text:
    MERRILL v. LEISENRING.
    1. Evidence — Admissions — Adultery — Alienation of Affections — Husband and Wife — Testimony.
    In an action for alienating the affections of plaintiff’s wife on two counts, one of which charged adultery, it was prejudicial error to exclude evidence of admissions made by plaintiff while on the stand in a previous trial, and offered in behalf of defendant, tending to show the relation and state of feeling existing between him and his wife prior to the alleged injury, such testimony being excluded because plaintiff could not give evidence as a witness.

      2. Same.
    Admissions made voluntarily by a party while testifying as a witness are evidence for the adverse party, and the ordinary motives of conduct are sufficient warrant for its belief, until the contrary is shown.
    3. Same — Mode of Proof — Witnesses.
    The official stenographer, or any one else who heard plaintiff testify on the former trial, would be competent to testify to what he said; and the stenographer could use his minutes to refresh his recollection.
    4. Same — Rebuttal.
    All plaintiff’s testimony upon the subject would be admissible as explanatory matter.
    5. Amendment — Declaration — Alienating Affections of Wife.
    On the third trial of an action for alienating the affections of plaintiff’s wife, the court properly exercised its discretion in permitting plaintiff to amend his declaration by adding a count charging adultery to a count charging that defendant alienated his wife’s affections by other means, although on the second trial the court had refused to permit such amendment, and although on the first trial plaintiff had abandoned the first count.
    6. Evidence — Opinions—Conclusion.
    The court should have sustained defendant’s objection to a question whether or not plaintiff was devoted to his family, as the conclusion of the witness would amount to an opinion on a matter of ordinary observation upon which the jury could have judged as well as the witness when she had stated the facts.
    7. Same.
    And the court correctly permitted plaintiff to show conduct of defendant and plaintiff’s wife after the commencement of the cause, having a tendency to show friendly but not improper relations.
    Error to Van Burén; Des Voignes, J.
    Submitted April 14, 1911.
    (Docket No. 37.)

    Decided June 2, 1911.
    Case by James A. Merrill against David Leisenring for the alienation of the affections of plaintiff’s wife. Judgment for plaintiff. Defendant brings error.
    Reversed.

      W. W. Holmes and Harry C. Howard, for appellant.

      H. T. Cook and Thomas J. Cavanaugh, for appellee.
   Stone, J.

Th'is case is here for the third time. It is first reported in 149 Mich. 423 (112 N. W. 1072). It is nest reported in 157 Mich. 133 (121 N. W. 820). A reading of the former opinions will aid in understanding the questions involved.

The plaintiff sued defendant to recover damages for alienation of the affections of his wife. Originally, the declaration consisted of two counts: The first count charged adultery; the second count charged alienation of affections by means other than adultery. At the first trial the following statement was made by plaintiff’s counsel:

‘ ‘ Before the jury is called, if your honor please, I desire to state to the court at this time that we wish to withdraw the first count of our declaration and elect to proceed on the second count, and the second count alone; the first count being a count in which adultery is charged, and the second one alienation by enticing away is charged.
“Defendant's Counsel: You abandon the adultery charge, then ?
Plaintiff's Counsel: Yes.”

Whereupon the trial proceeded. When the case was first in this court, Justice McAlvay said:

“ The first count of the declaration in this case was evidently abandoned for the sole purpose of qualifying the plaintiff as a witness.”

Upon the first trial the plaintiff recovered a verdict. The case was reversed and sent back for a new trial, because the evidence tended to prove adultery, which was inadmissible under the declaration. After the first opinion was handed down, plaintiff moved to amend the declaration by restoring or adding a count charging adultery. This motion was denied by the circuit judge, without indicating why he denied it. The case was tried a second time upon the same count as originally. At the close of the testimony, defendant moved for a verdict in his favor. The case was dismissed. Later a motion was made to vacate the order dismissing the case for various reasons, one of which was that the court erred in refusing the motion of plaintiff to amend his declaration. The motion to vacate the order dismissing the case was denied, and plaintiff alleged error, and appealed to this court.

Referring to the matter of the proposed amendment, after quoting our statute on amendments (section 10268, 3 Comp. Laws), Justice Moore, speaking for the majority of the court in the second opinion, said:

“It is apparent that, under this statute, counsel were not entitled to the amendment as of course. When the application was made, counsel recognized by making it that, as to that feature of the case, plaintiff was out of court. The application was not accompanied by any showing that plaintiff or counsel had labored under any mistake of fact, or that any new facts had been discovered since the plaintiff in open court abandoned the count. There is nothing in what was said by the judge, in refusing to vacate the order dismissing the case, to indicate that, had he been of the opinion he had the discretion to permit an amendment, he would have done so. On the contrary, it appears clearly that he was of the opinion that the plaintiff had deliberately completely abandoned the first count, and had subjected the defendant to the expense of a trial with the count out of the case, and that by his conduct he should be estopped from adding a count which was in effect the same as the one he had deliberately abandoned. We do not think it was reversible error for the judge to refuse the amendment of the declaration, nor to refuse a new trial because he had refused the amendment.”

Justice Hooker, in a dissenting opinion concurred in by Justice Ostrander, said upon this subject:

“We are of opinion that it was within the discretion of the court to grant the motion to amend, and, for that matter, that it was the right of the plaintiff to go to trial upon the declaration as originally filed. It may be said that his statement that he abandoned one count on commencing the first trial was equivalent to a consent order that it be stricken from the declaration, but in the absence of such an order, and there being nothing amounting to an estoppel, we are of the opinion that it amounted to no more than an election for that trial, and that after reversal the cause was at issue on the same declaration. The counts are not inconsistent within the rule of election of remedies. Counsel did not make the latter claim or offer to so try the case. He did except to the refusal to allow an amendment, but this was a discretionary matter with the judge; and, as no reason for denying the motion to amend was given, we cannot say that there was an error of law in such refusal, unless what occurred on the motion filed later shall justify it, which we do not discuss in this connection, but will later. * * * As already indicated, it was within the power of the judge to permit the amendment. Whether he should have done so we cannot say, upon this record; but, had he given the above reason at the time of the denial, to wit, that he could not exercise discretion, we should feel constrained to reverse the case on the original exception. In the absence of a full discussion of the subject, we hesitate to decide so important a matter of practice, especially as we cannot be certain that the amendment should have been allowed. We, therefore, suggest that the plaintiff may yet move in the trial court to file an amended declaration, if he shall care to do so, when we have no doubt that the court will recognize his authority, and will pass upon the merits of the question.”

The case was again reversed on the ground that the trial court should not have dismissed the case, as there was evidence in support of the declaration which should have been submitted to the jury.

Before the third trial in the case, the plaintiff made a. formal motion to amend his declaration by adding a count charging adultery. This motion was based upon the files and records in the case, and upon the testimony developed during the first trial of the case. Upon granting the motion, the circuit judge gave the following reasons therefor:

“This case has been heard twice in this court, and is now returned here for a third hearing. On the second trial I denied the plaintiff’s motion to amend his declaration, wherein he asked the reinstatement of the first count of the declaration, because:
“First. Plaintiff deliberately abandoned this count alleging adultery on the first trial. It could not be regarded as an election merely, for, as counsel stated, it was abandoned.
“Second. Abandonment in the English language, as we understand, is only another term for relinquishment. It seems to me that the record discloses an express abandonment or relinquishment, as the court says, plaintiff was effectually estopped from invoking aid of the court in having such count reinstated. In this reason there appears to have been an error, as the court of review finds that it remains discretionary with the court to permit such an amendment, notwithstanding that which was done by the plaintiff on the former trial.
Third. Defendant makes the point now that even though it was discretionary on the second trial to permit amendment, the court having passed upon the question, the ruling must be res adjudicata. It is a sufficient answer to quote the language of Justice Hooker :
“ ‘ We, therefore, suggest that the plaintiff may yet move in the trial court to file an amended declaration, if he shall care to do so, when we have no doubt that the court will recognize his authority and will pass upon the merits of the question.’ [157 Mich. 139],
“For this reason given, the plaintiff is given leave to file an amended declaration.”

To this ruling defendant duly excepted. The declaration was amended, and the case was tried a third time upon both counts. Upon the last trial, the plaintiff recovered, and the defendant brings the case here upon writ of error. There are 38 assignments of error. They are discussed by defendant under the following heads:

“(1) Did the court err in refusing to permit the defendant to show the admissions made by the plaintiff upon the first two trials ?
“(2) Did the court err in permitting the plaintiff to amend his declaration after the opinion of the Supreme Court in 157 Mich. 133 (121 N. W. 820) ?
“(3) Did the court err in ruling upon the admission or rejection of evidence ?
“(4) Errors in the charge of the court and in refusals to charge.”

We will consider these questions in the order above indicated.

Upon the second trial of the case, the plaintiff testified in his owi behalf. In the course of his testimony he used the following language:

‘ ‘ My wife and I have not cohabited as man and wife since January, 1902, or around about January, 1902. I moved on the Leisenring farm in November, 1901.”

In denying the motion to set aside the order dismissing the case, and in speaking of the second trial, the circuit judge said:

“ The evidence showed that he and his wife had ceased to cohabit as man and wife in January, after moving on defendant’s farm in November before, and no evidence of any kind was offered to prove that between November and January there was any acquaintance between plaintiff’s wife and defendant.”

The plaintiff also testified upon the second trial to certain matters relating to the conduct of his wife with one Delbert Geesey, and relative to the plaintiff’s relations with one Gertie Welch, who was related to his wife. The defendant sought to show the statements made by the plaintiff upon the former trial relating to the above subjects, claiming that they were admissions against the interest of the plaintiff, and that it was competent for the defendant to show what the plaintiff had testified to, as above indicated. This was objected to by plaintiff’s counsel, and a number of pages of the record are filled with a colloquy between court and counsel upon the subject, re. suiting, however, in the following ruling made by the court:

“ If the court in this instance should permit any witness to testify to what the plaintiff said upon the former trial upon the witness stand, I have no doubt in my mind but what the plaintiff himself would be entitled to take the witness stand and make any explanation; and, when you have done that, you have gotten into the record the very things that the statute prohibits. And I am very much of the opinion, gentlemen, that, so far as that question is concerned, the court should rule as I have indicated, and likewise upon this question that rule applies: that is, that whatever the husband may have said to others in relation to that matter, and as to what he desired to have done, would indirectly bring before the jury and into the record in this case the very things that, under the statute, are prohibited. And for that reason I sustain the objection. * * * If it was outside of that record, and outside of what occurred there, I think the matter may be gone into, but so far as the record is concerned that was tried, and this is one of my reasons, Mr. Howard, for making that ruling: That that case was tried upon a certain theory. Under the theory in that ease, it was proper for the husband to take the witness stand and testify to certain things. Now, under the count which has been reinstated in this case, he is prohibited perhaps. However that may be, the theory upon which that case was tried and this are different, and it seems to me that, under the statute, this case should be tried with reference to the pleadings as they now stand— in other words, a trial de novo. Any admissions that the plaintiff may have made outside of the record in this case on trial, of course, you would be entitled to show, because you would have been entitled to show that in the first instance, had it occurred in that event.”

Defendant’s counsel:

“Well, we would like the benefit of an exception to that portion of the court’s ruling that prevents us showing admissions that he may have made in court, or elsewhere, although the court says that elsewhere we may show, but I mean we want an exception to that portion of the court’s ruling that prevents our showing admissions he made while upon the stand.”

We think that this ruling was erroneous. The testimony offered was material, at least upon the question of damages, and should have been received. It is no answer to the offer of this evidence to say that the plaintiff cannot testify as a witness.

For years in this State, before parties were permitted to testify in their own behalf, it was as competent as it is now to show admissions made by the parties to the record whether those admissions were made while testifying as a witness, or were made upon the streets. Such statements are evidence for the adverse party. Where a man voluntarily admits a fact against his interest, the ordinary motives of human conduct are sufficient warrants for its belief. And it is only fair to presume until the contrary is shown that it is correct. If the testimony is of such a character as to constitute an admission of the party, it is not necessary to lay the foundation for its reception, or even to cross-examine the party on the subject. In this case the plaintiff had testified in his own behalf. It is an elementary doctrine that testimony given by a party containing material admissions is always competent against him in any action, whether the same may be given orally or in written answers and interrogatories propounded. 1 Ene. Ev. p. 481. This court has held that the affidavit of a party to a suit, and that of his solicitor, made at his request and filed in the cause, may be used as an admission against the party in another suit, and that one of the parties to an action may avail himself of the admissions made by the other, when sworn as a witness in his own behalf, without being bound by other portions of his testimony. Of course, it would be competent for the plaintiff to prove by any competent evidence either that no such statement was made, or that it was so qualified at the time as to change its meaning. The admissions of a party, if material to the issue, are always competent.

The official stenographer, or any one else who heard the plaintiff testify upon the former trial, would be competent to testify to what he said; and the stenographer may use his minutes taken on the former trial, for the purpose of refreshing his recollection as to what the plaintiff testified to; and all that was testified to by the plaintiff upon the subject would be competent as explanatory matter. Toohey v. Plummer, 69 Mich. 345-350 (37 N. W. 297); Barker v. Hebbard, 81 Mich. 267 (45 N. W. 964). We content ourselves upon this general subject by citing the following cases in this court: Mears v. Cornwall, 73 Mich. 78-84 (40 N. W. 931 ); Lilley v. Insurance Co., 92 Mich. 153-158 (52 N. W. 631); Reiser v. Portere, 106 Mich. 102-104 (63 N. W. 1041); Liesemer v. Burg, 106 Mich. 124 (63 N. W. 999); Cornelissen v. Ort, 132 Mich. 294 (93 N. W. 617); Detroit, etc., Power Co. v. Applebaum, 132 Mich. 555 (94 N. W. 12); Bennett v. Wallace, 165 Mich. 66 (130 N. W. 188); Jones on Evidence, § 237, and cases cited. We are constrained to say that the ruling of the circuit judge upon this subject was reversible error.

This brings us to the question: Did the court err in permitting the plaintiff to amend his declaration ? It will be observed that the motion to amend before the last trial was not of course, but upon showing. The motion was supported by the records and files, and the testimony developed during the first trial of the case. It will be remembered that the case was first reversed upon the ground that the evidence tended to show adultery. The record shows that this motion was made before the trial judge who had tried the case before, and must have been more or less familiar with the evidence.

When the'case was last here, Justice Moore, speaking for the majority of the court, said:

“ We do not think it was reversible error for the judge to refuse the amendment of the declaration.”

This was very far from saying that it would have been error to allow the amendment. We are of opinion that the trial judge, in the exercise of his judgment and discretion, had the right to permit the amendment to be made, and that in so doing, under our broad statute, and under the circumstances in the case, as they appeared to him, there was no abuse of discretion, and in his ruling there was no error.

This brings us to the question: Did the court err in ruling upon the admission or rejection of evidence ? As the ease must go back for a new trial, we will call attention to such alleged errors in the admission of testimony as may aid in the retrial of the case.

The witness Betty Leach was interrogated as to the conduct of the plaintiff in his family. After testifying that she had seen the husband, wife, and children together frequently, she was asked by plaintiff’s counsel the following question:

“You may state whether or not he was devoted to his wife and children.”

This question was objected to for the reason that it called for a conclusion. The court permitted the answer and an exception was taken. We think that, when the witness had testified to the facts, the examination should have ceased there. The question objected to related to a matter of opinion and common observation, upon which the jury could have judged as well as the witness, when she had stated the facts. Marcott v. Railroad Co., 49 Mich. 99 (13 N. W. 374); Zube v. Weber, 67 Mich. 52 (34 N. W. 264); Atherton v. Village of Bancroft, 114 Mich. 241 (72 N. W. 208); Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986); Comstock v. Township of Georgetown, 137 Mich. 541 (100 N. W. 788). Were this the only error in the record, we should not deem it sufficiently important to warrant a reversal of the case.

Another error complained of was in the ruling of the court allowing admission of testimony of conduct of the defendant and plaintiff’s wife after the date of commencement of suit. The suit was commenced on December 21, 1904, and plaintiff was permitted, over objection and exception, to show conduct of the parties, not necessarily tending to show adultery, as late as the month of September, 1905. We are of opinion that this evidence was admissible under the holding of this court in Matthews v. Journal Co., 123 Mich. 608 (82 N. W. 243). That was an action for libel in charging that plaintiff, a married woman, and one A. on a certain day were found in a haymow in a compromising position, where the evidence tended to show that on the day named the parties were discovered in the barn under circumstances calculated to arouse suspicion, and that there had been previous acts of intimacy, and evidence that three months later plaintiff and A. were seen together at another place, embracing and kissing each other, was held admissible. We call particular attention to the quotation from Thayer v. Thayer, 101 Mass. 111 (100 Am. Dec. 110), contained in the opinion of Chief Justice Montgomery in that case, as well as to the other authorities cited. We also call attention to the later case of People v. Brown, 142 Mich. 622 (106 N. W. 149). In that case Justice Hooker reviewed the authorities upon this subject, and concluded by using this language:

“From this review of Michigan cases, it would seem that the Jamieson Case is the one most nearly in point, and that apparently a distinction has been attempted between testimony showing subsequent sexual intercourse, and that showing other friendly relations.”

The ruling in the instant case arose upon the offer of testimony tending to show friendly relations between the defendant and plaintiff’s wife, and not an attempt to show sexual intercourse. We think there was no error in the reception of this evidence.

Numerous other errors assigned, which we have not specifically treated, have all received careful consideration.

We find nothing in the charge of the court, taken as a whole, or in the refusals to charge as requested, which require special comment. The case seems to have been fairly submitted to the jury in a very full charge in which the questions involved were properly treated.

For the errors pointed out, however, we feel constrained to reverse the case, and grant a new trial.

Ostrander, C. J., and Bird, Hooker, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    STURGES v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Constitutional Law — Federal Statutes — Interstate Commerce.
    Act of June 39, 1906, chap. 3591, 31U. S. Stat. 595, U. S. Comp. Stat. Supp. 1909, p. 1166, known as the “initial carriers’ act” is constitutional. Atlantia Coast Line, eta., B. Co. v. Riverside Mills, 319 U. S. 186 (31 Sup. Ct. 161).
    3. Carriers — Connecting Carriers — Negligence—Trover and Conversion — Freight.
    In an action against several connecting carriers for failure to retain control of freight until the draft attached to the consignor’s bill of lading was paid, it is immaterial, under the Federal statutes, which carrier committed the alleged wrong.
    3. Same — Parol Evidence — Written Contract — Bill of Lading.
    Prior or contemporaneous oral agreements are not competent to vary the terms of a bill of lading.
    4. Same — Bill of Ladino — Draft Attached.
    Although a shipper of freight used a white blank, known as the straight form, instead of a yellow blank or order form adopted by carriers for shipments to be delivered only on tender of the bill of lading, where it is sent attached to a sight draft, the consignors sufficiently notified defendants of their intention by marking the bill of lading “B. L. attached to draft,” addressing the box to themselves with direction to notify the real consignee, and by informing the initial carrier’s agent of the fact that they wanted to send the goods subject to the payment of a draft before delivery.
    5. Same — Evidence.
    If the bill of lading is ambiguous as to any element of the contract, parol evidence is admissible to show the actual meaning.
    6. Same.
    And for such purpose, the position of the parties, the things said and done by them, and the circumstances surrounding the making of the contract, are competent.

      7. Same.
    While the consignee is prima facie the owner of the property delivered to the carrier, the presumption may be overcome by facts showing the contrary intent of the owner at the time of consigning the goods for shipment.
    8. Same — Agents—Contracts.
    The local freight agent was authorized to make a contract in the form adopted by the parties.
    Case-made from Wayne; Murfin, J.
    Submitted April 11, 1911.
    (Docket No. 81. )
    Decided June 2, 1911.
    Trover and case by Yarney K. Sturges and Austin Hale, copartners as the Detroit Leather Works, against the Detroit, Grand Haven & Milwaukee Railway Company and another on a contract of shipment. Judgment for plaintiff against said railway company which brings error.
    Affirmed.

      L. O. Stanley, for appellant.

      Henry B. Graves, for appellees.
   Stone, J.

This suit was originally commenced against the above-named defendant and the Illinois Central Railroad Company. The case was tried before the court without a jury, and the following findings were made by the circuit judge:

“In fulfillment of an order from the Louisiana Automobile Club, of New Iberia, La., plaintiffs shipped to that point on May 29, 1909, four boxes of merchandise. In transit the goods were carried to Durand, Mich., by the defendant the Detroit, Grand Haven & Milwaukee Railway Company, thence to Chicago, 111., by the Grand Trunk Western Railway, thence to New Orleans, La., by the defendant Illinois Central Railroad Company, and thence to the point of destination by Morgan’s Louisiana & Texas Railroad & Steamship, Company. The boxes were numbered consecutively from 1 to 4, and bore the address: Detroit Leather Works, New Iberia, Louisiana. Notify Louisiana Automobile Club.’ Other than the foregoing, there was no inscription on any of them.
“The boxes were delivered by plaintiff Sturges personally to the defendant Detroit, Grand Haven & Milwaukee Railway Company, at its freight depot in this city. It was his purpose to consign the goods with sight draft attached to bill of lading. The address which he marked upon each of the packages, as the evidence of the defendants establishes, conformed with the usage followed throughout the country by shippers in making similarly conditioned consignments. This method has grown into a custom, recognized by the carriers of the country. When the addressee of a consignment is the consignor, with an appended direction to notify the consignee, such an inscription is interpreted in the transportation world as indicating retention of control in the shipper until some condition, precedent to delivery to the consignee, shall have been fulfilled.
‘ ‘ Sturges had prepared at his office, and took with him to the depot, a bill of lading upon a form furnished by it, and known as the ‘straight’ bill of lading. He indorsed upon the face of the bill in a conspicuous space and in a legible hand the notation ‘B. L. attached to draft,’ the abbreviation ‘ B. L.’under the concession of counsel being intended to mean by plaintiffs and being understood by defendants as meaning ‘ bill of lading.’ This was his first shipment of this character, and, being inexperienced, he consulted the clerk in charge as to the manner of making it. Sturges made known his desire to employ a method by which the goods would be delivered to the consignee only upon the latter’s payment of a sight draft, which would be forwarded, attached to the bill of lading. The clerk conferred with a superior, and both informed plaintiff that the shipment was being made in a manner to accomplish that purpose.
“It develops that, when shipments of this character are desired to be made, the form used is that known as the ‘order’ bill of lading. The ‘straight’ form is used in forwarding shipments unconditioned as to delivery to the consignee. The ‘ order ’ form, in addition to the language of the ‘straight’ form, contains provisions denoting the special purpose to retain control in the shipper. The two forms also differ in color. These forms were adopted by the defendants upon the recommendation of the interstate commerce commission, that body expressing the view in its recommendation that it had no authority to compel their adoption.
“Plaintiffs’ prepared bill was receipted by the clerk referred to, returned by him to Sturges, and forwarded by the latter with sight draft in the sum of $997.90 attached for collection, that being the purchase price of the goods, to the New Iberia National Bank of New Iberia, La. The goods were delivered by the ultimate carrier without surrender of the bill of lading and without payment of the draft. A portion of the shipment was subsequently returned from an unknown source to the plaintiffs, and the bill and draft were returned unpaid to the plaintiffs by the bank. Upon due notice to the defendants, plaintiffs sold the returned goods, realizing therefor $281.30, leaving an unpaid balance of $720.15 due upon the order. It is sought to recover this balance in this action.
“ In the declaration trover is joined to an action on the case. Two counts are set forth under the theory of the latter action, the one alleging a breach of duty in the delivery of the goods under the circumstances here related, and the other, in addition to averring such a breach, invoking section 7 of the act of Congress of June 29, 1906, chap. 3591, 34 U. S. Stat. 594, being an act in regulation of commerce, and found upon page 273 of the Federal Statutes Annotated, Supplement of 1909 [U. S. Comp. Stat. Supp. 1909, p. 1166]. That portion of the section relied upon provides—
“‘That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State, shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed.’
‘' Proceeding now to an examination of the legal questions presented, what are the respective contentions of the parties? The plaintiffs claim that a shipment made under the conditions here established may be delivered to the consignee only in the event of the honoring of the accompanying draft, and a surrender of the bill of lading. Under the terms of the Federal statute cited, they assert their right to hold the initial carrier liable for their loss. They have abandoned any theory which would fix liability upon the other defendant, Illinois Central Railroad Company.
“The defendants insist that the contractual relations of the shipper and carrier are defined in and by the bill of lading exclusively, and that the shipping directions marked upon the boxes, and the parol agreement between defendants’ agents and Sturges, cannot be permitted to vary the mutual rights and liabilities created by the bill. If this position be untenable, it is further urged that the bill of lading in question, notwithstanding the notation upon it, was ineffectual, standing by itself, to attain the end intended by plaintiffs. It is contended that it was a ‘ straight ’ or unconditioned bill, which placed no limitation as to delivery upon the carrier. The point was also reserved, though not argued, that the Federal act cited is unconstitutional, in that it exceeds the legislative powers of Congress. If regarded as valid, it is said to be inapplicable. Even though a contrary view be taken of the legal character of the bill of lading, yet it is further urged that, the Federal statute being inapplicable, recourse may be had only as against the carrier which made delivery, namely, Morgan’s Louisiana <& Texas Railroad & Steamship Company. This claim is made upon the conceded theory that, in the absence of statutory liability, the common law affords a remedy for misdelivery only against the carrier immediately responsible therefor, and not against any prior carrier.
“ Consideration of the legal character of a bill of lading will clarify the situation presented by the defendants’ first proposition.
“A bill of lading has a dual office.. It is both a receipt for the goods shipped and a contract to carry and deliver them upon the terms specified in it to the designated consignee.
“ It must be obvious that the precise form of bill herein used upon the recommendation of the interstate commerce commission has, because of that fact, no peculiar legal significance. Actual knowledge of these forms and their special purposes is wanting in the plaintiffs, and there is no showing of any custom in their use, in the light of which the parties hereto may be assumed to have acted. Accordingly the bill is to be construed and interpreted as of its own intrinsic provisions. In so far as it embodies the contract of the plaintiffs and defendants for carriage and delivery, it is not susceptible of variation by parol. Leaving aside a certain incapacity of the carrier to limit its liability, it is competent, however, for the parties to insert in it such stipulations as they mutually elect to include. 6 Cyc. pp. 417, 420, and cases cited; The Caledonia [C. C.], 43 Fed. 681; Bostwick v. Railroad Co., 55 Barb. [N. Y.] 150.
“Disregarding all extrinsic evidence, what significance, if any, is to be attached to the notation upon the bill given plaintiffs by the receiving carrier ? The attaching of a draft to a bill of lading is of itself an expression of intention on the part of the shipper to retain the right of disposition of the goods until payment of the draft. Wells, Fargo & Co. v. Navigation Co. [C. C.], 32 Fed. 51. Even though, under such circumstances, the purchaser of goods so shipped be named as consignee in the bill, he may not have delivery of the goods until he has paid the draft, nor may the carrier deliver them to him without such payment, without leaving itself liable to the consignor. Moore on Carriers, § 17, p. 171, and cases cited; 5 Am. & Eng. Enc. Law (2d Ed.), p. 206, and cases cited; 4 Elliott on Railroads, § 1426, and cases cited.
“ The indorsement on the face of this bill is not meaningless. In the commercial world, it is a phrase of common use and importing a well-defined meaning. When permitted to be embodied by the initial carrier in the contract made with the plaintiffs, it was accepted by the defendant as a condition precedent to delivery. In an analogous case such a construction has been put upon the term ‘ draft on bill of lading,’ written upon a bill. A. D. Blowers & Co. v. Railway Co. [C. C.], 155 Fed. 935.
“ Both parties to the contract in the case at bar acquiesced in the terms of the bill, which are unambiguous and certain. The authorities are uniform in holding the carrier to a rigorous compliance with the terms of delivery specified in the bill. Without passing upon the question whether recourse to the extrinsic evidence here disclosed would be permissible in amplification of the written contract, or is proscribed as tending to vary it, I see no necessity for extrinsic evidence to determine the true character of this bill. It is in form effectual to impose upon the carrier the duty of exacting payment of the draft before delivery of the shipment.”

A judgment was entered against the above-named defendant for the unreturned portion of the goods, and in favor of the Illinois Central Railroad Company, and the defendant brings the case here by a case-made.

In the court below defendant contended that the act of Congress known as the “Carmack Amendment to the Hepburn Bill,” and called the “Initial Carriers’ Act,” was unconstitutional. That contention has been disposed of by a recent decision of the United States Supreme Court holding the law to be valid. Atlantic Coast Line, etc., R. Co. v. Riverside Mills, 219 U. S. 186 (31 Sup. Ct. 164).

The defendant contends that there was no negligence or oversight in the delivery of these goods by the Louisiana carrier; that the delivery was in accordance with the form of the shipment selected by the shippers; that they consigned the goods straight to the Louisiana Automobile Club upon a white bill of lading known and recognized as proper for straight shipments; that the plaintiffs did not use the color of paper usual for retaining possession and control of the goods until draft had been paid, nor did they put upon the shipping order, or bill of lading, any words to that effect, except the words “ bill of lading attached to draft,” and defendant asserts the following propositions based upon its assignments of error:

(1) The actual contract made with this defendant was a contract to carry these goods to the next carrier, that they might be delivered straight to the automobile club.
(2) Delivery according to the bill of lading is delivery according to the- contract between the parties, and discharges the carrier’s liability.
(3) The words “ bill of lading attached to draft,” when placed upon a straight and direct bill of lading, are gratuitous. They have no meaning which the carriers and their clerks are bound to regard.
(4) The marks on the boxes themselves must yield to the contract, and the waybills which are made up from the contract. They constitute no contract. The contract is that the carrier has received the property described below _ in apparently good order, marked, consigned, and destined as indicated below, which the company agrees to carry to the place of destination, if on its roads, otherwise to deliver to another carrier on the route to its destination, and the suitable blanks for the purposes of the contract are filled up by the plaintiff to indicate that the goods are consigned to the Louisiana Automobile Club, “bill of lading attached to draft.”

Under the act of Congress above referred to, it is immaterial which carrier committed the alleged wrong, and the case rests on the question whether or not there was any wrong at all, and that depends on what was the original agreement between plaintiffs and defendant regarding the shipment.

There is no doubt about the proposition that the bill of lading in writing, in so far as it is a contract of shipment and not a mere receipt for goods, cannot be varied by prior or contemporaneous oral agreements between the parties. Sloman v. Express Co., 134 Mich. 16 (95 N. W. 999).

An examination of the questions involved leads us to the conclusion that the circuit judge was correct in holding that the bill of lading on its face gave notice to defendant not to deliver the goods without surrender of the bill of lading. We do not think that the blank form of bill of lading used in the case was controlling. Neither can it be said that the defendant was deceived by this action of the plaintiffs, because the findings of fact, supported by the evidence, show that plaintiffs carefully pointed out to defendant what they had done, and defendant consented thereto. We have examined the authorities cited by the learned circuit judge, and are of opinion that they are applicable here, and justify the conclusion reached by him. The words “B. L. attached to draft” were indorsed upon the face of the bill in a conspicuous place, and in a legible hand, as found by the circuit judge. It was the duty of the defendant to observe and give force to these words. 5 Am. & Eng. Enc. Law (2d Ed.), p. 223; 6 Cyc. p. 469.

We think the conclusion of the circuit judge might receive support upon the ground that the bill of lading itself is ambiguous. The doctrine seems to be well established that, if the bill is as to any element of the contract ambiguous, parol evidence is admissible to show what the agreement was in that respect. 6 Cyc. p. 421; Wolfert v. Railway Co., 44 Mo. App. 330. The findings of fact are sufficient to support such conclusion. This view finds expression in Rickerson, etc., Co. v. Railroad Co., 67 Mich. 117 (34 N. W. 273), in the following language:

“The character of the contract must be determined from the receipt, the bill of lading, the shipping order, the situation and knowledge of the parties and their agents, and all the circumstances surrounding the transactions having any bearing on the subject.”

Even if the bill of lading was peculiar, or of doubtful meaning on this point, because of uncertainty as to the qualifying words indorsed thereon, then evidence of what the parties said and agreed to at the time as to the meaning of these words, assisted by the direction of the boxes themselves, is entirely competent to explain and make clear the uncertainty, and does not contradict the contract. 4 Wigmore on Evidence, p. 3492; MacKinnon Boiler & Machine Co. v. Land Co., 156 Mich. 11 (120 N. W. 26); Lowrey v. Hawaii, 206 U. S. 206 (27 Sup. Ct. 622); New England, etc., Co. v. Worsted Co., 165 Mass. 328 (43 N. E. 112, 52 Am. St. Rep. 516).

It is always competent where such uncertainty exists to receive evidence of the circumstances surrounding the making of the contract, including the position of the parties and the things said and done by them. Ferris v. Wilcox, 51 Mich. 105 (16 N. W. 252, 47 Am. Rep. 551); Rundle v. Scully, 144 Mich. 62 (107 N. W. 694).

Upon shipment of goods through a carrier to a third party, and on delivery to the shipper of the bill of lading, the consignee is prima facie the owner of the property; but this presumption of ownership may be rebutted by proof of facts showing the actual intent of the shipper at the time the goods were delivered to the carrier for shipment. Bank of Litchfield v. Elliott, 83 Minn. 469 (86 N. W. 454).

There can be no doubt of the authority of the local agent to make the contract in the form in which it was made and signed. He was put there by the defendant for the purpose of making such contracts. Hayes v. Railroad Co., 163 Mich. 174 (128 N. W. 217).

We are of opinion that the circuit judge reached the correct conclusion in the case, and the judgment of the court below is affirmed.

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


text:
    BULLOCK v. MUTUAL LIFE INSURANCE CO. OF NEW YORK.
    1. Insurance — Fraud —Application — Life Insurance — Treatment by Physician.
    In an action on an insurance policy not governed by tbe standard policy act (Act No. 187, Pub. Acts 1907), and under the plea and notice of defendant alleging misrepresentations in the application of insured, who was shown to have stated in his application that he had been ■ treated at a hospital for appendicitis two years previously, but who omitted to state that he had been treated at the same hospital during' upwards of a week subsequently, the burden was on plaintiff to show that the treatment at such hospital was for some temporary ailment, not tending to weaken the health of insured permanently.
    2. Evidence — Physicians—Privilege.
    Defendant went as far as it was required to do in examining a physician of deceased, when it showed that his physician had treated him several months at his office and at the hospital, since a further examination would have entered upon privileged matters.

      Error to Wayne; Donovan, J.
    Submitted April 12, 1911.
    (Docket No. 92.)
    Decided June 2, 1911.
    Assumpsit by Jessie C. Bullock against the Mutual Life Insurance Company of New York, on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Miller, Smith, Paddock & Perry, for appellant.

      James H. Pound, for appellee.
   Stone, J.

The plaintiff brought assumpsit upon a policy of life insurance in the defendant company for $1,000, executed August 19, 1907, to Clyde H. Bullock, and payable, at his death to the plaintiff* his mother. Clyde H. Bullock died April 25, 1909, at the age of 21 years. A written application was made for such insurance, accompanied by a medical examiner’s report, both of which were signed by the applicant. Under its plea of the general issue, the defendant gave the following notice:

“Clyde H. Bullock, mentioned in the plaintiff’s declaration, in his application dated August 17, 1907, for the policy mentioned in the declaration, warranted the truth of all his statements and answers contained in said application, and all his statements and answers made to defendant’s medical examiner in continuation of said application, as set forth in the medical examiner’s report; and the said Clyde H. Bullock, in his said application, offered all of his said statements and answers to the défendant as a consideration for the proposed contract to be evidenced by the said policy, which offer was accepted by the defendant.
“ The medical examiner’s report aforesaid is dated the 19th day of August, 1907, and contains the following questions and answers and statements:
“‘3 (a). What illnesses, diseases, or accidents have you had since childhood ? (The examiner should satisfy himself that the applicant gives full and careful answers to this question.) Name of disease: Appendicitis. Number of attacks: One. Date of each: April, 1905, Duration: 1 month. Severity: Was operated upon. Results: Complete cure. Date of complete recovery: May, 1905.
‘“3 (b). Have you stated in answer to question 3 (a) all such illnesses, diseases or accidents ? Yes.
‘“4. State every physician whom you have consulted in the past five years. Name of physician: Dr. J. B. Kennedy. Address: Fine Arts Bldg., Detroit, Mich. When consulted: April, 1905. Nature of complaint. Give full details above under Q. 3 (a): Operated on applicant for appendicitis.
“‘13 (a). Have you ever been under treatment at any asylum, cure, hospital, or sanitarium? Yes; Grace Hospital, Detroit, M., appendicitis, 1905. (b) If so, when, how long, and for what ? April, 1905, 4 weeks, appendicitis.’
“The applicant certified in writing that his answers to the foregoing questions were correctly recorded by the medical examiner.
The foregoing statements and answers were untrue, in that prior to the date of said application and medical examiner’s report, and in the late spring or summer of 1907, said Clyde H. Bullock suffered from tonsilitis, pleurisy, and rheumatism, and was compelled by said illnesses, or some one or more of them, to quit work for a time, and was treated for rheumatism in Grace Hospital, in the city of Detroit, Michigan, from May 21st to May 29th, 1907, inclusive, and consulted and was treated by Dr. Leonard F. C. Wendt for all three of the above-mentioned illnesses, thus constituting breaches of warranty, which have rendered said policy void and of no effect as a basis of claim against the said defendant.”

Upon the trial the plaintiff testified to the age and death of her son and the policy and proofs of death were received in evidence.

Upon the defense the defendant offered in evidence the application and medical examiner’s report, from which it appears that the material part in question of said report, as well as the warranty of the truthfulness of statements in the aplication, are correctly set forth in the notice under the general issue above referred to. It will be noticed that this policy was written before Act No. 187 of the Public Acts of 1907 took effect. Dr. Leonard F. C. Wendt was sworn on behalf of defendant, and after testifying that he was a practicing physician in the city of Detroit, and had been since 1902, and that he was one of the family physicians of the Bullock family in 1907, he said:

“In the year 1907 I treated Clyde Bullock. The treatment began about the 18th of April. I treated him at my office. I treated him several times that month at the office. The dates were the 20th, 22d, 25th, 27th, and 29th, but I think I ought to make a word of explanation. Two or three days, I cannot testify which ones of these dates, were for Mr. Bullock, Sr., two of these dates. There were eight or nine different treatments in the month, from the 18th, but two or three of these were for Mr. Bullock, Sr. Otherwise these others are correct. In the month of May, 1907, I treated him on the 2d, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 18th, 15th, 17th, 19th, 20th, and 21st, almost daily up to the 21st of May. All of these treatments were at my office. I next saw him at Grace Hospital daily after the 21st of May until the 30th. He was at the hospital long enough to take his bake, to recover from his bake, and then would have the freedom or permission to go out and about. He stayed at the hospital at night. He came to the office for treatment on the 5th, 6th, and 7th of June, the 13th, 20th, 22d, 28th of July, and the 4th, 6th, 10th, and 15th of August. In my practice I am accustomed to take care of patients at Grace Hospital. * * * During the month of April he was up and around. I frequently saw Clyde Bullock around my place from 1905 to 1907, in the office and house part. I know something about the acquaintance of the young man. He was acquainted at Grace Hospital with all the nurses and most all of the physicians. He was on the list of guests.”

The application bears date August 17, the medical examiner’s report August 19, 1907.

Dr. Francis Duffield was sworn on behalf of defendant, and testified that he was the medical examiner who made the examination of Clyde H. Bullock when he applied for his insurance. He testified that the same was signed by the applicant, and that he followed his usual practice of asking questions indicated, and put down the answers as they were given. In the course of Dr. Duffield’s testimony he testified that had the applicant stated to him that he had been treated for an attack of tonsilitis in 1907, and had been treated at Grace Hospital for 10 days in the spring and summer of 1907, he would have put it down in his report.

The plaintiff, upon rebuttal, examined Dr. George P. Myer, who testified that he had been closely associated with Dr. Wendt, and that he knew Clyde H. Bullock well, and that he used to meet him with Dr. Wendt, with whom he often drove around in making his calls; that the witness saw Clyde H. Bullock at the time he was at Grace Hospital; that witness had charge of the Pathological library there; and that young Bullock came down into the library once or twice when he was there, and talked with witness. He was at that time up and dressed and around the hospital. At one time, when in the hospital, Dr. Wendt said he would like to have the witness see Bullock; that he called with the doctor and looked Bullock over a little; that he looked like a boy in perfect health, and so acted as far as witness could see. There were no symptoms of illness about him that witness could see to look at him. Witness believes the boy was staying at the hospital nights at that time.

The plaintiff had testified that she visited her son in Grace Hospital in 1907; that he was there about eight or ten days; that he stayed there all the time during that time. On being recalled on rebuttal, the plaintiff testified that her son was very friendly with the nurses at the hospital and was on friendly terms with Dr. Wendt, that no one told him to go to the hospital, and that he went there to board as a convenience.

At the close of the testimony defendant made a motion that the court direct a verdict for the defendant on the grounds:

(1) That it having been shown by testimony which has not been rebutted that Dr. Wendt treated professionally Clyde H. Bullock in the months of April, May, June, July and August, 1907; that he treated him at his office and at Grace Hospital; that none of these visits to the office or the treatment by the physician at the hospital were mentioned by the applicant in his application for life insurance, nor was Dr. Wendt’s name given to the examiner to put in the medical examination — that under these circumstances it became the duty of the plaintiff to prove that Dr. Wendt treated the applicant for a purely temporary ailment, which had not been done.
(2) That a verdict be directed for the defendant because the rule of law is definite and certain that, if an applicant has been an inmate of a hospital, he must so state in answer to the questions; that the applicant in this case did not so state to the examiner, and it does not appear in his report that he was an inmate in Grace Hospital in the month of May, 1907.

The motion to direct a verdict for the defendant was overruled, to which ruling counsel for the defendant excepted. Counsel for the defendant thereupon requested the court to charge the jury as follows:

“ (1) You are directed to return a verdict of no cause of action.
“ (2) I charge you that the uncontradicted evidence in this case is that the deceased was treated professionally by Dr. Wendt in the late spring and early summer of 1907 numerous times, both at Dr. Wendt’s office and at Grace Hospital. The law is that under such circumstances the burden is on the plaintiff to show that the treatment was for some ailment which did not tend to weaken or undermine the applicant’s health seriously. That burden has not been met, and you are therefore directed to render a verdict of no cause of action.”

Both requests were refused. The case was submitted to the jury, which rendered a verdict for the plaintiff for the full amount of the policy, $1,041.65, and the judgment followed. The defendant has brought the case here by writ of error, and numerous errors are assigned, many of which may be considered together.

The three principal points urged and discussed by appellant at the hearing were as follows:

(1) That the trial court should have directed a verdict for us on the ground that plaintiff did not meet the burden cast upon her to show that the treatment by Dr. Wendt, during the months from April to August, 1907, and which was not mentioned in the application or report, was for some ailment which did not tend to weaken or undermine the applicant’s health seriously.
" (2) The trial court should have directed a verdict for us on the undisputed evidence that Bullock had been under treatment in Grace Hospital in May, 1907, and same had not been disclosed in the application or report.
“ (3) The trial court should have directed a verdict for us on the ground that plaintiff did not meet the burden cast upon her to show that the treatment in Grace Hospital in May, 1907, was for some ailment which did not tend to weaken or undermine the applicant’s health seriously.”

Under assignments of error Nos. 2, 9,10, 12,15,17, 18, and 20, the defendant urged that the undisputed testimony in the case showed professional treatments of the assured by Dr. Wendt, both at his office and at Grace Hospital during the months of April, May, June, July, and August, 1907; that information as to these treatments and as to the consultation of Dr. Wendt was not given in the application, or in the answers to questions 3a and 3b and in 4, in the medical examiner’s report; that, under such circumstances, the burden was on the plaintiff to show that the treatment was for some ailment which did not tend to weaken or undermine the applicant’s health seriously. It was contended that that burden was not met in this case, and that the trial court should therefore have directed a verdict in favor of defendant. A careful perusal'of the record leads us to say that it was undisputed upon the trial that the assured had the treatments by Dr. Wendt, as already stated. These treatments lasted until a couple of days before he made application for this policy. There is no evidence in the record that Bullock told the examiner about these treatments, and the examiner’s report and the undisputed testimony show that he did not. It will be noted that in the notice under the general issue the defendant gave to the plaintiff full information of what it intended to prove in its defense. It named the hospital where the assured had been treated, and the physician who treated him, and the times when he had been treated. It seems to us very clear that in the examination of Dr. Wendt by defendant’s counsel they went as far as they would legally be expected to go in examining an attending physician. In so far as the defendant could go, further examination would have led to privileged matters. Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Briesenmeister v. Knights of Pythias, 81 Mich. 525 (45 N. W. 977); Dick v. International Congress, 138 Mich. 372 (101 N. W. 564); Perry v. Insurance Co., 143 Mich. 290-294 (106 N. W. 860).

We think that the testimony in the case was sufficient to cast the duty upon the plaintiff to show that the treatment alluded to was for some ailment which did not tend to weaken or undermine the applicant’s health seriously. This prima facie breach of contract was not overcome by any evidence offered, and, the plaintiff having failed to sustain the burden under this record, it was the duty of the circuit judge to have directed a verdict for the defendant. Rhode v. Insurance Co., 129 Mich. 112 (88 N. W. 400). The case cited was an action on a policy of life insurance. The application stated that the applicant had not been under the care of a physician within two years. The testimony showed that applicant had been attended by at least one physician within that time. This court, in disposing of the case, cited Hann v. National Union, 97 Mich. 513 (56 N W. 834, 37 Am. St. Rep. 365), Plumb v. Insurance Co., 108 Mich. 94 (65 N. W. 611), and then said:

“ In each of these cases the plaintiff offered, affirmative testimony to show that the treatment of the physician was for some temporary indisposition. Neither of the cases held that it is not sufficient, prima facie, to show a breach of a warranty such as that involved in this case, to prove that the insured had in fact been attended by a physician. Indeed, to so hold would be doing violence to the very terms of the stipulation; and, when the defendant in this case was prepared to show that the deceased had, within two years prior to the making of this application, been attended by one or more physicians, this was prima facie a breach of his contract, and the burden would be upon the plaintiff to show that the attendance was not for any ailment which tended to weaken or undermine his health seriously.”

See, also, Brown v. Insurance Co., 65 Mich. 306 (32 N. W. 610, 8 Am. St. Rep. 894); Pudritzky v. Knights of Honor, 76 Mich. 428 (43 N. W. 373).

There are other assignments of error, but the questions raised are not likely to occur upon a new trial.

For the error pointed out, the judgment of the circuit court is reversed, and a new trial granted.

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


author: Bird, J.

text:
    ALDRICH v. ALDRICH.
    1. Divorcie — Alimony—Decree—Amendment—Modification.
    Notwithstanding that the terms of a decree for divorce awarding alimony were determined by the] agreement of complainant and defendant, the court of equity may modify the decree upon petition showing a sufficient change in circumstances of the husband. 3 Comp. Laws, § 8641.
    2. Same — Modification of Alimony — Change in Circumstances.
    That stock awarded to defendant by the decree had largely increased in value, that the husband had remarried and had one more child, and that his cost of living had increased and his salary remained the same, constitute such a change of conditions as to justify the reduction of alimony from $125 to $90 per month.
    3. Same — Education of Infant Children.
    It was not, however, a change of condition where the children were receiving their education in Europe at the time of the petition but had remained abroad for five or six years, and were there when the decree was entered.

      Appeal from Wayne; Donovan, J.
    Submitted April 13, 1911.
    (Docket No. 146.)
    Decided June 2, 1911.
    Bill by Thomas B. Aldrich against Fanny Aldrich for divorce. Several years after the entry of a decree awarding defendant a divorce on her cross-bill, and fixing the amount of alimony, complainant filed a petition praying for a reduction in the amount thereof. From an order denying the relief prayed, petitioner appeals.
    Reversed.

      Lucking, Emmons & Helfman, for complainant.

      Charles G. Scheibner, for defendant.
   Bird, J.

The parties to this suit were divorced by the Wayne circuit court in 1908, and a decree for permanent alimony was awarded to the defendant on her cross-bill. In July, 1910, the complainant filed his petition to obtain a modification of the decree for alimony. His petition was denied by the trial court, and he has appealed.

The petition shows that the parties were married in 1893, and that two daughters were born to them, who are now of the ages of 13 and 16 years, respectively. The complainant is now, and has been for many years, an expert chemist in the employ of Parke, Davis & Co., receiving an annual salary of $3,000. In 1907 the complainant instituted divorce proceedings, charging the defendant with extreme cruelty, and prayed for affirmative relief. Early in 1908 complainant obtained leave of the court to withdraw his bill of complaint, after which the defendant obtained a decree of divorce pro confesso on her cross-bill, and was awarded permanent alimony and custody of the children. The terms of the decree for permanent alimony were agreed to by the parties and were as follows: One hundred shares of stock of the Parke, Davis & Co., subject to an incumbrance of $25 per share, $125 per month, and a requirement that complainant should take out a policy of insurance on his life for $3,000, payable to defendant, at an annual cost of $60. For two years prior to the granting of the divorce, defendant was in Europe with her two children. They have resided there ever since, and the children are now in a private school at Bordighera, Italy, at a monthly expense for tuition of $30. About a year after the decree was granted, complainant remarried, and has one child by the second wife.

The complainant asks for a modification of the decree for alimony on the grounds:

(а) The complainant has lost his property and has become, insolvent; that his assets are $400 or $500 less than his debts.
(б) He cannot attend to the duties of his position on account of his financial worry, and is threatened with discharge.
(c) That living expenses have advanced 35 per cent, since the decree.
(d) That the stock awarded to Mrs. Aldrich has appreciated in value, and is now worth $5,000, free and clear from all incumbrance.
(e) That against the wishes of Mr. Aldrich his children have been kept in Europe for the past five or six years.

In her answer to the petition, the defendant shows that her living expenses have increased since the date of the decree. She shows that she is not an able bodied woman, and that she has recently been ill with scarlet fever, and that as a result of the fever she is troubled with rheumatism and other ills, and that to meet the extraordinary expenses of her sickness and the education of her children she was compelled to sell 50 shares of said stock; that from the proceeds she paid the incumbrance, which was a lien on the other 50 shares, and has been obliged to expend the balance for her daily expenses. She further alleges that the children have nearly accomplished the completion of certain courses of study, which will help them to earn a living, and that if the court should order a change in said decree, as prayed by the complainant, the children would be left destitute, and would be thrown on their own resources, except such as could be furnished by the defendant. After a hearing on this petition and answer, the trial court denied the prayer of the petitioner because he was of the opinion that he had no power to modify a decree for alimony which had been consented to by the parties.

The trial court was in error in assuming that he had no power to modify the decree because it has been consented to by the parties. Camp v. Camp, 158 Mich. 221 (122 N. W. 521). The statute (3 Comp. Laws, § 8641) confers upon circuit courts in chancery the express authority to revise decrees for alimony or allowances for the wife and children. This statute was enacted for the benefit of the children as well as the parents, and any agreement which the parents may make in the settlement of alimony ought not to and does not bind the conscience of the court as to what is for the welfare of the children.

The question then is, Does the testimony show such changed conditions as would authorize the court to modify the decree ? The petitioner shows that he has less property and less income than when the decree was made, and that what he now receives will purchase far less by reason of the increased cost of living. It seems to be conceded that defendant’s property has enhanced in value and increased her income since the rendition of the decree. It is agreed that the Parke, Davis & Co.’s stock which she holds is now of the value of $5,000 and is free and clear of incumbrance. This stock is Worth very much more and the income therefrom is very much greater than when she received it.

It also appears that the children are being educated at a private school in Europe, and the father, who is furnishing the money for their support and education, has not seen them for five or six years. It is claimed that this constitutes a change of condition. There would seem to be no good reason why the children should not be returned to their native land and educated in the public schools, where the father can see and visit them, but we cannot hold that keeping them abroad is a changed condition because they were there and had been for two years when the decree was made.

On account of the changes which have been wrought in the financial condition of the parties since the date of the decree, and the increase in complainant’s family, we are moved to modify the decree for alimony by reducing the monthly allowance from $125 to $90 per month; this reduction to take effect upon the filing of this opinion.

The order of the trial court is reversed, and one entered in accordance herewith. No costs will be allowed either party.

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


text:
    BRADY v. CITY OF DETROIT.
    1. Taxation — Special Assessments — Public Improvements — Municipal Corpopations — Injunction.
    The burden of proof is on a complainant seeking to restrain the collection of a paving assessment to show, as alleged by his bill of complaint, that a majority of the property owners abutting on the pavement did not sign the required petition, which was reported to the common council by the board of public works of the city of Detroit as sufficient, and found by the council accepting and adopting the report to be signed by a sufficient number.
    2. Same — Common Council.
    Such finding by the municipal council was conclusive until it was shown by the evidence to be incorrect.
    8. Same —Sidewalk Assessments — Board of Public Works — Notice.
    Under the provisions of thé ordinance of the city of Detroit providing for a notice by the board of public works to the owner of property adjacent to which they should determine that a sidewalk ought to be constructed, the determination of the necessity for the walk by the board of public works is requisite, and a notice sent out by an inspector employed by such board is insufficient in the absence of its determination therefor, and no sufficient notice was given in a case where the notice served required that an existing sidewalk should be repaired, and a new one was afterwards built without further notice to the property owner.
    Appeal from Wayne; Mandell, J.
    Submitted April 14, 1911.
    (Docket No. 23.)
    Decided June 2, 1911.
    Bill by Matthew Brady against the City of Detroit and others to restrain the collection of certain special assessments. From a decree granting a portion of the relief prayed both parties appeal.
    Affirmed.

      Walker & Spalding, for complainant.

      Walter Barlow (P. J. M. Hally, oí counsel), for defendants.
   Stone, J.

The bill of complaint in this cause was filed to restrain the collection of a special assessment levied by the city of Detroit for paving Hendrie avenue from the west line of the Brush farm to St. Antoine street, and to restrain said city from levying an assessment for the construction of a sidewalk on Hendrie avenue in front of lots 6, 7, and 8, and on St. Antoine street along the side of lot 6. The complainant was the owner in fee of lots 6, 7, 8, 9, and 10, in block 44, of Ferry Sc Lyster’s subdivision of part of the Beaubien farm fronting on Hendrie avenue. Before July 9,1901, a petition was circulated to secure the names of the owners of a majority of the property abutting on the part of Hendrie avenue proposed to be paved, in order that the street might be paved under section 6, chapter 11, of the charter. On July 9,1901, a petition purporting to be signed by the owners of a majority of the real estate abutting on that part of Hendrie avenue proposed to be paved was presented to the common council of Detroit, and referred to the department of public works. On August 20th the department of public works reported that said petition was signed by the owners of a majority of the real estate abutting on said avenue, and recommended that the pavement be made. A resolution was adopted by the common council at a meeting held August 20,1901, ordering said street to be graded and paved from the Brush farm to St. Antoine street. Thereafter the usual proceedings for paving streets in said city were taken.

The bill of complaint alleges that said petition was not signed by the owners of a majority of the property fronting on the part of said street proposed to be paved, as required by section 2 of chapter 32 of the revised Ordinances of the City of Detroit of 1895, and section 6 of chapter 11 of the charter of said city. This is denied by the answer.

' Counsel for complainant in their brief use the following language:

“The length to be paved was 2,162 feet. The petition purported to be signed by the owners of 1,113 feet, which would be a majority of 32 feet.”

We have carefully examined the record, and have earnestly attempted to find any evidence to support the statement that the length to be paved was 2,162 feet. In our judgment complainant’s case cannot be sustained without some proof before us of the number of feet to be paved. Defendants challenge the correctness of complainant’s statement, and urge that the statement that the petition was not signed by the owners of a majority of the property, fronting on the part of said street proposed to be paved, was denied by the answer; that the burden was thus cast on complainant to prove this allegation; and that he has failed to do it.

We have endeavored, from the record, to find some basis for the claim of complainant; but we are unable to do so. Nor is there anything in the record to show how many cross-streets and alleys intersected the paved portion of Hendrie avenue between the west line of Brush farm and St. Antoine street.

To determine the frontage of the real estate abutting the pavement, it would be necessary to measure the pavement, and then deduct the width of the intersecting streets and alleys from the length of the pavement. Neither the length of the pavement nor the width of the intersecting streets and alleys was shown on the hearing, as appears by the record. As the record stands, there is nothing to show what the facts are in regard to the actual frontage of the real estate abutting this pavement.

The petition for the pavement recited that it was signed by the owners of a majority of the property on both sides of the avenue. The department of public works^ to whom the petition was referred, reported back to the common council that the petitioners were “owners of the greater number of feet frontage of real estate abutting on the avenue proposed to be improved,” and recommended the pavement. The common council accepted and adopted this report, and ordered the avenue to be paved.

The finding of the council would seem to be conclusive on this question, until the contrary is shown by the evidence in the case, and the burden of such showing was on the complainant.

We have carefully examined the testimony of the witness Long, and all of the other evidence offered, and are unable to determine from any evidence in the case either the length of the pavement, or that the petition was not signed by the owners of a majority of the property fronting on the part of said street proposed to be paved, even if we were to deduct the number of feet claimed by complainant to have been erroneously included by the persons signing the petition. This renders it unnecessary to discuss the several questions urged by complainant’s counsel in their brief.

The circuit judge, upon the hearing, entered a decree against the complainant and dismissed the bill as to the pavement, and we think the conclusion reached by him was correct.

The complainant claims that the proceeding on the part of the city to build the new sidewalk was without authority. A sidewalk had previously been built by the complainant. Some time in the year 1900 he received notice to repair said walk. Said notice purported to issue from the department of public works. Complainant examined the walk and found a few planks missing. The rest of the walk was in good condition. He concluded, under advice, to let the department of public works repair the walk, as it was a small job, and they could do it cheaper than complainant. Subsequently, and in December, 1902, complainant received a bill amounting to $160.65, for building a new sidewalk. An inspector of the board of public works testified that, according to the practice of that department, the inspector, when he saw a sidewalk that he thought needed repairing or rebuilding, prepared and served notices without referring the matter to the board of public works; that the board did not make these notices, but it was done by the inspector on his own responsibility, the inspector stamping the signature of the president of the board on the notices with a rubber stamp.

The power to compel the rebuilding or repairing of sidewalks could only be exercised when, in the judgment of the board of public works, such rebuilding or repairing was necessary. Revised Ordinances of 1895, chap. 56, § 13. This section provides, in substance, that it shall be the duty of the board of public works to notify the owner of a lot in front of or adjacent to which there is no sidewalk, and where, in their judgment, the sidewalk is necessary, to build one within 10 days from the date of notice, or any lot in front of or adjacent to which the sidewalk is out of repair or dangerous, to repair it within 48 hours, or rebuild it, if, in the judgment of the board, it should be rebuilt, within 10 days from notice.

The circuit judge found, with reference to the sidewalk, that it appeared that complainant did not have such notice as is required by law to reconstruct it, and the court made the temporary injunction, theretofore issued restraining the collection of the assessment to be levied for the purpose of building and constructing said walk, permanent.

We think the circuit judge reached the correct conclusion in the matter of the sidewalk, and the decree of the circuit court is in all things affirmed. No costs will be awarded to either party, both having appealed.

Ostrander, C. J., and Bird, Hooker, and Blair, JJ., concurred.


author: Hooker, J.

text:
    ELDRED v. ELDRED.
    Divorce — N onsupport.
    The testimony in a suit for divorce, on the ground of nonsupport, is considered on appeal and held, insufficient to sustain the decree of the trial court granting the divorce.
    Appeal from Hillsdale; Chester, J.
    Submitted April 14, 1911.
    (Docket No. 5.)
    Decided June 2, 1911.
    Bill by Mary E. Eldred against L. Selah Eldred for a divorce on the ground of nonsupport. From a decree for complainant defendant appeals.
    Reversed.

      Charles M. Weaver and Charles A. Shepard, for complainant.

      Arthur L. Guernsey and Merton Fitzpatrick, for defendant.
   Hooker, J.

The defendant has appealed from a decree of divorce granted to his wife on a hearing upon proofs taken in open court. We are constrained to hold that the testimony fails to make out a case warranting the decree, which must therefore be reversed, and the bill dismissed. It is so ordered.

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


author: Blair, J.

text:
    KING v. SIPLEY.
    1. Competency — Guardian—Power to Ratify — Fraud.
    A guardian has no authority to ratify the deed of his incompetent ward, and therefore could not maintain an action at law for fraud in an exchange of realty with his ward, thereby affirming the transaction, but must bring suit in equity where the rights of all persons' may be properly protected.
    3. Same — Deeds—Validity.
    The deed of an incompetent is voidable.
    8. Same — Ratification.
    Unless the deed was ratified or repudiated by the incompetent at a time when she became competent, the right to ratify or repudiate the instrument passes on her death to her heirs.
    Error to Kalamazoo; Knappen, J.
    Submitted April 17, 1911.
    (Docket No. 64.)
    Decided June 2, 1911.
    Case by Ella P. King, by George Knowles, her guardian, against John A. Sipley for fraud. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Cole & Goembel and David Anderson, for appellant.

      Frost & Farrell, for appellee.
   Blair, J.

This is an action on the case to recover damages for fraud and deceit alleged to have been practiced by defendant upon plaintiff’s ward on an exchange of real estate. The declaration alleges, among other things:

That at the time of the transaction:

“ The said Ella P. King at that time being an old lady, of the age of 75 years and upwards, and feeble in mind and body, and easily influenced, and mentally incompetent to transact any business whatever, or to know the value of property, or to understand the nature of a business transaction, * * * was the lawful owner, in fee simple, of the following described property, to wit. * * * That said property was free and clear from all incumbrances whatever, except one mortgage of $200, and that said property was of great value, to wit, of the value of $2,500. * * *
“That the said defendant, with the full knowledge of all the facts and circumstances as above set forth, and with the full knowledge of the mental incompetency of the said Ella P. King, and well knowing that she, the said Ella P. King, was mentally incompetent to transact any business whatever, that she was old and feeble in mind and body, and easily influenced, and knew nothing whatever of the value of property, falsely, fraudulently, dishonestly, and corruptly intending to cheat, wrong, and defraud the said Ella P. King,” made certain false representations to her as to the character and value of the real estate he proposed to deed to her.
“That the said Ella P. King believed and relied upon the said representations so made as aforesaid by the said defendant; and that by reason of the mental condition of the said Ella P. King, and by reason of the confidence and trust she, the said Ella P. King, had in said defendant, and believing and relying upon the representations so made as aforesaid, she, the said Ella P. King, was influenced to give to the said defendant and his wife, Bose E. Sipley, a warranty deed of her said property above described. * * *
“Plaintiff avers that later on, and on, to wit, the 2d day of October, A. D. 1909, the said defendant caused a deed of the last above described piece of property to be made by one Simeon J. Brown and his wife, Lydia J. Brown, who are the stepfather and mother of said defendant, to the said Ella P. King and John W. King, her husband. That said property was of small value, to wit, of the value of $800, or thereabouts. * * *
“Plaintiff avers that the said Ella P. King, by reason of her extreme old age and mental incompetenoy, and her inability to know or understand anything concerning a business transaction, and by reason of the confidence and trust she placed in the said defendant, and relying upon the representations made by said defendant, as above set forth, which said representations were material representations and relied upon by the said Ella P. King, and which said representations were false and untrue, and which said representations were made by the said defendant to the said Ella P. King for the purpose of overreaching, cheating, wronging, and defrauding her, the said Ella P. King, out of her property herein described, and by reason thereof she, the said Ella P. King, was overreached, cheated, wronged, and defrauded out of her said property as aforesaid, to the damage of the said Ella P. King of $2,500, whereof an action has accrued to the said George A. Knowles, as guardian of the said Ella P. King, as aforesaid, and therefore he brings suit.”

The circuit judge instructed the jury that:

“ There is no evidence in this case that the defendant made any false representations to Ella P. King as alleged in the declaration. The plaintiff claims that their client was not in a condition to understand or give any testimony on that subject, that she is a mentally incompetent person. The plaintiff in this case claims that the trade of property and the conveyance of the Walbridge street property by Ella P. King was made at a time when the said Ella P. King was mentally incompetent to transact business. Whether or not she was mentally incompetent at that time is a question for your determination, and the burden of proof is on the plaintiff to -show that she was mentally incompetent at that time. I instruct you that what the law means by being mentally incompetent is that her condition of mind at that time must have been equivalent to legal insanity. That is, she must have been in such a condition of mind as to render her incompetent to have charge of any affairs or to do any business. That language is taken from a Supreme Court decision. If her condition did not extend that far at that time, then she should not be found by you to be incompetent. If she has sufficient sense and judgment to transact the business of ordinary affairs pertaining to her situation in life, then she is not to be found by you incompetent. * * *
“If the plaintiff has failed to satisfy you by a fair preponderance of the evidence that Mrs. King was mentally incompetent to transact business at the time of this trade, then there is nothing further for you to consider in this case, and your verdict should be for the defendant of no cause of action. If you find under the evidence and these instructions that Ella P. King was in fact mentally incompetent at the time of this trade, still you are not authorized to render a verdict against the defendant unless you are further satisfied by a preponderance of the evidence in this case that Mr. Sipley knew of this fact, and knew that she was mentally incompetent and took advantage of her condition to defraud her. Even though she may in fact have been incompetent, yet, if Mr. Sipley did not know this, you have no right to render a verdict against him in this case, for the reason that this is an action based upon fraud and deceit, and it would be just as necessary for Mr. Sipley to have known that she was in that condition as it would be that she was mentally incompetent. If she was mentally incompetent, under these instructions, and Mr. Sipley knew that she was, and took advantage of that fact to make a trade with her, and he was the gainer and she the loser, then he would be liable. * * *
“I further instruct you that, if you find that the plaintiff is entitled to recover anything from the defendant, that amount shall be the difference between the fair market values of the property on Walbridge street and the property upon Fourth street upon the day that the contract for the exchange of the properties was entered into, subject to whatever incumbrances there were on either pieces of property at that time, together with any other sums of money that plaintiff may have paid to the defendant Sipley or to any one else for the benefit of the defendant Sipley, as the result of this alleged fraudulent transaction.”

The plaintiff was duly appointed guardian of Mrs. King by the probate court some months after the transaction complained of. The jury rendered a verdict in favor of the plaintiff for $1,300, and defendant has removed the-case to this court for review.

Defendant’s first proposition is that a guardian has no authority to affirm or ratify a conveyance made by a mentally incompetent ward so as to bind his ward or protect her grantee, and therefore the plaintiff cannot maintain this suit.

The verdict of the jury, under the instructions given, must be held to have established that at the time of the transaction Mrs. King was mentally incompetent within the meaning of the statute authorizing the appointment of guardians. Therefore' the deed of Mrs. King was a voidable one. Moran v. Moran, 106 Mich. 8 (63 N. W. 989, 58 Am. St. Rep. 462); Wolcott v. Insurance Co., 137 Mich. 309 (100 N. W. 569).

If she became competent during her lifetime, she might ratify or repudiate it, and, if she continued incompetent till her death, that right would pass to her heirs. Rogers v. Blackwell, 49 Mich. 192 (13 N. W. 512); Grand Lodge A. O. U. W. v. Frank, 133 Mich. 232 (94 N. W. 731).

Under our statutes, the guardian can only dispose of the real estate of his incompetent ward through proceedings in, and authority granted by, the probate court. To hold that the guardian may ratify a conveyance by a suit based upon the theory that title had passed to the grantee, who was liable to respond in. damages because of inadequacy of consideration, would result in permitting the guardian to do indirectly what he could not do directly, and would open up an easy way for disposing of the real estate of incompetent persons.

We are satisfied that the guardian has no authority to ratify the conveyances of his ward, either directly or indirectly. De Vries v. Crofoot, 148 Mich. 183 (111 N. W. 775); 22 Cyc. p. 1174; Funk v. Rentchler, 134 Ind. 68 (33 N. E. 364, 898); Gingrich v. Rogers, 69 Neb. 527 (96 N. W. 156).

The remedy of the plaintiff is in a court of equity, where the rights of all parties can be protected. Moran v. Moran, supra.

In view of this conclusion, it becomes unnecessary to consider other questions.

The judgment is reversed, without a new trial, and without prejudice to further proceedings in accordance with this opinion.

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


text:
    GIBBS v. DAYTON.
    1. Automobiles — Highways and Streets — Declaration—Pleading — Variance.
    Proof that decedent on a bicycle w,as riding in a southwesterly direction across a street when he was run down by defendant’s automobile proceeding in a southerly direction, is a variance from the allegations of a declaration charging that decedent was proceeding in a northerly direction along the east side of the street.
    2. Same — Negligence—Personal Injuries.
    The driver of an automobile which ran down decedent as he attempted to pass in front of it on his bicycle while the car was crossing from the right to the left side of the street was not as a matter of law free from negligence.
    3. Same.
    But as decedent could have seen the automobile if he had looked, and if he did see it, should not have attempted to pass in front of the car, he was guilty of contributory negligence, and he was equally guilty if he failed to look.
    Error to Kalamazoo; Knappen, J.
    Submitted April 18. 1911.
    (Docket No. 57.)
    Decided June 2, 1911.
    Rehearing denied September 29, 1911.
    Case by Leon Gibbs, administrator of the estate of Robert I. McCorkle, deceased, against Edward J. Dayton and Albert E. Rose. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Jackson & Fitzgerald, for appellant.

      E. M. Irish, for defendant Dayton.

      Alfred J. Mills and George V. Weimer, for defendant Rose.
   Blair, J.

Plaintiff instituted this suit to recover damages for the death of his intestate, alleged to have been occasioned by the negligent operation of an automobile by certain agents and employés of the defendants, whereby the machine collided with a bicycle upon which the decedent was riding. The defendant Rose at the time of the accident was engaged in business as an architect, and had in his employ as a draughtsman Robert Groves, who also drove his Buick machine for him most of the time. The defendant Dayton was engaged in the business of selling, repairing, renting, and keeping automobiles, and employed as a sales manager William Orrell. The defendant Dayton was the owner of a Columbia machine, which Orrell was endeavoring to sell to Rose, , and had discussed the matter with him a few days prior to the accident. On the morning of the day of the accident, Rose and Groves were out on business with the Buick, which they left on their return with defendant Dayton; and Rose, on 'leaving, instructed Groves to bring the Buick to the office after dinner. Some one at defendant Dayton’s garage telephoned to Rose that the Buick was not working, that Groves was outside, and asked whether they should bring the Columbia over, to which he replied, “All right, come along, and bring it over.” Eor some time prior to the accident, Orxell and Groves had been riding about the city in the Columbia. Orrell testified:

“Q. You told Groves something about operating the machine ?
“A. Yes, sir.
“Q. You were making an effort at that time to teach Groves to run the machine so you could sell it to Rose ?
“A. Yes, sir.
“Q. It had been out a little while before you made this trip and come around to the garage and stopped there, and then made this last trip, did it ?
“A. We had been out before that and left the garage immediately before this accident.
“Q. You went out early in the afternoon ?
“A. Yes, sir.
“Q. And went to the garage and stayed there ?
“A. Yes, sir.
“ Q. And, then made this trip as you say down Burdick street to Eleanor street and south on Rose street ?
“A. Yes, sir.”

The only eyewitness who described the collision testified that the automobile passed him on his bicycle at the rate of 12 to 15 miles an hour, going in a southeasterly direction along Rose street:

“I was here on Rose street, was coming off Main street on my bicycle at the time of the accident. I came down Main street from the west, and turned south on Rose street. * * * I did not see any automobile coming on North Rose street when I was on Main street. As I went south on Rose street, I did hear an automobile from the rear. It came from Main street, and followed me down. I came off Main street onto Rose and the horn blew, and, as I looked over, the machine was pretty close to me, and I sheered out to let the machine go by, out on to the west side of Rose street, and about where this walk to the courthouse comes out on to Rose street. That was probably about seven or eight rods from Main street. I noticed the automobile after it passed me. It came east on West Main street, and I was on Main street, and I turned on Rose street, and the machine followed right around and the horn blew, and, as I got out of the way of the machine, the machine took a diagonal course as it would have to, to land in front of the gashouse — took a diagonal course across the street, when it passed me, and continued right along that way, and landed in front of the gashouse on the east side of South Rose street near Academy street, that would be on the left-hand side of the street. * * * As this automobile passed me going across the street in this way [illustrating], there was a young man on a bicycle starting from the east side of Rose street, I should judge, as I can remember, in front of that plumbing establishment or Pattersons. I saw him get on his wheel and start across. the street toward Academy street. As he got about midway in the street, he saw this machine and started to turn.
The Court: I think that part should go out, * that he saw the machine.’
“ Witness (continuing): He started to turn on his bicycle, and, as he had his bicycle turned, he had it turned sharp, and you know, if you turn a bicycle sharp enough it will partially balance itself. He had his wheel right on that balance. He got it in that position. That is the condition he had his bicycle, and the machine struck the bicycle right in the front wheel.
Q. Where was this in reference to the center of the street ?
“A. Well, of course, I cannot tell you whether right exactly in the center of the street or not. It was about in front of the Academy there, not a great ways from the center of the street. If not in the center, it was more on the east side than on the west. * * *
Q. About how far from where the machine passed you was it before it struck the boy ?
“A. I should judge — I don’t think it was more than four or five rods. * * *
“Q. I understood you to tell me you were trying to get out of the way of the machine ?
"A. I did when I found out the machine was coming on Rose street. I turned off Main street to get away from it on Main street. I did not know at that time it was coming on Rose street.
“Q. Didn’t you tell the jury you heard the horn of that machine blowing on Rose street and you got out of the way of it ?
“Witness (continuing): I don’t think I said on Rose street. I heard it tooting on Main street. I heard it on Rose street, and tried to get out of the way. I don’t remember how near I was when I first heard the noise. I don’t remember the exact spot. I was on- Rose street somewhere at that time. * * * I looked around and saw this machine when it was turning the corner from Main on to Rose street. * * *
“Q. Where was the boy when you first saw him ?
“A. Getting on his wheel on the east side of the street. * * * He started west, but he did not go straight west; took a little bit diagonal cross, southwest. * * *
“Q. The automobile started across the street towards the gas works ?
“A. Yes, sir.
“Q. This boy got on his wheel and rode directly across the path of the automobile, didn’t he ?
“N. It seems so.
“Q. Did you notice whether he looked to see whether any automobile was coming ?
“A. I only judge by his actions. He turned on his wheel — turned around.
“Q. I ask you whether you noticed whether he looked to see whether any automobile was coming ?
“A. He turned his head towards the automobile.
“Q. Looked towards the automobile before he got on his wheel ?
“A. I don’t know what he saw, or what he looked at or anything. ^
“Q. Did he look before he started on his wheel?
“A. I don’t know as I know whether he looked or didn’t look, from the fact that I was not by the side of him.
“Q. Did you notice ? You cannot tell whether you did or not ?
“A. Well, all I know is what he done with his wheel.
Witness (continuing): I have ridden the wheel I am now riding about 10 years. I would not think a wheel-man when he steps on his wheel first has motion enough to keep it under control so he can dodge quickly. It is the common experience of wheelmen that, when you mount a wheel, you do not get headway enough to dodge quickly, or keep out of people’s way.”

Groves and Orrell were called by plaintiff for cross-examination under the statute, but were not questioned as to the circumstances surrounding the collision. Rose street is an important business street, and at the point where the collision occurred is paved from curb to curb, a distance of 67 feet. The deceased, the eyewitness, Lawn, and the occupants of the automobile, appear to have been the only persons using the street at the time. The accident occurred in the middle of the afternoon of May 14, 1909.

The substance of the negligence alleged in the declaration is that the driver of the automobile, Groves, was not a licensed chauffeur, as required by statute; that while Robert McCorkle, a strong, healthy boy of the age of 14, and in possession of all of his faculties, was proceeding carefully and prudently in a northerly direction east of the center of Rose street, and without any negligence on his part, he was struck by the automobile proceeding in a southerly direction on the east side of the street, “then and there being driven by the said Robert G. Groves at a high and unlawful rate of speed and in a careless and negligent and unsafe manner.” The circuit judge directed a verdict for defendants, and plaintiff brings the record to this court for review upon writ of error.

It is apparent that the proofs do not support the declaration, which alleges a head-on collision, while decedent was proceeding in a northerly direction along the east side of the street, whereas, as shown by the proofs, decedent was attempting to cross the street in a southwesterly direction. Perhaps this variance might be obviated by amendment. Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911).

We are not prepared to hold as a matter of law that there was no evidence of negligence on the part of the automobile driver, but we are of the opinion that plaintiff failed to discharge the burden of proof resting upon him to show absence of contributory negligence on the part of decedent.

The boy was experienced in the use of the bicycle and in riding about the streets in the course of his employment as a delivery boy. There was nothing to obscure his vision, and he had only the automobile and the other bicycle to avoid on a paved street 67 feet wide. If he had looked when he started to cross the street, he must have seen the oncoming automobile a few rods away, in which event it would have been negligent to attempt to cross directly in front of it. If he did not look until the automobile was upon him, he did not exercise common prudence. Zoltovski v. Gzella, 159 Mich. 620 (124 N. W. 527, 26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752). In view of this conclusion, it becomes unnecessary to consider the other interesting questions presented by the briefs.

The judgment is affirmed.

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