text:
    HOHN v. INTER-STATE CASUALTY CO.
    1. Accident Insurance — Delayed Notice — Waiver.
    Failure of the insured to give notice of an injury within the time required by an accident policy is waived by the insurance company’s asking for further information after receiving notice, without suggesting that the notice came too late.
    2. Same — Proofs of Disability — Defenses.
    An accident insurance company which, before the expiration . of the time allowed for furnishing the company with proof of the duration of disability, refuses absolutely to pay any amount, on the ground that immediate notice of the injury was not given, cannot deny the right of the insured to recover for the full time of disability on the ground that a less time was claimed in the proof of disability furnished.

      3. Same — Total Disability — What Constitutes.
    A barber insuréd against accidents by a polidy providing that if the injuries, independent of all other causes, shall “ immediately, continuously, and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation,” the company will pay a specified indemnity during the continuance of such “total disablement,” is not prevented from recovering for an accident as for a total disablement because he goes to his place of business for several days after the accident, where he is practically unable to perform any work while there because of his injuries, and after a few days is forced to remain at home for several weeks.
    Error to Saginaw; Wilber, J.
    Submitted October 8, 1897.
    Decided November 23, 1897.

      Aqsurnpsit by Julius C. Hohn against the Inter-State Casualty Company, of New York, on a policy of accident insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John M. Brooks, for appellant.

      F. E. Emerick, for appellee.
   Moore, J.

Plaintiff recovered a judgment against the defendant, from which judgment defendant appeals. The plaintiff was a barber by occupation. According to his testimony, he slipped, and, in the effort to save himself from falling, he received a severe wrench in the small of his back. The next day, Saturday, he went to his place of business, late. He suffered pain all the time, and did some work, but not nearly what he would have done if he had been well. Saturday night and all day Sunday he applied liniment and plasters to his body, the pain going all through his body, and lay on a couch all day Sunday. On Monday he went to his shop, and attempted to do some work. He suffered such pain that he fainted away. A doctor was called, who found him' nearly, if not quite, unconscious, and he was sent home in a hack. During that week he got some better, and visited his shop each day, suffering pain all the time, and occasionally working a little, but was unable to perform all the duties of his business because of the pain he suffered. On the second Saturday, while at the shop, he was forced to lie down, and was taken to his home and bed, where he remained for some weeks. He got some better, and went out by advice of his physician, took some cold, and was again confined to his bed.

Error is alleged in relation to the admission of testimony. We do not deem it necessary to discuss the allegation of error in that respect, but do not think any error was committed.

Error is also assigned in relation to an amendment which was permitted of the bill of particulars and of the declaration. Notice was given of the proposed amendment to the attorney for the defendant, some days before the trial. We think the amendment was within the discretion conferred by the statute upon the trial judge. 2 How. Stat. § 7631.

It is claimed on the part of the appellant that plaintiff did not give the notice of injury within the time required by the policy. Notice was given January loth. On March 3d defendant company wrote plaintiff asking for further information, and did not suggest that the notice came too late. We think the trial judge was right in saying that this was a waiver of time in giving the notice. Nibl. Acc. Ins. & Ben. Soc. § 419; Towle v. Insurance Co., 91 Mich. 227, and cases there cited.

It is urged now that, as the proof of disability claimed for only five weeks’, plaintiff cannot now recover for nine weeks,’ disability. The company refused to pay any of the claim, and based its refusal upon the ground that immediate notice was not given, which we have already shown was waived, and also because the disability was the result of illness, and not the result of the accident. By the terms of the policy, the plaintiff had two months from the time of the termination of the disability in which, to furnish the company affirmative proof of the duration of disability. Long before this term expired, the company informed the plaintiff it would pay him nothing. In view of this fact, we do not think it can now avoid part of its liability because of a failure to furnish proof of the duration of disability, when it had informed the plaintiff that, no matter what his proof might be, it would not pay.

The policy contained this provision:

“If such injuries, independently of all other causes, shall immediately, continuously, and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, the company will pay the insured the weekly indemnity before specified, during the continuance of such total disablement, not exceeding 52 consecutive weeks.” .

It is the claim of the defendant that as plaintiff, according to his own testimony, visited his shop for several days, and did some work, he was not totally disabled, within the meaning of the policy, and could not recover. The trial judge submitted the question of.total disability to the jury, as follows:

“Was it a total disablement of the plaintiff immediately after the injury ? He went to the shop the next day. He did some work. In the opinion of the court, if that portion of his testimony, and I only quoted a part of it to you, — you are to consider all of the testimony; but if it was a fact that from the time he was in the shop he did occasionally attempt to do certain portions of the work, but that whenever he attempted to do that he suffered additional great bodily pain, bodily discomfort, that it rendered him so weak that in a short time he had to sit down,- — if that is true¿ it might be a case of total disablement, or disablement within the meaning of this policy. I think it would be, in the ordinary acceptation of that term, a total disability. That it does riot mean that a party shall not have the physical power, perhaps, to do something, even if he in doing it suffers great bodily pain. If he was disabled to that extent, that whatever he did in that shop caused him this suffering, and caused him to desist in a short time, as he claims, then I think his condition may properly be described as a tofal disability. But if it was less than that, if he was able to do some work there, under the terms of this policy, and simply suffering inconvenience or perhaps some pain, but not as severe as I have described, it would not be a total disability, within the meaning of this policy.
“You will notice by the terms of the policy that it must not only be a total disablement, but it must occur immediately, and it must continue during the entire time. That is the contract these parties have made, and, before he is entitled to recover, you must find that to be the fact. He claims for nine weeks from the 3d day of January. You have heard his testimony as to the conditions under which he worked. It is a question of fact for you to find whether or not, under the rule I have given you, there was a total disablement immediately after that injury. You may take into consideration, not simply that portion of his testimony that I have referred to, but all of the testimony that he has given upon that subject, the testimony of all the witnesses that has had any bearing upon that subject, any statement that he may have made in writing to the company or others bearing upon that question. It is claimed that the total disability occurred from the 11th, and that there was a partial disability from the 3d until the 11th. I think that was the language of it. You may consider that and all the facts and circumstances in determining just what the truth of the matter is. If you should find, as a matter of fact, that he was partially disabled from the 3d until some time when he was taken home and remained there, and he was totally disabled after that, then the plaintiff would not be entitled to recover at all, for the reason that that is not the contract ■that he has made. Such injuries, independently of all other causes, shall immediately, continuously, and wholly disable and prevent him from performing any and every kind of duty pertaining to his business; that is the contract. If you find that it has so disabled him, then the next question is, for what length of time? The plaintiff claims here that he was totally disabled for the term of nine weeks. The claim of the defendant is that, even if the difficulty or the sickness that he suffered was caused by this injury, tiñere was no total disability at first, and that the total disability did not commence until the 11th, and that it continued for only five weeks from the 11th. Of course, if that is true, that the total disability ■commenced on the 11th, and he was totally disabled for five weeks after that, then he would not be entitled to recover, for the reason that there was only a partial disability from the 3d until the 11th. The total disability was not immediate, and was not continuous.”

Was this error? There is some apparent conflict in the authorities. In the case of Wolcott v. Ins. Ass’n, 55 Hun, 98, under a policy containing like provisions, a physician was allowed to recover for a time when he was confined to his bed by an accident, though during that time he occasionally examined and prescribed for patients who came to his bedside; the physician furnishing to the patients medicines which he was able to reach while in bed. In the opinion it was said:

“Total disability must, of necessity, be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged. One can readily understand how a person who labors with his hands would be totally disabled only when he cannot labor at all; but the same rule would not apply to a professional man, whose duties require the activity of the brain, and which is not necessarily impaired by serious physical injury. If a person engaged in the general practice of medicine and surgery is unable to go about his business, enter his office, and make calls upon any of his patients, but is confined to the bed, as in this instance, and-enabled only to exercise his mind on occasional application to him for advice, he may bfe said to be totally disabled, within the meaning of the provisions of this policy.”

In Young v. Insurance Co., 80 Me. 344, it is said:

“A contract of insurance is to receive a reasonable construction, so as to effectuate the purpose for which it was made. In cases of doubt it is to be liberally construed in favor of the insured, that in all proper cases he may receive the indemnity contracted for. At the same time, legal effect should be given to all the language used, for the purpose of guarding the company against fraud and imposture. The object to be accomplished by this contract was indemnity to the plaintiff for loss of time from being wholly disabled from prosecuting his business by an injury received as specified in the policy. He was not able to prosecute his business unless he was able to do all the substantial acts necessary to be done in its prosecution. * * * We think the presiding justice might have gone further in the construction of this' clause of the policy, and instructed the jury that, to entitle the plaintiff to recover, he was not required to prove that his injury disabled him to such an extent that he had no physical ability to do what was necessary to be done in the prosecution of his business, but that it was sufficient if he satisfied them that his injury was of such a character and to such an extent that common care and prudence required him to desist from his labors, and rest, so long as it was reasonably necessary to effectuate a speedy cure, — so that a competent and skillful physician called to treat him would direct him so to do. It is the duty of the insured towards the insurer to use all due care, and pursue the proper course, to effect a cure, so that the loss of time for which he is to receive indemnity maybe no greater than is reasonably necessary.”

The same doctrine is announced in the recent case of Lobdill v. Aid Ass’n, (Minn.) 71 N. W. 696. In the case of Turner v. Casualty Co., 112 Mich. 425, the questions involved in these cases are discussed fully, and it will not be necessary to discuss them further. We think the question was fully and fairly submitted to the jury.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    JOHNSON v. LONDON GUARANTEE & ACCIDENT CO.
    1. Accident Insurance — Defenses—Objections on Appeal.
    An insurance company which has defended an action upon an accident policy on the theory that there was a question for the jury as to whether the conduct of the insured had been such as to avoid the policy cannot, after an adverse judgment, complain that the court did not, on its own motion, decide the question, and direct the verdict in its favor.
    3. Same — Voluntary Exposure — What Constitutes.
    The term “voluntary exposure to unnecessary danger,” as used in an accident insurance policy exempting the insurer from liability for injuries caused by such exposure, means a conscious or intentional exposure, involving gross or wanton negligence on the part of the insured.

    3. Same — Classification of Risks — Farming.
    One having regular clerical employment in a city, but whose home is upon a farm, where he spends his Sundays and one night in each week, the management of which is, in his absence, entirely in the hands of men hired by him for the purpose, is not a “farmer,” within the terms of an accident insurance policy classing farming as a hazardous employment.
    4. Same — Change op Occupation — Question for Jury.
    Nor can it be said, as a matter of law, that the person so employed changes his occupation to farming by returning to his farm before the expiration of his contract with his city employers, on account of their disposing of their business, so as to limit his recovery upon the policy, for injuries received a week later from being tossed by a bull, to the amount of indemnity which the premium paid by him would have purchased at the rates fixed for the increased hazard, in accordance with a iirovision of the policy that such should be the effect of the insured’s “engaging” in a more hazardous occupation than that under which he was insured.
    Error to Wayne; Carpenter, J.
    Submitted October 14, 1897.
    Decided November 23, 1897.

      Assumpsit by Benjamin Johnson against the London Guarantee & Accident Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff took out an accident policy in the defendant company in the year 1892, for the sum of $3,000, with a weekly indemnity of $15, “against bodily injuries sustained through external, violent, and accidental means.” A written application was made, which was a part of the policy. The premium was $4 per $1,000. In his application he represented that he was “engaged in the business or occupation of secretary and treasurer of Hull Bros. Company, grocers,” under the classification “select;” and the policy contained the same language. The policy was twice renewed. At the time of the application, and until the time of the accident, he resided on his farm in Monroe, Mich. As a part of the policy, he agreed:
    “That, if injured while engaged in work or duty classed as more hazardous than my occupation- above stated, I shall be entitled to recover only such amount as the premium paid by me would purchase at the rates fixed for such increased hazard. ”
    A part of the' business of his farm was raising cattle. He kept a bull. The bull had broken into his calf pasture. On October 29, 1895, while returning from his greenhouse to his dwelling, about 11 o’clock, he saw the bull in this pasture, and went in to drive him out. The cause of the injury is thus stated in his notice to the company:
    “ Q. Where and how did the accident occur?

      “A. The bull had broken through a fence, into a pasture kept on purpose for calves. He undertook to drive him out, when the bull turned suddenly, and tossed him.
    ‘ ‘ Q. What were you doing at the time ?

      “A. Walking around, looking about.
    “ Q.- State just what happened.
    “A. Seeing the bull in the calves’ pasture, he undertook to drive him out, when the bull suddenly turned around, and tossed him.”

      Some time before the accident, Hull Bros.'had sold out their entire stock and business, and plaintiff had no employment from them except to assist in collecting accounts. At the time he was superintending the building of a greenhouse, and had been home for about a week. He testified that—
    “Two men were managing my farm at the time of the accident. It was their business to take care of the stock. Between them they had the entire charge of it. That included the bull. I left everything in charge of the two men. When I was there, I took charge of it as I saw fit.”
    A letter written in his name by his sister-in-law, under date of November 5, 1895, contained the following statement:
    ‘ ‘ I left Detroit about the middle of September. Some weeks before that, I bought a plant of five greenhouses from Mr. C. Hogg, of Van Dyke avenue, Detroit, and came home to add the florist’s business to what I already had on the island, and took the management of the farm, fruits, and greenhouses; having two men working the farm and vegetable garden. I have already told you, when I filled out your form, just how I came to meet with the accident, and cannot understand what more ‘you want to know.”
    Under date of November &d, she wrote to defendant the following letter:
    “I have submitted your letter to Mr. Ben Johnson. He came home after Hull Bros, sold out to Mr. J. L. Hudson, about the middle of September; but, before that time, he bought a greenhouse plant in Detroit, and was working to get it in place, and was still working at it at the time of the accident. Mr. Ben Johnson owns Johnson’s Island, in the city of Monroe, upon which place he has cattle, "and has been raising small fruits for the last five years. He does not wish to hold back any information in regard to the accident. If there should be anything more you wish to know, let me hear from you.”
    Plaintiff introduced testimony showing that the bull had never before shown signs of viciousness, although he testified: “Ihave heard of the boys going along the river, and teasing the bull, and I presume sometimes the bull had cause to be ugly.”
    In his claim for indemnity, the following question and answer were given: >
    • "Q. What was your weekly salary or income at the time you were injured ?

      “A. None; the business in liquidation.”
    He had a contract for employment with Hull Bros.', which did not expire until some time after the injury. He testified: “I received a salary up to a week before
    the accident. I was not receiving any salary at the time because there was no money. I was not receiving any money for my time.”
    Insurance is classified by defendant as ‘ ‘ select, preferred, ordinary, medium, hazardous, and extrahazardous.” Under this classification, farming was deemed hazardous, and the annual premium was $15 per $1,000. The plaintiff recovered $260, the full amount claimed.

      Charles S. McDonald (S. S. Babcock, of counsel), for appellant.

      Sloman & Groesbeck (Emanuel T. Berger, of counsel), for appellee.

       With this case, as reported in 40 L. R. A. 440, is an extensive note on the subject of voluntary exposure within the meaning of an accident policy.

   Grant, J.

(after stating the facts). 1. Counsel urge that the court erred in not directing a verdict for the defendant, on the ground that the plaintiff had voluntarily exposed himself to unnecessary danger. The complete answer to this is that counsel preferred no such request at the trial. The case was tried upon the theory that upon this point the question belonged to the jury to decide. This question is therefore not before us.

2. Error is alleged upon the following portion of the instructions:

‘ ‘ In order to make his act upon this occasion a voluntary exposure to unnecessary danger, he must have acted with gross or wanton negligence, or otherwise it was not a voluntary exposure to unnecessary danger.”

In this connection the court also charged as follows:

“I charge you also that a voluntary exposure means a conscious or intentional exposure. If the insured in this case believed or had good reason to believe that he was endangering his safety by attempting to drive this bull from this, inclosure, then I charge you that he cannot recover. If, on the other hand, he did not believe or had any reason to believe that there was any danger to himself in that attempt, then I charge you that it was not a voluntary exposure to unnecessary danger.”

This chai’ge is sustained by the authorities. Manufacturers’ Acc. Indemnity Co. v. Dorgan, 58 Fed. 952, 7 C. C. A. 588. See, also, 2 Bac. Ben. Soc. § 492, where will be found a full citation of authorities.

3. Was plaintiff engaged in an occupation more hazardous than that in which he was classified in the policy ? The defendant requested the court to instruct the jury that plaintiff was in fact engaged' in the more hazardous employment; also, that if they found that he was engaged in another occupation in addition to that of secretary and treasurer, and did not disclose that fact to the defendant, he could recover only the lesser sum under the more hazardous risk. These requests were refused, and the jury instructed that if the plaintiff had ceased to belong to the occupation in which he was insured, and had, in fact, become a farmer, he could only recover for the more hazardous occupation.

The question is one of fact, to be determined by the court only when there is no dispute as to the evidence, and but one rational conclusion can be drawn therefrom. A man may be engaged in two or more occupations, in which case he can only recover for injury received in the employment for which he is insured. Standard Life & Acc. Ins. Co. v. Taylor, 12 Tex. Civ. App. 386. The provisions of the policy in that case were similar to those in this. Taylor was insured as a blacksmith, employed, by a railroad company. In fact, he also acted as a switchman and car coupler, occupations more hazardous than blacksmithing. Held, that recovery for injuries received while acting as a switchman or coupler must be limited to the increased hazard. We think there was no evidence tending to show that plaintiff was a farmer, within the terms of the policy, until his employers, Hull Bros., had ceased to do business. The fact that he lived upon his farm, and carried it on through others, does not make him a “farmer,” within the meaning of that term as used in these accident policies. He was at home only from Saturday night to Monday morning, and on Wednesday night, of each week. There is no testimony to show that during that time he was engaged in the actual work of a farmer, so as to incur the more hazardous risks incident to that business.

It does not follow that plaintiff’s policy lapsed when his regular employment with Hull Bros, ceased, or that he had necessarily become a farmer or engaged in the business of farming by spending his time at his home when the necessity for his being in Detroit had ceased. Stone’s Adm’rs v. U. S. Casualty Co., 34 N. J. Law, 371. In that case a school teacher, out of employment, had let contracts for the erection of two dwellings for his own use, and, while overlooking one, fell, and was killed. Held, that he had not changed his employment, but was engaged in an individual act, which did not avoid the policy. See, also, 2 Bac. Ben. Soc. §491; Hess v. Accident Ass’n, 112 Mich. 196. There was testimony tending to show that plaintiff had not changed his occupation. The letters, upon which considerable reliance is placed, were not written by the plaintiff himself, or dictated by him, but were written by his sister-in-law while he was suffering from his injuries. They are explained by him and by her in such a manner that they were properly left to the jury, in connection with the other testimony, to determine their exact meaning. There was sufficient conflict in the evidence to justify the submission of the question to the jury.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    HEMSWORTH v. CUSHING.
    Lateral Support — Superstructure—Damages.
    If the pressure of a superstructure is the cause of land’s caving into an excavation made by the owner of the adjoining premises, no damages can be recovered for the loss of lateral support.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted October 5, 1897.
    Decided November 23, 1897.
    Case by Annabelle Hemsworth against Nathan A. Cushing to recover damages for removing the lateral support to plaintiff’s land. From a judgment for plaintiff, defendant brings error.
    Reversed.

      McGarry & Nichols, for appellant.

      William B. Brown, for appellee.
   Moore, J.

Plaintiff recovered a judgment against defendant, from which judgment defendant appeals. The parties are owners of adjacent lots, both of which were several feet-higher than the street. Defendant-removed the earth upon his lot so that a portion of the lot was upon a level with the street. It was the claim of the plaintiff that, as the result of his action, the soil from her lot was caused to slide, carrying with it her lawn, shrubbery, and flowers, and causing her house, which was 14 or 15 feet from the division line, to settle. The plaintiff was allowed to give evidence of injury to the shrubbery upon her lot, and of injury done to her house, which injury she claimed was caused by defendant’s removing the earth on his lot. It is the claim of the defendant that this proof was not permissible under the declaration. We think the averments in the declaration were broad enough to allow the admission of the testimony.

In his .charge to the jury, among other things stated by the learned judge, was the following:

“The theory of the plaintiff in this case is that the bank of the premises of Mrs. Hemsworth tumbled off down into the valley there on account of Mr. Cushing’s negligence in digging under the bank on his ground; that he dug up so close that it tumbled off, and didn’t leave a lateral support. Now, if that is the case, and you are satisfied of that by a fair preponderance of evidence, then in that case this woman would be entitled to whatever reasonable damage she has sustained on account of that negligent act of Mr. Cushing. The theory of the defense is that Mr. Cushing did not do it at all. Now, if Mr. Cushing is not guilty of any negligence whatever on these premises, then it would not make any difference how many flower-beds tumbled off into the valley, or how many peach trees or grape-vines there were, or whether the place would sell or not. The mere gist of it is right here: Is Mr. Cushing to blame for the situation you find there of Mrs. Hemsworth’s lot ? Is he responsible for it ? Now, you know what the testimony is. If he is, she is entitled to whatever damages she has sustained. If he is not, it doesn’t make any odds about the situation.
“If this condition came about through her instrunientality and consent, and he is guiltless, then it doesn’t make any difference what the condition was you found it in up there the day you visited it. It doesn’t make any difference whether it is a foot or six feet or twelve feet or fourteen feet from the excavation to the house. It doesn’t make any difference about it, if Mr. Cushing is not to blame. If Mr. Cushing is to blame, then it might have some bearing upon the question of damages sustained, as to what the condition is. This is the sum and substance of it. * * * That a party has a right to-lateral support, ordinarily, there is no question; but, if that lateral support is removed by their consent and acquiescence, then they cannot find fault with somebody else because they don’t have it. If they are entitled to lateral support, and that lateral support is removed by some one else without their authority and acquiescence, then they ought to be protected against it.
‘ ‘ Lateral support is the right which the owner of land has to have his land supported by the adjoining land, and the owner of land is .as much entitled to lateral support as he is to the land itself; and any person disturbing or removing his own. land, or causing or permitting the same to be taken away, without the consent and permission of the owner of land adjoining thereto, is liable to the owner of such adjoining land for the amount of damages done to such adjoining land by reason of the removal of such lateral support.
“If you find the defendant caqsed or permitted the earth on his lot to be removed, without the consent of the plaintiff, so as to withdraw the support from the plaintiff’s lot, and thereby causing the earth on the plaintiff’s lot to slide down and cave off, the fact that the plaintiff caused her own lot to be graded down a short distance at or about the same time would not excuse the defendant for his act in further removing the supporting earth from his lot.”

This is said to be error.

The question of the right to lateral support, of adjacent owners of land has received a very full discussion in the recent case of Gildersleeve v. Hammond, 109 Mich. 431, and it will not be necessary to review the cases at length here. After a lengthy discussion of the cases, Justice Grant stated the law to be as follows:

“Our conclusion as to the law of this and similar cases is:
“1. While a landowner has the undoubted right to excavate close to the boundary line, he must take reasonable precautions to prevent his neighbor’s soil from falling.
“2. If he has taken such reasonable precautions, and yet the soil falls from its own pressure, he is still liable for injury to the land, but not for any injury to the superstructure.
“3. If the pressure of the superstructure causes the land to fall, he is not liable either for injury to the land or superstructure.
“4. If he fails to take such reasonable precautions to protect his neighbor’s soil, and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause the land to fall, and it fell in consequence of the failure to take such reasonable precautions.”

The learned judge failed to instruct the jury that the lateral support to which the soil of the plaintiff was entitled was that sufficient to support the soil in its natural condition, and that, if the pressure of the superstructure caused the land to fall, the defendant is not liable either for injury to the land or superstructure. The jury should have been so instructed.

Judgment is reversed, and new trial ordered.

Long, C. J., Grant and Montgomery, JJ., concurred with Moore, J. Hooker, J., concurred in the result.


author: Long, C. J.

text:
    COLBY v. PORTMAN.
    1. Replevin — Joint Owners — Instructions.
    An instruction in replevin for a piano, which plaintiff claimed as a gift from defendant’s father, that unless the alleged donor was the sole owner of the instrument he could not make a lawful gift of it, was erroneously modified by adding, “without the consent of the other joint owner,” where defendant was the only person who could have been a joint owner, and there was no evidence that she ever consented to the alleged gift.
    3. Same — Parties—Defenses.
    The daughter of defendant in replevin is not a necessary party to the action, where defendant was in possession of the property, and refused to surrender it on demand, although she sets up the defense of title in such daughter.
    3. Gift — Delivery.
    A sufficient delivery of a piano from the donor to the donee takes place where a piano previously given to the donee is exchanged at her request for the one in question, which is moved into the donor’s house, where the donee makes her home.
    4. Trial —Error in Receiving Incompetent Testimony — Duty of Court — Instructions.
    Where the trial court concludes that incompetent evidence has been admitted, he should point it out specifically, and direct the jury to disregard it; and it is error to instruct them generally that, if they find that part of the evidence is “rubbish,” having no bearing upon the issue, they may disregard it.

      Error to Berrien; Coolidge, J.
    Submitted October 15, 1897.
    Decided November 23, 1897.
    Replevin by Emma L. Colby against Emma Portman. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Plummer & Riford and Valentine & Ellsivorth, for appellant.

      James O’Hara, for appellee.
   Long, C. J.

This is an action of replevin. The'cause was tried in the Berrien circuit before a jury, and plaintiff had a verdict and judgment. Defendant brings error.

The property in controversy is a piano. The plaintiff was the daughter-in-law of Mr. Charles Colby, deceased, and the defendant was his daughter. Plaintiff testified on the trial that she was married to Charles Colby, Jr., in 1887, and after her marriage she and her husband lived with Charles Colby, Sr., for six or seven years; that defendant was married at that time, and living away from her father’s house; that plaintiff had one child; that about this time Mr. Colby, Sr., spoke to her about a piano; and. that she went to the store with him, where he spoke to Mrs. Antisdale, who kept the store, and said he had never given her anything, he had done nothing for her, and 'wanted her to have one. Plaintiff then testified: “I had. made complaint about the old one. He said to Mrs. Antisdale that he was ‘going to get this girl a piano’ (laying his hand on my shoulder).” That a Chase piano-was taken from the store to the house of Mr. Colby, and kept there about six months. Plaintiff was asked what became of the Chase piano, and testified:

“I didn’t like the light wood. I was satisfied with the piano in every other way. I stated my objections, and he said, as long as it was to be my piano, and I was to play upon it, I was the one to be suited; I should have what I wanted. So he changed it, and got a dark one for me. This dark piano is the one in suit, and is called a ‘ Grabler Piano.’”

It appears that the child died, and that soon after the plaintiff and her husband separated. They have not lived together since. Mr. Colby, Sr., and his wife have since died. The plaintiff left the home of her father-in-law at the time of her separation from her husband. The piano remained in the Colby house. Plaintiff’s mother also testified that Mr. Colby told her the day he bought the Chase piano that he had bought it for plaintiff.

The defendant testified that when she was a small child her mother owned a melodeon; that when she was about 10 years of age her mother sold the melodeon, and used that money in the purchase of a square piano; that this square piano was given to her, and always called hers; that she took music lessons on it, and always considered it hers, to do what she pleased with; that, when she married and went from home, she left it at her father’s house; that in the fall of 1888 her father called at her house, and spoke to her about trading her square piano for a Chase, and said,' with her permission, he would do so, provided it might remain in his house until defendant’s little girl was of an age to take music lessons, when it was to be hers; that she objected to trading for a Chase piano, as she did not like that make; that, a short time after, she saw a Chase piano in her father’s house, and her square piano was also there; that her father asked her how she liked the Chase, and she told him she did not like that kind, and he said he would not buy it; that he did not buy it, but it was taken away; that, about á year after, her father told her he had found a Gabler piano, and she told him, if he had a chance to exchange her piano for that make, she would do as he suggested in reference to the Chase (that is, leave it at his house until her daughter was old enough to take lessons, when it should be hers); that her father then traded her square piano for the Gabler,— the one in suit; that her father thereafter died, and her mother then had the piano moved to defendant’s house in the spring of 1894, and she had had it in her possession for her daughter since that time until taken away' on plaintiff’s writ; that plaintiff knew she had the piano in her possession, and made no objection to it.

Testimony was introduced on the part of plaintiff tending to show that, although she and her husband had separated, yet the father and mother of her husband had always exhibited a strong affection and regard for her. Testimony was also given tending to show that in another trial the defendant had stated that this piano was purchased by her father for the house, and that at that time she made no claim for her daughter, except that her mother gave it to the daughter.

At the close of the testimony, the court, after directing the jury that the burden of proof was upon the plaintiff, and that she must establish her case by a preponderance of evidence, said:

“If the theory of the plaintiff be true in this case, — if you find that the preponderance of the evidence supports the theory of the plaintiff, — it is your duty, to return a verdict for the plaintiff. If, on the other hand, you find that the contention of the defendant is sustained, then it would be your duty to return a verdict for the defendant.”

Defendant’s counsel asked the court to instruct the jury that “unless Charles Colby, Sr., was the sole owner of the piano in question, he could not make a lawful gift of it.” This request was given, but the court added to it the following, “without the consent of the other joint owner.” Error is assigned upon this modification of the request. We think the court was in error in so modifying it. There was no evidence in the case of any joint ownership of it, and, if there had been, there was no evidence that Mrs. Portman ever consented that her father might give it to the plaintiff. This modification must have been misleading to the jury. If the defendant’s theory is true, under the arrangement made between her and her father the piano in suit belonged to the defendant’s daughter, and the father would have no authority to give it to the plaintiff. It is not claimed that the defendant or her daughter ever assented to such a gift. The only joint owners there could possibly have been were Mr. Colby, the defendant, and her daughter. The defendant was entitled to have the request given without the modification.

Some contention is made that there was no evidence tending to show that the defendant was detaining the piano, or that she claimed any interest in it or control over it. It appears, however, that a demand was made upon both her and her husband, and the defendant refused to surrender it.

It is also contended that the daughter of defendant should have been made a party. This is a possessory action. The defendant was in possession, and, upon demand, refused to surrender it. On the trial she had the right to show the title in her daughter, and that was the defense she made. We think there is no merit in the point raised.

It is also contended that the plaintiff’s proof did not show a completed gift of the piano in suit; that it had reference to the Chase piano; and that, even if that were given her, she has not shown any gift of the Gabler. We think this cannot be said, when we look at the plaintiff’s testimony. She says that the Chase piano was given her, and, at her request, was exchanged for the Gabler. All the possession possible for her to take was given. The parties 'lived in the same house, and if the piano was purchased by Mr. Colby for her, and given to her, and moved into the house where she lived, it was sufficient possession to make the gift complete."

One other contention is made, which we think of importance to notice. The court charged the jury that:

“There is, perhaps, a mass of rubbish in this case, which has been introduced, which has no vital bearing upon the case whatever; but it is here before you, and you must throw it aside. You will have to sift the evidence, and throw out what really has no bearing upon the case, and get at the real facts which bear upon the issue.”

It was the duty of the court to pass upon the admissibility of the evidence. If any evidence had been admitted which the court subsequently thought should not have been admitted, that portion should have been pointed out specifically, and the jury directed to disregard it; but it was error for the court to submit the whole evidence to the jury, and then direct them that, if they found a part of it rubbish, they might disregard it. Such charge left it to the jury to determine what was, and what was not, competent evidence.

We find no other errors in the case. The judgment must be reversed, and a new trial granted.

The other Justices concurred.


text:
    BARBIER v. YOUNG.
    Executors and Administrators — Evidence—Matters Equally Within Knowledge op Deceased — Failure to Object.
    In an action by an executor upon a promissory note, defendant, who denied its execution, was permitted, without objection, to testify to matters equally within the knowledge of the deceased; but, whenever plaintiff’s counsel did object, the objection was sustained, and the court instructed the jury that the statute excluded all such testimony. Held, not to require a reversal; that the fact that plaintiff sued as executor did not justify him in sitting by without objecting to the admission of incompetent testimony, in the expectation that the court would rule it out on its own motion. McHugh v. Dowd’s Estate, 86 Mich. 412, distinguished.
    Error to Bay; Maxwell, J.
    Submitted November 4, 1897.
    Decided November 23, 1897.

      Assumpsit by Marie A. Barbier, executrix of the last will and testament of Francois Barbier, deceased, against Mary A. Young, upon a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John A. McKay (James H. Davitt, of counsel), for appellant.

      Lyon & Pierce, for appellee.
   Grant, J.

Plaintiff brought suit to recover on a promissory note for $100, purporting to be executed by the defendant to the deceased, Francois Barbier. The defendant to her plea attached an affidavit denying the execution of the note. The defendant was permitted, without objection, to testify to matters equally within the knowledge of the deceased. Whenever plaintiff’s counsel .objected to the admission of such testimony, it was excluded; and in the oral charge the court instructed the jury that the statute excluded all such testimony. Counsel insist that its admission was error, although no objection was made, and cite McHugh v. Dowd’s Estate, 86 Mich. 412. In that case one of the defenses interposed was the statute of limitations, and the language there used must be construed with reference to the law that no claim barred by the statute of limitations can be allowed, by consent or otherwise, against the estate of a deceased person. McGee v. McDonald’s Estate, 66 Mich. 628. An administrator and his counsel cannot sit by without objecting to the admission of incompetent evidence, and expect the trial judge to rule it out on his own motion.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    OSBORN v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroads — Accident at Crossing — Obstructions to View— Contributor"? Negligence.
    A driver who, because of the sun, is unable to see whether a. train is coining, is bound to stop and listen before attempting to cross a railroad track.
    Error to Ionia; Davis, J.
    Submitted November 3, 1897.
    Decided November 23, 1897.
    Case by Lucy L. Osborn against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Chaddock & Scully and A. A. Ellis, for appellant.

      L. C. Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellee.
   Hooker, J.

The plaintiff was injured upon a highway crossing of defendant’s railroad. The uncontradicted testimony shows that, for a distance of 50 feet back from the railroad, the train was plainly visible, yet it was not seen, according to the plaintiff’s testimony, until the horse was upon the crossing, and the engine within 20 feet. ■ The only excuse for not seeing it is that looking in that direction would be looking towards the sun. Where a train cannot be seen, by reason of obstructions, it is the duty of the drivers to stop and listen before attempting to cross a railroad. It is very improbable that a train of cars could have approached within 20 feet, without being seen or heard, if the plaintiff and her companion had been usually attentive, when others near by saw and heard it for over a mile; but if, as the plaintiff says, she looked down the road, but could not see whether the train was coming or not by reason of the sun, they should have taken other measures to know that they might safely attempt to cross. The case is within the principle of Richfield v. Railroad Co., 110 Mich. 406.

The judgment is affirmed.

The other Justices concurred.


text:
    MOORE v. SAGINAW, TUSCOLA & HURON RAILROAD CO.

    1. Carriers — Passenger on Freight Train.
    One who takes passage on a freight train cannot insist upon the same equipment as is usual upon regular passenger trains. He will be presumed to understand that different cars, couplings, and brakes are used, and that cars must be coupled and shifted in the course of yard work at the various stations; that jars and jolts are incident to the ordinary management, and necessarily affect the equilibrium of persons standing in the car.

    3. Same — Concussions—Assumption op Risk — Judicial Notice.
    The court will take judicial notice of the fact that it is difficult, if not impossible, to handle freight trains of varying length upon roads of varying grade without concussions; and passengers must be expected to recognize the difficulty, and to ' assume the risks incident to the methods of the business, where the crew handles the train with the highest degree of care which good railroading requires and permits under the circumstances.
    3. Same — Liability por Negligence.
    But, if a less degree of care is bestowed upon the management of the train, it is negligence; and, if a passenger is injured thereby, without being in fault himself, the company is liable.

      4. 'Same — Evidence—Question for Jury.
    The testimony of the crew of a freight train that the shunting of cars, whereby plaintiff, a passenger upon the way-car, was injured, was done with the highest degree of care consistent with the practical handling of the train, is not necessarily conclusive that such care was in fact exercised.
    5. Same — Witnesses—Competency—Foundation for Testimony.
    Evidence that the plaintiff had been a passenger on freight trains many times, and had frequently seen them “ come together,” established his competency to testify that the shock on the occasion of the injury was the hardest he had ever experienced from coupling cars, although it did not specifically appear that he had been on such trains when couplings were being made.
    6. Same —Injury to Passenger — Contributory Negligence — When a Matter of Law.
    The court is not justified in holding a passenger on a freight train guilty, as a matter of law, of negligence contributing to injuries received by him from the shunting .of cars against the one in which he was riding, on the ground that he failed to guard against the danger, unless it clearly appears that he did not take the precautions usually exercised by ordinarily prudent men under the same circumstances.
    7. Same — Misleading Instructions.
    An instruction in an action for injuries to a passenger on a freight train, that, if plaintiff was lawfully on the cars, defendant was bound to carry him safely and that its responsibility for the safety of its passengers does not depend on the kind of cars in which they are carried, is misleading, as giving the jury to understand that the company is an insurer of the safety of its passengers, and that the same degree of protection is requisite on a freight train as on a passenger train.
    Error to Tuscola; Beach, J.
    Submitted November 6, 1897.
    Decided November 23, 1897.
    Case by James H. Moore against the Saginaw, Tuscola & Huron Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      L. T. Durand, for appellant.
    Sparling, Law & Moore (H. W. Stevens, of counsel), for appellee.

       Rehearing denied January 35, 1898.

       On the question what risk is assumed by a passenger on a freight train, there is a collection of the authorities in a note to Ohio Valley R. Co. v. Watson’s Adm’r, (Ky.) 19 L. R. A. 310.

   Hooker, J.

The plaintiff entered the way-car of the defendant, which, with three or four car loads of stone to whiteh it was attached, stood in the defendant’s yard, at a station called “Reese,” while the train crew was, to his knowledge, engaged in shifting cars, by shunting. As he came to a seat near the end of the car, he set his baggage down, and was in the act of sitting down, when one or more cars struck and were coupled to the forward stone car, the force of the blow being imparted to the way-car, through the car of stone, which did not move perceptibly. The result was that the way-car sprang back the length of the coupling link, and as quickly returned. The plaintiff and three other passengers were thrown down, and the plaintiff’s ribs were broken and other injuries inflicted. The defendant has appealed from a judgment of $3,000, and contends:

1. That the declaration fails to state a cause of action.

2. That the defendant was innocent of negligence, as a matter of law.

3. That the plaintiff’s injury was caused by contributory negligence. '

It appears that the defendant invited passengers to ride upon this train, but it is insisted that it was not thereby deprived of the right to pursue the usual methods of shifting cars, in doing the train work at the various stations, that those who run freight trains uniformly adopt, which is for the freight engine to push the cars, leaving them to be managed and coupled by the crew, without requiring the engine to remain attached until the coupling is made, which it is said would be productive of great delay. The evidence justifies the statement that the public was invited to take passage upon this train, which appears to have been what is commonly known as an “accommodation train; ” and we cannot say that it was conclusively shown that the train was not ready for the reception of passengers. The train was not made up at Reese, which was a way station; and it is not clear that passengers were not expected to take the train in the yard, or that it was customary for the crew to stop the train at the station for passengers before leaving.

One who takes passage upon such a train, where# the object and principal business is the transportation of freight, cannot insist upon the same equipment as is usual upon regular passenger trains. He will be presumed to understand that different cars and couplings and brakes are used, and that cars must be coupled and uncoupled and shifted in the course of yard work at the various stations; that jars and jolts and jerks and concussions are incident to the ordinary management; and that these necessarily affect the equilibrium of persons standing in 'the car. We may take judicial notice that it is difficult, if not impossible, to handle trains of varying length and weight upon roads of varying grade without concussions; and passengers must be expected to know this, and assume the risks incident to such methods, where the crew handles the train with the highest degree of care which good railroading requires and permits under the circumstances. But, if a less degree of care is bestowed upon the management of the train, it is negligence; and, if a passenger is injured thereby, without being in fault himself, the company is liable. The following quotation from Elliott on Railroads (section 1582) supports this view:

“A railroad company may, of course, carry passengers on its freight trains, and, when it does, it assumes, to a somewhat limited extent, the liability of a carrier of passengers ; but all persons take the risk incident to the mode of travel they adopt, not, however, risks from negligencej and one who travels on a freight train assumes the risks incident to that mode of travel, as, for example, risks of injury from jerks or jolts incident to the movement of freight trains.”

In the case of Louisville, etc., R. Co. v. Bisch, 120 Ind. 549, Elliott, C. J., said:

“There is, it is our duty to say, a difference between freight trains and regular passenger trains. Passengers assume the risks incident to the means of transportation they adopt; and one who takes passage on a freight train, although it has a caboose attached for the transportation of passengers, must take notice of the character of the train, and use such ordinary care to avoid injury as the nature of the mode of transportation renders prudent. One of the risks which ordinary prudence requires a passenger on the caboose of a freight train to guard against is that arising from the sudden jerk of the train on starting, resulting from the taking up of the slack between the cars.” See authorities cited.

„ But, while the passenger must accept the inconvenience and dangers necessarily incident to the mode of travel which he adopts, the company carrying passengers on its freight trains must use all care and caution practicable with the conduct of its business. In the case of New York, etc., R. Co. v. Doane, 115 Ind. 435 (7 Am. St. Rep. 451), it is said by Niblack, C. J.:

“It is neither expected nor required that a passenger on a freight train shall be provided with all the comforts and conveniences which are usually afforded passengers on a regular passenger train; but there is on that account no diminution in the obligation of those in charge of the freight train to carry its passengers with becoming and all necessary care. * * * It is the duty of a railroad company engaged in the transportation of passengers, whether by freight or passenger trains, to so run and manage its trains, and to so handle its passengers that no one shall be injured by its own negligence.”

In Chicago, etc., R. Co. v. Arnol, 144 Ill. 261, it is said:

“But, if a railway company consents to carry passengers for hire by such trains \i. e., freight trains], the general rule of its responsibility for their safe carriage is not otherwise relaxed. From the composition of such a train and the appliances necessarily used in its efficient operation, there cannot, in the nature of things, be the same immunity from peril in traveling by freight train as there is by passenger train, but the same degree of care can be exercised in the operation of each. The result in respect of the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of one train, and not to the other; and it is this hazard the passenger assumes in taking a freight train, and not hazard or peril arising from the negligence or want of proper care of those in charge of it. Ordinarily, carriers of passengers for hire, while not insurers of absolutely safe carriage, are held to the exercise of the highest degree of care, skill, and diligence practically consistent with the efficient use and operation of the mode of transportation adopted.”

See, also, Hutch. Carr. (2d Ed.) § 538a.

Counsel insists that, if the railroad is managed according to the common custom, it is sufficient; but if this be conceded, and we say that shunting cars, though against the express rules of the company, is not negligence per se, because usually practiced on all good roads, it is still a question whether or not it was done in this case with the highest degree of care consistent with the practical handling of the train; and we cannot accede to the proposition that it was, because the crew so considered it. We cannot determine the question, inasmuch as the circumstances were before the jury. 4 Elliott, Railroads, § 1583. We are of the opinion that it was proper to leave the question of negligence to the jury, and deny the motion for a new trial based upon the alleged want of evidence of negligence.

In the same connection, we may add that the statement of the witness that it was the hardest shock he had ever experienced from coupling cars was not inadmissible. He had been in freight cars many times, and frequently saw them come together, and we are not impressed with the force of the suggestion that although “he had ridden on freight trains before, probably a couple of hundred times, * * * he nowhere stated that he had been on such freight trains when couplings were made, and it therefore afforded no basis for comparison.” ■ It is said that this did not tend to prove that the shock was an unusual one. If this is so, the evidence could hardly be injurious; but we think that, in the light of his acquaintance with freight trains, it was evidence that the shock was greater than likely to occur in the course of many trips on freight trains. If so, it was competent. Missouri Pac. R. Co. v. Marten, 22 Am. & Eng. R. Cas. 409, 2 Tex. App. (Civ. Cas.) 571.

While we think the question of negligence was for the jury, we may take judicial notice that concussion is the necessary result of the coupling of freight cars by the use of link and pin, and that it is usually sufficient to destroy the equilibrium of a person standing. These are facts of common knowledge. If it is true, as a matter of law, that one of the risks that a passenger upon a freight train must guard against is the danger arising from the usual jerks occasioned by the taking up of the slack between cars, it is difficult to find a reason for saying that the rule does not apply to the danger arising from the concussion which is usual when freight cars are coupled; and it would follow that a failure to guard against either would be the neglect of a duty, and would be contributory negligence if it contributed to the injury; and we see no less reason for saying that a passenger should not use such reasonable precaution, while entering a- car, against a danger which he is bound to anticipate, as he would be required to do after getting seated. What a passenger should do to guard against such danger as he has reason to apprehend from the coupling of cars must depend upon the circumstances, and what an ordinarily careful and prudent person would do under such circumstances. Must the passenger keep out of the car until the danger is over, or keep his seat all of the time that he is in the car, and, if he does not, is he to be chargeable with contributory negligence, notwithstanding his familiarity with railway travel, and precautions taken, such as care in walking, and watching for the approach of the engine or other cars, taking hold of seats or stationary portions of the car, etc.? He is not to be held guilty of contributory negligence if he takes the usual precautions of careful persons to avoid such consequences as may be reasonably apprehended. This can never be determined by a court unless the conduct alleged to be negligent is clearly so; and while, abstractly speaking, this may be said to be a matter of opinion, yet, where negligence is clear, the courts take the question from the jury; but it is commonly understood that courts do not assume to invade the province of a jury, and determine such questions, unless it seems apparent that the general concensus of honest opinion should or does recognize the act as one that cannot be reconciled with the idea of the exercise of that caution known to be usually exercised by ordinarily prudent men. We are unable to say that in this case; hence the conclusion that the question of contributory negligence was for the jury.

At the request of the plaintiff’s counsel, the court instructed the jury as follows:

‘' Sixth. When a railroad company admits passengers into a way-car attached to a freight train, for the purpose of carrying passengers to be transported as passengers, and takes the customary fare for the same, it incurs the same liability for the safety of passengers as though they were in regular passenger coaches at the time of the occurrence of the injury. The responsibility of the railroad company for the safety of its passengers does not depend on the kind of cars in which they are carried. If the passenger is lawfully on the cars, the company is bound to carry him safely.
“ Seventh. The plaintiff is not guilty of contributory negligence for the reason that he did not sit down in the first seat he came to when he entered the car in question. He had a right to take any seat he chose, in any part of the car that the defendant company had provided for its passengers.
‘Eighth. The plaintiff is not guilty of contributory negligence for the reason that, after entering the way-car, he did not look and listen for any danger. It is not contributory negligence not to look for danger where there is no reason to apprehend any. Every one has a right to presume that others, owing a special duty to guard against danger, will perform that duty.”

It is our understanding that a common carrier of passengers is not an insurer of safety, but that he is only liable when negligence is shown. This is the plaintiff’s own theory, as shown by the action brought. See Hutch. Carr. (2d Ed.) § 497; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Mitchell v. Railway Co., 51 Mich. 236 (47 Am. Rep. 566). The propositions that, if the passenger is lawfully on the cars, the company is bound to carry him safely, and that “the responsibility of the company for the safety of its passengers does not depend on the kind of cars in which they are carried,” are broad, and, in our judgment, would lead the average juror to understand that the railroad company was an insurer of the safety of the passengers, and that the same degree of protection is requisite upon a freight train as upon the best-equipped passenger train. The recent case of Hall v. Murdock, 114 Mich. 233, shows that the same is not required. We -think also that the seventh and eighth requests should not have been given, as they take from the jury the question of the degree of caution required of the plaintiff.

We think the declaration was sufficient, under our decisions.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    SCHMITZ v. BEALS.
    Evidence — Matters Equally Within Knowledge of Deceased —Authority of Agent.
    In an action against two tenants in common for the breach of a land contract, brought by the representatives of a deceased vendee, the statute (3 How. Stat. § 7545) does not prevent one of the defendants from testifying that he never had any dealings with the deceased, but that the contract was brought to him by his co-defendant, and signed at his request, and that the latter had no authority to deliver the same to the vendee without the payment of the sum therein specified.
    Error to Wayne; Donovan, J.
    Submitted October 12, 1897.
    Decided November 23, 1897.

      Assumpsit by Joseph Schmitz, Jr., as assignee of the administratrix of the estate of Joseph Schmitz, deceased, against Willis E. Beals, impleaded with Charles Cameron, to recover payments made under a land contract. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Phil. M. Coffin, for appellant.

      Walter Barlow, for appellee.
   Hooker, J.

Beals and Cameron were owners, as tenants in common, of certain outlots in the city of Detroit, and subdivided the same into 5? smaller lots. While these were held in common, Schmitz entered into a written contract for three of them; the plaintiff having produced upon the trial the alleged contract, signed by all of the parties mentioned. This contract is shown to have been in the possession of Schmitz about the time of its date. The consideration mentioned in the instrument was $1,250, and the purchaser agreed to pay as follows, viz.: $950 on delivery of the contract, and $300 at or before the expiration of five years therefrom. Subsequently, Beals and Cameron divided the 57 lots, each deeding to the other an undivided interest in the allotted parcels. In this division the lots in controversy went to Cameron, who subsequently mortgaged them with others, which mortgage was foreclosed, and the lots sold. Schmitz being dead, the administratrix assigned the contract to the plaintiff, who brings this action for a breach of the contract, claiming the right to recover $950, and some other amounts subsequently paid. The evidence of payment consisted of—

First. The promise to pay on delivery of the contract, and possession of the contract by Schmitz.

Second. Evidence that he took a team away from the farm, and brought back the contract, saying that there was $300 back upon it.

Third. Evidence of payment of interest by a daughter of Schmitz at various times.

The plaintiff recovered, and defendant Beals has appealed.

Defendant offered to show that he had no negotiation with Schmitz; that he was informed by Cameron that he had negotiated a sale of these lots for $1,250 upon the terms stated in the contract, and that he (Beals) sanctioned and signed the contract, and gave it to Cameron to execute and deliver; that he never heard anything further about it, and deeded his interest in these lots to Cameron upon the understanding that the contract had not been made. It was claimed that the proof introduced showed that Schmitz paid nothing but a team upon this consideration, and.that Cameron had no right to deliver the contract upon such terms, as Schmitz could and should have seen from the terms of the writing. The court refused to permit Beals to testify to the transaction between him-himself and Cameron, and that he never met, or had business dealings with, Schmitz, upon the ground that he was prohibited by the statute. 3 How. Stat. § 7545. He also instructed the jury that “the parties to the contract are sellers and the buyer, and there is no testimony before us that there was any overreaching, and, if they took a team as part payment, that is their own lookout.” We discover no evidence that the defendants were copartners, or that Cameron was authorized to accept a team in lieu of money as payment. If he did so, — of which there was evidence to go to the jury, — it was competent for Beals to testify that it was unauthorized. The circumstances of the execution of the contract by Beals — if defendant’s claim was true — were not equally within the knowledge of Schmitz, who was not present. Wheeler v. Arnold, 30 Mich. 304; Ripley v. Seligman, 88 Mich. 190.

We are of the opinion that the judgment should be reversed, and a new trial directed. It will therefore be so ordered.

The other Justices concurred.


author: Grant, J. Montgomery, J.

text:
    LYONS v. BAY CITIES CONSOLIDATED RAILWAY CO.
    1. Electric Railroads — Person Standing on Track — Duty or Motorneer.
    The motorneer of an electric car has the right to assume that a person standing on the track some distance ahead of the car will step out of the way, and he is not bound to check the speed of the car until he has good reason to believe that such person is paying no heed to the customary signals.
    3. Same — Failure to Heed Signals — Dearness.
    The fact that a motorneer, who ran down and killed a street sweeper, saw two fellow workmen of the deceased run to him and take hold of him as the car was approaching, was insufficient to apprise the motorneer that the man was so deaf as to be unable to hear the gong, so as to impose upon him the duty of checking the speed of the car. Montgomery, J., dissenting.

      3. Same — Contributory Negligence.
    A street sweeper was, as matter of law, guilty of contributory negligence, precluding a recovery for 1ns death from being struck by an electric car, which approached him in plain sight for nearly 2,000 feet, in failing to look for the car, where he was deaf, and could not hear the signals.
    Error to Bay; Maxwell, J.
    Submitted June 9, 1897.
    Decided December 7, 1897.
    Case by Theodore Lyons, administrator of the estate of Joseph Delille, deceased, against the Bay Cities Consolidated Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Van Kleeck & Anneke, for appellant.

      T. A. E. & J. C. Weadock, for appellee.
   Grant, J.

The court, upon the opening statement of counsel for plaintiff, .directed a verdict for the defendant. The deceased was a laborer in the employ of Bay City, and, while engaged in sweeping the street, was struck by a car of the defendant, and received an injury from which he died. Plaintiff brought suit, alleging that the accident was caused by defendant’s negligence. The deceased was sweeping between the rails of one of the tracks. He was so deaf that he could not hear the sound of the car or the gong, which, it is conceded, the motorneer rang. Delille knew that cars were passing over these tracks every few minutes. His deafness required more vigilance in the use of his eyesight. Instead, he did not use his sight at all. The car was in plain sight for nearly 2,000 feet. A glance, occupying no perceptible time, would have informed him of the approach of the car. A step, taking scarcely a second of time, would have placed him beyond danger. The motorneer had no knowledge of his deafness. He was under no obligation to check the speed of his car until he had good reason to believe that Delille was paying no heed to his customary signals. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274. Delille could easily have avoided the danger by stepping out of the way when the car was within a few feet of him. The motorneer had the right to assume that he would do so. The case is ruled by Daly v. Railway Co., 105 Mich. 193.

The counsel, in his statement to the jury, said:

“Two other workmen were about 20 feet from deceased, east on the track. They heard the car coming, and, knowing of his infirmity, rushed back to him, took hold of him, and attempted to shove him off with a broom; but the car was coming so rapidly that it knocked the broom out of the man’s hand, and Delille was killed.”

It is contended that this statement is sufficient for a jury to find negligence on the part of the defendant, on the ground that the motorneer either saw, or ought to have seen, that the deceased was paying no attention to the noise of the car, or the signal which the motorneer was giving. What was there in the situation to inform the motorneer why these two men were running down the track ? But, according to the statement, these men had time to run 20 feet, to seize deceased, and to let go of him when they saw the danger, and step off the track, before the car reached them. If, then, the motorneer saw them running, and knew that they were trying to notify deceased, he had a right to believe that he could hear, and did hear, the warnings of his fellow workmen. Counsel do not claim that the motorneer deliberately ran upon the deceased, knowing that he was in danger. A single step would have placed him beyond danger, and the motorneer had a right to act on the presumption that the deceased was in the possession of his faculties, and would take the step. This could be done when the car was within 15 or' 20 feet. What reason is there for saying that the motorneer was guilty in not anticipating that deceased would not take the usual precaution to protect himself ? But, if he was guilty of negligence, the deceased was equally guilty, in not using his eyesight, and it was a case of negligence on the part of both. The offer of proof was not sufficient to relieve deceased from his duty to look when he could not hear, or to fasten negligence on the defendant.

Judgment affirmed.

Long, C. J., and Moore, J., concurred with Grant, J. Hooker, J., did not sit.

Montgomery, J.

(dissenting). In addition to the facts

contained in the statement of Mr. Justice Grant, the plaintiff offered to show that the motorneer could see every man on the track, if he paid attention; that two other men were on the track, about 20 feet from the intestate; that they heard the car coming; that, knowing the infirmity of deceased, they rushed back to him, 'and attempted to get him off the track; that they took hold of deceased, and attempted to shove him off with a broom; that the car was running so rapidly that it knocked the broom out of his hand; that the motorneer, at the time the car struck deceased, said, “Let him go;” that the car was running at a rate of speed prohibited by ordinance. I think the case is not ruled by Daly v. Railway Co., 105 Mich. 193, but that it is a question for the jury as to whether the motorneer saw the deceased, and saw that the warning was unheeded by him, in time to have avoided the collision. Bouwmeester v. Railroad Co., 63 Mich. 557; Montgomery v. Railway Co., 103 Mich. 46.

The judgment should be reversed, and a new trial ordered.


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    MICHIGAN FEMALE SEMINARY v. SECRETARY OF STATE.
    Corporations — Franchise Fee — Educational Institutions.
    A corporation organized for educational purposes solely, and not for profit, which issues no stock, but acquires its prop erty by voluntary contributions, is not within Act No. 182, Pub. Acts 1891, as amended by Act No. 79, Pub. Acts 1898, requiring the payment of a franchise fee by corporations.

      Mandamus by tbe Michigan Female Seminary to compel Washington Gardner, Secretary of State, to file and record relator’s articles of reincorporation.
    Submitted October 25, 1897.
    Writ granted December 7, 1897.

      Boudeman & Adams, for relator.

      Fred A. Maynard, Attorney General (Birney Hoyt, of counsel), for respondent.
   Moore, J.

The relator was organized in 1858, under the provisions of Act No. 39, Laws 1855. Its corporate existence ended, under the laws as they then stood, in 1888. The attention of the corporation was not called until recently to the fact that its corporate existence ivas ended.' Since its original organization expired, it has been a corporation de facto, and has done business as though its corporate-existence had been properly and legally extended. When it learned the situation, it took such action to extend its corporate existence as it deemed necessary to comply with the provisions of section 10 of article 15 of the Constitution, and a legislative act passed in 1889, to be found in 3 How. Stat. § 4904c. The corporation was organized, not for the purpose of doing business in the ordinary sense, but as an educational institution, for the purpose of affording educational advantages to young women. That has been its purpose always, and is still the object of its existence. When it was originally organized, it had property valued at $8,100, which was given to it by persons interested - in the purpose of its organization. This amount has been increased by donations until the value of the property now invested is $05,000. The original articles of incorporation state that there has been subscribed to the capital stock of such association $8,100. Article 8 of the articles of reincorporation is as follows:

“The amount of property and money actually subscribed, donated, bequeathed, and devised to said corporation for its- establishment, maintenance, and support, and which constitutes what is denominated its ‘ capital stock ’ (although, as a matter of fact, no stock has been issued to any one for any of said money or property, or intended to be, by the corporation organized as before stated, or by the persons furnishing said money and property, nor intended in the future to be so issued), is the sum of $65,000, all of which has been heretofore, from time to time, since the original organization of said corporation, voluntarily subscribed, donated, devised, and bequeathed to said corporation, and accumulated by it, and all of which has been paid in, and is now held and owned by said corporation.” .

The petition filed by the relator shows that the corporation was never formed as a stock company, and that no stock has ever been issued, and that now it is not known who the parties were that contributed to the original fund owned by the corporation; that the contributions were voluntary gifts, and nearly all of the original contributors are now dead. The petition and articles of extension also show that the corporation was not called into being, and not continued, for the purpose of earning a profit for any one, but for educational purposes solely. After the corporation had taken such action as it deemed necessary to extend its- life,, it applied to the respondent to file and record the articles of association extending the corporate existence of the relator. The respondent had doubts about his right to file and record these articles, and declined to do so. The relator, in this proceeding; asks for a mandamus to compel the respondent to file and record thé articles of association.

Several reasons were assigned by the respondent for his refusal to comply with the request of the relator. Some of them relate to a doubt he entertained about the constitutionality of the legislation authorizing an extension of the corporate life, and of the regularity of the proceedings to extend the life, of the corporation. It is now conceded by the counsel for respondent that the only question that stands in the way of filing and recording the articles of association is the failure of the relator to pay to the respondent for the State a franchise fee of one-half of one mill on each dollar of the authorized capital stock of the corporation, as provided by Act No. 182, Pub. Acts 1891, as amended by Act No. 79, Pub. Acts 1893.

Does the franchise fee law apply to educational institutions? Subdivision 4, § 7, Act No. 206, Pub. Acts 1893, exempts the real estate belonging to educational institutions from taxation. Section 9, Act No. 25, Pub. Acts 1895, exempts the personal property of educational institutions from taxation. Act No. 46, § 3, Pub. Acts 1897, provides that the franchise fees received from corporations shall be applied in paying the interest upon the primary school, university, and other educational funds, etc. It has always been the policy of this State, as indicated by the provisions of its Constitution and a long line of legislative enactments, to encourage the cause of education. Liberal provision has been made for the purpose of establishing and sustaining schools. A reading of the provisions of the franchise fee law, in connection with the existing laws in relation to educational institutions, makes it very clear that it was no part of the purpose of the legislature, in providing for the payment of a franchise-fee upon capital stock by corporations, to apply its provisions to educational institutions organized in the manner in which the relator was organized, and maintained for the purpose for which it is maintained.

The writ of- mandamus will issue as prayed.

The other Justices concurred.


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    GILBOY v. CITY OF DETROIT.
    Municipal Corporations — Negligence of Board of Health-Liability.
    municipal corporation is not,liable for the negligence of its board of health, in consequence of which one who had been exposed to smallpox was received into a boarding house, occasioning loss and damage to the proprietor.
    Error to Wayne; Lillibridge, J.
    Submitted October 6, 1897.
    Decided December 7, 1897.
    Case by James Gilboy and another against the city of Detroit for damages alleged to have been sustained through the negligence of the board of health of said city. Erom a judgment for defendant on demurrer to the declaration, plaintiffs bring error.
    Affirmed.
    This is an action of tort. The declaration alleges that plaintiffs kept a boarding house; that they received a boarder in the usual course of business; that said boarder had been exposed to smallpox at the Merchants’ Hotel, in the city of Detroit, and that, through the negligence of the board of health, said person was permitted to go at large, instead of being confined; that it was the duty of the board of health, under the charter and ordinances of the city, to examine the person at the Merchants’ Hotel, determine whether she had smallpox, and, if she had, to remove her to a pest-house or hospital; that the person received into plaintiffs’ boarding house was taken down with smallpox while there, and they, in consequence, suffered loss and damage. A demurrer was interposed, and sustained by the court.

      George G. Prentis and A. J. Linzee, for appellants.

      Charles Flowers and Eli R. Sutton, for appellee.
   Grant, J.

(after stating the facts). The record presents the sole question, Is a municipality liable for the negligence of officers of the board of health in the performance of their duty ? Counsel for the plaintiffs cite no authorities to support their contention, and probably for the vei’y good reason that none can be found. The authorities universally hold to the contrary. The universal rule is that such boards and officers are not acting for private, but for public, purposes. They represent the entire State, through the municipality, a political subdivision of the State; and municipalities, in the absence of express statutes fixing liability, are not liable for the negligence of such officers and boards. Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 160 (20. Am. Rep. 468); City of Richmond v. Long’s Adm’rs, 17 Grat. 375 (94 Am. Dec. 461); Brown v. Inhabitants of Vinalhaven, 65 Me. 402 (20 Am. Rep. 709); Barbour v. City of Ellsworth, 67 Me. 294; Mead v. City of New Haven, 40 Conn. 72 (16 Am. Rep. 14); Ogg v. City of Lansing, 35 Iowa, 495 (14 Am. Rep. 499); Sherbourne v. Yuba Co., 21 Cal. 113 (81 Am. Dec. 151); City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450); Hill v. City of Boston, 122 Mass. 344 (23 Am. Rep. 332); 2 Dill. Mun. Corp. § 965. Brown v. Inhabitants of Vinalhaven is the counterpart of this in its facts.-

The rule is so clearly stated by Justice Folger in Maxmilian v. Mayor, etc., of City of New York, that we quote it:

“There are two kinds of duties which are imposed upon a municipal corporation: One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises or is implied from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public, and is used for public purposes. The former is not held by the municipality as one of the political divisions of the State; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involve, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an-injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the State, and is conferred, not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents.”

Judgment affirmed.

The other Justices concurred.


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    WOOD v. BIGELOW.
    1. Taxes — Chancery Jurisdiction — Conclusiveness oe Decree.
    The proceedings in chancery for the sale of lands delinquent for taxes on petition of the auditor general are pursuant to a special and limited authority conferred by the statute, and the rule which obtains in cases which fall within the ordinary jurisdiction of chancery courts, that, if the court has jurisdiction of the parties and the subject-matter, its decree, though erroneous, is binding until set aside, is not applicable to such proceedings.
    3. Same — Ejectment—Evidence—Certificate oe Error.
    A tax deed issued in proceedings under the tax law of 1893 (Act No. 306, Pub. Acts 1893) may be impeached in an action of ejectment by the introduction in evidence of a certificate of error issued by the auditor general under section 98 of the act, which empowers the auditor, upon finding that the tax has been paid to the proper officer within the time limited by law for the payment or redemption thereof, even after a deed has been executed and delivered, to give to the owner a certificate of error in proper form for record. >

      Error to Wayne; Hosmer, J.
    Submitted October 5, 1897.
    Decided December 7, 1897.
    Ejectment by Walter C. Wood against Elijah E. Bigelow and others. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James J. Atkinson (W. F. Atkinson, of counsel), for appellant.

      Barnes & Race, for appellees.
   Long, C. J.

This is an action of ejectment. On the trial below, defendants had verdict and judgment under the direction of the court.

The property in controversy is a house and lot in the city of Detroit, which, it is conceded, is of the rental value of $25 per month. Elijah E. Bigelow holds the title in fee, unless cut off by the tax deed under which plaintiff claims, the other defendants being his wife and tenants. On December 15, 1892, Mr. Bigelow paid the State and county taxes for that year upon the property, procuring the county treasurer’s receipt therefor. The entry, ‘ ‘ December 15, 1892,” was made in the column of the tax roll headed, “When Paid,” opposite the description of the lot. By some error fhe property was listed as delinquent for that year, and was included in the petition filed by the auditor general for the sale of the lands delinquent for taxes for 1892 and previous years, also in the order of publication, and was advertised and sold under the decree, and bid in to the State. Plaintiff became the owner of the State’s purchase, and procured his deed from the auditor general. This deed is the only basis of his claim. On the trial the defendants introduced in evidence, under objection and exception, the receipt given by the county treasurer, showing the payment of the taxes, and also a certificate from the auditor general, issued after this suit was commenced, showing that plaintiff’s tax deed had been canceled by him. This receipt and certificate were objected to “because tbe owner of land who claims to have paid his taxes must set up that claim in the chancery-suit out of which the sale grew.”

At the close of the testimony, the plaintiff requested the court to direct the verdict in his favor, and for damages at the rate of $25 per month. This was refused, and the plaintiff then asked the court to award him the costs, “as it appeared that plaintiff’s title had, since the commencement of this suit, ended through the act of the auditor general.” This -was also refused.

Counsel-now assert that the legal questions here involved are of grave importance if the State is to reap any benefit from these tax sales. Their argument is that in the petition, among other things, the auditor general represented that the taxes for 1892 had not been paid on the lot in question; that, after the necessary steps had been taken to bring the owner of the lot in as a defendant, the auditor general made his proofs, and the chancery court found as a fact that the taxes had not been paid, and that the decree ordering sale of the lot was based on proofs satisfactory to the court that the taxes had not been paid; that, therefore, the decree of the chancery court must stand until regularly set aside by that court, and cannot be attacked in any way in another court. Counsel cite cases which they contend sustain this claim. But these are cases which fall within some well-known head of chancery jurisdiction, and in such cases the rule is settled that, if the chancery court has jurisdiction of the parties and the subject-matter, though the decree be erroneous, it is binding upon both parties until set aside. But the proceedings had in the present case are not within the ordinary jurisdiction of the chancery court. Such jurisdiction is special and statutory, and must be strictly confined to the limits of the statute conferring it. Mr. Justice Cooley, in his work on Taxation, speaking of the sale of lands for unpaid taxes, lays down the rule that:

“In any judicial proceeding, the court which assumes to act must have that authority of law for the purpose which is called jurisdiction. This consists in authority-over the subject-matter and authority over the persons concerned. * * * Concerning jurisdiction of the subject-matter, it is only necessary to observe that it must come wholly from the constitution or statutes of the State, the common law giving to the courts no authority in such cases. Moreover, that which is conferred is a special and limited jurisdiction. The importance of this fact appears in that familiar principle that nothing is taken by intendment in favor of the action of a court of special and limited jurisdiction, but it must appear by the recitals of the record itself that the facts existed which authorized the court to act, and that in acting the court has kept within the limits of its lawful authority. This principle is applicable to the case of a court of general jurisdiction, which, in the particular case, is exercising this peculiar special and limited authority, as well as to the case of special courts created for such special and limited authority only.” Cooley, Tax’n (2d Ed.), 525.

See, also, Black, Tax Titles, § 178.

These proceedings for the sale of the lands in controversy were had under Act No. 206, Pub. Acts 1893. Section 61 óf that act provides that the auditor general shall file a petition, “stating therein, by apt reference to lists or schedules annexed thereto, a description of all lands in such county upon which taxes .have remained unpaid for more than one year prior to the first day of May * * * of the year in which the petition is filed,” etc. Prior to the enactment of these statutes, the first of which was passed in 1882, the court of chancery had no power to decree what lands should be sold for taxes, or to prescribe the manner and time of sale. The only power now possessed by the court is that conferred by this act. In the present case the tax had been fully paid before the auditor general filed his petition, and, if the attention of the court had been called to it at the time of making the decree, the lands would have been discharged of the apparent lien, and would not have gone to sale; and, even after sale and confirmation, that court had the power, under the statute, to set aside the sale, if the application had been made therefor within one year after the owner had notice of the sale. As was said in Muirhead v. Sands, 111 Mich. 487, 495:

‘ ‘ The statute (section 70) in terms provides that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation, and that in such cases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same aside. ”

But this was not the only remedy which the statute gave to the defendants. Under section 98, Act No. 206, Pub. Acts 1893, the auditor general, upon finding that the tax has been paid to the proper officer within the time limited by law for the payment or redemption thereof, is empowered, even after a deed has been executed and delivered, to give to the owner a certificate of error in proper form for record; and the deed, if not recorded', shall be surrendered when the purchase money is refunded, etc. It is evident that it was the intent that this certificate of error should perform some office. It was offered in evidence in the present case, and received by the court. It showed clearly that there was an error in the returning and sale of these lands and in the giving of the deed Under such circumstances, the plaintiff had no right to recover, and the court very properly directed the verdict in favor of the defendants. That judgment must be affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    KLUCK v. MURPHY
    Justices of the Peace — Practice.
    Ifc is not within the power of a justice of the peace to amend his docket after it is once made up and officially signed by him.
    Error to Gogebic; Haire, J.
    Submitted October 5, 1897.
    Decided December 7, 1897.
    Debt by. John J. Kluck against Jerry Murphy. From a judgment reversing, on certiorari, the judgment of a justice of the peace, plaintiff brings error.
    Affirmed.

      Julius J. Patek (C. F. Button, of counsel), for appellant.

      Buck & Waples, for appellee.
   Montgomery, J.

This is error to review the decision of the circuit court reversing a judgment of a justice of the peace. The error alleged is that the docket entry of the justice failed to show a declaration by the plaintiff. The defendant did not appear before the justice. The statute (2 How. Stat. § 7053) provides that every justice of the peace shall keep a docket, in which he shall enter a concise statement of the declaration of the plaintiff and the plea of the defendant when the pleadings are oral. The plaintiff contends that the justice’s return shows that pleadings were filed. The justice’s return contains the statement, “Plaintiff declares on, and offers in evidence, judgment rendered before me,” etc. The judgment bears the date December 8, 1896. In answer to an order requiring a further return, the justice returned that, when the docket was signed by him, the words (the plaintiff) “declares on and ” were not included in the judgment entry.. It appears that some time thereafter— and whether before or after the notice of certiorari does not appear, as the justice returns that he has no recollection of the wording of his docket entry at the time of the service upon him of certiorari — he inserted these words. It thus appears that the original docket entry, as entered and signed by the justice, omitted any statement whatever as to the pleadings. It is not within the power of the justice to amend his docket after it is once made up and officially signed by him. Foster v. Alden, 21 Mich. 507.

Judgment will be affirmed, with costs.

The other Justices concurred.


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    CALDWELL v. JONES.
    Husband and Wife — Joint Note — Liability op Wife.
    A married woman is not liable on a note given by her jointly with her husband for the price of personal property purchased by them jointly.
    Error to Grand Traverse; Corbett, J.
    Submitted October 6, 1897.
    Decided December 7, 1897.

      Assumpsit by Robert Caldwell and William Loudon against Elnora Jones and E. S. Jones upon a promissory note. From a judgment for defendant Elnora Jones on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Patchin & Crotser, for appellants.

      Underwood & Umlor, for appellees.
   Montgomery, J.

This is an action on a promissory note of $100, payable to E. F. Ferris or order, and signed by the two defendants, who are husband and wife. The evidence offered on the trial by the plaintiffs tends to show that the note was given for a horse sold by Ferris to the defendants jointly, and the question is whether a married woman can make herself liable upon a note given jointly with her husband for the purchase of personal property by the two. The circuit judge directed a verdict in favor of Mrs. Jones.

It is clear that the effect of this undertaking of Mrs, Jones was to make herself liable as a surety for her husband, to the extent at least of one-half the note, if her undertaking is binding. It has been frequently held that the wife cannot become surety for the husband. It has also been held, and is the established doctrine in this State, that the wife is not liable generally for her engagements, nor can she make herself liable, except by contract relating to her separate estate, or by contract by which she acquires separate property. It is not enough, to charge a married woman upon her executory contract, that there is a consideration which would 'support a promise at the common law, or that the contract indirectly inures to her benefit. Russel v. Savings Bank, 39 Mich. 671 (33 Am. Rep. 444). In Speier v. Opfer, 73 Mich. 35 (16 Am. St. Rep. 556), it was held that a wife could not be héld liable upon a joint contract with her husband for improvements made upon property owned by them jointly. The court said, “She [the wife] has no power to contract, except in regard to her separate property.” So it was held in Artman v. Ferguson, 73 Mich. 146 (16 Am. St. Rep. 572), that the wife could not be held liable for goods furnished to the husband and wife as partners. The court, speaking by Mr. Justice Long, said:

‘ ‘ The important and sacred relations between man and wife, which lie at the very foundation of civilized society, are not to be disturbed and destroyed by contentions which may arise from such a community of property, and a joint power of disposal, and a mutual liability for the ■contracts and obligations of each other.”

See, also, Bassett v. Shepardson, 52 Mich. 3; Curtis v. Crowe, 74 Mich. 99.

The instruction given was proper. Judgment will be affirmed, with costs.

The other Justices concurred.