text:
    MOHN v. MANSFIELD.
    1. Deeds — Consideration —Parent and Child —Work, Labor and Services — Voluntary Conveyance.
    Evidence that the daughter of decedent worked for and resided with her father for seven or eight years after she had reached her majority, that decedent had admitted he had agreed to pay her for her services, and subsequently executed a deed of a portion of his property to her, taking a life lease back in payment therefor, was sufficient, in a suit to reform the conveyance by correcting the description, to warrant a finding by the trial court that the deed was executed for a valuable consideration.

      2. Same.

      Held, that the evidence established the fact of delivery of the deed and that the parties were mutually mistaken in the description of the land.
    Appeal from Branch; Yaple, J.
    Submitted June 16, 1911.
    (Docket No. 84.)
    Decided September 29, 1911.
    Bill by Mary A. Mohn against John Mansfield and others for the reformation of a deed. From a decree for complainant, defendant Charles Mansfield appeals.
    Affirmed.

      Lockerby & Bowen, for complainant.

      Burt E. Barlow, for defendant Charles Mansfield.
   Brooke, J.

Complainant is the youngest of four children of Pizarro Mansfield (now deceased) and defendant Harriet Mansfield. The other three children are the defendants John Mansfield, Charles Mansfield, and Helen K. Annin. When complainant became of age, the older children had left home. She remained with her father and mother some seven or eight years after she attained her majority, assisting in the care of the house and working on the farm. On December 28, 1889, her father was the owner of 85 acres of land, situate on the northeast quarter of section 26, in township 5 south, of range 5 west, Branch county, Mich. On that day he executed and delivered to complainant a deed of 21£ acres of land, taking back from her a life lease covering the land described in the deed. Through an error of the scrivener, the description in both the deed and life lease was made to cover land situate upon the northwest quarter of section 26, instead of the northeast quarter thereof. Bizarro Mansfield had no title to the lands covered by the erroneous description. The evidence leaves no doubt as to what land he intended to convey to complainant. Upon discovery of the error, complainant filed her bill of-complaint, praying for a reformation of the description. The bill was taken as confessed against all the defendants, except Charles Mansfield. From a decree in favor of complainant, Charles Mansfield appeals.

Defendant’s counsel states that there are three questions involved:

First. Was this a voluntary deed ?
Second. Were the papers delivered?
Third. Was there a mutual mistake ?

The second and third questions may be disposed of very briefly. The record, we think, conclusively establishes the fact of delivery, and that both parties to the instrument believed at the time of its execution it covered the northeast 21£ acres of the northeast quarter of section 26.

As to the first question, it is the contention of appellant that the conveyance was purely voluntary and without consideration and therefore not subject to reformation. He urges that under our decisions complainant must show that her services were rendered with the understanding on her part that they should be paid for, and, on her father’s part, that he should pay; citing Mason v. Dunbar, 43 Mich. 407 (5 N. W. 432, 38 Am. Rep. 201); Wright v. Senn Estate, 85 Mich. 191 (48 N. W. 545); Harris v. Harris, 106 Mich. 246 (64 N. W. 15); Sammon v. Wood, 107 Mich. 506 (65 N. W. 529); Boughton v. Boughton’s Estate, 111 Mich. 26 (69 N. W. 94); Van Slambrook v. Little’s Estate, 127 Mich. 61 (86 N. W. 402); Decker v. Kanous’ Estate, 129 Mich. 146 (88 N. W. 398). Complainant claims, and the learned circuit judge found, that the deed in question was executed “for a good and valuable consideration by her prior to that time paid.” The testimony upon which this finding was based was apparently the following:

“Q. Now you claim that Mr. Mansfield came over to your house. Just state again what it is that you claim he said, just prior to to the giving of these ?
“A. He said that Mary had worked at home eight years after she was of age, and he had agreed to give her $100 a year and board and clothes for her labor, and he' didn’t have the money to give it, and he wanted to fix it in a way she would get it, and asked if it would be all right if he deeded a part of the land and he take a life lease, and we went to the house and talked it over. * * *
“Q. Why was it he did this then?
“A. So she would — then the way he said he wanted it so she would be sure and have her pay for what she had done; that he had agreed to do, and wanted to fix it, so when he was through with it — so it would be satisfactory to her; so she would have her pay for what she had done.”

We have held that—

“Admissions of the deceased that his son was in his employ like any other man, that his son had money coming to him, and that his son had not drawn much money, were competent evidence from which an express contract to pay for services might be inf erred.” Hialey v. Hialey’s Estate, 157 Mich. 45 (121 N. W. 465).

The testimony above quoted, if credible, clearly establishes the existence of a contract between the father and daughter. We are of opinion that the court below was warranted in its finding.

The judgment is affirmed.

Ostrander, O. J., and Bird, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE, for use of WIPFLER, v. WIPFLER.
    1. Parties — Bonds — Judicial Bonds — Receivers — Principal and Surety.
    Suit may be maintained on a receiver’s bond running to the people of the State of Michigan, without permission of the State, in the name and for the use of the only person interested in the assets which the bond secured; a breach of the conditions of the obligation being alleged.
    2. Receivers — Action Against — Leave of Court — Jurisdiction.
    Without leave of court first obtained, an action may be brought against a receiver appointed in a county other than that in which action is instituted, and against his surety on his official bond, after a decree in equity requiring the receiver to pay a sum of money, and after default, where it is averred that nothing remains for the receiver to do but pay the amount determined by the decree.
    Error to Jackson; Parkinson, J.
    Submitted June 19, 1911.
    (Docket No. 93.)
    Decided September 29, 1911.
    Assumpsit by the people of the State of Michigan for the use and benefit of Lucy Wipfler against Charles W. Wipfler and the Fidelity & Deposit Company of Maryland. A judgment for defendants, overruling plaintiff’s demurrers to two pleas in abatement filed by defendants and on plaintiff’s replication to a portion of one of said pleas, is reviewed by plaintiff on writ of error. Reversed.

      Grove H. Wolcott, for appellant.

      Brennan, Donnelly & Van De Mark (Wilson & Cobb, of counsel), for appellees.
   Moore, J.

A reading of the opinions in People, for use of Wipfler, v. Fidelity & Deposit Co., 163 Mich. 94 (127 N. W. 765), and Wipfler v. Warren, 163 Mich. 189 (128 N. W. 178), will make it unnecessary to make so full a statement of facts as would otherwise be essential.

This suit is commenced by declaration. Some of the averments are as follows:

si The people of the State of Michigan, for the use and. benefit of Lucy Wipfler, owner of the property and effects of the Detroit Pattern Works, a corporation, plaintiff herein, by Grove H. Wolcott, her attorney, complains of Charles W. Wipfler and the Fidelity & Deposit Company of Maryland, a corporation of said State, defendants herein, in a plea of trespass upon the case upon promises, for that, whereas the defendants heretofore on, to wit, the 15th day of April, A. D. 1904, at the city of Detroit, in the State aforesaid, by their certain writing obligatory, sealed with their seals, and now shown to the court here, the date whereof is the day and year aforesaid, acknowledged themselves, the said Charles W. Wipfler as principal, and the said Fidelity & Deposit Company of Maryland as surety, to be held and firmly bound unto the people of the State of Michigan, in the sum of six thousand dollars, lawful money of the United States, to be paid to the said people of the State of Michigan, for which payment the said obligors did bind themselves, jointly and severally, which said writing obligatory was and is subject to a certain condition thereunder written, to wit: That by an order of the circuit court for the county of Wayne, in chancery, made on the 11th day of April, A. D. 1904, in an action wherein the said Charles W. Wipfler was complainant, and the Detroit Pattern Works, a Michigan corporation, Lucy Wipfler and Charles E. Wipfler and Louis Horn, are defendants, the above bounden Charles W. Wipfler was appointed sole receiver of all the property and assets of the said Detroit Pattern Works upon his executing a bond in the penal sum of six thousand dollars, to be approved by said court, pending an appeal of said cause to the Supreme Court of the State of Michigan, conditioned that the said Charles W. Wipfler should faithfully account for and deliver to whomsoever might be decreed to be entitled thereto, all of the property and assets of every kind and nature of the said Detroit Pattern Works which had come into or been in possession of said Charles W. Wipfler since the 21st day of December, 1908, the date of the decree in said cause; and do and perform his duties as receiver in all things according to the true intent and meaning of the aforesaid order, then said obligation to be void, otherwise to remain in full force and effect, which said writing obligatory was duly approved by the Honorable Morse Rohnert, a circuit judge of said court, on the 15th day of April, 1904, and filed on, to wit, said last named date, iu said cause.”

Then follows a narrative of events which plaintiff claims entitles her to a judgment on said bond.

Two questions are presented by the pleadings and by-counsel for disposition here:

First, that the action cannot be maintained in the name of the people of the State of Michigan, as they have at no time authorized plaintiff to bring suit in their name.
Second, that the circuit court for Jackson county neither has, nor ought to take, jurisdiction of this case, as the receiver was appointed by the circuit court for Wayne county, in chancery, which court has not given leave to bring this suit.

The circuit judge was of the opinion that the second proposition was well taken and that the circuit court for Jackson county had no jurisdiction.

The bond sued upon in the case reads in part as follows:

“Know all men by these presents, that we, Charles Wipfler, of the city of Detroit, Wayne county, State of Michigan, as principal, and Fidelity and Deposit Company of Maryland, as surety, are held and firmly bound unto the people of the State of Michigan in the sum of six thousand dollars, lawful money of the United States, to be paid to the said people of the State of Michigan. * * *
‘ ‘ Whereas by an order of the circuit court for the county of Wayne made on the 11th day of April, A. D. 1904, in an action wherein Charles Wipfler is complainant, and the Detroit Pattern Works, a Michigan corporation, Lucy Wipfler, Charles E. Wipfler and Louis Horn are defendants ; the above bounden Charles E. Wipfler was appointed sole receiver of all the property and assets of the said Detroit Pattern Works upon his executing a bond. * * *
“ Now the condition of this obligation is such that if the above bounden, Charles Wipfler, shall faithfully account for and deliver to whomsoever may be decreed to be entitled thereto, all of the property and assets of every kind and nature of the said Detroit Pattern Works which have come into or been in possession of said Charles Wipfler since the 21st day of December, 1903, the date of the decree in this cause, and do and perform his duties as receiver in all things according to the true intent and meaning of the aforesaid order, then this obligation to be void, otherwise to remain in full force and effect.”

If the averments of the amended declaration are true, the plaintiff is the only person interested in the assets of the Detroit Pattern Works, which came into the hands of Mr. Wipfler as receiver, who has failed to turn them over as he should do under the decree. If these averments are true, the suit may be maintained in the form of action as brought under the principle to be gathered from the following authorities: Detroit Board of Education v. Grant, 107 Mich. 151 (64 N. W. 1050); City of Alpena, for use of Zess, v. Surety Co., 158 Mich. 678 (123 N. W. 536); City of Alpena, for use of Besser, v. Surety Co., 159 Mich. 329 (123 N. W. 1126).

Could the circuit court for the county of Jackson take jurisdiction under the facts averred in the declaration? The plaintiff is a resident of Jackson. It is averred that nothing remains for the receiver to do except to pay the decree rendered against him. In Robertson v. Pattern Works, 152 Mich. 612 (116 N. W. 196), Justice Carpenter, speaking for the court, said:

“There is no doubt of the general rule that property in the hands of a receiver is not subject to garnishment except by leave of the court appointing the receiver, whch leave was not obtained in this case. But the weight of authority holds that that rule has no application in a case like this where nothing remains to be done except to pay money upon a final decree. Willard v. Decatur, 59 N. H. 137; Smith v. People, 93 Ill. App. 135; Rood on Garnishment, § 32; Dunsmoor v. Furstenfeldt, 88 Cal. 522 ([26 Pac. 518], 12 L. R. A. 508 [22 Am. St. Rep. 331]); Weaver v. Davis, 47 Ill. 235; 20 Cyc. p. 1026. We believe the law to be as stated in these cases. The order dismissing the proceedings was therefore erroneous.”

We think the same rule should apply in this case if the averments of the declaration are true.

The judgment is reversed, and the case is remanded for further proceedings.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    CURRY v. TRAVER-BIRD CO.

      1. False Imprisonment — Principal and Agent — Process—Evidence oe Relation.
    Evidence that defendant, a creditor of plaintiff, placed its account in the hands of a collector who started suit in justice’s court thereon against plaintiff and commenced another action against plaintiff’s father, that the collector appeared as attorney for defendant in both cases, that one of the members of the firm told plaintiff he had placed that matter in the hands of the firm’s collector to take such action as he might see fit, that the case against plaintiff’s father was discontinued on plaintiff’s promise to the firm to make payments on account, and that the collector took out a body execution on a judgment in assumpsit and unlawfully placed plaintiff under arrest, tends to show that defendant authorized the action of the collector and was liable in false imprisonment.
    2. Same — Trial.
    The weight of the evidence is for the jury; whether there is any evidence tending to support the contention of a party is for the court; and if there is evidence supporting plaintiff’s claim, it is error to direct a verdict for defendant.
    Error to Wayne; Donovan, J.
    Submitted June 20, 1911.
    (Docket No. 107.)
    Decided September 29, 1911.

      Case by John 0. Curry against Traver-Bird Company for false imprisonment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Titos. J. Mahon and J. Emmet Sullivan (A. O. Bishop, of counsel), for appellant.

      Bowen, Douglas, Eaman & Barbour, for appellee.
   McAlvay, J.

Defendant recovered a judgment upon a directed verdict against plaintiff, in an action on the case for false imprisonment. This verdict was directed at the close of plaintiff’s case on motion of counsel for defendant, on the ground that there was no evidence in the case connecting defendant with the false imprisonment charged. The errors assigned are based upon this ruling.

The evidence in the case, which will be taken as true in determining the question presented, shows that plaintiff, a man over 30 years old, was indebted to defendant in the sum of about $30 for the price of a suit of clothes and an overcoat purchased from it, and saw members of the Traver-Bird Company about the bill several times. On February 29, 1908, defendant commenced suit against plaintiff, before a justice of the peace of the city of Detroit, for this indebtedness, in which suit Edward Jones appeared as its attorney. The summons was served on the date of its issue, and returned March 3d. The declaration was in assumpsit, and a judgment was entered by default, March 11th, for $35 and costs in its favor; said Jones being sworn for the Traver-Bird Company as the only witness to prove its claim. On the date of the commencement of this suit, another suit was begun by the defendant company, by summons, against Michael Curry, the young man’s father, to recover for the same indebtedness. Jones appeared as attorney for the company in both cases. He signed the praecipe for summons. His business was that of a collector. The son, after service of the summons on Michael Curry, went to the company’s place of business and had a talk with Mr. Bird, telling him he did not want his father bothered, and that he would pay the bill if time was given him. Mr. Bird agreed that he would drop the suit against the father if the son arranged with Mr. Hill to pay the bill. Such an arrangement was made, and the case was accordingly discontinued March 6,1908, in writing, signed by Edward Jones and filed with the justice. The following letter was also sent to the father, ratifying what had been done:

Dear Sir:
“ On agreement of your son, John, to call at our office March 16th and pay on account at least $5.00, and possibly more, suit against you has been discontinued. This stay of proceedings on our part is conditional only on above agreement.
“Yours very truly,
“Traver-Bird Co.”
At the time agreed, the young man went to the company’s -office and again told Mr. Bird that he could not make the payment. Mr. Bird then told him:
“ I have nothing further to do with the matter. I have placed it in the hands of my collector, and authorized him to take whatever measures he sees fit to collect the debt.”

On March 18, 1908, a body execution on the judgment in this assumpsit case issued from justice’s court against the defendant (plaintiff in the instant case), and was placed in the hands of a constable, who later, in company with collector Jones, went to the home of this plaintiff. Jones told him he represented Traver-Bird and demanded payment on the bill, and, when he said he could not pay, ordered him arrested. The constable showed his badge, and said he had a warrant for his arrest, showing him a paper saying that he must go with them. They took him from his home, No. 420 Port Street East, down Port street; he walking between them. Jones was talking all the way down, saying that he would prefer a settlement; that it would be a shame for a man of his reputation and acquaintance to go to jail. At Antoine street Jones proposed to go to see plaintiff’s father, which plaintiff refused to consent to. Jones then said he would get the constable to let him go until the next morning, and if he was at the constable’s room in the county building by 10 o’clock and made a payment it would be all right; otherwise the constable would take him to jail. He was then released from arrest.

It appears without dispute from the foregoing statement of the case made by the plaintiff that he was sued by defendant, and a judgment by default was obtained against him; collector Jones, in justice’s court, acting for it, as attorney, and as the only witness sworn in the case to prove the amount due. For this purpose it was not necessary that Jones should be an attorney at law. The institution of these suits was recognized by the defendant, in that, after the consultation between plaintiff and Mr. Bird at defendant’s place of business, the agreement to discontinue the suit against the father was carried out by the defendant, by the letter written by it-to the father, and by the discontinuance, in writing, filed in the case on its behalf by Jones, who began the two suits at the same time for them, by signing the prsecipe for summons. There had been up to this time but one collector in the case. But one inference can be drawn from these facts, and that is that, up to the time of taking the judgment against plaintiff, Jones was acting for defendant, with frill authority to do for it what was done.

The question, then, is whether, with these facts fully established, there is any evidence to connect defendant with the conduct of Jones and the constable in arresting and holding plaintiff under arrest upon the body execution issued upon an ordinary judgment in assumpsit. Mr. Bird, who agreed for defendant to discontinue the suit against the father, which resulted as above stated, is the same Mr. Bird who made the statement, when informed that no payment could be made, that he had nothing further to do with the matter; that he had placed it in the hands of his collector, and authorized him to take whatever means he saw fit to collect the debt. The result was that this same collector, who had authority to bring this suit and authority to discontinue the suit against Curry, Sr., turns up with a body execution in the case in which judgment was secured against the plaintiff by his testimony, and perpetrates this arrest.

The question of the weight of the evidence is always for the jury. The question whether there is any evidence tending to support the contention of a party is for the court. This court has repeatedly held that a motion, made at the close of plaintiff’s case, to direct a verdict for defendant, should not be granted, if there is any evidence in the case tending to prove plaintiff’s contention upon the question involved. It is our conclusion that in the instant case there was evidence to go to the jury upon the question whether defendant was shown to have been connected with the false imprisonment charged. The court below was in error in holding to the contrary.

The judgment is reversed, and new trial granted.

Ostrander, C. J., and Moore, Brooke, and Blair, JJ., concurred.


text:
    MILLER v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Pleading — Crossing Accident —Negligence— Declaration.
    Upon objection to the evidence interposed at the trial, a declaration in case for personal injuries sustained in crossing the traok of ^defendant’s railroad was sufficient that alleged that as plaintiff was crossing defendant’s tracks, in the exercise of due care, “defendant then and there had a certain locomotive, which was then and there standing still upon said railroad, under the care and management of the servants of the said defendant and it was then and there the duty of the defendant to not move said locomotive so that the same should collide with the plaintiff while he was so crossing,” that defendant’s servants negligently started the locomotive and so negligently managed the same that it struck plaintiff’s wagon and injured him.
    3. Evidence — Trial—Remedying Errors.
    By withdrawing from the consideration of the jury the question of damages for injuries that plaintiff claimed resulted to his mind and memory, but that were not alleged in plaintiff’s declaration, the court corrected any error that might have arisen from the admission of testimony upon those matters.
    3. Negligence — Evidence.
    There was evidence tending to show negligence of the defendant in a case in which testimony was introduced that when plaintiff started to drive across defendant’s tracks its locomotive was stationed about 90 feet away from the crossing, the gates were raised, and plaintiff, after looking both ways, started to cross the several parallel tracks there situated, that as his team reached the last track the locomotive started; that the engineerhvho was occupied with other duties failed to see plaintiff and the locomotive collided with the rear portion of the wagon, while the locomotive was running about three miles an hour.
    4. Same — Contributory Negligence.
    With a finding of the jury supported by evidence, in answer to a special question, that plaintiff did not try to beat the engine across the crossing, the court could not say, as a matter of law, that plaintiff was guilty of contributory negligence for so doing.
    5. Same — Expert Testimony — Opinion oe Physician.
    It was not error to permit plaintiff’s physician to testify that in his judgment the alleged injuries of plaintiff were genuine.
    6. Same — Trial—Instructions to Jury.
    Nor did the court err in modifying a request of defendant that if plaintiff whipped up his horses and tried to beat the engine over the crossing, in the manner testified to by defendant’s witnesses, his conduct was negligent, where the court added thereto the proviso if “you find he could have stopped at a point of safety after so starting.”
    7. Same — Damages—New Trial.

      Held, that a verdict of §2,000 damages was not excessive.

      Error to Cass; Des Voignes, J.
    Submitted June 20, 1911.
    (Docket No. 111.)
    Decided September 29, 1911.
    Case by Hugh Miller against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      Coy W. Hendryx (M. L. Howell, of counsel), for appellee.
   McAlvay, J.

Plaintiff brought suit to recover damages for personal injuries claimed to have been caused on account of the negligence of the defendant’s servants and agents.

The accident occurred at a railroad crossing on Division street, in the city of Dowagiac. Five tracks of defendant’s railroad cross this street, which runs east and west, running in a northeasterly and southwesterly direction. This crossing is protected by gates. On the day in question, plaintiff had come into town with a load of hay, upon an ordinary wagon drawn by his two-horse team. He came along Division street, going east. The gates were down, and he stopped near the west gates and waited about 10 minutes, when they were raised, and he proceeded to cross. At the point where he waited, he could not see up or down the track. When plaintiff got past the gate-house, he looked in both directions. He saw an engine towards the south, standing still on a switch track, estimated by him to be about 90 feet away. He proceeded, and his statement is that when his horses got on the last track, which was the track on which this engine stood, he noticed that it started towards him. He urged his horses, and had nearly cleared the track when the engine struck the hind wheel of the wagon, and threw him off over the front wheel onto the street. He claims that, he was severely injured.

There are two switches south of the center of Division street. The first is 81 feet distant, and the second is 288 feet distant. The engine in question was a switch engine, engaged in switching, and had backed towards the farther switch to kick two of the four cars it was handling farther back, and as testified by its engineer it was stopped at that switch for a very short time, and then started north towards this crossing to put the two remaining cars over the nearer of the two switches mentioned. This required running the engine across the street, and in doing this the collision with plaintiff’s wagon occurred. The engine was at the time going about three miles an hour. Plaintiff recovered judgment.

Of the numerous errors assigned, we will consider only those discussed in defendant’s brief. The first is that the declaration does not state a cause of action, in that negligence is charged in general terms, and no breach of any specific duty is alleged. The allegations of the declaration charging negligence and a breach of duty are as follows :

“The said plaintiff was riding on a certain wagon loaded with hay, then and there drawn by a certain team of horses, upon and along a certain public street in said city called Division street, and upon the crossing of the said street and said railroad of said defendant, of which the defendant then and there had notice, and the said defendant then and there had a certain locomotive, which was then and there standing still upon said railroad under the care and management of the servants of the said defendant, and it was then and there the duty of the defendant to not move said locomotive, so that the same should collide with the plaintiff while he was so crossing said tracks, nor until he had passed the same, yet while the said plaintiff, in the exercise of due care, was then and there riding, as aforesaid, upon the said public street on the crossing aforesaid, the said defendant, not regarding its duty in that behalf, carelessly and negligently, by its servants, then and there started said locomotive toward the plaintiff, and so negligently conducted and managed that the said locomotive was then and there driven to, upon, and over the said crossing, and then and there, with great force and violence, struck the wagon of the said plaintiff, whereby the said plaintiff, although himself in the exercise during all that time of due care, was then and there thrown with such violence from and off of his wagon that he became and was then and there greatly hurt, bruised, and wounded, to wit, his back and legs strained and bruised, and the said plaintiff internally and permanently, and he then and there became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, thence hitherto, during all of which said time the plaintiff suffered great mental and physical pain and was prevented from attending to his necessary affairs and business by him to be attended to, and was obliged to incur and did incur,” etc

No demurrer to the sufficiency of the declaration was interposed. The questions as to its sufficiency are raised by objections to evidence. Reliance is placed by defendant upon the case of Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911), a case in which the court held that, although defendant had not demurred, the declaration did not state a cause of action. Of the declaration in that case, as to the averment of negligence, the court said:

“All that is averred is simply that defendant negligently struck a sleigh at a road crossing; the driver not being in fault.”

A careful reading of the declaration in the instant case shows a specific allegation of a breach of duty on the part of defendant, in that, with notice of the fact that plaintiff, in the exercise of due care, was making this crossing, and a duty rested upon it not to move its locomotive, then standing still, so as to collide with him, it negligently and carelessly, by its servants and agents, disregarded its duty and started its engine, and ran into plaintiff’s wagon. This declaration is not drawn with the redundancy of language familiar to the forms supplied by the old artists in pleading, which is gradually losing its charm to the profession and courts of the present day; but it contains in simple language a specific allegation of a breach of duty, whereby an injury was inflicted. This court has so held in a very similar case, where the declaration in its allegations did not so clearly indicate the specific duty neglected. In that case, the late Justice Hooker, speaking for the court, said:

“A series of objections to evidence, and a number of requests to charge, raise questions upon the sufficiency of the declaration, which is said not to be sufficiently specific in its description of negligence. Counsel seem to insist that the law requires that the declaration shall state at length and in detail the circumstances which led up to the accident, and the objection is made that the declaration does not show the specific act of negligence without which the collision would not have occurred. Among these objections were the following, viz.: Objection of evidence that the plaintiff was upon the track; the rate of speed of the car; the fact that the wagon bos fell upon the plaintiff, and that he subsequently spit blood; the fact that one track was higher than the other, and its general condition. All of these things were circumstances which throw light upon the question of defendant’s alleged negligence, viz., that the motorman carelessly ran the car against the plaintiff’s wagon, and its consequences. The only negligence alleged or submitted to the jury was the management of the car-, whereby it was permitted to run with great speed and force against the wagon. We discover no defect in the declaration that can be taken advantage of upon the trial, and think the evidence admissible.” Bush v. Railway Co., 113 Mich. 513-515 (71 N. W. 851).

Errors are assigned upon the admission of evidence, over objection, showing a changed mental condition of plaintiff after the accident, also showing loss of memory and irritable condition, on the ground that such evidence was not admissible under the declaration. It appears that among other requests to charge by defendant the court instructed the jury as follows:

“ There can be no recovery for loss of memory or injury to plaintiff’s mind, there being no allegation of any such damage, and the only damage for which the plaintiff could possibly recover in this suit would be physical injury; and, if you find from the evidence there was no physical injury sustained by the plaintiff, as testified by some of the witnesses, then I charge you the defendant is entitled to your verdict.”

Also:

“The plaintiff cannot recover for nightmare or disturbed mental state. Where a plaintiff has sustained physical injury, which physical injury also causes mental suffering, there may be a recovery; but in such cases the mental suffering must proceed directly and be caused by such physical injury.”

Ry giving these requests, the court adopted the view of the defendant, and withdrew from the consideration of the jury the objectionable evidence. There is nothing to indicate that the defendant was injured. In this action of the court there was no prejudicial error.

In addition to the contention that no negligence was alleged in the declaration, defendant claims that no negligence was proved. This question was raised by a motion, at the close of plaintiff’s case, to direct a verdict in defendant’s behalf, which was denied. This claim requires an examination of all of the evidence introduced tending to show defendant’s negligence. It does not appear to be disputed that the gates were raised by defendant’s gateman while the engine was at rest south of the crossing. There is no claim that the gateman acted negligently. His judgment was that the line was safe for crossing, and he raised his gates to allow plaintiff to pass. The gateman saw the engine start up and immediately undertook to close down the gates, but plaintiff was passing through, and he could not. He called to him twice, but cannot say he heard. He saw plaintiff, who was sitting on a board which extended from under the hay just behind the horses over the wagon tongue, look both ways and continue driving on. He watched both plaintiff and the engine, to see which would get across first, and saw that plaintiff was safe across, and thought his load’was safe, until he saw it was being shoved around, and then the car obscured further view. It is admitted that from where the engine stood when it started the crossing was in full unobstructed view. The two cars which they were bringing towards the crossing were a “ coal rack ” and a flat car, with a brakeman standing on a journal box on the last truck on the south side of the flat car, holding onto a hand iron in a position where he could not see the crossing or the plaintiff. The fireman, when the engine started, at once got down to put in a fire, and when he had finished they had struck plaintiff’s wagon. The engineer says he could see the entire crossing when he started, and it was clear, as far as he could see from his side, until he reached the switch (81 feet from the crossing), when he turned around to see, and looked back to see when the car cleared it, and didn’t look ahead again until he was right on to the load of hay. It is not for this court to weigh this evidence. Suffice it to say, there was evidence in the case tending to show negligence on the part of defendant. The court was not in error in submitting the question to the jury.

It is also urged that the record shows plaintiff was guilty of contributory negligence, and the court was in error in refusing to direct a verdict to that effect, as requested. The record contains evidence tending to show that plaintiff first saw this engine after he had passed the planing mill. The exact distance is not given. His team was going forward all the time; that he looked both ways and saw the engine standing still; that it did not start until he had passed the two main tracks; that he at once hastened to get across. Upon the trial defendant claimed that plaintiff saw the engine coming and determined to get across first. The same claim is made in this court. A special question to cover that theory was submitted to the jury, as follows:

“Q. Did the plaintiff, Miller, try to beat the engine across the crossing ? ”

The jury answered, “No.” With that fact found against it, based upon evidence which warranted such finding, it is evident that no error was committed in refusing to instruct as requested.

Errors are assigned relating to questions propounded to plaintiff’s physician. These objections arose after the physician had answered hypothetical questions, and had testified that the condition he found might have been caused by the injury. He was then asked by counsel for plaintiff whether, in his opinion, these symptoms, actions, and complaints were simulated, and testified that they were not; and further, that the cause of his condition (traumatic neurasthenia) was due to the injury. To the first of these questions, the objection was that the physician’s conclusion on that subject was not admissible, and that it was proper rebuttal. The substance of this testimony was that the conditions claimed were, in his opinion, genuine, and produced by the injury. No error was committed in receiving the evidence. Bush v. Railway Co., supra.

All of the errors assigned upon the refusal of the court to give certain requests (except one) are already disposed of by us in holding the declaration sufficient, and that the questions of defendant’s negligence and plaintiff’s contributory negligence were questions to be submitted to the jury. The remaining request referred to was given by the court, modified as follows:

“ If the plaintiff whipped up his horses and tried to beat the engine over the crossing in the manner as testified to by witnesses for the defendant (and you find he could have stopped at a point of safety after so starting), then I charge you that such conduct is negligence contributing to the collision, and the plaintiff cannot recover. In such event render a verdict for defendant.”

The modification is in parentheses. It must not be forgotten that there was a dispute of fact ’upon each material question in the case, and it cannot be stated that there was “no testimony in the case on which to base the implication contained in the modification.” The situation was that plaintiff had stopped at a five-track street crossing, two of which were main-line tracks. He had been invited to proceed by the lifting of the gates. He had listened while he waited, and looked as soon as he could, and saw no moving engine. While in a dangerous position on these tracks, he saw this engine start, and made an almost successful effort to escape from being run down. We must consider his situation as it was at the time. The modification suggested this and nothing more. The jury, by its special finding, negatived the proposition upon which the request was based, and eliminated it from the case. No error was committed by the court in his modification of this request.

A motion for a new trial was made and denied. The reasons necessary to be considered are that the verdict was excessive “ and wholly unwarranted.” The verdict was for $3,000. As to what the extent of the injuries of plaintiff were was in dispute. There was evidence tending to show that immediately after the collision he did not appear to be injured. Witnesses testified as to his activity until he started home. He made light of his injuries, and stated that he was not hurt much. There was also testimony tending to show that he had not been a strong, able man physically before, and that after the injury he appeared about the same. On the other hand, there was testimony of plaintiff, his wife, and the physicians and others tending to show that the results attending the injuries became apparent later, and were of a serious character. The jury, under a charge for the most part not objected to, found this verdict after deliberation. We cannot say that it is excessive, nor that it was against the weight of the evidence.

We agree with the court that the showing on the ground of newly discovered evidence was not sufficient to warrant granting a new trial.

The judgment of the circuit court is affirmed.

Ostrander, O. J., and Moore, Brooke, and Blair, JJ., concurred.


text:
    THOMPSON v. LOYAL PROTECTIVE ASSOCIATION.
    1. Insurance — Waiver of Defenses — Change of Occupation.
    On the statement of his occupation made by insured in his application for accident insurance, he was accepted and insured as a machinist by defendant. He died as the result of injuries sustained while employed in cleaning out a boiler, work which was not mentioned in the application. Defendant claimed that insured had changed his occupation and could not recover, under the conditions of the policy, the amount claimed. Before the trial, however, defendant, after making an investigation, tendered to the beneficiary a sum which it claimed was payable under the policy for death oaused by accident while decedent was engaged as a common laborer. A smaller sum was payable if death resulted from sickness while decedent was engaged as a common laborer. Held, that defendant waived its right to claim that the beneficiary was entitled to the diminished benefit accruing for death by illness of one engaged in common labor.
    2. Same — Cause of Death — Trial.
    Whether the cause of death of the insured was accident or sickness was, under disputed evidence, for the jury.
    3. Evidencie — Opinion—Conclusion.
    Plaintiff’s statement that decedent came home hurt, was, on defendant’s motion to strike out the testimony, allowed to stand, and plaintiff afterwards testified fully as to the condition of decedent and the appearance of injury upon his body. Held, that the ruling was not so prejudicial to defendant as to justify the reversal of plaintiff’s judgment.
    4. Insurance — Instructions to Jury — Burden of Proof.
    On the trial the court properly charged the jury that the burden of proof was on the plaintiff who must show, in order to recover, that decedent’s death was caused alone and independently of other causes by a bodily injury sustained by accidental means, leaving upon the body marks of contusions or wounds visible to the naked eye: that the jury must find that death resulted from an accident which left upon the body marks of contusions or wounds visible to the naked eye: suoh being the phraseology and conditions of the policy.

      5. Same — Words and Phrases.
    It was not error to instruct the jury that “the mark visible to the eye on the body need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury which may appear within a reasonable time after the injury is received, such, for instance, as discoloration of the part of the body affected.”
    6. Same — Wounds.
    Wounds were properly defined as “injuries of every description that affect either the hard or soft parts of the body, and it comprehends bruises, contusions, fractures, luxations,” etc., or any lesion of the body.
    7. Same — Evidence—Aeeidavit.
    Where a policy of insurance required satisfactory proofs of death, and, after the submission of plaintiff’s proofs of death, further proofs were requested by defendant, the court, which held the proofs to be sufficient, did not err in receiving in evidence an affidavit of the physician of decedent obtained by plaintiff and submitted to defendant.
    8. Same — Tender—Payment into Court.
    While the trial court might have entered upon the judgment rendered a credit to defendant of the amount tendered and paid by it into court, the judgment will not be reversed for the omission so to do, but the error will be rectified by an order of this court crediting the amount so tendered in part satisfaction of the judgment.
    Error to Bay; Collins, J.
    Submitted June 20, 1911.
    (Docket No. 130.)
    Decided September 29, 1911.
    Assumpsit by Mary Thompson against the Loyal Protective Association upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lee E. Joslyn, for appellant.

      E. P. McCormick (George P. Cobb', of counsel), for appellee.
   McAlvay, J.

Plaintiff, as beneficiary named in the

certificate issued by defendant to her husband, Marcus Thompson, during his lifetime, recovered a judgment for $520.84 in the circuit court for Bay county.

This certificate was issued September 9, 1904, upon the usual blank application for membership furnished by defendant, wherein it was agreed, among other things, that it was “ subject to all conditions and agreements contained in the policy;” that for any injury received in any occupation or exposure, while temporarily or otherwise engaged therein, which is rated by the association as more hazardous than the class in which he was accepted, he should receive only such benefit as is allowed, in the manual used by the association at the date of the application, for injuries received in such more hazardous occupation or exposure; also that there could be no claim made for indemnity “for any disability where there shall be no external or visible sign or symptom of disease or bodily injury.”

Marcus Thompson made his application as a “ machinist,” and as such was accepted in class C, and his beneficiary was, under the policy, entitled to receive, in case of his death during membership, if such death was the result of sickness, the sum of $100; if caused “as the result, alone and independently of all other causes, of bodily injuries as defined,” the sum of $500. Bodily injury was defined, “ injury includes only the result of external, violent and accidental means, leaving on the body marks of contusion or wounds visible to the naked eye.” The policy also contained the same stipulation and condition, relative to injury received in any occupation or exposure while temporarily or otherwise engaged therein, as was contained in his application.

Marcus Thompson died August 9, 1909, while his certificate or policy was in full force, and his widow, the beneficiary, has brought suit for $500, the death benefit agreed to be paid in case of death by external, violent and accidental means.

At the time of the claimed injury, he had been employed as “boiler house foreman” at the plant of the Carrolton sugar factory since about July 1, 1909, under an agreement for the entire season or “campaign,” as the beet sugar season is called, at 20 cents per hour, the going wages of a machinist in that plant while engaged in fitting up for the active campaign, and after it opened at $85 per month. The chief engineer of the sugar factory employed Mr. Thompson as boiler house foreman. He knew that he was a machinist. He testified that the term boiler house foreman ” is a term in common use in sugar factories for that kind of a man. Such employé had entire charge of the boiler house and such men as were necessary. During the. campaign, there would be five men under him, and, while fitting up, any men he might require. His duties were to put the boilers in shape; to see that the boilers were cleaned, and the flues, stay bars, and braces in the boilers were all right; to see that the pumps and the valves were in working order; and take the valves out, if necessary, and grind them and reseat them to fit, so that the boiler house would stand the annual inspection by the insurance company. The position required a mechanic, a man skilled in tools, and with a knowledge of machinery. In this factory the boiler house was 50 by 150 feet, and contained 11 boilers connected with steam and water pipes and two feed pumps. At the time of the claimed injury, Mr. Thompson had two men (steam fitters) working under his directions. The testimony relative to the nature of his employment, his authority, duties, and responsibilities is not contradicted.

On August 4, 1909, during such employment, while he was inside one of these boilers, cleaning it, and while the two steam fitters were working near him on the same or another boiler, at about quitting time, Mr. Thompson called out to them that he had hurt himself, and wanted them to help him out. They succeeded in getting him out with difficulty. He put his hand on his hip and started to walk away, limping considerably. He washed up and went home. When he arrived at home, he immediately went to bed, without eating. His wife went to a drug store, procured a bottle of liniment, and applied it. On his right side, between the hip and the back, his wife testifies there was a red, inflamed mark, about half the size of her hand. The family physician was called, and came the next day. He found Mr. Thompson in bed, suffering much pain. On examination he found a discoloration of the skin, swelling, and redness over the right kidney and hip. He treated him externally, and gave him medicine, and visited him daily until he died, August 9th, in great agony. The doctor testified that this injury caused his death; that it was the cause of the acute nephritis which followed; that the death was wholly due to the external injury. He had formerly treated him for nephritis, from which he had entirely recovered. No other expert testimony was offered.

Defendant upon the trial contended that the death of plaintiff’s decedent was caused by sickness, and not accident, and that at the time of his death he was engaged in employment not insurable under the classifications and occupations provided in the manual and under the policy.

Of the errors assigned, such as are material under this record will be considered. Upon the second contention above stated, the trial court held that the record showed that defendant had waived the defense that decedent, at the time of his claimed injury, was engaged in an occupation of different classification from that in which he was insured. The record sustains such determination. Defendant made a tender to plaintiff, with its plea and notices, and has kept such tender good by paying into court the sum of $100, and $16.30 costs. Under the provisions of the policy and the classifications of the manual then in use, there was no employment mentioned and classified which provided for payment of benefit for death as a result of sickness the sum of $100, which would not be payable under the conditions of the policy or certificate issued, and recoverable under its provisions, because such sum was payable only to those in that classification. Under the classification'in which defendant now, and in one part of the notice under the plea, claims the work decedent was engaged in at the time of the accident would place him, he would, in case of death by accident, be em titled to only $100, and if caused by sickness to $20. The tender is inconsistent with the claim that death resulted from sickness while employed as a common laborer. This tender was made by defendant after full knowledge of all the facts disclosed by the proofs of death furnished by plaintiff August 17, and September 2, 1909, showing exactly what decedent was doing at the time of the claimed injury, and after having sent a representative, on October 4, 1909, to make a further investigation “relative to any accident received by Mr. Thompson, to make inquiries relative to the matter, we caused an investigation to be made as to the occupation in which Mr. Thompson was engaged at the time of his death.” The quotation is taken from the testimony of defendant’s secretary. He further testifies that this investigation was made “because of the answer to question 10, in Exhibit 3 (plaintiff’s proof of death), stating that the deceased was working in a steam boiler, getting it ready for the fall campaign,” thereby admitting notice sufficient to require further inquiry. There can be no question but that this conduct should be held to amount to a waiver.

Certain requests to charge were refused by the court, and errors are assigned upon such refusals. As these requests were all formulated upon the theory that the employment of decedent at the time he met his death was in issue, they need not be discussed, for the reason that, under the ruling of the trial court which we have just considered, that question was not in the case.

The errors assigned upon matters of evidence, relative to the employment of decedent as boiler house foreman and the duties, qualifications, etc., of such employment, are also eliminated by the same ruling, as are also errors assigned upon the exclusion of interrogations relative to classifications and occupations and benefits thereunder.

A motion for a directed verdict, which was denied, need not be considered, in so far as the reasons urged refer to change of occupation. The other reasons were that the proofs of loss were not sufficiently specific, and there was no proof that death was caused “ as the result, alone and independently of all other causes, of an injury resulting from external violence and accidental means, leaving upon the body marks of contusion or wounds visible to the naked eye.” The trial court correctly held that the proofs of loss were sufficient, as will appear later in this opinion. He submitted the disputed question of fact as to the cause of the death of plaintiff’s decedent to the jury. This was warranted by the evidence in the case.

"While plaintiff was testifying as to where her husband had worked up to and including the day of his claimed injury, she was asked by her counsel:

“Q. Then what happened, if you know ?
“A. He came home hurt.
“Defendant’s Attorney: Wait a moment. I object to the statement that he came home hurt. That is a conclusion as to whether he was hurt or not; as to what his condition was, I have no objection.
The Court: The answer may stand. (Defendant excepted.) That night was Odd Fellows’ night and he said to me—
“Q. You can’t state what he said. What did he do that evening ?”

Error is assigned because the answer was not stricken out. It would have been proper to have stricken the objectionable answer out. The context, however, shows that this was not called out by her counsel, who at once stopped her, with a caution as to her answers. She later testified at length as to his condition and the visible evidence of injury on his body. Allowing the answer to stand was not prejudicial error.

Errors are assigned upon certain portions of the charge, which require attention. During the trial, when the questions of law herein referred to were under consideration and the trial judge announced his conclusions, he said:

“ That leaves one question to go to the jury, and that is the question as to whether or not the death of Mr. Thompson resulted from sickness or from accident.”

The charges given to the jury, which are claimed to be erroneous, are as follows:

“(1) Now the burden of proof in this case is upon the plaintiff, and the plaintiff must show, before the plaintiff can recover, by the preponderance of proof — that is, by the greater weight of the testimony — that the plaintiff’s death was caused, alone and independently of other causes, by a bodily injury, which bodily injury must have been by accidental means, leaving upon the body marks of contusion, or wounds, visible to the naked eye. That states the ultimate facts which the plaintiff must prove by the greater weight of testimony, before the plaintiff can recover.
“(2) You will observe, gentlemen of the jury, that this involves proofs of two points: First, that the death was the result of accidental injuries, and, second, that these accidental injuries left upon the body marks of contusion, or wounds, visible to the eye. Both of these points are to be proved, before the plaintiff can recover, and you will have that thought in mind in respect to all I say hereafter in giving the charge.
"(3) The visible marks on the body required by the policy need not become visible immediately upon the happening of the accident, in order to entitle plaintiff to recover; but it is sufficient if they appear in some reasonable time thereafter. The mark visible to the eye on the body required by the policy need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury which may appear within a reasonable time after the injury is received, such, for instance, as discoloration of the part of the body affected.
“(4) I think perhaps I should explain that and make it a little more clear. The defendant’s claim was that the cause of death was illness, and has made a tender into court which has been put in evidence, and if the death resulted from illness then the plaintiff is entitled to the money, and will get it without further ceremony, and that leaves then the issue for you to try, which has been submitted to you, the issue of whether or not death was or was not caused by the accident.”

We find nothing objectionable in the first and second paragraphs quoted, and as defendant claims that they refer to the waiver we have already passed upon they do not require discussion.

In considering the objections to the third paragraph, urged to be erroneous in connection with the first and second, we find that the court charged correctly upon the burden of proof, and followed by using the exact words of the policy, with a statement of what was required to be proven to warrant a recovery by plaintiff.

The part of the third portion claimed to be erroneous is—

“ The mark visible to the eye on the body required by the policy need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury, which may appear within a reasonable time after the injury is received, such, for instance, as discoloration of the part of the body affected.”

This was immediately followed by the following sentence, which must be read in connection with it:

“In legal medicine the word ‘wounds’ means injuries of every description that affect either the hard or soft parts of the body, and it comprehends bruises, contusions, fractures, luxations, etc. In law the word means any lesion of the body.”

The policy sued upon reads:

“It is understood and agreed * * * that injury includes only the result of external violent and accidental means leaving on the body marks of contusions or wounds visible to the naked eye.”

The policy distinguishes between contusions and wounds, and includes both. The definition of “ wounds ” given by the court was a correct one. It is authorized by 4 Cooley’s Briefs on the Law of Insurance, p. 3185; Black’s Law Dictionary, p. 1245; Bouvier’s Law Dictionary, p. 1247; State v. Owen, 5 N. C. 452 (4 Am. Dec. 571). The jury has been charged explicitly, in substance, that it must appear that the death was caused, alone and independent of other causes, by a bodily injury sustained through external violence and accidental means, leaving upon the body marks of contusion, or wounds, visible to the naked eye. The third paragraph excepted to explains and defines to the jury the meaning of the term “visible mark” and the word “ wounds,” as used in the insurance contract. There was no error committed in such instruction.

The defendant claims error was committed in the fourth paragraph excepted to, in that it did not correctly state its claim. The record shows that defendant did make such a claim, both before and during the trial, and that defendant did not, as is claimed in its brief, make a different claim as soon as it learned the facts. No error was committed.

Error is assigned because the court permitted the affidavit of the attending physician, which had been furnished on request for further proofs of death, to be received in evidence when offered by plaintiff. The contention on the part of defendant was that the proofs of loss were insufficient, and this affidavit was offered to meet that claim. It was received, but not read to the jury. The policy required satisfactory proofs of death. Further proof was requested, and this affidavit was furnished. No further claim in that regard was made until after suit brought. Defendant offered the proofs of loss, except this affidavit, on its own part. It was held by the court that the proofs were sufficient. It was not error on the part of the court to receive and consider this affidavit.

The remaining error assigned relates to the instruction of the court as to the verdict which should be found in case plaintiff recovered. The court charged upon this matter:

“ Now your verdict in this case will be either $520.84, or it will be no cause of action.”

And further:

“ If you should find that it was the result of sickness, and not as the result of an accident, then your verdict will be no cause of action; that is to say, the plaintiff’s recovery, if any, is #520.84.”

Defendant had made a tender into court of #100 and costs, claiming that Mr. Thompson’s death was caused by sickness, and not accidental bodily injury. Under the evidence, the court was required to submit this question to the jury. As we understand it, defendant’s contention is that the court should have in some way, not pointed out in its brief, credited or allowed it the benefit of the tender. Whether something might have been said in the charge, or some action might have been taken by the court afterward, it is certain that plaintiff could not have accepted the tender without abandoning her case. The payment into court was voluntary under the statute. If the tender had been found sufficient, the plaintiff could not recover costs and interest from the time of tender, but would have been liable to defendant for such costs. Sections 10405, 10406, 3 Comp. Laws; Snyder v. Quarton, 47 Mich. 211 (10 N. W. 204). The contrary occurred. The jury found the full amount claimed for plaintiff. Judgment was entered upon the verdict as a matter of course. Counsel for defendant sat by and did not call the attention of the court to the matter. It was in the power of the court, at the time, to have credited the amount tendered upon the judgment, and we presume he would have done so, if asked. To omit the matter from his charge was not error, nor will this court reverse the case because the court did not see that due credit was given upon the judgment. It is a matter within the power of this court to rectify without injury or prejudice to defendant. Upon turning over to plaintiff, or her attorney, the amount of #116.30 by the clerk of the circuit court and receiving receipt therefor, he will enter as a part payment and satisfaction upon such judgment the sum of $100, to apply on damages, and $16.30, to apply on costs of suit.

The judgment of the circuit court is affirmed.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    SHEFFLER v. SHERMAN.
    1. Chattel Mortgages — Bills and Notes — Parol Evidence.
    An absolute chattel mortgage accompanied by a note for a specified amount may not be contradicted or varied by parol evidence to show that the undertaking was given as security for a guaranty that a team traded by the mortgagor was worth a sum stated by him.
    3. Same.
    Under the olause contained in such mortgage authorizing the mortgagee to take possession of the property whenever she might deem herself insecure, defendant did not exceed her rights in taking possession of the property.
    Error to Missaukee; Lamb, J.
    Submitted June 20, 1911.
    ( Docket No. 114.)
    Decided September 29, 1911.
    Replevin by Thurlow M. Sheffler against Minnie Sherman for certain cattle. Judgment for plaintiff. Defendant brings error.
    Reversed.
    O. S. Gross and John Nix, for appellant.

      Gaffney & Miltner, for appellee.
   Brooke, J.

Plaintiff brought replevin to secure possession of two cows and a bull. April 13, 1908, defendant was the owner of two other cows and the bull in question. On that day the three head of cattle passed into the possession of plaintiff, and he gave to defendant a promissory note for $68, accompanied by a chattel mortgage covering the cattle and a horse. The note and mortgage were absolute upon their face and ran for one year. In September, 1908, plaintiff butchered the two cows, and with the proceeds of their sale secured two others. On December 3, 1908, he executed a new note and mortgage, also absolute in terms, upon the two new cows and the bull. This note and the mortgage collateral thereto fell due on April 10, 1909. Defendant, deeming herself insecure, took possession of the cattle on March 25, 1909, and proceeded to foreclose her mortgage.

While the cattle were in her possession, plaintiff sued out a writ of replevin, upon which the cattle were taken and delivered to him. Upon the trial the plaintiff was permitted, over the objection of defendant, to introduce evidence tending to show that at about the time of the execution of the first note and mortgage by him he had traded a team of horses to defendant’s husband for another horse and the three head of cattle, that in the trade he, plaintiff, had represented the value of one horse to be $125 and the other to be $40; that defendant’s husband was not willing to accept his valuation of the team without security, and that he had executed the original note and mortgage simply as a guaranty that the team was worth the sum represented. He was likewise permitted to show that defendant’s husband had sold one of the team for $40, and to offer evidence that the other horse was worth $125. There is no testimony in the case tending to show that defendant was the owner of the horse traded to plaintiff, or became the owner of the team. The defendant testified that she authorized her husband to sell her cattle for $68, and to take a note and mortgage therefor, but that she never authorized him to trade them in on the team, and had no interest in any of the horses. A careful reading of the entire record convinces us that the verdict of the jury, which sustained the contention of plaintiff as to the consideration for the note and mortgage, was against the weight of the evidence.

Our conclusion upon this point is, however, unimportant, as we are of opinion that the learnedfjeircuit judge erred in admitting testimony on the part of the plaintiff tending to show a verbal contemporaneous agreement which would “reduce the note from an absolute and specific undertaking, according to its terms and legal import, to a defeasible engagement.” This, we have held, may not be done. Hyde v. Tenwinkle, 26 Mich. 93. See, also, Cook v. Brown, 62 Mich. 473 (29 N. W. 46, 4 Am. St. Rep. 870); Aultman & Taylor Co. v. Gorham, 87 Mich. 233 (49 N. W. 486); Smith v. Kemp, 92 Mich. 357 (52 N. W. 639); Dunham v. Provision Co., 100 Mich. 75 (58 N. W. 627); Hutchinson v. Hutchinson, 102 Mich. 635 (61 N. W. 60); Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3); Holmes v. Holmes, 129 Mich. 412 (89 N. W. 47, 95 Am. St. Rep. 444); Central Sav. Bank v. O’Connor, 132 Mich. 578 (94 N. W. 11, 102 Am. St. Rep. 433); Id., 139 Mich. 82 (102 N. W. 280).

Excluding this testimony, the record shows that at the time defendant took possession of the cattle she held, plaintiff's promissory note upon which nothing had been, paid, secured collaterally by a mortgage upon the stock. The mortgage empowered her to take possession of the chattels whenever she deemed herself insecure, and in exercising this power she acted clearly within her legal rights. Under the testimony properly admissible in this> record, defendant was entitled to a directed verdict.

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, and Stone, JJ., concurred with. Brooke, J. Blair, J., concurred in the result.


text:
    STEVENSON v. DETROIT UNITED RAILWAY.
    Negligence — Street Railways — Highways and Streets — Contributory Negligence — Automobiles.
    It was such negligence on the part of a driver of an automobile, as to preclude recovery in an action for injuries, where plaintiff’s testimony showed that his wife, who was driving the automobile, stopped at the sidewalk line before crossing defendant’s street car track, observed that the street car was about 250 feet distant, and, turning the corner, drove her maohine upon the track in front of the moving car without again looking, and was struck while she was traveling along the car track after going about 80 feet from the place where she stopped, where it appeared also that she could have stopped her automobile almost instantly or could have driven along beside the car track.
    Error to Wayne; Rohnert, J".
    Submitted June 20, 1911.
    (Docket No. 124.)
    Decided September 29, 1911.
    Case by Richard Stevenson against the Detroit United Railway for injuries to plaintiff’s wife and automobile. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      May & Dingeman, for appellant.

      Corliss, Leete & Joslyn (Frederic T. Harward, of counsel), for appellee.
   Brooke, J.

Plaintiff brings his action against defendant to recover damages resulting from the alleged negligent operation of one of its cars. A verdict having been directed in favor of defendant, plaintiff has removed the case to this court for review upon writ of error.

Helen avenue runs north and south, and Kercheval avenue east and west, in the city of Detroit. Upon Kercheval avenue defendant operates a double-track street railway, the northerly track carrying west-bound, cars and the southerly track those going in an easterly direction. The accident occurred near the intersection of these two streets. Plaintiff had lived on Helen avenue at the corner of Kercheval for six years prior to the date of the accident. On that day plaintiff’s wife was driving south on Helen avenue in an electric coupé, in company with two children. She testified that, when she reached the sidewalk line on the north side of Kercheval avenue, she stopped her car and looked both ways, that she saw a car coming from the west, a little more than a block, or about 270 feet, away. Upon cross-examination, she described her conduct as follows:

“Q. And when you saw this car you had no fear ?
“A. No, sir; I had no fear whatever.
“Q. You saw the car coming, moving then — was the car moving ?
“A. Yes; it was.
“Q. Was not standing still?
“A. No, sir; it was moving.
“Q. If you had no fear, you did not look again until you were hit ?
“A. I never looked again. I was sure I had plenty of time.
“Q. You went about how many feet, how far had you gone before you were hit ?
“A. I had turned the corner.
"Q. And you had gone down onto the north-bound track ?
“A. Yes.
You knew that the cars went east on the southbound track ?
“A. Yes.
“Q. You had seen them coming? One had gone by just before ?
“A. Yes.
“Q. You went right on the track ?
“A. Yes.
"Q. You did not look again ?
"A. No, sir; I did not look again.
“Q. How far had you gone from where Helen runs into Kercheval ? How far had your car gone from the intersection of Helen and Kercheval before the car hit you ? You had gone some distance ?
“A. I was making the turn on Kercheval.
“ Q• You had gone down here, and had gone some distance before you were hit ?
“A. Yes; but I was not on that side. I was crossing the track.
“Q. Yes; you were on the south track?
“A. Yes; just about on that track, on that track.
“Q. You had gone how many feet from Helen avenue when you were crossing that track ? Was it half a block ?
“A. Not that far.
“Q. 100 feet?
“A. I can’t say. I was about to the middle of that house on the northeast corner.
“Q. You came down here and stopped and looked, and you did not see anything. Then you turned around and were going east. Did you cross diagonally ?
“A. I got across, I think. I made a longer turn than that.
“Q. What I am getting at is, how far had you — how far do you think you ran your car after you looked, before you were hit — 200 or 300 feet ?
“A. Yes; about that.
“Q. You made a turn across the track ?
“A. Yes.
“Q. You ran 200 or 300 feet, and then you were hit?
“A. Yes.
"Q. From the point where you looked ?
“A. Yes.
“Q. You went 200 or 300 feet?
“A. I think so.
“Q. You heard the bell ring ?
“A. Yes; I heard the bell ring, and then the crash. When I heard the bell ring, I did not have any fear.
“Q. You did not look around then ?
“A. No; I did not look. I had no fear when I heard the bell.
“Q. You did not look around there then ?
“A. No, sir.
“Q. You thought you were all right?
“A. Yes; that is where I lived, that corner. I had been around there almost every day since I had the car.”

After stating that she was running her car at a speed of eight miles per hour, she testified further:

“Q. How quick could you stop this vehicle when it was going at that rate, how quick could you stop your machine when it was going at that rate ?
“A. I think I could stop almost instantly. If I had known the car was coming at the rate that it was coming, I would not have crossed.
“ Q. If you had known the car was directly behind you, you could have stopped your car instantly, before you got on the track ?
“A. I think so.”

Henry Connor, the only other witness to the accident sworn by the plaintiff, testified that he did not see the coupé stop at the corner, that it made a long turn around the corner, and entered the south or east-bound track about 25 feet in front of the approaching car.

Mrs. Stevenson was evidently in error in testifying that after stopping she drove 200 or 300 feet before she was hit by the car. Actual measurements show that Kercheval avenue is 80 feet wide, and that the distance from the center of Helen avenue to the point on Kercheval where the collision occurred is 66-J- feet. If she had driven her car at right angles, therefore, she would have traveled one-half of 80 feet plus 66£ feet, or about a total of 106£ feet, after she looked until she was struck. Deducting from this distance 25 feet, the distance she was in front of the car when she entered the east-bound track, we find that, after stopping, looking, and seeing the approaching car, she drove her machine approximately 81£ feet towards, and finally upon, the track carrying the approaching car. She drove this entire distance at a slow speed in a vehicle capable of being instantly stopped, and entered upon the track in front of the approaching car without again assuring herself that it was safe to do so. She testified that there were no cars approaching on the north or west-bound track, and that there was nothing to prevent her from running along in the north track had she known the car was near. She did know a car was approaching, and a single glance just before she entered upon the south track would have shown her that it was within 25 feet of her, and running at full speed. She could have then stopped her car or proceeded east on the north track until defendant’s car had passed.

Under the facts in this case disclosed by plaintiff’s testimony, we must hold that the driver of the automobile was guilty of such negligence as to preclude recovery. Gardner v. Railroad Co., 97 Mich. 240 (56 N. W. 603); McGee v. Railway, 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Hine v. Railway, 115 Mich. 204 (73 N. W. 116); Doherty v. Railway Co., 118 Mich. 211 (76 N. W. 377, 80 N. W. 36); McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631); Bennett v. Railway Co., 123 Mich. 694 (82 N. W. 518); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Manos v. Railway (Mich.), 130 N. W. 664.

The judgment is affirmed.

Ostrander, O. J., and Moore, MoAlvay, and Blair, JJ., concurred.

       Not officially reported. Rehearing pending.


text:
    VAN DEUSEN v. BROWN.
    Specific Performance — Fraud—Contracts—Vendor and Purchaser — Brokers.
    Specific performance was properly denied upon a record showing that complainant, a real estate broker, obtained from the owner of a farm an option in writing to sell the farm on terms stated therein, that complainant read the instrument to him omitting the clause relating to the consideration and a clause requiring a sixty-day notice in writing of the grant- or’s intention to terminate his option, and that the said owner and grantor was old, feeble and in ill health and relied upon complainant to read the paper to him, and subsequently attempted to revoke the option according to the provisions as read.
    Appeal from Clare; Dodds, J.
    Submitted June 21, 1911.
    (Docket No. 98).
    Decided September 29, 1911.
    Bill by James M. Van Deusen against John R. Brown for specific performance. From a decree for defendant, complainant appeals.
    Affirmed.

      George J. Cummins, for complainant.

      Quinn & Quinn, for defendant.
   Moore, J.

This is a bill filed for the specific performance of a land contract. The testimony was taken in open court. The learned trial judge filed a written opinion which so clearly states the situation that we quote it here:

“On the 20th day of April, 1909, William R. Crandell was the owner of the northeast quarter of section 36, Greenwood township, in said (Clare) county, and on said day the complainant appeared at his residence on said land and procured him to sign a paper which has been called an ‘option,’ and which provides, in substance, that ‘in and for the consideration of $1, the receipt of which is hereby acknowledged,’ Crandell appointed complainant sole agent for the sale of said land, for the price of $1,150, to be paid $300 cash on delivery of a contract which Crandell agrees to give complainant, or any party designated by him, and $150 each year after date of purchase, until all shall be paid. The possession is to be given at the time of first payment, and Crandell is to give a warranty deed and abstract showing perfect title. Crandell is prohibited from selling or incumbering without written consent of complainant, who is authorized to contract for a sale of said land and any sum in excess of the option price shall belong to him as compensation for sale. At any time after 1st day of December, 1909, this contract may be terminated upon 60 days’ written notice by Crandell to complainant.
“At the time this option was given, Crandell was in poor health, and it is apparent from his appearance upon the stand that he is still somewhat feeble. His signature shows that he can barely write his name. When he signed the option, complainant assumed to read it to him, but admits that he left out entirely the consideration, and that no consideration was in fact paid. It is also shown by Crandell and his niece, Mrs. Johnson, that the clause providing for 60 days’ notice to terminate the option was also omitted when it was read over by complainant to Crandell. At the time of the signing, it was also explained by Crandell to complainant that the option could be terminated and withdrawn at anytime Crandell should see fit.
“Upon June 12, 1909, complainant again went to said premises and procured Crandell to state in writing, upon the same sheet of paper and under said option, that, ‘ If the place is sold for cash, I will take $800 cash on delivery.’ In the latter part of June Crandell went to Van Deusen for the purpose of withdrawing the option, and at that time such talk was had that the property was still in complainant’s hands for sale, but the testimony shows plainly that afterwards, and in August, Crandell entirely withdrew the option. It was not until this time that Crandell knew that any notice to terminate the same was provided in the paper itself. On or about the 8th day of November, Crandell deeded to defendant, and on the 20th of the same month complainant tendered defendant #800, and on his refusal to accept the same filed a bill of complaint in this case.
“Defendant knew that complainant had the land for sale, but did not know of the writing. He had himself, earlier in the year, obtained a parol option for the sale of the same land. I am of opinion, however, that he had sufficient notice to put him upon inquiry, and if complainant had any rights he would be bound.
“ I am satisfied that complainant has no equities. Even if the bill would lie against the defendant under the circumstances complainant sets up in his bill, the testimony shows plainly that there was a withdrawal of the option, and I am of opinion, also, that the sale to defendant would of itself be a withdrawal; but I am also of the opinion that the omission of the consideration clause and the clause for a notice when complainant read the option to Crandell, knowing that Crandell depended upon the reading for an understanding thereof, renders the option itself invalid. Let a decree be entered dismissing the bill, with costs in favor of the defendant.”

A decree was entered in accordance with the opinion. The case is brought here by appeal.

The solicitor for complainant contends—

“That there are involved in this proceeding just two questions:
“First. Did Mr. Crandell withdraw the option given to complainant ?
“Second. If Mr. Crandell did not withdraw such option, did Brown, the defendant, have knowledge of the option which complainant claimed to have, or did he have sufficient knowledge to put him upon inquiry ? ”

The solicitors for defendant contend:

“ Three questions are presented:
“ First. Did appellant have a valid option contract for the purchase or sale of the land in question ?
“ Second. If the option contract was valid, was it revoked or withdrawn at the time defendant purchased the land ?
“Third. If the option contract was valid and not revoked, did defendant have knowledge of its existence, or sufficient knowledge to put him on inquiry ? ”

We think it unnecessary to discuss the several contentions of the solicitors, for we are satisfied that Mr. Crandell relied upon complainant to truly read to him the paper he was induced to sign, and that it was not so read, but important parts thereof were purposely omitted. We are also satisfied that Mr. Candell undertook to revoke the option, as he understood he had the right to do from the reading of the paper to him, and did in fact revoke it.

The decree is affirmed.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Bkooke, J.

text:
    PEOPLE v. LAPIDUS.
    1. Criminal Law — Evidence—Confessions—Corpus Delicti.
    The reception in evidence of an alleged confession made by respondent while in jail was not error, although the testimony tending to show the corpus delicti was unsatisfactory.
    2. Same — Similar Offenses.
    As proof of prior offenses or arrests cannot be received to establish the offense charged, it was error to permit a witness to testify that respondent had admitted making a business of theft.
    Exceptions before sentence from Ottawa; Padgham, J.
    Submitted June 23, 1911.
    (Docket No. 118.)
    Decided September 29, 1911.
    Bennie Lapidus was convicted of larceny.
    Reversed.

      Diekema & Kollen and James H. Thompson, for respondent.

      Louis H. Osterhous, Prosecuting Attorney, for the people.
   Bkooke, J.

Respondent, who was convicted of larceny in a store in the daytime, brings his case to this court for review upon exceptions before sentence.

It appears from the record that respondent entered the clothing store of the Lokker-Rutgers Company, in the city of Holland, at about the noon hour. The establishment seems to be a large one; some eight clerks being employed. Respondent went up to a counter behind which stood a clerk, and announced a desire to purchase a pair of pants of a particular size and color. The clerk selected a pair, neither of the size nor color required, and displayed them to respondent, who said it was too dark where he was, and walked toward the front of the store for the ostensible purpose of examining the pants. Here, the clerk testifies, respondent stood facing toward the north, where it was darker, rather than toward the south, where it was lighter, and in close proximity to another counter, behind which were shelves containing clothing. During his alleged examination, respondent stood about feet from one of these shelves. In a few moments he returned to the clerk, who was waiting, and announced that the pants did not suit him. Respondent wore a long raincoat at the time, and upon his return to the counter the clerk, who was serving him, became suspicious that he had stolen some merchandise and concealed it beneath his coat. The clerk then came from behind the counter and demanded to see what respondent had beneath his coat, and himself opened the top button.

The clerk testified further:

“ Just as I touched my hands here, he asked me what I meant by opening his coat, or wanted. I told him I wanted to see what he had under his coat. He asked me what business I had with that. I told him that was my business and not his. I told him then I wanted that coat opened; then he started to open the coat.
“Q. Just show how it was done.
“A. If a person’s coat is buttoned, it is buttoned this way. In opening a coat, you merely open it in this way. [Illustrating.] Instead of that, he opened — this top button was open; I had opened that, and at the same time when he had his coat opened, he being short, the long cravenette came nearly to the floor — standing kind of faced to the counter. I opened his coat and looked in here; I didn’t see anything there, and walked back of the counter. Then it seemed he was very mad. He said I had insulted him for thinking he had come there to steal something of us. He asked me if I thought he stole anything. I said I didn’t know. I said if I made a mistake I asked to be pardoned, but I said, in my opinion, I didn’t think I had made any mistake at all. Then, after grumbling a while —not grumbling, but talking as though he felt very much offended — he left the store.
“Q. Did he pick up the pants off the floor ?
“A. Yes; I forgot that. While he was telling me he felt so very much offended, he said, I suppose you think I stole this pair of pants also,’ and he picked up two pairs of pants from the floor that were doubled in with each other and laid them on the counter.”

On cross-examination this witness testified:

“Q. Did you see him put any pants under his clothes ?
“A. No, sir.
“Q. Did you see any pants under his clothes ?
“A. No, sir.
“Q. You didn’t see him with any pants whatever, except those you gave him, did you ?
“A. No, sir.”

Another clerk testified, in part, as follows:

“ I was about 25 feet further back than where this gentleman was standing. I saw the pants drop on the floor — two pairs of pants. Just as I walked up past him, he picked them up and laid them on the counter, and I heard him say to Mr. Beukes, ‘ Here is a couple pair of pants lying on the floor. I suppose you thought I was trying to steal them.’
“Q. Were those pants on the counter ?
“A. I couldn’t tell whether they were or not.
“Q. You didn’t see them there ?
“A. No, sir.
“Q. On what foot did they fall ?
“A. On his left foot.
"Q. What did he do with them ?
“A. Was trying to kick them off from his foot.”

On cross-examination this witness testified:

“That he testified in the court below that the first he saw of the pants was when he saw him kind of kick them away; that now he swears he saw them drop.”

The testimony of these two witnesses constitutes practically all the direct evidence of respondent’s guilt. The people then offered the testimony of the sheriff, deputy sheriff, and others as to certain admissions or confessions alleged to have been made by respondent while in custody. This testimony was received over the objection of respondent’s counsel, who urged that until the corpus delicti had been proved no evidence of alleged confessions was admissible.

There is abundant authority to the effect that the corpus delicti cannot be proved by the naked extrajudicial confession of the accused, but we are not prepared to say that the direct evidence, slight and unsatisfactory as it was, constituted no evidence of respondent’s guilt. Where there is any evidence of the corpus delicti dehors the confessions, the confessions themselves become admissible. People v. Hess, 85 Mich. 128 (48 N. W. 181); People v. Ranney, 153 Mich. 293 (116 N. W. 999, 19 L. R. A. [N. S.] 443).

During the examination of John Sanstrom, one of the people’s witnesses, as to the alleged confessions made by respondent, he said that he had had a free and voluntary conversation with respondent without duress or promise of reward.

“Q. What was it ?
“Mr. Lillie: The same objection as to the others.
“The Court: He may answer.
“Mr. Lillie: An exception.
“A. He told me he took them pants with the intention of stealing them, and then when he saw that he was caught he let them drop.
“Q. With reference to this being the first time that he was caught ?
“Mr. Lillie: X object to that as being incompetent.
"The Court: Let him state if he said anything about it.
“Mr. Lillie: An exception.
“A. He told me that he made a business of that.
“Mr. Lillie: I ask to have that stricken out.
“The Court: Let it stand.
“Mr. Lillie: An exception.”

On cross-examination the witness testified that he (the witness) said nothing to respondent at all, and that all respondent said to him was that he took the pants with the intention of stealing them, and when he saw he was caught he let them drop.

We think that the testimony of this witness, as it appears in the record, is highly incredible. Aside from that, the portion of it relating to the commission of similar offenses at other times was clearly incompetent. Proof of another offense or of prior arrests is not admissible to convince a jury that it is probable that the offense charged has been committed. There are exceptions to this rule, but the case here considered is not one of such. People v. Wakely, 62 Mich. 297 (28 N. W. 871); People v. Jacks, 76 Mich. 218 (42 N. W. 1134); People v. Lonsdale, 122 Mich. 388 (81 N. W. 277); People v. Ascher, 126 Mich. 637 (86 N. W. 140).

The respondent did not take the stand nor offer evidence of his good character. Several affidavits are printed in the brief of respondent’s counsel, and an affidavit of respondent himself was, by permission of the court, filed with the clerk at the time of the argument. While these affidavits form no proper part of the record and have not been considered, they are ordered returned with the remittitur, and the attention of the trial court is directed thereto. If there is a scintilla of truth in that filed by respondent, it merits serious consideration by the trial court, and a searching investigation should be made.

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, Blair, and Stone, JJ., concurred.