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      In re HOFFMANN’S ESTATE.
    1. Wills — Execution—Undue Influence — Fraud—EvidenceDisinherison of Relatives.
    The relationship between uncle and nephew, while an important fact to be considered, is not so close as to make the disinherison of a nephew and sole heir at law, of itself, evidence of undue influence or fraud, and to require the submission of that question to the jury in the absence of other facts pointing towards the exercise of such influence.

      2. Same — Condition of Testator — Materiality.
    To some extent the undue influence sufficient to set aside a will must depend upon the physical and mental condition of the testator, since what would be undue influence in a case of physical and mental weakness would not be undue influence where testator was in full possession of his mental faculties.
    3. Same — Evidence—Sufficiency.
    In proceedings to probate a will by which testator disinherited his nephew and sole heir at law in favor of an old friend and a neighbor who cared for him in his last illness, evidence examined, and held, to present no issue of undue influence to submit to the jury.
    Error to Wayne; Hosmer, J.
    Submitted February 19, 1908.
    (Docket No. 172.)
    Decided March 17, 1908.
    Julius Bonninghausen, as executor, presented for probate the last will and testament of Theodore Hoffmann, deceased. The will was allowed in the probate court, and William Hoffmann, a nephew and heir at law, appealed to the circuit court. There was judgment for proponent on a verdict directed by the court, and contestant brings error.
    Affirmed.

      Charles T. Wilkins, for appellant.

      Isaac N. Payne, Herbert C. Munro, and Arthur E. Schreiter, for proponent.
   Blair, J.

Theodore Hoffmann died testate January 26, 1905, leaving surviving him as his sole heir at la-w- and only blood relative, the contestant, William Hoffmann, a nephew. The will, which was executed November 19, 1904, gave the testator’s entire estate to a tenant of one of his two houses, by the name of Woodward, and an old friend by the name of Bauman, neither of whom was in anywise related to testator. From the order of the probate court admitting the will to probate, contestant appealed to the circuit court, where a verdict was directed in favor of proponents, and he has removed the record to this court for review.

Contestant’s counsel contends, under various assignments of error:

1. That there was evidence sufficient to require submission to the jury of the question whether undue influence was practiced upon testator by proponents, which procured the making of the will.

2. That the proofs did not show an execution of the will in accordance with the statutory requirements.

3. That testator’s mental competency was not conclusively established.

The second and third points are utterly devoid of merit, and we shall, therefore, confine our discussion of the case to the first point.

At the time of his death, testator was a childless widower, 59 years old, his wife having died some two years earlier. He lived alone in one of two houses which he owned, and the proponent Woodward lived with his family in the other. Mr. Hoffmann was taken sick with pneumonia November 18, 1904. About nine o’clock at night on that day, Bauman, one of the beneficiaries, called upon Mr. Bonninghausen, who drew the will, and told him that Mr. Hoffmann wanted to see him on important business, the nature of which he said he did not know.

“When I got to Mr. Hoffmann’s house I went in and spoke to him and he told me that he wanted to make a will and I saw lie was feeling rather bad, breathing heavy, and I said, ‘ Mr. Hoffmann, you had better have a doctor,’ and he said he didn’t care for a doctor. Well, I told Mr. Bauman he had better go and get a doctor anyway. * * * I saw a couple of ladies there and another gentleman, who afterwards proved to be Mr. and Mrs. Woodward, and a few children — two or three children around there. W® talked over his will while we were waiting for the doctor, but I didn’t say very much to him on account of his feeling rather bad, and, after the doctor got there, I said to the doctor, ‘Now, what do you think is the matter with Mr. Hoffmann?’ ‘Why,’he says, ‘ it looks like a case of pneumonia, and he will very likely feel better in the morning,’ and so I put it off until then, and I went up the next morning and got a memorandum of what he wanted and went back to the office and had my girl write it off on the typewriter and took it back there in the afternoon, and had Mr. Hoffmann sign it. * * * When he gave me a memorandum of what he wanted, I asked him if those people were related to him, he said, no, that he only had one nephew and he didn’t want to leave him anything, he wanted the property to go to these people. As to whether he gave any reasons I don’t remember now; he might have said something about that, but just what it was I don’t know. As to whether he said that Mr. Hoffmann had been to see him and attended to him, or something of that kind, I don’t remember, as I say, just now, what he did say about it. # * #

“Q. Let me refresh your memory and see if this is not what you testified in the probate court:

‘ “ Q. What inquiry did you make of and concerning the relationship of Mr. Woodward ?

‘A. I asked him if they were related, and he said, No. I asked him if he had any relatives; he said, yes, he had a nephew, but he didn’t want to leave anything to him because he hadn’t come near him.’ Do you recollect your testifying to that ?

“A. No. As I said, he said something about him, but I don’t recollect what it was; possibly I did testify to that in the probate court and if I did it was soon after the will was made, so that I perhaps remembered better than I do now. Perhaps he did. If I stated then, I am quite sure it was true. * * * I had not drawn a will for him before, but a clerk in my office drew a will for him in 1884, when his wife was alive. * * *

“Q. Was this question asked you in probate court — on direct examination I guess that is ? ‘ Did he say anything to you about the persons who were beneficiaries in the will ?

‘A. Yes, when he asked me to draw that, I said, “Are these people related to you,” and he said, “ No,” and I said, “ Have you any relatives?” and he says, “Yes, but they don’t come near me and I have decided to leave my property to these people.” ’ Do you recollect his saying that ?

“A. As I say, if I swore to that in the probate court, that is what he said.”

Charles Haas, one of the subscribing witnesses to the will, testified:

“On that same day I asked him whether he had any relatives. And he says: ‘Yes, I have relatives, butT don’t want to give them anything.’ That was before this paper was signed. He wanted to give it to the people who was treating him and caring for him when he was sick and needed attention. * * * I talked with him about his family before he was sick some; after he was sick not so much, but I did talk to him so far if I could not — I could let them know about his sickness, and he said he did not want them to know anything about it. I did not ask him who his relatives were, but he said that one was dead — he said he had a brother who died, and there was only children of deceased brothers; he told me it was his nephew. He did not tell me why he did not want anything to do with his nephew, he complained about his property, about when he came here. He said he did not want to see Mr. Hoffmann, his nephew. I don’t know whether Mr. Hoffmann, his nephew, was ever sent for while he was sick. He said he wanted Bauman and the other one to have his property; he gave one to one and the other to the other of these houses; he told me that after Mr. Bonninghausen went away. He says, ‘My friends I don’t want to know anything of them.’”

Mary Walters, a sister-in-law of decedent, testified:

“ I saw him very often until the last six months before his death; usually in our own home; he used to come to see us there. * * * Mr. Hoffmann called very often on Sunday and on evenings. I might say while he was working he only called on Sunday and while Mrs. Hoffmann was alive lie came there two or three times a week. After Mrs. Hoffmann died he came oftener until the last six months. * * * The relations between myself and Mr. Hoffmann were very pleasant; that continued until about six months before his death. How it came to stop then I don’t know; he stopped coming there the first time for about two months and then he came and I went out in the yard, and he came out there and he says, ‘ Good morning, how are you getting along ? ’ I says, ‘ I am getting along all right.’ I says, ‘Why, you are quite a stranger, how are you getting along ? ’ ‘ Why,’ he says, ‘I am getting along well,’ he says, ‘I have neighbor ladies does everything for me; I don’t need any more relatives; ’ and that is all. I spoke up and asked him in. He said that was the last time I would see him. * * * I don’t know much about the relation between the dead uncle and his nephew, William Hoffmann. I think they were very friendly. I remember hearing him speak of his nephew. I never heard him say anything that was unfriendly about his nephew. I don’t remember his ever talking about his nephew at our house.”

Minnie Hoffmann, contestant’s wife, testified:

“I did not go to visit him after William came back and reported that his uncle was sick in bed. At that time I was sick myself, I always had asthma in the fall of the year, and catarrh. That was the reason I didn’t go out. I am not a very strong woman. My health was such, with asthma and catarrh, during that fall of 1904, that I could not go up.

“I didn’t have any quarrel or misunderstanding with uncle Theodore. There was never any quarrel or misunderstanding between my husband and his uncle Theodore, in my presence; he was always friendly whenever I seen him. From what I saw and observed, at our house or elsewhere, they were always friendly and jolly when he came there. He was jolly and friendly before he took sick that fall.

“As to him coming to live with us, he says he would rather live alone; he says he has got ways of his own and he would rather live alone in his own house. We offered him our own house most every time he came there. We have plenty of room there, and could have accommodated him nicely at our house, but he would say that he would rather stay at his own home, because he had ways of his own, rather be his own boss.”

Frederick Duehring, a nephew by marriage, testified:

“ During his last sickness I visited him a lot of times; sometimes three or four times a week; I used to step in and see him befóte I would go home every night. And I continued those visits up to the time of his death; I guess he died on Monday — Monday night, and Saturday I was there yet. When I came to visit my uncle I always found some one there; either Mr. Bauman was there or his wife, or sometimes the children was there, and sometimes*the neighbors next door — I never found him alone, there was always some one in the room. I couldn’t talk with him alone, never; never asked for private interview.

“During the time I made these visits during his last sickness, he never mentioned anything to me about William, anything wrong, as many times as I have been there. William was there. I used to go there but I used to go there from work and William came after supper; I never met him, but Mr. Hoffmann used to say he was there a lot of times. Theodore Hoffmann told me William visited him a lot of times. And when he told me about William and his visiting him often, he always spoke well about him; he never spoke any word wrong about him— about that he didn’t like William Hoffmann, or anything.

“When I came there I never could talk with the old man alone. I was never with him in the bedroom, you know, but somebody used to be inside — inside the bedroom or sometimes in the next room; there was always somebody there; I could not speak to him never personally alone you know. I never asked to speak to him so I could speak to him alone. * * *

“Mr. Hoffmann didn’t speak English very well. He could speak but it was broken; the German would come better to him than English; the German went better to him as the English; he would rather speak German. Part of the time Mrs. Woodward was there, or Mr. Woodward, and if they wasn’t there, some of the children was there in the evenings — I don’t know whose they was. I don’t think Mr. Woodward and Mrs.-Woodward can talk German; I don’t know as they can talk German or not. * * *

“ Neither my sister nor I went over and stopped all night with Mr. Hoffmann. I wanted to stay by him one night — I asked him, ‘ Do you need anybody at night ? ’ and he said he had somebody there to stay all night by him, he didn’t want us at all, he said, ‘ We don’t want you;’ ho said we should go home and it is the best thing for us to stay home, I live too far away from him. _ I couldn’t stay at night much anyhow. I have small children at home and they are kind of afraid alone in the house. I did offer to stay with him one night, and he refused me, and I never asked him then; that was before Christmas already. * * *

“ I was there three or four times a week, and every time I went there I went in the bedroom with him alone, and was alone there with him. He was always friendly when I came in there and shook hands, as soon as he had his eyes open. He never complained to me about not being able to speak to William alone. He never complained to me about the Baumans and Woodwards being there. ¡I»

“The Baumans or the Woodwards never refused to let me go into the house. They always was friendly, and whenever I came they always bid me the time, and they never refused to let me come in. They was always willing for anybody to come in, any of our friends could go in and welcome. I suppose they tried the best they could to make the old man’s last days as pleasant as possible. And the old man ought to have somebody there. I couldn’t tell you what was the trouble with him, he had something like pneumonia, but I don’t know the sickness. He was a pretty sick man, all the time he was sick. His mind was clear up to within a short time before he died, about three or four weeks he commenced to give way in his mind.”

Wilhelmina Gushfelt, a sister of Frederick Duehring, testified:

“I visited Mr. Hoffmann before he died, once me and my husband. We was there and then I asked whether we could do anything for him to help him along, and he said, ‘ No; ’ he said the best way was if we wouldn’t come at all; he had some people that waited on him. We hadn’t done anything to offend him. We hadn’t had any quarrel with him. Neither I nor my husband did or said anything to offend Mr. Hoffmann. There hadn’t been any quarrel between us and Mr. Hoffmann, or our children, or anybody. He always was friendly to the children, but the last time he was there — the last couple of times he always put the children away from him when they came near him and was cross and ugly. This last time I saw him was when he had been sick one week. It was before that that he didn’t want the children around him. When he treated our children that way was the first part of April, 1904, before he died. He did not act before that towards the children that way. He did not act cross and ugly to me before that. He was always friendly.”

Contestant testified:

“Uncle lived on Concord avenue before he died, it must be all of thirty years. Father and uncle visited back and forth. There never were any quarrels between them. I had no quarrels with my Uncle Theodore. He visited our home occasionally, he often came, at my home on Clinton avenue. Sometimes he would stay there an hour or two hours; sometimes just dropped in and went away. He would sit down and I asked him a couple of times to stay to meals but he said he wanted to go home, he was a home man. He came quite a little before his wife died and came there quite a little after she died. * * *

“When I done that [some varnishing], when I got through he said he was going to go out to the country on some Sunday before the cold weather set in and he wanted me to go along with him, and I was always waiting for him, so I says to my wife, I am going down there. He didn’t come, and I went to see what was the trouble, whether that he is sick or alive. When I came out there Mrs. Woodward came to the door; I asked if my uncle was in. This is my uncle’s own house — in the house he always occupied. She says, ‘Yes, he has been sick.’ I says, ‘Why didn’t you leave me know?’ She said she did not know where I lived. I lived on Clinton avenue, south side, between Dubois and Chene, from where uncle lived — between ten and twelve blocks from uncle’s. .That was the first part of November, about five weeks after I did this painting. When I did this painting he was perfectly .well; he didn’t complain any. Mrs. Woodward was the first one to tell me uncle was sick. I walked in; she showed me where he was lying, in the bedroom. I visited uncle then -and talked with him; I stayed there about an hour. He says, ‘How do you do?’ and he told me about that he was sick. . I told him about I thought he was going out in the country there, and he says he could not, he was sick. He told me the reason that he did not come to our house was because that he was sick. He did not treat me any differently than he had done before; he always treated me the same way. He was always friendly to me. I stayed there about an hour, might have been a little longer. Uncle didn’t say what ailed him, he had an awful pain always. I knew of his having a pain in the leg, he was always telling me about that. * * *

“ The fore part of November was the first time that I learned that he was sick. I can’t say the date. Mrs. Woodward told me then he had been sick five weeks at that time. Uncle told me that he had been lying there five weeks. He didn’t say a word about why I had not called on him. I says why didn’t he let me know, and he didn’t say nothing exactly. He was in bed at that time. After that I was up there the second day after I found out that he was sick and I went there sometimes two or three days, and I went nights, sometimes every other day, and sometimes if I couldn’t get there during the day, I went in the evening after supper. He always treated me well. * * *

‘ ‘ While he was sick, which resulted in his death, he always acted the same as what he always did. I never had no chance at all to be alone with uncle. He was always guarded; sometimes Mrs. Bauman sat there and the children or Mrs. Woodward. The Baumans all speak German and their children, too. I never heard uncle speak English, he could say a few words; he could just barely make himself understood, that is all. He couldn’t read English, and his associates were most always German. I mean by saying when I came there I always found uncle guarded, that they were all sitting in the other room, and the bedroom was right off the sitting room. They were always sitting in the sitting room right by the door, round the coal stove, and the bed was right by the door. In his last sickness, when those people, the Baumans or the Woodwards were there, he always acted friendly to me. But he did not talk as free when they were there as he did when we were alone. He was always in bed. He was pretty sick. They often told me they changed him — Mr. Bauman and Mr. Woodward, that they changed him — that they changed the clothing— bedclothes.

The Court: Did you ever ask to see him alone ?

“A. No. I never asked them. He had such a view from his bed that he could see whether there was any-' body in the room. He said he had pains and that is all he did tell me. He sometimes raised his head and looked to see if he could see anybody, to see if there was any of these people in; they were in the room.

Q. When he saw that there was no one in the room, having looked around and about, did he talk more freely to you then?

“A. No, he told me he felt worser.

Q. I mean when uncle saw that there was no one immediately at the bedroom, did uncle talk more freely to you than he did before, when they were there ?

“A. He didn’t have no chance; they came in right away again;-they weren’t gone more than two minutes. They did not give him any chance to be alone with me long; the children came in; Mr. Bauman’s children — a boy and girl. If Mr. Bauman wasn’t there, Bauman’s children would come in. ^ *

“When visiting our home uncle’s conduct toward my wife was friendly and my wife was friendly toward uncle. I told him several times to make his home with us. My wife asked him once to come and live with us. Uncle said he would rather stay in his own home. He said he had intention to get married again, etc. I was just as well treated as he treated any one.

“The Woodwards and Baumans always treated me kindly when I got there; talked together. I went down there sometimes with the intention of staying all night; they treated me pretty cool then; that is when I came down there in the evening and wanted to stay all along. I offered twice to stay there and visit — stay with uncle and watch over him when he was sick; but I saw that I was not wanted and so I went home. They looked at me that meant just as much as ‘You might go home;’ they were not so cordial as they were before. When I was just coming in and saying, ‘ Good evening, uncle,’ and staying a little while, why I was all right. I offered to stay there about a week before he died. Uncle never indicated or said to me that he did not want me there. Nobody ever said to me that he did not want me there; I was always welcome with uncle. * * *

“ I don’t know that he and father had some falling out about money matters between them, unless it was some money of my grandmother. There was some little trouble about money. As to any hard feeling between them about it, I couldn’t tell you about that; I was nothing but a small boy then. I couldn’t swear as to whether they had words about it." There was trouble of some kind about some money. She left, as much as I could make out — she left the money over to my father — that was my grandmother — that was my father’s mother —and as much as I could understand that my father kept it in case of any sickness or death that he would have something, and whatever became of that I don’t know. I know my my father turned it over to Theodore and that is all I heard about it. I didn’t see it, but it was told to me. But whether there was quite a trouble about it, I could not swear to that. * * *

‘ ‘ Since his wife died I went there sometimes twice a week and sometimes — every two or three weeks I went, and he came between times — over to our house. I would go over there about every week or ten days to his place. At this time I didn’t go for five weeks; I was always expecting him. I knew he was living alone; and he had not been over for some time before that, he had not been well; he had always had a sore leg for years. * * *

‘ ‘ I couldn’t tell you whether he had pneumonia or not. I was there a couple of times and I seen Mrs. Bauman changing the bed linen; and I knew that he needed constant care, constant attention. I suppose he was liable to call any minute for something and that somebody had to be there. * * * Every time I went to see the old man somebody always stood right at the door watching me; either Mr. or Mrs. Bauman or Mr. or Mrs. Woodward or the children. I suppose they did it purposely; I don’t know; and they always came to the door, when I was talking to uncle in his room, they always sat there by the coal stove, here is a door leads right out the center of the sitting room; this is the sitting room and the bedroom was right like this, and the door was in the center and one stove sat right there. It isn’t quite exactly in the middle of the sitting room but it stood more towards the bedroom. They were sitting there most of the time. It was in cold weather. Those children, the girl was some-wheres around thirteen years or probably a little older, I couldn’t tell you how old the boy is; he is going to school yet.

“None of these parties who are named in this will with their wives told me I was not welcome there, they never said a word. They didn’t refuse to let me see uncle, and whenever I went I had the privilege of going right in to see uncle right into his room, and sit down and talk with him. A great many times I came I did not go in the room at all but sat out in the sitting room; they said he was asleep. I didn’t go in. I told Mr. Hoffmann, or Mr. Bauman and the others that I was busy and couldn’t come every evening and I also told them I would like to wait on him but didn’t have time, or would help them to do it, because I was busy. I didn’t send my wife up to wait on him. I knew uncle was a sick man, flat on his back, the neighbors told me they were waiting on him. My wife didn’t have any children to look after; but I did not send her up to wait on uncle because she was sickly most of the time. I asked her to go up and wait on him; she said she didn’t feel well.”

Contestant argues that the testimony discloses a “sudden revulsion of the feelings of the uncle for the nephew, as expressed by the witness Bonninghausen and Charles Haas;’’ that the reason assigned for not leaving the nephew anything, “because he hadn’t come near him,” was not a valid reason; that, although his uncle had been sick for five weeks, the beneficiaries did not notify contestant; that the beneficiaries did not permit contestant to see his uncle alone but kept him under constant surveillance while at his house; that decedent became suddenly estranged from his relatives by marriage:

“Thus it appears by the record that the testator became estranged from all who had been close and dear to him. No tenable reasons are or have been advanced by the proponents to explain the inexplicable and strange conduct of the testator.

“ Other and very important elements and circumstances bearing on the question of undue influence, and from which, as we contend, the jury could legally infer undue influence on the part of the two beneficiaries, consist in this:

{a) The fact that the beneficiary Woodward was a tenant of the deceased at the time of the making of the alleged will and subsequent thereto (living adjoining the testator) and that he (Woodward) and his family were in constant attendance on the deceased; affording opportunity, disposition, secrecy and lack of independent advice, etc.

“(b) That on the night previous to the making of the alleged will, Bauman, a beneficiary, at or about 9 p. m., summoned Bonninghausen from his home — 3 miles distant — to come and see Mr. Hoffmann on important business.

“(c) The sick and feeble condition of the testator at that time (Nov. 18, 19, 1904) necessitating the immediate attendance of a doctor before Bonninghausen would act or draw any will or papers.

“(d) The circumstances attending the preparation and execution of the will, tending to show motive on the part of the beneficiaries.

“(e) The logical and reasonable inference from all the circumstances that Bauman did not deem it safe to take a devise of all the property — therefore took in Woodward to prevent his becoming inimicable to him (Bauman) concerning the property of the testator.”

There is no testimony in the case that the decedent had ever stated an intention to leave any of his property to his nephew or signified any intention with reference to its disposition other than by the previous will, as to the contents of which we are not informed.

We do not regard the testimony as warranting the inference that there was a sudden revulsion of feeling or any marked change of feeling towards the nephew. On the contrary, the testimony of contestant himself shows that his uncle treated him just the same as he always had and that he was always welcome, to the last.

The reason assigned by Mrs. Woodward for not notifying contestant of his uncle’s sickness is not shown to have been a false one, and is no more significant than the failure of contestant to notify Mr. and Mrs. Walters after he discovered his uncle’s sickness. Furthermore, the evidence is undisputed that before he was taken sick he told Mrs. Walters, “ I don’t need any more relatives.” “He said that was the last time I would see him,” and it was. He told Mr. Haas that he did not want his family to know about his sickness.

It was a fact that contestant had not come near his uncle for five weeks, and whether this, in view of the nephew’s explanation, was a sufficient reason for not leaving the property to him was for the testator and not for courts or juries. The testator had a right to dispose of his property as he saw fit and did not need to have good reasons or any reasons at all outside of his own wishes.

Bauman was an old-time friend in Mecklenburg, and the relations between him and testator were close and intimate. The Woodward family took excellent care of him and he evidently appreciated what they did.

There was nothing unnatural about this will, in a legal sense. The relations between uncle and nephew are not so close as to make the disinheriting of the nephew, of itself, evidence of undue influence. Otherwise, the disinheriting of a nephew and sole heir at law would, of itself, require that the question of undue influence be submitted to a jury. While the relationship is an important fact to be considered, there must be other facts pointing towards the exercise of undue influence or fraud to justify the submission of that question to a jury. Spencer v. Terry’s Estate, 133 Mich. 39; Kneisel v. Kneisel, 143 Mich. 384.

To some extent, also, the undue influence sufficient to set aside a will must depend upon the physical and mental condition of the testator.

“The two are usually intimately connected. What would be undue influence in a case of physical and mental weakness would not be undue influence where he was in the full possession of his mental faculties.” In re Seymour’s Estate, 111 Mich. 203.

Before Mr. Hoffmann was taken sick, and before he made his will, when he was in the full possession of his mental faculties, he announced to his sister-in-law, Mary Walters:

“‘I am getting along well, I have neighbor ladies does everything for me; I don’t need any more relatives.’ * * * Before that he did require relatives; he was always glad to have me help in any way, in every way.”

He saw his nephew frequently after the making of his will, when, as the undisputed evidence shows, his mind was clear; he treated him as he had before, but let the will stand. Although friendly with his nephew, he did not wish to live with him but preferred to live alone in his own house where he could be “ boss.”

The room where testator lay in his bed was warmed from the stove in the sitting-room and his bed was near the door, the weather was cold, and the attendants naturally sat by the stove. Contestant testified:

“ I knew that he needed constant care, constant attention. I suppose he was liable to call any minute for something and that somebody had to be there. * * * I told Mr. Hoffmann or Mr. Bauman and the others that I was busy and couldn’t come every evening and I also told them I would like to wait on him but didn’t have time or would help them to do it, because I was busy.”

The relatives were permitted to come as they willed and to talk with the sick man in their native tongue, which the "Woodwards did not understand, if they desired. No obstacles were placed in the nephew’s way, and he was uniformly treated with kindness except that on two occasions when he offered to stay all night he thought they looked unfriendly, treated him less cordially than at other times and indicated by their demeanor that they did not desire him to stay. There is no claim, however, that they refused to let him stay or that he could not have stayed, if he chose. It is clear that the sick man preferred to have his regular attendants take care of him, since he so informed Mr. Duehring and Mrs. Gushfelt, and such preference was entirely reasonable.

Testator said, when in the full possession of his mental faculties, that he desired the beneficiaries in his will to have his property in preference to his relatives, and there is nothing in this record to warrant an inference that such desire was produced by fraud or undue influence.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    MUTUAL BENEFIT LIFE-INSURANCE CO. v. COMMISSIONER OF INSURANCE.
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    The so-called automatic premium loan provision of life-insurance policies, by which, upon application before or within , the'month of grace allowed for the payment of premiums, the insurer pays the premium and charges it against the policy, and so continues until the interest, of the assured in the policy is exhausted, does not conflict with the provision of the statute (subdivision 8, § 1, Act No. 187, Pub. Acts 1907) requiring policies to secure to the owner thereof, in the event of default of premium payments, a stipulated form of insurance, the net value of which shall be at least equal to the reserve, etc., though, as compared with the values secured by the provisions conforming to the statute, those secured by the operation of the automatic premium loan provision are smaller, if, under one provision or the other, the interest of the insured in the policy is exhausted; since, by the terms of the act, when a premium is paid by the operation of the premium loan provision, there is no default within the meaning of the statute, but, on the contrary, an election by the policy holder not to make default with its resulting consequences.
    Mandamus by the Mutual Benefit Life-Insurance Company to compel James Y. Barry, commissioner of insurance, to withdraw his disapproval of certain policy forms.
    Submitted February 27, 1908.
    (Calendar No. 22, 725.)
    Writ granted March 17, 1908.

      Frank L. Sage, for relator.

      John E. Bird, Attorney General {Arthur P. Hieks, of counsel), for respondent. -
   Ostrander, J.

Act No. 187, Pub. Acts 1907, is entitled: “An act establishing standard provisions and conditions to be contained in policies of life insurance issued by companies licensed to do business in this State. ” By section 1 of the act it is provided that no policy of life insurance shall be issued in this State unless the same shall contain twelve named provisions. By section 2 it is provided that no policy shall issue if it contain any of four named provisions. By section 4 the commissioner of insurance is given authority to disapprove the form of a policy filed with him, his action being “subject to review by any court of competent jurisdiction.” Relator filed its forms of policies with the commissioner, who refused to approve them for the reason that they contain what is called, and will be herein called, “an automatic premium loan provision,” which it is claimed is obnoxious to subdivision 8 of section 1 of the statute. That reads: ( The policy shall contain)

“ Eighth. A provision which, in event of default in premium payments, after premiums shall have been paid for three years, shall secure to the owner of the policy a stipulated form of insurance, the net value of which shall be at least equal to the reserve at the date of default on the policy and on any dividend additions thereto, specifying the mortality table and rate of interest adopted for computing such reserves, less a sum not more than two and one-half per centum of the amount insured by the policy and of any existing dividend additions thereto, and less any existing indebtedness to the company on the policy. Such provision shall stipulate that the policy may be surrendered to the company at its home office within one month from date of default for a specified cash value at least equal to the sum which would otherwise be available for the purchase of insurance as aforesaid and may stipulate that the company may defer payment for not more than six months after the application therefor is made. This provision shall not be required in term insurances of twenty years or less.”

It is conceded that relator’s policies contain the provisions required by the 8th subdivision of section 1 of the act. It goes without saying that if a policy holder pays premiums according to his contract he secures the contract benefit. We shall better understand the effects of nonpayment of premiums if we resort, at once to the policy provisions. If the insured does not pay his premium on the due day, he may pay it within one month. If he dies within the month without having paid, the policy is in force and the indemnity provided therein, less the past-due premium, is secured. If he does not pay on the due day and does not pay or die within the month of grace, he may, within the same time, (1) surrender the policy for its cash surrender value, (2) surrender it and receive in exchange a paid-up policy, (3) if he does not surrender the policy, the insurance will be automatically extended from date of default in premium payments, without any action by the owner of the policy. If the policy is extended under the above provision 3 it may at any time during its life, upon payment of all arrears and interest, be reinstated “upon evidence of insurability satisfactory to the company.”

The automatic premium loan provision of the policy is found under the head “Reinstatement.” With the context it reads:

“In event of default in premium payments, the arrears may be paid within one month, or, if not so paid and the insured shall die within the said month, this policy will be regarded as being then in force, and the arrears will be deducted in the settlement hereof; or, if requested by the insured prior to or within the said month, the arrears will be charged as an indebtedness against this policy, bearing interest at a rate not exceeding six per centum, per annum, provided the entire indebtedness then outstanding shall be within the limit secured by the cash surrender value; or this policy may be reinstated at any time after the said month, upon evidence of insurability satisfactory to the company and payment of all arrears with interest thereon at not to exceed six per centumi per annum: Provided, in any case, the policy has not been surrendered to the company.”

It is the second clause of this provision, which I have italicized, to which objections are made. Those objections as stated by the respondent are:

“First. Because such provision in effect negatives the very thing that was intended to be saved to the policy holder by subdivision 8 of section 1 of Act No. 187 of the Public Acts of 1907, in this, that under the clause as contained in your policy you can deprive the insured of the stipulated form of insurance provided by the statute except such as can be purchased with a reserve that is insufficient to pay a single quarterly premium.

‘ ‘ Second. Because I do not believe that when the legislature prescribed subdivision 8 of section 1 of the standard provisions law above referred to as a necessary part of every insurance policy, it intended that a clause of such a nature as the one you propose should be permitted to be placed in the policy and the insured thus prevented from obtaining what the law in clear terms says he is entitled to.

Third. Because I .do not believe the action of the automatic premium loan clause will secure to the assured under all circumstances, if at all, ‘ a stipulated form of insurance, the net value of which shall be at least equal to the reserve at the date of default on the policy and on any dividend additions thereto,’ etc.

Fourth. Because when the insured allows his policy to lapse and is not reinstated, the net results of the proposed automatic premium loan provision to the insured are not such as would come within the requirements of subdivision 8 of section 1 of the standard provisions law.”

It is conceded that, as compared with the values secured by the provisions conforming to the statute, those secured by the operation of the automatic premium loan provision are smaller, if, under one provision or the other, the interest of the insured in the policy is exhausted. If a policy holder were to choose, at a given date, to have his premiums paid by the relator instead of electing to have his policy extended, the result, if no premiums were thereafter paid by him, would be that his insurance would sooner terminate. To use language employed in the brief for relator, it has never denied—

“ That if the insured intended to pay no more premiums, the automatic extended insurance, then and now provided for by relator’s policy, was more valuable to the insured than to have his premiums charged against the policy as a loan so long as the policy will permit such action to be taken.”

It appears, indeed, that relator protested to the authorities of the State of Wisconsin that such a provision, operating without the election of the insured, should not be made an obligatory provision in policies.

The automatic premium loan provision is not, in fact, automatic. Its effect is to open an account by the insured with the company, if he so desires, in which there will be charged against him, and his policy, the amounts necessary to pay the premiums and, eventually, interest upon such amounts. It is an account which can be closed and balanced at any time by payment of the sums so charged. The relation of the insured to the insurer remains otherwise unchanged. All of the nonforfeiture provisions of the policy are still available, including the one which finally postpones forfeiture, until one month’s notice shall have been mailed to the last known address of the insured borrower and his assignee. This is a necessary conclusion and one with which we understand the counsel for the relator agrees. Payment of arrears does not result, in fact, in restoring or reinstating the insured to a lost or forfeited position. No new or further physical examination is required. In a sense, the insured borrows from the insurer sums equal to accruing annual premiums, securing payment with the policy.

As has been stated, if the insured determined to pay no more premiums and proposed to continue to be a policy holder as long as possible, he would be foolish if to that end he adopted the automatic premium loan method. But suppose that, intending to keep his policy in force, he finds himself unable to meet a particular premium or premiums, and does not desire to make a loan of the company under the stipulated loan provision in his policy; or, suppose his absence from home or his sickness. By exercising the option which is given him, he is protected, at the cost of the exacted interest, if his embarrassment is temporary, or his absence or sickness of short duration. There is, and there is not, in the supposed cases, a default in premium payments. There is default in that the insured does not by payment of his premium in the ordinary way continue the simple relation of policy holder. There is no default in the sense that his contract of indemnity is immediately put at hazard and he required to avail himself, within one month, of one or other of the nonforfeiture provisions of the policy.

The statute does not provide for a standard form of policy. In this it is unlike Act No. 277, Pub. Acts 1905, Act No. 307, Pub. Acts 1907, which relate to fire insurance policies. The standard provisions and conditions of life-insurance policies, set out in the statute, are not strictly exclusive and inclusive of all permitted provisions and conditions. Some of the provisions in relator’s policies are more liberal than the statute provisions. Section 5 of the act permits provisions required by the laws of other States, “anything in this act to the contrary notwithstanding.” On the other hand, the requirement that certain provisions shall be and certain others shall not be incorporated in the policy requires us to say that no provisions should be inserted which have the effect of avoiding or nullifying the required provisions. We may, and perhaps should, go further and say that no provision may rightfully be used which shall, with or without action of the policy holder, materially change or avoid the statute scheme of the contract.

What the statute, and the contract in conformity therewith, secures to the policy holders who do not pay premiums on the due day has been set out. We need not further notice the one who pays within the month of grace. Those who do not pay must, actively or passively, submit to a changed relation. The one who surrenders his policy indicates that he cannot, or will not, make further payments. The one who does not surrender his policy may or may not have chosen to secure its value in extended insurance and may or may not have determined to pay no more premiums. But all submit to the statute, and the contract, consequences of default. Having complied with the statute mandates with respect to the consequences of default, relator has, it contends, proposed to the policy holder, in the provision we are considering, a way of avoiding a default, and not an extrastatutory consequence of default; a method which, at his election, the policy holder may employ to avoid the statute consequences. The reply made is, in effect, that the policy holder is really in default if he adopts the proposed method of paying his premiumsthat what is really offered to him is a stipulated form of insurance, following a default, of less value than the statute minimum. It is said that—

“It is the contention of the respondent that the automatic loan provision contained in relator’s policy is one of the pitfalls contrived to trap the unwary and innocent policy holder and deprive him of values which the standard provisions law contemplates he shall receive in certain contingencies. At first blush it would appear that a provision in a policy by which the insurance company, in event of the failure of the insured to pay his annual premium, will pay his premiums out of the reserve on his policy as long as it is sufficient and deduct the premium so paid with compound interest at six per cent, from the final settlement on the policy, would at least be fair to the insured, if not the granting of a valuable privilege. It is-only upon an analysis of the scheme and a comparison with the values and options which the statute requires the insurer to give that the hardship and injury to the insured appears. * * *

‘ ‘ Such a clause makes it possible for the insured to urge the making of the request for the application of the automatic loan provision at the time of the issuance of the policy or even as a condition precedent to the issuance of a policy, and when once applied as shown by the comparisons made in respondent’s Exhibit 1 and in the letter of relator’s mathematician, always results in giving the insured a less net value than he would receive under any of the options contained in relator’s policy, which are admitted to he within the law. * * '*

“Relator’s automatic loan clause provides that the application for the loan may be made ‘ prior to or within said month ’ after ‘ default in premium payments.’ As shown in respondent’s answer it is the custom of insurance companies generally, and is charged to be the custom of relator’s company, to obtain the signature of the insured to the request for the premium loan at the time of taking the application for the policy, and under the terms of the clause as used by relator in its policy the application for the automatic premium loan may be made as a condition precedent to the issuance of a policy.”

We do not understand how the purchaser of a life-insurance policy may be forced to make application for the automatic premium loan as a condition precedent to the issuing of the policy. We may assume that, without explanation, few policy holders would discover the difference between the statute life of a defaulted policy and the life of one continued in force by the automatic premium loan plan if its value was finally exhausted. It may be assumed, also, that to some policy, holders the apparent advantages of the plan will seem to warrant a standing request to the company to pay the premium. That the statute is passed in the interest of policy holders and for their protection is not to be doubted. But it is also clear that beneficial results may follow the use of the contract option. There is nothing immoral in the relation proposed to be established by use of the option and nothing illegal unless the relation is forbidden by this statute. The consideration stated above, and others which are presented, have not convinced us that we should give the statute an effect beyond that imported by its terms. The ruling of the respondent is not an exercise of discretion. If it were, we should be very slow to interfere.

We are of opinion that by the terms of the act when a premium is paid by operation of the automatic premium loan provision, there is no default in premium payments within the meaning of subdivision 8 of section 1 of the statute. There is, on the contrary, an election by the policy holder not to make default, the result of which would be consequences or a consequence already stated. By the terms of the act, relator is not prohibited from offering and the policy holder is not prevented from exercising the option to which objection is made, the result of such exercise not being in fact and not being intended as a stipulated form of insurance other than the original policy.

The writ will issue.

Grant, C. J., and Moore, Carpenter, and McAlyay, JJ., concurred.


author: Montgomery, J.

text:
    PEOPLE v. CRUCIBLE STEEL CO. OF AMERICA.
    Costs — Liability or People — Penal Statutes.
    An action by the people against a foreign corporation to recover the penalty provided by Act No. 206, Pub. Acts 1901, as amended, for doing business in this State without filing its charter, is an action brought “upon a penal statute” within the meaning of section 11277, 3 Comp. Laws, exempting the people from liability for costs in such actions.
    Assumpsit by the People of the State of Michigan against the Crucible Steel Company of America for the amount of a statutory penalty: On motion to vacate the order awarding costs against the State.
    Submitted February 25, 1908.
    (Calendar No. 22, 412.)
    Granted March 17, 1908.

      John JEJ. Bird, Attorney General (Arthur P. Hicks, of counsel), for the motion.

      H. M. & D. B. Duffield, contra.
   Montgomery, J.

This case was determined on appeal from an order overruling the demurrer. The judgment was reversed and the demurrer sustained. The decision is reported in 150 Mich. 563. This motion is to modify the judgment by vacating the order entered awarding costs against the State.

The action was brought to recover a penalty provided by section 1, Act No. 206, Pub. Acts 1901, as amended by Act No. 3i, Pub. Acts 1903, which provided:

“ It shall be unlawful for any corporation organized under the laws of any State of the United States (except th'e State of Michigan), or of any foreign country to carry on its business in this State, unless it shall first have filed and recorded, in the office of the secretary of State, a certified copy of its charter, or articles of incorporation. * * * Every corporation subject to the provisions of this section which shall neglect or fail to comply with its requirements, shall be subject to a penalty of one thousand dollars for every month that it continues to transact any business in Michigan, without complying with the requirements of this section, to be recovered by action in the name of the people of the State of Michigan in any court of competent jurisdiction.” * * *

After this action was brought, and after the appeal from the circuit court, as appears from the opinion-in the main case, by Act No. 310, Pub. Acts 1907, the provision imposing this penalty was repealed, and it was for this reason that the judgment of the circuit court was reversed and the demurrer sustained.

Section 11277, 3 Comp. Laws, provides:

“ In all civil suits and proceedings by or in the name of the people of this State, instituted by any officer duly authorized for that purpose, and not brought on the relation, or for the use of any citizen, or upon any penal statute, the people shall be liable for costs in the same cases, and to the same extent, as if such suit or proceeding were instituted by an individual.”

If this action was an action upon a penal statute, the people are not liable for costs in the case. It would seem very clear that this statute is a penal statute in the broadest sense. We understand a penal statute to be a statute imposing a penalty for doing that which the statute prohibits or for omitting to do that which the statute requires, or, as is stated in 22 American and English Encyclopedia of Law (2d Ed.), p. 654:

‘ ‘ A penal statute is one which enforces a forfeiture or penalty for transgressing its provisions or doing a thing prohibited.”

The term “ penal statute ” is oftentimes given a broader meaning, and is used in defining a statute which affords a remedy to a private party in the nature of a penalty, but the present statute is within the narrower definition.

This question was before the court in People v. Auditor General, 38 Mich. 94. The question in that case was whether, under the statute above referred to, the State was liable in a suit brought by a supervisor to recover a penalty for obstructing the highway. It was held that no such liability arose as the action involved local matters, and also because the statute of costs excludes State liability for costs on penal statutes.

In the case of Courtwright v. Attorney General, 43 Mich. 411, this case was referred to and the exemption of the State from costs was held to apply to an action by the people on a recognizance of bail. It was said:

“The only purpose of such a recognizance is in subservience to the criminal law. It represents no contract or other civil origin, and is not designed to secure rights of property. It in effect compels the sureties to submit to a vicarious money penalty as a consequence of their enabling the party charged with crime to escape the imprisonment he would otherwise be subjected to in order to have him ready to answer on a trial. The amount fixed in the obligation is not a security to be satisfied on a showing and recovery of actual damages but the whole penalty is incurred and collectible upon a forfeiture, without reference to the merits. In our statutes the proceedings are included in a chapter entitled “The Collection of Penalties and Forfeitures;” and the moneys collected are not devoted to the general purposes of the State, but are placed with the proceeds of fines in the county treasury, for the benefit of township libraries. The State reserves no interest in them. The sum recovered is really as well as nominally a penal forfeiture, and subject to remission on the same footing with fines.”

It is obvious from this case that the present case is clearly within the exception of section 11277. It is in every proper sense an action upon a penal statute. The recovery is on behalf of the people of the State of a penalty for an infraction of a statute imposing a duty upon the defendant, and within every definition which has been available to us, it is an action on a penal statute.

Defendant’s counsel cite the case of Flint, etc., R. Co. v. Board of State Auditors, 102 Mich. 500, and quote the language used at page 503, as follows:

“These provisions are very broad, and, we think, clearly evidence an intention to subject the State to precisely the same liability for costs, and for the incidents of a judgment, as an individual is subject to, with the single exception relating to the method of collecting the demand.”

This language is to be construed sCs having been used with reference to the question before the court. The action was an action in chancery against the defendant for the recovery of lands. It was in no sense an action for a penalty, and very clearly did not come within the exception so clearly stated in the section above quoted.

Counsel also cite the case of Fennell v. Common Council of Bay City, 36 Mich. 186. The question presented in that case was whether the fines imposed by courts of a city for the violations of city by-laws and collected by the city authorities, were fines assessed and collected in the several counties and townships for any breach of the penal laws within the meaning of article 13, section 12, of the Constitution, providing that such fines shall be paid into the library fund. It was said in the case:

“We have heretofore on more than one occasion inti-' mated that the penal laws referred to in the State Constitution were the laws of the State. The term law, as defined by the elementary writers, emanates from the sovereignty and not from its creatures. The legislative power of the State is vested in the State legislature, and their enactments are the only instruments that can in any proper sense be called laws. In the decisions of this court referring to the class of provisions now before us, the distinction has been very expressly indicated.”

This would appear to be the point upon which the case turned. There may be language found in the opinion which would give some support to the contention of defendant’s counsel, but it is very clear from the fact that the decisions in 38 Mich, and 43 Mich, were concurred in by Justice Campbell, who wrote the case of Fennell v. Common Council of Bay City, that the interpretation contended for by the defendant is not open.

The statute clearly exempts the State from liability for costs in a case brought to recover on a penal statute; the statute in question is a penal statute, and it follows that the order for costs should be set aside. No costs will be awarded on this motion.

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


author: Carpenter, J.

text:
    SMITH v. AUDITOR GENERAL.
    Mandamus — Propriety op Remedy — Determination—Pendency op Other Action.
    Mandamus to compel the auditor general to vacate a certificate of error canceling a tax deed will not be granted pending relator’s appeal from a decree in chancery dismissing a bill praying for the same relief, since the writ could not be granted without determining that the chancery court lacked jurisdiction to grant relief, which question can be determined in the chancery case.
    Mandamus by Charles F. Smith to compel James B. Bradley, auditor general, to vacate a certificate of error.

      Submitted February 28, 1908.
    (Calendar No. 22, 676.)
    Writ denied March 17, 1908.

      Jerome E. Turner, for relator.

      Albert Gf. Day and M. Brown, for respondent.
   Carpenter, J.

February 7, 1907, respondent issued a certificate of error canceling a tax deed whereby he conveyed to relator certain land situated in Muskegon county. Said certificate of error was issued upon the ground that the land was indefinitely and imperfectly described in said tax deed. Relator contends that said land was properly described and asserts that respondent had no authority.to issue the certificate of error canceling the same. Upon this ground he commenced a suit in the circuit court for the county of Muskegon, in chancery, to obtain a decree compelling respondent “to cancel or recall said certificate of error.” Respondent answered this bill. A hearing was had upon pleadings and proof, and a decree rendered in the circuit court dismissing said bill of complaint. From this decree relator appealed to this court and said appeal is now pending therein. After the rendition of said decree in the circuit court, and after giving notice of appeal to this court, relator commenced this proceeding praying for the issuance of a writ of mandamus commanding respondent “to vacate said certificate of error.” And the ground upon which relief is claimed in this case is the same ground upon which relief is asked in the chancery suit. It is quite obvious that if relief can be granted relator in the chancery suit, he is not entitled to the mandamus applied for. It may be said then that we cannot give relator the relief prayed for in this proceeding without determining that the chancery court has no jurisdiction to grant him relief. The question is thus raised: Can we appropriately determine in this proceeding the question relating to the jurisdiction of chancery to grant relator relief? Manifestly not. Relator, by his conduct in continuing to press the chancery suit, insists upon the jurisdiction of that court. We would be obviously disregarding his right, as well as the right of respondent, to have that question determined in that case if we undertake its determination now.

Moreover, there is in relator’s brief no argument whatever in support of the proposition — a proposition essential to his right to obtain relief — that the chancery court lacks jurisdiction. Under these circumstances we think that relator has no right to ask us to determine in this proceeding the question relating to the jurisdiction of the chancery court. That is a question which can be determined in the suit in chancery commenced by him. If we determine it there we are more likely to determine it correctly, for we will then have the aid of arguments not now presented, and certainly this course of conduct is not unjust toward relator, for as herein indicated he cannot complain that that question shall be determined by the court whose jurisdiction he invokes. The writ of mandamus is therefore denied. This denial, however, is without prejudice to a second application should it be determined that the chancery court lacks jurisdiction to afford relief.

Grant, C. J., and Blair, Montgomery, and McAl-VAY, JJ., concurred.


author: Hooker, J.

text:
    BOARD OF EDUCATION OF CITY OF DETROIT v. MOROSS.

    Eminent Domain — Condemnation of School Site — Detroit Board of Education.
    If the provisions of the primary school law authorizing the condemnation of school sites are extended to the city of Detroit by section 4774, 3 Comp. Laws, there is nothing in the statutes relieving the Detroit board of education from obtaining the concurrent vote of two-thirds of the qualified voters of the district in the designation and purchase of a site, as provided by section 4665, and proceedings by the board without such vote are unauthorized.
    Certiorari to "Wayne; Rohnert, J.
    Submitted October 22, 1907.
    (Docket No. 112.)
    Decided December 10, 1907.
    Rehearing denied March 31, 1908.
    Petition by the board of education of the city of Detroit against Julia V. Moross and others to condemn certain real estate for a school site. From an order overruling demurrers to the petition, respondents bring certiorari.
    Reversed, and proceedings quashed.

      Clark, Jones & Bryant, Augustus C. Stellwagen, and Elmer L. Allor, for appellants.

      P. J. M. Hally (T. E. Tarsney, of counsel), for appellee.

       The opinion filed on the original hearing in this case was withheld from publication pending the rehearing.

   Hooker, J.

Property in Detroit belonging to the respondents was condemned for a school site through proceedings in the .circuit court, which proceedings were removed by them to this court by certiorari. It is claimed that the circuit court had no jurisdiction, for the following reasons:

1. The act under which the board of education filed its petition has no force in Detroit.

2. The recorder’s court has exclusive jurisdiction in all cases to which said board is a party.

3. If said court would otherwise have jurisdiction, the provisions of the act have not been complied with, and the court did not, therefore, obtain jurisdiction.

Our understanding is that the only authority for an attempt to purchase or condemn this land for a school site consisted of resolutions of the board of education, which counsel for the respondents assert to.be insufficient. The petitioner bases its claim of authority upon the primary school law (2 Comp. Laws, § 4774) which provides:

“All provisions of this act shall apply and be in force in every school district, township, city and village in this State, except such as may be inconsistent with the direct provisions of some special enactment of the legislature.”

If it be assumed (and we do not express an opinion on the point) that the primary act has application to the Detroit schools, the authority- to designate, purchase, and condemn sites is to be found in section 4665, subds. 4-6, 4729 and 4730 as amended by Act No. 182, Pub. Acts 1903.

Section 4665, subd. 4, gives the qualified voters, when lawfully assembled, authority “to designate as hereinafter provided a site,” etc. Subdivision 5 gives such voters, so assembled, authority to direct the purchase of sites, lawfully determined upon, and subd. 6, authority to vote a tax therefor.

Under the title “ Sites for Schoolhouses,” sections 4729 and 4730, as amended (and the change made has no bearing upon the question before us), prescribe the method referred to in section-4665, subd. 4, of “designating sites.” They provide:

“ Sec. 2. Whenever a site for a schoolhouse shall be designated, determined, established or enlarged, in any manner provided by law, in any school district, and such district shall be unable to agree with the owner or owners of such site upon the compensation to be paid therefor, or for the land to enlarge the same, or in case such district shall, by reason of any imperfection in the title to said site, or land to be added thereto, arising either from break in the chain of title, tax sale, mortgages, levies, or any other cause, be unable to procure a perfect, unincumbered title in fee simple to said site, or land for the enlargement thereof, the district board of such district shall authorize one or more of its members to apply to the circuit judge, if there be one in the county, or to a circuit court commissioner of the county, or to any justice of the peace of the city or township in which such school district shall be situated, for a jury to ascertain and determine the just compensation to be made for the real estate required by such school district for such site, or for the enlargement thereof,' and the necessity for using the same, which application shall be in writing, and shall describe the real estate required by such district as accurately as is required in a conveyance of real estate: Provided, That whenever any school district shall have designated, selected or established in any manner provided by law, a schoolhouse site, or land for the enlargement thereof, such selection, designation or establishment shall be prima facie evidence to said jury of the necessity to use the site so established.

“Sec. 3. It shall be the duty of such circuit judge, circuit court commissioner, or justice of the peace, upon such application being made to him, to issue a summons or venire, directed to the sheriff or any constable of the county, commanding him to summon eighteen freeholders residing in the vicinity of such site, who are in nowise of kin to the owner of such real estate, and not interested therein, to appear before such judge, commissioner, or justice, at the time and place therein named, not less than twenty nor more than fifty days from the time of issuing such summons or venire, as a jury to ascertain and determine the just compensation to be made for the real estate required by such school district for such site, or for the enlargement thereof, and the necessity for using the same, and to notify the owner or occupant of such real estate, if he can be found in the county, at the time when and the place where such jury is summoned to appear, and the object for which such jury is summoned; which notice shall be served at least ten days before the time specified in such summons or venire for the jury to appear as hereinbefore mentioned.”

These sections contain no authority for a purchase or condemnation by the board, without prior action by the voters of the district.

Referring to the last section quoted, counsel for the board say:

“It was and is the contention of petitioner that the language of the above section, ‘ in any manner provided by law,’ was inserted in this piece of legislation by the legislature, knowing that in all school districts of the State of Michigan it was not the practice to have a meeting of the qualified voters of a school district in order that their votes might be recorded for the designation or enlargement of a school site, and that the insertion of those words was an additional expression by the legislature that this act could be taken advantage of and utilized by any of the school districts in the State of Michigan.”

We discover nothing in this record to indicate what the practice of the school officers of Detroit has been, or anything in the brief to support the proposition that such practice, whatever it may have been, can be considered in determining whether the action taken in this case was a designation of a site “in any manner provided by law.” For that we must look at the statute. To require action by the concurrent vote of two-thirds of the qualified voters of a district in the designation and purchase of a school site has been the policy of this State since 1846, and action of a school board without such has never been sustained. See Andress v. Board of Inspectors, 19 Mich. 332; Heck v. School District, 49 Mich. 551.

The proceedings are reversed and quashed, with costs to respondents.

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


author: Ostrander, J. Carpenter, J.

text:
    GRAHAM v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Master and Servant — Railroads — Personal Injuries — Warnings and Instructions — Evidence—Sufficiency.
    In an action against a railroad company for the death of a servant caused by the precipitation of a work train into an excavation caused by a washout, evidence examined, and held, to be undisputed that the train dispatcher made proper effort to acquaint the train men with the known conditions of unsafety of the track by sending a message addressed to them, and that a finding to the contrary was unsupported.
    2. Same — Warning—Sufficiency—Fellow-Servants.
    Where a work train was sent out to repair damage to railway tracks caused by a storm, and the train dispatcher made proper effort to acquaint the train men with the known conditions of unsafety by sending them a telegram containing such information, the railroad company performed its whole' duty in the premises, though the telegram was not delivered by the station agent, who received it, to the train men.
    Error to Clinton; Searl, J.
    Submitted April 11, 1907.
    (Docket No. 63.)
    Decided March 31, 1908.
    Case by Rose E. Graham, administratrix of the estate of Justin E. Graham, deceased, against the'Detroit, Grand Haven & Milwaukee Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      H. Geer, for appellant.

      Lyon & Moinet, for appellee.
    So much damage was done to defendant’s roadbed, at points west of Owosso, by a severe rain storm, that on June 6, 1905, all trains over the division were annulled. Information of the condition of the road was reported by wire to Durand, the headquarters of the division, to the train master, H. W. Matthews, and included a report, made by section men, that at Lost Creek or mile post 111, about two miles east of Pewamo, where there was a culvert with a stone arch, 35 feet of the roadbed was washed out. On- the morning of June 6th, a train, loaded with tools, materials, and a force of men, with a boarding car and a pile driver, some 25 cars in all, was dispatched from Du-rand, leaving that place during the forenoon of June 6th. The conductor of the train was S. J. Wallace, the engineer William Everett.' George J. Bishop, master of bridges and buildings for the defendant’s system, was also on the train, and was the superior officer or agent of defendant, in charge of the repairs to be made. Plaintiff’s intestate, Justin E. Graham, had been for some time foreman of one of defendant’s bridge and building crews. He and his men, with others, picked up at various stations, to the number, finally, of about 50, made up the crew. This train left Durand with the following order:
    “Order No. 109. Engine 1104 will run extra Durand to Pewamo.”
    The stations on defendant’s road from Durand westward, so far as it is necessary to name them, are Yernon, Corunna, Owosso, Ovid, St. Johns, Fowler, Pewamo, in the order here given. A stop was made between Durand and Yernon to examine a culvert. At Corunna, the train was stopped, the order board being against it. It is the claim of defendant that a certain telegram had been sent, was awaiting delivery, and was delivered at Corunna. The jury in answer to special questions found that this message was not delivered to the conductor or engineer, nor, in fact, sent from Durand to Corunna. An alleged copy of the message was produced, received in evidence, and reads:
    “From Durand, June 6th, 1905.
    “To cond’r & Eng’r Extra West 1104. At Corunna.
    “Run slow over bad track two miles east of Owosso.
    “ Track Owosso Jet. to Burton O. K.
    “ Ovid to St. Johns no reports.

      “ St. Johns three miles west slow.
    “Fowler section O. K.
    “Stone arch bridge, mile post 111, east of Pewamo gone, 35 foot embankment.
    ‘ ‘ f miles west of Pewamo washout 15 feet long and 108 feet deep.
    “ Culvert 2 miles west of Pewamo washout 30 feet long and 20 feet deep.
    “ Culvert 1 mile west of Muir washed out.
    “Prairie Creek bridge If miles east of Ionia east end washed out 30 feet long and 10 feet deep.
    ‘ ‘ 1£ miles east of Saranac 40 foot washout.
    “ 1 mile east of Saranac 40 foot washout.
    “•£• mile east of Saranac water running over track.
    “Approach to bridge west end of Saranac yard unsafe.
    “Bridge over Kopf Creek, east end of Lowell yard, gone and 20 foot washout.
    “M. P. 148 west of Lowell 225 foot washout three to five feet deep.
    “ M. P. 146 east of Ada washout 100 feet long, six feet deep.
    “H. W. M.”
    The initials H. W. M. mean H. W. Matthews. . At St. Johns the following order was received:
    “ Order No. 125. To C. & E. engine 1104. Order No. 109 is annulled. Engine 1104 will work 11:15 a. m. until 7 p. m. between St. Johns and Pewamo. Issued 11:13; O. K. 11:14.”
    That no regular trains were being run over the road, the conductor and engineer of this train knew, through various orders canceling scheduled trains, and all of the men by the very fact that such trains were not running. At St. Johns, by direction of Mr. Bishop, the pile driver which had been in the train was put ahead of the locomotive, and conductor Wallace took a position on the running board on the front of the pile driver, stationing a brakeman on the roof of the cab of the pile driver both for a lookout and for the purpose of insuring the attention of the engineer to any signals which should be given by Wallace. As a reason for taking this position, the conductor, who was a witness, said:

      “ I placed myself there so that I could find a flag or anything on the track that didn’t look right — I could give' the signal to stop.”
    A short distance west of St. Johns a culvert was repaired. Two miles farther west the train was flagged by a section man and another washout repaired. This was completed between 4 and 4:30 o’clock. Just east of Fowler a culvert was examined. The run through Fowler was made, without stopping, at 4:36 p. m. From this station to mile post 110, there is an up grade, from thence west a heavy down grade, extending to or near mile post 111. The washout at post 111 was not discovered by Wallace until the train was near it. The rails and ties, though sagging, were in place, the train was not stopped until the pile driver and perhaps the locomotive or a part of it were upon the defective portion, and the result was that, although the signal of Wallace to stop was obeyed, the pile driver, its tender, the locomotive and tender, and three or four cars of material were precipitated into the excavation. Mr. Graham, with a number of the men, was riding on the pile driver and was killed, as was also the engineer, Everett. No signals had been placed to indicate danger. George J. Bishop, the master of bridges and building, was not a witness at the trial, and the record discloses no reason for his absence. The testimony of the station agent is that, when he went with the‘message to the locomotive, Bishop was standing in the gangway; that he handed the message to him, telling him what it was, and that he saw Bishop give it to the engineer. The conductor of the train testified that he had not seen the message and had no knowledge of particular defects in the road. It is alleged in the declaration that the engineer and conductor of the train were ignorant of the existence of the washout at mile post 111; that defendant did know about it; that it was the duty of defendant to notify the conductor and engineer of the danger, and that in undertaking to transport plaintiff’s intestate over its road, without imparting this knowledge to them, or causing signals of danger to he displayed, in. stead of doing which it gave them the orders hereinabove referred to, there was a breach of duty, to which the catastrophe may be directly referred. In the second count of the declaration, the duty to notify the conductor, engineer, and plaintiff’s intestate of the condition of the track is averred, and it is charged that plaintiff’s intestate was, in consequence of the breach of this duty, subjected and exposed to an unusual and extraordinary risk, of which he had no notice or knowledge.
    Among other things, the trial court said to the jury:
    “ But if you find that this message was not received by the engineer, and that neither he nor the conductor in charge of said train had any knowledge of the existence of this washout until they saw it, when it was too late to avoid the accident, then in that case the plaintiff would be entitled to recover, providing you find that Graham did not assume the risk and did not have notice of the washout, and this would be so even though you find that the message was actually sent by the dispatcher to Corunna, and even if you find that it was actually delivered to Bishop.
    ‘ ‘ The agent at Corunna who received this message, if you find one was received by him, was not a fellow-servant of Graham, because it was an absolute duty resting upon defendant to give notice of this washout, which it could not delegate to one of its agents so as to make him a fellow-servant in performing that duty, providing you find that the washout was an unusual or extraordinary condition.”
    There was a verdict and judgment for the plaintiff, the result, it is claimed, of various errors of the trial court. Two motions for á new trial were made and were denied. Counsel for defendant say the contentions presented by the assignments of error are:
    “1. The undisputed evidence shows that Exhibit 2 [the telegram hereinbefore set out] was sent to Corunna and that the same was delivered to engineer Everett.
    “ 2. The defendant company was not guilty of any negligence which caused or contributed to cause Mr. Graham’s death, and the trial judge should have directed a verdict, as requested, of no cause of action.

      “3. If the station agent at Corunna, Mr. Humphrey, was negligent in not delivering this message to both the conductor and engineer of extra west 1104, yet, this being the negligence of a fellow-servant, the plaintiff is not entitled to recover.
    “4. Plaintiff’s decedent, knowing the unsafe and defective condition of defendant’s track on the morning of June 6th, assumed the risk of this accident. In other words, the duty of the defendant to furnish a reasonably safe roadbed for its employés has no application to the case at bar.
    “5. Having received the order at St. Johns to work from 11:15 a. m. until 7:00 p. m. between St. Johns and Pewamo, the defendant had performed its full duty as to informing the persons on this train of the unsafe condition of its tracks.
    “ 6. The negligence of the section foreman at Pewamo, Michael Eustace, in failing to place signals a sufficient distance east of the washout at 111 mile post, as required by the company’s rules, in order to give warning to the conductor and engineer of this train, was in this case the negligence of a fellow-servant, and plaintiff is not entitled to recover.”
   Ostrander, J.

(after stating the facts). Counsel for plaintiff say in the brief:

“The subsidiary proposition, whether the station agent at Corunna was a fellow-servant with Graham, is not of the slightest importance on this record, and will not be discussed by us. The reason for so saying is that if the plaintiff made a case to go to the jury on the question whether the message * * * was in fact sent and addressed to the conductor and engineer, then the finding of the jury in that respect is conclusive, because no question can arise of Humphrey’s negligence in failing to properly deliver something which he did not receive. Upon the other hand if (1) plaintiff did not make a case to go to the jury on whether the message was in fact sent, or if (2) the finding of the jury that the message was not sent was against the weight of the evidence, then this court will, and ought to, reverse the judgment without reference to the question whether Humphrey and Graham were fellow-servants or not. In either event, whether the message was sent, or was not sent, the question whether the Corunna station agent and Graham were fellow-servants has absolutely no significance on this record.”

But counsel do insist that the duty resting upon defendant to notify either plaintiff’s intestate or the train men of the known condition of the road was a positive and absolute duty. The testimony upon the subject of delivery of the message to the train men is conflicting. That a message containing the information indicated was sent to Corunna, and that the train was stopped at Corunna, by signal, and was cleared, or released without receiving orders, is undisputed. "Whether the message, to deliver which was the reason for stopping the train, was addressed to the engineer and conductor of the train, is the precise question debated by counsel. Plaintiff claims that whatever message was sent was addressed to Bishop and delivered to Bishop and remained in his hands. Defendant claims that it was addressed as the copy produced indicates, and that though it was handed to Bishop it was by Bishop given to the engineer and read by him, and that the conductor was told by the station agent that the engineer had a message concerning washouts. As all of the direct testimony introduced upon the subject of the sending of the message properly addressed and the receiving of it at Corunna supports a conclusion favorable to the defendant, a finding that the message was not sent must rest entirely upon inference. With the aid of counsel, we have examined the record, which is certified as containing the substance of all the testimony, for the purpose of discovering, if we can, in support of the finding of the jury, testimony from which the inference may be drawn. We do not find it in the fact, if it is a fact, that the message was not delivered by the station agent to the engineer and conductor, in the fact that the original of the message has been lost or destroyed, in the fact that the station agent, Humphrey, is disputed upon material points, in the fact that the fireman is disputed, or even discredited, as a witness, in the fact that other of defendant’s witnesses are disputed, in the fact that the message contained information of the condition of the road beyond the point expected to be reached by the train during the work of the day and to which a working train order had been given. In view of the positive and undisputed testimony of the making up, addressing, and sending of the message, we cannot find it in the fact that Bishop was not produced as a witness at the trial. The testimony relied upon in support of the finding is not inconsistent with the testimony regarding its form and its transmission. The principal argument advanced for plaintiff in support of her contention is that the jury were warranted in disregarding the testimony introduced by defendant tending to prove that the message was delivered. The argument is unsound. Whether the message was sent and whether it was delivered are separate and distinct questions. Circumstances which justified the finding that the message was not delivered to the train men did not justify a finding that it was not sent by the train dispatcher. We have, therefore, after a careful examination of the record, reached the conclusion that the finding of the jury that the message in question was not sent is unsupported by evidence. This requires us to reverse the judgment and to order a new trial, for the reason that the jury should have, been instructed that if they found that the train dispatcher at Durand made proper effort to acquaint the train men with known conditions of unsafety, defendant had performed its duty in the premises. There is considerable testimony tending to prove that less care is generally observed to insure the delivery of messages than is used to insure delivery of train orders. Evidence of delivery of train orders is secured at the central or directing office before trains are cleared. Such orders are, in effect, receipted for by the train men or by the conductor of the train. Defendant was bound to use a degree of care commensurate with the importance of the communication and the purpose for sending it, not only in transmitting the message but in securing its delivery to the proper persons. But we are not prepared to hold that in performing that duty it had not the right to rely, reasonably, upon its servants, agents, and means of communication, or to use other means of communication if its own were defective. We are referred to no case, and have found none, precisely in point. The case of Mercantile Trust Co. v. Railway Co., 115 Fed. 475, 53 C. C. A. 207, is in some respects similar. But in that case the train dispatcher who possessed the information did not act, the train men who were entitled to notice were in the regular service of moving one of the defendant’s trains, the danger was caused by an extraordinary storm. The facts brought the case, in the opinion of the court, within that class of cases where the duty of informing the servant of special or extraordinary risks connected with his service is held to be a primary duty of the master. In the case at bar, the service was the repair of the road injured or destroyed by a storm which had not yet spent its force. The nature of the service was known to every one on the train. These facts serve to distinguish the cases. The duty of the master to minimize'danger by giving notice of the places where defects existed has been stated. If in performing this duty, by the use of means adequate to impart the knowledge to the proper persons, in proper season, the purpose was defeated by negligence of the station agent, which due care on the part of the master would not have prevented or discovered, defendant is not responsible for the consequences. We intimated this principle in Moon v. Railroad Co., 143 Mich. 125, 135. It requires a high degree of care but does not extend so far as to impose a positive and wholly non-delegable duty upon the master.

The judgment is reversed, and a new trial granted.

Blair and McAlvay, JJ., concurred.

Carpenter, J.

I agree with Justice Ostrander that if “the train dispatcher at Durand made proper effort to acquaint the train men with the known conditions of unsafety, defendant had performed its duty in the premises.” I agree with him that the undisputed testimony proves that said train dispatcher did undertake to acquaint the train men with such known conditions of unsafety by telegraphing the conductor and engineer of said train at Corunna. I think by sending this telegram the train dispatcher adopted the obviously proper method of acquainting the train men with those conditions. It was a method, too, which would have been entirely sufficient had not the station agent at Corunna failed to perform his duty. The train dispatcher had a right to assume, and to act upon that assumption, that there would be no failure to perform that duty. Under these circumstances I can perceive no sound reason for saying that something else should have been done, or that what was done should have been done in any different manner. I am of the opinion, therefore, — and here is where I go further than does my Brother Ostrander, — that we should say, under the circumstances disclosed by the record, that in sending the telegram to Corunna, the train dispatcher performed his entire duty — and the entire duty of defendant toward plaintiff’s intestate. It follows that in my judgment defendant was entitled to a directed verdict. I agree with Justice Ostrander that the judgment should be reversed and a new trial granted.

Grant, C. J., concurred.


author: McAlvay, J.

text:
    TAYLOR v. CITY OF JACKSON.
    1. Highways and Streets —Defective Highways — Personal Injuries — Contributory Negligence — Insufficient Signals.
    Plaintiff, driving in the night-time upon a street upon a part of which he knew a sewer was in process of construction, was not guilty of contributory negligence, as a matter of law, in relying upon the red lights along the excavation as locating the place of danger, and driving upon a pile of earth 50 feet from the nearest light, but the question was one for the jury.
    2. Saving Questions for Review — Evidence — General Objection — Sufficiency.
    An objection that plaintiff in a personal injury case should not have been permitted to testify to expressions and feelings of pain experienced while undergoing an examination at the hands of defendant’s physicians will not be considered by this court where the only objection made below was that the testimony was incompetent and immaterial.
    3. Evidence — Documents—Official Reports — Admissibility.
    In an action against a city for personal injuries caused by the absence of a signal light from an obstruction in a street, a record kept by the police department as to lights not burning is not admissible for the purpose of showing that the light was not reported as not burning on the night in question, it appearing that the record was made up of reports recteived by telephone and otherwise from citizens, officers, and others, which were in no sense official.
    Error to Jackson; Parkinson, J.
    Submitted April 16, 1907.
    (Docket No. 92.)
    Decided March 31, 1908.
    Case by Alfred Taylor against the city of Jackson for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      John F. Henigan, for appellant.

      Richard Price, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendant for personal injuries caused by the claimed negligent conduct of defendant’s servants in excavating a sewer, and so leaving the earth from such excavation piled in,the public highway without proper lights and barriers that plaintiff drove upon the pile of earth and was thrown from his buggy and injured. The facts disclosed by the record are that on Tuesday evening, August 9, 1904, plaintiff, whose business is that of a barber, with his son, was going from his shop to his home, riding along the streets of the city of Jackson, in a single, open buggy drawn by one horse. At that time the city was putting in a sewer on Harris street to connect with a sewer already built in Trail street. Harris street is. a short street extending from Hamlin street north two blocks to Ganson street. Traif street is about midway between the two streets last named. Trail street runs east and west going no farther east than Harris street. The sewer in course of construction extended from the manhole at the intersection of Trail and Harris streets north in Harris street to Ganson street. It was dug a little to the west of the center of the street and the earth was all thrown to the east of the ditch. On the evening in question, plaintiff, driving east on Hamlin street, came into Harris street and turned north, keeping on the east side of the street. He saw a line of red lights as they turned into this street. He drove along, the horse walking, and suddenly, the buggy, having run into a pile of earth, went over, throwing them out. The horse went down, breaking the buggy thills and straps. Plaintiff claims that he was seriously and permanently injured. The electric light at this point was not lighted, and plaintiff says that it was very dark.

Defendant, claiming that from the testimony of plaintiff the record showed that he was guilty of contributory negligence as a matter of law, at the close of the plaintiff’s case, requested, the court to instruct a verdict in its favor. This was denied, as was also a request to charge the jury to the same effect. These are the principal errors assigned by defendant. Other errors assigned upon the charge of the court and refusal to give certain requests, and upon the admission of evidence are also urged.

The record shows that plaintiff was acquainted with this location. He had driven along Harris street on Friday and Saturday preceding the Tuesday when the accident occurred. He saw the sewer work that was being done along Harris street north from the junction of Trail street and saw part of the dirt that was thrown out of the ditch. He knew the dirt was being thrown out on the east side at the place where the accident occurred.

He testified that he saw red lights when they turned into the street from Hamlin street. He knew that red lights meant danger. He said, “ there were enough lights so that a man wouldn’t run into that sewer when he got beyond the crossing.”

This crossing referred to was the north walk across Hamlin street where Trail street comes into it. The manhole, situated where the center line of both these streets intersected, was at the extreme south end of this sewer. It was 26 feet south of this cross-walk plaintiff refers to, and the place where he ran his wheel upon the pile of earth was about 15 feet south of this cross-walk.

Plaintiff testified that the earth pile extended south beyond the manhole, and that there were no lights at the end of the pile and none near it which he could see; that the lights near the south end at the crossing were obscured from his view by the earth pile, five or six feet high, and they could not be seen by him as he approached; that the nearest one he saw was 25 or 30 feet north of the crossing. This testimony tended to show that there were no lights he could see nearer than about 60 feet from the south end of the earth pile. It was contradicted by other testimony in the case, but the weight to be given to it was a matter for the consideration of the jury. The fact that it appears that plaintiff was acquainted with the location, and knew that' the work was being done, and his testimony that he knew the red lights were danger signals, is all urged as conclusive of his contributory negligence. He testified:

“Q. What did you think the red lights signified ?

“A. I knew there was danger up there. I didn’t know there was any danger at the south end of the sewer.

“Q. Well, if it was so that you could drive right along the side, you come right to the red light ?

“A. Yes, sir.

"Q. You didn’t think there was any need of taking precaution at all until you came right up to where the lights were ?

“A. Most assuredly not, why” should I ? I supposed the light was so that people were cautioned. If I had been cautioned by the red light I would not have been dumped.”

The inference that might properly be drawn from this testimony is that reliance was placed upon the red light as locating the place of danger. Plaintiff was approaching the vicinity of the nearest light he could see. We cannot say that as a matter of law he was guilty of contributory negligence in running his buggy wheel upon an earth pile 50 feet from that light. We are satisfied that this was a question for the jury, and the court was not in error in so holding.

Defendant claims that the court erred in permitting plaintiff to testify relative to what occurred at an examination by physicians for the city for the purpose of testifying in the case. The following is the testimony and objection:

"Mr. Henigan: I object to what the doctor said or claimed.

"Mr. Price: Well, why?

"The Court: The witness says that they were chosen by the city to. examine him. I think you may take the answer.

"Q. Go on and tell what they did there.

"A. Dr. Robinson pinched me on both arms, upon my shoulder here and this one, he says, ‘ Do you feel that, Mr. Taylor ?’ \Yes,’ I said, ‘ I feel it, first right and the left — ’

"Mr. Henigan: Enter an exception to that testimony as incompetent and immaterial.”

Witness, continuing, testified as to what occurred, stating that one of the doctors handled him roughly, and hurt him so that he flinched.

The claim is that the court erred in permitting plaintiff to testify as to expressions of pain and feelings of pain at an examination of this kind. The only objection made is given above. When asked by plaintiff’s attorney the reason for the objection, the city attorney gave none, but asked for an exception to the testimony as incompetent and immaterial. He made no objection for the reason now relied upon. The testimony claimed to come within this objection followed soon after, but no further objection was made when the question was asked which brought it out. The city attorney should have called the attention of the court to the specific ground for his objection. The rule is well established and is one which is fair to the trial court and opposing counsel. We indicate no opinion upon the question whether in this case the testimony comes within the rule invoked.

Error is assigned because the court refused to admit in evidence a record kept by the police department as to lights not burning, for the purpose of showing that this light was not reported on the night in question. An examination of the witness disclosed that anybody reported or telephoned to the office relative to city lights not burning. These records were made up of such reports and also from the statements of citizens and reports of police officers. They were not in any sense official reports and were properly excluded.

The other assignments of error discussed by defendant relate to refusals to give certain requests to charge. The court properly modified some of these requests and in his main charge correctly stated the law to the jury upon the questions covered by those which were refused. We do not consider it necessary or of sufficient importance to consider these assignments at length. No error was committed by the court in his treatment of these requests.

The judgment of the circuit court is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.