text:
    PURULEWSKI v. DETROIT UNITED RAILWAY.
    1. Street Railways — Negligence—Operation of Cars.
    Evidence showing that the plaintiff was injured in a collision between a street car and a wagon, that she was walking near the curb on the sidewalk and was struck by a board from the wagon while the driver of the vehicle was crossing the street car tracks, that the view was unobstructed, and the motorman saw the wagon when the car was at least 225 feet distant, that the truck was heavily loaded and the tracks were slippery and the motorman did not reduce his speed so as to gain control of his car, except by cutting off the current, justified the trial court in submitting to the jury the question of the negligence of the defendant street railway company.
    2. Appeal and Error — Assignment of Error — Review.
    Under an assignment that the court erred in admitting evidence that the car which caused plaintiff’s injuries was running faster than other cars had run during the morning in question, no question was raised for review, on appeal, as to testimony which the witness gave, that the cars were stopping as they stopped on other days, no such testimony as was covered by the objection being introduced.
    3. Street Railways — Operation of Cars — Sand.
    It was not erroneous to permit the plaintiff to show the effect of using sand on the tracks, and that sometimes the wheels hold and that the car skidded 135 feet after the motorman claimed to have applied the sand and reversed the car, where the court charged the jury that defendant was not to be charged with negligence simply because the motorman did not choose the most effective means of stopping the car, if he was found to have been in the exercise of reasonable care up to that point.
    4. Same — Charge.

      Held, also, that the court did not commit prejudicial error in failing to give defendant’s request to charge that no presumption of negligence arose because of the accident, having instructed the jury fully upon the burden of proof and as favorably upon other issues as the defendant was entitled to ask.
    Error to Wayne; Hally, J.
    Submitted April 22, 1914.
    (Docket No. 103.)
    Decided June 1, 1914.
    Case by Rosie Purulewski against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant street railway brings error.
    Affirmed.

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

      Cullen, Casgrain & Hanley and S. G. Thompson, for appellee.
   Stone, J.

This is an action on the case brought against the Detroit United Railway and Henry Mincel, the owner of a coal wagon, as defendants, to recover damages for an injury to the plaintiff, a married woman 55 years of age, which injury was caused by a collision between a car operated by the first-named defendant and a heavily loaded coal wagon of the other defendant, whereby a heavy plank was thrown from the top of the load of coal, striking the plaintiff, breaking her right leg, and otherwise severely and permanently injuring her, on the morning of March 9, 1912, at the southeast corner of Forest avenue and Riopelle street, in the city of Detroit. The trial resulted in a verdict and judgment for the plaintiff against both defendants. The defendant Mincel has not appealed, and proceedings were taken under Rule 10 of this court by the defendant Detroit United Railway, by which it has prosecuted its writ of error severally.

The following statement will aid in an understanding of the questions involved: Forest avenue runs east and west, and Riopelle street runs north and south. Forest avenue is 70 feet wide between lot lines, and 40 feet between curbs. Located in the center of Forest avenue at Riopelle street are the double tracks of the defendant railway, making about 15 feet of the avenue occupied by the street car tracks. This leaves a space of approximately 12% feet between the street curbs and the nearest rails of the track on both the north and south sides of the avenue. Riopelle street is 50 feet wide between property lines, and 26 feet wide between curbs; there being 12 feet between each curb and the property line. Between Riopelle street and Russell street, which is the next street west of Riopelle, there are two alleys opening on the south side of Forest avenue. One alley is 129.35 feet west of the westerly property line of Riopelle. This alley is 15 feet wide. The other alley is 180 feet west of the west line of the alley first mentioned. This alley is 18.6 feet wide, and from the west line of that alley to the east lot line of Russell street is 108 feet, making the total distance from the east property line of Russell street to the east property line of Riopelle 450.41 feet.

On the occasion of the accident the plaintiff was standing on the sidewalk a few inches from the curb at the southeast corner of Forest avenue and Riopelle street. The duty of the defendant railway in operating its cars was alleged to be to direct, manage, and control them with great care, caution, and vigilance, particularly where crossing intersecting streets, and to keep and see any and all persons and vehicles which were in and upon the highway, and to operate said cars at such a speed and in such a manner that they would have complete control thereof, so that the same could be easily and quickly checked, stopped, backed, or reversed, and their motion perfectly controlled, all for the purpose of avoiding collisions with vehicles, and thus avoiding injuries to persons lawfully in the street. It was further averred that, at the time of the happening of the grievances set forth, the defendant railway negligently and heedlessly failed to perform any one of its aforesaid duties. The evidence tended to show that at the time of the injury complained of the wagon belonging to defendant Mincel (loaded with five tons of coal, upon the top of which there were four boards or planks about 10 feet long by 8 inches wide and 1 % inches thick) was being driven south on Riopelle street, and, while being so driven, was struck by one of the defendant railway’s cars moving in an easterly direction on the south track on Forest avenue. Plaintiff’s right leg was broken below the knee. It was a compound fracture. It appeared that the wagon was almost wholly across the track when it was struck by the car, the car striking the wagon on the rear axle or hub with great violence; the conductor testifying:

“He jarred the car enough to bend it up, damage it, and he threw the coal wagon clear over on the sidewalk.”

The motorman in charge of the car testified that he first saw the wagon starting to cross Forest avenue when he was in the middle of the block, upwards of 200 feet away. He testified, on direct examination:

“I made a stop at Russell street. Riopelle is the next street east of Russell. When I first saw this coal wagon it was just breaking on Forest avenue from Riopelle street going south. It was moving. I was about in the middle of the block between Riopelle and Russell. As near as I can remember, I was about 60 feet west of the alley that is nearest Riopelle. When I saw the team come out of Riopelle street onto Forest avenue, proceeding towards the track, I began to ring my gong and throw off my power.”

He further testified that he knew that the track was slippery before the accident happened. He testified:

“If I had a dry rail, going at the rate of 12 miles an hour, you could ordinarily stop the car in 60 feet. I attempted to stop it sooner this morning because I knew I was sliding. I knew the rail was slippery and I could not stop it as soon as I otherwise could stop it, and I attempted to make my stop as soon as I was at such a point with reference to the crossing as to enable me, in my opinion, to stop before I got to the wagon.”

On cross-examination, he testified:

“When I saw the driver I was about 220 feet away. I _ moved on along a little ways before I applied my air. As soon as I saw the horses and wagon moving southerly, and about to cross the tracks, I did not apply my air. I said I shut off my current when I was in the middle of the block. I didn’t apply the air right away; I went on without current. I did not apply the air immediately because I thought I had room enough, time enough, to stop without. I thought I could bring my car to a stop and permit the horses and wagon to clear the tracks. When I first saw the horses and wagon moving southerly on Riopelle street about to cross the company’s tracks, I did not know whether the horses could cross before I would approach near enough to them or not. I believed that at that time. I approached Riopelle street, and when I got about to the alley west of Riopelle I put on my air and set the brakes; that is, from about 220 feet to the point alongside of the alley, I let my car roll along without current.”

The driver of the wagon, called under the statute by the plaintiff, testified that he came to Forest avenue and stopped; that he then saw the car at Russell street (450 feet away) and started to cross; that, when the horses’ feet were on the south track, the car was 225 feet away; that it was about halfway between the two alleys; that he used all the speed he could to get across the track. He testified:

“The car did not decrease its speed or slow down any from the time I saw it in the middle of the block until it hit my wagon.”

He qualified this later by testifying:

“It did not slow down until it got to the line of the sidewalk on the west side of Riopelle. When it hit the wagon, it hit it just hard enough to throw it to the east, and the boards fell off, and the coal spilt off, and the boards hit the woman. It threw my wagon about 10 feet, and it hit the snow bank, and broke it in half and threw it upon the sidewalk, and the wheels were pretty near the curbstone, and the boards hit the woman.”

Upon the cross-examination of one of plaintiff’s witnesses, counsel for defendant Mincel asked the following question:

“Q. Did you notice the cars were running that morning — that they were running and stopping any different than you had observed on other days?

“Counsel for Defendant Railway: I object to that as irrelevant and immaterial.

“The Court: You may take an answer and note an exception.

“A. They were stopping just like they did on other days.”

The following question was asked the motorman, on cross-examination by counsel for defendant Mincel:

“Q, If, at that particular point as I have described it, Mr. Wellington, you had applied sand, state whether or not the car would have stopped, or would not have stopped?

“Counsel for Defendant Railway: I object as calling for a conclusion and as speculative. * * *

“The Court: I think at that particular time, and that particular moment, is a matter for the jury’s determination. I have no objection, don’t misunderstand me, for your finding out what the effect is of the application of sand, and then you may argue to the jury, if he had used the sand at this particular time, would this have happened. I don’t think, you have a right to ask if he had done a thing at a particular time, unless everything — all of the circumstances — are included, and you are asking the question. Because, even if he had applied the sand, something else might have happened.

“Counsel for Defendant Railway: I think, may it please the court, I will have the record disclose an objection to yo.ur honor’s ruling upon the motion, and for the reason your honor gives for sustaining it. * ❖ *

“The Court: All right; you may proceed.

“A. When you apply sand to the track, sometimes the wheels hold on it, and sometimes they don’t. If, when I was 150 feet away from Riopelle street, after I released my air, I had applied sand, I cannot state whether the car would have stopped, or would not have stopped sooner. After I released the air the car rolled along 10 or 12 feet, I presume.. I just let it roll along until I could get it reversed. When I was 150 feet away from Riopelle street, I knew that I could not bring the car to a stop before I collided with the wagon. I was about 135 or 140 feet away from Riopelle street when I applied my reverse. I applied the sand just as I put on the reverse — put them on simultaneously. I skidded that distance of 135 feet.”

The defendant the Detroit United Railway requested the court, among other things, to charge the jury as follows:

(17) "It does not appear that the motorman was guilty of any negligence in failing to observe the actions of the driver of the coal wagon.”

(18) "The motorman was not guilty of any negligence or want of care in failing to watch his track ahead of him in the vicinity of the crossing at Riopelle street.”

(20) “There is no evidence of negligence with respect to the speed of the car at any time before the motorman saw, or should reasonably have seen, that the driver of the coal wagon intended to attempt the crossing ahead of the car.”

(21) “When, to avoid an impending collision, the motorman is obliged to choose instantly. one of two appliances or methods provided for stopping the car or averting the collision, he is not guilty of, and his company is not chargeable with, negligence, because the event proves that the one he chose and used may not have been efficacious, or the best to meet the exigency.”

(22) “Whether the one or the other means provided for stopping should have been adopted was a matter for the exercise of the motorman’s judgment. For an error in its exercise the defendant could not be held responsible. Even the failure to have exercised the best judgment would not be evidence of negligence.”

(30) “No presumption of negligence arises against the defendant Detroit United Railway in this case because of the accident and the injury to the plaintiff.”

The following questions are raised and errors relied upon by appellant:

(1) There was no evidence of negligence upon the part of the Detroit United Railway, and the court should have directed a verdict in its favor.

(2) The court should have excluded the evidence that the car that ran into the wagon was running faster than other cars had run on the morning of, and before, the accident happened.

(3) That the court erred in ruling that it was competent to show by the evidence the effect of the application of sand, and then to argue from this whether, if sand had been used, the accident would have resulted.

(4) There was error in the court’s action in refusing appellant’s requests Nos. 17, 18, 20, and 30, and in modifying its written requests Nos. 21 and 22.

The court in part charged the jury as follows:

“If the jury believes from the evidence that the accident resulted solely through the negligence of the driver of the coal wagon, then your verdict will be against the defendant Mincel and in favor of the defendant Detroit United Railway.

“The defendant Detroit United Railway primarily owed no duty to the plaintiff to check or stop its car before it reached Riopelle street.

“It" does' not appear that the motorman saw, or, in the exercise of reasonable care, should have seen, the position of the plaintiff and her proximity to the wagon and the scene of her injury at any time before the car struck the coal wagon.

“The extent of the defendant Detroit United Railway’s duty to the plaintiff in this case was to use reasonable. care and diligence to avoid injury to her, and, if it did so, it is not negligent, and your verdict would be in its favor.

“There is no evidence of failure on the part of the defendant Detroit United Railway to employ reasonably competent servants, and to furnish reasonably safe and adequate appliances and equipment upon its cars to control, check, and stop the same when necessary, and therefore no negligence can be imputed to it upon this theory.

“There is no evidence of negligence with respect to the speed of the car at any time before the motorman saw, or should reasonably have seen, that the driver of the coal wagon intended to attempt the crossing ahead of the car.

“When, to avoid an impending collision, the motorman, if up to this moment in the exercise of reasonable care, is obliged to choose instantly one of two appliances, in this respect I have modified the request as presented.

“Mr. Fitzpatrick: What part is that?

“The Court (continuing) : No. 21.

“When, to avoid an impending collision, the motorman, if up to this moment in the exercise of reasonable care, is obliged to choose instantly one of two appliances or methods provided for stopping the car or averting the collision, he is not guilty of negligence, and his company is not chargeable with negligence, because the event proves that the one he chose and used may not have been efficacious, or the best to meet the exigency.

“What is meant by that, gentlemen, is this: That if a man in the course of his duty, and while in the exercise of ordinary care, is suddenly confronted with a situation, and he does not use which at that moment, in his judgment, is the best thing to use, because the thing that he used does not do the work as well as another one might have done, the fact that he uses what, in his judgment, is the best thing does not make him chargeable with negligence.

“Whether the one or the other means provided for stopping the car should have been adopted was a matter for the exercise of the motorman’s judgment. For an error in its exercise the defendant could not be held responsible. Even the failure to have exercised the best judgment would not be evidence of negligence.

“That is nothing more than a continuation, or a partial repetition, of the one previously given you, and all are given to you under the assumption that at the time of the exercise of the judgment, or, rather, up to the time when called upon to exercise this judgment, there was no want of care upon the part of the motorman.

“If the jury believes from the evidence that the motorman, from the moment he saw, or reasonably should have seen, that it was the intention of the driver of the coal wagon to attempt the crossing, used such means and facilities to check and stop the car as, in his judgment, would prove sufficient and adequate for such purpose, then he would not be negligent, and your verdict would be in favor of defendant Detroit United Railway.

“I have considerably modified No. 25.

“A motorman has a right to believe that a driver will not attempt to cross the track directly in front of the car, but that he would stop his team and wait for the car to- go by. And he has a right to rely upon such belief until that moment when he sees, or reasonably should see, that the driver, disregarding the danger, intended to attempt the crossing. And, if from this moment the motorman used such means and facilities as he had at hand and as, in his judgment, would stop his car before it struck the wagon, then the motorman would not be guilty of negligence, and the defendant Detroit United Railway would not be liable, notwithstanding his attempt to stop the car was not successful and the accident occurred.

“The plaintiff having called and sworn the witnesses Toporsky and Roth, she is bound, by their evidence, in so far as she has not contradicted and disproved the same.

“Even if the jury should believe that the witness Toporsky did make some statement or claim as to the rate of speed at which the car was going at any other time or place than upon the witness stand, this would not be evidence of the fact as to the rate of speed, and would not be binding upon the defendant Detroit United Railway.

“The burden of proof rests upon the plaintiff in this case to satisfy you by a fair preponderance of the evidence of the negligence of the defendant Detroit United Railway in the particulars charged in her declaration against it, of her freedom from contributory negligence, and of the nature and extent of her injuries. * * *

‘‘There is no evidence in this case from which the jury can find that it was reasonably practicable to stop the car sooner, or in a shorter distance, than it was stopped in under the conditions of the track and weather shown to exist.”

It is the contention of appellant that there was no evidence of negligence upon its part, and that the court should have directed a verdict in its favor.

We cannot agree with counsel for appellant in this contention. We think that it was a fair question for the consideration of the jury whether or not the servant of appellant, the motormán, was negligent in failing to have got his car under control, and so kept it from the time he first saw the wagon attempting to cross the track. It is claimed by the driver of the wagon that the car was 450 feet away when he started to cross the track; that there was nothing to obscure the view. And the testimony of the conductor and motorman is to the effect that the wagon was at least 225 feet away when it was first seen by the motorman. We think it cannot be said, as matter of law, that when the motorman saw this big wagon, heavily loaded with coal, upon the tracks,- and knew that the tracks were slippery, and did not put his car immediately under control and so keep it, but simply cut off the current and let the car roll along, that the question of negligence was not one to be submitted to the jury.

We find nothing in the case of Bush v. Railway Co., 113 Mich. 513 (71 N. W. 851), that conflicts with this view. In that case the question of negligence in the management of the car, under similar circumstances, was submitted to the jury, with approval of' this court.

Our attention is also called to the case of Levy v. Railway Co., 164 Mich. 572 (129 N. W. 683). We think a distinction should be made between that case and the instant case in this: In the Levy Case the motorman saw a man standing upon the track when a single step would have placed him beyond any danger. In the instant case the motorman saw a heavily loaded wagon, drawn by horses, the team and wagon being at least 25 feet in length, attempting to cross the track ahead of his car. In the nature of things, it would take considerable time for them to move off. We think the difference is apparent:

In the case of Ablard v. Railway, 139 Mich. 248 (102 N. W. 741), this court said:

“It was the duty of the motorneer to have the car under such control as to admit of its being stopped after he became able to discover objects on the track, and before a collision with such objects should occur, and it was his duty to give timely warning of his approach.”

The assignment of error upon which this proposition is based does not sustain the position of counsel. Counsel says, in argument, that the court should have excluded the evidence that the car that ran into the wagon was running faster than other cars had run on the morning of, and before, the accident happened. The assignment of error is based on the admission of the testimony which we have copied above. The evidence, instead of showing that the car which ran into the wagon was running faster than other cars, was to the effect “they were stopping just like they did on other days.” We cannot see that any point is raised in this assignment for us to consider. If there was error in permitting the question to be asked, the answer was harmless, and the error without prejudice.

Notwithstanding the contention of counsel, and bearing in mind the holding of this court in Nissly v. Railway Co., 168 Mich. 676 (131 N. W. 145, 135 N. W. 268, Ann. Cas. 1913C, 719), we do not find that there was any error in the ruling of the court to permit evidence as to the effect of the application of sand upon the track. We think that the matter was properly taken care of by the trial court in its charge to the jury, as above set forth.

We have examined the charge of the trial court with care, and are of opinion that it did not err in refusing to give defendant’s seventeenth and eighteenth requests to charge, for the reason already stated, that there was a fair question for the jury upon the subject of whether the motorman properly put his car under control, and so kept it when he saw the impending danger; and we find no error in the modification of defendant’s requests.

While the court did not give appellant’s thirtieth request, yet it did instruct the jury as to the burden of proof and the duty of plaintiff to prove negligence of defendant, in the following language:

“The burden of proof rests upon the plaintiff in this case to satisfy you by a fair preponderance of the evidence of the negligence of the defendant Detroit United Railway in the particulars charged in her declaration against it.”

In conclusion, we will say that it appears to us that the charge of the trial court was as favorable-to the appellant as could be reasonably asked.

We find no error in the record of which the appellant should complain, and the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    EMERY v. EMERY.
    1. Divorce — Extreme Cruelty — Profanity.
    The use of profane language by a husband toward a refined wife constitutes extreme cruelty and is ground for a divorce.
    2. Same — Improper Conduct — Extreme Cruelty.
    Evidence that defendant had violent fits of anger and used profane language toward his wife, pointed a loaded revolver at her, forced her out of the house and locked her out, that he was harsh in his treatment of her. before her confinement, and domineered over her, and showed her but little affection, also tending to show that he was not an affectionate or considerate husband, and his conduct made it impossible for them to live together, entitles complainant to a decree of divorce, notwithstanding that complainant was nervous and at times inclined to parade her troubles before her parents.
    3. Same — Appeal and Error — Evidence.
    Notwithstanding the court below had the advantage of seeing and hearing the witnesses, this court, on appeal, is not relieved from the duty of exercising its own judgment in passing upon the evidence.in the case.
    4. Same — Husband and Wife — Aumony—Separation Agreement —Property Interests.
    An agreement entered into by a husband and wife, after their separation and after the starting of divorce proceedings, settling their property interests, where fair and free from collusion, is not only lawful but commendable.
    Appeal from Genesee; Wisner, J.
    Submitted April 27, 1914.
    (Docket No. 146.)
    Decided June 1, 1914.
    Bill by Harriet Z. Emery against William J. Emery for divorce. From a decree for defendant, complainant appeals.
    Reversed.

      William V. Smith, for complainant.

      John F. Baker, for defendant.
   Stone, J.

The bill of complaint in this cause was filed by the wife to obtain a divorce from the husband on the ground of extreme cruelty. The parties were married January 27, 1909, at which time the complainant was 24 years of age and the defendant 25. They lived together until July 6, 1910, when they separated. One child, Max Earl, was born January 27, 1910, just one year after the marriage.

The specific acts of cruelty charged in the bill are to the effect that soon after their marriage defendant was guilty of coarse and unkind treatment of complainant, cursing and swearing at her; that complainant was a person of religious convictions, and, when able, a regular attendant upon church; that defendant seldom spoke kindly to her, but had fits of violent anger, at which times he used profane language and cursed her, and the specific language used is stated in the bill. She further complains:

“That he kept a loaded revolver in their room in plain sight, and your oratrix was by his conduct and the presence of such revolver kept in a state of nervous excitement and fear. That during the period of her pregnancy defendant's conduct continued to be the same. That on one occasion, and about three weeks after the birth of her child, defendant pointed the revolver toward your oratrix, and seized her and said he would as soon shoot her as to look at her. That soon after the birth of her child defendant, and on such occasions as defendant was not working, refused to get up and build the fire, and your oratrix was obliged to do so, although she was not recovered from the illness attending her confinement. That his course of cruelty continued up to the time of their separation in July, 1910, and he continually found fault with your oratrix, and required her to work beyond her strength, and on two occasions she was obliged to call on the police for protection. That he forcibly put her out of the house on July 5, 1910, and she returned that night, but next day she left him because of his violence.”

In her bill she prayed for the care and custody of the said child until he should attain the age of 14 years.

In and by his answer the defendant denied that he treated complainant in a cruel manner; denied that he had fits of violent anger, or that he was habitually profane. Quoting the language of the answer he—

“Denies that he ever pointed the revolver at her and said that he would as soon shoot her as look at her; denies that he habitually found fault with complainant ; denies that he required her to work beyond her strength. Defendant admits that he kept a loaded revolver in the house, which he did as a protection, and as any householder might do, and for the further reason that there were a number of hoboes seen in that vicinity; although the revolver was kept in the house defendant denies that the complainant was kept in a state of nervous excitement and fear, for this defendant had taught the- complainant the use of it, and she felt it rather a protection than a menace and danger; however, this defendant did, upon one occasion, after they had retired at night, pick up the revolver from the dresser, and state to the complainant that some men would just as soon shoot her with a revolver lying so near by, if she provoked them as she did this defendant, which act and suggestion on the part of this defendant was more to close their discussion than as being in earnest about the matter.”

After denying that complainant was compelled to build fires he further answered:

“Defendant admits that complainant called the police upon one occasion when they were living together, and that the police were called to interfere upon the occasion of the complainant’s father’s assault upon this defendant at the store of Smith, Bridgman & Co., the day upon which this complaint was filed; but upon the first occasion there was absolutely no justification for her action, and this defendant believes that she was influenced in doing so by her parents, particularly her mother, as they lived only a few doors away, and the whole episode was the outgrowth of this complainant insisting on going to her mother’s in the evening time and taking their six months old child with her, which this defendant objected to, as the child was suffering from a cold at the time, and, because of the defendant’s not allowing her to take the child, her father and mother both came down and started a ‘rough house,’ and this defendant was compelled, in order to protect himself in the premises, to gently escort his mother-in-law to the wrong side of the door from her point of view, as she went one better than the proverbial mother-in-law, his father-in-law showing some better sense, and behaving very sensibly in the premises by betaking himself from the premises after this defendant had kindly pointed out to him that it would be much more healthy and more dignified for him to do so, although he came there with ‘blood in his eye,’ and vowed vengeance on his ‘vicious’ son-in-law, and despoiler of their religiously inclined and much abused daughter’s peace and happiness.”

The foregoing flippant and pert language of defendant is characteristic of his entire answer and testimony.

Defendant claimed the benefit of a cross-bill, and asked for affirmative relief, mainly upon the ground, that complainant was under the control and domination of her mother and would not obey him. He also prayed for the care and custody of the child.

We cannot undertake to quote the testimony pro and con in the case. Upon the charge of the use of profane language by defendant to complainant, shortly before her confinement, the testimony of complainant is corroborated by that of witnesses outside of the family. In fact defendant does not deny such conduct, but testified that he may have used profanity, but did not recall it, saying:

“I had no idea it would be remembered, because it had no significance. I said the incident was of such small significance that I never remembered it.”

This court has held that it is extreme cruelty for a husband to swear at and curse a refined wife. On several occasions such language was used without any provocation. Briggs v. Briggs, 20 Mich. 34; Warner v. Warner, 54 Mich. 492 (20 N. W. 557).

The revolver incident and the occasion when defendant forced complainant out of the house and locked her out, seem to be established by the evidence. These are a part only of the improper conduct of the defendant. The general trend of the evidence is to the effect that defendant was possessed of an exacting and domineering disposition. His great dislike and aversion of his mother-in-law led him to harsh and cruel conduct toward his wife. He was very exacting and harsh in the treatment of complainant before her confiement, and seems to have had but little affection for her, and was most concerned in demonstrating that he was the ruler of his own house.

That she was nervous during the period of her pregnancy, and at times petulant, might well be expected. Defendant on direct examination testified:

“She would want an argument. It was useless for me to keep quiet for all she would do then would be to go in a corner and cry; she wanted to have it.

“Q. Did she seem more contented to have a little chewing match?

“A. Yes, sir; it seemed to relieve the pressure.

“Q. Did she seem nervous? Was she sick?

“A. She was sick.

“Q. She was not well?

“A. No.

“Q. Her temperament was unusually irritable wasn’t it?

“A. I believe it was.

“Q. She seemed depressed?

“A. Yes, sir; some little excitement seemed to do her good.”

On cross-examination he testified that complainant would want to “scrap,” and he would “scrap” with her, “anything to oblige her.” The whole testimony tends to show that defendant was very far from being an affectionate and considerate husband. By his conduct the parties have drifted so far apart that we are satisfied that they can never live together in any proper manner. As this court said in Utley v. Utley, 155 Mich., at page 259 (118 N. W. 933), so we say here:

“We are impressed that the parties should be relieved entirely of the relations entered upon with their marriage.”

The circuit judge tried to bring about a reconciliation, but failed, and then dismissed the bill of complaint, and gave no relief to either party. The fact, if it be a fact, that complainant was nervous, and perhaps paraded her troubles before her parents more than was wise, does not disentitle her to relief.

In the consideration of the case we have endeavored to give due weight to the advantage which the circuit judge had in seeing and hearing the witnesses give their testimony in open court. This, however, does not relieve this court from the duty of the exercise of its own judgment in passing upon the evidence in the case.

After the separation, the parties entered into an agreement relating to their property matters. Such agreement seems to have been fair and free from collusion. This court has consistently held that, after actual separation, or the launching of a bill for divorce, amicable settlements between the parties of their property interests are not only lawful, but are to be commended. Randall v. Randall, 37 Mich. 563; Palmer v. Fagerlin, 163 Mich. 345-349 (128 N. W. 207); Nichols v. Nichols, 169 Mich. 540-542 (135 N. W. 328).

An examination of the whole record satisfies us that the defendant has been guilty of such continued and persistent extreme cruelty as to entitle the complainant to a decree from the bonds of matrimony.

The decree of the court below will be reversed, and a decree entered here, granting complainant a divorce, and giving her the care and custody of her child.

Complainant will recover against the defendant her costs of both courts to be taxed.

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


text:
      In re DE SPELDER’S ESTATE. BOLTHOUSE v. DE SPELDER.
    1. Witnesses — Husband and Wife — Matters Equally Within Knowledge of Deceased — Assignment.
    The husband of claimant, who filed a claim against an estate for services performed, was not such a party in interest because he had assented to his wife’s performing the work and receiving the proceeds, as to be barred from testifying to the terms of the agreement between decedent and his wife under 3 Comp. Laws, §10212 (5 How. Stat. [2d Ed.] § 12856), excluding the testimony of an assignor of the claim as to matters equally within the knowledge of the deceased.
    2. Contracts — Married Women — Validity—Husband and Wife.
    A married woman is not disabled from making a contract for domestic services and labor- to be performed in the household of herself and husband and to be paid for out of her estate after death, notwithstanding she had no separate property at the date when she made the agreement.
    3. Evidence — -Estates of Decedents — Wills—Contracts.
    Upon the trial of a claim against the estate of decedent for services rendered in the lifetime of deceased and to be paid for out of her estate by will, the admission of the will of her husband showing that it conveyed property to her, creating a separate estate, was not erroneous and the inventory of the estate of the decedent and her will were also admissible in evidence.
    4. Same — Value—Work and Labor.
    Testimony of an acquaintance of decedent, who was intimate with the family and knew about the household affairs, was competent, and the witness was qualified to state her opinion relative to the value of services performed by the claimant, its weight being for the jury.
    5. Same — Hearsay—Self-Serving Declarations.
    Declarations in the interest of decedent who made them are incompetent, if they were not made in the presence of the opposite party: the test seems to be whether she might have testified upon the subject if she was living.

      Error to Ottawa; Cross, J.
    Submitted April 28, 1914.
    (Docket No. 157.)
    Decided June 1, 1914.
    Jeannette Bolthouse presented her claim against the estate of Jannetje De Spelder, deceased, and appealed to the circuit court from an order disallowing the claim. Judgment for claimant and Elizabeth De Spelder, executrix of said estate, brings error.
    Affirmed.

      Farr & Kolyn (George A. Farr, Jr., of counsel), for appellant.

      Peter J. Danhof and Corle C. Coburn, for appellee.
   Stone, J.

The claimant filed a claim in the probate court of Ottawa county which was as follows:

“Estate of Jannetje De Spelder, Deceased,

“To Jeannette Bolthouse, Dr.

“For washing, care and nursing of the deceased Jannetje De Spelder and her husband, Jacobus De Spelder at request of Jannetje De Spelder, from May 1, 1903, to day of death of Jannetje De Spelder, June 17, 1912, at $4.00 per week, nine years, $1,862.00.”

The claim was disallowed by the probate court, and an appeal taken to the circuit court for the county of Ottawa. The case was there tried before a jury and resulted in a verdict for the claimant in the sum of $1,600, and costs of suit.

The parents of claimant had been much in the employ of Mrs. De Spelder and family before the birth of claimant. During the first 15 years of claimant’s life, she was much of the time in the De Spelder family, and she remained with that family, more or less of the time, until she finished the eighth grade in the public schools. It seems to be undisputed that from the time the claimant was 15 years of age until she was married she remained with Mrs. De Spelder in service, which was consented to by the father of claimant, who testified, without objection, upon the trial, that he gave his consent to her remaining there and to her having her own wages. At the age of about 19 years, the claimant was married, on February 8, 1906, and, with her husband, immediately moved to Grand Rapids, where they stayed until about August 1st. Mrs. De Spelder, apparently, was very much attached to the claimant and desired her to return and live with and assist her in her household affairs, her family consisting of herself and husband, Jacobus De Spelder, then well advanced in years. They lived in the home belonging to Jacobus, but the evidence is very convincing that Mrs. De Spelder had principal charge of the affairs of the family. Money was sent by Mrs. De Spelder to enable claimant and her husband to return from Grand Rapids and enter the home and service of Mrs. De Spelder. After they had been in_the De Spelder home a few days, the following arrangement was made between the claimant and Mrs. De Spelder, as testified to by Floris Bolthouse, claimant’s husband, under objection and exception, which will be referred to later.

“Q. Do you recollect any conversation between your wife and Mrs. De Spelder with reference to her working there after you moved back here?

“A. Yes, we were here something like a week or' two weeks; it was in the evening.

“Q. What was the conversation that you heard?

“A. They were in the kitchen, and I was in the dining room. I heard them talking about it. Now she says, ‘Jennie, you are back here, and I am glad you are back.’ She says. ‘Now if you stay with me I will make it good with you in my will.’ Now, she says: ‘Don’t worry, Mrs. De Spelder, I will never leave you under no condition.’ She says, ‘If my husband does want me to go away, I won’t go, because I will promise you I will stick to it.’

“Q. Did you consent to her arranging there and working under that arrangement?

“A. Not that minute, but when we got into our own room she talked to me and asked me what I thought about it, and I says: Tt is up to you. You can do what you want to. What you get out of it is yours.’ She remained there about two years. Then we went to Ferrysburg. During the time we lived in. Ferrysburg, my wife returned to Grand Haven to1 work for Mrs. De Spelder about three times a week. I was working there. That was during the winter. I don’t remember just the date we left for Ferrysburg. It was somewhere during the first part of December when the snow started to fly. We returned somewhere around February. When we left it was our intention to return in the spring. We left some of our furniture there. * * * We moved back in the spring and remained up to her death. My wife did general housework, nursing, companionship in the evening there. She was called to attend her at night. I don’t know just how often, quite often, but I don’t know how many times. During that time Mrs. De Spelder ran the house. She did all the business. The old man was weak. His mind was kind of wandering. Sometimes he got lost.”

On cross-examination the following occurred:

“Q. You say that you had some talk with your wife and Mrs. De Spelder about— what about, after you came from Grand Rapids?

“A. I did not talk with the both of them.

“Q. You heard a conversation between the two?

“A. Yes.

“Q. Then you had a talk with your wife after that ?

“A. Yes.

“Q. Where was this talk?

‘‘A. In our kitchen. No one was present when my wife and I had this talk. We were alone. I told her whatever arrangement she made with her was all right, after she told me what she talked about, I said, T heard it,’ and, Tt is all right.’ I says: ‘Everything you get out of it is yours. I won’t stop you.’ I did not have any further talk with Mrs. De Spelder about this. Mrs. De Spelder knew I would allow my wife to stay there then. I told her I would let my wife stay. I don’t remember when, but I told her we would both stay. She did not ask to have me stay. I was not in the deal at all.- I was paying rent.”

The foregoing testimony was objected to by appellant’s counsel on the ground that it was a matter equally within the knowledge of the deceased, and that the witness was an opposite party under the statute. After some discussion, the testimony was allowed to stand, and appellant’s counsel excepted to the ruling and subsequently moved to strike out all this testimony, which motion was refused and the ruling duly excepted to. It further appeared upon the trial that Jacobus De Spelder died testate on the 3d day of May, 1910. Upon the trial of the case, the last will and testament of Jacobus De Spelder and the inventory of his estate, as well as the last will and testament of Jannetje De Spelder and the inventory of her estate, were admitted in evidence over the objection and exception of the appellant that the same were irrelevant and immaterial.

A witness, Katie Pals, was permitted to testify upon the subject of the value of the services of the claimant during the nine years that it was claimed she was in the employ of Mrs. De Spelder. This woman was a neighbor *who, during this period of time, was frequently in the De Spelder home, her visits varying from a number of times a week to less frequent occasions, during which time she had divers conversations with Mrs. De Spelder and observed the claimant in her work and duties there in the care of the household. It is the contention of appellant that she did not show herself sufficiently acquainted with the services performed by the claimant to be able to testify upon the subject.

Error was also assigned upon the ruling of the court in excluding some testimony offered by the executrix of the estate relative to her conversations with Mrs. De Spelder, after her husband’s death, with reference to claimant. These conversations were objected to by claimant’s counsel as incompetent and improper. The proposed testimony seems to have been excluded upon the ground that the same was self-serving and statements of the deceased that she would not be permitted to testify to were she alive. They were in the absence of the claimant, and exception was taken to the ruling of the court. The remaining assignments of error relate to the charge of the court, and will be referred to later. Appellant has brought the case here upon writ of error.

By appropriate assignments of error, counsel for appellant have discussed the questions involved under the following heads:

(1) Errors relating to the admission in evidence of testimony by the husband of claimant as to the conversation he overheard between claimant and decedent with reference to services; he at the time not having assigned to claimant the right to recover for her own services.

(2) Errors relating to the admission in evidence of testimony of services rendered by claimant at the Dé Spelder home prior to the death of Jacobus De Spelder, husband of decedent.

(8) Errors connected with the admission in evidence of the inventory of decedent’s estate and of the will and inventory of her husband’s estate.

(4) Error in admitting improper evidence of the witness Katie Pals of the value of claimant’s services.

(5) Error in rejecting testimony of the executrix as to conversations with decedent as to the relations between decedent and claimant, and with reference to decedent’s physical condition.

(6) Error in the incomplete and ambiguous charge of the court with reference to what the alleged contract claimed by claimant was.

It is urged by appellant’s counsel that at the time claimant’s husband heard the alleged conversation with decedent, to which he testified, no assignment to his wife of her right to her services and earnings had been made, and that he was the real party in interest and the opposite party under the statute; also, that if claimant’s husband was not then the real party in. interest, he was an assignor under the statute, and by reason of that fact was precluded from testifying to those matters equally within the knowledge of the deceased; and counsel call attention to the statute, § 10212, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12856). Counsel cite and rely upon the case of Stackable v. Estate of Stackable, 65 Mich. 515 (32 N. W. 808), and later decisions to the same effect.

We have examined these cases, as well as some of the later ones, particularly In re Van Dyke’s Estate, 171 Mich. 195 (137 N. W. 79); but, in our opinion, these cases are not controlling here, for the reason that the evidence in the instant case does not bring it within the rule contended for. As to the services rendered by the claimant prior to her marriage, claimant’s husband would have no interest therein. It will be noted in the testimony that almost immediately upon the arrival of claimant and her husband from Grand Rapids, and before any definite arrangement had been made, the contract testified to by the husband was entered into between claimant and decedent, and that upon the same evening he consented to the arrangement and told his wife that she might have the fruits of her labor in that regard. We think that the case is governed by the doctrine of this court in Slack v. Norton, 111 Mich. 213 (69 N. W. 497). It was there held that a married woman is entitled to the benefits of a contract by which she furnished board and care to another, where all the supplies were provided by her and the arrangement was entered into and carried out with the consent of the husband; that in a proceeding by the wife to enforce such a claim against the estate of a decedent the-husband is competent to testify to the arrangement made with the deceased, since he does not stand to the wife as assignor of the claim, and is therefore not within the statute prohibiting the assignor from testifying to matters which, if true, were equally within the knowledge of the deceased. In the last-cited case, Long, C. J., speaking for the court, said:

“In the present case, the wife was permitted by her husband to keep boarders, furnished the provisions herself, and with which it is apparent the husband had nothing to do. In this respect it differed from the Stackable Case, and the husband was a competent witness to show that this was the wife’s business, and not his own. It is not an action upon an account brought by the wife which has been assigned to her. It is a claim with which the husband had nothing to do, if his testimony given in the case is to believed. The husband did not stand towards the wife as the assignor of the claim, and therefore was not prohibited by the statute from testifying to any arrangement which the wife made with the deceased for his board and care. * * * It has been decided many times in this court that a married woman, with the consent of her husband, may carry on business on her own account, and may be protected in the results thereof, against him and against his creditors, to the same extent as if she were unmarried” — citing Tillman v. Shackleton, 15 Mich. 447 (93 Am. Dec. 198) West v. Laraway, 28 Mich. 464.

We see no difference in principle between the instant case and the one from which we have above quoted. The whole arrangement from the time the parties left Grand Rapids to the time of the death of Mrs. De Spelder seems to have been with the assent and consent of the husband. We think the court did not commit any error in receiving this evidence, or in the manner in which it was dealt with.

This subject relates to the question whether Mrs. De Spelder, being a married woman, was competent to make the contract with claimant. It is the claim of appellant, as we understand it, that Mrs. De Spelder, being a married woman living in the home of her husband, was incapable of entering into said contract by reason of her marriage. There is no question under the testimony that the contract was made with Mrs. De Spelder, who at that time was really in charge of the home and -ran the affairs of the house. Jacobus De Spelder was then an aged man and seems to have had nothing to do with the control of the household affairs. He, under the evidence, was not present when the contract was made, and there is no inference from the testimony that he ever made any agreement to pay for the services. On the contrary, the agreement expressly negatives such an understanding or inference, for the express and definite promise was made by Mrs. De Spelder to claimant that she would pay her in her will. This idea that claimant would be compensated in the will of decedent was expressed in many different ways, but all to the same effect. Under this proof, claimant could not maintain an action against Mr. De Spelder in his lifetime, or against his estate after his death, because claimant’s contract was to stay and work for deceased so long as she should live, and it would not be due and payable until after the death of Mrs. De Spelder. If Mrs. De Spelder’s estate was worthless, then the claimant would be without compensation, and it could not be said that the claimant could look to the estate of the husband of deceased. Upon this proposition, appellant’s counsel rely largely upon the case of Kirt v. Kropp, 110 Mich. 51 (67 N. W. 1080), which they quote at large in their brief. We do not think the case controlling here, principally for the reason that the contract was made solely and alone with Mrs. De Spelder, while in the last .above cited case it distinctly appears as follows:

“Plaintiff testified that she had conversations with both defendant and her husband as to her employment, and that both promised to pay her. She did work upon the farm as well as in the house.”

It might be well said that in the Kropp Case, the agreement being with the husband and wife, the wife could not be bound by the agreement. She certainly could not be bound as the surety of her husband in such an agreement. In our opinion the line of cases which should control in this case begins with the early case, already cited, of Tillman v. Shackleton, supra, that a married woman, living with her husband, is competent to make herself personally liable on contracts where she expressly pledges her sole credit, and the other party in reliance upon such promise parts with property or services, and that the husband is in no respect bound by her contract when the credit is not given to him. Campbell v. White, 22 Mich. 178; Hirshfield v. Waldron, 88 Mich. 116 (47 N. W. 239); Meads v. Martin, 84 Mich. 306 (47 N. W. 583).

The last above cited casé was an action of assumpsit brought by the plaintiff, who was a physician, druggist, and grocer, to recover for medical services, drugs, medicines, and groceries furnished to the defendant, a married woman living with her husband. It was held that the case was ruled by Hirshfield v. Waldron, supra, and that the plaintiff was entitled to recover. In that case it was claimed by the plaintiff that he gave credit entirely to the wife because the husband was irresponsible.

In Goodman v. Shipley, 105 Mich. 439 (63 N. W. 412), the defendant, a married woman, was held liable under the rule of Hirshfield v. Waldron, supra, and Meads v. Martin, supra, for medical services rendered by plaintiff for her and for her minor daughter, by a former marriage, who was living with her, at her request, and charged to her, and for which she agreed to pay. The case is an instructive one and distinguishes the case of Howe v. North, 69 Mich. 272 (37 N. W. 213), in which last-named case the plaintiff expressly testified that the husband and wife made the contract with her, and it was said that, if the defendant made the contract claimed with her husband, she simply became responsible as a surety, and it was held that the facts of that case warranted that statement.

In a number of cases where medical expenses resulting from an injury of a married woman incurred by and charged to her have been in suit, she has been permitted to recover for them upon the ground that she was liable to pay the debt contracted by her. Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153); First Commercial Bank v. Newton, 117 Mich. 433 (75 N. W. 934); Foster, Charles & Ewen Co. v. Felcher, 119 Mich. 353 (78 N. W. 120); Boyle v. City of Saginaw, 124 Mich. 348-353 (82 N. W. 1057); Gilson v. City of Cadillac, 134 Mich. 189 (95 N. W. 1084).

In Lempke v. Felcher, 115 Mich. 37 (73 N. W. 17), defendant, a married woman, was held liable upon her express promise to pay for the work and services of plaintiff upon her husband’s property, and the court charged the jury that if the defendant represented that she was the owner of the property she would be estopped from setting up the fact that it was not her property.

It is somewhat difficult to understand the position of appellant’s counsel as to the separate estate of Mrs. De Spelder, because they say in their brief the question is nowhere in issue as to whether deceased had a separate estate from and after 1901, and that this point is not questioned by defendant, and yet their argument proceeds upon the theory that she, being a married woman, living with her husband, had no separate estate to be charged. It is very evident that she believed and supposed she had a separate estate, for all the evidence tends to show that she agreed to provide for the payment of claimant in and by her will. The will of her husband, which is in evidence, bears date in 1901. Whether she knew its contents or not does not appear. How much of her estate was derived from his will, or from him, does not appear in this record. It is very clear to us that, if she obtained the services of claimant upon the representation claimed, it would make no difference whether she was then seised of a separate estate or not, for her agreement was to pay after her death by a provision in her will, evidently in expectation that she would then have an estate; and the doctrine of estoppel might well apply, as it was applied in the case last above cited. It has been held in this court that a married woman can make herself personally liable for the services of an attorney in a divorce case. Wolcott v. Patterson, 100 Mich. 227 (58 N. W. 1006, 24 L. R. A. 629, 43 Am. St. Rep. 456); McCurdy v. Dillon, 135 Mich. 678 (98 N. W. 746). It has also been held that a married woman upon her own promise to pay is liable for the services of a nurse. Barber v. Eberle’s Estate, 131 Mich. 317 (91 N. W. 123).

In our opinion the validity of the wife’s contract does not depend upon the thing bargained for, becoming a wife’s separate estate as soon as delivered to her, but whether or not she did agree individually, or personally, to become liable, and the other party looked to her exclusively for payment, whether the thing bargained for was property or services. The real question is: “Did the services benefit her or some member of her family?” We think the court did not err in its treatment of this question.

We find no error in the admissibility of the inventories and wills referred to. 'It is evident that the purpose for which the inventory of decedent was introduced was to show that she had a separate estate' in her lifetime. This cannot be said to be immaterial, although in our judgment it was not controlling. Her will was material for the purpose of showing that she. had made no provision for claimant therein. The will of Jacobus De Spelder was material as tending to show that it gave to Mrs. De Spelder property and that she had a separate estate; and it also shows that claimant was not recompensed in and by such will. We are not able to see how the introduction of these instruments in any way prejudiced the appellant.

An examination of the testimony of Katie Pals satisfies us that” her acquaintance with the family and household of Mrs. De Spelder was sufficient to qualify her as a housewife to testify to the value of the services. True, she did not live in the family as did the witness in Lathrop v. Sinclair, 110 Mich. 329 (68 N. W. 248); but her visits to the house and her intimacy with Mrs. De Spelder were such that it was competent for her to testify upon the subject. • The weight of that testimony, of course, was for the jury. We find no error in the ruling of the court upon this subject.

We are unable to find any error in the ruling of the court excluding that part of the testimony of the executrix as to conversations had with deceased. This court has spoken a number of times upon the subject of declarations of decedent not in the presence of claimant tending to disprove a claim against the estate as self-serving statements. We might cite Coleman v. McGowan’s Estate, 149 Mich. 624 (113 N. W. 17); Bettinghouse v. Bettinghouse, 156 Mich. 169 (120 N. W. 617); Freda v. Tishbein, 174 Mich. 391 (140 N. W. 502). Declarations in favor of interest are inadmissible. Perhaps the best test is to ask whether the deceased would have been permitted to testify upon the subject were she alive. She certainly would not be as to any self-serving statements. Drake Coal Co. v. Croze, 165 Mich. 120 (130 N. W. 355).

We have examined the charge of the court with some care, and do not think it is subject to the criticism made of it by appellant’s counsel in their argument. It seems to have been a fair submission to the jury of the questions involved, and we find no error therein.

An examination of the entire record shows that no prejudicial error appears therein, and the judgment of the circuit court is affirmed.

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


author: Per Curiam.

text:
    PERKINS v. PERKINS.
    1. Appeal and Error — Rehearing—Final Order.
    In equity an appeal lies from an order denying defendant’s motion for a rehearing, and a motion to dismiss is denied, on the ground that the order is final.
    2. Equity — Practice—Rehearing.
    The court will be slow to grant a motion for rehearing in a case in which the time for taking an appeal has been , allowed to pass before it was filed. Where the mover has lost his appeal by inexcusable laches such motion should not be granted for objections or reasons that relate to errors committed at the hearing or in the final determination of the case.
    3. Same — Motions—Impeachment.
    No abuse of the discretion vested in the trial court was made out in the denial of a motion for rehearing alleging newly discovered evidence that consisted of annotations and memoranda made upon certain trial balance sheets by an important witness for the appellee: the effect of discrediting his testimony not being likely to change the result.

      Appeal from Kent; Connine, J., presiding.
    Submitted January 23, 1914.
    (Docket No. 84.)
    Decided June 1, 1914.
    Rehearing denied June 23, 1914.
    Bill by Frederick L. Perkins, as executor of the estate of Harriet M. Perkins, deceased, against Willis J. Perkins and others. From an order denying a motion for rehearing of the defendant named, he appeals.
    Affirmed.

      Martin H. Carmody and Roger I. Wykes, for appellant.

      A. C. Hindman, Myron H. Walker, and W. F. Keeney, for appellee.
   Per Curiam.

The bill in this cause was filed in December, 1901. A final decree was entered in the circuit court March 29, 1910. The decree was not enrolled until September 16, 1913. Something was done towards reviewing the case in this court; an attempted appeal being dismissed, on motion, March 12, 1913. Perkins v. Perkins, 173 Mich. 690 (140 N. W. 161). Pending the decision of the motion to dismiss the appeal, a motion was made for a rehearing. The reasons asserted were:

(1) That the conclusions of the court, evidenced in the written opinion and decree, were wrong — these involved a reargument of the cause upon its merits; (2) the possibility that no appeal would be permitted; (3) new evidence.

An order was entered September 16, 1913, denying a' rehearing. From this order defendant appealed. A motion was made to dismiss this appeal and was heard at the January, 1914, term of this court, without formally deciding which an argument upon the merits of the motion for a rehearing was ordered and has been presented. The order denying the rehearing was final and appealable, and the motion to dismiss the appeal is denied. Frieseke v. Frieseke, 138 Mich. 458 (101 N. W. 632); Bope v. Ferris, 77 Mich. 299 (43 N. W. 874); Harris v. Deitrich, 29 Mich. 366. To these authorities may be added those which hold that an order refusing leave to file a bill of review is. final and appealable.

The question now presented is whether such abuse of discretion by the trial judge is shown as to require a reversal of his order denying a rehearing. It was said in Simmons v. Conklin, 129 Mich. 190, 192 (88 N. W. 625, 626):

“The court will be slow to grant a petition for leave to file a bill of review in a case where the time for taking an appeal has been allowed to pass before filing it.”

In Murphy v. Schoder, 126 Mich. 607 (85 N. W. 1080), it was said that failure to take an appeal is not ground for leave to file a bill of review. See, also, Roberge v. De Lisle, 158 Mich. 16 (122 N. W. 362).

We think it apparent that the motion for rehearing is used.as a substitute for an appeal which the mover lost through unexcused and inexcusable laches. In so far as reasons for a rehearing are based upon errors committed upon the trial, they arid the arguments used to. support them are not different from those which might be presented by the losing party in any suit. They are to the effect that the trial judge should have reached other conclusions.

The alleged newly discovered evidence is certain trial balance sheets, or, rather, certain annotations and memoranda made upon trial balance sheets by Frederick L. Perkins, an important witness for complainant and at one time bookkeeper for appellant. It appears that a searching examination into and analysis of appellant’s business affairs during a period of years was made. Appellant’s financial condition, and whether he was making or losing money during the period, were in issue. No reasonable excuse is offered for failure to discover, among appellant’s books and papers, whatever was of value as evidence. What the books showed, and not what conclusions some one drew from them or some part of them, was the material thing. And the details of the business were, it would appear, examined critically. It is said the newly discovered memoranda tend to impeach the witness Frederick L. Perkins and to discredit his testimony upon material points; to show that he possessed knowledge and information which he denied. If this were true, and the evidence admitted, the effect of it upon the result is not at all clear. The trial judge was not moved by the showing made; the reasons were not satisfactory. Chancery Rule 27. He discussed, in a short opinion which appears in the record, and discussed only, whether the fact that an appeal had been lost was good reason for granting a rehearing.

We find no abuse of discretion made out, and therefore affirm the order appealed from, with costs to appellee.


text:
    KARWICK v. PICKANDS.
    1. -Evidence — Former Testimony — Diligent Search — Witness out of Jurisdiction — Showing.
    Evidence tending to prove that a witness who had testified at a previous trial had stated he was going to the State of Washington, that his acquaintances told plaintiff he had left Michigan, that the sheriff, who was called to the stand, made oath that he had inquired of 15 or more people about the witness, and had been informed that witness was not in the State, held, to justify receiving the former testimony of the witness, given at a previous trial of the case; the sufficiency of the preliminary proofs being largely in the discretion of the trial court, and an affidavit of the sheriff showing diligent effort to serve a subpoena, having been offered as a part of the showing.
    2. Same — Trial—Logs and Logging.

      Held, also, that no error such as to demand the reversal of the case had been committed in the reception of other evidence on the trial of an action for breach of a contract of towage involving plaintiff’s claim that defendant neglected to furnish sufficient boom sticks to safely transport certain logs.
    3. Set-Off and Recoupment — -Trial—Charge.
    Where the defendant made no claim of set-off upon the trial and presented no requests for instructions to the jury on that branch of the case, the trial court did not commit reversible error in omitting to present the claim to the jury, although set-off was pleaded.
    4. Logs and Logging — Towing—-Negligence.
    Evidence in an action for breach of contract to safely tow plaintiff’s logs, considered, and held, not to have required the giving of a requested instruction that if the plaintiff hired the tugs and booms by the day, subject to a custom that the loss caused by the breaking up of the raft should be borne by the owner, the verdict of the jury must be for defendant.
    5. Same.

      Held, also, that the charge of the court fairly presented the issues of the parties to the jury.
    Error to Cheboygan; Sharpe, J., presiding.
    Submitted April 30, 1914.
    (Docket No. 47.)
    Decided June 1, 1914.
    Assumpsit by John W. Karwick against Marion R. Pickands for breach of a contract to tow a raft of logs. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Victor D. Sprague, for appellant.

      David H. Crowley and C. S. Reilley, for appellee.
   Stone, J.

This case is before this court for the second time. For certain errors pointed out when the case was first here, it was reversed and sent back for a new trial. 171 Mich. 463 (137 N. W. 219). The former opinion contains a full statement of the issues involved, and it is not necessary to repeat that statement here.

The second trial of the case has resulted in a verdict and judgment for the plaintiff in the sum of $1,110.83, and the defendant has brought the case here for review, assigning errors in the admission of testimony, in the refusal of the court to give certain of defendant’s requests to charge, and in the charge of the court, and also in failing to present defendant’s set-off.

Upon the subject of the introduction of testimony, the most important matter discussed by counsel for appellant is the ruling of the trial court in permitting the testimony of Joseph Burnell, a witness for the plaintiff, given upon the former trial, to have been read in evidence upon this trial. It is the claim of appellant that no legal foundation for the introduction of this testimony was laid or shown, and that its introduction was prejudicial error.

Burnell was the plaintiff’s boom man. Upon plaintiff’s cross-examination he testified as follows, with reference to Burnell’s whereabouts:

“I knew for two years prior to the hiring of Mr. Burnell that he was a boom man. He was living here off and on at that time. He was here at the former trial (two years before). I don’t know whether he had a wife and children. The sheriff found him near St. Ignace. I know nothing about his family, nor where he is now.”

On redirect examination plaintiff testified:

“I made some search, and inquiry for the witness Burnell.

“Q. Did you learn where he was?

“A. Why I heard they was—

“Defendant’s Counsel: We object to what he heard somebody say.

“Witness: I inquired of different ones around the hotel here, and people that came from St. Ignace where I first got him. They claim he said to them he was going West.

“Defendant’s Counsel: That is objected to.

“The Court: I think that may come in as bearing simply upon the question of Mr. Burnell’s whereabouts.

“Witness: They claimed that he went West— some of his friends that I got him of, the last trial from St. Ignace, that was about a month ago, or six weeks ago, that I made the inquiry. (Further objection and exception by defendant’s counsel.)

“Q. Do you remember any statement that Mr. Burnell made with reference to his leaving the State, at the time or during the time of the last trial of this case? (Objected to as hearsay evidence. Objection overruled and exception.)

“Witness: He made the statement to me once that he was going to Seattle, Wash. That was at the former trial.”

On recross-examination plaintiff testified:

“The people I inquired about as to Mr. Burnell’s whereabouts were — I inquired of a fisherman (I don’t know his name) in my hotel about six weeks ago. I talked to the sheriff of Cheboygan county. I didn’t talk with anybody but the sheriff since I talked with the fisherman. The fisherman is the only man I have talked with except the sheriff. The fisherman is around St. Ignace or Mackinaw. I don’t know his name. All I know about it is what this fisherman told me. I don’t know that Burnell’s family lives in Escanaba.”

We gather from the record that the following affidavit of the sheriff of the county was read by the court, although it is stated that it was not offered in evidence:

“State op Michigan,

“County op Cheboygan — ss.

“Byron Watson being duly sworn deposes and says that on or about the 14th day of May,_ 1913, he was handed a written subpoena for Martin Chase and Joseph Burnell, together with proper fees for their service. * * * Deponent says further that he made due and diligent search and inquiry for the witness Joseph Burnell, and could not find him in the State of Michigan; that he made inquiries of every person that he could learn had formerly been acquainted with said Burnell, and has been unable to find him or make service of said subpoena in the State of Michigan, and deponent learned from such inquiry and search that said witness Burnell had left the State of Michigan, and was now in one of the western States.”

Thereupon plaintiff’s counsel offered to read the testimony of said Burnell taken upon the former trial, whereupon defendant’s counsel objected and said:

“In the first place, I object to it on the ground that the proper showing has not been made for receiving it, first, because it could not be made by affidavit. In the second place, the showing is not sufficient in any event. So far as the affidavit of Mr. Watson is concerned, he is here in the courtroom, and he can be put on the stand and examined.”

After some discussion, Mr. Watson, the sheriff, was sworn and cross-examined by defendant’s counsel. He testified as follows:

“In reference to the affidavit. I received here in this city a subpoena for Mr. Burnell, as a witness in this case. I made some inquiry of people here in Cheboygan county, people that were witnesses in this case; I would not say they were all witnesses that I inquired of. I didn’t make any inquiry at St. Ignace, nor write any letter over there, nor at Escanaba, as I had no idea I could get information from Escanaba. I made no inquiry except right here in the city of Cheboygan. What inquiry I made was of different witnesses, as I would subpoena them, and from two or three men that worked in the Embury-Martin mill in this city. I inquired of people that were in Cheboygan, of different ones at the dock, but where they lived I could not say. That is the entire inquiry upon which I made this affidavit.- I did not make any inquiry outside of the city of Cheboygan. I am the sheriff that made this affidavit. I could not swear whether I subpoenaed him before or not. I don’t know where he came from before.”

Examined by plaintiff’s counsel, he further testified :

“I received this subpoena about May 14th. (The trial was June 10th.) I acted upon instructions you gave me with reference to making search and inquiry to find the witness, and I took the fees. The first man I looked up was Mr. Karwick. From that I inquired of different ones around the dock — tugmen. There was one man that I talked with knew Burnell. I wouldn’t swear how many people I talked with, I might have asked 15 or 20.

“Q. In the service of this subpoena — in endeavoring to make the service of this subpoena — did you make such inquiry as was possible to be made to find out his whereabouts?

“Defendant’s Counsel: We object to that also as a conclusion.

“The Court: I will let him answer. (Exception.)

“A. Well, I made such inquiry until I was satisfied that he was not here.

“Q. And was you satisfied from that search and inquiry, and from the information that you got, that he was not in the State of Michigan?

“A. I was. I said I thought — I was positive I inquired of three men that were working for the Em-bury-Martin Lumber Company, and one of these three was acquainted with him. I could not say whether the others were or not. Some one told me he was working for Mr. Swift in California. Some one here in this city, but I couldn’t be positive who it was. I don’t know whether that man knew of his whereabouts or not; it was hearsay. The only information that I have that he was out of the State is from what somebody told me, if I have any at all.”

The testimony of the former witness Burnell was then read to the jury, against the objection and exception of the appellant. Our reason for inserting here the foregoing testimony is because of the strenuous argument and claim of appellant that it was prejudicial error for the court to permit the testimony of Burnell to be read in evidence. An examination of the authorities cited shows the test to be: Was there any evidence that the witness was out of the jurisdiction, or could not be found after diligent search?

If there was evidence sufficient to call into exercise the judicial discretion, we ought not to disturb the ruling. We said in Krouse v. Railway, 170 Mich. 438, 443 (136 N. W. 434, 436), that:

“The sufficiency of such proof is largely in the discretion of the trial court, which will not be revised in the absence of evidence of gross abuse of such discretion. 16 Cyc. p. 1098; Vaughan v. State, 58 Ark. 353-372 [24 S. W. 885].”

In Vaughan v. State, supra, it was said:.

“The trial judge should base his conclusions upon competent and relevant testimony, but its sufficiency is within his discretion, subject to be reviewed and corrected when abused.”

We cannot say that there was here an abuse of discretion. We the more readily reach this conclusion because the testimony read had been given in the former trial of the same case, where the witness had been fully cross-examined by the same counsel as here, and where, as Greenleaf says, “the great and ordinary test of truth was no longer wanting,” to wit, that of cross-examination.

We have examined the other assignments of error relating to the admission of evidence, and are of the opinion that no prejudicial error was committed.

Complaint is made that the court erred in failing to present defendant’s defense of set-off. We have examined this record carefully, but in vain, to find that defendant made any claim of set-off upon the trial. It is true such claim was made in the pleadings. Upon the trial, the captain of defendant’s tug had testified that a portion of the towing bill of defendant was thrown off in the settlement with plaintiff. The following then occurred:

“Q. How much? (Objected to as immaterial by counsel for plaintiff.)

“Defendant’s Counsel: It might be material in this way: If it should appear that we offered to throw off a portion of the bill for the purpose of settlement of the whole bill, and if they repudiate the settlement, we would be entitled to the balance of the bill.

“The Court: Do you claim for it in your set-off?

“Defendant’s Counsel: Yes, your honor.

“Plaintiff’s Counsel: Do you claim a set-off for the balance of the towing bill ?

“Defendant’s Counsel: Yes, if you repudiate the settlement.

“Plaintiff’s Counsel: We withdraw our objection.

“The Court: He may answer.

“A. I think it was $120. That amount was thrown off, on condition that Mr. Karwick would settle without any trouble.”

The above seems to be the sole claim made. When the plaintiff was being examined, the question arose as to the condition in which some of the logs were left when tied up at the pier, and whether the money paid by plaintiff to defendant was paid under protest. The court said:

“The point that they make, Mr. Sprague, is this: That they make this payment under protest, and under such conditions as justify that payment, under the situation the logs were in; that they were in danger of loss, if they were left there.

“Defendant’s Counsel: We will admit that we refused to deliver, except upon payment of the money to us, and that payment was made under protest, after that demand was made.

“The Court: Do you admit further that the situation of the logs was dangerous; that it was dangerous to have left them where they were?

“Defendant’s Counsel: I do not think that is material in any way, shape, or form. Now the only possible contention or reason that these men can advance for putting in this testimony is on the claim that we might possibly make that this payment was a settlement. Now we never did claim that or do claim that.

“The Court: In view of this statement, I do not think this testimony is material.”

In view of the foregoing, and of the further fact that, although defendant presented at least 15 requests to charge, she did not call the attention of the court to the subject of a claimed set-off, we do not think she is in a position to urge that the court erred in that regard.

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

(2) “If you find from the evidence in this case that the plaintiff hired the tugs and booms of defendant by the day, and further find that the contract of hiring was made having in view a custom that in such case a loss caused by a breakup of the raft should be borne by the owner of the logs, and that such custom then existed, then you will find in favor of the defendant and against the plaintiff on plaintiff’s claim for damages.”

(5) “The plaintiff alleges that the defendant agreed to furnish sufficient boom sticks to make a double wrap around the logs and posts, and that she agreed to furnish at least 120 boom sticks for that purpose, and plaintiff alleges that defendant failed to furnish sufficient boom sticks to make a double wrap around said logs and posts of the plaintiff and failed to furnish at least 120 boom sticks for said purpose. You will remember that defendant denies making the agreements, but if you should find that the contract was as claimed by plaintiff, and that defendant failed to furnish the number of booms contracted to be furnished, you are hereby instructed that there is no evidence in this case that the failure to furnish sufficient booms to make a double wrap around plaintiff’s logs and posts and at least 120 boom sticks for that purpose in any way damaged the plaintiff. There is no proof that lack of boom sticks in number caused the damage plaintiff is suing upon in this case.”

(9) “There is no proof in this case that plaintiff suffered any damage by reason of an insufficient number of booms being furnished.”

(10) “The testimony in this case shows that the break in the boom was in the front of the boom up past where the logs were, and there is testimony tending to show that it was three or four sticks from the tug Kane. There is some testimony tending to show that the end of the boom pulled out. If you should find that the plaintiff’s boom man, Burnell, examined this boom when he went over the boom and accepted it as such,' and that he was authorized so to do, then the fact that this boom stick may not have been of good quality and sufficient size and strength for the intended use will not justify a verdict for the plaintiff. If the plaintiff’s duly authorized boom man inspected the boom and accepted it, he accepted and approved of the_ quality, size, and strength of this boom stick, and if in that case plaintiff suffered a loss because this boom stick was not sufficient in size, strength, and quality, plaintiff cannot recover.”

(12) “If Mr. Karwick introduced Mr. Burnell to Capt. Snetsinger as his boom man, and if Capt. Snetsinger was led to believe by plaintiff that Mr. Burnell was authorized to inspect and select the booms to be taken, and if you find that Mr. Burnell did inspect and select the booms to be taken and they were taken, then plaintiff cannot recover.”

(13) “Plaintiff introduced evidence of an inspection tally of lumber, shipped claimed to have been sawn from these logs of Karwick’s. Plaintiff then attacked this scale or tally as being too large, because he claims logs overrun in lumber the scale in the woods. Opinion estimates of such overrun were, then offered by plaintiff. Plaintiff now seeks by deduction of the alleged overrun from the lumber scale and comparison of the result with the woods’ scale to recover verdict based thereon. You are instructed that such is not the proper basis for recovery, if plaintiff should recover.”

(14) “The method last stated furnishes an improper basis of recovery, first, because it compels defendant to pay for the overrun caused by the manufacture of the logs into lumber, and, second, it is not the best evidence introduced in this case of the loss, if any there was. The method stated is too vague and uncertain, in view of other evidence in the case, to form a proper basis of recovery.”

(15) “It is the defendant’s claim that the storm at the time of the breaking up of the boom was of such violence that, if the boom had not broken, to save the tugs it would have been necessary to cut the line holding the raft and set the raft adrift, and, failing to do this, the violence of the storm would have piled raft and tugs all on the beach, and defendant has offered testimony to sustain this claim of hers, and, if you find according to her claims in that respect, then it follows that, if the raft had been double-wrapped, as plaintiff claims it should have been, it would not have saved the raft and booms from going on the beach and going to pieces, and defendant is not liable for the loss of the raft, and you will find against his claim in that respect.”

The court charged the jury in substance as follows:

“There is no dispute about the fact that some arrangement or agreement was entered into between these parties in the month of July, 1909, by which the defendant’s tug and boom sticks should be used in bringing the timber, or logs belonging to the plaintiff, from where they were put in at Hammond’s Bay up to the Lakeside Mill,, somewhere near or in this city. But the parties differ as to what that arrangement or agreement was, and you have got to determine what it was from the evidence in the case.

“I shall state to you my understanding of what their claim is in connection with it; but I want to say to you at the outset that you should not, from anything that I may say, endeavor to form any opinion as to what I think the facts are, or have proved, because that is a matter for you to determine, arid not for me. But it is necessary, in order for me to lay down the principles or rules of law governing it, for me to state what the claims of the parties are.

“Now the claim of the plaintiff is that the agreement that he made with Mrs. Pickands (and he does not claim that it was made with her personally; there is not any dispute about the fact that Capt. Snetsinger and her husband had authority to act for her, and any contract that they made with the plaintiff is as binding as though she had made it herself; there is no dispute about that).

“As I was saying: The claim of the plaintiff is that the contract that he made with her through these agents was that he should pay her so much for the use of her tug and boom sticks, and that she thereupon engaged, through her servants, to see to it that those logs were properly boomed with sufficient boom sticks to double-wrap them and safely convey those to the Lakeside Mill slip. The defendant denies that. Her claim is that the only thing that she was to do was to furnish the tug and the boom sticks; that the selection of the boom sticks was to be made by some one appointed or selected by the plaintiff himself; that he was to pick out a boom man; and that she was to furnish whatever boom sticks were necessary to do that work.

“Now you can see where the distinction comes in. Each claims that the number and character of the boom sticks was to be determined by the other. The claim of the plaintiff is that they were to be good boom sticks, sufficient for that class of work, and that the boom sticks were not. You can see how they materially differ as to what the contract was between the parties; and it is sometimes a very difficult task for the jurymen, when there is such conflict in the evidence, to determine what the truth of the matter is; but that is what you must do in this case.

“Now if you find that the claim of the plaintiff is true, if you find that the defendant agreed to furnish a sufficient number of boom sticks to double-wrap this raft, and that she agreed to furnish good boom sticks, and that the selection was to be made by her, or her servants, and not by the plaintiff, or his servants, and you find that this loss was occasioned on account of the absence of a sufficient number of boom sticks to double-wrap the raft, or on account of the quality of the boom sticks not being reasonably efficient, then I say to you, as a matter of law, the plaintiff would have a right to recover. And I will speak to you later about the damages which he will be entitled to recover.

“On the other hand, if you find that the claim of the defendant is true, if you find that all the defendant had to do under the contract was to furnish the tug and whatever boom sticks the plaintiff wanted, and that the plaintiff selected a man, and that he went, and had authority from the plaintiff, to pick out such boom sticks as to number and quality as he wanted, and that the burden was on him, and not on the defendant as to the number of boom sticks, to. determine the number of boom sticks which was to be furnished, and to pick out the kind and quality that were to be taken, then the defendant has done all that she agreed to do, through her agents, in connection with the contract. And, no matter what loss may have occurred to the plaintiff, she is not liable for it.

“Now I do not know as I can make that any plainer to you. Counsel do not differ seriously about the legal proposition involved. The proposition they differ on is as to what facts are established — what the contract was — and, as I said to you, that is a matter that you, as jurymen, must assume the duty of ascertaining and determining from the testimony here submitted.

“It is the further claim of the defendant in this case that even if you should find, as the plaintiff claims, that the defendant agreed to furnish a sufficient number of boom sticks to double-wrap this raft, and that the defendant failed, and committed a breach of the contract in that respect, it is still the claim of the defendant that that negligence or omission on her part was not the cause of the loss that the plaintiff sustained. The claim of the defendant is that the loss was occasioned by the storm. Her claim is that under the evidence in this case the jury should find that, even though the raft had been double-wrapped with boom sticks, the probability is that it would have gone ashore the same as it did; and, if so, that the loss was occasioned by what we in law term the act of God (that is, by the storm), and was not due to any negligence on the part of the defendant. Now if you find that to be true, under the evidence, that of course would release the defendant from liability, even if you should find that there was a negligence or omission on her part to discharge the duty devolving upon her under the contract, as you may find the evidence in that respect, because all contracts are made having in view what we term the act of God (that is, the act of the elements, in this case). It is the same thing.

“Something has been said about these boom sticks not being of good quality. I think I covered that in my former statement. If the defendant was to furnish the boom sticks (I mean if the defendant was to supply the boom sticks), the duty devolved upon her to determine how many and what boom sticks should be taken; it was her duty to take a sufficient number to double-wrap, and it was her duty to have taken boom sticks of such reasonably good quality as would perform the duty required of them.

“On the other hand, if the duty of selection, both as to quantity and quality, was on the servant of the plaintiff, why the defendant, of course, would not be in any way liable for any negligence or omission on his part, either as to quantity or quality. The plaintiff would be chargeable with the fact that his own servant had picked out the boom sticks, and if they were not of a proper and suitable quality or number, on that account.

“Some requests have been handed up to me. I will read a number of them to you, and they state propositions of law by which you should be governed. I think, perhaps, I have covered the substance of them in what I have said to you; but as a matter of precaution, for fear that I have not, I read them to you. Where I have covered them in the general charge, I do not want you to think I am laying particular stress upon any phase of the case, by reading these requests, but they do state propositions of law by which you should be governed, just the same as I have given them to you voluntarily and without having been requested to do so.

“If you find that the plaintiff hired defendant’s tug and booms, and that defendant did not agree to furnish any particular number of booms, and that plaintiff’s boom man, Burnell, looked over the booms and directed what booms should be taken, and had authority so to do, and such booms were taken and furnished by defendant, then I charge you that plaintiff, by his boom man, accepted said booms as sufficient, and your verdict must be for the defendant, and against the plaintiff, no cause of action, so far as plaintiff’s claim for damages is concerned.

“If you find that the contract for hiring the tug and booms was as claimed by plaintiff, but that plaintiff introduced Burnell to defendant’s servants as his boom man, and if you further find that Burnell looked over the booms and directed what booms were to be taken, and that he had authority^ so to do, and that such booms were taken and furnished by defendant, then I charge you that plaintiff accepted said booms as sufficient, and a sufficient compliance with the contract, and your verdict must be in favor of the defendant and against the plaintiff on his claim of damages.

“If you find that plaintiff told defendant’s representative that he had only 200,000 to 225,000 feet of logs, and that defendant contracted to furnish and did furnish sufficient and suitable booms to properly inclose, as per contract, that amount of logs, and that plaintiff put in more than 225,000 feet (some of the evidence tends to show 248,497 feet), and that because thereof the boom broke, then I charge you that the plaintiff cannot recover on his claim for damages.

“I further charge you that if you should find defendant did contract to furnish sufficient and suitable booms to properly inclose, as provided by the contract, 200,000 to 225,000 feet of logs, then, presumptively, she contracted with reference to the average run of logs; and if you find that plaintiff’s logs were smaller than the average, and that fact was unknown to the defendant, and by reason of those logs being smaller they required more booms, and because thereof the boom broke, in that event plaintiff cannot recover on his claim for damages.

“If you find, gentlemen of the jury, that the plaintiff, through his authorized boom man, Burnell, accepted the booms to be taken, the fact that Mr. Karwick said to Capt. Snetsinger, at the raft, ‘The booms are in your charge,’ if he did say so, would not place the responsibility on defendant for a breaking up of the raft caused by the booms not being sufficient in number or quality.

“If Mr. Burnell, the boom man for the plaintiff, examined the boom stick and its connection where the break in the boom occurred, prior to the taking of the same to Hammond’s Bay, and was authorized to and did accept the same as sufficient, plaintiff cannot recover for any loss he may have sustained because of a break in that boom stick and connection. (And where I read ‘authorized to,’ I mean authorized by the plaintiff, Mr. Karwick.)

“If you find from the evidence that Mr. Karwick introduced Mr. Burnell to Capt. Snetsinger as his boom man, and if you further find that Mr. Karwick knew that Mr. Burnell was to inspect and select the booms to be taken, and you find that Mr. Burnell did inspect and select the booms to be taken to handle these logs, and they were taken, then the plaintiff cannot recover.

“Counsel calls my attention to the fact that the claim of the plaintiff is that an additional number of booms were to be brought. I of course intended to cover that, and it would be improper not to speak of it. The theory of the plaintiff of course is that the burden was upon the defendant to determine the number of boom sticks and the quality. The theory of the defendant is that the burden was upon the plaintiff ; that he authorized his boom man; and he was to determine the number of boom sticks and quality. And, where I have spoken here of Mr. Burnell selecting the number of sticks and the quality, of course that would apply to the number that were to be brought down by the second tug as well as taken by the first tug.

“There is evidence — the plaintiff has offered evidence, and it is his claim that the second tug, the Thomas Kane,' when it was to come down, was to bring some additional boom sticks. The only thought there is in connection with that at all (and I hope that the requests I have read will not be misleading to you) is the question as to who, under the contract, had this selection^ whose duty it was to determine how many boom sticks were to be taken and the quality that were to be taken. Now it is the claim of the plaintiff that that was the defendant’s duty, and was a part of her contract, was to furnish a sufficient number of boom sticks to double-wrap this raft, and that she did not furnish them.

“It is the claim of the defendant here that she did not have anything to do with the number of boom sticks; that the plaintiff’s man, Burnell, was to determine how many boom sticks were to be taken; and that he went there and picked them out.”

The court then charged the jury upon the subject of damages, in which we find no error.

Error is assigned in each instance because the court refused to charge as above requested.

Referring to the second request to charge, we are of opinion that the evidence did not warrant the giving of the request, and that there was no error in refusing it. We have set forth the substance of the charge, from which it appears that defendant’s other requests to charge were sufficiently covered by the general charge. Taking the charge as a whole, we are of opinion that it presented the issues in a full and fair manner, and was warranted by the evidence.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

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