text:
    OLIVER v. DETROIT TAXICAB CO.
    1. Damases — Expert Witnesses — Inconsistent Testimony — Question for Jury.
    In an action for personal injuries alleged to have been caused by plaintiff’s being struck by defendant’s taxicab, where plaintiff’s expert witnesses agreed that she was suffering fronfi nervous troubles originating from external violence, attributed by them to the shock, blow, or fall she received at the time of the accident, it cannot be said, as a matter of law, that the damages awarded were doubled or excessive because one expert diagnosed the trouble as “traumatic neuritis” and the other as “traumatic neurasthenia,” each expressing the opinion that she might be afflicted to a degree with the related nerve disease or disorder which the other designated.
    2. Trial — Credibility op Witnesses — Question por Jury.
    The credibility of witnesses on both sides, and the weight to be given to inconsistencies or conflict in the testimony of witnesses are for the jury.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted January 14, 1920.
    (Docket No. 108.)
    Decided April 10, 1920.
    Case by Cora B. Oliver against the Detroit Taxicab & Transfer Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      A. W. Sempliner, for appellant.

      James A. Murtha and John H. Dohrmmi, for appellee.
   Steere, J.

Plaintiff had judgment in the circuit court of Wayne county for $3,500 awarded by verdict of a jury as compensation for personal injuries sustained when struck by one of defendant’s taxicabs while she was standing on the sidewalk waiting for a street car. Plaintiff’s evidence showed she was at the time of the accident, on January 27, 1917, a woman over 50 years of age, in good health, living at 673 Second avenue with and caring for the home of her brother, Henry Sibley, then a business man in Detroit. She was an educated woman of business experience and attainments, had been employed in mercantile credit and research work, and was at that time preparing a book for publication on some subject of domestic efficiency, a line in which she had been engaged more or less for several years. On the day of the accident she was down town in the forenoon making some purchases and shortly before noon went to the comer of Griswold street and Grand River avenue to take a car home. Seeing a car for the direction desired coming, she looked along the street and noticed no approaching vehicles near on that side except two slowly moving junk wagons and stepped into the street to signal the car and as she watched saw a rapidly approaching auto, which she later recognized as a taxicab, then at the comer of Grand River and Woodward avenue, a block away. She then stepped back and stood on the curb to let it pass, as it would before the street car stopped. The taxi, driven at a high speed, passed the street ear and then the junk wagons near by her, turning in as it did so towards the curb on which she was standing. Seéing it was coming into the curb, she started to step farther back on the walk when some part of the taxi struck her right foot just as she was raising it in stepping back, in such manner that she was thrown heavily backward with such force as to become unconscious, from which blow and fall she received serious and permanent injuries, as claimed. She was able to give some one her brother’s name, but testified she had no recollection of anything which happened after he arrived until she found herself at home and in bed that night, and was conscious of little which occurred for several days. She was confined to her bed for about a week and was able to get around in about three weeks. She testified her chief suffering was from severe backaches, pains at the back of her brain and down her neck, that she was unable to hold her head in a fixed position for any length of time, and describes her condition in part as follows:

“I could neither read or write; the first that I became convinced that there was anything particularly serious was when I undertook to take up- my work and go over some notes I had made and write a letter, I found I could not, I do not know just how to express it but the pain in the back of my neck and back of my .head was so severe that it was impossible for me to work five minutes consecutively. The pain was just from the base of my brain down below the curve of my neck, there was a lump- about that large, about the size of a hen’s egg, the lump has not entirely disappeared now. Dr. Spitler treated me about nine months and was able to reduce it. I was unable to walk in any direction I wanted to go without slueing •off, to the left; had not proper control of my right leg. * * * I am now better than I was, but I have never known a moment’s freedom from pain since I was injured, I have never been able to go to bed at night and lie in a normal position because the pain in my back prevents it.”

Defendant’s counsel raised no issue upon the manner in which the accident occurred and says in his Tbrief:

“The question of the liability of the defendant is not in issue. The only question was the nature of the injuries and the extent of the liability for which plaintiff obtained judgment for $3,500. * * * The •question involved here, as we see it, is, Cap a plaintiff go to a jury upon two inconsistent and conflicting theories as to the injuries she has sustained, both theories sworn to on her behalf, and receive from the jury damages for both?”

Aside from plaintiff’s testimony, and some undisputed formal proof identifying the taxicab, the testimony on both sides was by authorized and legally recognized practitioners in the art of healing.

We agree with a comment of the trial judge that the case was “nicely presented, and apparently presented by counsel on both sides with a great degree of earnestness and fairness.” And it may be added that the acerbity in the case developing an opening for defendant’s counsel to emphasize, and urge, inconsistent and conflicting theories submitted to the jury on plaintiff’s evidence, was furnished by the “regular school of medicine” opinions as to the testimony of Dr. Spitler, an osteopathic practitioner, and osteopaths in general. Plaintiff was a believer in os-, teopathy and resorted to that method of cure for her accidental injuries. She early employed Dr. Spitler, who treated her for some months, and later while in the east was treated by other osteopaths. Five professional witnesses testified, four of whom were of the “regular school” of medicine and surgery. Dr. Spitler, the osteopath, and Dr. Ives, of the regular school, testified in behalf of plaintiff. Drs. Reed, Kennedy and Stevens, with whose views as to the Dr. Still school of healing Dr. Ives was in full accord, testified for defendant. Of the five Dr. Spitler only had treated plaintiff professionally, commencing after she was able to visit his office and continuing regularly for some months. He diagnosed her affliction as “traumatic neuritis,” testifying in part as follows:

“She came to me complaining of a very severe case of neuritis, affecting both the brachial plexus and the sciatics. The brachial plexus is, of course, the nerve supplying the arm and the hand. She gave me a history of having had a very severe accident some time. She gave me the history of being struck by a taxicab, thrown back on the sidewalk, struck very severely on the back. I found her suffering from neuritis, affecting the arms and leg especially. I think it was the right leg. * * * My treatment consisted of correcting the bony lesions that were present. That is variations due to the injury. The pelvis was badly rotated. I think it was to the right. Rotated on the sacrum, which set up' a lot of sciatic neuritis. Then there is a secondary condition to that showed above the primary and secondary curve in the upper — the dorsal and cervical region, which I attributed as the cause of the brachial neuritis, which affected the arm. When I use the terms I do, I have reference to the spinal column, including the cord, the vertebrae and the muscles, the tissue, the nerves radiated from the backbone or the spine. * * * My treatment consisted in applying osteopathic methods to the portions affected. The troubles yielded slightly under my treatment. When she left she had not entirely recovered. She had a great many of the nervous symptoms which in all probability she will carry for a long time. But much of the neuritis had been corrected. It was much better, but it was not all gone. Cases of neuritis are usually a rather slow process of treatment. Neuritis is not the same as neurasthenia. * * * Neuritis is an affection of the nerve trunk itself; of the sheath. There is a low grade inflammation in the sheath itself, while neurasthenia is a nervous affection and comes under the head of nervous diseases. Of course, a bad case of neuritis is. very, very irritating, and might possibly result in a case of neurasthenia. 'Neurasthenia is a general nervous condition. * * * A general run-down condition may result in neurasthenia. I examined Mrs. Oliver yesterday. I think possibly she is a little better than when she left me. That is, the neuritis condition is improved. She is generally nervous yet. I think she will be for a long time.”

On cross-examination the witness further explained that he found plaintiff’s spine about three-quarters of an inch out of center of base, which he attributed to “rotation of the right innominate on the sacrum”; and on being shown a report he had made to defendant’s counsel, stated it was the left innominate that was affected and which he corrected, saying “I had to replace it a number of times, it had a tendency to recur. I replaced it, it finally stayed in pretty good. The innominate are connected to the sacrum by articulation ; the right can be displaced without the left.”

Dr. Stevens, a specialist of X-ray work, explained certain X-ray plates of plaintiff taken under his direction and testified that they disclosed no injury to the spinal column, no evidence of fracture, dislocation or curvature, nor injury in the region of the sacrum of which Dr. Spitler had testified.

Dr. Reed, who saw plaintiff “just once” and made physical examination, testified he could find no objective symptoms of any dislocation whatever, explained at length the effect of displaced vertebrae on the spinal cord which “would manifest itself by the appearance of paralysis of the various muscles which were supplied by the nerves from this same sector”;, and of his detailed discussion of the subject said:

“I am criticizing osteopathy treatments because I do not believe in their method of treatment. * * * When they try to correct or reset anything in the way of curvature or anything of that sort. I think that is time wasted.”

Of his conclusions as to plaintiff’s condition he said:

“There is no question in my mind but that probably she was suffering at the time that she came to me. The question in my mind is the cause of the suffering.”

Saying further that in his opinion the symptoms she told him of were “due entirely to the menopause, the change of life in this case.”

Dr. Kennedy, who also made a physical examination of the plaintiff, testified he found no objective evidence of injury, attributed her nervous condition so far as disclosed to the same cause as Dr. Reed, and expressed like views as to the testimony of Dr. Spitler, saying that if the left innominate was dislocated' at the sacral joint it would be absolutely impossible for her to walk when and as related, and “If his (Dr. Spitler’s) testimony were true she would be a very much disabled woman, in my judgment.”

Dr. Ives, a practicing physician of the regular school of medicine, “a neurologist, a psychologist in the treatment of mental and nervous diseases,” testified that he had recently made thorough examination, of plaintiff and said:

“Her present condition, of what I call traumatic neurasthenia, or nervous exhaustion from a blow, both physical and mental, is due to the blow, to the trauma, or the concussion of the brain at the time, and to the mental shock and fright of the thing at the time, and contemplating and recontemplating of it ever since, and the condition of inefficiency is, in my opinion, certainly due to the blow, and not to. the menopause, as was said.”

Asked by counsel if he could state to the jury in terms they might perhaps better understand the effect of such blow on the nervous system and resulting neurasthenia, the doctor thought perhaps he could as he was “in the habit of saying it to the class,” and “to use a term for the laity,” likened this “subtle, intangible something” to “short circuiting of a battery,” a “shell shock in the great war,” at times “injurious to the construction of the very protoplastic construction of the cells themselves, so they do not act efficiently,” with other elucidations, finally saying:

“I know of no better way than simply to state that it renders a person who was previously efficient, into a person of comparative, inefficiency; and despondency, headaclies, backaches and all that sort of thing. These are the classical symptoms of such a condition. The accident was over two and a half years ago, that is long enough for her to have recovered completely if she is to recover. Just what the future has in store for anybody cannot be known, but as a matter of fact I do not believe Mrs. Oliver will ever be the efficient woman that she would have been had she not received the blow.”

Under a somewhat extended cross-examination the doctor adhered to and further elucidated his diagnosis of traumatic neurasthenia and declined with no uncertain sound to be led into any truce with osteopathy, saying in part:

“I know perfectly well that osteopaths invariably find dislocations of the spine, misplaced vertebrae for headache, toothache, or any other of the pains. I never had one come to my office yet from an osteopath who had not had a misplaced or sprained innominatum. * * * This woman had concussion of the brain and the tremendous emotional shock of being thrown heavily on the ground, lighting on her back, striking the back of her head on the stone sidewalk, that is enough to produce temperamental emotional changes that she had, without dislocation of the in-nominate or cervical vertebrae. * * * I am offering to say in this court I have that opinion of osteopathy, it angers me to hear anything of this sort; it is not the case. It is this dislocation of the vertebrae impinging on the spinal nerve that gets my goat every time. * * * I did not say that there was no neuritis, but that is not, the principal thing that is the matter with her; the thing that has knocked this woman out, making her valueless, useless to herself in the world is the traumatic neurasthenia. In my opinion she may have some neuritis, she may have traumatic neuritis, she may have traumatic neuritis from the blow on the nerve, but this neuritis over and over again — it is overdone.”

Defendant’s assignments of error are all directed to the charge of the court in submitting the case to the jury, permitting them as is claimed, “to speculate as to which of plaintiff’s experts was telling the truth” in reference to her injuries, allowing them to “assess damages for two conflicting and different kinds of injuries, one of which at least did not exist under the testimony of the witness produced by plaintiff”; and in permitting them to consider the testimony of Dr. Spitler as to curvature of the spine and dislocation of the innominate bone, “in view of the fact” Dr. Ives testified such condition did not exist.

Error is particularly assigned on a portion of the charge wherein the court, when stating plaintiff’s claim, referred to it as “sort of two-fold,” saying:

“One is that she received certain physical injuries, a curvature of the spine, and other things that you have heard about; and that, as a result of those things she has suffered certain mental troubles — not so much mental as nervous troubles; and that she is now suffering — of course I am dealing with her claim — she says that she is suffering from neurasthenia, brought about as a result of the blow that came at the time' she says that she struck her head on the pavement. * * *
“Now, the other theory that she proceeds on is not. only that she did actually suffer from a nervous disease known as neurasthenia, but she claims that ill is with her today and has not been cured. She says in all reasonable probability that ill or ailment will remain with her for some time to come.”

The court also plainly and correctly stated the denial, claims and theory of the defense, told the jury they were the sole judges of the truth of the facts in relation to which testimony was- given, and also of the weight to be given opinion testimony by those testifying as experts, saying further:

“It will be your duty to determine as to the reasonableness of the theories that are advanced, and when one gives you an opinion of a certain thing, and another gives you an opinion that is quite contrary, why, these opinions — do they appeal to your sound judgment and common sense, or, I might be pardoned by saying to you ‘horse sense.’ * * *
“You are here now to determine who is right in this disagreement. Is the plaintiff right when she says that the ills that she claims that she is now suffering from are due solely and alone to this accident, or is the defendant right when it claims that her ills, ¡ if she has any, are due to causes other than those stated.”

The real issue for the jury, made plain we think both by the testimony and charge, is, How badly was plaintiff hurt, how seriously and permanently was she injured? We find nothing in the instructions indicating to the jury that they were at liberty to make a double award on two conflicting theories. The court carefully avoided references to the testimony of particular witnesses, or the claims and theories of the ■conflicting methods of healing which experts had disctsssed, and repeatedly emphasized the duty of the jury to determine the facts of the case, and as they found the facts determine what, if any, injuries plaintiff suffered from the accident which befell her.

When it comes to dealing in a practical way with the controlling ultimate facts for the jury, rather than theories, the testimony of plaintiff’s witnesses was not so divergent as Dr. Ives’ insistently proclaimed theories in condemnation of osteopathy might on first impression seem to indicate. Dr. Spitler saw plaintiff shortly after the accident and was the only one of the witnesses who then saw or ever ministered to her professionally. He assumed to testify to facts — to her then condition as he saw it. He said she was suffering from neuritis affecting especially her arm and leg, caused as he then found and describes in his phraseology, by sciatic neuritis, or inflammation of the sciatic nerve, produced by the pelvis being badly rotated, and bony lesions or variations of the spine due to the injury she received; he told of his method of treatment with palpation, adjustments, etc., including replacement of the left innominate which was affected, said that in what he was describing by the terms he used he had reference to the spinal column including, the cord, vertebrae and muscles, tissues and nerves radiating from the spine, that in time his efforts to correct the variations he found resulted in that portion of her injury being largely recovered, the serious remaining trouble being traumatic neuritis. He at no time used the word “dislocation,” which the doctors'of the regular school stressed in such disapproving terms, apparently as inferable from the terms he used. He also did say, “of course, a bad case of neuritis is very, very irritating and might possibly result in a case of neurasthenia,” and Dr. Ives said, '“In my opinion she may have some neuritis, she may have traumatic neuritis from the blow on the nerve.”

Dr. Spitler diagnosed the trouble he was treating plaintiff for as “traumatic neuritis,” and Dr. Ives, who examined her some two years later, found her suffering with “traumatic neurasthenia,” both nervous troubles originating from external violence — attributed by each to the shock, blow or fall she received at the time of the accident, and each in effect expressed the opinion that she might also be afflicted to a degree with the related nerve disease or disorder which the other designated. They concur in denying that her' condition was attributable to the menopause or change; of life, as defendant’s experts contended.

The jury saw plaintiff upon the witness stand and heard her plain tale told in terms of “the laity” as to her impaired physical condition and sufferings resulting from the accident, supported in its broad essentials by the testimony of her expert witnesses, who, though of divergent creeds in the art of healing and technically at difference in many particulars, harmoniously testified to her past and present suffering and broken health from a serious and painful nervous malady of traumatic origin, which by subjective and objective diagnoses they ascribe to injuries sustained at the time of her accident. “Trauma” is said to mean an “abnormal condition of the living body produced by external violence, as distinguished from that produced by poisons, zymotic infection, bad habits and other less evident causes.” Century Dictionary. Contradicting the evidence plaintiff produced was that of defendant’s witnesses, with expert testimony in explanation and denial, carrying the whole controversy into the field of disputed facts for the jury.

If the jury fully credited plaintiff’s testimony and that of her witnesses as to her suffering and physical condition resulting from the accident, it cannot be said as a conclusion of law that the damages they awarded were doubled or excessive. The credibility of the witnesses on both sides, and the weight to be given to inconsistencies or conflict in the testimony of witnesses called, by her, as presented in this case, were purely questions for the jury.

The judgment is affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    WINGET v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Partnership — Certificate—Assumed Name.
    Where the death of the father dissolved the partnership between a father and son, and the latter bought his father’s interest from the heirs and continued the business under the same name, which contained his surname, there was thereafter no question of partnership involved under the provisions of Act No. 164, Pub. Acts 1913 (2 Compv Laws 1915, § 6354 et seq.), nor was he doing business under an assumed or fictitious name within the provisions of Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.).

    On noncompliance with statute requiring filing of certificate of partnership as affecting right to maintain action arising out of tort, see note in 2 A. L. R. 119.

      2. Same — Failure to File No Bar to Tort Action.
    Where plaintiff was doing business under an assumed name, his failure to file a certificate in compliance with Act No. 101, Pub. Acts 1907, would not bar him from bringing an action ex delictu.

    3. Carriers — Delivery Without Surrender of Bill of Lading— Liability as Carrier or Warehouseman — Question of Law.
    In an action by a shipper against the initial carrier under the Carmack Amendment (34 U. S. Stat. p. 584) for the wrongful delivery by the terminal carrier of a carload of beans without requiring the surrender of the bill of lading, where the facts are undisputed, the question of whether the negligence complained of is that of a common carrier or a warehouseman is one of law for the court.
    4. Same — Variance Immaterial Where Defendant Not Misled.
    In such action, the case being submitted on stipulated facts, whether the court held that the wrongful delivery was made in the capacity of a common carrier or as a warehouseman, held, immaterial, since defendant was not misled by the variance nor prevented from making a full answer on the merits.
    5. Same — Appeal and Error.
    Nor did the failure of the court to more fully state to the jury the reason for directing a verdict constitute prejudicial error, both parties having moved for a directed verdict.
    6. Courts — Federal Statutes — Federal Decisions Controlling.
    Interpretation of Federal laws rests with the Federal courts, and against conflicting decisions of the United States Supreme Court the decisions of State courts cannot control even in their own jurisdictions.
    7. Commerce — Carmack Amendment — Purpose—Carriers.
    The purpose of the Carmack Amendment (34 U. S. Stat. p. 584), properly construed, is to provide a more simple, safe, and certain method of determining rights and duties in the business of interstate commerce by adoption of a uniform negotiable order bill of lading that by reasonable business precautions not only the carrier and shipper, but any person may rely upon it with .reasonable certainty and’ more readily protect themselves.

      8. Same — Transportation—Liability op Carrier for Wrongful Delivery.
    Under said act the initial carrier is liable for the wrongful delivery by the terminal carrier without surrender of the original bill of lading, and it is immaterial -whether its negligence was that of a warehouseman or a carrier, since it was not released from its delivery as a duty of transportation according to the terms of the shipping bill by which it received the goods and carried them to the terminal point.
    9. Carriers — Liability for Refusal to Deliver Without Bill of Lading.
    No liability could attach to the carrier for refusal to deliver without surrender of the original bill of lading, on telegraphic ir.structions merely from the consignee, without reasonable identification and indemnity, if demanded.
    10. Courts — Federal Courts — Circuit Court op Appeals.
    While the decision of the circuit court of appeals is not imperatively binding on the State courts, it will be followed where it is in harmony with the decisions of the United .States Supreme Court.
    11. Carriers — Liability of Carrier for Delivery Without Bill of Lading — Nelson Grain Co. Case Overruled.
    In view of the trend of the decisions of the Federal courts upon the liability of the carrier for delivery without requiring surrender of the original bill of lading issued under the interstate commerce law, the rule announced in. Nelson Grain Co. v. Railroad Go., 174 Mich. 80, can no longer be accepted as a binding precedent.
    12. Same — Damages—Actual Value Measure of Damages.
    Though drafts attached to a bill of lading are for more than the value of the goods, the actual value of the shipment, less unpaid freight thereon, is the measure of recovery for wrongful delivery without surrender of the original bill of lading.
    Error to Genesee; Brennan (Fred W.), J.
    Submitted January 8, 1920.
    (Docket No. 27.)
    Decided April 10, 1920.
    Case by Mahlon H. Winget, doing business as T. J. Winget & Son, against the Grand Trunk Western Railway Company for misdelivery of a carload of beans. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed, conditionally.

      Harrison Geer (William, A. Geer, of counsel), for appellant.

      Charles F. Meyler, for appellee.
   Steere, J.

This action was begun in the circuit court of Genesee county to recover from defendant as initial carrier the value of a carload of beans delivered to it for transportation and claimed to have been misdelivered. Trial was had before a jury on February 24, 1919, resulting in a judgment on directed verdict for the sum of $2,512.89.

The following letter to defendant’s agent at the point of shipment shows in outline the nature and occasion of plaintiff’s claim, for which a lengthy declaration in legal form was subsequently filed:

“T. J. Winget & Son,
“Dealers in Grain, Beans and Seeds.
“Linden, October 14, 1912. “W. S. Wilson, Agent Grand Trunk Railway, “Linden, Michigan. '
“Dear Sir: On June 28th, 1912, we shipped from your station Grand Trunk car No. 6580, loaded with beans. This car was billed from Arthur J. Thompson Company, to order Arthur J. Thompson Company, notify Hewitt & Son, Des Moines, la. This car has been delivered without the original bill of lading to which our draft for $1,890.62 is attached. We claim this amount due us and ask for a prompt settlement, otherwise this matter will be taken up with the interstate commerce commission.
“Yours truly,
“T. J. Winget & Son,
“Per M. H. WINGET.”

The propositions to which defendant’s assignments of error are directed may be summarized as follows: Plaintiff is precluded from maintaining this action because of failure to comply with the statute relative to doing business under an assumed name. Fatal variance appears between plaintiff’s declaration and proofs. Defendant as common carrier is shown to have fully performed its duty. The trial court erred in directing a verdict for plaintiff without stating the reasons therefor. Plaintiff under no circumstances could recover ah item of $137.50 with interest which was included in the judgment.

It appears undisputed that the carload of beans in question was delivered to defendant as initial carrier at Linden, Michigan, and left about June 28, 1912, reaching its destination at Des Moines on July 8, 1912, when Hewitt & Son of that city were promptly notified of its arrival by the terminal carrier, the Des Moines Union Railway Company. The shipment went forward under a standard order bill of lading, made out by plaintiff, naming the Arthur J. Thompson Company, to whom he had sold the carload, as both shipper and consignee, which he testified was “for the purpose of concealing the identity so that it could be transferred, and so forth, without the origin of the beans becoming known to Hewitt & Son.” Plaintiff shipped these beans to fill an order given T. J. Winget & Son from the Flint office of the Thompson Company, which had branch offices in Flint, Chicago, Kansas City and at least one other place, in compliance with the following letter:

“Flint, Michigan, June 25th, 1912.
“T. J. Winget & Son,
“Linden, Michigan.
“Gentlemen: You may ship the car of choice we have coming from you to order A. J. Thompson Company. Notify Hewitt & Son, Des Moines, la. Via C. M. & St. P. R. R. Be sure and see that the car is billed, ‘allow inspection.’ Send invoice and make draft on A. J. Thompson Company at Kansas City, Mo. Be sure that the stock in this car is good and dry.
“Yours truly,
“A. J. Thompson Company.”

Following the shipment plaintiff sent the original bill of lading with his draft on the Thompson Company attached for $1,890.62 (the original price of the beans at $2.75 per bushel f. o. b.) through his bank to Kansas City for collection, as directed by the letter from its Flint office of June 25,1912.

On receipt of notice from the terminal carrier at Des Moines, Hewitt & Son inspected the beans but declined to accept them owing to the quality, of which they notified the Thompson Company’s office at Chicago. On July 15, 1912, the Thompson Company’s office at Flint advised Winget & Son of Linden of the complaint, asking for some adjustment of price, which resulted in an exchange of telegrams and plaintiff finally agreed with the Thompson Company upon a reduction of 20 cents per bushel, which proved acceptable to Hewitt & Son, and he sent the Thompson Company a check for $137.50, to which the reduction amounted. On July 24, 1912, the following telegram was sent Charles Hewitt & Son at Des Moines from the Thompson Company’s Chicago office:

“Just heard from shipper, accept your proposition, twenty cents allowance. This authority agent railroad deliver you car without lading. Remit Chicago correct basis deducting car service and freight. Answer. Arthur J. Thompson Company. 10/23 A. M.”

This telegram was delivered by Hewitt & Son to the agent of the Des Moines Union Railway Company and the consignment was delivered to them on the strength of it by the terminal carrier, without surrender of the bill of lading. Shortly thereafter the agent of the terminal carrier at Des Moines received the following telegram from the Thompson Company:

“Chicago, III., July 24th, 1912.
“Agent, C. M. & St. P. Ry.,
“Des Moines, la.
“This will, be authority to deliver G. T. car 6580 beans,- consigned to A. J. Thompson to Chas. Hewitt & Sons without surrender of original bill, of lading.
(Signed) “Arthur J. Thompson Co.”

Hewitt & Son promptly remitted the Thompson Company office for the beans.

After its- issue the original bill of lading was never in the possession of the Thompson Company, Hewitt & Son or any other party than plaintiff and the banks through which it passed for collection with a draft attached. It was some time later returned dishonored. Learning by inquiry of Hewitt & Son that they had promptly paid the Thompson Company for the car of beans after accepting the same plaintiff found himself unable to get his pay from the Thompson Company which proved irresponsible and, as he states, “went bankrupt.” Except the telegram on strength of which delivery was made, it is conceded that none of those communications between plaintiff, Thompson Company and Hewitt & Son relative to these beans after their arrival at destination and before delivery was' brought to the attention of the carrier or any of its agents. Neither did Hewitt & Son know of plaintiff’s interest in the transaction until he wrote them some time after they had paid the Thompson Company for the beans.

The shipping bill-in question is a standard form of “order bill of lading” approved by the interstate commerce commission by a general order of June 27, 1908, which amongst other things provides, “The surrender of this original order bill of lading, properly indorsed, shall be required before the delivery of the property.” The matter inserted in filling out the blank of special interest in this case is as follows:

“Consigned to order of the Arthur J. Thompson Company.
“Destination, Des Moines, State of Iowa, county of
“Notify Hewitt & Son.
“At Des Moines, State of Iowa.
“Route C. M. & St. P. Car initial G. T. Car No. 6580.
“Weight subject to correction, 41250.
“250 bags beans.
“ (Allow inspection).
(Signed) “The Arthur J. Thompson Co., shipper.
“Per T. J. Winget & Son.
“W. S. Wilcox, Agent.
“Per .................
“(This bill of lading is to be signed by the shipper and agent of the carrier issuing the same.)”

This was concededly signed by the shipper and agent as above indicated.

Upon the contention that plaintiff’s action cannot be entertained because he was doing business under an assumed name, without having filed the certificate required of those doing business under an assumed name, it appears that Winget is his true surname, that he is the son of T. J. Winget, and had with his father conducted business at Linden for a number of years under the firm name of Winget & Son, that some time before the shipment involved here the father died, and plaintiff bought his interest in the business from the other heirs, continuing it under the same name as before. That the death of the father dissolved the partnership there can be no question. Its affairs were wound up and closed out, the surviving partner buying the interest of the deceased partner from those who inherited it. He thereafter was the sole owner of the business. No partnership existed when this shipment was made, neither did he then have any contract' relations with defendant personally or in his business name. No question of partnership is involved under the stringent provisions of Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.), as in Maurer v. Nursery Co., 199 Mich. 522, and Furstman v. Frank, 206 Mich. 619. The preceding act, No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), “to regulate the carrying on of business under an assumed or fictitious name,” has been construed by this court as particularly directed to that class of enterprises, operated under assumed, fanciful, elusive and misleading names, which contained no inkling of those connected with or conducting them, and declined to rigidly apply the statute against those disclosing in the business name adopted the true surname or names of some party or parties interested in and conducting an established, legitimate business. Of the former class are Cashin v. Filter, 168 Mich. 386 (Ann. Cas. 1913C, 697) ; Clark v. Holman, 204 Mich. 62; and of the latter, Axe v. Tolbert, 179 Mich. 556; Sauer v. Construction Co., 179 Mich. 618; Cross v. Leonard, 181 Mich. 24; Zemon v. Trim, 181 Mich. 130; Hager v. Schliess, 184 Mich. 472. We think the instant case more properly falls within the second class. It may be noted in passing that the legislature has since, to some extent, drawn the teeth of Act No. 101, Pub. Acts 1907, by Act No. 263, Pub. Acts 1919. Although so suggested by his counsel, we do not discover from this record that plaintiff had complied with said act No. 101 before commencing this action, nor is. it material; but it does appear that his declaration sounds in tort, and it has been held that denial of the courts to those failing to file a certificate in compliance with the statute should not be extended to ex delictu actions. Denton v. Booth, 202 Mich. 215. We find no error in the denial of defendant’s motion for a directed verdict because plaintiff had violated the assumed-name act in the particular claimed.

Defendant’s claim of a fatal variance between plaintiff’s declaration and proof is based on the contention that the declaration only alleges a common carrier duty while the proofs show a warehouseman’s liability, if any, owing to the delay in acceptance and removal on the part of the consignee of the shipment after its arrival and notice thereof by the carrier as. directed. The declaration in general terms alleges the transaction as related, which is in its main features undisputed and stipulated» and without specifically alleging defendant made the claimed wrongful delivery acting either as a warehouseman or common carrier, charges a tort in the particular that through its named terminal carrier defendant wrongfully delivered the consignment “without requiring the surrender of the bill-, of lading, or payment of the draft as aforesaid, whereby the plaintiff wholly lost his property aforesaid,”" and that a liability has accrued thereby to plaintiff from the defendant “under and pursuant to the provisions of the act of congress of June 29, 1906 (34 U. S. Stat. p. 584),” making proper reference to the interstate commerce law, the Carmack amendment to it, etc. To this defendant pleaded the general issue with several notices of special defense, including the claim that at the time of delivery the terminal carrier’s responsibility was that of a warehouseman only.

Plaintiff squarely places his right to recover upon the Carmack amendment, a Federal statute, and under the undisputed _ facts in this case the question of whether the negligence complained of is that of a common carrier or a warehouseman is one of law for the court. Numerous decisions of both Federal and State courts are to be found upon that subject and an examination of them makes plain that they cannot all be reconciled. The recent work of Roberts on Federal Liability of Carriers, takes note of that lack of harmony and we think ably portrays the situation in part as follows:

“Many State courts in construing the Carmack amendment have held that the initial carrier is only liable for loss, damage or injury to property transported in interstate commerce while it is in the possession of the terminal carrier as such, and that when the terminal carrier holds the property as a warehouseman and damage then results, the initial carrier is not liable under the Federal statute. But these cases seem to be in conflict with the controlling decisions of the Federal Supreme Cpurt.
“Under the act to regulate commerce, the term ‘transportation’ includes all services in connection with the receipt, delivery, elevation and transfer in transit, ventilation, refrigeration or icing, storage and handling of property transported. From this and other provisions of the Hepburn act congress recognized that the duties of carriers to the public included the performance of a variety of services that, according to the common law, were separable from the carrier’s services as carrier, and in order to prevent overcharges and discriminations from being made under the pretext of performing such additional services, it enacted that, so far as interstate carriers by rail were concerned, the entire body of such services should be included together under the single term ‘transportation’ and subjected to the provisions of the act.” 1 Roberts on Federal Liability of Carriers, § 338.

While matter can be found in some of the Federal decisions which may give some opportunity for contention to the contrary, we think the controlling decisions of the Supreme Court when directly dealing with the subject well sustain that view.

The case was submitted on stipulated facts supplemented by the testimony of plaintiff and both parties moved for a directed verdict on the undisputed evidence. Considering strictly the matter of variance, whether the court held that as a matter of law the undisputed evidence showed a wrongful delivery was made by the terminal carrier in the capacity of a •common carrier or as a warehouseman could scarcely be said to mislead, even if it surprised, the adverse party, nor to prevent making full answer on the merits to the matter concerning which such variance is claimed, which is one of the statutory tests (3 Comp. Laws 1915, § 12583). In 1 Michie on Carriers, p. 916, it is said:

“And an objection that a carrier was sued as such, whereas the evidence showed its liability to be that of a warehouseman, is untenable, where answer in confession and avoidance presented issue of liability as a warehouseman.”

Defendant’s contention that a verdict should have been directed because of variance is not tenable. Neither do we think under the situation presented by this record that failure of the court to more fully state to the jury the reasons for directing a verdict constituted prejudicial error as claimed.

Controlling interpretation of Federal laws rests with the Federal courts, as has been often held and always recognized by this court when occasion arose. Perkett v. Railroad Co., 175 Mich. 253; Thomas v. Blair, 185 Mich. 422; French v. Railway Co., 204 Mich. 578. Against conflicting decisions of the United States Supreme Court the decisions of State courts cannot control upon those questions even in their own jurisdictions. In the French Case we recently discussed the origin, nature and reason for the order bill of lading under the Carmack amendment as deducible from the Federal authorities. The Supreme Court of the United States has been frequently called upon to consider and define its purpose, function and effect, in varying aspects according to the facts of the case under consideration. Their import and general trend are fairly portrayed in chapters 17 and 18, relating to duties under the Carmack amendment and the Federal bill of lading, in volume 1 of Roberts’ work on Federal Liability of Carriers. The following later cases are instructive and more or less in point: Atlantic Coast Line R. Co. v. Riverside Mills, 218 U. S. 186 (31 Sup. Ct. Rep. 164) ; Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. Rep. 148, 44 L. R. A. [N. S.] 257) ; Chicago, etc., R. Co. v. Miller, 226 U. S. 513 (33 Sup. Ct. Rep. 155) ; Kansas Southern R. Co. v. Carl, 227 U. S. 639 (33 Sup. Ct. Rep. 391) ; Atl. Coast Line v. Glenn, 239 U. S. 388 (36 Sup. Ct. Rep. 154) ; Chicago, etc., R. Co. v. Dettlebach, 239 U. S. 588 (36 Sup. Ct. Rep. 177) ; Southern R. Co. v. Prescott, 240 U. S. 632 (36 Sup. Ct. Rep. 469); Northern Pacific R. Co. v. Wall, 241 U. S. 87 (36 Sup. Ct. Rep. 493); Georgia, etc., R. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. Rep. 541).

An excursion through the multitude of varying State court decisions and earlier Federal authorities upon the subject of duties and rights of common carriers and shippers discloses a field for abundant contention, but we think it now manifest from the above cases and others of like import that the evident intent and purpose of the act as properly construed is to provide a more simple, safe and certain method of determining rights and duties in the business of interstate commerce by adoption of a uniform negotiable order bill of lading of such definite character and legal import that by reasonable business precautions not only the carrier and shipper but any person, bank or other business concern interested may rely upon it with reasonable certainty and more readily protect themselves in the gigantic business of making and handling interstate consignments, which concededly is a fit subject of Federal control and regulation in the public interest generally. In Adams Express Co. v. Croninger, supra, it is said:

“The duty to issue a bill of lading and the liability thereby assumed are covered in full, and though there is no reference to the effect upon State regulation, it is evident that congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.”

Plaintiff was a “lawful holder” of a uniform order bill of lading issued by the initial carrier pursuant to requirements of the interstate commerce act. By it the carrier is made “liable to the lawful holder thereof for any loss, damage or injury to such property caused by it,” but surrender of the original bill to the carrier “shall be required before delivery of the property.” If the lawful holder, plaintiff was entitled to maintain an action for loss of the property whether his interest in the same was as owner, as security to him for an indebtedness, or otherwise. The fact that he was not consignor or consignee and held no direct contract relations with the carrier for transportation of the goods does not bar him from recovery for the loss of the. property which the order bill of lading represented through fault of the carrier, provided he was the lawful holder of a bill of lading which entitled him to its delivery and imposed upon the carrier the duty to deliver it to him on proper identification and surrender of the original order.

“When goods have been misdelivered there is as clearly a ‘failure to make delivery’ as when the goods have been lost or destroyed.” Georgia, etc., R. Co. v. Blish Milling Co., supra.

The statute cast upon defendant as initial carrier responsibility for the completed transportation according to the original contract of shipment evidenced by the bill of lading, which included delivery. The negligence in this case was that of the terminal carrier. Whether the terminal carrier by reason of the consignee’s delay in removing could be regarded as holding the consignment in the capacity of a warehouseman in other particulars is immaterial here for it was not released from its delivery as a duty of transportation according to the terms of the shipping bill by which it received the goods and carried them to the terminal point. Its negligence which caused loss of the goods to the lawful holder of the shipping bill was delivery under the circumstances shown'without requiring production of the original bill. The telegram from the Thompson Company, on the strength of which delivery was made, was not even addressed to the carrier. It fairly advised that while the Thompson Company apparently assumed to act as consignor in directing delivery without the bill of lading, there was a shipper it had to hear from before doing so. Unless the agent assumed the Thompson Company referred to itself in the statement, “just heard from shipper,” he had notice of an interested shipper other than the named consignor or consignee.

Certainly no liability could attach to the carrier in this case for refusal to deliver without surrender of the original bill of lading, and, we think, seldom if ever would liability arise in any case for such refusal, without reasonable identification and indemnity if demanded, under the present state of the law recognizing an order bill of lading as in effect qmtsi-negotiable paper representing the value of the shipment in the hands of the lawful holder. The latter proposition appears to be questioned by defendant and, in support of a doubt that the courts would protect the refusing carrier against demand of the consignor or owner, cite McCotter v. Railroad Co. (N. C.), 100 S. E. 326, where the owner shipped a carload of potatoes consigned to his own order, and recovered a judgment against the initial carrier for damage to the goods resulting from delay in transportation and refusal of the terminal carrier to deliver the same without production of the original bill of lading which had become lost or delayed in transmission. Issues of fact were involved under both claimed causes of delay. The owner applied to the initial carrier for direction to its terminal carrier to deliver the consignment, with tender of a bond of indemnity, and such instructions were sent. Failure of the terminal carrier to deliver after receipt of such instructions was claimed. The terminal carrier was under the law but agent of the initial carrier and the supreme court of North Carolina held that on the facts presented—

“a failure to deliver the potatoes to the owner'or his agent on a telegraphic message from the initial carrier that this be done without presentation of the bill of lading made at the request of the owner and consignor, would be sufficient to sustain the verdict on the issue.”

We find no suggestion in this ruling that the terminal carrier’s refusal would have been held culpable had no satisfactory protection by bond of indemnity been tendered, and no instruction to deliver received from the initial carrier. So far as any inference arises it is to the contrary.

It is earnestly contended for defendant that Nelson Grain Co. v. Railroad Co., 174 Mich. 80, quadrates with the instant case and is controlling. Since that case was handed down by a divided court the Federal appellate courts* whose decisions are controlling in the final analysis, have in several decisions emphasized the important function of an order bill of lading in transportation and its' significance as a test in these controversies over wrongful or non-delivery. In the recent case of King v. Barbarin, 249 Fed. 303, in which it is said the facts are practically the same as in the Nelson Grain Co. Case, cited by defendants there as here, as directly sustaining their contentions, the court did not find the Nelson Grain Co. Case persuasive and arrived at a contrary conclusion, saying in part as follows:

“The question thus is: Were petitioners, as between themselves and the carrier, the lawful holders of the bill of lading, entitling them to be recognized as such? !R * *
“Petitioners, were in fact owners of the beans at the time of their delivery to the carrier. The latter delivered to them a bill of lading which was the symbol of the property named therein. * * * By the transaction in question Botsford & Barrett presumably acquiesced, to say the least, in petitioner’s retention of the bill. The fact of such retention, under the circumstances shown, was, in our opinion, evidence of an intent on the part of petitioners to hold the title until the beans were paid for, so far as necessary to secure such payment, and of the consent of Botsford & Barrett thereto. * * * Under-these circumstances, and in view of the practice of grain dealers, to ship goods and collect therefor on draft accompanied by bill of lading, we think the carrier was not entitled, from the mere fact that Botsford & Barrett were named as shippers, conclusively to presume that petitioners, had received payment for the beans, but was fairly charged with notice, not only that petitioners might at least not have received their pay, but of whatever claim they might turn out to have, so far as evidenced by their possession of the bill of lading.
“Had petitioners not taken back from the bank their discredited draft on Botsford & Barrett, the bank, in our opinion, would clearly be entitled to recovery. * * * In our opinion the rights of petitioners are not made less than those the bank would have had from the mere fact that their ownership, antedated the shipment, and that the bill of lading was retained by them for the express protection of their antecedent ownership and right to receive pay before parting with title. The nature of the contract has not been changed, nor has the carrier been injured, by the fact that Bots-ford &, Barrett were named in the bill of lading as consignors. Had they actually made the shipment, the rights of others would still be likely to intervene, as, for example, those of subsequent pledgees, to secure advancements, or those of petitioners, under actual delivery of bill of lading by Botsford & Barrett, to secure payment of their draft for the price of the beans. We think it clear that in the latter case petitioners would have been protected. We are not impressed that the protection is lost because their ownership antedated the shipment, and because the bill of lading was retained by them, instead of being manually turned over to them by Botsford & Barrett. Petitioner’s loss is due directly to the carrier’s failure to observe its contract.”

Strictly and technically considered it may be conceded, as counsel for defendant contends, that this decision of the Federal circuit court of appeals is not imperatively binding on the State courts as would be a decision of the Federal Supreme Court, but it is an appellate decision affirming a judgment of a Federal district court in harmony, as we think, with the general views expressed by the Federal court of last resort when construing the interstate commerce law as to the force and effect of an order bill of lading issued pursuant to it; and of this Federal law it is said:

“That the legislation supersedes all regulations and policies, of a particular State upon the same subject results from its general character.” Adams Express Co. v. Croninger, supra.

It was insisted by the defendants in each of the following cases that they were governed by the Nelson Grain Co. Case: Turnbull v. Railroad Co., 188 Mich. 213; Thomas v. Blair, supra; Churchill v. Railway Co., 188 Mich. 376; Ortner v. Railroad Co., 202 Mich. 52.

While analogous in many respects, distinctions were pointed out in those cases which it was thought justified a contrary view. It is sufficient to say of them that in the results reached they' are not out of line with the Federal authorities; and of the Nelson Grain Co. Case, that in view of the trend of Federal decisions upon the subject it can no longer be accepted as a binding precedent upon the question of liability for delivery without requiring surrender of the order bill of lading issued under the interstate commerce law.

We find no occasion to disturb the conclusion of the trial court that as the lawful holder of the order bill of lading plaintiff was entitled under the undisputed facts to recover for the value of the wrongfully delivered shipment. That amount is not in dispute except as to the $137.50 with interest which he sent to the Thompson Company in rebate for the inferiority of the consignment. Defendant is in no way responsible for plaintiff’s voluntary remittance to the Thompson Company of that amount.

In Belden v. Railroad, 88 Vt. 300 (92 Atl. 212), it is said:

“Though drafts attached to a bill of lading are for more than the value of the shipment, the actual value thereof, less unpaid freight thereon, is the measure of recovery for delivering it to the prospective purchaser without presentation of the bill of lading.”

Vide, also, Stearns v. Railway Co., 148 Mich. 271.

If plaintiff sees fit within twenty days to remit from the judgment $137.50 and interest thereon with costs which, undisturbed, the judgment would, otherwise carry, the same will stand affirmed without costs to either party; otherwise the judgment is reversed with costs to defendant and a new trial granted.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    GREEN v. DETROIT UNITED RAILWAY.
    1. Evidence — Weight of Evidence — Establishing Case.
    In an action against a street railway company for personal injuries, where defendant pleaded the general issue, it was incumbent upon plaintiff to establish her case to the satisfaction of the jury, and although her testimony was undisputed, where it failed to convince the jury, the verdict will not be set aside as contrary to the great weight of the evidence.
    2. Trial — Remarks of Counsel — Evidence — Reason for Not Calling Witness.
    Remarks by defendant’s counsel, in his opening statement, that the car crew filed no report of the accident, and the introduction of testimony to the same effect, held, not error, where the purpose was to explain defendant’s reason for not calling witnesses, and was limited by the trial court to that purpose.
    Error to Wayne; Wiest (Howard), J., presiding.
    Submitted January 20, 1920.
    (Docket No. 79.)
    Decided April 10, 1920.
    Case by Jennie B. Green against the Detroit United Railway for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Max Hulett, for appellant.

      Corliss, Leete & Moody and A. B. Hall, for appellee.
   Steere, J.

Plaintiff alleged in her declaration that she sustained serious personal injuries through defendant’s negligence in suddenly starting one of its trailer cars while she was attempting to board it as a passenger at the intersection of Grand River avenue and Bagg street, Detroit, on the evening of June 27, 1917. Defendant made denial by a plea of the general issue. Trial was, had by jury in the circuit court of Wayne county, commencing October 29, 1918. The controlling questions in the case were issues of fact. These were submitted to the jury under an adequate charge as to the duties of defendant, issues of fact within the province of the jury to decide, measure of damages in case a verdict was awarded plaintiff and other applicable principles of law by which the jury should be governed in passing upon and deciding the disputed facts. A verdict was rendered for defendant. Motion was made by plaintiff for a new trial on various grounds and denied.

The testimony plaintiff offered in support of her claim was in outline that when injured she was going from her home on Fourth avenue accompanied by her granddaughter to the home of a married daughter at No. 64 Avery avenue, where they had been invited to dinner; that some time before 6 o’clock the two walked down Bagg street to Grand River avenue to take a north-bound car; the first which came along had a trailer, was, somewhat crowded and made its stop a little past where they were standing; that the doors to the trailer were open, a few passengers got off and while the car was. standing she attempted to board the trailer and “got on at the entrance door”;' that as she got one foot on the floor and “reached to catch hold of the frame” the car started quickly and a man seized her wrist and held her from falling, and she was carried to the next stopping place in a cramped position with the man holding her wrist and her left foot dragging, during which perilous ride she stated:

“I pleaded all the time to stop the car. When the car stopped at the next street, the man — he eased me down onto the floor, or onto the street — I asked him if he would please get off with me. He just eased me down and left me standing there. The car went on.”

And on cross-examination she testified:

“The car started so quick I couldn’t get fully on. Half of me was dragging and the other half was standing on the steps — the right foot. I was dragging my foot on the ground. I didn’t go clear down on the step. The gentleman hung onto this wrist (indicating) right in plain view of the conductor — he was right in front of me. I pleaded to him to stop the car. He carried me two blocks in that position.”

The granddaughter, a grown girl, testified of the incident:

“Grandmother started to get on the car before I had a chance. Whether she was fully on the car or not I don’t know, but before I had a chance to get on the car it started up. * * * Just then a gentleman came up, he saw the situation — saw me standing there. I didn’t look directly after the car just then. * * * The car had gone half a block before I discovered my grandmother. * * * I saw my grandmother dragging — one foot dragging. She had one arm onto something and this foot (indicating) was dragging, and her dress was sweeping like that (indicating) on the road. * * * And they let her off the car and I ran down to where she was. She was standing in the safety zone. From where the car left me, I should judge it was about a block and a half away._ * * * We started up to my aunt’s. It took us quite a long time to get there. I had to hang onto her. She did walk, with my assistance. * * * I should say it is about seven blocks and a half — without counting them, from the place where my grandmother got off the car to my aunt’s house.”

On cross-examination she testified in part as follows:

“The car was out of my sight when it started up. When the car started up so quick I could not tell how soon the door closed. It didn’t close it all — it went two blocks without closing; my grandmother with her clothes sticking out and her foot dragging on the ground. I stood there a minute. It didn’t take the car a minute to up there. * * * I thought my grandmother was trying to step off to wait for me. I thought she made an attempt to get off the car while the car was going. I thought iti was her own actions * * * I don’t know what she decided to do when she saw me left there. * * * She didn’t wait very long for me.”

She also stated that a man who noticed she was left offered her a ticket which she refused and said:

“The gentleman saw my grandmother being dragged along the ground later. I didn’t take his name. I didn’t take the number of the car. * * * When my grandmother got up to the first stop she got off. * * * It didn’t take very long for me to get up there. The gentleman didn’t go up 'there.”

After arrival at her daughter’s home plaintiff took dinner with the others, as they relate, but complained of having been hurt in the accident, of which she told, and after their meal lay down on a couch for a time and started home between 8 and 9 o’clock with her granddaughter and another woman who was there that evening, walking a block and a half to the street car line. Her daughter testified that when her mother first arrived she was crying and seemed very nervous, complaining of having been dragged by a car and hurt, but she did not think her seriously injured. Her son-in-law testified he did not telephone for a taxi or go home with her as the two other guests accompanied her when she left, saying:

“I didn’t think much of it at the time — any more than I thought she was scared and I thought she could get along all right. Of course her granddaughter and Miss Brown were along with her; I didn’t think it was very serious.”

Plaintiff’s testimony was to the effect that it proved to be very serious; that she suffered in various ways from the result of the accident, was confined to her bed at home and in a hospital for a. long time, was compelled to employ physicians, had not at the time of the trial fully recovered and was permanently injured. Dr. Hart, her family physician, testified that he was called to attend her a few days after June 27th and found her in bed and attended her until some time the following January when she was taken to a hospital for treatment. He diagnosed her trouble as “traumatic neuritis,” which in his opinion resulted from the accident, of which she told him. Dr. Armstrong, who thereafter attended her, stated that his first visit was made the latter part of January and he “found she had what we call galthosis or inflammation of the gall bladder and ulcer of the stomach.” He testified that the accident as related to him would in all probability contribute largely to that condition and said in explanation, “It might be the sole cause of the trouble, but no medical man could swear that was the cause.”

After plaintiff rested, defendant’s counsel in his opening statement to the jury said:

“This is a case where we are somewhat handicapped for witnesses from the fact we have no report of the accident. It was an accident which was never reported to the company until after they had already instituted suit, that such an accident had happened. We are unable to contradict with testimony, or any positive testimony, because there is no way of producing the conductor or motorman of that car. We will show, though, that the lady had an accident on a former trial; that she settled with the company on the very day of the accident; that she had the number of the car, the number of the conductor and the number of the motorman on that occasion. We will show you by a physical examination that there is nothing now to indicate, by an examination of the doctor, what this lady’s trouble is outside of the ulcers the doctor testified to the other day. As I said before, it is impossible for us to produce any testimony on the alleged accident because, as I say, there is no report.”

To which counsel for plaintiff interposed the objection “that any reports made to the company would be absolutely incompetent, and were they introduced would be prejudicial.” This objection was overruled and the defense then called a witness named McDonald who was in the employ of defendant in its claim department, in charge of its records, and testified to searching its files and records in the case of Jennie B. Green v. the Detroit United Railway. The following question was then asked:

“Q. I ask you whether you have been able to find in the files of the company, pertaining to this, or any place, the record of any report of this accident by any motorman or conductor?”

To this inquiry plaintiffs counsel renewed his. former objection, which the court overruled on the theory that “they have the right to show they are unable to locate witnesses,” and the witness answered: “I have found no record of any such accident.” Of which the court then said: “This is not to be considered as substantive proof that no accident occurred.”

The only other witness called by the defense was Dr. Povey who had made an examination of plaintiff and testified the only subjective indication of physical trouble he could find was an enlargement of the liver v/hich might be caused by gall stones, and is usually due to an infection of the gall duct from the intestines as a direct connection; and that there were no objective symptoms of other conditions of which she complained.

The questions raised by plaintiff’s assignments of error, as stated in her counsel’s brief, are as follows:

“(1) That the verdict was contrary to the overwhelming weight of evidence.
“(2) That it was prejudicial error to permit defendant’s counsel, in his opening statement to the jury, to state that the accident had never been reported to the company by the plaintiff until after suit was commenced.
“(3) That it was prejudicial error to permit defendant’s counsel to show that the car crew had filed no report of the accident with the company.”

Upon the first proposition counsel points out that defendant produced no witnesses as to the accident and plaintiff’s testimony stands undisputed. It was nevertheless incumbent upon her to establish her case to the satisfaction of the jury. Her only witnesses to the accident were herself and her granddaughter. With the burden of proof resting upon her to convince the jury that the accident occurred as claimed, that it was imputable to the negligence of the conductor as charged and that she was without negligence on her part, defendant had the right in denial to stand upon the claimed improbability and inadequacy of her story to that end, and to argue to the jury its lack of convincing force as told by her and her granddaughter. The trial judge and jury both heard and saw the witnesses. In denying plaintiff’s motion for a new trial the court said:

“This is not a case of the verdict being against the weight of evidence, but one in which the plaintiff failed in making a case.”

The facts were not conceded. The testimony was for the jury to pass upon. As to that function, judges cannot draw conclusions from it for them.

“It is said that on some points there was no evidence of a conflicting nature; but that does not aid the claimant. A jury may disbelieve the most positive evidence, even when it stands uncontradicted; and the judge cannot take from them their right of judgment.” Woodin v. Durfee, 46 Mich. 424.

To like effect, vide Yonkus v. McKay, 186 Mich. 203 (Ann. Cas. 1917E, 458) ; Schweitzer v. Bird, 204 Mich. 333; Rotter v. Railway, 205 Mich. 213; Crampton v. Crampton, 205 Mich. 233. We find no occasion to say, against the conclusions of the jury and trial court, that the verdict was perverse or contrary to the great weight of evidence.

Directed to the opening statement of defendant’s counsel in excuse for nonproduction of eyewitnesses and permitted testimony that the car crew filed no report of the accident, prejudicial error is urged under the rulings of this court in Winnett v. Railway, 171 Mich. 629 (Ann. Cas. 1914B, 1224), and Sibert v. Railway, 198 Mich. 117.

While similar in certain particulars, so far as relates to negative testimony that no reports were made, the question discussed in those cases was more particularly the right of defendant to resort to the expedient of proving absence of such reports as substantive proof against the res gestse at issue, or fact of an accident. It was not permitted for such purpose here. In the court’s reasons for not granting a new trial in the instant case it is said:

“The court expressly warned the jury that the testimony that no report of the accident was made to the company could not be considered upon the question as, to whether an accident happened, but only to show the defendant claimed that reason for not calling its servant complained of.”

In the Winnett Case the court pointed out that the testimony was obviously introduced and admitted to show that the accident did not occur as claimed by plaintiff. The conductor and motorman of the car were identified and produced as witnesses. They testified to no knowledge of an accident as plaintiff claimed. Defendant sought to strengthen their testimony by showing that they made no report of any such accident. The court said:

“It would, indeed, be a strange rule of evidence which would admit a private book or record to show that an event did not take place, when the witnesses upon whom the record depended for its existence and accuracy could be and were present in court as witnesses.”

The authorities cited in that case to the proposition that “as a general rule, private books and records are not evidence of what they do not contain,” involved the competency of such testimony when directed as substantive proof to the res gestae or controlling question at issue. As admitted here, the absence of a report was but indirectly relevant and admitted only as explanatory of defendant’s failure to produce an apparently material witness in its employ.

In the Sibert Case reference is made to the holding in the Winnett Case that the books of defendant were not admissible to show that no report of the accident had been made and thereby prove an injury was not received as plaintiff claimed. It is also pointed out that in the case under consideration plaintiff’s counsel over repeated objections “placed before the jury, not by the testimony of any witness, but by assertion, the fact that no report of the alleged injury had been made to defendant.” The conduct of defendant’s counsel in certain cross-examination of a witness is noted as “of very doubtful propriety,” and a quoted discourse of the court is held calculated to “prejudice the plaintiff,” for which reasons the conclusion was reached by the court that plaintiff had been deprived of a fair and impartial trial.

It is a well-recognized rule that a litigant’s failure to call a supposedly available and friendly witness may be urged by counsel in argument and considered by the jury as raising a legitimate inference adverse to the party so failing, in the absence of satisfactory explanation, and either litigant is at liberty so far as any such inference may affect him to explain or show that the witness’ absence is unavoidable, not his fault, and that he has made every reasonable effort to find such witness and procure his attendance. Naturally such explanatory evidence to be admissible need have no direct bearing on the res gestas or any substantive fact in the case, and usually does not.

In Dykstra v. Railway Co., 165 Mich. 13, comments of plaintiff’s counsel to the jury on failure of defendant to call a witness to contradict certain of plaintiff’s testimony was said not to be error:

“Because it is proper in a civil case to comment on the omission of an adverse party to call witnesses in its employ upon a subject peculiarly within their knowledge.”

And in Phillips v. Benevolent Society, 120 Mich. 142, it was said:

“In his opening statement to the jury, counsel for plaintiff said: T am not going to produce Dr. Le Seure, because we do not feel able to produce him.’ We see no objection to this statement. It was competent for the plaintiff to show that he could not produce a material witness, and to show the reason therefor.”

In McDonald v. Railway Co., 144 Mich. 379, it was even held that testimony explaining the failure to call a witness on a former trial was admissible.

Plaintiff’s comment that the purpose of defendant’s counsel was to get the fact of the absence of the report before the jury to use as substantive proof in negation of the accident is upon the record but surmise. The court made plain that it was only admitted as collateral, explanatory evidence for its bearing on defendant’s failure to call its employees to whose negligence the accident was directly charged. It was the duty of the court to see that no other use of this evidence was attempted. The record does not disclose that there was. It does not contain the arguments of counsel to the jury, but discloses no objection to any assertion or argument of defendant’s counsel upon the subject other than those stated, nor any request to charge the jury upon that point. Limited to its legitimate purpose, as is to be assumed it was, its explanatory value as an inferable excuse for defendant not calling its employees as witnesses was debatable and might well be urged as vulnerable on this record as it stands, but for that purpose it was permissible within the field of inference and for the jury to consider, limited to any significance which it might have as an attempted explanation to meet a permissible unfavorable inference. The real and important issue in the case, as the court plainly emphasized to the jury, was whether the accident happened to plaintiff as and with the result she claimed.

We think that issue was fairly submitted to the jury whose province it was to decide it.

The judgment is affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    TOBER v. PERE MARQUETTE RAILROAD CO.
    I. Master and Servant — Section Hand — Negugence—Evidence —Sum cien cy.
    In an action under the Federal liability act (35 U. S. Stat. 65, chap. 149) against a railroad company by one of its section hands, who was injured by a switch engine while clearing snow from the track at night during a snow storm, where the testimony of the parties was in conflict as to the speed at which the engine ran, the distance plaintiff was thrown by it, whether it was properly lighted or not, and whether signals of its approach were given by bell or whistle, it cannot he said, as a matter of law, that there was no testimony to submit to the jury on the question of defendant’s negligence under the indicated abnormal weather conditions prevailing at the time.
    On constitutionality, application and effect of Federal Employers’ Liability Act generally, see comprehensive notes in 47 L. R. A. (N. S.) 38; 48 L. R. A. (N. S.) 987; L. R. A. 1915C, 47.

      2. Same — Duty of Employee to Keep Lookout.
    Defendant’s negligence could only be predicated upon neglect of some secondary duty it owed plaintiff, upon whom primarily rested tbe duty of self-preservation in tbe line of his employment by keeping a lookout for and avoiding moving trains, and his duty in that respect could not be measured by that imposed upon passengers or travelers on highways.
    3. Same — Trial—Instructions.

      Held, that the court did not fairly instruct the jury as to plaintiff’s responsibility in keeping a lookout and avoiding danger, and placed a heavier burden upon defendant than the law imposes.
    4. Same — Federal Liability Act — Comparative Negligence— Trial — Instructions.
    Under the Federal law, the rule of comparative negligence was involved, and the failure of the court to fairly advise the jury of the comparative responsibility of the parties, which' was probably reflected in the verdict for plaintiff of $6,000, held, reversible error.
    5. Same — Crossing Signals — No Duty to Employees.
    The trial court properly instructed the jury that a failure to' give the statutory crossing signals, which were for the protection of the public and not the company’s employees, would not, in itself, entitle plaintiff to recover.
    6. Trial — Special Questions — Duty of Jury to Answer — Instructions.
    Instructions by the trial court that if the jury were not unanimous in their finding on special questions, they might indicate the number voting “yes” and the number voting “no,” and his failure to instruct the jury that it was their duty to answer said questions and not return divided answers, which resulted in the jury returning a divided answer to one of three special questions submitted to them, held, reversible error, since the special findings control the general verdict.
    Error to Berrien; White (Charles E.), J.
    Submitted January 9, 1920.
    (Docket No. 47.)
    Decided April 10, 1920.

      Case by Adolph Tober against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Parker, Shields & Merriam (Gore & Harvey, of counsel), for appellant.

      Cady & Andrews and. Thomas J. Cavanaugh, for appellee.
   Steere, J.

Plaintiff Tober, a section hand in defendant’s employ, was struck and seriously injured by a switch engine in defendant’s yards at Benton Harbor while he was working on the track clearing snow from a switch, between 10 and 11 o’clock in the evening of December 9, 1917. It was a cold, stormy night with strong winds drifting the snow. As was customary when a storm was on and such conditions required it, section men, or track hands, were called out; to clear the switches of ice or drifted snow which impeded their operation. Tober worked that evening: with a fellow member of the section crew named Henn. When working on the tracks or at the switches the men for greater safety against being caught by a passing train or engine faced in opposite directions. At the time of the accident the two men were working with shovels clearing a switch in the south portion of the yard on the north-bound main track. As it was a cold, stormy night with strong gusts of wind driving and filling the air with snow, these men had their caps pulled down over their heads and high coat collars turned up. They were working on the track at the switch 7 or 8 feet apart, with Tober facing southerly along. the track and Henn northerly, when a switch engine, returning from helping a heavy freight train on the north-bound track out of the yard and over a grade about a mile and a half away, came from the north on the north-bound main track unobserved by either of them until just upon them. Henn first saw it “a car length — maybe two,” away, saying:

“and so I went that same second and hollered to him and I jumped over to the south side. * * * I jumped and hollered to Tober, * * * ‘Look out, Tober, my G — d, look out,’ I said that same second.”

Henn escaped injury, but Tober, who immediately jumped on receiving the warning, was struck by the engine and thrown some distance to one side of the track, receiving serious injuries. None of the switching crew saw these men working on the track or knew plaintiff had been struck until later informed by the yard conductor, although they claimed not to have been running over six miles an hour and were watching ahead as far as possible under existing conditions. The switch engine backed when pushing at the rear of the freight train in helping it out of the yard and over the grade to the north, and when returning on the north-bound track was headed south. The conductor testified that “it was a terrible blizzard” and most of the time it was impossible to see any dark object at all, but the headlight would occasionally give a glimpse of the track a short distance ahead, and he kept his head out of the side cab window on the lookout all the time, as the front cab window was covered with ice. When the freight train moved out of the yard at 10:10 with the switch engine assisting it Tober and Henn were working on switches in the north part of the yard and Tober saw it go out. They were later sent down to clear switches toward the other end of the yard and had been there but a short time when the switch engine, which returned at 10:45, came upon them. The testimony of the parties was in conflict as to the speed at which the switch engine ran, the distance plaintiff was thrown by it, whether it was properly lighted or not, and whether signals of its approach were given by bell or whistle.

Plaintiff brought this action in the circuit court of Berrien county under the Federal liability act of April 22, 1908 (35 U. S. Stat. 65, chap. 149), which with the Federal decisions in relation to it control. His declaration charges that defendant’s

“negligence consisted in running the said engine at an excessive rate of speed, and in failing to cause the whistle to be blown or the bell to be rung as the engine approached the place where plaintiff was engaged in his work, and failed to cause the whistle to be blown or the bell to be rung as the engine approached the public highway crossing immediately northerly of the Benton Harbor passenger depot, the crossing being near the point where said plaintiff was working, and said negligence consisted in the failure of the defendant to give, or cause to be given, to plaintiff any notice of the approach of said engine.”

Plaintiff had verdict and judgment thereon for $6,-000. Motion for a new trial was denied and defendant seeks review and reversal on various grounds under numerous assignments of error, contending that a verdict should have been directed in its favor because no actionable negligence was shown; that the verdict was excessive and contrary to the great weight of evidence; that the court erred in instructing the jury as to the duty of defendant and the measure of damages under the Federal law; and that they need not agree upon the special questions propounded to them; because of improper and prejudicial language of plaintiff’s counsel in closing argument to the jury, and in other particulars which need not be detailed.

We are not prepared to hold upon this record, as a conclusion of law, that there was no testimony in the case which would permit the court to submit to the jury the question of defendant’s negligence under the indicated abnormal conditions prevailing there that evening, but it could only be predicated upon neglect of some secondary duty defendant owed plaintiff upon whom primarily rested the duty of self-preservation in the line of his employment, by keeping a lookout for and avoiding moving cars and engines which might pass upon the track at which he was at work. His duty in the line of his employment to look out for and avoid trains or engines upon the tracks where he worked is not to be measured by the obligation to exercise care imposed upon passengers upon trains or travelers on highways. We are impressed the court did not fairly instruct the jury as to plaintiff’s responsibility in that particular and placed a heavier burden upon defendant than the law imposes. It is stated as a general rule in 3 Elliott on Railroads (2d Ed.), § 1258:

“Even as to employees, the company is under no obligation to ring the bell or sound the whistle upon a switching engine engaged in making up trains in its yard, for the purpose of notifying such employees, who are familiar with the operation of the yard.”

To this proposition the author cites Aerkfetz v. Humphreys, 145 U. S. 418 (12 Sup. Ct. Rep. 835), which this court cited and quoted from with approval in Carlson v. Railroad Co., 120 Mich. 481, followed by Burrman v. Railway Co., 143 Mich. 689, and Barnhart v. Railroad Co., 188 Mich. 537. In Morris v. Railroad, 184 Mass. 368 (68 N. E. 680), the rule is thus concisely stated, with citation of numerous authorities:

“By the nature of his employment a section hand upon a steam railroad must look out for passing trains, and such is the settled law of the commonwealth.”

In Connelley v. Railroad Co., 119 C. C. A. 392, 201 Fed. 54 (47 L. R. A. [N. S.] 867), the reason of the rule is discussed at some length, it being said amongst other things:

“It is obvious that even where a railroad operates its trains, and moves its switch drafts in a proper and careful manner, trackwalkers and repairmen are necessarily subjected to great risks. Their very occupation is one of constant peril. Indeed,'it follows from the nature of such employment that the duty of self-preservation has to rest on them, for no adequate protection, other than self-protection, can be afforded them. And such has been the reasonable holding of the law. * * * Indeed, in thus making self-protection the substantial safeguard of trackwalkers and sectionmen, the law is reasonable and just, for no other dependable safeguard can be afforded their perilous work in the practical operation of railroads. * * * This rule has the uniform support of courts in all sections of the country.” Citing numerous decisions.

It was claimed and denied that the whistle was sounded by the returning switch engine at a street crossing several hundred feet north of the place of the accident, and the court correctly instructed the jury that a failure to give the statutory signals which were for protection of the public, and not the company’s employees, would not, in itself, entitle plaintiff to recover, but also said:

“It was its duty to give plaintiff a reasonable warning of the approach of its engine by blowing the whistle, sounding the bell, or otherwise, and to operate the engine at a reasonable rate of speed, and to have it under reasonable control, having in mind the place where the accident occurred, and the nature of the wind and the storm, the darkness of the night, and the ability of those who were operating the engine to see other employees of the defendant who might be lawfully employed upon defendant’s track.
“If, under these circumstances, you find that ■ no warning was given plaintiff of the approach of the engine by reasonably sounding the bell, blowing the whistle or otherwise, then I charge you that the defendant was guilty of negligence, and_ if such negligence was the proximate causé of plaintiff being struck by the engine and the injuries he received thereby, then the plaintiff is entitled to recover in this case.
. “I charge you that before you can find a verdict against the defendant, you must find that the defendant neglected some one or more of the duties which are alleged in thei declaration, and that such neglect was the proximate cause of the plaintiff’s injury.”

Failure to ring the bell and blow the whistle as the engine approached a crossing some hundreds of feet north of where plaintiff was working is specifically alleged as negligence in the declaration. Under the Federal law the rule of comparative negligence was involved in this case. We think the charge failed to fairly advise the jury as to plaintiff’s primary duty of self-protection in his special employment and the comparative responsibility of the parties, which it may well be contended was reflected in the verdict.

Although it was. primarily plaintiff’s duty when working upon the tracks to look out for his own safety and keep out of the way of passing engines or trains, and the duty imposed upon defendant in its switching operations with reference to yard employees or section hands working upon the track was much less in degree than as to others, there was yet a concurrent or secondary duty to carry on the yard work with reasonable speed, caution and care for the safety of all employees at work in the yard, according to existing conditions. That weather conditions were unusual, is undisputed. It was shown by defendant’s witnesses that there were 25 switches in the yard which it was necessary to keep clean, that in the yard it was customary for the engine to move at a slow rate, that the bell and headlights are important in such work, that it was the custom to ring the bell, that it was not rung that evening when the switch engine was pushing behind the freight train it had made up as it went out of the yard and over the grade. It was also testified by the switch crew that it was ringing when they returned from the trip, and denied by plaintiff that it was ringing as it approached where he was struck. Three special questions were submitted to the jury as follows:

“(1) Was the engine bell ringing just before and at the time of the collision?
“(2) Was the headlight on the engine burning?
•“(3) Was the speed of the locomotive less than eight miles an hour?”

After having retired to consider of their verdict the jury returned into court and asked for instruction in regard to answering these special questions, among other things desiring to be informed if they should specify how each one voted, and the following took place:

“The Court: You just answer those questions ‘yes’ or ‘no’ and sign your names. If there is a difference of opinion that makes a different question. * * *
“A Juror: If we did not agree on all three questions?
“The Court: The way they are drawn there, if you are not agreed, I suppose you could show the fact, ‘yes’ so many votes and ‘no’ so many votes. That would show the fact. That is not supposed to show how each member voted at all. * * *
“A Juror: We don’t have to be unanimous?
“The Court: Whatever way the facts are, you vote as you think the facts justify bn that question. For instance, if you all vote ‘yes’ on one question, you. simply answer to that question ‘yes.’ If you all vote ‘no,’ you mark it ‘no.’ And if to a certain question a certain number vote ‘yes’ and a certain number vote ‘no,’ you will so indicate on the question. * * *
“A Juror: 'Not agreed?
“The Court: I should say so many ‘yes’ and so many ‘no.’
“A Juror: That has nothing to do with the verdict we bring in either way?
“The Court: That is a question of law, and I won’t answer that.”

When the jury reported an agreement and rendered their general verdict they returned the special questions with written answers in harmony with the court’s suggestion of how they might do so.

No. 1, relative to whether the bell was ringing, was answered by four jurors voting “yes” and eight voting “no.” No. 2, by 12 voting “yes,” and No. 3 by 12 voting “no.”

Section 12611, 3 Comp. Laws 1915, provides:

_ “When any special finding of fact shall be inconsistent with the general verdict the former shall control the latter and the court give judgment accordingly.”

A failure of the jury to answer a question containing an affirmative fact essential to and of some controlling force in reaching a verdict has been held to result in a mistrial. Harbaugh v. Cieott, 33 Mich. 241; Cole v. Boyd, 47 Mich. 98; Wilson v. Railroad Co., 57 Mich. 155.

In Cole v. Boyd, supra, it was said of special questions that—

“In conformity with well settled principles the special findings in all cases control the general verdict. Their purpose is to enable the court to know what view the jury take in the material issues, and to correct their possible wrong inferences from the facts which they find to exist.”

The court should have instructed the jury it was their duty to answer the special questions, without permission to return divided answers or suggestion as to reporting how they stood if unable to agree and thus avoid a direct decision. Crane v. Reeder, 25 Mich. 303.

For the foregoing reasons the judgment must be and hereby is reversed, with costs to defendant, and a new trial granted.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Sharpe, J.

text:
    PEOPLE v. MARTIN.
    1. Trial — Exclusion of Witnesses — Discretion of Court — Public Trial.
    The exclusion of witnesses from the court room in a criminal prosecution is within the discretion of the court, and is no foundation for the claim that defendant was denied a public trial.
    2. Same — Attorney and Ciient — Course Pursued by Defendant’s Attorney.
    Appellate courts cannot determine whether the course pursued by an attorney defending a man charged with crime, in respect to not calling witnesses who were in attendance prepared to testify to the good reputation of defendant, was the best means of promoting his defense.
    3. New Trial — Impotency—Newly-Discovered Evidence.
    The defense of impotency, in a prosecution for rape, not made upon the trial, is not such newly-discovered evidence as should move the court to grant a new trial.
    Error to recorder’s court of Detroit; Wilkins (Charles T.), J.
    Submitted October 17, 1919.
    (Docket No. 113.)
    Decided December 22, 1919.
    Motion for rehearing submitted February 10, 1920.
    Denied April 10, 1920.
    Harry Martin was convicted of assault with intent to commit the crime of rape and sentenced to imprisonment for not less than 2% nor more than 10 years in the State prison at Jackson.
    Affirmed.
    See 208 Mich. 109.

      George B. Murphy, for appellant.

      Alex. J. Groesbeck, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Van H. Ring, Assistant Prosecuting Attorney, for the people.
   Sharpe, J.

In People v. Ayres, 195 Mich. 274, Mr. Justice Ostrander said:

“But, that respondent may not believe that a meritorious position is denied him upon a mere construction of an act of the legislature, we have, as the circuit court did, reviewed the showing for a new trial which was presented.”

In view of the insistence of defendant’s counsel that the affidavits on which such motion was founded clearly show that defendant did not have a fair trial and that the evidence, which it is now claimed might have been produced in his behalf, is convincing that he was wrongfully convicted, we have concluded to follow the practice indulged in in that case and consider the showing made.

It is insisted that defendant was denied a public trial. The record is silent as to any order made. In the affidavits filed it is stated that defendant’s witnesses were kept out of the court room. In affidavits filed by the prosecuting attorney, it is said that an order excluding witnesses was made at the request of defendant’s attorney. This was clearly within the discretion of the court and raised no such questions as were presented in People v. Murray, 89 Mich. 277 (14 L. R. A. 809, 28 Am. St. Rep. 294), and People v. Yeager, 113 Mich. 228, on which counsel relies. The affidavits state that several witnesses were at the courthouse, prepared to testify to the good reputation of defendant, but that they were not called. Much argument is indulged in to show that defendant’s rights were thus prejudiced.

A careful reading of the brief of defendant’s counsel on this motion, as well as that filed when the appeal was submitted, reveals the fact that his principal complaint is that the counsel who acted for defendant at the trial failed to properly defend him and neglected to make objections, put in proofs, and do other things which it is now insisted would have secured his acquittal. Appellate courts cannot determine whether the course pursued by an attorney defending a man charged with crime, in respect to the matters referred to, was the best means of promoting his defense. All who are familiar with trials well know that attorneys frequently differ as to the theory on which a defense to a criminal charge should be presented. In denying the motion made by present counsel, the trial judge said:

“The defendant was ably defended at the trial, had a fair trial and was duly convicted by the jury and in the finding of the jury the court, who gave close attention to the evidence and who has carefully investigated the case since conviction, thoroughly concurs.”

In an affidavit made by defendant in support of the motion, he deposed that when a young man 19 years of age he suffered from disease, and as a result became impotent and has since remained so; that he had many times been examined by physicians and his; condition so determined by them, and that for such; reason it was a physical impossibility for him to have committed the crime charged against him. In this claim he is supported by the affidavit of his wife, who states that she knew of his condition in such respect before marriage and has realized it during the 18 years, of their married life. It is significant that though defendant claims, he has been several times, examined by different physicians, as above stated, no affidavits of such physicians were procured nor were any of them produced to testify on such motion. Neither does it appear that such information was disclosed to his counsel before his trial and conviction. This was surely not newly-discovered evidence, nor do we find that the affidavits present any other facts which should have moved the court to grant a new trial for this reason. We agree with the trial judge who, in denying such motion, said:

“The evidence alleged to be newly-discovered was all within the knowledge of the defendant at the time of the trial, or, with due diligence, might have been secured and there adduced.”

The application for a rehearing is denied.

Moore, C. J., and Steere, Brooke, Fellows, Stone, and Bird, JJ., concurred. Clark, J., did not sit.