text:
    STORRS v. GRAND TRUNK WESTERN RAILWAY CO.
    Railroads — Injuries at Crossing — Contributory Negligence.
    Where, in an action against a railroad company for injuries at a crossing, it appears that plaintiff, with knowledge that construction work was being done on the railroad, approached a crossing in a cut and heard the whistle and saw the steam from an approaching engine, but without stopping to look or listen whipped up his horses and attempted to cross the track ahead of the train, and was injured, a verdict should be directed for defendant on the ground of contributory negligence, though the train was one of flat cars being pushed ahead of the engine.
    Error to Eaton; Smith, J.
    Submitted December 6, 1905.
    (Docket No. 153.)
    Decided December 22, 1905.
    Case by William Storrs against the Grand Trunk Western Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Harrison Geer, for appellant.

      J. M. & J. L. Powers, for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant to recover damages for injuries to himself and his team, wagon, and harness by reason of a collision between a construction train on defendant’s road and plaintiff’s wagon at a street crossing in the city of Charlotte. He was acquainted with this crossing. About 7 o’clock in the morning of the day in question he drove from his home, going to his work, and coming on to Munson street, when at least 70 feet from the railroad crossing, heard the whistle of an approaching train, looking he saw the steam rising over the embankment along defendant’s right of way. On account of the embankment he could not see the oncoming train. He thought the engine was about 80 rods down the track, and decided to pass across ahead of it. He struck his horses with the whip and went down to and upon defendant’s track without stopping to look and listen to discover where the train really was. When his horses stepped upon the track, he discovered that this engine was pushing a string of flat cars ahead of it, and that the first car was right upon him. He jumped to save himself, and striking the frozen ground was injured in one hip. The wagon was demolished, the harness broken, and the horses injured.

Plaintiff was familiar with this crossing, having often passed over it. He knew that defendant was at work putting in a double track east of the crossing, and that during the day construction trains passed here frequently, drawing gravel to the east, and, in going back west, the empty gravel cars were pushed ahead of the engine. He says he did not expect the gravel train so early in the morning. He thought it was a freight train coming up there.

On the trial it was claimed that the speed of the train at 10 to 12 miles an hour was contrary to the provisions of a city ordinance regulating the speed of trains within the city limits, and the court permitted the ordinance to be introduced subject to exception by defendant. A request to direct a verdict for defendant on account of the con-tributary negligence of tbe plaintiff was refused. This is the error relied upon by defendant; error assigned upon tbe admission of tbe ordinance having been waived upon argument.

The plaintiff testified as follows:

‘ ‘ I heard an approaching engine whistle and looked up and saw the steam of the engine over the bank. The engine was, I judge, 80.rods away when I first saw it. I could not see a thing of any train of fiat cars. After observing the engine that distance — 80 rods from me — I undertook to cross the track. I hadn’t only about 60 or 70 feet to cross the track, and the locomotive, I supposed was drawing a freight up the grade. I thought I had plenty of time to cross the track. When I saw the engine, or the steam from the locomotive, I thought I had plenty of time to cross the track, and whipped my horses. They started on a trot, trotted right down • on the track before ever I see a thing. Just as they got right onto the track, so far that I couldn’t stop, that train backed right down from behind the bank to my left. I couldn’t see it until after I was right on the track. I don’t think the rear of the rear flat car was over half of the length of the car from me when I first could see it. I threw off the lines and jumped. I thought that was my only salvation.”

On cross-examination he said:

“It was a cloudy morning, about 7 o’clock standard time. I drove east on Amity street until I came out on Cochran avenue and crossed it to Munson street, and then tried to cross the railroad. Besides the embankment, there were some trees and houses — apple trees, for one thing. That was some 40 rods east of the depot.
“ Q. Did you listen for any train ?
“A. I didn’t have to listen. I heard the train whistle. I had not been accustomed to crossing there so often as at several other places. I have crossed there several times. At that time the company was double tracking the railway somewhere along down there — not right there. I don’t know how far east of there. I had been teaming right along around the town; I hadn’t been so very much in the north part of town.
Q. You knew they were running gravel trains or construction trains right along ?
“A. I have seen them go through here; yes, sir.
Q. You knew it was necessary for them to run back when they run down with a load—
“A. (interrupting). I didn’t know anything about it. I have seen them run back and I have seen them run ahead.
Q. You have seen them back up ?
“A. Yes, sir.
Q. You know they were accustomed doing that — going out and unloading and then backing up ?
“M. It seems they was; yes.
Q. You knew all about that ?
‘A- I have seen them, I said.
Q. You knew they were running back and forth ?
“A. Of course they were there.
Q. That they were drawing gravel through town ?
“A. They had to run backwards and forth.
Q. There was no place where they put an engine ahead of it — where they run down and unloaded — you knew that?
“A. I didn’t know anything about it, for I hadn’t been on the road. They had to run backwards and forth.
“ Q. You didn’t stop before you went to cross the road ?
“A. I didn’t have to. I saw the train — was watching it; I saw the locomotive and was watching it. I couldn’t, see the cars behind the locomotive because of the bank. I saw the steam of the locomotive — not the locomotive itself at first. When I heard the whistle, I looked up that way. I could see the steam. I couldn’t see anything else. I supposed it was a freight coming. I know right where it was. I heard it whistle. My team was on a walk.when I first heard it, but I picked up my whip, hit them, and they started on a trot. I knew the train was coming west by the steam.
Q. You knew the road was constructing its road there at that time, you knew the company was constructing the new road there ?
“A. Yes, sir.
Q. Yes; double-tracking its road ?
“A. I couldn’t help but.
Q. They had been constructing right along there, had. they not ?
“A. No, sir; not that I ever noticed.
Q. You knew they were graveling the road there ?
“A. Not there they were not.
‘ ‘ Q. Hadn’t you seen those loads of gravel go through here?
A. Yes; but I don’t know where the train went.
“ Q. And turned back empty ?
“A. Yes.
‘ ‘ Q. And you knew every time they run back after drawing a load of dirt, they run back with flat cars ahead of the engine ?
“A. Ihave seen them run back that way.
Q. You knew that was the way they did; you saw them unload the gravel down there ?
“A. No, sir; I did not. I had seen train loads of gravel go through here and return empty. I have seen them run back with the flat cars ahead of the engine. I saw them going back and forth. I did not anticipate at that time that they might be running back, because it was early in the morning. I didn’t see any gravel train. I didn’t think there was any. I thought it was a freight train coming up there. It was so far off. I didn’t think that I had to investigate it.
“Q. Didn’t any one alarm you before you went on the track P
“A. No; not that I heard.
Q. You can’t see on the road ?
“A. Not until you get on the track. I was sitting on the wagon seat. I watched for the engine, supposing it was a freight train. I looked for the train. I couldn’t see anything but the engine until I drove right on the track; I saw the steam of it. I looked for it; was looking right at it, right that way.
“Q. When you got up in 20 feet of the track, did you look for the engine ?
“A. I couldn’t look for the engine in 20 feet of the track because this house stands there that hides the whole of it. You can’t see when that was 20 feet from the track. It is not true that you can see down the track when ■20 feet away from the track. I don’t know how far that house stands back from the track.
“Q. If the house stood there, how did you happen to see the steam of the engine ?
“A. I saw the steam of the engine before I come up to the house; that is, before the house come in range of me. I heard the engine whistle and .saw the steam of it coming up there, just when I turned from Cochran avenue into Munson street. There is one house on the north side of Munson street, between Cochran avenue and the railroad. Cochran avenue is probably 60 or 70 feet from the track. I measured it once.
Q. When was it you struck your team and put them on a trot ?
A. Just as I heard the whistle. I had just turned my team in on Munson street. I made up my mind that I had plenty of time to cross the track before the engine got there. I heard no one trying to alarm me — to stop me. I did not listen for any one. The ground was frozen and my wagon making a noise. I looked all around and didn’t see anybody. I did not stop, I drove right along, because I supposed I had plenty of time. When I kept my eye on the engine, I supposed I had plenty of time to cross the track. The' house hid my view when I got against the house. I saw the smoke before I reached the house, and heard the whistle before I reached the house.
Q. Did you see anybody on the train that day ? .
“A. I did, sir. I was looking all the time at the steam of the engine; I couldn’t see any cars from where I was. I was watching it, my horses on a trot. • I heard nobody trying to stop me, and I saw nobody trying to stop me from going on the track; I saw nobody, and I heard nobody holler. I was watching the engine because I didn’t want it to run onto me. I was watching to see how close they were coming to me before I got to the track.
Q. Didn’t you know that it would be possible for them to run a gravel train back there ?
“A. I didn’t think anything about a gravel train. I didn’t suppose it was necessary for a man to see a train coming for 80 or 100 rods to stop and look very much. I knew that at that place they were double tracking it. I looked all around on account of the double track. I looked around to see if there was a train coming from the other way. I didn’t see nothing. My horses was on a slow trot.
‘ The Court: I do not understand there was a train coming from the other way.
The Witness: No, sir; there was not. I was looking to see if there was.”

Plaintiff heard the whistle. He saw the steam from the engine all the time he was approaching the track. He was familiar with the place. His view of the train was obstructed by the embankment. He did not stop and listen; but, thinking the engine was far enough away, he whipped his horses to hurry across. Plaintiff was not put in a place of danger by defendant. He had absolute control of his own movements. Approaching the track after he heard the whistle and saw and continued to see the smoke, at a place where the train could not be seen, his testimony shows he did not take the slightest precaution to protect himself from the injuries he received. He was guilty of contributory negligence. Shufelt v. Railroad Co., 96 Mich. 327. In this case it was held:

“ These trains must run by cuts, by embankments, by trees, and other things. He who does not choose to stop and listen where he cannot see must suffer the consequences of his own negligence.”

Also see Brinker v. Railroad Co., 121 Mich. 283. Plaintiff’s knowledge of the approaching train was a warning to him of the possible danger, and he had no right to make the attempt to cross the track ahead of the oncoming train without exercising the ordinary precautions for his own safety. Graf v. Railway Co., 94 Mich. 579; Korrady v. Railway Co., 131 Ind. 264; Railroad Co. v. Houston, 95 U. S. 702. Plaintiff knew that the train was upon this road and coming toward this crossing. The fact that he thought it was a freight train, and did not expect the construction train so early in the day, did not relieve him from stopping, as he had ample opportunity to do, for the purpose of ascertaining the actual situation confronting him, before he attempted to cross. Boutell v. Railroad Co., 133 Mich. 486; Brinker v. Railroad Co., supra.

There is no dispute in the case as to what the plaintiff saw and what he did just before and at the time of the accident. The dispute in the testimony as to where the lookout man stood on the rear of the backing train is, therefore, not material, as the case is determined upon the question of the plaintiff’s contributory negligence. Plaintiff knew a train was approaching. He knew that the construction train sometimes backed over that crossing in going west. He says he thought this was a freight train. He could not see this train on account of the embankment. He had knowledge of its approach, and .needed no other warning. There is not in the evidence the slightest indication that he observed any precaution whatever. Haas v. Railroad Co., 47 Mich. 401; Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274. The court should have instructed a verdict for defendant as requested.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Grant, Blair, and Hooker, JJ., ■concurred.


source: Caselaw Access Project

author: G-rant, J.

license: Public Domain

text:
    DAVIS v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Injuries at Crossings — Negligence.
    To strike a caboose standing in the street, with an engine, and back it across a sidewalk without any warning, is negligence.
    2. Same — Contributory Negligence — Question for Jury.
    Decedent, by stopping for a few seconds on a sidewalk where a railroad track crossed it, while a caboose was standing detached near by, was not guilty of negligence per se, so that recovery could not be had for his death caused by the backing of the caboose against him without warning, but the question is one for the jury.
    Error to Bay; Shepard, J.
    Submitted December 7, 1905.
    (Docket No. 162.)
    Decided December 22, 1905.
    Case by Noble Davis, administrator of the estate of Harry E. Davis, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed..

      Defendant’s road runs northwesterly and southeasterly through the city of West Bay City. The streets of said city run north and south and east and west. State street, King street, and Litchfield street run north and south, of which State is the east street, King the center, and Litchfield the west. Mosher and Hart streets cross these at right angles; Mosher being the northern one. The defendant’s road crosses King street a short distance north of the intersection of Hart and King. The block bounded by Litchfield, Hart, King, and Mosher streets is chiefly an open common. The deceased, a son of the plaintiff, lived with his parents on the west side of Litchfield street. The defendant’s roadbed at this point consists of three tracks. King street is raised somewhat above the level of the surrounding ground; on the west side isa sidewalk.
    On the day in question a caboose was left standing on ■the west track and in King street, about six feet from the sidewalk. The deceased, 23 years of age, started from his residence to exercise a sick dog. He went across the open common towards King street, calling the dog after him. He reached the sidewalk near the caboose. He turned to go north upon the sidewalk, and, when in front of the car, he stopped, turned with his back to the car, stooped over, patted his knee, and whistled for his dog, looking towards his home, whither his dog had gone. An engine, with another caboose attached, backed up against the standing caboose with such force that it struck the deceased, rolled him under the car, and injured him so that he died the next day. The car passed entirely over him, and he was removed from under the northern trucks of the second car. Only one witness, the mother of the deceased, saw the accident. Two others saw him upon the sidewalk in front of the caboose just before the accident, but were not looking at the time it occurred. Mrs. Davis described what happened as follows:
    “When decedent left the house at 5:30, witness was standing at the window, when he first started out of the house, talking to him. That the porch is on the south side of the.house, and comes within four feet of the front, and within seven or eight feet of the sidewalk on Litchfield street. That, when decedent went out of the house, he crossed Litchfield street, and took the path in the vacant lot crossing the field to King street, and while he was walking across the field, he stopped two or three times and was calling his dog, and the dog refused to go with him, and came back home, and, when it came back towards the house, witness stepped outside onto the porch, and decedent walked on, thinking the dog was following him, and when he got behind Mr. Smith’s little barn, going straight to King street, he missed -his dog again, and turned to the left to King street, and had gotten across the track. He got to King street, striking it pretty-near in front of Mr. Smith’s house. That the dog had come back again part way across the field, and decedent walked up onto the sidewalk and spoke to his dog again, and then he walked a little farther on, and witness was telling the dog to go to him, saying, ‘Sport, don’t you see Harry ?’ and decedent called again, and stopped and looked towards State street, or in that direction. That he then looked back toward witness on the sidewalk, took a few more steps, and he was up onto the crossing, and a few minutes after, a second later, he was on the sidewalk, and he stood there. That the building that he disappeared behind was a water-closet and a little woodshed, being an outbuilding to Mr. Smith’s residence, about eight or ten feet in height, with the roof slanting toward witness.
    “ Q. When he [decedent] first went to the railroad track, before he went onto the track, did you see which way he looked ?

      “A. He was standing looking down toward State street for a few seconds.
    “ Q. Then what did he do ?

      “A. Then he turned toward me again and looked.
    “ Q. Did he walk toward home just a few steps ?

      UA. He had his face toward me.
    “ Q. What did he do then ?

      “A. Then he stepped up onto the sidewalk further on, and stooped over, turned around with his back to the car, and homeward again toward the west, and was stooped a little over, hitting his knees and whistling again, and the next thing I looked and the car was coming on him and struck him, and he fell on his face in the center, I should judge, or to the right of, the coupling. I wouldn’t say just, but about that — to the right side of the track, this side toward my place. He fell on his face and on his knees, his knees and face. * * *
    “ Q. How long did he stand on the track after he went out onto it and turned — how long before the car started ?

      “A. It was not any time hardly. I couldn’t say, but it wasn’t long.
    ‘ ‘ Q. Can you estimate it in seconds or fractions • of a minute, or by the time of the clock ?

      “A. It couldn’t be much over seven or eight or ten seconds.”
    Just after the accident two men were seen emerging from the north end of the caboose attached to the engine. When the plaintiff rested her case, the court directed a verdict for the defendant, holding that the deceased was guilty of contributory negligence.

      De Vere Hall (Gilbert W. Hand, of counsel), for appellant.

      Cooley & Hewitt, for appellee.
   G-rant, J.

(after stating the facts). That the action of the defendant in striking this car and backing it across the sidewalk without any warning was negligence is established by many authorities, and is founded upon reason and common sense. In McWilliams v. Mills Co., 31 Mich. 274, it was held that a passenger on a sidewalk of a public highway had a right to expect a warning before the sudden movement of a car which had been standing still. Cooper v. Railway Co., 66 Mich. 261; Lehman v. Steel Works, 114 Mich. 260; 2 Thompson on Law of Negligence, §§ 1571, 1594.

The question of contributory negligence should have been submitted to the jury. There was evidence that plaintiff, standing upon the sidewalk before stepping upon the track, looked to the east. If the engine, with the tender and car attached, was then approaching and within his view, he was guilty of contributory negligence in stop- ' ping in front of the caboose. If, however, he saw no sign of the approaching cars, he was not, as a matter of law, guilty of contributory negligence. A passenger is not required by the law to hurry across a track in front of a car standing detached in a public highway, with nothing in his sight to indicate its immediate movement, and no employe present to warn him, of an intended movement. A delay of a few seconds to turn and call his dog, or a delay for a little time when acquaintances meet upon a sidewalk to talk, is not per se negligence under such circumstances. Parties have the right to assume that the railway company will give them warning at such places before moving the car in their direction. It is a duty which such companies owe to the. traveling public, and when travelers, for a legitimate purpose, stop on the sidewalk for a few seconds, it does not follow that they are ipso facto guilty of negligence. 2 Thompson on Law of Negligence, § 1472.

Judgment reversed, and new trial ordered.

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


author: Grant, J.

text:
    TRABBIC v. TRABBIC.
    1. Husband and Wife — Property Rights — Personalty—Wife’s Interest — Right of Disposal.
    A wife’s assent to the disposal of her husband’s unexempt personalty in his lifetime is not essential, she having no vested interest therein during his lifetime.
    2. Same — Gift by Husband — Validity.
    A transfer or gift of personal property is not void as to the donor’s widow, under sections 9300, 9301, 3 Comp Laws, unless done with fraudulent intent to prevent its passing into his estate after his death.
    3. Same — Disoharg'e of Mortgage — Fraud on Wife.
    The discharge of a mortgage by the mortgagee, in consideration of the execution of a new mortgage to one of his sons, with the understanding that the proceeds shall be divided between certain of his children, constitutes a completed gift inter vivos, which is valid as against his wife, where made in good faith and after he has made provision for her in his will, which he believes to be satisfactory to her.
    Appeal from Monroe; Lockwood, J.
    Submitted December 8, 1905.
    (Docket No. 185.)
    Decided December 22, 1905.
    Bill by Victoria Trabbic against Flaget Trabbic to set aside the transfer of a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Complainant and Peter Trabbic were married April 9, 1882. He was then a widower with nine children. He died June 11, 1903. Complainant at the time of her husband’s death was about 62 years old. He had no issue by his second marriage. The day before he married he executed deeds to three of his sons, reserving in each parcel of land conveyed a life estate. He later purchased 100 acres of land for another son, paying therefor $4,200, the title to which was conveyed direct to the son, with a life estate to himself. These boys were then minors, and lived with him until they were married, when they went to live upon the farms which their father had given them. He was a careful, thrifty, and economical man, and after-wards acquired considerable property in addition to what he had when married.
    Complainant knew of these deeds either at the time or just after her marriage. Complainant and her husband lived apparently in happiness. In March, 1903, he executed a will, and on March 13, 1903, a codicil. The provisions of his will were talked over between him and the complainant, and she understood its provisions. He proposed at first to give her a homestead and all household furniture for her natural life, and $1,300 in money. She thought this was not sufficient, and the will executed gave her $1,600. The codicil provided that the bequests to his wife should be in lieu of dower. His estate inventoried $31,533.34, mostly real estate.
    She waived the provisions of the will and took under the statute. Her dower interest has been assigned to her, which she rents to some of her stepchildren for $350 per year cash, the tenants to pay the taxes and insurance upon the house, which she also has as a homestead with the household goods and furniture. During the settling of the estate she was paid $10 per week. Mr. Trabbic owned a mortgage for $5,600, executed by one Dusseau. On March 13th he sent one of his sons to Mr. Dusseau. He desired to divide the mortgage among his sons. He sent for a scrivener, and directed that the old mortgage be discharged, for which purpose he gave the defendant a power of attorney, and that a new mortgage be taken direct to the defendant. He gave verbal instructions to the defendant to divide the amount of this mortgage, when it was paid, among his sons in equal shares.
    The executor refused to inventory this mortgage as one of the assets of the estate. Complainant thereupon filed this bill, setting up the above facts, and alleging that Mr. Trabbic, being old and infirm, and sick and incompetent mentally to transact any business, or to realize or comprehend what he was doing, and being under the influence of the said Flaget Trabbic, purported to execute the above-mentioned papers; that the personal property inventoried was sufficient to pay all the debts of the estate; that defendant fraudulently took said mortgage to himself with the intent to deprive complainant of her interest in it. She therefore prayed that defendant may be decreed to pay her one-third of said mortgage, and accumulated interest, being the portion which under the statute would go to her if it was a part of her husband’s estate. The case was heard upon pleadings and proofs, and the bill dismissed.

      Charles A. Golden and Willis Baldwin, for complainant.

      George M. Landon, for defendant.
   Grant, J.

(after stating the facts). The learned circuit judge found that the deceased was in the full possession of his faculties when these papers were executed and that no undue influence was exercised by any of his children to induce the execution. Counsel for the complainant do not in their brief contend that the deceased was either incompetent or that there was any undue influence. Their argument is that there was a fraudulent intent on the part of Mr. Trabbic, before his marriage to complainant, and from then until the time of his death, to defraud complainant of her legal rights in his estate. They argue that the deeds executed to his sons before the marriage were fraudulent, and that this creates a strong presumption that this mortgage transaction was also fraudulent. We cannot agree with counsel that the record shows that these deeds were executed by Mr. Trabbic for the purpose of defrauding his intended wife, or that any of his gifts afterwards to his children were made with like intent. It was commendable in him to desire out of his estate, large for a farmer, to provide for his children, several of whom were then minors. It does not appear that she made any objection to this, or to any other transaction, until after his death. He retained ample means to take care of himself and her. They lived together for 20 years, during which time she received the benefit of the life-estate retained in the lands conveyed. The judge found,, and we think correctly, that the will was drawn as directed, by Mr. Trabbic, that complainant assented to it, and that the codicil simply expressed what was the intention and understanding of the parties at the time of the execution of the will.

The wife’s assent to the disposal of his unexempt personalty in his lifetime was not essential. Miller v. Stepper, 32 Mich. 194. Complainant had no vested interest during her husband’s lifetime in his personal property except in that which was exempt. She had only a vested interest in what remained at his death. Such transfer or gift is not void as to the widow under 3 Comp. Laws, §§ 9300, 9301, unless done with fraudulent intent to prevent its passing into his estate after his death. The discharge of this mortgage and the execution of another at his request was not testamentary in character. It disposed of the absolute title to the mortgage to his son, the defendant, whom he was willing to trust to carry out his wishes in dividing it among certain of his children. He might have assigned the mortgage direct to him and the same result would have followed. He might have converted it into money, giving that to the defendant, either absolutely or in trust for others. The deceased had made provision for his wife which he believed to be satisfactory to her. The gift was no more a fraud upon her than it was upon the four children who were to have no interest in it. We think the transaction constituted a complete gift inter vivos and is valid. Holmes v. McDonald, 119 Mich. 563; Hagerman v. Wigent, 108 Mich. 192.

Decree affirmed, with costs.

Moose, C. J., and McAlvat, Blais, and Hookes, JJ., concurred.


author: Hooker, J.

text:
    DAVIS v. McMILLAN.
    1. Malicious Prosecution — Damages—Excessiveness.
    An award of $4,000 principally for injury to feelings by the malicious prosecution of an accusation of obtaining property by false pretenses is excessive where, though the pretense was hot made as charged, plaintiff secured and retains upwards of $2,000 worth of property by inducing defendant to believe a falsehood.
    2. Same — Defenses—Advice of Counsel.
    Advice of counsel is not a defense to an action for malicious prosecution where the fact stated to counsel was that plaintiff stated to defendant that A. had agreed to a certain proposal where the proof showed plaintiff’s statement to be that plaintiff’s brother had told plaintiff that A. had agreed to the proposal.
    3. Same — Burden of Proof — Probable Cause.
    The burden of proving want of probable cause in malicious prosecution cases is upon the plaintiff.
    4. Same — Evidence—Weight and Sufficiency.
    The discharge of one accused of crime has not, of itself, any tendency to show want of probable cause for instituting the prosecution.
    5. Same — Question for Jury.
    Where plaintiff in malicious prosecution shows the arrest and discharge, defendant’s failure to accurately state the pretense to counsel, and the relations theretofore sustained by the parties, the question of probable cause is for the jury, depending on whether an ordinarily fair and careful business man would be likely to believe in plaintiff’s guilt.
    6. Same — Elements of Cause of Action — Malice—Proof.
    Proof of malice, as well as want of probable cause, is essential to a cause of action for malicious prosecution; malice, however, may be deducible from the facts and circumstances surrounding the transaction and-is inferable from want of probable cause.
    7. Same — Joint Defendants — Sufficiency of Evidence.
    Where two witnesses testify that one of the defendants in malicious prosecution urged the other to cause the arrest, his connection with, the transaction is for the jury though the acts testified to occurred after the complaint was made, but before the arrest and subsequent proceedings.
    8. Saving Questions for Review — Instructions—Necessity of Request.
    The omission of atrial judge to charge the jury upon a point to which his attention was not called cannot, in a civil case, be assigned as error. Peterson v. Toner, 80 Mich. 850.
    Error to Wayne; Brooke, J.
    Submitted November 8, 1905.
    (Docket No. 104.)
    Decided December 22, 1905.
    Case by Mark George Davis against Neil McMillan and Michael McMillan for malicious prosecution. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Dwight O. JEtexford, for appellants.

      James O. Smith (Otto Kirchner, of counsel), for appellee.
   Hooker, J.

The plaintiff’s declaration charges a malicious prosecution. Upon the trial of the cause he recovered a verdict of $4,000 damages. Judgment followed, and the defendants have appealed.

The action is based upon plaintiff’s arrest on a charge of false pretenses, -wherein it was claimed that he had falsely represented to Michael McMillan, secretary, that Kirby, president of the Detroit Boat Works, had authorized plaintiff’s brother to take certain tools and stock of said boat works away, thereby obtaining the same with intent to cheat and defraud. Upon the examination the pretense proven was, not that Kirby had told plaintiff’s brother to take the articles, but that plaintiff’s brother had told plaintiff that Kirby had given such permission. Being unable to show that plaintiff’s brother had not so told plaintiff, the prosecuting attorney advised plaintiff’s discharge, which the justice ordered. There was apparently no dispute that the property was obtained by this representation and removed from the State; and it is proved, and not disputed by evidence, that Kirby did'not give such permission, and it is a case where apparently the plaintiff has, by (unintentionally or otherwise) leading McMillan to believe an untruth, obtained and keeps valuable property worth upwards of $2,000 not belonging to him, and has also recovered a verdict and judgment for #4,000 and costs by way of damages for a malicious prosecution. A former verdict for $2,800 was set aside upon two grounds, one of which was that the damages were excessive. A motion for a similar order upon the same grounds was denied after this trial; the court stating that he was not prepared to say that the verdict was one to shock the judicial conscience. In this we do not concur. There was evidence in the case that the complaint was made upon the advice of counsel, and with the approval of the public magistrate. It is true that the pretense as stated to counsel, and alleged in the complaint and warrant, was not technically correct, perhaps it should be said not substantially correct, yet the fact remains that, so far as this record shows, it justifies the belief that the plaintiff secured property by leading the defendant Michael McMillan to believe a falsehood, and that while asserting innocence he is retaining the fruits of his representation. Hence, though technically the prosecution for the particular pretense may have been without probable cause, it is inferable that there was a substantial reason for believing that the plaintiff had unjustly and deceitfully obtained the property with intent to cheat and defraud. Under these circumstances the liberality of the jury is remarkable, especially as most of the damages must have been for mortification and wounded feelings. This liberality may perhaps be accounted for, in a measure at least, by the fact that this was a second trial, and the proneness of juries to make such fact an element of damages (which they have no right to do) and, second, to the conduct of the case.

Was there a question for the jury in the matter of probable cause ? Defendants’ counsel say that there was not, for the reason that they acted upon the advice of counsel, which is a complete justification. To make such a complete defense, it is necessary that the advice be sought and acted upon in good faith, and that a full disclosure of all material facts be made to counsel.’ In this case the point is made that defendants did not state truly, fully, and accurately the pretense that was made. The pretense actually made was that plaintiff’s brother told him that Kirby had assented to the project. That stated to counsel was that plaintiff had stated that Kirby had done so. To justify the conclusion that the latter statement was false, it was sufficient to show that Kirby did not assent, but that showing would not necessarily indicate that the former representation was false, and the court could not therefore properly say that counsel’s advice was based upon a full and accurate statement of the material facts, although satisfied that the omission or misstatement was an innocent and unintentional one, and notwithstanding a conviction that the plaintiff’s act was criminal in fact. It was, therefore, not the duty of the court to take the case from the jury upon that ground in defendants’ favor. It does not necessarily follow from this alone that the court should not have directed the jury to find a verdict for the defendants.

The burden of proving want of probable cause in malicious prosecution cases is upon the plaintiff. Hence it is ordinarily necessary for the plaintiff to show circumstances from which it may be legitimately inferable. The gist of the offense charged in this instance was that the plaintiff by falsely and deceitfully causing defendants to believe that Kirby had authorized or consented to the removal of this property, which they had no other right to remove, fraudulently obtained the same with intent to cheat and defraud the Detroit Boat Works. If it can be said that the facts reasonably justified the defendants in the honest belief that the plaintiff had committed the offense of obtaining said property by a false and deceitful statement of his authority, they cannot be said to have made the complaint without probable cause, and this would be so notwithstanding the fact that the papers when drawn did not accurately state the pretense, and the further fact that the failure to correctly set up the pretense was or may have been due to Michael McMillan’s inaccuracy of statement. It has been frequently held that an acquittal does not necessarily show want of probable cause. It is doubtful if the converse has ever been held; for, if it were, it would seldom be safe to institute criminal proceedings, as conviction must always be an uncertainty under the rule of reasonable doubt, and the proceeding, being for the avowed purpose of ascertaining whether a petson is guilty or not, necessarily implies a degree of uncertainty in the institution of the proceedings. In 19 Am. & Eng. Enc. Law (2d Ed.), p. 665, the author of the subject states that some cases hold that acquittal is not alone prima facie or per se sufficient evidence of want of probable cause, and expresses the opinion that the better doctrine is that it is (alone) no evidence whatever of want of probable cause.

We have two cases from which it may have been inferred that the Michigan rule is that a discharge by the magistrate is prima facie proof of want of probable cause, but neither of them is conclusive of the point. In Perry v. Sulier, 92 Mich. 75, Mr. Justice Grant said:

‘ ‘ The fact of discharge upon the examination is not of * itself conclusive evidence of want of probable cause.”

In Rankin v. Crane, 104 Mich. 6, he again stated:

“A prima facie case may be made by showing a plaintiff’s discharge, but it is not conclusive.”

There was no occasion to determine whether the discharge was prima facie evidence and the gist of the holding was that it was not only not conclusive; but that even if it were prima facie evidence that the evidence conclusively showed the want of probable cause, and it is therefore at least open to doubt, if the court intended to do more than imply a possibility that it might be the rule without denying it. While it is pretty generally held that acquittal upon the merits is not evidence of probable cause, the court would doubtless have discussed the cases upon the subject, had it been considered a crucial question in the case. We are therefore warranted in considering it an open question. [ There is some inharmony in the decisions elsewhere as to whether a discharge by an examining magistrate is prima facie evidence of a want of probable cause; a distinction being drawn between the two upon the ground that the question of probable cause is the very question to be determined by the magistrate, while the decision in the trial court does not turn on that question. That is suggested by the West Virginia court in the case of Vinal v. Core & Compton, 18 W. Va. 42. It is there recognized to be but slight evidence, and the rule seems to have been approved upon the somewhat doubtful ground that it is incumbent on the plaintiff to prove a negative. A more rational rule is that an act, not that of the defendant, cannot be evidence to bind him. He is not a party to the criminal proceeding, can offer no evidence to influence the magisterial conclusion or decision, and the rule laid down in the case of Apgar v. Woolston, 43 N. J. Law, 61, commends itself to us, viz., that a discharge not brought about by the procurement of the defendant, nor attended by circumstances involving the conduct of the defendant which of themselves indicate a want of probable cause, is no evidence of a want of probable cause. Even in such instances it is obvious that it is the attendant circumstances, rather than the fact of the discharge, that tend to prove the point. Of course, the fact of discharge is ad. missible for another purpose, viz., to show the termination of the prosecution, which is usually a necessary condition precedent to a suit for malicious prosecution. Brand v. Hinchman, 68 Mich. 590; Phillips v. Village of Kalamazoo, 53 Mich. 33. We think it can safely be said that the weight of authority denies the rule that discharge by a magistrate upon request of the prosecuting attorney is prima facie evidence of want of probable cause.

The case upon which the contrary doctrine appears to rest is Nicholson v. Coghill, 6 Dowl. & R. 13, 14, 4 Barn. & C. 21-24, decided in the King’s Bench in the time of George IV, A. D. 1825, in which Holroyd, J., makes the statement as supporting his view in that case:

“ It has been long held in actions for malicious prosecutions that evidence of the grand jury, having thrown out the bill, justifies the inference of the want of probable cause, and that it is for the prosecutor to rebut that inference by contrary proof on his part.”

No such point was involved, for the reason that the suit was based upon a civil action, which was voluntarily withdrawn by the prosecutor, who had absolute control of the matter, thus bringing the case within the exception mentioned in the New Jersey case hereinbefore cited. Moreover, the decision was not unanimous. Two early American cases are supposed to have followed the Nicholson Case. These are Secor v. Babcock, 2 Johns. (N. Y.) 203, which, when examined, will be found to fall short of stating such a principle, and the case of Johnston v. Martin, 3 Murph. (N. C.) 248. There it is said:

“ Whether there be probable cause for the prosecution must depend on all the circumstances of the case, but that which indicates its absence most strongly is the discharge by the magistrates, after a full and fair examination of the evidence.”

Thus a discharge upon a hearing of the merits is apparently given much greater effect than that of prima facie evidence, a doctrine that is believed to be generally disapproved today. These two cases seem to have “ blazed a trail ” for others to follow. Thus in 1829 the supreme court of Tennessee followed the Carolina case, citing no other authority. Williams v. Norwood, 2 Yerg. (Tenn.) 329. In 1881 the case of Vinal v. Core & Compton was decided. This case rests upon the Nicholson Case, the Carolina case reinforced by three later Carolina cases, viz., Plummer v. Gheen, 3 Hawks (N. C.), 66; Bostick v. Rutherford, 4 Hawks (N. C.), 83, 87, and Johnson v. Chambers, 32 N. C. 287, and the case from Tennessee .above stated.

It is noticeable that in Bostick v. Rutherford the correctness of the doctrine of the earlier cases was questioned; Hall, J., saying: “I am not disposed to disturb the case of Johnston v. Martin.” It was questioned later by the same court, which said of it:

“ The correctness of this position is questionable, the innocence of the plaintiff does not prove the absence of probable cause, and the decision conflicts with English •authorities, as appears from Purcell v. Macnamara, 9 East, 361.” McRae v. Oneal, 2 Dev. Law (N. C.), 169.

This was severe treatment by the court which made the decision. On the other hand, a case in Massachusetts decided in 1831 lays down the following:

The want of probable cause is the essential ground of this action. Other things may be inferred from this; but this cannot be inferred from anything else, It must be established by positive and express proof. It is not •enough to show that the plaintiff was acquitted of the charge preferred against him, or that the defendant abandoned the prosecution. But the onus probandi is upon the plaintiff to prove affirmatively, by circumstances or otherwise, as he may be able, that the defendant had no ground for commencing the prosecution. See the above citations; also Purcell v. Macnamara, 1 Campb. 199, 9 East, 361; Sykes v. Dunbar, 1 Campb. 202, note; Incledon v. Berry, 1 Campb. 203, note; Wallis v. Alpine, 1 Campb. 204, note; Shock v. McChesney, 4 Yeates (Pa.), 507.” Stone v. Crocker, 24 Pick. (Mass.) 84.

The case of Apgar v. Woolston, 43 N. J. Law, 62, has been cited. It is there said:

“In the treatises on evidence the rule is laid down without qualification that, in order to show that the criminal prosecution was groundless and without probable cause, it is not sufficient to show that the bill being preferred was thrown out by the grand jury. 2 Starkie on Evidence, 494; 3 Phillipps on Evidence, 571; 2 Greenleaf on Evidence, § 455. In Nicholson v. Coghill, 4 Barn. & C. 21, Holroyd, J., is reported to have said that it had •been held that evidence of the bill having been thrown out by the grand jury is sufficient to warrant an inference of the absence of probable cause. This remark was made in an action for a malicious arrest in a civil suit, whei'e the defendant was himself an actor in discontinuing the action, and which was expressly distinguished by Abbott, C. J., on that circumstance, from cases where the prosecution was on a criminal charge. I have not been able to find any case in the English courts in which such a decision was made, or in which any observation to that effect was made by any other English judge. I am aware that there are cases in the courts of this country entitled to the greatest respect in which it has been held that the failure of the grand jury to indict is prima facie evidence of the want of probable cause. But there are also decisions of the courts of our sister States, entitled to equal respect, holding the contrary; and I think the doctrine laid down by Starkie, Phillipps, and Greenleaf is founded on sound principles of law, and is consistent with public policy.”

In the case of Israel v. Brooks, 23 Ill. 577, Breese, J., said of a charge:

“As the onus of proving a negative — the absence of probable cause — is thrown upon the plaintiff, slight evidence will usually suffice for such purpose. But the evidence of an uniform good character up to the time of the charge is something more than slight evidence, and the plaintiff should have the benefit of it. If known to the prosecutor, what single fact is better calculated to weaken a belief, he being a prudent and cautious man, in the guilt of the suspected party ? On the other hand, his bad character may be shown by the defense, as good ground for augmenting a suspicion against him. We know, in no actions save criminal prosecutions and actions for defamation, can the character of the party, as a general rule, be inquired into, but in such a case as this, there seems to be great propriety in permitting it, for the reasons here given.
“ We do not consider it necessary to pass upon all the instructions given by the court for the plaintiff, or refused, as asked by the defendant. Those on the part of the plaintiff, with some inaccuracies in their frame, stated the law. The second instruction did not state the law, and, in our judgment, announces a principle of the most dangerous character. It is this:
“ ' That the discharge of the plaintiff by the examining magistrate, is prima facie evidence of the want of probable cause, and sufficient to throw upon the defendant the burden of proving the contrary.’
“ As stated on the argument, this instruction is copied verbatim from 2 Greenleaf on Evidence, § 455. He cites Secor v. Babcock, 2 Johns. (N. Y.) 203. That case decides no such principle. It is a per curiam opinion, and is as follows:
“ ‘The justice had power, on examination of a charge of suspicion of felony, or of having stolen goods, to dismiss the plaintiff below, if he was satisfied there was no ground for the suspicion. The acquittal was lawful, and there was sufficient ground for a suit for a malicious prosecution. The judgment below must be affirmed.’
“The court does not presume to say that by the discharge of the accused, by the examining magistrate, a sufficient ground for a malicious prosecution was established as showing a want of probable cause. The court does not say that by reason of the discharge a want of probable cause is to be' inferred, nor anything like it. Greenleaf also refers to Johnston v. Martin, 3 Murph. (N. C.) 248, and Bostick v. Rutherford, 4 Hawks (N. C.), 83, where the doctrine is there distinctly stated in the language of this instruction. No authority or good reasoning is adduced to support it, and these cases stand alone, justifying such a principle.
“ To what does it amount ? Why, to this,— that every man who appears before a magistrate to give information of a criminal offense incurs the hazard of a prosecution against himself, should the magistrate happen to be ignorant, prejudiced, or corrupt. How many magistrates are there in obscure localities who are as little capable of determining what is probable cause for a criminal accusation as they are of explaining any of the phenomena of nature ? How many do we find prejudiced against a public accuser, how many in sympathy with the accused ? The decisions of such an official, on intricate questions of law or fact, should not weigh against the accused, and they do not practically; for, if he is committed, the grand jury pay no attention to the finding of the magistrate. It is not prima facie evidence of his guilt, and how preposterous it is to say the discharge of the criminal is prima facie evidence of want of probable cause. It is not so, and should never be so regarded. The fact may go to the jury that he was discharged by the magistrate, but no such inference unfavorable to the accuser should be drawn from it.”

See, also, Thorpe v. Balliett, 25 Ill. 339.

In Thompson v. Rubber Co., 56 Conn. 499, the court said of the three essentials:

“ The acquittal of the plaintiff proves the first [i. e., discharge of the plaintiff], but it has no tendency to prove the second or third [i. e., want of probable cause or malice]. ”

In Heldt v. Webster, 60 Tex. 207, the .following charge was held to be erroneous:

“ ‘ If the plaintiff was discharged from the prosecution by the examining magistrate who examined the case, then the presumption of law is that there was no probable cause; but, if the evidence further shows that the defendant had reasonable cause to believe, and did believe, that the facts stated in the complaint were true, then he would have such probable cause as the law contemplated,’ because (1) the discharge of the defendant in a criminal prosecution does not raise a presumption of probable cause.”

See, also, Flickinger v. Wagner, 46 Md. 582. In Barbour v. Gettings, 26 U. C. Q. B. 544, the court held:

“ In an action for malicious prosecution, want of reasonable and probable cause must be shown by the plaintiff. Slight evidence may be sufficient, for it is the proof of a negative, but there must be some proof; and in this case where it was shown only that the defendant laid the information on which the plaintiff was arrested, and that the magistrates after hearing the parties dismissed the charge” — and that a verdict was properly directed for defendant.

In Cole v. Curtis, 16 Minn. 184, it was held:

“Where, in a preliminary examination upon a criminal charge before a magistrate, witnesses for the defense (including the defendant himself) may be examined, if the facts upon which the prosecution is founded are not within the personal knowledge of the prosecutor, the discharge of the accused upon the hearing by the magistrate is not prima facie evidence of want of probable cause in an action by the accused against the prosecutor for a malicious prosecution.”

Our own case of Wakeley v. Johnson, 115 Mich. 285, is analogous, but the question there is not identical with that in the present case. It follows that we must hold that the court erred in modifying defendant’s request that a dismissal at the request of the prosecuting attorney is not sufficient evidence of want of probable cause, by adding, at the suggestion of plaintiff’s counsel, the following:

Mr. Kirchner: Standing by itself it is sufficient. Your honor means it is not conclusive.
The Court: It is not conclusive evidence of want of probable cause — the fact that it was dismissed.
“Mr. Kirchner: That is all right.”

We feel warranted in saying that the discharge of the defendant in this case has not in itself any tendency to show a want of probable cause, but we are also of the opinion that it was proper to submit to the jury the question of probable 'cause. The only proof that the plaintiff offered to show want of probable cause was the fact of the arrest and discharge, the failure to accurately state the pretense, and the relations theretofore sustained by the parties. If from these' the jury might conclude that an ordinarily fair and careful business man would be likely to believe in plaintiff’s guilt, they should find probable cause and acquit the defendants. But that is essentially a question for the jury where there is room for two opinions; and there may be here. Therefore the court could not properly take the cause from the jury upon the ground that want of probable cause had not been shown. Want of probable cause alone is not sufficient to base a verdict upon. Proof of malice is also essential. That, too, may be deducible from the facts and circumstances surrounding the transaction, and is inferable from absence of probable cause.

It is said by counsel:

“Plaintiff and the court apparently relied on the dismissal of the complaint for evidence of want of probable canse. As it did not tend to prove it, there was no evidence of want of probable cause.”

We have already expressed the opinion that there was other evidence pertinent to the question, and we think that the court’s charge is not open to the above criticism.

It is contended that there was no evidence upon which Neil McMillan could lawfully be convicted. , We think otherwise. Two witnesses testify that he urged his brother to cause the arrest; and, although counsel say that this occurred after the complaint was made, it was before the arrest and subsequent proceedings. His connection with the transaction was a question for the jury, and we think there was testimony from which it might be inferred.

Counsel complain that the court failed to sufficiently instruct the jury as to the facts which would justify a finding of want of probable cause. This should have been called to the attention of the trial court. See Peterson v. Toner, 80 Mich. 357. We find it unnecessary to make the decision turn upon this question, however.

The judgment is reversed, and a new trial ordered.

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


text:
    NESS v. CITY OF ESCANABA.
    1. Highways and Streets — Personal Injuries — Defective Sidewalks — Notice of Defect.
    In an action against a city for injuries from a defective sidewalk, evidence tending to show that the walk was badly out of repair for several months before the injury makes the question of constructive notice one for the jury.
    2. Evidence — Photographs—Admissibility.
    The exclusion of a photograph offered in evidence is harmless, whether it is admissible or not, where an examination of it enables the court to say that it throws no light upon the disputed questions in the case.
    Error to Delta; Stone, J.
    Submitted November 10, 1905.
    (Docket No. 117.)
    Decided December 22, 1905.
    Case by Christina Ness against the city of Escanaba for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.’

      James H. Clancy, for appellant.

      C. D. McEwen (Cummislcey & Yelland, of counsel), for appellee.
   Hooker, J.

The defendant has appealed from a judgment of $1,000 recovered by the plaintiff for injuries sustained by stepping upon a loose board in a sidewalk. There are but two questions for us to consider, as the-case has been presented:

1. Should the court have directed a verdict of not guilty, upon the ground that notice of the defect was not proved ?

2. Was it error to sustain an objection to-the introduction of a photograph which defendant offered ?

No actual notice was shown, but there was evidence that tended to show that the walk was badly out of repair for several months. This made the question of constructive notice one for the jury.

The defendant claimed that the walk was' repaired during the fall preceding the accident, and that it was in reasonable condition in the spring at the time of the accident, which occurred in April. A photographer testified to taking a photograph of the walk on June 37th, after the accident. Counsel professed to offer it upon the theory that the walk had been shown to be in the same condition at the time the photograph was taken that it was in when the accident happened. The court said:

“ The witnesses not agreeing upon it, it is not proper to let the photograph go to the jury to show the condition afterwards. If it once reaches the jury, they will have it before them, and it would be error in case it is found not to be in that condition. It would be impossible to tell what view the jury took of it in a general verdict, so it is excluded, and will not be shown to the jury.”

, A policeman testified that he saw the walk the day after the plaintiff was hurt, did not thoroughly examine it, but noticed no loose plank, and thought it all right as far as he could see; saw it again afterwards, and it was in the same condition. He saw it, also, on morning of the trial, and there were no changes so far as he could see. There was testimony given by plaintiff’s witnesses that the walk was repaired somewhat after the accident. A man had some of the boards out and nailed them down. A policeman testified that he nailed them down. The defect complained of was loose boards in the walk. To prove notice it was sought to show that many boards were loose and that two of the stringers were decayed. It was upon these points that the offer of the photograph was made. The plaintiff’s objection is predicated upon the fact that the photograph was taken two months after the injury, and testimony tending to show that repairs were made during the interval.

There are many cases that hold that the question whether a photograph is admissible depends upon a showing to the satisfaction of the trial court that it is an accurate picture of premises taken under unchanged conditions and that the discretion of the trial court upon these questions is not revie wable'. Some cases indicate that this point was either overlooked, or that the determination of such question was considered reviewable, while it is perhaps inferable from still other cases that the testimony is always admissible as matter of right, upon prima facie proof of accuracy. As it is unnecessary to determine these questions, we do not discuss them, and avoid the expression of opinion upon them. The photograph was offered by the defendant to show the condition of the sidewalk at the time of the accident; i. e., to show that it was not in such a condition as to constitute notice that it was so out of repair as to demand attention, which would have corrected the infirmity that caused the plaintiff’s injury. The testimony offered by the plaintiff had tended to show that the boards upon the. sidewalk were nailed to three rotten stringers, of the four which supported the plank; that they would not hold nails, whereby many of the boards became loosened from the stringers; that one or more boards were partially decayed. The defendant’s oral testimony contradicted this, and the photograph was offered as corroborative. Ah examination enables us to say that the photograph does not show that the boards or stringers were or were not rotten, or that the boards were not loose. Moreover, the undisputed proof shows that after the accident some boards were nailed down. As the photograph would throw no light upon the disputed questions, its exclusion was not harmful to the defendant, whether it was admissible or not.

The judgment is affirmed.

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


text:
    CASTERTON v. AMERICAN BLOWER CO.
    1. Master and Servant — Injuries to Servant — Defective Appliances — Res -Ipsa Loquitur.
    A master cannot be held liable for injuries to a servant, caused by the falling of an elevator, where the evidence entirely fails to show what caused the elevator to fall.
    2. Same — Action—Evidence—Defects in Appliances — Admissibility.
    Where, in an action to recover for injuries to a servant, caused by the fall of an elevator in defendant’s factory, there is no evidence to show the immediate cause of the fall, it is error to exclude evidence offered to show that the elevator had previously shown symptoms of inefficiency or dangerous irregularity in its operation.
    Error to Wayne; Frazer, J.
    Submitted November 15, 1905.
    (Docket No. 137.)
    Decided December 22, 1905.
    Case by Arthur Casterton against the American Blower Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Frederic T. Harward, for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Hooker, J.

The defendant owned a manufacturing plant, and the plaintiff was in its employ. It had an elevator, which was used for the handling of freight. It was about 70 feet from the place where plaintiff worked. The elevator consisted of'an open platform, about 6 feet square, having two side pieces connected by a cross-beam across the top, to which beam the lifting cable was attached. This cable extended to the roof of the building, where it ran over two pulleys, and then descended to a winding drum “in the machinery ” which governed the raising and lowering of the elevator. The machinery consisted of two loose pulleys, and a tight pulley and the drum, all of which were fastened to the ceiling of the first floor of the heater room (in which room plaintiff worked), a little east of the elevator and directly over a water-closet provided for use by the men. The ceiling of this room was about 14 feet high. There was no regular operator for the elevator, and it was used by the men indiscriminately as occasion required. One Grates, who operated it on the occasion of the accident, testified:

“ It was operated by two belts. By pulling a rope, one belt was shifted from one of the idlers to the tight pulley, and the elevator ascended. By pulling the other rope, another belt was shifted from the other idler to the tight pulley, and the elevator descended. It was supposed to stop of itself when it arrived at the first floor.”

On the occasion of the accident a workman took a truck containing 2,240 pounds of iron posts upon the elevator from the first to the second floor. Grates testified that when the elevator reached the second floor it stopped, but he heard the machinery still running, and knew that the elevator would fall, because, if it worked properly, the machinery would not have kept running. The belt would have gone upon the idler. He jumped off, and called to his companion to do so; but he did not have time. The elevator went down slowly about two feet, and then fell, or plunged, to the floor. He stated, further, that the effect of the elevator dropping was to speed up the pulley wheels that were over the closet, so that they burst. One of the pieces fell upon the plaintiff, who was at the time in the closet, and injured, him. Another piece went up through the ceiling and floor above.

What caused the elevator to act as above described was not shown. No one seemed to know that it was out of repair in any particular. Grates also testified that the reason that the elevator fell was because the machinery was not in the right condition, but the testimony shows that his only reason for the conclusion was the fact that the machinery fell. He also said that he saw no safety clutches upon the side of the elevator. One Watson was called for plaintiff. He had worked there on an elevator (presumably this one) in 1902. Being asked if that elevator ever fell with him, the court sustained an objection, saying, however, that counsel might show that the elevator was faulty'. One Singer testified that he worked there in the fall of 1908. He was asked:

“ Did you ever know that elevator to fall while you were there ? * * *
“Did you ever repair the elevator machinery, or help repair it, in 1903 ? * * *
“How many times had you, previous to October 12, 1903, repaired that elevator ? * * *
“ What defects, when you repaired that elevator along that time, did you find ? ”

All of these questions were objected to, and the objections were sustained, except the last; the court saying:

“You may tell what defects you found in the elevator when you repaired it.”

His answer was:

‘ ‘ The cable was loose. * * * It happened once in a while.”

He testified that he did not know of his own knowledge what caused it to fall on this occasion. This witness said that he did not repair it after the accident, though he saw it, and the center pulley — i. e., the tight pulley — was broken. Fred Houston, a millwright, was sworn for the plaintiff. He testified that he had the care of this machinery. Counsel asked:

“Was that a cranky elevator ? * * *
“ Didn’t it work spasmodically at times P * * *
“Had it not, within a year previous to this accident, become ungovernable and fallen in a similar manner ? . * * *
“How many times, to your knowledge, if you have any, has this elevator become ungovernable ? ”

Answers to these questions were not permitted. The witness stated that the three pulleys were broken on the occasion of the accident. This witness disputed Grates, by saying that the machinery was not expected to stop; that it is supposed to go at all times; that it would simply run the idlers and not the elevator. The court asked:

From the facts you saw there, could you tell how that thing broke, from the examination you made of it ?
A. No, sir. * * *
Q. What is your opinion ?
“A. When the elevator started up, the operator, or whoever it was, when he started the elevator up, I don’t believe he properly shifted the belt onto the tight pulley; but it was far enough to start the machinery going — to lift the elevator. When the elevator arrived at the top landing, it only had probably two inches of belt, where it should have had four, to' throw off. Well, they had a good-sized load, not over the capacity of the elevator. I. don’t believe, and being the case that there is only a small amount of helt there to throw off this tight pulley, and then the brake is supposed to set at the same time between the two. The brake didn’t have time tó set, and the weight that was on the car caused it to lower. It didn’t drop.
“ Q. Where does the brake set ?
“A. Onto the tight pulley.
Q. Does it set on the pulley ? Is the brake right on the pulley ?
11 A. Yes, it faces the pulley; yes, sir. The brake shoe on the car.
Q. And the falling of the elevator made the wheel go so fast that the brake set and broke it ?
“A. That is my supposition — that when the car arrived at the bottom floor that the pulleys were going about 600 revolutions a minute, and this brake was set on it.
“ Q. Were there any safety catches on the side of that elevator ?
“A. Yes, sir.”

In answer to further questions by plaintiff’s counsel, he said that he had lifted twice that weight on the same-sized machine. He also said that a new lifting cable had been put on two days before the accident. . The court said to the jury that the only evidence presented was the fact that the pulleys broke; the cause or reason being entirely unknown. He held that negligence had not been shown, and plaintiff could not recover. The important question is, therefore, whether he was right in saying that there was no evidence introduced from which it was proper to infer that the accident was due to defendant’s negligence. His exclusion of the testimony offered is also relied on by appellant. The testimony fails to show why the elevator failed to work properly on this occasion. That the belt was not removed from the fixed pulley to the idler is perhaps a probable solution; but whether this was due to improper management by a fellow-servant or some defect in the machinery cannot be determined from any proof offered, or, if it be said that it must have been the latter, we can only conjecture the nature, cause, or period of existence of such defect. The court did not err in refusing to permit the jury to find negligence in the location of the closet. The defendant was not bound to forego the use of the space occupied by it for some purpose in connection with his business, and there is no testimony justifying an inference that it is common to locate elevators in a remote place, and to keep employes from working in the vicinity of them. Hence, under the testimony admitted, there was no error in directing a verdict for the defendant.

While we cannot hold one guilty of negligence upon a mere conjecture, it does not follow that we must hold one not guilty in all cases wliere the immediate cause or defect is uncertain. We have many cases which hold that where a machine has worked well up to the time of the accident, and the occasion is unexpected and unexplained, a charge of negligence is not sustained. These cases are not necessarily applicable to a case where the machine has previously shown symptoms of inefficiency or dangerous irregularity in its operation; for with such warnings it may be the duty of the proprietor to ascertain and remedy the tendency. It would be unreasonable to limit a right to recover to those cases where the plaintiff should be able to diagnose the particular cause of its inefficiency and prescribe the remedy. In the case of Redmond v. Lumber Co., 96 Mich. 545, this duty of' the master in such cases was recognized. It was said:

“In the present case there is no evidence tending to show that the machinery was out of repair, unless it is to be assumed from the alleged fact that it did not stop when the lever was released. On the contrary, all of the evidence showed that immediately before and after the accident it was in working order. If there were anything to show that the machinery had been out of order,- and that its working was spasmodic or uncertain, there might be room for the contention that the defendant was negligent in not keeping it in repair; but the mill was put in good order in the spring, and the jack had worked perfectly up to the time of the accident, clearly indicating that defendant could have no notice that repairs were necessary.”

We think, therefore, that the court erred in excluding evidence of previous failures of the elevator to work properly, though, perhaps, some of the questions were objectionable in form.

The judgment is reversed, and a new trial ordered.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    SMITH v. SMITH.
    Bill of Review — Equity — Leave to File — Discretion of Court.
    A bill of review must show substantial equities, and the discretion of the court in denying leave to file such a bill will not be%controlled where the court finds that the decree complained of was entered by consent.
    Appeal from Montcalm; Perkins, J., presiding.
    Submitted December 8, 1905.
    (Docket No. 181.)
    Decided December 22, 1905.
    Bill by Mary A. Smith against C. Newton Smith, Charles N. Smith, and Oleo A. Smith for a divorce and to set aside certain deeds. There was a decree for complainant : On petition of defendants for leave to file a bill of review. From an order denying the petition, defendants appeal.
    Affirmed.

      N. 0. Griswold, for complainant.

      V. H. & L. W. Smith, for defendants.^
   Hooker, J.

The complainant filed a bill for divorce against her husband, C. Newton Smith, on July 1, 1899; he only being made defendant. Subsequently she filed an amended bill, making parties the other defendants, infant children of C. Newton Smith. This bill alleged an effort by her husband to defraud complainant by ostensibly conveying to his said children, prior to his marriage to complainant, property which he then had, without her knowledge. It contained a prayer that this property might be decreed to be his property, and subject to provisions for her maintenance, etc. The infants answered by a guardian ad litem, and the cause was heard. On July 13, 1901, the court made a decree granting complainant a divorce, with costs and $1,000 alimony, the same to be a lien on property described in the decree, which was determined to have been conveyed by or at the instance of C. Newton Smith to said infants without consideration, and that they had no right to the same, except by the voluntary gift of their said father, and a deed from him to them of a portion of said premises, viz., lot 2, etc., was :set aside. Leave was given in the decree to the complain.ant to apply for process against C. Newton Smith, and for •the appointment of a receiver, and for sequestration of his •property and the rents, uses, and profits thereof, and for :such aid in enforcing this decree as she might be advised. On August 23, 1902, complainant filed a petition, asking that 0. Newton Smith be required to show cause why he should not be adjudged guilty of contempt for not performing the decree, and that a receiver be appointed to take charge of the property of C. Newton Smith for the purpose of enforcing complainant’s lien. There was also a prayer for such further or other relief as to the court should seem meet. An order was made and served on C. Newton Smith. It does not appear to have been served upon the infants. On September 10, 1902, an order was made reciting the service of the order to show cause upon 0. Newton Smith, “and the parties to said suit being all present before the court by their respective attorneys,” •the reading of C. Newton Smith’s answer to the petition, the arguments of counsel, etc., and adjudging and decreeing that lot 2, etc. (fully described), was the sole property of C. Newton Smith, and his deed of the same .absolutely void as against complainant’s claim for alimony, .and that he execute and deliver to her within 30 days a deed of the same in fee, the same to operate as a satisfaction of the former decree, and that a writ of assistance might issue.

This proceeding arises upon a petition filed by all of the defendants; the guardian ad litem acting for the infants. It was verified in December, 1904. This petition was followed by an affidavit, made by complainant’s solicitor, which states that after the filing of the supplemental decree the cause was enrolled, and, no appeal having been taken from said decree, a writ of assistance was issued, and the complainant was put in possession by the sheriff as commanded, and as shown by his return; that afterwards an arrangement was made by which the premises were leased to C. Newton Smith and Charles N. Smith, Jr., by a written instrument; that upon the execution of the lease by complainant, through her attorney, defendants paid to affiant, for complainant, $12 for one month’s rent of said premises, and that thereafter, for the period of a year, affiant received every month a remittance of $12, being the rent reserved and due under said lease, the same being sometimes accompanied by a letter from one and sometimes from the other of the lessees; that at the expiration of the term provided in the lease defendants refused to deliver up the premises according to the terms of the lease, and complainant instituted summary proceedings, which were removed to the circuit court by appeal, upon the hearing of which a special finding was filed, and a judgment entered in favor of complainant. A certified transcript of this judgment appears in the record. The filing of this affidavit was followed by an affidavit made by Yernon H. Smith, counsel for defendants, stating that he has investigated the files in the cause, that he is informed and believes that the writ of assistance was never executed, and that defendants were never put out of • possession, the return of the officer to the contrary notwithstanding; that the lease in question was a lease between N. O. Griswold, as attorney for complainant, and Charles N. Smith; and that it was not claimed that C. Newton Smith was a party to the lease, unless the guaranty on the back thereof made him such. The guaranty was as follows:

“I hereby approve of the above lease, and guarantee the faithful performance thereof by Charles N. Smith.
[Signed] “C. N. Smith.”

It further admits the summary proceedings, but ex;presses the belief that the judgment was wrong, and that C. Newton Smith denies that he signed the guaranty, and claims that these proceedings are not material to this application. The matter was submitted to the circuit court and the application was denied.

This application was heard before Judge Perkins, who heard the divorce case and made all of the orders and decrees therein. He has filed an opinion giving reasons for denying the application, in which he shows that the alleged interests of the infants in the land were settled against them by the setting aside of the deed, adjudged in the first decree, and states that the later decree was made to enable the parties to carry out the terms of an agreed settlement under which it was made, being signed by their consent and approval. In view of this finding of facts by the circuit judge, we do not feel called upon to discuss the questions raised by the counsel for the petitioner. If there were irregularities in the equity proceeding, an appeal would have corrected them, and if not, and there would otherwise be meritorious reasons for granting this application, they vanish before the light afforded by the history of the proceedings. The want of equity in the application is clearly shown. A bill of review must show substantial equities. Clark v. Huron Circuit Judge, 40 Mich. 166.

Leave is discretionary, and the discretion is to be exercised so as to effectuate substantial justice. Stockley v. Stockley, 93 Mich. 307-314; Farmers’ Bank of Grass Lake v. Quick, 71 Mich. 537; Vaughan v. Black, 63 Mich. 215; 3 Enc. Pl. & Prac. 572, 588.

The order of the circuit court is affirmed, with costs.

Moore, C. J., and Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


text:
    BURR’S DAMASCUS TOOL WORKS v. PENINSULAR TOOL MANUFACTURING CO.
    1. Appeal and Error —Record—Matters to be Shown — Objections.
    Where the record on error fails to show that any motion was made in respect to a plea setting up a prior discontinuance, or that the subject was in anywise brought to the attention of the trial court, or any exception taken thereon, this court will conclude that the case was a pending suit, recognized by the parties who proceeded to try the merits without objection.
    2. Accord and Satisfaction — Defense—Sufficiency.
    An accord cannot be made a successful defense unless fully performed.
    3. Libel and Slander — Actionable Words — Words Libelous Per Se.
    Circulars containing false statements and charging plaintiff with false statements and malicious motives, and unscrupulous attempts to injure defendant’s business, and with bad faith, fraud, and deceit, are libelous per se.
    4. Same — Privilege.
    Where plaintiff and defendant were rival tool manufacturers defendant’s relations with the trade were not such as to make privileged circulars falsely charging plaintiff with false statementg, malicious motives, and unscrupulous attempts to injure defendant’s business, and with bad faith, fraud, and deceit.
    5. Same — Damages—Pleading.
    Recovery may be had for words libelous per se without an allegation of special damages.
    Error to Wayne; Brooke, J.
    Submitted December 8, 1905.
    (Docket No. 169.)
    Decided December 22, 1905.
    Case by Burr’s Damascus Tool Works against the Peninsular Tool Manufacturing Company and others for libel. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Charles C. Stewart, for appellants.

      J. Emmet Sullivan and Raymond E. Van Syckle, for appellee.
   Hooker, J.

Tbe parties to this action were rival manufacturers of molder’s tools, and both claimed the right to the use of the name “ Burr ” in connection with their products. The matter was tried out in a chancery cause, commenced by the defendant in this case, which resulted in a decree being rendered in behalf of the defendant in that case, plaintiff here. Thereupon plaintiff addressed a circular to its patrons and the public, informing them that a decree had been granted, giving it the sole right to use the names “ Burr” and “Burr’s Damascus,” and warning against tools so marked by others. The circular contained a copy of the decree. The defendant company thereafter issued two circulars, which are the basis for this action of libel, and took steps looking to the appeal from said decree.

This cause came on for trial before defendant company’s appeal was perfected, and after the jury was impaneled, the parties agreed upon terms of settlement, which were taken by the stenographer, being stated by the circuit judge in open court. After a recital of the substance of the facts hereinbefore set forth, it provided:

1. That the decree should stand, and that the proceedings to vacate the same or to appeal therefrom should be discontinued, and that no appeal should be taken from said decree.

2. The right was reserved to the complainants to institute a suit for damages arising out of the use of the words “Burr” or “ Burr’s Damascus ” and “ Burr’s Damascus Tool Works,” provided that defendants might interpose as an affirmative defense their claim of the right during said time to use said terms notwithstanding the decree.

8. That defendant should send out to the trade, a circular, containing a copy of the decree, and other matter stated in the stipulation, and, farther—

“ In consideration of the foregoing, it is hereby agreed that this suit now pending and in progress of trial in open-court, be discontinued without cost to either party.
Both parties agree to the above, and the court called in the jury and dismissed the case. Any question as to the terms of this agreement or its construction shall be determined by the court by consent of both parties.”

This was on June 17, 1904.

At that time there was pending in the Supreme Court an application by the defendant company for a mandamus to compel the circuit court to vacate the decree. The defendant company did not discontinue the proceeding last mentioned, and it was afterwards decided, the application being denied. A controversy arose over the number of circulars to be sent by the defendant, and it was taken before the court, and the number was fixed by the court. It was claimed that this order was not complied with, and on February 13, 1905, the following order was made:

‘£ In this cause, a motion having been made heretofore to set aside the settlement of this suit and reinstate the same for trial, and it appearing to this court that the plaintiff have not received the consideration agreed upon and contemplated in the proposed settlement of June 17, 1904, and that the defendants refused to carry the things by them to be done, it is ordered, on motion of J. Emmet Sullivan and Raymond E. Van Syckle, attorneys for plaintiff, that the settlement provided for in this suit when it came on for trial on the 17th day of June, 1904, be set aside and held for naught, and that this cause be reinstated, and may be placed upon the docket for trial by plaintiff to be tried as early as the business of this court .may permit.”

On March 10, 1905, the jury was impaneled, and thereupon a plea was filed setting up the settlement, and claiming that the action was thereby extinguished. The calendar entries refer to it as a plea puis darrein continuance. Defendants’ counsel state that before the jury was impaneled further proceedings were objected to upon the ground that there was no such case in court; the same having been been discontinued. Our attention has not been called to such objection, and we fail to find it in the record. It is denied by plaintiff’s counsel. A copy of the plea referred to does not appear in the record, but we treat the case as though it did, and assume that a valid plea was filed but without leave of the court. The stipulation was offered in evidence and also the subsequent order of the court.

Counsel for the plaintiff contend that the point under discussion was raised for the first time in this court, that the plea was merely an attempt to give notice that the settlement of June 17 would be given in evidence under the general issue. No motion based thereon, or action of the court appears in the record, nor is there any indication that the subject was brought to the attention of the court, nor was any exception taken. So far as we can discover, this is a correct statement. We must therefore conclude that the case was a pending suit, recognized as such by the parties who proceeded to try the merits without objection.

Under the plea, if it may be treated as a plea of accord and satisfaction, the jury heard the evidence. Not only was the order attempting to vacate the settlement shown, but the testimony warranted a finding that it was not carried out by the defendant. It is the general and well-settled rule that an accord cannot be made a successful defense unless fully performed. It is not pretended that this was fully performed. We do not overlook a few cases which distinguish instances where the agreement shows the making of a new executory contract, upon the understanding that it is itself made in satisfaction and extinguishment of the plaintiff’s original claim. We think that this is not such a case, as there is nothing that indicates such intention. For that rule see the following cases: Coit v. Houston, 3 Johns. Cas. (N. Y.) 243, and note; Babcock v. Hawkins, 23 Vt. 563; White v. Gray, 68 Me. 579; Zucca v. Kuhne, 84 N. Y. Supp. 181; Headley v. Leavitt, 65 N. J. Eq. 748; Hosler v. Hursh, 151 Pa. 422; Flegal v. Hoover, 156 Pa. 276. See, also, 1 Cyc., p. 312, and cases cited; Browning v. Crouse, 43 Mich. 489.

The circulars alleged to be libelous contained false statements, and charged the plaintiff with false statements and malicious motives, and unscrupulous attempts to injure the defendants’ business, and with bad faith, fraud, and deceit. We are constrained to hold that each count charged statements libelous per se, and, if untruthful and malicious, they were not privileged. Moreover, defendants’ relations with the trade were not such as to make privileged communications of the character sent out, being untrue. Whether the articles were true or not was a question of fact for the jury, if disputed; otherwise, for the court. Their falsity was conclusively .shown.

We cannot sustain the claim that the libelous matter was limited to defamation of plaintiff’s title to a trademark. It extended to its business character and methods, its honesty and fair dealing, and, as we have already said, the articles were libelous per se, and therefore a recovery might be had, although special -damages had not been alleged. We find such allegations, however, in both counts, and there was testimony tending to prove such damages. See Steketee v. Kimm, 48 Mich. 324.

The judgment is affirmed.

Moore, C. J., and McAlvay, Grant, and Blair, JJ., concurred.