them, especially after a thorough examination, defendant should not thereafter be held responsible for a loss occasioned either because of lack of number or quality. Stevenson v. Towing Co., 103 Mich. 412 (61 N. W. 536). To modify the request by refusing to permit the jury to find an acceptance as to number, but permitting them to find an acceptance as to quality, was, we think, erroneous. It ignored defendant’s version of the contract, and in view of the claim of the. plaintiff at the trial that the quantity or number of booms furnished was insufficient to double-wrap the logs, resulting in the loss complained of, we think that the request as modified and given was prejudicial error.

We are also of opinion that the court should have given defendant’s sixth request to charge. Certainly, if the responsibility up, to the time of the storm had been upon the plaintiff, he could not shift that responsibility to the defendant under the circumstances, by simply stating to the captain of defendant’s tug, “The logs are in your charge,” and thus relieve himself from resulting loss.

We have examined the other assignments of error, and find no reversible error in the matters complained of therein. Many of the questions are not likely to arise upon another trial, in view of what we have said.

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

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    GERLACH v. DETROIT UNITED RAILWAY.
    1. Carriers — Negligence—Street Railways — Inspection — Defects in Cae.
    Evidence that the handhold of defendant’s car gave way precipitating plaintiff, who weighed 200 pounds, to the pavement while in the act of alighting, that the wood remaining attached to-the screws of the bracket was in decayed condition, and that the wood surrounding the screws was visibly darkened, presented a case for the jury upon the question of proper inspection.
    2. Same — Evidence.
    The defendant suffered no prejudice from a ruling of the court excluding evidence relative to the purpose of the handholds which was so obvious as to require no proof.
    3. Same — Care Required.
    Defendant was bound to observe a high degree of care in the maintenance of such appliance.
    4. Same.
    The court did not err in refusing to charge the jury, as requested by defendant, that the pulling out of the bar, or happening of the accident, was no evidence of negligence.
    6. Same.
    Defendant was chargeable with the duty of inspecting its cars, and the court correctly charged that, while it did not insure plaintiff, it was required to exercise reasonable diligence to discover defects, and in performing its duty to use ordinary tests such as pulling or application of force thereto.
    Error to Wayne; Hosmer, J.
    Submitted June 5, 1912.
    (Docket No. 19.)
    Decided July 22, 1912.
    Case by Edward EL Gerlach against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn (Wm. G. Fitzpatrick, of. counsel), for appellant.

      Clarence P. Milligan, for appellee.

      Plaintiff, a man weighing upwards of 200 pounds, was injured while attempting to. alight from one of defendant’s cars. As the car was coming to a stop in response to his signal, plaintiff stepped toward the edge of the front vestibule, took hold of the handhold with one hand, and, when the car stopped or was just about stopping, he was thrown with considerable violence to the pavement by reason of the fact that. the two metal brackets which held the wooden handhold in position tore away from the car. In falling, plaintiff carried with him in his hand the handhold and both brackets. Besides various cuts and bruises, plaintiff suffered a dislocation of the right shoulder; the evidence tending to show that his injuries were, to some extent, permanent in character.
    It is not claimed by plaintiff that there was any negligence in the operation of the car. The duty and the breach thereof is stated in the declaration as follows:

      “First, to operate Sherman line cars that were in fit and proper condition to act as conveyances for passengers; second, to transport plaintiff safely and securely to his destination; third, to use a very high degree of care and caution with reference to the condition of its cars and their appurtenances, upon which the public and especially plaintiff was invited to ride for money paid to defendant ; fourth, to especially refrain from running on said Sherman line a car that was worn out, old, ancient, antiquated by reason of years of service on other lines, and in a condition unfit to be used for the transportation of passengers; fifth, to especially refrain from running over said Sherman line a car the woodwork of which was mellowed by age and usage, and so rotten that the bolts, screws, handles, brass, and iron works and brackets and handholds would collapse, pull out, and tear asunder when passengers, especially plaintiff, took hold of the same; sixth, to especially examine, inspect, adjust, repair, and replace all rotten, defective, and worn-out portions of said car, more especially the woodwork to which front handholds were attached on said Sherman line cars, the screws, brackets, handholds, and contiguous appurtenances, when said defendant knew or ought to have known that passengers, especially plaintiff, were invited to use these very instrumentalities for their more safe and convenient exit from the cars. And plaintiff avers that said defendant, well knowing its duties in the premises, did carelessly and negligently omit to do or perform the same, in consequence of which plaintiff, while a passenger on said Sherman line car on or about the date as aforesaid met with severe and permanent injuries.”
    As to the condition of the car, plaintiff testified:

      l‘Q. What did you notice, if anything, to be the condition of the wood, either that was attached to the screws or that was in the car P

      “A. The wood pulled right out with the screws, and on the bottom of the screws, down below, the wood came right out the same as if you had pulled a screw out bending it down. The bottom wood was broke right off and rotten, and stuck right to the screws.

      UQ. Could you see its condition by inspecting it ?

      teA. Plain enough. We looked at it. There was two others looked at it besides myself.

      “Q. What was the wood; do you know?

      “A. I never examined it.

      “Q. What kind of screws were they ?

      “A. I never examined it to see whether it was oak or white wood.

      “Q. What kind of screws were they ?

      "A. I think they were about an inch and a quarter round head, ten or maybe twelve. The screws at both ends came out. The condition of the wood, as I described it, existed at both ends. There was wood attached to all the screws. The general condition of the wood was rotten. There was no paint on the car. It was an old car. It was not a new painted car. The paint was pretty well worn. It was an old car.”
    On cross-examination he said:
    “ As I said, it was an old painted car, an old coat of paint. The wood underneath the brackets was rotten.

      “Q. No; but what was the area ?

      “A. And to speak as to the brackets, it showed outside of the brackets where it was dirty and dark.”
    Upon the same question he offered the testimony of a fellow passenger.

      (‘Q. And the brackets and screws — will you describe to the jury what you noticed about their condition ?
    “A. He took the handlebar from the man, and put it in the vestibule. I examined the handlebar, and noticed the screws had pulled right out of the socket, out of the wood, and there was still some of the rotten wood hanging to the screws, and then I looked at the wood where the handlebar was fastened to. I observed that they had both pulled out, top and bottom.

      “Q. What was the condition of the wood on the car where they had pulled out ?

      “A. It looked rotten and worn out.
    “Q. Was that noticeable from the outside ?

      “A. Yes, sir.

      “Q. Well, was there any paint covering this rotten wood or was it worn off in places ?

      “A. It was painted in spots. It looked like all paint worn off.”
    On cross-examination this witness testified:

      “Q. How about the wood on that post, did you know what kind of wood it was — that is, whether it was oak or elm or what it was ?

      “A. I am no judge of wood.
    “Q. Underneath the lugs of the brackets or (of) the handhold you observed it looked kind of dark and rotten ?
    “A. Yes, sir.”
    To meet this testimony as to condition, defendant introduced its inspector’s daily report from which it appeared that the car in question had been inspected and found “Q. El.” on August 30, 1910, the day before the accident, and that it was inspected in the ordinary manner by the motorman and conductor who took it out on the day of the accident. It also introduced evidence tending to show that, while the wood immediately under the lugs which held the handhold was soft and to some extent decayed, outside the lugs the wood showód no evidence of being unsound. It was likewise shown that the car was but four years old, was of a type and equipment in general use, and was purchased from a reputable manufacturer. The ordinary life of such a car, including the appliances such as the handholds, was shown to be not less than 15 years.
    The charge of the court was, in part, as follows:
    “ The degree of care which is required by the defendant and by all street car companies in inspecting the various appliances of its car must be a reasonable degree of care and caution. By this I mean, the degree of care to be used in the inspection of its car must conform to the nature of the appliance in the car it is intended and expected to use, and the actual use to which it is customarily put by the passengers in the car.
    “In the case at bar, it is undisputed that the object of this handhold is to steady, aid, and to help passengers in getting off and on cars, and it must be expected that said appliance will be subjected to more or less strain, and that, as a consequence of this, it is the duty of the defendant not to make a perfunctory or careless inspection of it, but to make such an inspection of the handhold as is reasonable under the circumstances, and as will satisfy them that the handhold will answer the requirements naturally intended by it, and for which it is placed upon the car.
    “ Now, gentlemen of the jury, I charge you in this connection, as requested by the defendant, that the defendant company is not an insurer of the safety of its passengers. The only duty it owed to the plaintiff in this case, under the declaration and the evidence, was to provide a car with suitable appliances to enable the plaintiff to alight at his destination, and to see to it that those appliances were kept in a safe and proper condition of repair. The defendant is not required to provide its cars with all known and approved appliances necessary to protect its passengers from injury, but it is sufficient if it has all the approved appliances that are in general use, and which are necessary for the protection of its passengers and an appliance which has been in daily use for years and has uniformly proved adequate, and safe and convenient, may be continued in use without the imputation of negligence. I do not mean to say by that, gentlemen of the jury, that they are relieved from the duty of making such inspection as may reasonably be necessary at such intervals as may be proper. There is no evidence in this case that the handhold or its fastenings has been ever improperly, insufficiently, or negligently repaired prior to the time of the accident. I think that is so.
    “ It appears from the evidence that the car in question was procured by the defendant from a reputable and respectable builder and dealer not earlier than April, 1906; that it was a type of construction generally approved and a type of car in general use. There is nothing to indicate that it was constructed of improper materials at the outset, nor that the wood posts to which the handhold was attached was originally defective, but it was such a car as the defendant had a right to use in its business. There is no doubt about that. But, of course, when I say that, I do not mean to say with reference to that, that they were relieved from the duty of inspection to which I have called your attention. It appears from the evidence that the ordinary and average life of the car in question was not less than 15 years, and defendant had a right to continue the use of this car in its business up to the time of the accident in this case, provided they took such means as the law requires to apprise themselves of deterioration, decay or wear, by proper examination and inspection, and made such necessary repairs as were shown necessary.
    “ If you believe from the evidence that the defendant obtained the car in question from reputable and respectable manufacturers, not earlier than April, 1906; that it was constructed of proper materials, and that there was nothing to indicate that the wood in the posts to which the handhold was attached was originally defective; that the ordinary and average life of the car was not less than 15 years; that defendant employed such test, and made such tests and examinations as are required of it during its use of the car, and to apprise itself of the deterioration or decay, and that such test and inspection did not reveal the defects which were found to exist after the accident, or should or should not reveal such defects, then I charge you the defendant was not negligent in using this car in its business at the time of the accident and under those circumstances the plaintiff cannot recover.
    “ I am asked to charge you in this case the defendant was not obliged under the law and the evidence to furnish a handhold of sufficient strength and capacity to sustain the whole or substantially the whole of plaintiff’s weight in his attempting to get off the car. Well, doubtless, gentlemen of the jury, as an academic question that may be so, but at the same time I cannot exactly say how much strain is ordinarily put upon a handhold of that description. At the same time, gentlemen of the jury, it is requisite that they should put on the car a handhold which would sustain the strain which would come from the ordinary use of that car, and I think in our daily life, gentlemen of the jury, we see people swing off from a car with one hand on the car and leaning a certain amount of their weight forward, and the only thing I can say to you on that subject is that you may, you must, find that if should be sufficient at least to take the ordinary strain which will occur in the running of cars; and, when I say ordinary strain, I do not mean the strain which comes from the use by the ordinary individual, for the street cars are not merely for you and for me, gentlemen of the jury, but they are for gentlemen as large as the plaintiff in this case, as large as Mr. Webber, on the other side of the table, and so I do not want you to think that I mean the strain an average man would give it, but the strain which would come in the ordinary use by those of the public who are entitled to use it. * * *
    “ I am asked to charge you in this case that the plaintiff was in duty bound to wait until the car had come to a stop before attempting to alight therefrom. So far as the right to use the handhold is concerned, and if, in attempting to alight before the ear stopped, he subjected the handhold to an unusual or- unreasonable strain, his weight considered, and under such strain it pulled out and resulted in his falling, I charge you plaintiff cannot recover. I cannot give that language, gentlemen of the jury. As I said before, as we go through life, we see people who will swing out from a car and I think the handhold — I think that is a part of the incidents of the ordinary use of a car. Of course, if a person gets off a car in motion, he takes the risk of so doing — that is, the risk which is consequent upon getting off a car in motion, but he does not necessarily, if he swings off from the car unless he puts some extraordinary strain upon the handle. He does not in the mere attempt to alight, gentlemen of the jury, take the risk of a defective handhold or a handhold that would not sustain the weight which is ordinarily incident to such an action. * * *
    “ With respect to the duty of inspection, all the law required of the defendant was that it should provide such necessary means as in the judgment of those who understand the subject and such as experience has shown would be sufficient to secure the safety of its passengers, and to apprise itself of defects, deterioration, and want of repair, and, if such means are provided and proper use made thereof, it has discharged its duty in this behalf, and no negligence can be claimed on this head. * * *
    “ I am asked to charge you that the defendant at and before the time of the accident provided a proper and sufficient means and system for the inspection of its cars. Of that there can be no question. The system was unquestionably proper, but whether there was the proper inspection or not is a question, or one of the questions, in this case for you.
    “Now, I am asked to charge you on the question of a latent defect. Of course, gentlemen of the jury, if this may be said to be a latent defect which was not discoverable by the ordinary inspections, there would not be any liability. It is claimed in this case, gentlemen of the jury, that there was no evidence of rotten wood from the outside that was open to a glance or a proper examination by the eye. That is denied I think by the plaintiff in this case because the testimony of Mr. Newman contains some expressions which would tend to show that the wood was discolored around the lug, or whatever you may call it, that part of the front through which the screws were placed, and that it ought to have apprised the defendant of a possible deterioration. What the fact is in this case is one of the questions for you. All I can say is that if they made the proper inspection by applying a sufficient amount of force, if you think that that was essential to the inspection, and made a proper inspection with the eye, and that finder those circumstances the mere fact that there was evidence of decay beneath might make it a latent, or would make it doubless a latent, defect for which they would not be liable, but whether there is a proper and sufficient application of force and putting of strain upon that handhold, if you find that to be part of a reasonable inspection, or whether an inspection would have disclosed the fact that the wood was so deteriorated that the handlebars should have been taken off, is a question for you, and not a question for me.
    “I am asked to charge you, and do.charge you, if you believe from the evidence that the defendant’s agents and servants properly inspected the car and its appliances at all reasonable times before the accident, and that such inspections did not disclose, and could not in reason have disclosed, the defect which was found to exist after the accident, then that the existence of such defects would not be negligence and plaintiff could not recover. I think that is so. * * *
    “ I am asked to charge you that the law does not require defendant to make examinations and inspections of the handles to remove the screws and take off the brackets for the purpose of examining the condition of the wood underneath the bracket. I think that is so, gentlemen. I cannot lay down a rule telling you how much of an inspection there should be, or what inspection there Bhould be, but there should be a reasonable inspection and if, gentlemen of the jury, you find from the evidence in this case there should have been a pressure or a strain put upon that bracket as a part of the inspection, if you find that a proper inspection of that kind would' have disclosed the defect, why the plaintiff would be entitled to recover unless he has been guilty of negligence.
    “And, too, gentlemen of the jury, if you believe that an inspection of the wood around the immediate vicinity of the lug by which the bracket was attached would have showed that the wood was deteriorating, you may find, gentlemen of the jury, that they ought to have made a further inquiry by the removal of the bracket, but if there was nothing, if a proper inspection disclosed nothing around the bracket to indicate a deterioration of the wood, they bought this car, I think, from a reputable manufacturer, and if the wood appeared sound, I think myself-gentlemen of the jury, they were not obliged in the matter of inspection to remove the bracket.”
    Plaintiff having recovered a judgment of $1,800, defendant made a motion for a new trial, which was denied.
    The case is now in this court for review upon the following questions, as stated by defendant:
    “ (1) There should have been a direction for defendant on the close of plaintiff’s evidence.
    “(2) There should have been a direction for defendant on all the evidence.
    “(3) There was error in the court’s refusal to receive the testimony of Savage as to the purpose the handhold was intended and designed to serve, and his refusal to charge as requested on this point, and his charge as given.

      “ (4) There was error in the court’s refusal to charge as requested that the mere fact the handhold pulled loose and that the accident happened in this case is no evidence of negligence.
    “ (5) There was error in the overruling of defendant’s motion for a new trial, and in the reasons of the judge given therefor.”
   Brooke, J.

(after stating the facts). 1, 2. Referring to the motion, for a directed verdict, we need say no more at this point than that in our opinion the case presented on the part of the plaintiff was clearly one for the jury, under proper instructions.

3. Did the court err in refusing to receive testimony offered on behalf of defendant as to the purpose the handhold was intended to serve, and charging in respect thereto as he did ? We think not. No testimony offered upon that question could have added to the knowledge already in the possession of each of the jurors. The use of the appliance is absolutely obvious. It is intended primarily as an aid to passengers in boarding and alighting from cars, but, when cars are crowded, it is frequently used by passengers to enable them to maintain themselves in a position upon the car which without its use would be impossible. It is intended for use by all who are invited to become passengers upon the cars of defendant. As, in its invitation to the public, no discrimination is or can be made by defendant in favor of those light in weight or against those who are heavy, it follows that defendant’s equipment must be such as to reasonably meet the demands of all. The handhold is frequently subjected to severe strain. Appliances .of this character, devoted to such uses, impose upon those who furnish them the duty of maintaining a very high factor of safety. The infrequency of such accidents as the one which caused the plaintiff’s injury would indicate that both manufacturer and operator recognize this principle. Common experience teaches every one the character of the use to which the handhold is put. The defendant cannot be permitted to say that it was not designed to be used in a manner which it daily permits and invites. It was not error to exclude the testimony offered, nor to charge the jury in accordance with the views here indicated.

4, 5. We are of opinion that to have given this request to charge without qualification would have amounted to error under our decisions. . The plaintiff’s case was predicated, not only upon the fact that the handhold pulled out and the accident happened, but upon evidence that the wood underneath the lugs was decayed to such an extent that the screws drew out, and upon further evidence that the appearance of the wood immediately outside the lugs was such as might reasonably lead a careful and prudent inspector to suspect the existence of decay in the timber. Such evidence, coupled with the failure of the appliance, we think, warranted the court in submitting the question to the jury, who, in turn, might draw an inference of negligence on the part of defendant from the failure of the handhold and the happening of the accident under the circumstances disclosed by the testimony. Upon this point the following Michigan cases will be found instructive: Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33); Stoody v. Railway Co., 124 Mich. 420 (83 N. W. 26); La Fernier v. Wrecking Co., 129 Mich. 596 (89 N. W. 353); Howell v. Railway Co., 136 Mich. 432 (99 N. W. 406); Sewell v. Railway, 158 Mich. 407 (123 N. W. 2); Niedzinski v. Electric Co., 160 Mich. 517 (125 N. W. 409); Mirabile v. Simon J. Murphy Co., 169 Mich. 522 (135 N. W. 299).

We are of opinion that the instructions of the court with reference to the duty of inspection were proper. It is obvious that the handhold is, so far aB the safety of the passenger is concerned, one of the most vital parts of the car. We may say of defendant here, as was said of defendants in the case of Scott v. Athletic Ass’n, 152 Mich. 684 (116 N. W. 624, 17 L. R. A. [N. S.] 234, 125 Am. St. Rep. 423, 15 Am. & Eng. Ann. Cas. 515):

“ They were not insurers of safety, they did not contract that there were no unknown defects, not discoverable by the use of reasonable means; but, having constructed the stand, they did contract that, except for such defects, it was safe.”

In the case of Texas, etc., R. Co. v. Allen, 114 Fed. 177 (52 C. C. A. 133), which upon the facts much resem.bles the case at bar except that there an employe instead of a passenger was injured, the court of appeals for the fifth circuit approved of the following definition of the word ‘ ‘ inspection: ”

e Inspection,’ gentlemen, as used in the court’s charge, is an inquiry, by actual observation, into the state, efficiency, safety, and quality of the thing inspected. Inspection of the appliances and instrumentalities in use by a railway company should not rest alone upon the vision, because there are many defects, the existence of which could be ascertained by reasonable and ordinary tests which involve the exercise of senses other than the sense of vision. I should say the railway company would be liable for those defects in its appliances and instrumentalities which, in the course of inspection, could be perceived —that is, capable of coming under the cognizance of any one or more of the senses of man in the exercise of ordinary care. Inspection not only involves looking at cars and appliances, but as well all those tests which would ordinarily be used to ascertain the condition of cars and appliances that a reasonably prudent man would use in the exercise of such an undertaking.”

The charge, as a whole, we think, presented the question of defendant’s negligence fairly. No error is discovered in the record. The judgment is affirmed.

Moore, O. J., and Steere, MoAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


author: Stone, J.

text:
      In re STEVENS’ ESTATE. BEDELL v. CLARK.
    1. Estates of Decedents — Executors and Administrators — Ancillary Administration — Domicile—Final Account.
    Upon the hearing of the final account of executors appointed in ancillary proceedings after the probate of a will of decedent in Florida, the question of decedent’s domicile is not at issue.
    3.Same — Statutes—Wills.
    3 Comp. Laws, § 9384, recognizing a rule of comity, requires the court, after taking care of domestic claims, to distribute the estate in pursuance of the terms of testator’s will.
    3. Same — Probate Courts.
    Powers of executors are limited to the State or country where administration is in progress, the principal and ancillary administration being independent of each other: but the court, having supervision of an ancillary executor, may, in its dis-i cretion, distribute the estate to the resident heirs, or remit 1 the same to the State of the principal administration for dis-1 tribution.
    4. Same — Conflict of Laws — Accounting.
    The place for final accounting and settlement is in the forum of original administration.

    5. Same — Wills—Devises—Construction.
    The construction to be placed upon the will, if any question arises, is to be left with the courts of testator’s domicile, in which probate is pending.
    6. Same — Estoppel—Pleading.
    The executors of an estate are not estopped from asking that the funds be transmitted to the principal forum by reason of : a prayer in their final accounting of ancillary proceedings ; that the court apportion and distribute the estate to the per- ' sons entitled thereto.
    7. Same.
    The court, in the exercise of its discretion, properly ordered the . property of the estate transmitted to Florida to await the outcome of litigation there pending in relation to the construction of decedent’s will, which provided for the payment of debts, and devised a life estate to one of the beneficiaries, in a portion of the real property in the State of Florida, and in certain other property.
    Error to Eaton; Smith, J.
    Submitted June 5, 1912.
    (Docket No. 20.)
    Decided July 22, 1912.
    Rehearing denied October 7, 1912.
    Edwin Clark and Emerson Bedell presented to the probate court for the county of Eaton their final account as executors of the estate of Ann C. Stevens, deceased. From an order distributing a portion of the estate, Anna Bedell and Mellie Bedell appealed to the circuit court: said executors presented a cross'-appeal. The order of the probate court being reversed as to the distribution of part of the estate, contestants appeal.
    Affirmed.

      L. B. Gardner and O. J. Hood, for appellants.

      George Huggett (Landis & Fish, of counsel), for appellees.

       The question of the conflict of laws as to construction of wills is treated in a note in 3 L. R. A. (N. S.) 443.

   Stone, J.

This case is here upon questions arising in the settlement of. the estate of Ann O. Stevens, deceased. The findings of the circuit judge so clearly state the questions involved that we quote therefrom, as follows:

“Ann C. Stevens died on the 33d day of April, 1908, at Lake Helen, Volusia county, Florida. She died, leaving a last will and testament, which was in her own handwriting and in which Emerson Bedell and Edwin Clark were named as coexecutors. At the time of her death, her domicile was in Volusia county, Florida, and she was seised and possessed of both real and personal property. A part of the personal property consisted of notes against citizens of the State of Michigan, some of which were secured by mortgages on Michigan real estate.
“ By her last will and testament, she made numerous specific bequests and devises. Among these bequests were the following:
“ ‘ I give and bequeath to my brother, Emerson Bedell, my house and lot in Lake Helen, Florida, and all the mill stock I hold there, and all and any other land or lots or property of any form at the time of my death, during his lifetime; then I devise it to go to my heirs, viz., Alice and Ella Powell, Mellie and Anna Bedell, for him to dispose of to them in whatever way that he may deem best for them.’
“ This bequest, as I understand the matter, is the only one over which there is any contention.
“ Emerson Bedell and Edwin Clark qualified in the State of Florida as coexecutors, and the original will was probated in Volusia county, Florida. Afterwards ancillary administration was taken out in the State of Michigan, based on a certified copy of the probate of the will in Yolusia county, Florida. Ancillary letters from the court in Michigan were issued to the same coexecutors. Final accounts were filed under the ancillary administration in the probate court of Eaton county, Michigan, and the final order of distribution was made by the judge of probate, and from two paragraphs of said final decree appeal has been taken to this court.
“The probate judge for Eaton county, after hearing the final account, determined that there was in the hands of the executors under the ancillary administration the sum of $8,970.74.
“Among other things, the probate court made the following order:
It is further ordered that the sum of $4,124.79 in the hands of the executors, derived from personal property held by the deceased in the State of Florida at the time of her death, be paid by the said executors to the executors appointed by the probate court in the State of Florida, and that said sum, less inheritance tax thereon this day determined, be transferred to the principal administration in the State of Florida, there to be held and distributed under the terms of the will of said deceased.’
“ From this portion of the order of the probate court, Mellie and Anna Bedell appealed to this court.
‘ ‘ The probate court made a further order, as follows:
“1 It is further ordered that the balance on hand, amounting to $4,845.95, be paid to Alice Powell, Ella Powell, and Mellie Bedell and Anna Bedell, in equal proportions — one-fourth, or the sum of $1,211.48 to each.’
"From this last order, Emerson Bedell and Edwin Clark, as coexecutors of the last will and testament of Ann C. Stevens, deceased, entered their cross-appeal to this court. * * *
"It is my judgment that in a case like this case, as shown by the proofs, if not in all cases, that the ancillary administration has but one duty, and that is to collect the assets of the estate in the State where the ancillary proceedings are had, to pay any and all creditors, if any, in the State of the ancillary administration, and return whatever remains of the estate, after paying creditor claimants and the expense of ancillary administration, to the principal or domiciliary administration, to be disposed of and distributed by the courts of that administration.
" If this position is well taken, it follows, and it is my opinion, that all questions pertaining to the construction or interpretation of the will in question should be left to the courts of the State of Florida, and for that reason I express no opinion on this matter.
“ It follows that the order of the probate court for the county of Eaton, in directing the .return of the sum of $4,124.79 of the amount in the hands of the executors in the ancillary proceedings be paid over to the executors of the principal administration in Florida, is affirmed, and the appeal of Anna and Mellie Bedell from that portion of the order is dismissed. And that the order of the probate court for the county of-Eaton, in directing the distribution of the sum of $4,845.95 to Alice Powéll, Ella Powell, Mellie Bedell, and Anna Bedell in equal proportions, one-fourth, or the sum of $1,211.48, to each, is reversed, and the appeal of Emerson Bedell and Edwin Clark, executors of said estate, from that portion of the order is allowed; and that the probate court of Eaton county be directed to enter an order that said sum of $4,845.95 be paid over to the executors of the principal administration in the State of Florida.”

The judgment was entered in accordance with the findings.

Counsel for appellants say that by their assignments of error three questions are raised. It is their contention:

First. That the statute is mandatory; and upon request of the Michigan legatees for a distribution of the property here the court must distribute it.
Second. That the executors are now estopped from asking that the funds be transmitted to the Florida courts.
Third. That if the statute is not mandatory, and the executors are not estopped, then whether the funds here .shall be-distributed here, or transmitted to the Florida I ¡courts, is not a question of jurisdiction, but of sound ' judicial discretion.

At the outset we should have in mind the fact that this was an ancillary administration in this State, and that the trial court found as a fact that Ann O. Stevens died in the State of Florida, and that at the time of her death her domicile was in Yolusia county, Fla., upon which finding no error was assigned. It should also be borne in mind that her last will and testament was admitted to probate in that State, and that the principal or domiciliary administration is there. The contention that testatrix had her domicile in Ingham county, Mich., cannot be litigated in this ancillary proceeding.

1. Under the first claim of appellants, it is contended that, in view of the provisions of our statute, neither the probate court, nor the circuit court on appeal, had any authority or jurisdiction to order a transmission of any part of this estate to the domiciliary court of Florida; and that the entire estate must be distributed in this jurisdiction on the demand of any interested party.

Counsel have called attention to the early legislation in this State upon this subject; and they claim that the history of the legislation, since the Revised Statutes of 1838, shows a change in the law and practice. Counsel have quoted only section 22 of chapter 8, pt. 2, tit. 4, of the Revised Statutes of 1838. We think it well to quote both sections 21 and 22, which are as follows:

Section 21: ££ When administration shall be taken in this State, on the estate of any person who was an inhabitant of any other State or country, his estate found here after payment of his debts, shall be disposed of according to his last will, if he left any duly executed according to the laws of this State; and if there be no such will, his real estate shall descend according to the laws of this State, and his personal estate shall be distributed and disposed of according to the laws of the-country of which he was an inhabitant.”
Section 22: “Upon the settlement of such an estate, and after the payment of all debts for which the same is liable in this State, the residue of the personal estate, if any, may be distributed and disposed of in manner aforesaid, by the probate court in which the estate is settled; or it may be transmitted to the executor or administrator, if there be any, in the State or country where the deceased had his domicile, to be there disposed' of according to the law of the place, as the court, under the circumstances of the case, shallthink best.”-

By the Revised Statutes of 1846, chap. 68, § 24, the language was changed, and has ever since remained as now found in section 9284, 3 Comp. Laws, and reads as follows:

“When any will shall be allowed, as mentioned in the preceding section, the probate court shall grant letters testamentary, or letters of administration, with the will annexed; and such letters testamentary or letters of administration shall extend to all the estate of the testator in this State; and such estate, after payment of his just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue shall be disposed of as is provided by law in cases of estates in this State, belonging to persons who are inhabitants of any other State or country.”

We cannot agree with the contention of counsel for appellants that the law has in any material sense been changed by this last enactment, which has been in force so many years in this State.

The statute of 1838, consisting of the two sections above cited, constituted what might be termed a complete code for the settlement of estates in this State of persons who were residents of some other State or country, and covered both testate and intestate estates.

The statute of 1846, above quoted, deals with testate estates only — the admission of foreign wills. It appears by section'21, first above quoted, that “his estate found here after payment of his debts shall be disposed of according to his last will.” Our present statute provides:

“And such estate, after payment of his just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it.”

Here we have a recognition of the doctrine of comity between the States, and that the distribution of such estates must be according to the will of the party. This record distinctly shows that in their claim for appeal from the probate court appellants recognized the fact that the sum of $4,124.79, in the hands of the executors here, was derived from personal property held by said deceased in the State of Florida at the time of her death.

Under the section of the statute now in force, this court has held that the estate must be disposed of in accordance with the directions contained in the will. Ford v. Ford, 80 Mich. 42 (44 N. W. 1057).

We have examined the last-named case with care, because it is cited by counsel for appellants in support of their contention. We do not think it supports it; nor do we think that their position finds any support in Re Coming's Estate, 159 Mich. 474 (124 N. W. 514).

The practice of our probate courts is well expressed in Cheever’s Probate Law (3d Ed.), at page 343, where that author said:

“The power and authority of an executor or admistrator is limited to the State or country where it is granted, with but few exceptions. Where there is estate belonging to the deceased in another State, there may be ancillary administration granted in that State. The principal administration and ancillary administration are entirely independent of each other. All the claims established under the ancillary administration should be paid before any of the estate is transferred to the principal administration, and it is entirely within the discretion of the probate court granting ancillary administration to determine whether the residue of the estate shall be distributed among the heirs there, or remitted to the principal administration for distribution” — citing Mackey v. Coxe, 18 How. (U. S.) 100, and many other cases.

The place for final accounting and settlement is in the forum of original administration. This is the doctrine supported by a large number of authorities cited in 1 Chatterton’s Probate Law, under title “ Ancillary Administration,” section 1018, of the last edition.

It may be stated that under our present statute the practice has been uniform and in harmony with the law of comity existing between the States, or a State and any other country, in all cases where the will operates upon the property, leaving the construction to be placed upon such will, where any question arises upon that subject, to the domiciliary court.

2. The second proposition presented in behalf of appellants is that the executors are estopped from asking that the funds be transmitted to the Florida court. This we understand to be based upon the final account and report of the executors in the Michigan probate court. We cannot agree with counsel in this contention upon this subject. The mere fact that the executors asked for an order apportioning, assigning, and distributing the residue of the estate to the persons entitled thereto could not confer jurisdiction upon the court to go beyond its powers in the ancillary administration. It may be said that the court made a much broader order of distribution than was warranted under the law. That question is not before us, and such course would be no justification for making a further unwarranted order. We do not think that the doctrine of estoppel can be invoked upon this subject. The proof in this case warranting the transmission of this fund lies in the provisions of the will itself, in that it is subject to all debts of the estate, and that all the property of the deceased, of any kind, that she had in Florida at the time of her death was specifically devised and bequeathed to Emerson Bedell during his life. This appears upon the face of this will. The construction to be placed upon this will is a question to be settled in the State of Florida, and not here. In re Coming’s Estate, supra.

It appears in this record, by statement of appellants’ counsel, that a bill has been filed on the chancery side of the court in Florida to dispose of this very question. Certainly it is not here for disposition in this ancillary proceeding.

3. Appellants’ third proposition is that this is a question, not of jurisdiction, but of sound judicial discretion, even if the statute is not mandatory, as they contend. We think the correct rule is as follows:

"Where there are two administrators of a single estate, one in the place of the domicile of the testator or intestate and the other in a foreign jurisdiction, the question whether the courts of the latter will decree distribution of the assets collected under the ancillary administration, or remit them to the jurisdiction of the domicile, is not a question of jurisdiction, but of judicial discretion, depending upon the circumstances of the particular case.” Matter of Accounting of Hughes, 95 N. Y. 55.

See, also, Harvey v. Richard, 1 Mason (U. S.), 381, Fed. Cas. No. 6184. This was the rule of the United States court in Massachusetts, which was in harmony with that adopted by the State courts. It also became the rule of the courts in New York, as shown by Parsons v. Lyman., 20 N. Y. 103. This is a very lengthy and able case, reviewing the authorities, and it accords with the general rale. The material facts in the instant case are so similar in effect to those of Parsons v. Lyman that the latter cannot be distinguished therefrom in principle.

Matter of Accounting of Hughes, 95 N. Y. 55, deals with an intestate estate. There were no residuary legatees, as there are in this case, and no question about creditors. There was there no life estate at the domicile, or trust created; and, in fact, it will be seen that the court distinguished the case from that of Parsons v. Lyman,

In Dent’s Appeal, 22 Pa. 514, the facts were very different from the instant case. It illustrates the doctrine that we have already stated, that the matter should be left to the judicial discretion, dependent upon the circumstances of the particular case.

We conclude by saying that we think the circuit judge reached the correct conclusion, under all the circumstances of the case.

The judgment of the circuit court is affirmed, with costs of this court to be taxed against appellants.

Moore, C. J., and Steers, MoAlvay, Brooke, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


text:
    PHILPOTT v. KIRKPATRICK.
    1. Res Judicata — Estoppel—Divorce — Husband and Wife — Alienating Wife’s Affections — Case.
    Where plaintiff, in.an action for alienating the affections of his wife, had, before instituting suit, procured a divorce from his wife upon the ground of extreme cruelty, in which proceedings his testimony tended to show that other persons had interfered in his domestic affairs, and his wife had ceased to feel any affection towards himself, although adultery was not charged, he was not estopped from maintaining his action on the theory that his present attitude and claims were inconsistent with the position assumed by him in the divorce case; nor was the decree res judicata of his right against defendant.
    3. Husband and Wife — Estrangement as Defense to Action for Alienating Affections — Marriage.
    Though an estrangement may have existed between husband and wife, defendant was not justified in broadening the breach between them and engaging the affections of the wife, and he was liable for such, damages as his wrongful action produced, under all the circumstances.
    3. Evidence — Requests to Charge — Trial.
    A request to charge that the testimony of one of plaintiff’s witnesses was open to suspicion if it was not communicated to plaintiff until a long time after, was improper and the court rightly refused to give it, since the effect would have been to single out and lay stress upon that particular evidence.
    Error to Lenawee; O’Mealey, J.
    Submitted June 10, 1912.
    (Docket No. 46.)
    Decided July 22, 1912.
    Case by Jay G. Philpott against Clifford Kirkpatrick for alienating the affections of plaintiff’s wife. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John A. Riley and J. N. Sampson, for appellant.

      John B. Mcllwain and Burton L. Hart, for appellee.
   Stone, J.

This is an action on the case brought by the plaintiff to recover damages for the alienation of his wife’s affections. The first two counts of the declaration charged adultery, and the third count charged that the defendant—

“On, to wit, the 1st day of January, 1907, and on divers other days and times between that date and the 21st day of May, 1909, at, to wit, the city of Adrian and in various other places, wrongfully and wickedly carried on a secret correspondence with the said Gertrude Philpott, plaintiff’s wife, and held various clandestine meetings with her at his office, and also at the home of the plaintiff during his absence, and made secret and clandestine trips with her to Chicago, in the State of Illinois, and to Detroit, in the State of Michigan, and by various other arts and devices the said defendant did wrongfully and wickedly alienate and destroy the affection of the said Gertrude Philpott for the plaintiff.”

When the case was called for trial, and before the trial began, the plaintiff withdrew the first two counts of the declaration, and went to trial on the third count.

The plaintiff had been a resident ”of Adrian since about 1900, and was there engaged in the saloon business. He was married to his wife, Gertrude, June 6, 1890, at Sarnia, Ontario; he then being about 23 and his wife 20 years of age. She had been previously married and divorced. The plaintiff had been successful in business, and he owned and maintained a valuable home in the outskirts of the city of Adrian, where he lived with his wife. The defendant is a practicing physician at Adrian, having graduated at the University of Michigan in 1881. Upon the trial of the case, the plaintiff’s evidence tended to show that the first intimacy complained of was in 1908. About that time plaintiff had purchased a business at Port Huron,and was away fromhomea part of the time. It was the claim of the plaintiff that the intimacy between defendant and plaintiff’s wife continued during the fall of 1908 and the winter of 1908-09. Conditions finally became such that in the month of March, 1909, the plaintiff filed a bill for divorce, alleging, among other things, that he and his wife had lived together and cohabited from the time of their marriage continuously until the 2d day of July, 1906. The bill of complaint, as printed in the record, contains the following:

“And the said defendant disregarded the solemnity of her marriage vow, and has treated your orator with extreme cruelty, and wilfully deserted your orator on or about the said 2d day of July, 1906, since which date she has persistently refused to cohabit with your orator; * * * that said defendant and your orator have lived in the same home until within a few weeks, but for upward of two years she has refused to share your orator’s bed with him.”

As originally filed, the bill did not contain the words, “and has treated your orator with extreme cruelty,” and these words were inserted in the bill at the time of the hearing of the divorce case. The divorce case was heard before the same circuit judge that tried the instant case. The record discloses that at the close of the testimony in the divorce case the circuit judge made the following announcement :

“ I think you may take a decree upon extreme cruelty and desertion.”

It appears, however, that the decree, which bears date May 21, 1909, was granted upon the ground of extreme cruelty.

Upon the hearing of the divorce case, the plaintiff was a witness in his own behalf, and, among other things., testified as follows:

“Q. Did you live together as man and wife from the time you were married up to what date, or approximately what date ?
“A. Why, I think about three years this coming July.
“Q. Since that time have you lived together as husband and wife?
“A. No, sir.
“Q. And whose fault was it that you didn’t live together as husband and wife after that ?
“A. I think it was her fault.
“Q. Well, do you know ?
“A. Yes, sir.
“Q. What excuse did she give for refusing to live together as husband and wife ?
“A. She said she didn’t care for me any more.
“Q. And what did she do with reference to having a bolt on her sleeping room, a lock ?
“A. She had her sleeping room and I had mine. She locked her door, and refused to let me come to her room.
“Q. And have you maintained family relations with her at all since 1906 ?
“A. No, sir.
“Q. Mr. Philpott, what reason did she give you at the time she discontinued the family relations with you ?
“A. Why, she said she didn’t care for me any more.
“Q. Well, do you know why ?
“A. I think she was interested in other parties.
“Q. Well, tell the court in a general way what made you think that.
“A. Why, her treatment; she never wanted me at home.
“Q. What, if anything, of her going and coming ?
“A. She told me she would go and come at her own free will. She didn’t want to allow me a key to my own house, and she entertained anybody she saw fit in her own house. She made several trips to Detroit and Chicago, to my knowledge, without saying anything to me about it, and without my permission, until she wrote me that she was there, that she wanted more money all the time, and was having a good time. * * * I have a business at Port Huron as well as here, and have devoted my time between that place and here. I have been away from home nearly half of the time the last six years.
“Q. Now, was her indisposition to maintain the marriage relation due to any extent to any physical ailment f
“A. Not to my knowledge.
etQ. Did she ever give that as an excuse ?
“A. No, sir.
“Q. Since she ceased to maintain the marriage relation, you have lived here in the home until when ?
“A. Three or four months ago.
“Q. And during the last two or three or four years what has been her treatment of you generally in the home and elsewhere ?
“A. Why, she hasn’t treated me at all. She hasn’t even talked with me. I would sit in one part of the house and she in another. It wasn’t very pleasant for me.”

The defendant married Mrs.. Philpott on June 13,1910, and this suit was commenced on June 25, 1910, and the trial began April 4, 1911. Upon the trial of the case the defendant, having given notice thereof, claimed that, by reason of the divorce proceedings and the claim of the plaintiff therein, he was estopped from maintaining this action. The record and testimony in the divorce case were offered in evidence by the defendant and received. The plaintiff was examined upon the subject of his testimony in the divorce case, and testified, in substance, that it was his best judgment that it was not as far back as 1906 when he ceased family relations with his wife. He sought to modify and explain his testimony in the divorce case, and claimed that, when he testified “and she entertained anybody she saw fit in her own house,” the person he referred to at that time'was the defendant in this suit, and that where the testimony speaks of three or four years he claimed it should be months instead of years, and he testified that at the time of giving his evidence in the divorce case he was very nervous and annoyed a great deal because of the suit. When the evidence in the case was closed, defendant’s counsel moved the court to direct a verdict for the defendant, for the reason that the decree in the divorce case was a bar to the action.

As we have said, the defendant gave notice under the plea of the general issue that he would show:

‘ ‘ That the facts alleged in the plaintiff’s bill of complaint, and sworn to by him on said hearing, are entirely contradictory of, and inconsistent with, the allegations of plaintiff’s declaration in this case, will further show and insist that said bill of complaint, the testimony of said plaintiff in said hearing, together with the decree aforesaid therein, estopped the plaintiff from now testifying the truth of the facts alleged in his declaration, and that said bill of complaint, the testimony of plaintiff, and said decree and the records and files in said case constitute and are a bar to this action, and a bar to any claim or any right of action alleged by plaintiff in his declaration in this cause.”

The motion was overruled, and defendant’s counsel excepted.

A witness of the plaintiff, Emma Alexander, had testified that upon one occasion, while working at the Philpott home, she saw Mrs. Philpott sitting on the defendant’s lap one evening; that she saw this through a window, and on another occasion that she saw Mrs. Philpott sitting on a little ottoman, while she and the defendant were alone, and the defendant was sitting in an easy chair and Mrs. Philpott seemed to be resting her arms on the defendant’s legs, and they were talking. The testimony shows that after that the witness had frequent opportunities to communicate these facts to the plaintiff while in the employ of the plaintiff, but she did not do it until after her dismissal from his service. The defendant requested the court to charge the jury upon the subject as follows:

“You are instructed that if you find from the evidence that the misconduct testified to by Miss Alexander, the colored servant, was not promptly communicated to the plaintiff, the injured party, and was not disclosed to him until after her dismissal from the services, or after a long interval, her testimony labors under great suspicion.”

This request was refused. The case was submitted to the jury, and the trial resulted in a verdict and judgment for the plaintiff. The defendant has brought the case here by writ of error. We shall consider those assignments of error only which have been discussed by the appellant.

The errors relied upon by the appellant are, by his counsel, grouped under the following heads:

First. Errors Of the court in admitting certain testimony.
Second. Errors of the court in excluding certain testimony.
Third. Error of the court in refusing to direct a verdict for the defendant.
Fourth. Error of the court in refusing a certain request to charge.

1, 2. We have read the record, and have carefully examined the rulings of the court upon the questions raised by the first and second heads in appellant’s brief, and are of opinion that there was no reversible error in the rulings of the court. As those matters were not urged at the oral argument, we shall not furthér refer to them.

3. This brings us to the ruling of the court in refusing to direct a verdict on motion of the defendant at the close of the testimony, and raises the most meritorious question in the case, and the one on which counsel for both parties based their oral arguments at the hearing. The position of counsel for appellant is, as we understand it, that the claim made by the plaintiff in the instant case is so directly contradictory of the facts established in his divorce suit that both cases cannot possibly be true, and they rely upon the case of Gleason v. Knapp, 56 Mich. 291 (22 N. W. 865, 56 Am. Rep. 388). The facts in that case were very peculiar, and the case should be examined with care in order to ascertain really what was decided. In that case the plaintiff sued defendant for criminal conversation with his wife,- and recovered in the circuit court. There the plaintiff and his former wife (who had at the time of the trial been divorced, and she had married the defendant) were married in 1874. In September, 1880, the plaintiff had hired out his wife’s services to defendant as housekeeper, and made an arrangement for his own services on defendant’s farm. After a time plaintiff and defendant had some difficulty. Plaintiff’s wife refused to go away with him from Knapp’s place, but plaintiff left on December 24, 1880. He testified that on the night of January 1, 1881, he returned to Knapp’s home and there saw, through a window, what he claimed was conduct from which adultery was to be inferred. On or about January 10, 1881, plaintiff again went to Knapp’s, and he and his wife lodged together. She, however, still remained at Knapp’s, and refused to go with the plaintiff when finally requested on March 16, 1881. On January 17, 1881, the wife swore to her bill of divorce against the plaintiff, alleging acts of extreme cruelty in December, 1880, as well as failure to support. To this bill Gleason put in no answer, and on proofs being taken a decree was granted in the wife’s favor on February 13, 1882. Plaintiff, on February 16, 1881, filed a bill for divorce, asking a decree on the ground of his wife’s adultery, and averring as the only definite act the one which he claims to have witnessed on January 1, 1881; but in that bill he swore that he had not voluntarily cohabited with her since. She entered appearance and called for a copy of the bill. No further proceedings appear in the case. Plaintiff’s testimony in the suit for criminal conversation was positive that what he saw that night did not lead him to complain of his wife’s adultery, or prevent his desire to have their domestic relations continue, and did not prevent subsequent cohabitation. Upon this peculiar state of facts Justice Campbell said:

‘'The wife’s divorce proceedings, which began in January, 1881, being followed by a decree which established that she had a sufficient cause of grievance at the earliest date when plaintiff attempted to show any grievance, must, be regarded as a bar to any cause of action for that grievance, if it existed. If plaintiff had such a cause of action as he now asserts, it would not only have been admissible in evidence in that divorce suit, but it would have been an absolute and perfect defense to it. The suggestion of the circuit judge that the jury might, if they saw fit, infer that that very divorce suit was the outcome of defendant’s misconduct, cannot be allowed any force since defendant’s (plaintiff’s, here) failure to defend on that ground, when, that defense was open to him, and, according to his claim now, was known to him, left it as completely cut off as any other; and the decree is legally conclusive against him that no such facts exist. The facts sworn to by himself in this case are entirely contradictory to his sworn bill concerning the important allegation that he never eohabited with his wife after January 1, 1881, and his claim that he persisted in desiring her return after both bills were filed is somewhat extraordinary-in view of this action. * * * There is nothing on plaintiff’s own showing which, in our view, left him anything to go to the jury upon, as the divorce proceedings were introduced by himself, and without showing them he could not have been offered as a witness at all. * * * The defense made by his own silence in the divorce suit is as full a bar as could be made, and, in view of it, the case is a very singular one to be brought in a court of justice after the divorce had become absolute and not appealed from.”

It will be noted that in the above case the .plaintiff introduced the divorce proceedings himself.

Gleason v. Knapp, supra, was commented upon by this court in Knickerbocker v. Worthing, 138 Mich. 224 (101 N. W. 540). There are two opinions in that case. There had been a divorce case — Knickerbocker v. Knickerbocker, 135 Mich. 102 (97 N. W. 117) — which was pending on appeal in this court when the suit for alienation of affections was on trial. Chief Justice Moore there said:

“Counsel says plaintiff failed to set up this charge in his amended answer in the divorce case, and is now debarred from charging the defendant with said offense. It is true the defendant in that case did not say in so many words that his wife and Mr. Worthing had committed adultery, but he, in effect, so charged them. This court so regarded the allegations of his answer, and passed upon that question in disposing of the case. Counsel also says that because the court passed upon that phase of the case, and found the charge of adultery was not made out in the divorce case, the decree in that case is conclusive upon that question, citing as to both of these claims Gleason v. Knapp, 56 Mich. 291 [22 N. W. 865, 56 Am. Rep. 388]. There is language in the opinion in that case which tends to justify the claim of counsel, but, when the case is considered carefully, it will be found to be distinguishable from this one. In the case of Gleason’s wife against him no answer was put in. In the case of Gleason against his wife nothing was done by him except to file his bill of complaint. In the case brought by him against Knapp the court found the facts sworn to by him were entirely contradictory to his sworn bill against his wife. The question involved in the case of Knickerbocker v. Knickerbocker, was whether the wife was entitled to a divorce upon the ground of cruelty. We held that she was. The question involved here is whether the affections of Mrs. Knickerbocker were alienated by the unlawful acts of the defendant. We think the case comes within Corry v. Lackey, 3.05 Mich. 363 [63 N. W. 418].”

Justice Montgomery, in the opinion which became the majority opinion in the case, said:

“The facts are sufficiently stated in the opinion of the Chief Justice. * * * I also agree that the plaintiff’s action is not barred by the failure to charge adultery in terms in the answer interposed in the chancery case. There is no doubt that a bona fide defense was made in that case. It would be going beyond anything held in Gleason v. Knapp, 56 Mich. 291 [22 N. W. 865, 56 Am. Rep. 388], relied upon by defendant’s counsel, and going beyond the requirements of public policy, to hold that because the husband (if such were the fact) chose to make his defense without introducing that element he is barred from maintaining this action against another. Much less can it be said that the decision of this court in the divorce case, rendered long after the trial of the present case at the circuit, such decision being upon a question of fact, can or should have the slightest effect upon the verdict of the jury in the present case, ”

In Corry v. Lackey, supra, this court held that a decree of divorce granted to a wife on the ground of extreme cruelty is not res judicata of that question of fact, so as to prevent the hüsband from contesting its truth in his suit by a third person against him to recover for necessaries furnished the wife pending the divorce proceeding. The court said:

“As between the parties to that litigation, the finding of fact is final and conclusive, but between the plaintiff and defendant it is not ”— citing cases.

The Gleason Case has been much commented upon by the courts of other States. In Hamilton v. McNeill, 150 Iowa, 470 (129 N. W. 480), the majority of the court cite the case with approval,, but the decision there turned upon the peculiar statute of Iowa, which provided that “ when a divorce is decreed the guilty party forfeits all rights acquired by the marriage.” And it was held that such guilty party could not maintain an action for alienated affections. That court, however, points out the distinction that may exist between an action for criminal conversation, as was the Gleason Case, and a suit for alienation of affections by enticing, etc., as was the case it was considering, and as is the instant case. Deemer, J., dissented in a very strong opinion, and seems to be of the opinion that Corry v. Lackey, supra, overruled the Gleason Case, but suggests the point that the Gleason Case was not disposed of on the ground of public policy, but upon some theory of estoppel.. In Luick v. Arends, 21 N. D. 614 (132 N. W. 353), the Gleason Case is again referred to and distinguished. Our attention has been called to numerous cases in other courts upon the general doctrine of estoppel.

It is the claim of the plaintiff here that the Gleason Case was decided upon its own peculiar facts, which are entirely different from the facts in this case. Counsel point out the fact that in the divorce case of Philpott v. Philpott, plaintiff (complainant there), filed his bill for divorce on the ground of desertion and cruelty. A decree of divorce was rendered on the ground of cruelty.

It is said that plaintiff and his wife had to some extent become estranged, but the claim is that this estrangement existed prior to the alleged interference of the defendant. It is conceded that this would seem to be indicated by some of the testimony given by the plaintiff in the divorce case, but it is claimed he fully explained that, testifying that the estrangement between them did not cover so long a period as he is reported to have testified to in the divorce case. These facts do appear that up to the time the bill was filed plaintiff and his wife had been living together in the same household, eating at the same table, and he supporting her; but it appears that they had not cohabited together as husband and wife for some time. In the divorce case he testified as one of the reasons for their estrangement that “I think she was interested in other parties,” but the name of the other party was not given. This action is now brought' against that other party for alienating the affections of his wife. It is the claim of the plaintiff that there is absolutely no inconsistency in his position, that even though his testimony be accepted as binding upon him, as given in the divorce proceeding, he and his wife had not cohabited together for some time while they were living together in the ‘ same house, eating at the same table, he was supporting and furnishing her a living, and it is urged that, if the defendant had kept away as he ought to have done, there might have been a reconciliation between them.

The law seems to be well settled that, even though there be an estrangement between husband and wife, this does not give license to an outsider to invade that home and broaden the breach between them, and, if he does so, he is liable to the aggrieved party for all the injury done.

We are of opinion that the Gleason Case can be distinguished, and that there is not such inconsistency between the position of the complainant in the divorce case and the plaintiff in this case as to amount to an estoppel, or a bar to this action. The questions adjudicated in the divorce case and the case at bar are entirely different. In the divorce case the sole question was whether she was guilty of cruelty to the plaintiff so as to justify the court in granting a divorce. In the case at bar the question is, Did the defendant invade the home of plaintiff and alienate the affections of his wife? We think there is force in the contention of the plaintiff that defendant’s very act of' invasion of that home was, or may have been, the cause of the wife’s conduct towards her husband, or, at least, that it was partially the cause, and prevented a reconciliation. The husband’s right and chances to reconciliation, after separation of husband and wife, cannot wrongfully be interfered with, or prevented by a third person without giving the, husband a right of action for alienation of his wife’s affections. The previous terms upon which the husband and wife may have been living, no matter how inharmonious they may have been, furnished no justification for a stranger entering the hoine and carrying away one or the other, or alienating the affections of husband or wife. Death of the wife even, whose affections were alienated, does not bar or abate action. Luick v. Arends, supra. We are of. opinion that a careful reading of the Gleason Case will show that the instant case is entirely different in its facts.

The plaintiff here, who was the complainant in the divorce case, complained of his wife and her conduct toward him, and also complained of the interference of the defendant in his testimony, although he was not named in fact. In other words, we cannot better express it than to say that the positions of the complainant in the divorce case and that of the plaintiff in this case are not so inconsistent ag to prevent a recovery in this case. It should be borne in mind that the decree in favor of the complainant in the divorce case was because of the wife’s extreme cruelty. The decree places it upon no other grounds. As we have shown, the decree was signed on the very day the divorce was granted by the circuit judge, who also heard the instant case, and there was nothing in the record to show that there was any mistake in the decree. It does appear in the record that the plaintiff desired his counsel to make the defendant a co-respondent in the divorce case. This, however, was not done. But it tends to show that the then complainant referred to the defendant when he answered “ I think she was interested in other parties.” In 16 Cyc. p. 724, it is said:

“The doctrine (of estoppel in pais) is derived from courts of equity, and is interposed to prevent injustice and to guard against fraud by denying to a person the right to repudiate his acts, admissions, or representations, when they have been relied on by persons to whom they were directed, and whose conduct they were intended to and did influence. It will be allowed to shut out the truth only when necessary to do justice, and never where it would itself operate as a fraud or work injustice. The estoppel is a protective, and not an offensive, weapon, and its operation should be limited to saving harmless or making whole the person in whose favor it arises, and should not be made an instrument of gain or profit” — citing many cases.

It was well said by this court in McRae v. Bennett, 118 Mich., at page 51 (71 N. W. 531):

“ The substratum of estoppel is the fraudulent character of the representation, and its effect in wronging the person who relies upon the estoppel. But here it is proposed to use it as a sword and to perpetrate a wrong upon the plaintiff,” etc.

We do not think the doctrine of estoppel in pleading, or estoppel in pais can apply here, or that the court erred in submitting the case to the jury.

4. The sufficiency of the evidence to sustain the verdict and the judgment is not challenged by the appellant. The only error assigned relating to the charge is that which we have set forth above, relating to the testimony of Emma Alexander. We do not think the court erred in refusing to give this request to charge. It would have been singling out the testimony of one witness, and laying special stress upon it. Such practice has met with the disapproval of this court. Springett v. Colerick, 67 Mich. 362 ( 34 N. W. 683); Webster v. Sibley, 72 Mich. 630 ( 40 N. W. 772); Seitz v. Starks, 144 Mich. 448 (108 N. W. 354).

We have considered all the. points urged by appellant, and we find no reversible error in the record. The judgment of the circuit'court is affirmed.

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