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    JACOBS v. HAGENBECK-WALLACE SHOWS.
    1. Appeal and Error — Presumptions—Change of Venue — Discretion of Court.
    In an. action to recover damages for personal injuries sustained by a patron of defendant’s show, as a result of a windstorm upon the show tent, while plaintiff was attend: ing the show, where a jury was secured without difficulty, and the damages awarded were not claimed to be excessive, held, that there was no inevitable legal inference from undisputed facts that local prejudice existed or that the court below abused judicial discretion in denying motion for a change of venue.
    2. Theatres and Shows — Damages—Negligence—Basis of Action.
    Negligence is the gravamen of an action to recover damages for personal injuries sustained by one attending a show in a tent by the effect upon the tent of a windstorm, although the declaration alleges as inducements to plaintiff to enter the tent an advertisement circulated by the defendant to the effect that the tent was storm-proof and wind-proof and also that plaintiff paid the price of admission ashed by the defendant.

      3. Same — Duty of Proprietors.
    Proprietors of .public entertainments are not insurers of the safety of patrons, but must exercise, to prevent disaster, care commensurate to the situation.
    4. Same.
    That in the latitude where defendant erected its show tent summer storms with wind and rain were common, that the wind often attained considerable velocity and did considerable injury, and that such storm's often arrived or broke suddenly and were as soon gone, were circumstances to be considered by defendant in erecting the tent and by the patrons of the show in attending.
    5. Same — Damages—Evidence—Question for Jury.
    Whether the facts upon which the defendant’s liability depends were established, held, to be for the jury.
    6. Trial — Instructions—Construction of Charge to Jury.
    The charge of the court must be read as a whole and with regard to the contentions of the parties.
    7. Theatres and Shows — Duty of Proprietors — Rights of Patrons.
    ■ The proprietor of a show tent is bound to anticipate, in selecting and erecting the tent, the ordinary and usual storm of the season and latitude and its probable consequences, reference being had to the character of the structure to which the public was invited, and, in view of such storm arising and such consequences, to use ordinary care in such selection and erection as to prevent injury to patrons.
    8. Same.
    In an action by a patron of a tent show to recover for personal injuries sustained as the result of a sudden windstorm while plaintiff was attending defendant’s show, if, as claimed by plaintiff, the storm was an ordinary one, and, as claimed by defendant, the tent was selected and erected with ordinary care, in view of -probable storms arising and their consequences, there was no duty on the part of defendant to warn its audience of the approach of the storm.
    9. Same.
    The proprietor of a show tent who does not use ordinary care in the selection and erection of the tent, as the result of which a patron is injured in a storm, is liable unless the storm, was so violent in character that whether defendant was or was not negligent in such selection and erection the result would have been the same.
    10. Same — “Act of God” — Instructions.
    An instruction that, “as applied to this case, an act of God may be defined as a natural cause, such as a storm of wind, whatever its characteristics may be, which cannot be prevented by the exercise of ordinary care and the use of those appliances which the situation of the party renders it reasonable that he should employ,” was not erroneous.
    11. Same.
    An instruction that defendant was not required to contemplate or provide against unusual or extraordinary storms, was proper as preferred without the addition that the storm was of such a character that human care and foresight could not anticipate or guard against it.
    12. Same — Instructions—Burden of Proof.
    An instruction that the burden was upon defendant to show that the storm was so violent that it was the sole proximate cause of plaintiff’s injuries was erroneous, as plaintiff had the burden upon the whole case to prove defendant’s negligenee was the proximate cause of such Injuries.
    13. Same.
    An instruction that as defendant presumably knew the actual condition of the tent it was its duty to warn its audience of the approach of the storm, was not erroheous.
    14. Evidence — Materiality—Mortality Tables — Instructions— Harmless Error.
    The admission in evidence of tables of mortality showing plaintiff’s expectancy of life, was harmless error, where there was evidence tending to show that such injuries were permanent and his physical condition, and the jury were instructed not to consider the tables unless they were convinced to a moral certainty that a permanent injury was received.
    15. Same — Opinion Evidence — Admissibility—Expert Witnesses.
    Th'e admission, in an action for personal injuries received by a patron of a show in a tent, of opinion evidence tending to show that the stakes of the show tent should not have been driven vertically, at right angles with the

      198 Michigan Reports. [Sept.
    ■ earth, and should have been driven at another angle, given by witnesses not shown to have had any experience in securing such tents to the earth, was erroneous.
    16. Same — Admissions—Appeal and Ekrok.
    The admission of testimony tending to prove that either before or after a certain storm from the effects of which upon defendant’s tent in which plaintiff was attending defendant’s show plaintiff was injured, certain employees of defendant admitted that the tent was not properly erected or ma.de statements from which the inference of defendant’s negligence would arise, was erroneous; otherwise, if at any time responsible officers and agents of defendant made such admissions.

    Error to St. Joseph; Knowlen, J.
    Submitted April 20, 1917.
    (Docket No. 145.)
    Decided September 27, 1917.
    Case by Alpha Jacobs, administrator of the estate of Crebillion Jacobs, deceased, against the HagenbeckWallace Shows for personal injuries to plaintiff’s decedent. Judgment for plaintiff; Defendant brings error.
    Reversed.

      Roy H. Hagerman, George L. Yaple, Henry R. Wair, and Victor M. Gore, for appellant.

      Theo. T. Jacob's and. Harry C. Howard, for appellee.
    Defendant’s circus exhibited at Sturgis, Mich., August 18,1914. There was a storm during tKe afternoon performance. It was of short duration, and was accompanied by a high wind. Testimony tends to prove that the wind, getting under the top of the large tent, inflated and deflated it, caused it to rise and fall, the action of the canvas pulled from the ground stakes to which the circumference of the tent was fastened, and some of these stakes, attached to ropes, came into the tent over the side walls, and were whipped about, over and among a portion of the audience. Poles inside the tent supporting the top were some of them lifted from the earth, and they performed evolutions dangerous to persons in their vicinity. Several persons, including Crebillion Jacobs; were injured; one was killed.
    The plaintiff, seeking to recover damages for his injuries, charges defendant with negligent conduct— action and want of action — which-he contends was the proximate cause thereof. His position is fairly denoted in the second count of the declaration where, in negativing the due performance by defendant of duties alleged, it is averred: i
    “Defendant failed to observe for his protection such care and diligence as the circumstances justly demanded, and contends that the tent in which he was, its supports and fastenings were defective in construction, and was not capable, and did not stand the strain and tension that might reasonably be expected. That the top of the tent was not of such material as was capable of sustaining the strain and tension that plaintiff had reason to believe that defendant would have constructed the same. That the stakes to which the supports and ropes of the tent were fastened, were not of the proper size, kind, and dimensions; and that said stakes were not properly driven, and were not driven the proper depth or the angle that a reasonable man would drive them for the purpose of properly securing or anchoring the fastenings and supports for the tent which plaintiff occupied; that said tent was not wind and rain proof according to the statement in defendant’s magazines or circulars, as plaintiff had a right to believe after reading said circular or magazine; and that said defendant through its agents, officers, and directors, did not warn plaintiff that a storm was approaching, which might affect the safety of the tent occupied by plaintiff; but said defendant, well knowing the manner in which said tent had been erected and well knowing the depth and angle that the stakes were driven, to which the supports or fastenings were anchored, failed to advise plaintiff of the approaching storm. That, well knowing this and the condition of said tent, it became the duty and was the duty to warn plaintiff of the approach of the storm so that he might retire from said tent and go to a place of safety. That instead of warning plaintiff of the approach of the storm, well knowing that plaintiff on account of said tent being entirely inclosed could not see the approach of the storm, said defendant through its officers, agents, and employees, told plaintiff, after the tent had become loosened by its pulling up the stakes, and the poles and stakes inside of the tent were being lifted from the ground, that plaintiff should remain seated, and that there was no danger, and he was entirely safe in remaining in his seat and commanded him to do so.”
    ’ With the plea of the general issue defendant gave notice that it would prove that the injuries claimed to have been suffered by plaintiff were caused by an act of God. As stated by the trial court in his charge to the jury, the specifications of negligence set out in the declaration and concerning which testimony was offered were:
    “(1) That the canvas material of the tent was defective and unfit and unsuitable for the purpose in that it was old, worn, and rotten; that it had holes in it, and was not capable of sustaining the strain to which it might reasonably be subjected; (2) that some of the stakes to which supporting ropes were fastened or attached were not driven to a proper depth; (3) that the stakes to which supporting ropes were attached or fastened were not properly driven, in that they were driven straight rather than on a slant; (4) that said stakes were not properly pointed, in that they were too blunt in point; (5) that some of the alternate ropes were not fastened, or properly fastened, to the alternate stakes provided therefor.
    “These particulars, gentlemen, are the only particulars in respect to defendant’s negligence in failing to provide a reasonably fit, suitable, and safe tent charged by the plaintiff, and you will consider no others.”

      In addition, plaintiff charged, as has been indicated, negligent failure to warn the audience of the approach and apparent character of the storm. In his brief, plaintiff says:
    “The contention in behalf of the plaintiff was that he was entitled to recover because of defendant’s negligence: (a) In failing to tie every alternate rope; (6) in failing to drive the stakes deep enough; (c) in failing to warn him of the approach of the storm.”
    The cause being at issue, the defendant moved for a change of venue, upon the ground of local prejudice, asserting inability to obtain a fair trial in St. Joseph county, supporting the motion by numerous affidavits. This motion being overruled, there was a trial, a verdict and judgment for plaintiff, and denial of defendant’s motion for a new trial. The assignment of error No. 126 and the questions involved are stated by defendant to be:
    “I. The refusal of the court to direct a verdict for defendant when the plaintiff rested, because: (a) That the declaration fails to state a cause of action; (b) no negligence was proven on the part of the defendant which was the efficient or proximate cause of plaintiff’s injury; (c) that it appeared from the undisputed evidence that the proximate cause of plaintiff’s injury was an act of God; (d) there is no proof as to how or in what manner or by what means the plaintiff was injured.
    “II. The refusal of the court to direct a verdict as requested by defendant when both parties had rested.
    “HI. The court erred in refusing to charge the jury as the defendant requested in its written requests Nos. 21 to 81, inclusive.
    “IV. The refusal of'the court to charge the jury as requested in defendant’s requests Nos. 32, 36a, and 37a.
    “V. The ruling of the court in refusing to charge the jury as requested by the defendant in its requests Nos. 40 to 45, inclusive.
    “VI. The ruling of the court in denying the defendant’s motion to change the venue.

      “VII. The refusal of the court to set the verdict aside and grant a new trial.
    “VIII. The instructions of the court in his voluntary-charge to the jury.
    “IX. The rulings of the court upon the admissibility of testimony.
    “X. The prejudicial language of plaintiff’s counsel in his closing arguments to the jury seasonably objected to.”
    One, and perhaps the principal, ground set up as a reason for granting a new trial was that the verdict was against the weight of evidence.
    If there was a question for the jury, then, it is claimed, it was error to instruct them, as they were instructed:
    “The burden is upon the plaintiff to prove, and in order to recover he must prove by a preponderance of the evidence, either that defendant’s alleged negligence was the proximate cause of the injury, or that the injury was in part the result of the act of God and in part the alleged negligence of the defendant, and that such injury was a reasonable direct consequence of such negligence! If plaintiff has not so proved he cannot recover, and your verdict must be for defendant.
    “The burden is upon the defendant, gentlemen, to prove by a preponderance of the evidence its claim that the act of God was the sole and only proximate cause of the injury.”
    In immediate connection with, and preceding the foregoing, the court said:
    “The principle of law, gentlemen, is well-settled that in order for a negligent defendant to escape liability the act of God must be the sole and only cause of the injury' and this, too, unmixed with the negligence of such defendant, for, if a defendant’s negligence commingles with the act of God in the injury as an active and co-operative element, and the injury is a reasonable consequence of the negligence, such injury is regarded as the act of such defendant rather than as an act of God; and the rule of law is equally well settled that a defendant can be excused for failure to exercise, ordinary care only when the superior force of an act of God would have produced the same injury whether such defendant had been negligent or not. And I therefore charge you, gentlemen, that if you find by a preponderance of the evidence that this storm was in fact so unusual and extraordinary in character and power that by the exercise by defendant of ordinary care, prudence, and foresight such storm could not have been reasonably anticipated or guarded against, and if, by a preponderance of evidence, you further find that such storm was the sole, exclusively proximate cause of the injury, and that such injury would have occurred without regard to and notwithstanding defendant’s alleged negligence, then I charge you that this would be a complete defense to plaintiff’s action, and the defendant would be entitled to your verdict.
    “If you find, gentlemen, by a preponderance of the evidence, that the storm was in fact so unusual and extraordinary in óharacter and destructiveness that by the exercise by defendant of ordinary care, prudence, and foresight it could not have been reasonably anticipated or provided for, and if you further find by a preponderance of the evidence that the injury was in part the result of plaintiff’s negligence and in part the result of the storm, and that the injury was a reasonable consequence of such negligence as an acting, cooperative, contributing cause of such injury, then I charge you that the defendant cannot be heard to say that such injury was an act of God, and cannot escape liability for its alleged negligence.”
    Error is assigned upon the last paragraph here quoted.
    As the record is understood, the defendant’s main tent or “big top” was 360 feet in length and 150 feet wide, and was set up at Sturgis so that its longer dimension was north and south. The canvas was carried in 16 sections, each weighing about 1,000 pounds. In erecting the tent, the ground was first measured, pins being used to designate the positions of the center and other poles, and the position of the stakes around the outside of the canvas. There were two, perhaps three, center poles, a number of poles between them, and the circumference of the tent called quarter poles, side poles around which the side walls of the tent were carried, and the stakes, numbering 180 or 190, driven about 17 feet beyond the edges, or sides, of the canvas. The canvas in the top was secured to ropes by being sewed, the ropes running from the bail pieces or collars fitting around the poles and from the peaks of the tent and so to the edge of the canvas and the ground, ropes also passing transversely around the canvas. These ropes, when the tent is in position, are under the canvas, supporting it. The canvas was made of 6-ounce duck, and was bought, new, in April, 1914, and was in use until the day of the occurrences here considered. The seats in the tent were wholly disconnected from the tent itself. The stakes were driven, after measurements were made, by a mechanical stake driver, operated by an engine on a truck or wagon. The men engaged in this work have no other duty to perform; at least not until that duty is fully performed. Stakes were from 4 to 4% feet long, and from 3 to 4% inches in diameter, sharpened, or smaller, at the end which entered the earth. Properly driven, they should go into the earth from 30 to 36 inches. They were driven vertically into the earth. A stake in the outer row having been driven, the platform of the mechanical stake driver was moved in a rotary way so as to bring the hammer over the position of the stakes in the inner row, some 2 to 2% feet inside those on the outer row. It required two hours and more to drive the double row of stakes, the truck completing a circuit of the ground. The tops of driven stakes should stand above the earth not high enough to interfere with the driving of wagons over them in other operations. The top being laid upon the ground, the sections laced together, the center poles erected and stayed by guys, the circumference of the canvas fixed by the guy ropes to the stakes, the tent was raised, first high enough to admit the placing of the quarter poles and side poles, then completely. Thereafter, it was “guyed out,” several men pulling upon each guy rope, which is fastened by a hitch to one and then another of the two rows of stakes. This left some 6 or 7 feet of the guy ropes — 1-inch manila rope — unused. In an emergency, as a storm, other stakes are driven by men with hammers, and the ends of the guy ropes used to make an additional fastening to the ground. So, in an emergency, ropes are thrown over the tops of the side poles, at the eaves of the canvas, and carried to stakes, or the wheels of wagons, or to any other available and sufficiently heavy object, and fastened.
    The storm upon the occasion here in question came from the northwest — some witnesses say from the west — with a general direction of from northwest to southeast. It exhibited some of the phenomena peculiar to winds, being variable, harmless in places, destructive in others, described by some observers as rolling, by others as having a rotary movement, by all as making a rather narrow lane in the air and upon the earth. Defendant’s tents were not blown down. The interrupted performance proceeded. None of the small tents and refreshment stands was blown down or much, if any, disturbed. Automobiles standing about the grounds, some with tops up and curtains drawn, were not blown about or injured. New outhouses, or trees, in the immediate vicinity, were blown down. The history of the storm shows, however, that at some distance, several miles away, a large building, some 90 by 16 feet, open on one side, was turned over, carrying cement piers to which it was fastened, a scaffold nearby was blown away, some boards being carried a distance of 80 feet, and in various ways considerable damage was done by the wind. The record shows a great lack of uniformity in what different persons observed. Some describe the morning as promising a storm, others say it was a hot day with sunshine. Some who attended the show noticed no warning in the sky or air, others, shortly before the storm broke, were apprehensive, and a few took their families out of the tent. The defendant’s agents seem to have been observing. Several gangs of men were set to driving emergency stakes, and efforts, were made otherwise to strengthen the hold of the tent upon the earth.
    When the grand entry or cavalcade, with which the performance began, was concluded, just as the storm broke, the elephants, a part of the parade, were taken out through the dressing room to a distance from the tent, instead of being returned to the menagerie. Defendant’s testimony tended to prove that this was a precaution adopted in the interests of safety, on account of the danger that the animals, restless during a storm, may stampede. When the storm, broke and the canvas began to heave and the poles to dance, there was a panic, or near panic, people arising and leaving their seats and crowding to the entrance, others finding a way out under the tent, many dropping from the seats in efforts to escape. Employees of defendant advised the people to remain seated, so also did others, not employees, who evidently thought to allay fears and prevent a stampede.
    It was on the side opposite to that from which the wind came that the considerable mischief was done. The lifting movement of the canvas, which drew the stakes to which guy ropes were fastened and lifted the quarter poles, was destructive on the easterly side of the tent. There was testimony tending to prove that there were holes, small ones, and a few of them, in the top when it was erected and that the canvas was split or torn by the wind or by its action; that the canvas was discolored and appeared to be mildewed. There was testimony of the opinions of various witnesses that the vertical driving of the stakes was improper driving and that if they had been driven at an angle they would better have resisted the lifting power of the guy ropes and the top. So, too, witnesses were permitted to express the opinion that some of the stakes were too blunt — not properly pointed.
    Various witnesses testified about the depth to which the stakes were driven, to the measurement of stake holes after the show had left the city, to measurements of stake holes in another city, where an exhibition was given. Two witnesses, whose testimony seems more or less incredible, testified that, immediately after some stakes had been driven, and while the stake driver was at its work, they tried stakes by pulling on them and found them loose in the earth, yielding by sideways movements to such force as they applied. One, at least, of these witnesses expressed the opinion that he could have pulled the stakes, or some of them he handled, with his hands. On the other hand, the undisputed testimony is, in substance and effect, that defendant used stakes of the size ánd kind, and drove them in the same way, that all other large circuses employ; that the method of making and erecting the tent is the result of experience and is that employed by all large tent shows.
    Plaintiff introduced testimony of statements made by men connected with the circus after the storm tending to prove, by admission, the improper driving of the stakes. To go no further into details, what is here stated seems to be sufficient to explain, generally, the situation laid before the jury.

       On liability of one maintaining place of amusement to which the public* is invited, for the safety of patrons visiting the premises, see notes in 1 L. R. A. (N. S.) 427; 3 L. R. A. (N. S.) 1132; 14 L. R. A. (N. S.) 284; 19 L. R. A. (N. S.) 772; 32 L. R. A. (N. S.) 713; 42 L. R. A. (N. S.) 1070; L. K. A. 1915F, 690.

   Ostrander, J.

(after stating the facts). Not all of the questions which the defendant says are involved are pressed upon the attention of the court, and not all of those denoted require discussion.

The suit at bar and nine other similar suits were begun on the day the alleged injuries were received. Defendant is a foreign corporation. A large number of people attended the circus. The circumstances invited public interest and discussion, and the charges that the defendant’s agents did not properly secure the tent and safeguard the patrons of the show, and the respects in which they were charged with being derelict, were known in and about Sturgis and were discussed there and elsewhere in the county. There were not lacking those who expressed opinions upon the subject, unfavorable to defendant. This appears from the affidavits filed in support of the motion for a change of venue, the affidavits in most instances expressing the belief that an impartial trial of this case could not be had in St. Joseph county. So far as opinions are to be considered, affiants who made affidavits opposed to the motion expressed a contrary opinion. In the original declaration, the damages were laid at the sum of $1,950, it was later amended so as to claim damages in the sum of $2,990, and the inference is drawn, not unreasonably, that a removal of the cause to.the Federal court was something counsel for plaintiff desired to prevent.

It is assumed, nothing to the contrary appearing, that no difficulty was encountered in securing a jury, and there is no claim made that the damages awarded, $1,000, were excessive, there being testimony to support the conclusion that injuries received by the plaintiff were permanent. Assuming that questions of fact were properly submitted to the jury upon competent and material testimony, the result of the trial is not indicative of a hostile public sentiment or of prejudice on the part of the jury. There is no inevitable legal inference from undisputed facts that local prejudice existed, and none that the court below abused judicial discretion in denying the motion for a change of venue. People v. Gage, 188 Mich. 635, 643 (155 N. W. 464).

While the declaration alleges as inducements to plaintiff to enter the tent an advertisement, circulated by defendant, to the effect that the tent was storm proof and wind proof, and it is duly alleged that plaintiff paid the price asked by defendant for a seat in the tent, the gravamen of the action is negligeince.

Whether defendant was negligent in all or any of the respects alleged, and whether the negligence proved was the proximate cause of the injury received by plaintiff, were questions fairly raised by testimony produced by plaintiff, and questions which could not and cannot now be properly answered by the court. The testimony for plaintiff tends to prove that the storm was an ordinary summer storm; that stakes which it was usual to drive into the ground from 30 to 36 inches were driven only from 18 to 24 inches, or a less distance. The inference is not unreasonable that, if the stakes on the easterly side of the tent had held, no mischief would have resulted. Defendant contended, and contends, that it used ordinary care in providing and in erecting the tent, that the storm was extraordinary, was, indeed, so violent that such acts of negligence on its part as are alleged were, as to the consequences, negligible.

In an opinion delivered in the case of Cole v. Loan Society, 124 Fed. 113 (59 C. C. A. 593, 63 L. R. A. 416), relied upon by counsel for defendant, it was said;

“An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, and that would not have resulted from it, had not the interposition of some new and independent cause interrupted the .natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate, cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it — the result which may be reasonably anticipated from it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. * * *
“The test of liability, therefore, in cases of concurring negligence is the same that it is in all other actions for negligence. It is the true answer to the questions: Was the injury the natural and probable consequence of the act on which the action is based? Was it reasonably to be anticipated from that act? If it was, the action may be maintained, although the negligence of another concurred to produce the untoward result. If it was not, the act of negligence will not sustain an action, whether the act of another concurred or failed to concur to produce it. A negligent act from which an injury could not have been foreseen or reasonably anticipated is too remote in the line of causation to sustain an action for an injury in every case, and the concurring negligence of another cannot make it less remote, nor charge him who committed it with responsibility for it to which he would not have been liable to answer in the absence of the negligence of the third party.”

It is lawful that public entertainments shall be given in tents. Proprietors are not insurers of the safety of patrons, but they must exercise, to prevent disaster, care commensurate to the situation. See Scott v. Athletic Ass’n, 152 Mich. 684 (116 N. W. 624, 17 L. R. A. [N. S.] 234, 125 Am. St. Rep. 423); Logan v. Agricultural Society, 156 Mich. 537 (121 N. W. 485); King v. Ringling, 145 Mo. App. 285 (130 S. W. 482). In the latitude of Michigan, summer storms with wind and rain are, common, the wind often attaining considerable velocity and doing considerable injury. Such storms often arrive, break suddenly, and are as soon gone. These were .circumstances to be considered by the defendant in erecting the tent. They were to be considered, also, by patrons, who could not expect that tents, however well constructed and erected, would be as substantial as houses and afford the same protection from the elements. The doctrine of the case just referred to, applied here, required that the jury, upon the whole case, determine whether the facts upon which defendant’s liability depends, were established.

It is urged, and is true, that the testimony for the plaintiff fails to show what object struck him, except as the cause of injury may be inferred. It is a reasonable, if not necessary, inference, that he was struck by some of the paraphernalia of the tent, a" stake, or pole. There is no testimony to support an inference that objects not connected with the tent, and set in motion by the action of the canvas, entered the tent and inflicted the injury. Scott v. Railroad Co., 182 Mich. 514, 522 (148 N. W. 719), and cases cited in opinion. Considering that the testimony required the case to be submitted to the jury, and the court having submitted it, it remains to be seen whether reversible error was committed in the charge, in admitting or rejecting testimony, or otherwise in the conduct of the trial.

The charge of the court must be read as a whole and with regard to the contentions of the parties. The jury was.instructed that the plaintiff must establish, by a preponderance of the evidence, that defendant was guilty of negligence, and that its negligence was the proximate cause of plaintiff’s injury;

“that circus tents are not erected with a view to resist storms of such an unusual or extraordinary character as may not by the exercise of ordinary care and foresight be reasonably anticipated or provided for or guarded against. * * * Ordinary care * * * is the measure of duty of defendant, and the jury have no right to hold defendant to a higher degree of duty

if the evidence left it as probable that the injury was the result of the storm as the sol.e and proximate cause as it did that it was the result of defendant’s alleged negligence as the sole proximate cause, plaintiff could not recover. Other portions of the charge have been set out. One request to charge, No. 41, was:

“The defendant was not required to contemplate or provide against unusual or extraordinary storms.”

And another, No. 43, was:

“As applied to this case, an act of God may be defined as a natural cause, such as a storm of wind, whatever its characteristics may be, which cannot be prevented by the exercise of ordinary care and the use of those appliances which the situation of the party renders it reasonable that he should employ.”

Neither was given as preferred. As. to No. 41, it was said, in refusing a new trial, that it “lacked this additional language: ‘Of such a character that human care and foresight could not anticipate or guard against.’ It was covered by general charge.”

Defendant was bound to anticipate the ordinary usual storm of the season and latitude and its probable consequences, reference being had to the character of the structure to which the public was invited, and in view of such a storm arising, and in view of its probable consequences, it was bound to use ordinary care in the selection and erection of the tent. If it did this upon the occasion here in question, it is not liable in this action. If it did not, then it may be liable unless the storm was so violent in character that, whether defendant was or was not negligent, in the respects indicated, the result would have been the same; unless to the storm may be charged whatever occurred.

This, in substance and effect, is the rule given to the jury, and is the correct rule; but as applying the rule, and as affecting its possible liability, I am impressed that defendant was entitled to have its requests 41 and 43 given as preferred. The court went further. The jury was told that the burden rested upon defendant to prove that the storm was so violent that it was the sole proximate cause of plaintiff’s injury. In this the court was in error, because plaintiff, upon the whole case, was bound to prove that defendant’s negligence was the proximate cause of the injury.

The rule stated by the court has been applied where goods intrusted to a common carrier were lost or destroyed. In the absence of contract, the common law imposed upon common carriers the extraordinary liability of insurers against all loss unless occasioned by the act of God or the public enemy, and the carrier was not permitted to throw upon his employer the burden of proving, or inferring, negligence or defective means until the carrier had shown the intervention of such an extraordinary, violent, and destructive agent as by its very nature raised the presumption that no human means could resist its effects. See, generally, McArthur v. Sears, 21 Wend. (N. Y.) 190; Coggs v. Bernard, Lord Raymond, 909, and note, 1 Smith’s Lead. Cas. (8th Ed.) 369, 422; Tobin v. Railway Co., 192 Mich. 549 (159 N. W. 389). No such extraordinary liability is imposed by the law upon the defendant.

The court was not in error in advising the jury upon the subject of the duty of defendant to warn the audience of the approach of the storm, correctly stating that as affecting this duty was the actual condition of the tent, presumably known to defendant. It might well have added to the instruction that if the storm was an ordinary one, as plaintiff claimed it was, and the tent was put up as defendant asserted it was, there could arise no duty to warn. It is not difficult, after a critical reading of the charge, to suggest additions to and variations of the language calculated to enlighten the jury. None was made by defendant, whose requests to charge, except as given in the general charge, as indicated herein, it was not error to refuse.

In view of the téstimony tending to prove the physical condition of plaintiff and permanent injuries, it was not reversible error to admit in evidence the tables of mortality showing his expectancy of life. It is true that Dr. Kane, the only witness upon the precise subject of a continuing injury, testified only that his condition might continue during life. But plaintiff was 82 years old when he gave his testimony. (He has since died.) He was hit on the head, and a bad wound resulted. He was thought by some to be dead. Effects of the injury were that he was dizzy, walked with difficulty, using a cane. He lost his balance when standing and fell. Pain continued. He testified at length to his condition. He had enjoyed excellent health, never had been sick. The court instructed the jury not to regard the tables unless they were convinced to a moral certainty that a permanent injury was received.

It was ei.yr to admit opinion evidence tending to prove that the stakes should not- have been driven vertically, at right angles with the earth, and should have been driven at another angle. No witness who expressed such an opinion was shown to have had any experience in securing large tents to the earth. It has been pointed out that the method of driving stakes employed by defendant is, according to the undisputed testimony, the method employed in securing all large circus tents; is the method which experience has demonstrated to be best.

It was error to admit testimony tending to prove that, either before or after the storm, employees of defendant admitted that the tent was not properly erected, or made statements from which the inference of negligence would arise. Otherwise, if, at any time, responsible officers and agents of defendant made such admissions.

The witness Simpson was asked, and over objection and exception he answered, this question:

“Q. I wish you would state whether in your opinion if those stakes had had proper points on them and were driven to a depth of 30 to 36 inches whether or not in your opinion they would have held and not pulled out in that storm as you observed it, with the tent as you observed it, sitting up' there?”

He answered:

“A. Why, I should think they would have held.”

This witness had not qualified as an expert in this behalf, nor does it appear upon what premises his conclusion was based.

It is complained that plaintiff’s attorney used in argument intemperate language. As reported, it was most intemperate. As it was immediately disclaimed, it may or may not have prejudiced defendant. It will not be assumed that upon a new trial-it will be repeated.

A careful examination of the large, record presented in this case has not convinced me that the verdict is opposed to the great weight of evidence.

For errors pointed out, the judgment must be reversed, and a new trial granted, with costs to appellant.

Kuhn, C. J., and Stóne, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    HOPKINS v. TRIPP.
    Automobiles — Damages—Evidence—Question for Jury.
    In an action by an occupant of an automobile against the owner of another automobile to recover damages for injuries sustained in a collision, the evidence held, to present a question for the jury as to whether defendant was negligent or plaintiff was guilty of contributory negligence.
    Error to Oakland; Smith, J.
    Submitted'April 9, 1917.
    (Docket No. 27.)
    Decided September 27, 1917.
    Case by Minnie Hopkins against Arthur R. Tripp for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Patterson & Patterson, for appellant.

      Andrew L. Moore, for appellee.
   Ostrander, J.

It is complained by defendant, appellant, that the court erred in refusing to direct a verdict for him, erred in amending certain preferred requests to charge the jury upon the subject of plaintiffs contributory negligence, and erred in refusing to set aside the verdict and enter judgment for defendant because of plaintiff’s negligence, or grant a new trial because the verdict is contrary to the great weight of evidence.

In deciding adversely to defendant the motion for a- judgment or a new trial, the trial judge stated that he was satisfied that the verdict was against the clear weight of evidence, and that, technically, the defendant was entitled to a new trial. The verdict (which was for $200) is accounted for, he says, by the following reasons:

“(1) My experience long ago taught me that the ordinary jury in most litigation between a layman and a lawyer is somewhat prejudiced against the lawyer. I could cite instances.
“(2) It was made to appear to the jury that Mrs. Hopkins and her husband were in rather straitened circumstances financially, working people in fact, and that Mr. Tripp is not. I make no assertion as to whether that is true or not, but the jurors believed so.
“ (3) Mrs. Hopkins was injured. In hurrying across the street a few moments after the accident for aid for his wife, Mr. Hopkins was struck by an automobile and also injured. Mr. Tripp escaped any personal injury. This appealed to the sympathy of the jurors.
“In theory the jurors do not disclose their deliberations and reasons for their verdict. In fact, they very often do. I am entirely certain that the verdict was a compromised one. That nearly all of the jurors were for a verdict against the defendant, and a majority of them for a large verdict against him; also that it was because of the above reasons, especially No. 3. Their view was that it should be decided upon what they con7 sidered as equitable grounds, that because Mr. Tripp was not injured and able to pay, therefore he ought to contribute.”

He finds that, technically, the defendant is entitled, to a new trial, but says:

“This is an expensive case both to the litigants and the county. It will require nearly a week’s time. A new jury will be made up of men of like bias and sympathies as the other one. The same three reasons above stated will exist. It is my sincere belief that a new trial is very much more likely to result in a larger verdict against the defendant than of one in his favor. If it is granted, it should be by the Supreme Court. It is for consideration by that court that the above general statement is made.”

Plaintiff is wife of George Hopkins, who was owner of a Ford touring car. They have a daughter, Lillian. Defendant was owner of a large four-cylinder Buick touring car. All live in Pontiac. The main • north and south, street in Pontiac is Saginaw street. In the business section, .a street called Auburn avenue enters Saginaw street from the east, but does not cross it) there being stores, etc., on the west side of Saginaw directly across from Auburn avenue. From Saginaw street Auburn avenue runs a little south of east. Saginaw street is 65 feet wide from curb to curb, and in it are three street car tracks. From curb to curb Auburn avenue is 35 feet wide. On the north side of Auburn, and east of Saginaw, is a block of stores extending east to an alley. On the southeast corner of Saginaw and Auburn is a barber shop, and south of that, on Saginaw, stores, one of which, a few doors from the corner, housed the sales agency and garage of the Buick Motor Car Company. With the garage as'his objective, defendant was driving his car, carrying several persons, on Auburn avenue, towards Saginaw street, at the moment when the Hopkins car, driven by Lillian, and carrying her mother, father, and another, was going south on Saginaw and intending to enter Auburn, on which street was the Hopldns home. By the law of the road, defendant should have proceeded on the north side of Auburn into and across Saginaw, going south on the west side of Saginaw. So plaintiff’s car should have been driven south on the west side of Saginaw, turning east and entering Auburn avenue on its south side. In fact, the cars were in collision at the southeast corner of the intersection of these streets, on the crosswalk over Auburn, on the east side of Saginaw. The inference is that one or both of the drivers was in fault. The jury returned a negative answer to the special question, “Did the Hopkins car approach the northeast corner of Auburn avenue on the easterly side .of Saginaw street?” thus rejecting defendant’s contention, supported by his own and other testimony:

That Lillian was cutting the corner, turning into Auburn avenue from the north at the moment when defendant was entering Saginaw street from the north side of Auburn; “that by reason of buildings and a delivery wagon and another vehicle or two intervening and the Hopkins machine approaching diagonally from the northwest, the automobiles were concealed from each other, and came into view and were observed when not more than 15 or 20 feet apart; that the speed, direction, and nearness together of the two automobiles threatened an immediate and violent collision unless some means were instantly found and employed to avoid the same, and avert the danger thereof; that because of the conditions confronting him, which the defendant believed rendered any other course extremely perilous, if not absolutely impossible, he at once realized that the safety of all in both machines required him to, and he accordingly did, immediately turn his automobile to the left, release the clutch, and put on the service brake, upon the assumption that the driver of the Hopkins automobile would sheer to the right, proceed a little way south on Saginaw street, and thus avoid any collision, which she could easily have done, but only did in part; and that because she did not continue going south a little way further, after having started to do so, nor seasonably attempt any other means calculated to prevent a collision, but, instead of doing either, after veering sufficiently to the right and proceeding southward on Saginaw street, passing defendant’s automobile, did suddenly, without warning and unexpectedly to defendant, turn her machine to the left .in an attempt to proceed up Auburn avenue, by dashing past in front of defendant’s automobile before it was fully stopped, which she very nearly succeeded in doing, the collision took place.”

With this contention rejected, there was nothing except the plaintiff’s theory to explain how the cars reached the positions they were in when movement ceased. Defendant testified that the impact was slight; his own car having practically come to a standstill when it struck plaintiff’s car. The position of the cars unexplained, or explained only by knowledge of the places to which, and general directions in which, they were respectively being driven, indicated that defendant was the misbehaving driver. There was positive testimony of his misbehavior, and of plaintiff’s care. The record makes a case for a jury. There was conflicting testimony affecting every material issue, for which reason the court could not properly determine any of them. From the record it seems there is more, and better, testimony opposed to than there is in support of plaintiff’s theory, but it is,not so conclusive as to require this court to overrule the trial court in refusing a new trial.

What has been said answers the contention presented in appellant’s brief and requires an affirmance of the judgment. I have not considered, because appellant does not, the reasons stated by the trial court for granting, and for refusing, a new trial, nor considered why, if defendant, in the opinion of the trial court, is entitled to a new trial, this court and not the trial court, should grant it.

Plaintiff claims to have received considerable injuries. The verdict, if defendant was at fault, does not indicate prejudice. Counsel for appellee asserts that certain purported facts set forth by the court in denying the motion rest wholly in the mind of the court, and are not supported by the record; that, for ■ example, there is nothing about George Hopkins’ financial condition, or whether defendant is rich or poor.

The judgment is affirmed, with costs to appellee.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    SANDSTROM v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Appeal and Error — Definiteness of Assignment.
    An assignment of error that there is no evidence in the case to support a verdict for plaintiff is definite.
    2. Negligence — Evidence—Sufficiency.
    Evidence held, insufficient to show that children habitually played on logs along a railroad track or that any officers or agents of the company knew of children playing on logs prior to the death of a child which was killed by being run over by a log while playing on the logs. ■
    3. Same — Acquiescence—License—Custom.
    Acquiescence in the use of premises — license to use them —must depend upon some known customary use.
    4. Same — Death—Children—Directed Verdict.
    In an action to recover for the death of a child which was run over by a log on which it was playing alongside of a railroad track, at a point on the bank, three feet above a tract of land owned by defendant on which children were accustomed to playing, where there was no evidence of a license to use the property of defendant, or that the depositing of the logs was a new use of the property, or that the depositing of the logs created a peril affecting any customary use of the premises, held, that a verdict for defendant should have been directed.

    Error to Delta; Flannigan, J.
    Submitted April 18, 1917.
    (Docket No. 85. )
    Decided September 27, 1917.
    Case by John Sandstrom, administrator of the estate of John Morris Sandstrom, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      G. R. Empson, for appellant.

      A. H. Ryull and James Frost, for appellee.
    In and about its business at Gladstone defendant occupies (and owns) a certain tract of land, having an average width of 1,000 feet and a length of three-fourths of a mile. People live on land which surrounds it, and there are in its vicinity warehouses and manufactoring plants. The land is not inclosed; the most of it is not in fact used for any purpose. People have habitually crossed and recrossed it at convenience or pleasure. TJiere are numerous paths — worn footpaths —crossing it in various directions. Upon one portion of it there was a baseball ground, where games of ball were played. The. general condition had existed for years. Children entered there and played. There are still some stumps in the field, which,- while generally level, has an irregular, uneven surface. Across it is a “fill” leading down to the docks, and upon this fill, or elevated land, are two railroad tracks. One of the tracks was formerly used for cars traveling to an ore dock, which defendant once maintained. Since 1904 it has been used as a storage track, and material piled alongside of it. Sometimes logs were unloaded along the tracks. In the winter of 1913-14 logs were so stored along the track; one of them a log 16 feet long and some 2 feet in diameter. It did not lie exactly parallel with the rails, but did lie upon the upper face of the elevation, or fill, and that part of it farthest from the rails was very near the shoulder of the fill, from which the ground sloped away to the level of the field. March 14, 1914, was Saturday, and a warm day. Such snow and ice as remained was melting. Children, among them plaintiff’s decedent, a boy 6 years and 10 months old, were upon defendant’s premises, in the immediate vicinity of which his parents lived. A girl, 12 years old at the time of the trial, testified that she was on the log when it began to roll, and stepped off. Plaintiff’s decedent was astride the log, and did not get off. Unfortunately it rolled upon and killed him. The children had been jumping from one to another of the logs. Another child, a little girl, was also on the particular log, felt it move, and jumped from it.
    Indicating the theory of plaintiff’s case is the following, taken from the declaration:
    “It * * * became and was the duty of the defendant not to place on said property anything of a dangerous character which would be attractive to children, or which would tend to entice then! to go upon said property, and it became and was the duty of the defendant not to place upon said property, and especially near the paths -running across said property, anything of a dangerous character, so as to change the condition thereof without placing signs of notification and warning thereon, or in some way giving notice to those using said premises of the change of condition, or without guarding it, so that children and other persons who were in the habit of using said property would be protected from any change in the condition of said premises, and from any dangerous thing or device thereon. And it became and was the duty of the defendant to inform and warn all persons, and especially children of any new or unseen danger on said premises, and of any danger arising from anything placed by defendant on said premises. Yet the said defendant, disregarding its said duties toward persons in the habit of using said premises, * * * did carelessly and negligently fail and neglect to observe its duties in that it did place thereon things and devices of a dangerous character, to wit, the logs hereinafter referred to, and which were attractive to children, and did maintain on said premises an attractive nuisance near the paths running across said premises, and did place on said premises things of a dangerous character, to wit, the logs hereinafter referred to, without placing signs of warning thereon, and did fail to guard said logs, so that children and other persons who were in the habit of using said property were not protected from said dangers, and from the danger arising from playing on said logs, and did not give notice of the change in the condition of said premises, and did not warn said children of the dangers arising from playing on said logs, so that by reason of the premises the said John Morris Sandstrom, without any carelessness on his part, but through the carelessness and negligence of the said defendant, was injured and killed in the following manner, viz.: That said tracks ran on a grade, to wit, three feet higher than the adjoining ground; but that said grade and embankment and also the surrounding ground was rough and irregular, so that the place where the logs hereinafter mentioned were dumped was uneven, irregular, and unstable, and at the time said logs were placed on said premises there was snow and ice on the ground, which snow and ice melted from day to day, thereby changing the condition of the matter on which said logs rested, and rendered them unstable and unsafe, and a short time before the 14th day of March, 1914, the said defendant caused certain logs to be dumped and unloaded from one of its cars onto said vacant premises, and alongside its tracks running through said premises, and near to one of the paths crossing said premises, and upon the uneven ground and embankment and snow herein referred to. That said logs were not piled in an orderly manner, but were thrown off of said cars loosely, and permitted to remain as they fell from said cars, and were so placed that, because of snow and ice on which they rested, and because of the insecure manner in which said logs rested on the ground, and on the slope of the embankment near said track, said logs were likely to roll and fall upon any person touching or moving or being upon said logs, and that the said John Morris Sandstrom, together with other children, on the said 14th day of March, 1914, went upon said premises, and being attracted by said logs, which had recently been placed thereon, went upon said logs, and played thereon, and that thereupon, while said children and said John Morris Sandstrom were playing on one of said logs, one of said logs rolled and fell from the position in which it was then, and rolled and fell upon the said John. Morris Sandstrom, and injured him, so that he died instantly.”
    Plaintiff says:
    “This case is based on the right of a licensee to protection against active changes in the premises, through which an injury is inflicted.”
    And again:
    “As previously.stated, this case is based on a theory which has always been recognized by this court, but which was elucidated and reaffirmed in Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106, Am. & Eng. Ann. Cas. 1915D, 319), where Justice Stone went thoroughly into all of these questions, and drew the clear distinction between a situation of this sort, and such as was presented by Ryan v. Towar, 128 Mich. 463 (87 N. W. 644, 55 L. R. A. 614, 92 Am. St. Rep. 560), or any of the more recent cases cited by defendant.”
    And the question submitted to the jury was finally put to them in this way:
    “I have endeavored to make it clear to the jury that if the railway company had been accustomed to store these logs in the manner in which the logs were found there on the right of way, if that was their practice, and that was their practice at the time the license was granted, and they continued along depositing logs there, and the children continued along playing there, then if the child was injured by playing on one of those logs there would be no liability, because you see in that case the railway company gave them permission to play on the logs — to play on the ground and play on the logs — and, if they got hurt there, there would be no liability.
    “But if the railway company had not been accustomed to deposit logs on the roadbed at that place, and had granted a license for the children to play there, and, after having granted the license, deposited logs there; that would be a change in the condition of the place to which the license attached. They would have a right to change the condition of that place; but they would not have a right to so change it so as to put it in a condition dangerous to these children whom they had permitted and consented might play there.
    “Now, I have'already said to you, quite fully I think, that it means this: That they would have a right to change the conditions in any manner they saw fit, unless the change was of a nature which would advise an ordinarily prudent person that an accident such as this was likely to follow from it.”
    The jury had been instructed:
    “It is not claimed in this case that any officer, or agent, or employee of the Soo railway company ever told these children that they might play there. There is no claim in the case that the defendant railway company expressly, by word of mouth, consented that these children might play at that place, or upon any part of the tract of land. From the absence of that testimony to that effect it does not follow that the jury may not find the defendant consented to their playing there. The consent of the defendant railway company to the use of the ground by the children as a playground may be inferred, provided you are able to say from the testimony in the case that the children used this part of the ground where the logs were — remember, I am always referring to that particular place— provided you are able to say from the testimony in the case that the children used that part of the ground so openly, and for such a long time, and so continuously as a playground that it is reasonable to suppose that the defendant company knew they were using it, and that, it is reasonable to suppose that the defendant company consented thereto. The use, however, of the ground by the children, if it was used by them, is to be considered by you in connection with all the other evidence in the case, and you are then to say whether or not you find that the defendant railway company consented to the use of that ground by the children.
    “Now, gentlemen, bear in mind this distinction, which the court is seeking to make here: The mere use of the ground by the-children as a playground, the fact that they went there and played, would not be enough to charge the railway company with responsibility. You. must go further than that, and you must be able to say from the testimony that the use which the children made of the place was of that character, and was for such length of time, that it is reasonable to suppose the defendant company consented to it. In other words, you must find by inference, as I said, from the testimony in the case, that the defendant company did actually consent that these children might occupy that particular place as a playground.”
    At the close of the proofs, defendant, .assigning reasons, moved for a directed verdict in its favor. The court reserved the determination of legal questions, took the verdict of the jury, and later overruled the motion and entered judgment on the verdict. A separate opinion, which was filed, recited that at the close of the proofs defendant moved for a directed verdict in its favor, on the ground that there was no evidence in the case which would support a verdict in favor of the plaintiff, and that the question presented was reserved for decision. The judgment entry confirms this.
    Error is assigned upon the ruling. Plaintiff says the assignment is too general, and upon authority of Gold v. Railway, 169 Mich. 178 (134 N. W. 1118), cannot be considered, and declined to discuss it. Defendant argues two principal propositions, which are: First, that it violated no duty which it owed to plaintiff’s decedent; second, that the court erred in submitting to the jury the question whether defendant had knowledge, actual or constructive, that children were in the habit of playing upon the logs stored upon its premises.

       On origin of doctrine of attractive nuisance, generally, see note in 19 L. R. A. (N. S.) 1094; 47 L. R. A. (N. S.) 1101.
      Authorities discussing duty of property owner to trespassing child, see notes in 32 L. R. A. (N. S.) 559; 41 L. R. A. (N. 5. ) 274.

   Ostrander, J.

(after stating the facts). The ruling in Gold v. Railway, supra, is based upon Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433 (81 N. W. 265); Wolfe v. Stack, 153 Mich. 445 (116 N. W. 1010), and Canerdy v. Railway Co., 156 Mich. 211 (120 N. W. 582). See, also, Nelson v. Extract Co., 184 Mich. 111 (150 N. W. 317). The point that the assignment of error here is too general — not specific— is decided against appellee by the record. Clearly, it is specific.

It is admitted by plaintiff that his decedent was not invited upon the defendant’s premises. He disclaims any aid from the doctrine of the Turntable Cases, so called. Those cases, recognizing the rule that one whose entry is simply not opposed and prevented is not invited upon premises, found an invitation to children to enter premises in the attractive tiling erected or maintained thereon. Plaintiff’s contention rests upon three assumed facts: (1) That plaintiff’s decedent was a licensee; (2) a change made by the owner in premises which plaintiff’s decedent was licensed or permitted to use, creating a peril; (3) an injury growing out of the customary , use of the premises by the licensee and the peril actively created by the owner —a wilful act of injury.

I find no testimony tending to prove that children habitually played on the logs, or on the ground where they were deposited. There is testimony tending to prove that, two days before the occurrence here in question, some children were playing on the logs; but there is no testimony tending to prove that any officer or agent of defendant knew about it. This answers precisely a question which the court submitted to the jury, namely, whether the defendant “did actually consent that these children might occupy that particular place as a playground” — a question which the court made a vital one and should have answered favorably to defendant. There is no need, perhaps, to here comment upon the use by the court, in the part of the charge referred to, of the expressions “consented thereto” and “consented to the use of that ground,” expressions which seem to be confusing. The testimony supports no idea, or theory, of consent by the defendant to any use by the public of its premises. At the most, defendant did not exclude the public, and, while its knowledge that the public was customarily making a certain use of a part of its premises might raise a duty not by its acts to make such customary use perilous, such an idea of its duty depends not at all upon any idea of its consent to such use.

As, at the best, acquiescence in a use of the premises —license to use them — must depend upon some known customary use, if we assume that plaintiff’s decedent was a licensee, no testimony tends to prove a license to use the roadbed of defendant’s tracks for any purpose. There is no testimony tending to prove that the depositing of logs along the track was a new use of the property, and none tending tó prove that the depositing of the logs created a peril affecting any cus- - tomary use of any part of the premises by any of the public.

It follows that the court, upon the evidence, ought to have determined the case favorably to defendant, and that the judgment must be reversed, with costs to appellant.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    McNEAL v. DETROIT UNITED RAILWAY.
    1. ' Street Railways — Automobiles—Negligence Question for Jury.
    In an action by the owner of an automobile against a street railroad company for damages for personal injuries and for injury to his automobile caused by the automobile being struck in the rear as plaintiff was proceeding on the track but was slowing up to speak to a man on the sidewalk, held, that it was a jury question whether defendant was guilty of negligence and plaintiff of contributory negligence.
    2. Same — Instructions—Preponderance oe Evidence.
    The refusal of instructions on the preponderance of evidence on behalf of defendant in an action for personal injuries, is not error where the court instructs that before one can-recover under a claim of negligence, he must show and establish by proofs in the case the negligence of the person'charged, and that it is left for the jury to determine whether or not plaintiff has shown by the “fair preponderance” of evidence that in what he did at the time of the accident he exercised that degree of care and caution that an ordinarily prudent person would exercise under like circumstances.
    Error to Wayne; Mandell, J.
    Submitted April 20, 1917.
    (Docket No. 144.)
    Decided September 27, 1917.
    Case by John S. McNeal against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody ■ (Benjamin S. Pagel, of counsel), for appellant.

      Harold McIntyre, for appellee.
   Ostrander, J.

Plaintiff was driving his motor car 'on defendant’s track. One reason for doing so was that between the tracks and the curb the presence of snow affected ease and comfort of travel. Defendant’s street.car, following plaintiff’s car, struck it, injuring the car, and injuring the plaintiff. Plaintiff says defendant’s servant negligently drove the street car upon him. It is defendant’s claim that plaintiff’s negligence alone caused the injury, that no negligence on the part of defendant’s agent is made out, and therefore a verdict for defendant should have been directed. Error is also assigned upon the refusal of the court to give certain preferred instructions to the jury.

In any view, the issue is a narrow one. Defendant’s agent saw the plaintiff’s car, and claims to have directed the movement of the street car in conformity with the visible and probable movements of plaintiff’s car, at the same time clamoring with the gong for the right of way. Plaintiff, he says, without apparent reason or excuse, diminished the speed of his car, bringing it almost to a stop, when he was justified in assuming that the speed of the car would be increased. The street car was a few feet in the rear and could not be stopped, although proper efforts were made to stop it. Add to this the claim that plaintiff, if he did not know, ought to have known, that a.street car was behind'him, and defendant’s case is, in substance, presented.

It is well enough to more carefully detail plaintiff’s actions as he himself described them. He was calling upon customers. He called on one at the southwest corner of Pallister and Hamilton, driving his car to the curb on Hamilton and stopping the. motor. His call occupied 10 or 15 minutes of time. He looked for a car, about half a square, about 175 feet, and saw none, cranked his car, and drove it out obliquely upon the street car track — the west or south-bound track..

“Q. I wonder how you limited your vision to half a block?
“A. I may have glanced a mile and a half up that street.
“Q. You did not see any street car?
“A. I did not say that, but there was no street car in my immediate vicinity. * * *
“Q. How many miles an hour were you driving as you drove down the car track?
“A. Going very slowly.
“Q. How many miles an hour were you going from the time you got on the track until you commenced to slow up — what rate of speed were you going?
“A. Five or six miles an hour. * * * When I got to the corner of Bethune, the man I wanted to stop for was on the sidewalk between Pallister and Bethune, the same block that I was passing. I should say he was two-thirds of the way from Bethune street to Pallister. I passed him, and turned up into where the snow was out of Bethune in the section.
“Q. What part of Bethune were you on when you were hit? In the middle or the north or south side of it?
“A. A little bit to the south of the center.
“Q. So your automobile was still running at the time it"was hit?
“A. Yes, sir.
“Q. Still moving forward?
“A. Yes, sir.
“Q. What rate of speed — how many miles per hour was it going when it was struck?
“A. Very slowly.
“Q. Three or four miles an hour?
“A. I should approximate about that.
“Q. Were you struck near the center of Bethune?
“A. Just below the center.
“Q. Where was it, with reference to Bethune avenue, that you attempted to slow your car down first?
“A. Right at Bethune avenue.
“Q. The north side of Bethune, or the center of the street?
“A. About the center of the street.
“Q. You had only traveled a distance of five or six or seven feet from the time you commenced to slow down until you were struck?
“A. A little'more than that. To make it slow you shut off the gas. I did not leave my engine running. It would not stop it. I would not put so much effort on; that is all. It was a two-speed car; there was only two speeds to it.
“Q. How many feet did you run from the time you shut off the gas until you were struck? Was it five or six or more?
“A. Well, my gas was not shut off entirely.
“Q. From the time you did whatever you did — I do not care what it was — from the time you started to stop until you were struck, did you run five or six feet, or more?
“A. I would approximate it eight or ten feet.
“Q. You were running during' that time, in the process of slowing up, at the rate of three or four miles an hour?
“A. I had not got under headway from where I started up on Pallister street. I think I must have been running seven; it may have been five on the street. When I started to stop, I was going four or five miles. When I got struck, I was running at that rate of speed. My car went 17 feet from the point where it was struck until it came to a standstill; that is, including the length of my own car. My automobile, when it came to a standstill, was off the track entirely. The street"car had not entirely passed it; the head or front of the street car was ahead of my automobile; the back of the automobile behind it.
“Q. Your automobile would be about midway between the front end and the back end of the street car when you came to a standstill?
“A. It was nearer the front end.
“Q. The motorman said the rail was slippery?
“A. Icy.
“Q. And the brakes would not hold?
“A. That is just what he said. There was no other reason for me to stop at the comer of Bethune, except to pick up that man. If he had not been there, I would have gone down the track.
“Q. At an increased rate of speed?
“A. Undoubtedly.”

This testimony was given upon his cross-examination. He did not look for a car after he entered his own car; did not hear the approach of the car, nor any warning signal of its approach. Somewhat ■ similar situations have before this arisen. Ablard v. Railway, 139 Mich. 248 (102 N. W. 741); Clark v. Traction Co., 167 Mich. 694 (133 N. W. 927) ; King v. Railway Co., 176 Mich. 645 (143 N. W. 36); Wingert v. Railway, 177 Mich. 199 (142 N. W. 1063) ; Hibbler v. Railway, 172 Mich. 368 (137 N. W. 719); Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139); Rouse v. Railway, 128 Mich. 149 (87 N. W. 68); Westphal v. Railway Co., 134 Mich. 239 (76 N. W. 19). There can be, and in fact is, no particular dispute about the relative rights and duties of the parties. Plaintiff alleges the failure of defendant to give him timely notice of the approach of the street car, failed to propel its car at a reasonable and proper rate of speed, and failure to avoid collision with vehicles traveling upon the highway. The question is whether it can be said as matter of law that the failure of either to perform admitted duty, unaffected by a like failure by the other, caused the trouble. There is no' testimony tending to prove the rate of the speed of the street car, except that of the motorman, who says it moved behind plaintiff's car from Pallister to Bethune, before it became necessary to apply the brakes and stop the car, at a rate of four pr five miles an hour. Inferentially, plaintiff, in estimating the speed at which his car was moving, was also estimating the speed of the street car. The street car did overtake and injure plaintiff’s car. Tracks were black, wet, and slippery. Whether plaintiff heard the. warnings given, the motorman could not certainly know. He drove the street car at a distance of from ten to fifteen feet behind plain-, tiff’s car. . As conditions were, it could not have been stopped in that, distance. I am impressed that the case was for a jury, and that it was not error.to refuse a .directed verdict for defendant.

The charge of the court was fair. Counsel for appellant, having framed requests in which the term “preponderance of evidence” is employed, finds fault because they were not given. The court advised the jury that, before one can recover under a claim of negligence, he must show and establish by the proofs in the case the negligence of the person charged. The jury was instructed, also, that it was left to it to determine :

“Whether or not the plaintiff has shown by a fair preponderance of the proofs that in and about what he did on that occasion he did exercise that degree of care and caution that an ordinarily prudent person would under like circumstances.”

No reversible error is made to appear, and the judgment is therefore affirmed.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    BENORE v. BENORE.
    1. Divorce — Extreme Cruelty — Evidence—Sufficiency.
    On a bill for divorce by a husband against his wife, evidence held, sufficient to show extreme cruelty on the part of the wife.
    2. Same — Fraud—Evidence—Sufficiency.
    Evidence held, insufficient to show such fraud upon the part of the wife in procuring a deed to all of plaintiff’s property as would support a decree canceling and setting aside the conveyance, and to ¿iot justify a decree for di-. vorce, where the bill for divorce would not have been filed, but for the purpose of canceling the conveyance.

      Appeal from Monroe; Gilday, J.
    Submitted April 5, 1917.
    (Docket No. 46.)
    Decided September 27, 1917.
    Bill by George N. Benore against Annie Benore for a divorce and to set aside a deed and bill of sale. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      John O. Zabel and J. N. Sampson, for plaintiff.

      Clayton C. Golden {Oliver J. Golden, of counsel), for defendant.
   Ostrander, J.

Several incidents, occasions and circumstances, are referred to in the bill of complaint with considerable detail and charged as examples of extreme cruelty of which defendant has been guilty. When the testimony introduced to support these charges is analyzed, they seem trivial and unworthy of the serious attention of the court. The only charge which seems to merit serious attention is the one based upon the transfer by the plaintiff to his wife of all of his very considerable property and her treatment of him thereafter. With respect to this charge the testimony overlaps, outruns, the complaint, but does not sustain it in the very important allegation that the defendant by her conduct forced, or procured, the said transfer of property, and that plaintiff was not entirely conscious of the act he was performing when he conveyed his effects to his wife. It is not proved that by oppression, by nagging, she had advantage of a man so mentally and physically unbalanced that he did not comprehend what he did. The truth appears to be that plaintiff became anxious about his financial situation, and transferred his property to his wife, with the purpose to avoid one or more of his obligations, and perhaps to gain time as to others. The situation was one about which they were mutually concerned. It is true that he testifies to conduct on her part calculated to destroy his peace of mind, but in the face of other testimony his claims appear extravagant, and evidence of coercion of the husband by the wife is not found.

He did, however, transfer to her all of his property. They had been married 30 years, nine children they had had, all living, the youngest some 14 years of age. They had made their fortune on the farm, and the principal part of their property was land. The testimony is convincing, so much so that no real issue of fact is made upon the point, that having become owner, in form, of all of the family estate, defendant thereafter treated her husband much as she would treat any stranger. Stripped of income and means of support, except by his own labor, she made it plain that it was by his own labor, and labor for others, that he must survive, if he survived at all. Before his children and the neighbors, this man, who had worked hard to acquire a competence, had been rated a man of property and consequence in the community, who had turned $30,000 worth of property over to his wife, was denied all control of the property, refused money except in little sums for which he had to ask, and finally driven out of his home to seek and perform menial services for others for a livelihood. Giving to defendant the credit she deserves, and treating the property he owned as community property, which she, equally with her husband, helped to accumulate, and assuming, too, that his transfer of the property to her was voluntary, the very relation of husband and wife required that some consideration be given her husband in the premises. She testified to facts which, if true, entitled her to a divorce, if she cared to ask for one. She did not ask for one. She maintained in form, but not in fact, the marital relation. Out of the effort made by both, in which both were deeply concerned, to retain a competence, to save their fortune, she found herself owner of all of his property. She used the situation to humiliate her husband and outrage his feelings. He charges that, after obtaining his signature “to said deed and bill of sale,” she took possession of the property and control of the same and continued her oppression and nagging—

“and finally ordered him to leave and get a job and take care of himself; she collected all of the income and kept charge of the same, and even refused to furnish your orator with money for the necessaries of life, and this condition became so oppressive and so overpowered your orator that he finally left and sought work and since that time has been obliged to do manual labor for his support.”

This charge, in view of the relations of the parties, is a charge of extreme cruelty, and, in the main, is amply sustained by evidence. The learned trial judge who entered a decree dismissing the bill was of opinion that, if the trouble in relation to the land had not arisen, plaintiff would not have asked for a divorce from his wife, and of the .transfer of property he said:

“Now, with that testimony, I can’t see how a court could possibly say that, or set aside a solemn deed. If under such testimony the deed is to be set aside, why, the title to land would be rather uncertain. I am sorry that he did it. I am sorry he didn’t retain something for himself.”

I think it is true that plaintiff’s treatment in respect to the property accounted for the filing of the bill in this cause. There is no evidence which would support a decree canceling and setting aside the transfer of property to the wife. Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941) ; Judd v. Judd, 192 Mich. 198 (158 N. W. 948; 160 N. W. 548).

The conduct of defendant, after securing the property, has led to a careful examination of the circumstances attending the transfer thereof, without discovering, what indeed is not charged, such fraud on the part of the wife in securing such transfer as to bring the case within the principle of Judd v. Judd, supra.

Under the circumstances, an affirmance of the decree below is ordered, but without costs to appellee.

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


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    SIBERT v. DETROIT UNITED RAILWAY.
    1. Witnesses — Credibility—Question for Jury.
    The credibility of witnesses is a question' for the jury.
    2. Evidence — Admissibility.
    In an action by a passenger against a street railway company to recover for personal injuries, evidence as to whether a witness for defendant in his search of the reports on file found any report of the accident is inadmissible.
    3. Trial — Remarks by Counsel — Evidence—Admissibility.
    In an action by a passenger against a street railroad company for personal injuries, it" is improper for counsel for the defendant to tell the jury that no report was made of any such accident to defendant by the crew, as evidence to such effect would be inadmissible if offered.
    4. Same — Conduct oe Court — Expert Witnesses.
    Where the cross-examination of a medical witness for plaintiff, in an action against a street railway company for personal injuries was, in some respects, of very doubtful propriety, the trial court committed error in expressing impatience at objections to the cross-examination of the witness and informing the jury that the mere fact that the physician possessed special knowledge did not warrant giving credence to his testimony, and emphasizing the right of cross-examination and credibility of witnesses.
    5. Street Railways — Personal Injuries — Negligence—Instructions.
    In an action by a prospective passenger against a street railway company for personal injuries alleged to be due to her hold upon the car and her clothing catching in the door of a folding step car, upon its being closed as she attempted to board the car, and her being dragged some distance, the contributory negligence of the plaintiff was involved warranting an instruction on the subject, where plaintiff testified that the conductor shut the door in her face, while she had one foot on the step, and rang the bell for the car to move, and then described what immediately occurred, involving her position, her actions, as well as the movement of the car, and the result.

    Error to Wayne; Brown, J,, presiding.
    Submitted April 11, 1917.
    (Docket No. 147.)
    Decided September 27, 1917.
    Case by Catherine Sibert against the Detroit United Railway for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Clarence P. Milligan, for appellant.

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

       For authorities discussing the question of duty to, and negligence of, passenger who attempts to board car when door or gate is closed, see note in 7 L. R. A. (N. S.) 603.
      On the question of negligence of passenger in getting on or off a moving street car, see notes in 38 L. R. A. 786; 30 L. R. A. (N. S.) 270.

   Ostrander, J.

Plaintiff claims, and offered testimony to support the claim, that, accompanied by her daughter, she attempted to board one of defendant’s cars, as a passenger, had placed one foot upon the step of a folding step car, when the doors were closed, the step folded, and by reason of some of her clothing catching in the door, or on the car, and her hold upon the car, she was dragged a distance, thrown to the pavement, and injured. No one precisely disputed her testimony. The defense, which was good enough to secure a verdict of the jury for defendant, may be described as based: (1) Upon the improbability of the story told by plaintiff and her daughter; (2) lack of corroborating testimony; (3) the conduct of the counsel for defendant; and (4) the aid unconsciously given the defendant by the court.

The improbability of the story told by plaintiff and her daughter, and the lack of corroborating testimony, were, of course, matters for the jury to consider. It is not, I think, impossible that plaintiff may have been injured in the way described by her and her daughter. But counsel for the defendant, by his own statements and otherwise, sought to and did acquaint the jury with the fact that no report of any such accident was made to defendant by the crew of the car. In his opening statement to the jury, and by other statements made in the presence of the jury, over repeated objections, he placed before the jury, not by the testimony of any witness, but by assertion, the fact that no report of the alleged injury had been made to the defendant. In Winnett v. Railway, 171 Mich. 629 (137 N. W. 539, Am. & Eng. Ann. Cas. 1914B, 1254), it was held that the books of this defendant are not admissible in evidence to prove that no accident was reported and no record of any appeared for the purpose of proving that an injury was not received as plaintiff claimed. This rule was not only disregarded in the repeated assertions made by counsel for defendant, but he asked a witness the question:

“Did you in your search of the report which you keep on file find any report of any accident of car No. 915 on the crosstown line at Forest and Hastings, or any other place?”

Upon objection being made, counsel stated:

“If counsel will object to it, I will not insist.”

The plaintiff produced as a witness, a physician, who testified that he attended her on the day in question, and thereafter, and found evidence of certain injuries to her person. Connected with the testimony of plaintiff, his testimony tended to prove that on the occasion in question plaintiff did suffer considerable injury. This witness was. not offered as. an expert, but as one having knowledge of material facts. Upon his cross-examination, questions were asked him which involved the insinuation, if not the charge, that he and the attorney for plaintiff were engaged, one as lawyer and one as physician, in bringing and in trying cases like the one at bar. Some of his cross-examination was of very doubtful propriety. It tendered no distinct issue and placed the witness at disadvantage. For some reason the trial judge apparently became impatient of objections made by counsel for plaintiff to questions asked this witness on the cross-examination, and, stopping counsel, he delivered a discourse which, in my opinion, was calculated in the time it was delivered, and in the matter of it, to prejudice the plaintiff. The point can be understood by repeating here the statement made by the court:

“Wait a minute! Simply because he asks questions is no reason why you should interpose an objection. That is more an interruption. This is a proper examination. If this witness has had relations with the attorney here in any other case, and if the testimony given in this case bears upon his testimony and extent of his recollection, it is proper, perfectly proper that this jury should know it, and take it into consideration —his testimony. This witness comes here as a doctor, as an expert, and as an expert his testimony is weighed just like the jury weighs the testimony of the most humble witness, and there is no truth or credence to be given to his testimony simply and solely because he comes as a doctor or professional man. That of itself is not considered by you in weighing the testimony. Just because a man says, T am a doctor/ that in itself ought not to overawe you. Use your common sense and say, Ts that fellow telling the truth?’ Just the same as if he said he was shoveling coal into a furnace. You say, ‘Was he telling the truth/ and you consider his testimony in the same manner as the testimony of any other witness. If he has falsified; if he shows he has interest in the case; is prejudiced or biased in his testimony — those things may be found in the testimony of witnesses, and if you find them you have a right to reject the witness’ testimony, and counsel has a right to show you, not only a right, but it is his duty to do it in any case. When a witness comes into court, counsel, in accordance with the rules of evidence if they are doing their duty by their client on either side, are bound to show you where the testimony is that is reliable, and where the testimony is, if any, that is not reliable as you view it, it is for you to say if you find anything in it at all that is entitled to any consideration. I want to say that now so you will understand. You are taking testimony, and in no case just because a man claims to have special knowl-. edge, does his claim alone add truth. Special knowledge as a matter of common knowledge may add truth; it may aid in getting at the truth. I am saying that quite emphatically because I want to be understood. I want you to understand the situation in this and all cases where you are jurymen. That is the rule in determining the evidence' and its truthfulness, evidence that weighs in your minds, and it is the evidence that weighs and rings with truthfulness that carries conviction, and the other kind of evidence, if any, does not carry conviction. The evidence must be weighed by you to determine the value.”

I am impressed, for the reasons stated, that the plaintiff did not have a fair trial, and that a new trial ought to be awarded.

It is insisted by plaintiff that the question of her contributory negligence was not involved, for which reason it was error for the court to instruct the jury upon that subject. Upon the whole case, and especially upon the testimony for the plaintiff, the question was involved. A person offering herself as a passenger upon a street car is not usually relieved from all duties in the premises. Plaintiff says the conductor shut the door of the car in her face, while she had one foot upon the step, and rang the bell for the car to move. She describes what then immediately occurred, involving her position, her actions, as well as the movement of the car, and the result. It cannot be said, as matter of law, that the duty to save herself injury did not at once arise, a duty measured by conditions as they appeared to her to be.

The judgment is reversed, and a new trial ordered.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Fellows, J.

text:
    ALLEN v. HOOK.
    1. Bills and Notes — Pledge of Stock — Evidence.
    In an action on a note, as collateral to which, a certificate for shares of stock was indorsed in blank and delivered to plaintiff at the time of making the loan, evidence held, insufficient to show that there was any understanding at the time the note was given that if it was not paid the plaintiff would sell the stock or would hold same as payment.
    2. Same — Pledge of Stock — Collateral Security.
    One who holds corporate stock as collateral security for a note has the right to retain it until the note is paid, and he is under no obligation to sell the collateral before bringing suit, nor can he be charged with negligence in failing to do so, nor can he be charged with the loss, even though the stock depreciates in value after maturity.
    3. Same — Corporate Stock — Conversion.
    There is no conversion of a stock certificate which is indorsed in blank at the time it is, delivered as collateral security for a note to the pledgee where the latter does not cause it to be transferred to himself upon the books of the company, but still has possession of it at the time of trial of the action on the note and at no time refuses to deliver it upon tender of payment 0f the note.
    Error to Wayne; Van Zile, J.
    Submitted April 4, 1917.
    (Docket No. 37.)
    Decided September 27, 1917.
    Assumpsit in justice’s court by William S. Allen against Frank E. Hook on a promissory note. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      E. A. Frink, for appellant.

      Selling & Brand, for appellee.
   Fellows, J.

Plaintiff sued defendant upon a promissory note for $150, dated February 13, 1909, due in 60 days thereafter. As collateral thereto a certificate for 150 shares of the stock of the International Machine Company was indorsed in blank and delivered to plaintiff at the time the money was loaned. Under the general issue defendant gave the following notice:

(1) That it was the understanding between the parties at the time of the giving of the note and security that if the note was not paid plaintiff would sell the stock or would hold the same as and for payment of the note.
(2) That defendant was led to believe, because of the silence of the plaintiff, that the note had been fully paid by reason of the plaintiff continuing to hold the stock.
(3) That plaintiff had fully intended to hold and convert the stock, and that he would have done so had the enterprise been successful, and that his failure to realize on the collateral was negligence, and that defendant was led to believe that plaintiff had either sold the stock or had converted the stock to his own use.

At the conclusion of the proofs the trial court directed a verdict for the plaintiff for. the face of the note and the accrued interest, amounting in all to $216. The question to be determined is whether the trial court was in error in so doing.

The first defense stated by defendant in his plea may be disposed of by saying that it was not proven. There was no testimony showing or tending to show that there was any understanding at the time the note was given that if it was not paid plaintiff would sell the stock or would hold the same as payment. The nearest approach to it was testimony of defendant that some time after the maturity of the note he met plaintiff on the street and requested him to take the stock as payment, and later on the same day wrote him the following letter:

“February 14, 1910.
“Mr. W. S. Allen,
“City.
“Dear Will: Confirming my talk with you this morning if you wish to cancel my $150 note and hold the stock you have in the above company it will be satisfactory; but I would like to have you decide definitely at once, as I think I can arrange to place the stock elsewhere.”

Defendant admits that plaintiff made no reply to his request that he take the stock in payment of the note, and he states that no reply was received to his letter. Defendant rather seeks to give the impression that at the time he wrote the letter the stock had some value, but that later it depreciated and became worthless, and that had he not understood that plaintiff was to retain it in payment of the note he would have disposed of it to others. Plaintiff was the holder of the collateral, and as such he had a right to retain it until the note was paid. He was under no obligation to sell the collateral before bringing suit, nor can he be charged with negligence in failing to do so. Rice v. Benedict, 19 Mich. 132; Smith v. Nixon, 145 Mich. 597 (108 N. W. 971). And the mere fact that the stock depreciated in value after maturity would not charge plaintiff with the loss. Richardson v. Insurance Co., 27 Grat. (68 Va.) 749. Defendant was at liberty at all times to redeem the collateral by making payment of the note; this he concedes he did not do, and the reason he did not do it was because he did not have the funds.

An attempt is made under the third paragraph of defendant’s plea to claim that plaintiff converted the stock to his own use. Testimony of this fact is wholly wanting in the record. The record shows that the stock certificate was indorsed in blank at the time it was delivered to plaintiff. The plaintiff never caused it to be transferred to himself upon the books of the company. It stood in the name of the defendant during all this time. He neither sold it nor refused to deliver it upon tender of payment of the note. There was. no proof that plaintiff held the stock in any other or different manner on the day he began suit than he did on the day it was delivered to him. He still had possession of it on the day of trial. Under these circumstances he could not be charged with conversion. Feige v. Burt, 118 Mich. 243 (77 N. W. 928, 74 Am. St. Rep. 390).

The testimony raised no issues of fact, and the trial court was right in disposing of it himself. The judgment is affirmed.

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