text:
    JOHNSON v. MACK.
    Trespass — Assault and Battery — Negligence—Instructions— Harmless Error.
    Where a declaration in trespass for assault and battery charges defendant with shooting plaintiff “wantonly, willfully, and maliciously, and without provocation, justification, or legal cause,” and the evidence shows that defendant, a police officer, without right, attempted to arrest plaintiff, and shot several times in his direction to stop him, an instruction submitting the case to the jury on the theory of a negligent shooting is harmless to defendant.
    Error to Kent; Wolcott, J.
    Submitted June 23, 1905.
    (Docket No. 59.)
    Decided July 21, 1905.
    Trespass vi et armis by Earl Johnson, by next friend, against Rollin Mack; There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      McKnigM & McAllister and JR. JE, Springett, for appellant.

      George E. Nichols and JD. C. Sheldon, for appellee.
   McAlvay, J.

Plaintiff, a minor, brought suit by his next friend against defendant for damages sustained from a gunshot wound wrongfully inflicted by defendant. On September 3, 1903, plaintiff was in the village of Lowell, Kent county, and, with three companions, visited a saloon, where some disturbance occurred between one of them, named Rice, and another person. Eice was twice ejected by the proprietor and barkeeper. Plaintiff went outside, and, after Eice was ejected the second time, plaintiff struck with his hand and broke a glass beer sign in front of the saloon. The parties in the saloon then came out, and Eice was arrested, and plaintiff ran away. The above is the only misconduct of plaintiff that evening. After midnight plaintiff went to the Pere Marquette depot, and remained there until 3 o’clock in the morning, waiting to catch a freight train to go home to Belding. While there he saw two men approaching; one of them, the defendant. He did not know the defendant, or that he was an officer, but he had been told earlier in the evening that parties were after him. Defendant was a special deputy sheriff for certain purposes, and a special police officer of the village of Lowell. He was not present when plaintiff broke the glass sign, and had no warrant for his, arrest. ’"Plaintiff started and rah'away when these men approached. The defendant called upon him several times to halt, and shot at him six times while running. He was severely wounded in the back by one shot. Two dangerous surgical operations were necessary on account of the wound he received. The injury appears to have been a very serious one. Defendant admits the shooting, and that he shot in the general direction of the plaintiff. He claims that he was shooting into the dark, and did not intencfto’ shoot' the plaintiff. Plaintiff recovered judgment. The foregoing statement is gleaned from the briefs of the parties, which are in substantial accord as to the material facts.

To avoid the expense of printing the evidence in the case, the parties have stipulated as follows:

• “1. That the plaintiff was not at the time of the shooting committing any felony, nor had he been guilty of any felony prior to that time.
“2.- That the acts which the plaintiff had been guilty of, and for which the defendant was seeking to arrest him, did not amount to a felony, and were misdemeanor, at most.
“ 3. That any acts that plaintiff had been guilty of, and for which defendant was seeking to arrest him, were not committed in the presence, hearing, or sight of defendant, and were committed at least three hours before the attempted arrest and shooting occurred.
“4. That, at the time of making the attempted arrest and shooting, defendant was not armed with a warrant, and no complaint had been made or warrant issued against plaintiff.
“5. That the defendant, in his attempt to make the arrest, and his acts in making the same, were unlawful and without authority in law.”

A motion for a new trial was made, and denied for the following reasons:

“ A number of grounds are alleged in the motion for a new trial, but only one is urged in this court, namely, that the declaration alleged that the acts of said defendant were wanton, willful, and malicious, and did not charge negligence, and that it was error in the court to permit the jury to consider negligence as a ground for plaintiff’s recovery. The declaration alleges that the defendant wantonly, willfully, and maliciously, and without justification, provocation, or legal cause, shot the plaintiff.
“The evidence clearly showed that the shooting was without justification, provocation, or legal cause. The plaintiff had committed.no felony, and was not suspected' of having committed a felony, nor had he committed any breach of the peace, nor any offense in the presence of the officer. The repeated firing of the revolver by the defendant in the night, in the general direction in which the plaintiff was running, for the purpose of causing him to stop, was admitted by defendant.
“ His conduct in this respect, even if he intended to shoot at one side of the plaintiff, as he claimed, was so unjustifiable, grossly careless, and regardless of consequences that it might well be termed wanton and willful, and, in my judgment, warranted the court in so instructing the jury. If the submission of the question of negligence was error, in my opinion it was without prejudice to the defendant.”

Defendant assigns error upon the refusal to grant a new trial, and many errors upon the charge of the court. In this court he insists upon the single contention that the trial judge submitted the case to the jury as an ordinary negligence case, whereas the declaration counts upon, a wanton, willful', and malicious injury of the plaintiff by defendant.

The portion of the charge of the court claimed to be erroneous is as follows:

“If you determine from the evidence the shooting of plaintiff was not intentional, then you will consider whether, under the evidence, the defendant is liable to the plaintiff for negligence in shooting in the manner he did. if if if
“It is not a defense that'the shooting of plaintiff occurred without the defendant’s intending it, if the defendant was intentionally discharging the gun in the general direction in which the plaintiff was running, under the circumstances of this case, intending to point it in one side, if, as a matter of fact, such use of the gun resulted in shooting the plaintiff.
“The shooting of plaintiff, even if unintentional, cannot be termed an accident, in the sense that it was unavoidable and without fault on the defendant’s part. If the shooting was not intentional, the defendant would still be liable to the plaintiff, if his negligent use of the revolver caused the injury to plaintiff without the plaintiff contributing to the danger by his own negligence.
“ It is not claimed here that the plaintiff contributed to the injury by his own negligence; that is to say, the effort of the plaintiff to escape by running in a different direction, if he did, could not, under the circumstances of the case, be imputed to the plaintiff as negligence. * * *
“If you find the defendant intentionally shot the plaintiff, or was guilty of negligence in firing the revolver in the way he did, the plaintiff is entitled to recover.”

This portion of the charge objected to must be read in connection with the balance of the charge to the jury. The court, with great care and at great length, instructed the jury correctly as to the claims of the parties, as to the law authorizing arrests without a warrant, and as to when an officer may be justified in shooting a person escaping from arrest, and further as follows:

“ Under the facts in this case, it appears that the plaintiff had not been guilty of any felony, and that the defendant had no probable cause to believe that the plaintiff had committed a felony, or that there was any immediate danger of the commission of a felony, and that the defendant was not acting in self-defense at the time of the shooting. I instruct you that the defendant had no right to shoot the plaintiff to effect his arrest, and that, if such shooting was intentional, the defendant is liable in this action for such damages as the plaintiff has suffered therefrom, under the rule of damages on which I will hereafter more fully instruct you.”

The sole claim of defendant upon the trial was that he | *clid not intend to shoot plaintiff, but shot in his direction to stop him, and upon this claim of defense the portion of the charge objected to is based. The declaration is one claiming damages for injury arising from the assault and battery committed by defendant. This assault and battery are charged to have been done “ wantonly, willfully, and maliciously, and without provocation, justification, or legal cause,” and the declaration properly alleges a cause of action. The charge of the court was warranted by the facts which the evidence tended to show. The defense relied upon went more to the question of mitigation of damages than in justification of the injury committed. In no view of the case could an arrest be justified, much less the use of firearms. The claim of defendant is not tenable. If the court was in error in giving the portion of the charge objected to, it was in favor of defendant. The conduct of defendant was reckless in the extreme,and without excuse. The reckless use of firearms by, overzealous officers often results, as in this ca.se, in .serious in, - jury. • Recklessness of this character may, as the trial, court said, well be termed wanton and willful conduct.

We find no error in the case. The judgment will be affirmed.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    BLAKE v. GRONDIN.
    Taxation — State Tax Lands — Trespass—Right to Sue.
    The right of action for trespass on lands that have been bid in for the State for delinquent taxes belongs to the State and not to the owner of the original title.
    Error to Schoolcraft; Steere, J.
    Submitted April 14, 1905.
    (Docket No. 82.)
    Decided July 21, 1905.
    Trespass by Richard Blake against Edward A. Grondin under 3 Comp. Laws, § 11204. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      C. W. Dunton and V. I. Hixson, for appellant.

      Ball & Ball, for appellee.
   Carpenter, J.

Plaintiff brought this suit under the statute authorizing treble damages for trespass, and recovered a judgment in the court below. The facts are as follows:

The trespass consisted in cutting timber on certain land. The original owners of the land were the trustees of the estate of Francis Palms, deceased. The taxes assessed against the land had not been paid for several years. The land had been sold for the nonpayment of said taxes and bid off to the State, and at the time of the alleged trespass the time for redemption had expired. After the trespass was committed, defendant purchased the title of the State and obtained a deed. Still later plaintiff bought the title of the trustees of the Palms estate, and procured an assignment of their right of action against defendant. Defendant insists that under these facts the learned trial judge erred in not directing a verdict in his favor. His contention does not rest upon the ground that he acquired the title of the State after the trespass was committed, for this circumstance was immaterial (see Huron Land Co. v. Robarge, 128 Mich. 686), but he does insist that the right of action for the trespass belonged to the State and not to the original owner of the land.

Plaintiff denies that the right of action belonged to the State, and insists that, notwithstanding the purchase by the State, the right of action for the trespass belonged to the original owner of the land. He contends that the State takes the title of the land only “for the purpose of securing its lien and collecting its revenues.” In Hickey v. Rutledge, 136 Mich. 128, this same contention was made, and it was supported by substantially the same arguments advanced by plaintiff. Our decision in that case denied this contention and overruled these arguments. We there held that the right of action for a trespass committed on State tax land continued in the State, notwithstanding the fact that it had, after the trespass was committed, transferred its title (thereby obtaining full payment for its tax lien and charges) to the trespasser himself. Plaintiff insists that that decision is not controlling, because there the controversy arose between the State and the trespasser, while here it arises between the original owner' of the fee and the trespasser. We think this distinction altogether unimportant. According to our decision in Hickey v. Rutledge, the State could in the case at bar recover against defendant, upon the ground that at the time the trespass was committed it was the owner of the property. It would be in direct conflict with this decision to hold that the trustees of the Palms estate might also recover as the owners of the property. We cannot sustain plaintiff’s contention without deciding that the right to recover damages for cutting timber on State tax lands belongs in all cases to the original owner of the title, and not to the State. Such a holding is not only forbidden by Hickey v. Rutledge, supra, but it would obviously be disastrous to the.State’s interests, and would tend to defeat the purpose of the tax law.

Plaintiff also contends that there is no proof of the regularity of the proceedings by which the State acquired title. These proceedings were introduced in evidence. No irregularity was pointed out, and no objection made to them. We therefore feel forced to assume that they disclosed no irregularity which affected the title. It follows, therefore, that the trial court erred in refusing to direct a verdict in defendant’s favor.

Judgment will be reversed, and a new trial ordered.

Moore, C. J., and McAlvay, Montgomery, and Ostrander, JJ., concurred.


author: Ostrander, J. Montgomery, J.

text:
    TURNER v. BURR.
    1. Saving Questions for Review — Necessity of Exceptions— Case Determined on Pleadings.
    Where a probate appeal was determined upon demurrer to the cross-petition filed below, the pleading and assignments of error on case made raise the real question to be determined in this court, and no exception to the giving of the judgment in the court below is necessary.

      2. Pleading — Probate Courts — Demurrer — Raising Legal Questions.
    It is not contemplated that the practice of raising pure legal questions by demurrer, which prevails in our courts of general jurisdiction, shall be the practice in probate courts, since the overruling of a demurrer requires generally the framing and trial of an issue on the merits, and a remand of the record for that purpose. Montgomery, J., dissenting.
    S. Appeal and Error — Record—Questions Considered.
    Where the probate court enters an order for petitioner on sustaining a demurrer to a cross-petition, and the circuit court on appeal affirms the order on the record below, this court, upon case made, will treat the case as though testimony had been offered to prove the facts set out in the cross-petition and had been excluded.
    4. Wills — Construction—“Heirs”—Evidence—Intent oe Testator.
    Where a will, after giving certain legacies, including one to testatrix’s husband, provides that the remainder of the proceeds of the sale of the estate shall be distributed among the “lawful heirs” of testatrix “according to law,” the husband of testatrix is entitled,.under the statute of distribution, to take as an heir, and parol evidence is not admissible to show that testatrix did not so intend.
    Case made from Kent; Perkins, J.
    Submitted April 27, 1905.
    (Docket No. 95.)
    Decided July 21, 1905.
    Petition to the probate court by Salem T. Turner for a partial distribution of the estate of Sarah C. Turner, deceased. Helen M. Burr and others filed an answer in the nature of a cross-petition asking for a construction of the will of deceased. From an order sustaining a demurrer to the cross-petition, contestants appealed to the circuit court. There was judgment at the circuit for petitioner, and contestants assign error.
    Affirmed.

      Frank L. Carpenter, for appellants.

      Burlingame, Belden & Orton (Cyrus F. Perkins, of counsel), for appellee.
   Ostrander, J.

Sarah ChipmanTurner died testate December 16,1901, at her home, in the city of Grand Rapids, Mich. Her husband, Salem T. Turner, survived her. Her will was executed June 5, 1901, and by its terms, after requiring all of her property, real and personal, to be converted into money, and after distributing $17,000 in legacies to various persons, including one of $500 to her husband, it is provided:

“ Eleventh. I direct that the remainder of the proceeds of the sale of my real and personal estate be distributed among my lawful heirs according to law.”

The executors having paid debts and specific legacies, and having on hand a considerable residuary fund in money, the husband petitioned the probate court for an order directing a partial distribution; setting up that a moiety of the residuary estate belonged, under the terms of the will, to himself as one of the lawful heirs of his deceased wife. The answer of certain of the heirs denies that petitioner is an heir, within the meaning of the will, and denies that he is entitled to any portion of the residuary estate. The answer also takes the form of a cross-petition, and avers certain facts which, if true, seem conclusive of the main fact asserted — that testatrix did not mean that her husband should have any part of her estate except the specific legacy of $500, and that that was given him for fear that he might otherwise contest the will. To this cross-petition a demurrer was interposed by the husband, the matter was brought on for hearing upon the pleadings, and the probate court made an order for partial distribution, awarding one-half the sum distributed to the husband. An appeal was taken by the heirs to the circuit court, and, upon the record above indicated, the circuit court affirmed the order, and judgment to that effect was entered. A motion for a new trial was made, and was denied. Thereupon a case was made, settled, and certified to this court. The errors assigned are three in number — the first, directed to the point that the court erred in construing the will, the second, that it was error to affirm the order of the probate court; the third, that it was error to deny the motion for a new trial, and to refuse appellants’ costs of the appeal to be paid out of the estate.

The record shows no exceptions taken to any ruling or determination of the circuit court, and it is urged by counsel for appellee that for this reason the case must be dismissed, upon the authority of Wilkinson v. Earl, 89 Mich. 626; Wertin v. Crocker, 47 Mich. 642. It was not necessary to take an exception to the giving of judgment in the court below. The pleadings and assignments of error raise the real question to be determined. Hen derson v. City of Detroit, 61 Mich. 378, 383. We think it proper to say, however, that the practice pursued in this case would in most cases be open to objection. In the brief for appellee it is said:

“Many of these statements are considered utterly untrue by the appellee, and are not admitted in any manner, except so far as the demurrer of the appellee in the probate court would, for the purpose of the argument upon demurrer, admit the truth of the statement in the cross-petition.”

It is not contemplated that the practice of raising pure legal questions by demurrer, which prevails in our courts of general jurisdiction, shall be the practice in probate courts, since the overruling of a demurrer requires generally the framing and trial of an issue on the merits, and a remand of the record for that purpose. We treat the present case precisely as though appellants had offered, first in the probate court, and later in the circuit court on appeal, testimony to prove the facts set out in the cross-petition, and such testimony had been by the circuit court excluded.

It is important to learn the precise issues raised by counsel for appellants, and in this we are aided by stating some things which he does not claim. He does not claim that there is any ambiguity in the words or terms used in the will, unless he may be held to the contention that the word “heirs,” when used in a will, is always of doubtful meaning. Nor is it claimed but that the clause of the will in question evidences an intention to have the residue of the estate, which is or will be in the form of money, “ distributed ” “ according to law.” What counsel does claim is that the testatrix did not mean that her husband should take any part of the residue of her estate, nor to include him in the term “my lawful heirs,” but intended and understood that term to include only her kindred by blood. This intention, it is said, is evidenced (1) by the legal meaning of the words used in the clause under consideration, if not (2) by certain facts sought to be proved. He seeks to introduce the testimony of the person who drew the will, to whom it is claimed she stated at the time the will was prepared “that she did not wish [her husband] to have any part of her estate, but for fear he might contest and break her will, she had determined to bequeath him a legacy of $500,” and testimony showing relations between testatrix and her husband to explain and make reasonable her said alleged purpose. Conceding, as we may, the general rule in this State to be that the circumstances surrounding the making of a will, the condition of the estate, and the relationship of beneficiaries to the decedent.may all be considered in determining the intention of the testator, and that this court has, in considering similar clauses in wills, held that the word “heirs,” used in them, was not very conclusive of testator’s intent (Hascall v. Cox, 49 Mich. 435; Bailey v. Bailey, 25 Mich. 185), it is nevertheless true that the intent of the testator has been found, whenever possible, in the language of the will itself, and, if affording the means for a reasonable interpretation and one generally harmonious, parol evidence of intention has not been received.

The case before us is not a difficult one, and we have had the benefit of excellent briefs and of oral argument. There survived testatrix neither lineal descendants, father, mother, brother, nor sister. Her husband and the children and grandchildren of deceased brothers and sisters claim the estate. Her directions, found in the will, were to convert her estate into money. The estate is a considerable one, valued at upwards of $50,000, and the specific legacies amount to $17,000. The debts were less than $1,000. The residuary estate is therefore the greater part of the whole, and, unless there is to be found some limitation in the words, “my lawful heirs,” is to be disposed of, by direction of the testatrix, as an intestate estate would be. There is but one method of distributing such an estate according to law, and that is to apply the statute of distributions. Applying that statute, the property will be distributed one-half to the husband, and the other half to the children of any deceased brother or sister by right of representation. The decree appealed from so ordered. But counsel says the designated beneficiaries of the distribution directed are not the persons of the statute of distributions, but are “ the lawful heirs ” of the testatrix; these are her kindred by blood, of whom the husband is not one. If we adopt this view, we must abandon the position that testatrix intended a distribution according to the statute, or we must hold that the intention cannot be given effect, because there is no statute provision for distributing, the husband being alive, which does not, under the circumstances here, include him as a distributee. There is abundant authority for holding that the will evidences an intention, which is entirely agreeable with fair construction of the language used — the estate being all personal property, and the direction being to distribute according to law —to use the word “heirs” to designate the persons who under the statute take personal property. We may go further. The term used is “my lawful heirs.” In English law the word “ heirs ” has always meant the person succeeding to the title to real estate on the death of another —one who succeeds to the title by force of the law. A common definition is, “ He upon whom the law casts an estate of inheritance immediately on the death of the owner.” Under our statute governing the descent of real property, the husband is within the definition given. Indeed, in this case the same persons, and taking in the same proportions, are designated in both of the statutes referred to. We are not willing, and are of opinion that we are not permitted, to look further. .Therebeing no ambiguity appearing upon the face of the instrument, the testimony of the scrivener who drew the will was not admissible. Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744).

The decree of the probate court and the judgment of the circuit court are in accordance with the precise directions found in the will, and give effect to the expressed intentions of the testatrix.

Judgment is affirmed, with costs of this court to the appellee.

Moore, O. J., Grant, and Blair, JJ., concurred.

Montgomery, J.

I concur in the result reached in the foregoing opinion. I do not agree that the practice pursued was objectionable.


author: Grant, J.

text:
    SELBY v. DETROIT RAILWAY.
    1. Carriers — Street Railroads — Injuries to Passengers While Alighting.
    A passenger on a street car is justified, as a matter law, in assuming that the car is stopping for her to alight, where, after she had informed the conductor where she wished to stop, the car ran by the usual stopping place, and immediately after-wards the bell was rung and the car stopped midway of the block.
    2. Same —Negligence —Starting Car While Passengers Are Alighting.
    Where a street car is stopped under circumstances which justify a passenger in believing that he is invited to alight, the conductor must not start the car while passengers are in the act of alighting.
    Error to Wayne; Hosmer, J.
    Submitted April 5, 1905.
    (Docket No. 20.)
    Decided July 24, 1905.
    Case by Marion Selby against the Detroit Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Corliss, Andrus, Leete & Joslyn, for appellant.

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

This case is before us for the second time. See 122 Mich. 311. A full statement of the facts here is therefore not essential. The theory of the plaintiff and of the defendant is there stated. We there declared the law of the case in the following language:

“ If the claim of the plaintiff was true that she had been carried past the place where she desired to alight, and the car was stopped farther on by the conductor to enable her to alight, then it was negligence on the part of the company to start the car while she was in the act of stepping from the car to the pavement.”

The plaintiff had notified the conductor that she desired to stop at Park Place. r He did not stop. Plaintiff and her escort were standing upon the rear platform of a crowded car. She said to her escort that the car is not going to stop, and thereupon he stepped to the door, and the bell was rung, the car immediately checked its speed and stopped about the center of Washington Boulevard, opposite the end of what is called the “ Parking.” The usual place of stopping is on the opposite side of Washington Boulevard. Plaintiff claims that while the car was standing still she proceeded to alight, the car started, and threw her to the pavement. The court instructed the jury that:

“If the car had come to a full stop, I think, under the circumstances, it operated as an invitation to her to alight. * * * If the car had come to a stop, it was the conduct- or’s duty to see, before allowing the car to proceed, that no person was in the act of alighting, and it was the motorman’s duty, before he started the car, to receive the proper signal from the conductor. * * * If the plaintiff attempted to alight from the car before it had stopped, and while it was still moving, she was guilty of contributory negligence, and cannot recover.”

Counsel for defendant contend that the question whether the plaintiff was justified in assuming that the car had stopped for her to alight was one of fact for the jury, and not of law for the court. This presents the sole question for determination.

The ordinance requires that cars shall be stopped on the farther side of the street approached by them. The contention of the defendant is that the car had stopped in an unusual place, and under unusual conditions, created by the number of cars preceding it, requiring the rear cars to slow their speed or to stop entirely in order to give the car ahead time to unload its passengers at the usual place; and that if the plaintiff saw, or should have seen, the cause for stopping, it was her duty to remain upon the car until arriving at the usual place for passengers to alight, on the opposite side of the street. It is clear that the plaintiff did not and could not know the cause of the stop. She knew she had notified the conductor to stop and let her off at Park Place; that she had been carried past; that the bell had immediately been rung fora stop; that the car immediately, in response to the bell, had slowed down, and finally stopped, tinder these circumstances she had a right to assume that the stop was made in response to her request in order that she might alight. There was no more difficulty in alighting in the center of the street than on the side. It was entirely natural for her to conclude that the conductor had temporarily forgotten her desire to alight at Park Place, had recalled it, and had signaled for the car to stop, so that she, her escort, and others might alight. We are not dealing with a case happening in broad daylight, where the passenger could see all the surroundings and the reason for stopping as well as could the conductor and motorman. If many cars were in use that night upon this line, and were crowded on account of the great number who had been to see a show on the outskirts of the city, it was all the more necessary that the conductor should exercise care, and see that no one was attempting to get off after his car had stopped and before starting. Cases of passengers alighting at the regular stations of steam railways, where platforms are provided, and brakemen, porters, and conductors are provided to call off the stations and to assist passengers in alighting, have little or no application to street railways, where the street is the only place of alighting. We have examined the street-railway cases (Poole v. Railway Co., 100 Mich. 379 [25 L. R. A. 744]; Jackson v. Railway Co., 118 Mo. 199; Nichols v. Railroad Co., 106 Mass. 463; Patterson v. Railway Co., 90 Iowa, 249; Chicago West Div. R. Co. v. Mills, 91 Ill. 39; North Birmingham Street R. Co. v. Calderwood Co., 89 Ala. 247) cited by the defendant, and none of them parallel this case in their facts, and have but little bearing upon it. None of .them are in conflict with the rule herein announced. The only disputed question of fact was whether the car had stopped, or whether the plaintiff attempted to alight when it was moving slowly. This question of fact the jury decided in favor of the plaintiff. When a street car is stopped under circumstances which justify a passenger in believing that he is invited to alight, it is a reasonable and universal rule that the conductor must not start his car while the passengers are in the act of alighting.

A motion was made for a new trial on the ground that the verdict is excessive. This motion was overruled by the court, and we do not think the evidence justifies us in reversing the case on that ground.

Judgment affirmed.

Carpenter, MoAlvay, Montgomery, and Hooker, JJ., concurred.


text:
    REMEY v. DETROIT UNITED RAILWAY.
    1. Damages — Personal Injuries — Postponement oe Marriage —Instructions.
    Where, in an action for personal injuries, plaintiff claims that her injuries caused the indefinite postponement of a contemplated marriage, an instruction that if her injuries would preclude her earning anything in the future, or working m any capacity — acting as a housewife — that was a matter for the jury to consider, as it was quite possible that the injuries were such as to preclude her from being married for some time, is not objectionable as permitting the jury to give compensation for the value of earnings lost by plaintiff as a housewife.
    3. Same — Variance—Objections Not Raised Below.
    An objection that the declaration avers that plaintiff was so injured that she could never be married, while the evidence shows that her marriage was merely postponed, merely raises a question of variance, and, not having been raised below, will not be considered by this court with reference to the claim that plaintiff is not entitled to recover damages for the mere postponement of her marriage.
    3. Same — Sufficiency of Evidence.
    Where, m an action for personal injuries, there is evidence that before plaintiff’s injury the day had been set, and preparations were then being made for h'er marriage, and that after the injury the marriage was indefinitely postponed because of her injuries, which were permanent, the proof is suffl'eiently definite to warrant a recovery ior the postponement of the marriage.
    4. Same — Instructions—Requests—Modification.
    Defendant requested a charge that plaintiff could not recover for any aggravation of any disease or condition that existed prior to the day of the accident, inasmuch as the declaration did not count for any aggravation of any pre-existing condition, which the court gave; adding that he did not understand the testimony on plaintiff’s part to be that she suffered from any of the injuries complained of prior to the accident, and that therefore there could be no question of aggravation to be presented to the jury. Held, that the court’s statement was the mere repetition of a thought already expressed, and did not destroy the force of the request.
    5. Trial — Misconduct of Counsel — Arguments — Prejudicial Error.
    Where, on the trial of an action for personal injuries, plaintiff, on cross-examination of defendant’s expert, who had made an examination of plaintiff, showed that he carried away some pus discharged from plaintiff’s womb, for the purpose of making a microscopical examination, but there was nothing in the testimony to indicate that such examination was not necessary, or that the witness was moved by a purpose or desire to discover that plaintiff was afflicted with gonorrhea or syphilis, a statement by plaintiff’s counsel, in argument to the jury, that such microscopical examination was unnecessary, and had been made by the witness for the purpose or with the desire of discovering that plaintiff was afflicted with gonorrhea or syphilis, was prejudicial to defendant, and was not cured by mere remarks by the court that none of the physicians had reason to believe that there was any reason for them to look for such disorders, and that the remarks of counsel were unwarranted, though plaintiffs counsel thereupon stated that he would drop the matter, and requested the court to instruct the jury on the point, to which the court stated that all that was essential had been said on the subject.
    Error to Wayne; Hosmer, J.
    Submitted April 7, 1905.
    (Docket No. 38.)
    Decided July 24, 1905.
    Case by Nellie B. Remey, by next friend, against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Corliss, Andrus, Léete & Joslyn {Paul Broadley Moody, of counsel), for appellant.

      Lodge, Trevor & Brown, for appellee.
   Carpenter, J.

While plaintiff was riding as a passenger on one of defendant’s cars, a collision occurred between said car and another car preceding it on the same track. It is the claim of plaintiff that as a result of this collision she was first thrown violently forward against the back of the seat in front of her, and then back against the seat upon which she was sitting; that her womb was thereby displaced, her coccyx fractured, and her sciatic nerve injured; and that in consequence thereof a marriage then contracted was postponed indefinitely. She brought this suit, and recovered a judgment of $5,000 in the court below. Defendant asks us to reverse that judgment for various grounds, all of which go to the measure of damages.

1. The court charged the jury as follows:

“ If her injuries were such as would preclude her earning anything in the future, or would preclude her working in any capacity — acting as a housewife — of course, that is a matter for you to take into consideration. * * * I do not mean to say * * * that if she were to be married it would be expected that she would earn by working in a store, as she has in the past; still she might be physically unable to do housework. * * * It is quite possible, gentlemen of the jury, that the injuries are such, and you may find them to be such — because the extent of the injuries is wholly for you, and not for me — as to preclude her from being married for perhaps some time.”

Defendant contends that the court erred in giving the foregoing instruction, because there was no evidence whatever of the value of plaintiff's earnings. This objection proceeds upon the assumption that this instruction, properly construed, permitted the jury to give compensation for the value of earnings lost by plaintiff as á housewife. This is, in our judgment, a mistaken construction of the charge. The jury are not told to make allowance for earnings, but to consider plaintiff’s incapacity to do work as a housewife, and this in connection with the statement that they may find plaintiff’s injuries may preclude her from being married for some time. The effect Of this instruction is to say to the jury that they may consider plaintiff’s impaired capacity to act as a housewife, in determining whether her injuries are such as to postpone her marriage. This is not error, if plaintiff had a right to damages for the postponement of her marriage.

2. We therefore consider defendant’s claim that plaintiff had no right to damages for the postponement of her marriage. It is contended that she had not, for two reasons: (a) Because the declaration, properly construed, avers that the plaintiff is so injured that she can never be married, while the evidence tends to prove that her marriage is merely postponed. We answer this objection by saying that it merely raises a question of variance, which was not raised in the court below, and which, therefore, under the well-settled practice in this court, will not be considered. And (b) because the evidence that plaintiff’s injuries postponed her marriage is too indefinite and uncertain to warrant a recovery for that element. There is evidence tending to prove that before plaintiff’s injury the day was set, and preparations were then being made for her marriage, and that it was postponed because of her injuries; that these injuries are permanent. We think this evidence sufficiently definite and certain to warrant a recovery for this element.

3. The defendant requested the court to charge “that the plaintiff cannot recover for any aggravation of any disease or condition that existed prior to the day of the accident, inasmuch as the declaration does not count for any aggravation for any pre-existing condition.” The court gave this charge, and added:

“ I think that is so, gentlemen of the jury. I do not understand the testimony on the part of the plaintiff in this case is that she was not [“not” should probably be omitted] suffering from any of the injuries complained of prior to that time, and that the injuries which she now suffers are the direct result of the accident. Therefore there can be no question of aggravation to be presented to you.”

Defendant contends that this comment of the court destroyed the whole force of its request. I do not so construe said comment. I think the effect of the judge’s charge is to tell the jury that there could be no recovery for any aggravation of a pre-existing disease, for two reasons: jFirst, because it is not counted upon in the declaration; and, second, because it is not claimed by the plaintiff. The language of the court at the conclusion of the comment, “ Therefore there can be no question of aggravation to be presented to you,” does not, in my judgment, mean, as defendant’s counsel contend, that there is no warrant in this case for saying that none of plaintiff’s complaints do in fact result from an aggravation of some pre-existing disease. This language is a mere repetition of the thought already indicated, that the question of damages on that theory has not been presented.

4 One of defendant’s witnesses (Dr. Spitzley) testified that he made an examination of the plaintiff a few days before the trial (this examination was made in the presence of plaintiff’s counsel and of physicians chosen by plaintiff), and that that examination disclosed no evidence of plaintiff’s injury. On cross-examination, plaintiff’s counsel drew out the fact that, at the time of the examination, witness carried away with him some pus discharged from plaintiff’s womb, for the purpose of making a microscopical examination, and that he made that examination.

Q. And you wanted to find the presence or absence of what ?
“A. The presence of everything that is there, and the absence of anything that was not there. I was not looking for anything special. * * *
Q. Did you find any infection — any evidence of infection — there ?
“A. I found pus. Pus means infection. * * *
Q. You wanted to know whether there was a specific infection there, and that was the purpose of that microscopical examination ?
“A. I wanted to find out what was there.
Q. That is why you made the examination ?
“A. I just said I made the examination to find out what was there.
Q. Answer ‘yes ’ or ‘no.’ Didn’t you make that ex-animation to find out whether there was any specific infection there ?
“A. No; I did not. * * *
Q. You looked for it while you were making that microscopical examination ?
“A. Why, certainly, I looked for everything.
Q. What do you mean by ‘ specific infection ?’
“A. What I mean by ‘specific infection,’ if I am talking about a case of diphtheria, I mean diphtheria.
Q. Will you find diphtheria in the uterus ?
“A. Yes; sometimes. * * *
Q. I am asking you by specific infection in the uterus ?
“A. Any kind that might occur there.
Q. What are they ?
“A. Many might; the different kinds of pus germs—
Q. Goon. What kind of specific inf ection would you find in the uterus, or what would you look for ?
- “ A. The different kinds of pus infection.
Q. What are they ?
“A. They include the streptococcus, two or three kinds of staphylococcus, gonococcus.
Q. What is the gonococcus ?
„ ‘ ‘A. Gonococcus is the specific germ that causes a disease of the mucous membrane known as ‘ gonorrhea.’
Q. You find really diphtheria infection, you find coccus infections, and if you find any sore there it may be syphilitic ?
“A. Syphilitic. * * * Yes, sir.
‘ ‘ Q. Specific infection ?
“A. Yes, sir.
Q. You took that pus away upon that cotton, and you made a microscopical examination to find out if there were any of these specific infections there ?
“A. Specific infections; yes, sir.”

In his closing argument to the jury, plaintiff’s counsel said :

“ Let us consider the temper and frame of mind of the experts that have testified against the plaintiff in this case. Did you notice yesterday afternoon when it took me ten or fifteen minutes to drive Dr. Spitzley into an admission of why he had put that pus from the womb upon the cotton and took it away ? Shrewd Spitzley! Shrewd, although under oath! He knew what I was driving at all the time. You did not, perhaps; but he knew, and it took me ten or fifteen minutes to get the admission, but I got it. Now, what did the pus indicate, by the way, that he found there? Is it normal ? No; no; he says that it indicated that something was the matter with that womb'; and yet he testifies to you that he found that pus and took it away with him upon a piece of cotton. And the attitude of this expert is revealed by the admission which he finally made as to the purpose of asking whether a microscopical examination had been made of that pus, and his taking away pus upon a piece of cotton for the purpose of microscopical examination, and making a microscopical examination. He wanted to see whether that girl had gonorrhea — gonorrhea or syphilis.”

Defendant’s counsel excepted. Plaintiff’s counsel continued :

‘ ‘ That is the testimony, if the court please, and you will remember it. He wanted to see whether that girl had. gonorrhea or syphilis, whether it was present or absent. And that is the attitude, gentlemen of the jury, in which these bright, honest, fair experts have approached their testimony upon this case. Why, gentlemen of the jury, it does not need an expert to know that you could tell— that a physician ought to tell without a microscopical examination — whether anything of that kind was the matter. * * * -I had a right to ask that question. I had a right to show to you the kind of so-called fair experts that were testifying for the defendant in this case, and, although it took me ten minutes—
The Court (addressing plaintiff’s counsel): Why is it unfair * * * for the physician for the railway company to eliminate everything that he can in reaching the disorder ?
“Plaintiff’s Counsel: Because, gentlemen of the jury —I am appealing to the common knowledge of the jurymen now — that they could tell without making a microscopical examination, and that there are other evidences, but he was so anxious to find out; and I think I have a right to argue that to the jury, that he even made—
The Court: There is no reference on the part of anybody here, by anybody, as to that — that she was suffering from any of those disorders. None of the physicians had reason to believe that there was any reason to look for this disorder, any more than anything else. * * * It does not seem to me that the remarks of counsel in that regard are warranted.
“‘Plaintiff’s Counsel: I will drop it, then, rather than have any error. (Defendant’s counsel excepts to the argument.)
Plaintiff’s Counsel: In view of your honor’s ruling, if you will kindly instruct'the jury on that point ?
The Court: I have, I think, said all I think is essential to be said on that subject.”

The foregoing statement of plaintiff’s counsel is, in effect, this: That defendant’s physician made an altogether unnecessary microscopical examination — for his asking the jury to say that it was unnecessary was equivalent to his affirming that it was unnecessary — and that he made this examination for the purpose or desire of discovering that plaintiff was afflicted with gonorrhea or syphilis. This statement was clearly unwarranted. There was nothing to indicate, and therefore nothing to justify the jury in saying, that the microscopical examination was not necessary. There was nothing to indicate that in making that examination the witness was moved by a purpose or desire to discover that plaintiff was afflicted with gonorrhea or syphilis. The most that can be said is that he made that examination to discover whatever might be discovered, and that such examination might disclose the presence of several specific germs, one of which was the germ of gonorrhea. Neither can we assume that this improper argument was not prejudicial to defendant. The argument to the jury — an argument which could not be answered — that a witness of defendant, occupying a confidential relation toward plaintiff, had planned this flagrant violation of her rights, was one calculated to inflame the passions of the jury, and we are not convinced that it did not have that effect. Neither is this a case in which counsel’s conduct may be excused on the ground that his language was unpremeditated or brought about by improper remarks of opposing counsel. On the contrary, it is evident that he designedly brought out the testimony which served as a text for, but which did not justify, his improper and unwarranted remarks. Nor do I think that the statement of the trial judge that the remarks were unwarranted altogether destroyed their effect. Plaintiff’s counsel call our attention to many cases in which this court has held that improper remarks did not justify a reversal of a judgment. It is sufficient to say that in those cases we thought that the improper remarks did not affect the verdict. In this case we think it did. It should also be said that plaintiff’s counsel went too far in referring to the influence which defendant had over witness Hudson. We do not, however, decide that this impropriety constitutes reversible error.

For the error pointed out, the judgment should be reversed, with costs, and a new trial ordered.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    HIBBARD v. BAKER.
    1. Wills — Competency of Testator — Evidence—Previous Illness.
    On the question of the mental competency of a man 79 years of age to make a will, testimony respecting an illness 9 years before, during which he had delusions, but from which he fully recovered, is inadmissible.
    2. Same — Evidence—Sufficiency.
    Evidence on a will contest as to testator’s capacity examined, and held, insufficient to warrant a finding of testamentary incapacity.
    3. Same — Evidence—Opinions.
    Nonexpert witnesses should not be allowed to give their opinions that a testator was mentally incompetent when they testify to no facts inconsistent with sanity.
    Error to Kalamazoo; Adams, J.
    Submitted April 11, 1905.
    (Docket No. 47.)
    Decided July 24, 1905.
    Prank L. Hibbard presented for probate the last will and testament of William Baker, deceased. The will was allowed in the probate court, and Payette L. Baker ap-J pealed to the circuit court. There was judgment at the circuit for contestant, and proponent brings error.
    Reversed.

      D. O. French, for appellant.

      Osborn & Mills, for appellee.
   Ostrander, J.

An instrument purporting to be the last will of William Baker is claimed by his son, Payette L. Baker, to be invalid, because the testator lacked mental competency to make it, and because undue influence over him was exercised by his wife, and by others aiding and assisting her. William Baker was a farmer. He died February 27, 1903, at the age of 83 years. He had had two children — the son, Payette, born in 1850, and a daughter who died, leaving a daughter. This granddaughter from her infancy lived with decedent as his own child. Payette remained at home until he was 25 years of age, working the last four years for wages. Thereafter, for 19 years, he worked his father’s farm on shares. He had five children, all born on his father’s farm. In 1893 Payette sold to his father his crops, personal property, and a house he had built for himself on the farm, and in January, 1894, removed to Idaho, where he has since resided. There remained on the farm then decedent, his wife, and the granddaughter. On April 25, 1897, decedent’s wife died. Payette was at home during a part of the time his mother was ill. Thereafter decedent and the grandchild composed the household until August 20,1899, when she married, and, with, her husband, lived some seven miles distant from decedent. Having been informed of the approaching marriage of his granddaughter, decedent proposed marriage to an elderly and respectable lady of his acquaintance, living in Battle Creek, and she declined his offer. Later, after the granddaughter had married and gone away, decedent arranged with Mary Hibbard, a widow, who then lived in Augusta, who for 30 years had lived within a half mile of decedent, to go to his farm and act as housekeeper. She went to decedent’s farm on the last day of August, 1899. Two days later, on Saturday, at the breakfast table, decedent proposed marriage, and brought up the subject again on the succeeding Tuesday, at which time Mrs. Hibbard agreed to marry him. On Friday, September 8th, they, together, visited a lawyer in Battle Creek, who had some acquaintance with Mrs. Hibbard, and none with decedent. Decedent informed the lawyer of the contemplated marriage, and that he wanted a deed of his farm made in such way that he should have control of it as long as he lived, and, if Mrs. Hibbard outlived him, the farm should become hers after his death; if he survived her, it should remain his. He was advised that such disposition could not be made before the marriage; that after marriage a deed to them as husband and wife could be made. He was further advised, upon his inquiry, that an antenuptial contract could be entered into, and one was prepared and executed, and left with the lawyer for safe-keeping. As drawn, this contract not only covers the ground stated, but contains also a promise on the part of Mrs. Hibbard to execute a will in favor of decedent, devising him all realty of which she might die seised for his life. On Sunday, September 17, 1899, the parties were married. The granddaughter was not invited to attend, nor was she present. She had not been married at her grandfather’s house, nor did she invite him to her wedding. On September 20, 1899, decedent and his wife executed a deed of the farm to a third person, who on the same day executed a deed to decedent and his wife as tenants by entireties, containing also the words, “ and to the survivor of them and his or her heirs, forever.” These deeds were both duly recorded. Decedent also on the same day made his last will, by the terms of which, after directing payment of his debts, he bequeathed to the five children of his son (naming them) $900, to his granddaughter $100, and the residue of his estate was bequeathed and devised to his wife. The value of this residuary legacy does not appear. We infer from all the facts appearing that it is of small value. Frank L. Hibbard, a foster son of his wife, was named executor. His wife also executed her will in accordance with the terms of the antenuptial agreement, making her foster son her residuary legatee and devisee. At the date of his last marriage, decedent was 79 and his wife 66 years of age. Mrs. Hibbard-Baker owned a house and lot in Augusta, to which, after decedent had sold off his personal effects at auction, they removed in November, 1901. In 1890 decedent had an acute attack of sickness, the nature of which does not appear, during which he was subject to delusions. In the spring of 1902, delusions recurred and continued at intervals until he died. The probate court, in which the contest was instituted, admitted the will to probate. Contestant appealed to the circuit court, where a jury found a general verdict against its validity. The substance of all the testimony given in the circuit court is in the bill of exceptions.

Counsel for proponent strongly insists that there is no evidence of the mental incompetency of decedent at the time the will was executed, and that the court should have, as it was requested to do, so instructed the jury. Determination of this contention has required the reading of the entire record. Most of the testimony introduced to show mental incompetency is aimed at establishing, by possible inference, senile dementia — a progressive condition attendant in some cases upon advancing age, and a condition which, if existing, affords opportunity for the exercise of influence by way of direction and suggestion, |Which does not attend, to such degree, at least, most forms of dementia. In other words, if decedent was ; afflicted as it is claimed he was, no test can well be applied to determine lucidity and disposing power at any particular time or during any particular interval. It may well be said, and our examination of the record convinces us that it should be said, that, if decedent was competent to make the disposition of his property which he did make, no separate question of undue influence is involved. There is no direct testimony and none from which it can be reasonably inferred, that decedent was improperly influenced or persuaded to make the disposition he did make, if he was legally competent to make a will. We have reached the conclusion that there is no evidence in this record impeaching the validity of this will. In reaching this conclusion, we eliminate entirely, as improperly admitted, the testimony received over objection relative to the illness decedent had in 1890. It is true that the testimony relating to this sickness shows that decedent had delusions. It also shows an acute malady, from which he recovered. It is undisputed that after that time he attended to his business as usual. He visited the World’s Fair in 1893, made visits to New York and Boston in 1891, and sold land. He was more feeble physically.

The persons best acquainted with decedent to the time when the will was made were his son and his granddaughter. They are most concerned about the disposition of his property. It is true that the son (contestant) left the farm, and did not afterwards see very much of his father. He left the place in January, 1894.

“ When my father was in his prime, he was not overly large in stature, but he was a very strong, wiry man, with great endurance, physically and mentally. He was a man that had a great deal of will power, and a strong mind of his own — very—as near as I can describe it. I went away from there before mother died.
Q. Will you state to the jury how you came to go west ?
A. Well, I had lived there until I was forty-five years old. I had my own family of five children, and I could see that my father’s condition was getting in such shape there was nothing certain about my having a home there. It would be just as he happened to take a notion. He was getting very feeble and feeble-minded, and I had made up my mind that I would talk with him, and see if he was willing to fix things so that I would be sure that I would have a home when he was through with it; &nd consequently I asked him and mother down one afternoon to my house, and talked the matter over.
Q. What did you say to them ?
“A. Well, I told them that I had come to the conclusion, under the circumstances, that I could not stay there, the way I had, unless I knew I was going to have a home of my own when they were through with it.
Q. What were you getting for working the farm ?
A. One-half. I found half, and he found the other half, and each got half the profits.
Q. Go on and tell the conversation you had in the presence of your father and mother.
“A. Well, pa spoke right up, and he says: ‘I shan’t fix things any different than they are. I am not going to deed my property away,’he says, ‘until I am through with it.’ Well I says, ‘ Why, don’t misunderstand me.’ I says, ‘ I don’t want you to give me a cent, any more than you have ever given — not a cent.’ I says, ‘As far as your deeding your property away, I would advise you never to do that until you are through with it.’ But I says, ‘You can fix it so I can be sure that I will have a home here when you are through with it, and still you control your property just exactly the same.’ And he said he wouldn’t fix things any different than they was. He said, if I wanted to stay and work the place, he would like to have me, the same as I had, but, if I thought I could do any better, why, to go somewhere else.
“Q. Well, what did you do then ?
“A. Well, I said — He said he wouldn’t do anything different, and I told him, of course, if that is the way he thought about it, I was sorry about it, but, if that was the way he thought about it, that he could look for somebody else to work his place, for I should leave between that time and April.
Q. Well, did you talk with him about it afterwards— about going away, and where to go to ?
“A. Yes, sir; I know I asked him one time what his advice would be in regard to going North or going West. I thought some of going North. He said, if he was going away from here, he would go either West or South. I said, ‘If you were going West or South, which would you advise?’ He said, ‘I should think I would go West.’”
On cross-examination, he testified:
“ I didn’t think him incompetent from the fact that he refused to deed the place to me. At the time he wasn’t very bad off; that is, he wasn’t like he became afterwards. He was in his seventies, and competent to do business-, but he wasn’t like he had been. I say he was getting so he wasn’t able to do business. I thought he was at that time competent to make such a deal as that.
“ Q. That was a very important matter, was it not ?
“A. Well, it might have been. I had no talk with my father before that about conveying this property to me. Not a word. I never heard a deed mentioned before.
“Q. Well, he was positive in his determination that you could not have it, wasn’t he ?
“A. Yes. I told him that I could not stay there any longer, not to make any more; with the family I had on my hands, I could not afford to stay there any longer. He said: ‘ If you think you can do any better, why, go
somewhere else. That is all right.’ That conversation ended right there. Then we talked about where I had better go. I asked his advice in regard to going North or West. He said, if he was going to pass an opinion, if he was going away from there, he would either go South or West, and, if he was going to advise me, he would advise me never to go North. Then I went West.”

After the marriage of the granddaughter, this witness wrote his father a letter upon the subject. It was written the day of his father’s marriage, from which it is apparent that he knew that Mrs. Hibbard was at the house with him.

“Boise, Idaho, Sept. 17, 1899.
Dear Father: * * * Addie wrote to Carrie to know what your plans were but she has not written us a word since she was married. Have been thinking we would hear from her. We were, more than surprised to hear of her marriage as it was so much different from what she talked when I was at home two years ago. She told me she would not get married as long as you lived, but would stay and keep house for you. Of course, we can’t blame her for wanting to get married, but knowing the circumstances just as I do, I don’t think she has done as she should. Now, I don’t want to hurt her feelings or any one else’s, but I think just ás I have written. * * * Now, pa, I wish you would write me and let me know what your plans are. Of course we could see by Carrie’s wedding card that she was going to live with Abbott, as her P. O. address would be Galesburg. Now, we would all like to have you come out here and live with us, or come and stay just as long as you want to. Now, don’t think the trip would be too much for you, for I believe you could take a palace car or tourist car and come just a little easier than you could stay at home, and I do think the change of water and climate would be a good thing for your bladder and kidney trouble, and we have probably got twenty or twenty-five just as good doctors in Boise as there is in any place. Have you got a good trusty man on your place ? Now, I wish you would make your arrangements and come here this fall. You talk with Dr. Fisher about it and see what he thinks and I wish you would let us hear from you soon. If you think you can’t write, perhaps Mrs. Hibbard would write for you or Mary McKeown would write for you. Now, don’t fail to write. * * * Give Mrs. Hibbard our best respects and get her to write for you if you cannot see to write, and write as soon as you get this. Give our regards to all inquiring friends. They all say, ‘ Tell grandpa to come out here.’ ”

The granddaughter married in August, 1899, and left her grandfather alone in his house. She informed him in March of her intended marriage.

“There wasn’t much said. I simply told him that I expected to be married in August, and would leave there, and he made no objections to it. I don’t remember what his remark was, but not very much of anything. I don’t remember that he himself referred to it again before August came round. I told him where I was going to. It was about seven miles from where he lived. I asked him to come and make his home with me. I gave him the chance.
“Q. What did he say about it ?
“A. He said he would rather not. That is all the remark he made to that at that time.”
On her cross-examination she gives us some details:
“I was born thirty-five years ago last March — 1869. My mother died when I was a year and a half old. My grandparents then took me to their home, and cared for me through childhood and in womanhood. I made my home there all the while. I attended the district school, and from the district school to the high school at Kalamazoo. When I got through my schooling, I went back there to live. My grandfather had been a very prominent man in that township. He had held public offices. He was school director once, but I can’t tell the date now. I can’t tell whether he was director when he was taken sick in 1890, or not. I assisted him in looking after the details of the office; assisting him in writing, in his school records. At that time his hand trembled considerably.
“Q. And having been to school and educated in his home, he sometimes relied upon you to do more or less; to do the clerical part of his office work ?
“A. I did all the writing.
“Q. He didn’t ask you to do it because he was incompetent, did he ?
“A. He didn’t tell me why.
“Q. Well, can you tell us why ?
“A. How can I tell, when he didn’t tell me ?
“Q. Did you know when the last term of his office of school director which he held expired ?
“A. If he held it in 1890, it was in 1891.
“Q. Don’t you remember of helping him take the census of the school district P
“A. I do, but not the year.
“Q. Was it before or after his sickness ?
“A. It was afterwards. At the time of his sickness, Fayette was working the farm. He continued to work it until 1894. I suppose Fayette turned over to my grandfather after 1890 all the business, the same as he had before, but I don’t know about that. I didn’t watch his business while he was there as I did afterwards.
“Q. You didn’t know much about his business then, at all, after the time that Fayette went away, in 1894 ?
“A. Why, I knew something about it, of course. I suppose that my grandpa had a bank where he did his banking business. I don’t remember so much about that at that time. I tell you I wasn’t paying attention to his business then, as I did afterwards. I suppose he had money in the bank. I know sometimes he had money here in the bank in Kalamazoo, but don’t know whether it was before or after that.
“ Q. Did he usually do his business at a bank in Battle Creek ?
“ A. I don’t think he did as much business there* at that time as he did after 1894. It was his custom to take care of his money by banking it. When he had more than he wanted to use at home, it.went to the bank.
Q. In 1891 did your grandpa go anywhere ?
“A. Yes, sir. He went on a trip to Boston and the East. He went also to Saratoga and New York. I think he was gone seven weeks. I don’t remember any trips that he took in 1892.
Q. Do you know of his loaning any money in 1892 or ’3 ?
“A. I couldn’t tell for sure any particular place that he did, but he loaned money; yes, sir. He had been in the habit right along of loaning money, and taking securities for it.
“ Q. In 1893 did your grandfather go anywhere ?
A. He went to "Chicago, to the World’s Fair; he was there six days there at the time.
“Q. Up to that time Fayette and his father had had some little trouble, as I understand it ?
“A. A little; yes. Things came up that they didn’t agree on, but it was not constant wrangling. There was no jealousy on my part as to who should get the farm. I don’t know whether there was on Fayette’s part or not. He didn’t tell me so.
Q. Wasn’t Fayette induced to have his father put the farm in his name so that he could not leave it to you ?
“A. Not that I knew of. I had no talk with Fayette about that farm transaction. I did not know of his calling my grandparents down to talk that matter over with them until afterwards. Grandmother afterwards told me. My grandpa didn’t tell me. He didn’t say anything to me about it at all. . When Fayette went away he and grandpa had some little disagreement about settling up, but not a great deal. Fayette' wanted to sell the farm property. He wanted my grandfather to buy it.
“ Q. Fayette put the price on his property, and your grandfather thought the price was too much ?
A. Yes; lie thought he was rather high.
Q. Did you and your grandmother talk with your grandfather to try and get him to settle with Fayette ?
A. Why, we told him we would settle rather than to have any trouble. We advised grandpa to settle.
Q. And he refused to do it, didn’t he ?
“A. He said at first he would not, for the reason I said before — he thought Fayette was too high, he thought Fayette asked too much money for what he had. * * *
Q. In the settlement, how much did your grandfather pay him, all told ?
“A. He was to receive $800. My grandfather paid him $500, and my grandmother $300.
Q. How did your grandmother come to pay him $300?
“A. Because she simply did it. That is all I know about it. Grandpa asked her if she did not think she ought to pay half for buying the old house. I don’t know it to be a fact that grandpa absolutely refused to pay $600 for the old house. The matter of the settlement was talked over among us all. We helped him go over the details of it, and all that, but not to aid him in getting a settlement, and my grandmother and grandfather each paid.
Q. Now, after Fayette went away, in the spring of that year, your grandfather had an auction ?
“A. Yes. That was in March. At that auction he sold his implements and stock on the farm that he didn’t wish to keep.
Q. He sold substantially all that he had bought of Fayette, didn’t he ?
“A. No; I couldn’t say what amount of it.
Q. Was it a fact that he was just buying that to help Fayette out ?
“A. Why, I can’t say that was the reason, particularly. I think George Brooks was the auction clerk. My grandfather took some notes at the auction. I don’t know how many. I couldn’t say.
‘c Q. Can you tell how many hundred dollars he took in notes ?
“A. No; I couldn’t say that. I don’t know how much the auction amounted to in the aggregate.
Q. Do you remember whether he lost any notes that he took ?
“A. No; he didn’t lose any. They .were all paid — interest and all.
Q. Do you know where your grandpa took his money that he got from the auction — whether he put it in the bank or not ?
‘ ‘A. Why, I suppose he did. I can’t say whether he took it to Battle Creek or Kalamazoo. That spring he made a lease with John Steve to work the farm. He was there two years, I think. That would be from the spring of 1894 until the spring of 1896. He had a written lease. I wrote it up. I had no form to draw the lease from, excepting the beginning of the legal form. He advised with me about it.
Q. But he had to determine whether he should make a lease to Mr. Steve ?
“A. Why, yes; I suppose he did. Yes, Mr. Steve was a good tenant. I considered him so.
Q. Then he had judgment at that time to make a lease and select a good tenant, didn’t he ?
“A. Well, he turned out to be a good tenant. The lease was in writing. It was a lease on shares, half and half. Mr. Steve worked the place, and turned over to my grandpa what his share of the crops was. That was the lease.
“ Q. Now, did your grandpa go anywhere in the summer of 1894 ?
ilA. Yes, he went to Saratoga county again. He took another trip to New York. We were gone four or five weeks this time. As near as I can remember, that was the second trip he had taken East.
Q. Who decided as to the taking of that trip ?
“A. I could not say as any person did, but my grandfather decided whether he would take it or not.
“ Q. Now, did your grandfather sell any timber or any land in 1894 ?
“A. He sold some land, but don’t want to swear to the date of it. He sold it to Manning and Cash Greer. I can’t tell the exact amount of it — forty acres, I think. It was timbered land. I think he got $600 for the land, but I am not sure. The timber had been cut off the land. He sold the timber to Wm. Frie. I think he sold the timber within a year before. I can’t tell what he got for the timber. In selling the land, he didn’t get all the money down. I don’t remember how much he got.
Q. In this trip in 1891, did your grandfather keep a record of the expenses of the trip ?
“A. I didn’t see him. I don’t know whether he did or not, but I suppose he did.
Q. I show you this memorandum book, marked ‘ Exhibit E,’ and ask you whose writing it is on the first two pages ?
“aL It looks like Mr. Baker’s. If I should read it over, I should say it referred to that trip — what I see of it.
Q. ‘September 19th, 1901. From Battle Creek to Boston $57.00.’
“A, That is in grandpa’s handwriting.
Q. ‘From Boston to Fundy, $16.14.’
“A. We went to Fundy, in the State of New York. From Fundy we went to Northville. We all went — my grandmother and grandfather and myself.
Q. ‘ From Fundy to Augusta, $42.94. Total $142.04.’ He kept track of that, didn’t he ?
“A. He kept track of that. It looks that way. My grandfather paid the expenses of the trip, but my part of it and my grandmother’s part of it was paid back to him. That came out of my grandmother’s money. My grandmother had some property of her own. She did not take it out of my inheritance which sRe left me when she died. This was the trip in 1891. I do not know what the next trip cost. I don’t remember. The next trip was to Sara-toga county, New York.
Q. Now, I want to come back to the deal we were talking about; that piece of land; that forty-acre business your grandfather has sold to Manning & Greer; and you said, if I remember correctly, that he had sold the timber off of it previous to that ?
“M. Yes, sir; I think he sold the timber off the land the year before he sold the land. When he gave the deed of the property, there were present Mrs. Baker, his wife, myself, Mr. Manning, Mr. Greer, and Mr. Slawson. I don’t remember how much money was paid down. Something was paid. He took a note and mortgage to secure the balance of it. It was paid him in payments, but I could not tell in just what amounts, nor do I know how much he got for the timber which he sold off the year before. This mortgage and note was one of the papers that ha had to look after. I can’t tell how long it run before it was finally settled up. Either Mr. Manning or Mr. Greer came to the house to make payments along. I don’t .remember whether it was yearly payments or not. That transaction had not been closed up when I was married and went away. They were making payments to him along during the time that I was there. This transaction was had after Fayette went away. That would be some time after January, 1894.
‘ ‘ Q. Did he sell any other land at any other time ?
“A. Yes; he sold some more. He sold the timber off the five acres of the home farm. That was located on the south side of the road. I do not remember what he got for it. He sold the timber standing in the tree. It had not been cut. He sold this to Wm. Frie. That was when Mr. MeKewan was there working the place. I think Mr. MeKewan was there from 1898 to 1899 — 1 think, the year he sold the timber. Mr. Bolyen came in the spring of 1899. He was the next tenant. I don’t know how much he got for it. I don’t remember. He didn’t sell the tops, but just the saw timber.”

Other witnesses relate a few instances of apparent lapses of memory, of appearances of faulty co-ordination of ideas, and stories of advancing feebleness as age increased, during the period from 1890 to the date of his death. No witness testifies to facts, conversations, or appearances which are fairly indicative of unsound mentality. The last 30 years of his life, decedent was troubled with a difficulty of the bladder, resulting from an enlarged prostate. Inflammation would sometimes become acute, and he required help to use the catheter. Otherwise he had no considerable ailment after 1890 until his last illness, in 1903. As has been noticed, in August, 1899, the granddaughter was married — not at home, but in Aúgusta, and decedent was not invited to be present. The day after the marriage she came to her grandfather’s house with men and horses and wagons, and took away household property which she says her grandmother had given to her; leaving the house pretty well stripped of furniture, and leaving the old gentleman alone. It is true that she testifies to his uniform good nature towards her thereafter, and we notice the fact only to emphasize the other fact that decedent was confronted with a condition probably never anticipated, and was left to meet it as best he could. He sought in marriage an elderly and respectable widow, living in Battle Creek, who declined to marry him. His intentions in this direction became known to others than the parties most directly interested. It was known to Mrs. Hibbard, and she first learned from him after she had gone to his house that he was not to marry the woman referred to. At his age, and afflicted with the infirmity already referred to, decedent required assistance which a wife could best render. He proposed marriage, not to a stranger, but to a woman upwards of 60 years of age, whom he had known well for 30 years. Evidently he realized, and sensibly, the situation. He told her that, if she would marry him, she should have the farm. What occurred thereafter has been already rehearsed. There is in the record nothing impeaching the integrity or good faith of Mrs. Hibbard, her son, nor the lawyer who prepared the papers. There is no testimony tending to show any lack of attention to decedent after the marriage. The will and other papers were prepared by a lawyer who did not know decedent, but who did know Frank Hibbard and Mrs. Hibbard. He was suggested by Frank Hibbard. But nothing could be more natural. The testimony of this lawyer is to the effect that decedent stated his business, was intelligent, and talked connectedly and with apparent understanding of his business, property, and heirs at law, and remembered the names of his children and grandchildren, and that nothing indicated that he was not entirely competent to do the business he was there to do. It is undisputed that the decedent did his own business — and it was considerable— received, paid out, and put in bank his money, and was in all respects the master of his own affairs, until a period shortly before his death. He had the infirmities of old age, but it did net appear that any one at any time assumed to act for him in any business affair, or that he ever lacked mental capacity to make the numerous bargains which he did make. No instance of a lack of capacity or of a want of business shrewdness is pointed out.

The witness Manning was asked this question:

Q. You may state whether the last time you saw him, in your judgment, he was capable to understand and do ordinary business ? ”

Objection that witness had not testified to any facts inconsistent with a perfectly well and sound mental condition. Objection was overruled, and witness answered: “ I don’t think he was.” This witness had testified to the purchase from decedent in 1894 of a 40-acre timber lot. When he made the bargain he—

Observed he was getting older. He wasn’t the man he formerly was. He wás not as active. His mind did not seem to be as clear as it was in former years when I knew him. I afterwards went there occasionally to do business with him, and I noticed that he seemed to be forgetful, and his mind was not as good as it was at first. When I went there to deal with him about this timber, I did the business partly with Mr. Baker and partly with Miss Palmeter. We all talked about it — Mr. Baker, Mrs. Baker, and Miss Palmeter. * * * Mr. Baker did part of it, and Miss Palmeter did part of it. He appeared to me at the time to be forgetful. * * * He didn’t appear to be able to negotiate with me without prompting. His mind appeared to me to be different then from what it had been when I had known him before. When I went away from there you would ask him anything, and his answer was usually right back for you to decide; but at 'the time I saw him, and after that when I went there to transact business with him, he seemed to hesitate more about answering questions, and to rely more upon Miss Palmeter and his wife. * * * He was, of course, getting old. * * * His hearing was not good. He would generally ask over, unless a person spoke loud to him. His eyesight was not good. He had a magnifying glass that he used when he was trying to read any printed matter or any writing. * •* * About three or possibly four months after his second marriage I was there and did some papering for him. I noticed at that time that he was getting old and feeble. * * * I noticed nothing special as to his mental condition. I talked with him very little, but not much. I didn’t notice any difference in his hearing.”

On cross-examination the witness testified that he had no business transaction with decedent before 1894, and from that year up to 1900 lived on a farm two miles from him; that prior to 1894 he had remarked in decedent a strong will and mind; that in the purchase made in 1894 another (a justice of the peace) made the papers, but Mr. Baker made the price.

“Q. Now, what did you see of him that made you think he was not capable of doing business ?
“A. Well, from his general appearance, as anybody would naturally be; that he was getting older and in a more feeble condition; and his calling on his wife and Miss Palmeter to bring up things that he had forgotten about. I don’t remember now that it was anything, except I know that every little while he would refer something to them for an answer. I was there from twenty minutes to half an hour, and it might have been longer.
‘ ‘ Q. Did you see anything about his general appearance, besides his being old ?
l‘A. Why, just as I said — that he called on them to answer a part of the questions. I cannot tell just what questions he did call on them to answer. I don’t remember the questions. My memory is reasonably good. I can’t say a single thing that he asked them to answer. He advised with them as to whether he had better sell it or not. There was nothing strange about his advising with his wife concerning the sale of this land, but, from what I have known of Mr. Baker before that, he decided these matters himself. I was never present when he decided an important business transaction before, and I can’t say that he didn’t always advise with his wife in business. That was the first time that I was ever present with Mr. Baker to have any business transaction with him or any important engagement, and at that time he advised with his wife as to whether he should sell that piece of land that he was about to sell. I cannot give you any other reason why I believe that Mr. Baker was then incompetent to do business. What I have said covers it. I should not have done any business with him, had I known that he was fully incompetent todo business. The next business I did with him was when I went back to have the papers executed, about a week or ten days after I went there to talk it over. Mr. Slawson executed the deed, and his wife joined him. I paid down $50. I think Miss Palmeter took the money and counted it. Mr. Baker took a mortgage back for the balance of the purchase price. The reason I handed the money to Miss Palmeter was that she came and took the money, instead of him. We were all together in the room. I was there about a year after that. I think then I paid him $100, and he indorsed it on the note. Miss Palmeter simply did the indorsing.
“ Q. Did you see anything of Mr. Baker that day that impressed you that he was not fit to do business ?
“A. Well, the fact that he didn’t do any of it. I did not do any business that day except to leave the money and have it indorsed. I had no long talk with Mr. Baker. Nothing occurred that day by which I was able to gauge his mental condition, only just from the fact that she did the business for him. There was nothing said, as I remember it now, that indicated that he was incompetent or in failing mind or health, any more than he left the whole business for her to do. There was no business done, except to take the money and indorse it on the note. His eyesight was somewhat dim. I presume he could not probably read very well. There was nothing in that transaction that indicated incompetency. The next time I saw him I think was the vinegar transaction. When I went there, the fact that he didn’t know me went to show that he was gradually losing his mind or his eyesight — I don’t know, but perhaps both. I know that his eyesight was not good. I think this vinegar transaction happened in the spring of 1896, and, all there was about it, he didn’t recognize me. I presume I talked with him something like five minutes. He said he didn’t believe he could sell me any vinegar, and that was all there was to it. The next time I saw Mr. Baker was when I went to make the last payment. ' This was in 1897. Mrs. Baker and Miss Palmeter were both there. I paid all I owed at that time. Mr. Greer wasn’t there at that time. Mr. Baker didn’t at that time discharge the mortgage, because Mr. Greer had not at that time paid his all up. I finished my part at that time on the mortgage. My half of it was paid. Nothing special attracted my attention at that time, except that he was failing. He was getting older. He was two years older. Besides the fact that he was getting older I noticed nothing especially. The next time I was there I went over to hang some paper. That was about four months after he' was married. I was there about four hours, I presume; something like that. Nothing happened especially that day, only the general business of hanging the paper. We did that and got away as soon as we could. I didn’t have any business transaction that day; not a bit. I had a casual conversation with him. That was all. Nothing took place that day to make me think that Mr. Baker was not competent to do business, only the general appearance. He was a little older. I think he was a little hard of hearing the last time I saw him, in the fore part of 1900, and when I bought the timber of him in 1894.
Q. Have you told all the reasons you can give here why you said Mr. Baker was mentally incompetent, in your judgment ?
A, I think so.”

Counsel moved to strike out the opinion answer given by this witness! The ruling was refused. Another witness for contestant, in the course of his cross-examination, said, in substance, that he thought, upon an occasion stated, that decedent acted sort of crazy. It was said in Prentis v. Bates, 93 Mich. 234 (17 L. R. A. 494), in a discussion of a ruling similar to the one here criticised:

“It may be a question of some difficulty to determine in all cases whether a witness has shown himself competent, nor do we intimate that he may not be able to state to the jury his opinion, after showing that there were acts and appearances of the party which he is unable to describe to the jury, but which left an impression upon his mind; but in the absence of this, and where the testimony of the witness only goes the length of showing acts which are entirely consistent with sanity, and which have not the slightest tendency to show insanity, it would be a dangerous rule which would permit his opinion to be received.”

Applying this rule here — and we are obliged to consider the errors assigned which require it — we think that the opinion of Manning ought not to have been received. It is proper to state also that if each witness presented and examined by contestant had been asked for an opinion touching the mental competency of decedent, and the same test had been applied, the opinion must have been excluded.

It will not be profitable to further discuss the testimony. Our conclusion is reached, not in an attempt to find the facts as upon disputed testimony, but it is based upon the findihg that there is in the record no testimony of facts, acts, or conditions inconsistent with the mental competency of decedent at or before the time of executing the will. The conclusion reached makes discussion of other errors assigned unnecessary.

The judgment below is reversed, with costs of this court to proponent, and a new trial granted.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.