text:
    James C. Deyo v. George H. Hammond.

      Contract — Sale—Condition.
    Plaintiff sold and delivered to the defendant a mare, upon his agreement that if, upon a trial of speed to be made by an agreed driver within 90 days, the mare should trot to pole as fast as a mare owned by the defendant, he would pay an extra $100 for the mare. The defendant, through no fault of the plaintiff or the driver, failed to have the test of speed made. And it is held that, while the parties agreed to abide by the driver’s decision as to the speed of the mare purchased of the plaintiff, yet such test was not a vital part of the contract, but only the means provided by the parties for ascertaining the speed of the mare; that the only condition upon which the payment of the $100 depended was that she could trot as fast as thei one owned by the defendant; that this fact was made to appear by the undisputed evidence in the case; and that the defendant cannot avoid liability on the ground that, by reason of the sickness of one mare and the lameness of the other, he was prevented from making the agreed test within the 90 days, he being the only person who had it within his power to have said test made.

    Error to Wayne. (Erazer, J.)
    Argued June 28, 1894.
    Decided September 25, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in tbe opinion.

      Fred H. Warren, for appellant.

      John D. Gonely, for plaintiff.

       See notes to Boettler v. Tendick, 5 L. R. A. 270, and Church v. Shanklin, 17 Id. 207, for a discussion (of contract provisions of this nature.

   Long, J.

'On January 25, 1888, the plaintiff, who resides at Jackson, this State, sold his mare, the “ Shelby Maid,” to defendant. The contract was made in Jackson, and the bargain, as claimed by the plaintiff, was that, after Hammond had driven the mare, he offered to give plaintiff his check for $800, and a further sum of $100 if she could go as fast as his (defendant’s) mare; that Mr. Moran was to drive them, and make the test, when he had been notified by defendant that he was ready, which test was to be made within 90 days. The plaintiff further testified that Mr. Moran was to decide if plaintiff’s mare could go as fast to pole as defendant’s, and, if she could, then defendant was to pay plaintiff the extra $100.

The defendant testified that, after going to Jackson and driving the mare, he commenced figuring with Mr. Deyo about buying her. Concerning the terms of the bargain, defendant gave the following testimony:

“I offered Mr. Deyo $900 for the mare if she could go as fast as my bay mare. He says: ‘She can go as fast. I will guarantee her to go as fast as your mare.’ I said: ‘ Guaranties don’t go. She has got to do it herself.’ I says: ‘ I will give you $800, and take her down there, and if she will go as fast as the bay mare I will give you $900 for her, — an extra $100/ * * * He says, f All right/ and we made the trade then and there. The mare, if she filled the bill, was to be $900; there is no question about that; but otherwise she was to be $800. * * * I was to pay an additional $100 if the gray mare could trot as fast as the bay mare to pole. The test was to be made within 90 days, by Mr. Moran. Mr. Moran was mutually agreed upon to make the test. It would make no difference to me who drove if this mare could trot as fast as mine.”

This suit was brought to recover this $100 and interest, and upon the trial the jury returned a verdict in favor of the plaintiff.

It appears that plaintiff took the mare to Detroit and delivered her to defendant, but that Mr. Moran was never notified by either of the parties to make the test, and that the test was never made; the defendant claiming that it was impossible for -him to make the test within 90 days for the reason that one mare was sick and the other lame. The plaintiff testified on the trial that the defendant was to notify Mr. Moran when he was ready to make the test, and within the 90 days; while the defendant testified that, though it was mutually agreed that Mr. Moran should make the test, nothing was said about his (the defendant's) notifying Mr. Moran. Defendant's contention here is that he is not liable to pay the additional $100, as by the terms of the contract the plaintiff agreed that the mare purchased should, within 90 days, in a trial of speed to be made by Mr.' Moran, trot as fast to pole as defendant's bay mare; that it was impossible to make the said trial within the time fixed by the parties by their contract, by reason of circumstances over which defendant had no control, and for which he was not responsible; that a trial of speed by Mr. Moran, and a decision by him that plaintiff's mare was as fast to pole as defendant's, was a condition precedent to his liability to pay the $100, and, having never been fulfilled, defendant is discharged from liability.

We think the contract cannot be construed in this way. Defendant, after the purchase, took the mare into his possession, and thereafter kept her. The test was to be made in Detroit. While the parties agreed to abide by Mr. Moran’s decision as to the speed of the gray mare, yet the Moran test was not a vital part of the contract, but only the means provided by the parties for ascertaining the speed of the gray mare. Thé only condition upon which the payment of the $100 depended was that she could trot as fast as defendant’s, for he said: “'It would make no difference to me who drove if this mare could trot as fast as mine.” The plaintiff introduced testimony to show that his mare was 8 or 10 seconds faster than defendant’s, and this testimony was undisputed. Defendant was the only party who had it within his power to have, the test made, and yet he seeks to set up in this case as a defense his failure to have it made, and thus avoid the payment of the $100.

The case is very similar in principle to Potter v. Lee, 94 Mich. 140. There it appeared that the plaintiffs sold a number of cheeses by sample. There was testimony-showing a warranty as to the quality of the cheeses. The defendant, however, said to plaintiffs’ agent:

“ You are a stranger to me, and I have seen only 10 boxes of these cheese, and I don’t know what is in the car. If in the course of 10 days we find this cheese as you represent it, we will pay for them.”

Within the 10 days some of defendant’s customers rejected the cheeses, and refused to pay for them; but defendant continued to make sales for 26 days, and then notified the plaintiffs that the cheeses were not as represented, and refused to pay for them.' It was said by this Court:

“It is therefore evident, even if a warranty was made by Potter as to the quality of the cheese in the car, and not examined at the time by the defendant, that the defendant did not rely upon it, but preferred to make an examination for himself, and was to have the 10' days in which to do it. If he did not make such examination, it was his own fault.”

So in the present case. The plaintiff offered to guar-i antee the speed of his mare. The defendant rejected the offered guaranty, saying that he preferred to make a test of the speed. That he did not do so was no fault of the plaintiff. There is no dispute, about Mr. Moran's willingness to make the test. He testifies that the opportunity was never given him. We think, under the undisputed testimony in the case, the court would have been justified in directing a verdict' in favor of the plaintiff. In view of this, the other questions raised become immaterial.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, 0. J.

license: Public Domain

text:
    William H. Maybury, Administrator, etc., v. Mary Berkery.

      Money had and received — Proceeds of insurance policies — Set-off— Evidence — Promissory notes — Account stated — Presumption — Burden of proof— Estoppel.

    1. Where, in a suit by an administrator to recover moneys paid to the defendant upon policies of insurance held by defendant as security for loans made to the decedent (her son), the defendant seeks to set off a claim for the rent of a portion of a house which the decedent occupied in his lifetime, — the remainder being occupied by decedent’s father up to the time of his death, and afterwards by the defendant, — it is competent for the plaintiff, as tending to establish his claim that the occupancy of the house by the decedent was rent free, to show that the decedent had contributed largely to the construction of the house, and had, both before and after the death of his father, made expensive improvements and paid taxes upon the entire property, and that during the entire time of such occupancy the decedent paid no rent, nor was any claim for rent ever made upon him.
    2. The defendant exhibited a paper purporting to be a statement of the account between the decedent and 'herself, showing loans made by her to him at various times up to and including December 20, 1890, and also one of $2,000 made December 16, 1891, and aggregating, with interest charges, $15,515. It further appeared that on December 23, 1891, the decedent executed a note for $10,000 to the defendant, payable six months after date. Plaintiff testified that when he called upon the defendant in August, 1892, to inquire relative to the policies of insurance and the indebtedness of decedent to her, he asked defendant for a statement of said indebtedness, and she said she did not think she could giye it; that thereupon her son-in-law, who was present, stated that the defendant had á note for. $10,000 against the decedent, and that that should be sufficient to show the indebtedness. It further appeared that no moneys were advanced to the decedent by the defendant after December 20, 1890, until December 26, 1891, and that there was no new consideration for the $10,000 note, except the $2,000 loaned December 26, 1891, if that was a part of the consideration; and it was not pretended that the note was solicited for any purpose which the defendant had in view, except as evidence of the" indebtedness. And it is held that the note was prima facie evidence of an account stated between the parties; that the burden was upon the defendant to rebut the presumption; and that whether this presumption had been removed was, under the facts in this case, a question for the jury.
    3. There was testimony tending to show that the $2,000 received by the decedent December 26, 1891, was used to pay a demand which existed prior to December 23, 1891, the date of the note; that decedent had been, prior to December 26, 1891, making efforts to raise the money from other sources to meet said demand; and that the only claim made by the defendant after the death of the decedent and prior to the trial was the amount of the note. The plaintiff contended that the note embraced the $2,000 received after its date. There was no evidence as to the date of the delivery of the note. And it is held that the note is- presumed to have been executed and delivered on the day of its date, but that such presumption is-removable.
    4. One of the policies was payable to the defendant, and the court refused to allow the jury to charge her with the proceeds of this policy; but the jury found, in answer to a special question, that the policy was held by the defendant as security simply. And it is held that, it having been-agreed between the defendant and the decedent that the amount of said policy, when received, should be applied upon, and should pro tanto extinguish, decedent’s indebtedness to defendant, which agreement was valid, the defendant cannot be heard to say that the proceeds of said policy are not applicable to the payment of the debts of the decedent, nor can she offset ' the portion of said indebtedness thus extinguished against the moneys received on the other policies.
    Error to Wayne. (Hosmer, J.)
    Argued June 27, 1894.
    Decided September 25, 1894.

      Assumpsit. Both parties bring error.
    Judgment modified by increasing the amount of the same, and as modified affirmed.
    Th$ facts are stated in the opinion.

      Maybury S Luclcing (John D. Conely, of counsel), for plaintiff.

      J. T. Keena, for defendant.
   McGrath, 0. J.

James S. Berkery died July 39, 1893,. leaving a widow and children. This suit is against the-mother of the decedent, and is based upon the claim that during his lifetime James S. Berkery had from time to-time borrowed sums of money from his mother, and to-secure the payment thereof his mother held at the time-of his death three life insurance policies, one of $5,000 in the Michigan Mutual Life Insurance Company, one of $5,000 in the National Life Insurance Company, and one of $3,000 in the Catholic Mutual Benefit Association. The first two were payable to his mother in case she survived him, otherwise to his legal representatives. The Catholic Mutual Benefit Association policy was payable to his mother. It is claimed that after the death of plaintiff’s intestate the- mother collected the amounts of the three policies, and that the amounts so collected were largely in excess of the indebtedness at the time of the death of James S. Berkery.

The administrator testified that in August, 1892, he and one Breen, son-in-law of the defendant, as special administrators of the estate of the decedent, called upon defendant to inquire relative to the policies and the indebtedness; that she stated that she held three policies, aggre-. gating $12,000, as security for the payment of the indebtedness to her; that in response to the inquiry as to how much the indebtedness was she stated that she would be satisfied to take the $12,000 represented by the policies; that he then asked her for a statement of the indebtedness, hut she stated that she did not think she could give it; that Mr. Breen spoke up, and said, “She has a note of James for $10,000, and that should be sufficient to show the indebtedness;’’ that no itemized statement had ever been given to witness as to the indebtedness, but in a few days afterwards Mr. Breen called upon him, and exhibited a note dated December 23, 1891,. for $10,000, executed by decedent, and payable six months after date to defendant, with interest at 6 per cent. Plaintiff introduced the note, and then gave evidence of payment to defendant by check of $3,000 in February, 1892, and of $2,000 in June, 1892, and of the collection by defendant of. the amount of the insurance policies, and rested. Defendant then introduced in evidence another note of $5,000, dated April 29, 1889, set up a claim of rent for the house occupied by decedent from the date of his marriage, June 28, 1887, to the date of his-death, at the rate of $25 per month, and rested.

Plaintiff then gave evidence tending to show that the note for $5,000 had not been before that time mentioned; that John Berkery, a son of the defendant, had, after the death of plaintiff’s intestate, taken certain papers from a desk belonging to decedent, against the protest of the widow of decedent; that decedent lived in part of a double house, and defendant lived in the other part; that the land was owned by his father when the house was built, and before that time the father had given defendant a deed thereof, to take effect at the father’s death; that decedent had in fact contributed largely to the construction of the house upon the premises, and had, both ■ before and after his father’s death, made expensive 'improvements and paid taxes and insurance upon the whole property; that from and after his marriage, and up to the time of his father’s death, and afterwards, he had resided in the house, had paid no rent, and no claim -therefor had ever been made; that these dealings had originated before his father’s death, his father having executed a mortgage upon a farm which he then owned to the Detroit Savings Bank, as security for loans made by the son; that after his father’s death, in April, 1889, two notes, amounting to $5,000, which were secured by said mortgage, were renewed, and said notes were paid July 11, 1890, out of the proceeds of the farm, the farm having been deeded to the mother, the deed to take effect at the death of the father.

The defendant then for the first time exhibited a paper purporting to be a statement of the account between the parties, alleging advances made to decedent during 1890, as follows: July 10, $700; July 10, $5,415.50; July 12, $1,000; September 10, $3,000; October 14, $200; November 15, $250; December 20, $1,500'; and December 26, 1891, $2,000, — aggregating, with interest charges, $15,515; and crediting plaintiff with the sums theretofore shown by plaintiff to have been paid, to wit, February 1, 1892, $3,000, and June 15, 1892, $2,000. Plaintiff then showed a further payment to defendant on November 21, 1890, of $2,000, for which no credit Was given in the statement aforesaid.

Plaintiff’s contention upon the trial was that the note for $10,000, dated December 23, 1891, embraced the entire indebtedness, including the $2,000 charged in the statement as received by decedent December 26, 1891, and that upon this note there had been paid the sum of $5,000, and claimed the difference between the balance and «the sum of the insurance' moneys collected.

The court refused to allow the jury to charge the defendant with the proceeds of the Catholic Mutual Benefit Association policy, but at plaintiff’s suggestion the jury, upon a special question put, were allowed to find, and did find, that the Catholic Mutual Benefit Association policy was ffeld by defendant as security simply.

The jury found a verdict upon plaintiff’s theory for $5,119.20. Both parties bring error.

Plaintiff insists that he was entitled, to a further credit upon the account for the avails of the Catholic Mutual Benefit Association policy. Defendant contends:

1. That the court erred in admitting the testimony showing that decedent paid part of the cost of the construction of the house in which decedent and defendant lived.
2. That there was no evidence from which the jury might infer that the $10,000 note of December 23, 1891, was a settlement of account between decedent and his mother, including the $2,000 paid decedent December 26, 1891.
3. That the court erred in submitting the special question relative to the Catholic Mutual Benefit Association policy.

1. The testimony as to decedent’s participation in the construction of the house in which he lived was brought out by defendant’s claim for rent. It was competent for plaintiff to show that decedent’s occupancy of the house was rent free, and to show all the circumstances bearing upon that question, the relation of the parties, the fact that no demand or claim had ever been made for rent, and a substantial consideration for that understanding and agreement.

2. Upon the second point made by defendant, it appeared that no moneys had been advanced by defendant after December 20, 1890, until December 26, 1891. There was no new consideration for the $10,000 note, except the $2,000, if that was a part of the consideration. There was no other advance made at or near the time of giving the note, and none had been made for a year before the note was given. It was not pretended that the note was solicited for any purpose which defendant had in view, except as evidence of the indebtedness. Clearly, under these circumstances, the note was prima facie evidence of an account stated between the parties, and the- burden was upon defendant to rebut the presumption. Rice, Ev. 103; 1 Tayl. Ev. (Text-Book Ser.) § 124; Lake v. Tysen, 6 N. Y. 461; Davis v. Gallagher, 55 Hun, 593.

There was testimony tending to show that the $2,000 received by decedent December 26, 1891, was used to pay a demand which existed on December 23, and that decedent had been, prior to December 26, making efforts to raise the money from other sources to meet this payment. There was also evidence tending to show that the only claim made by defendant after the death of plaintiff's intestate, was the amount of the $10,000 note. Indeed, no claim was made to this sum until after the defendant had once rested after having set up the further claim upon the $5,000 note and the claim for rent. There was no evidence as to the date of the delivery of the note. The presumption undoubtedly is that it was executed and delivered on the day of its date, but that presumption was removable.

It is urged that there is no evidence that the note was given in payment, and that the taking, of a note or acceptance is not payment in the absence of an agreement that it shall be received in payment, and and that upon nonpayment the holder may sue upon the original cause of action, and this defendant attempted to do; and it is sought to demonstrate by statements made in behalf of defendant and used upon the trial that a sum in excess of the amount of the note was due at its-date, and hence that the $2,000 paid over December 26 could not have been included in said note. The difficulty with the demonstra-' tion is that at the very outset of defendant’s case, and before she undertook to make any, proof of the original indebtedness, intending to swell the indebtedness to her, she set up a claim upon the $5,000 note, which it is here conceded was not an independent indebtedness, but was already embraced in the note for $10,000. She n.ext presents a statement purporting to be a statement of debts and credits, in which the estate is credited with only such payments as, after much controversy, have been actually shown to have been made. Plaintiff, however, pending the trial, in consequence of a remark -drawn out upon a rigid cross-examination, is enabled to discover another bank where defendant had made deposits, and trace through a witness from such bank a further payment to defendant, not credited in the statement, of the sum of $2,000. There was no testimony that no other payments had been made, and no credits were acknowledged until the payments had been ferreted out and proven by indisputable testimony in the shape of checks and New York drafts, indorsed by the defendant. In the absence of the note, the jury would not have been justified in giving to plaintiff credit for payments not proven to have been made; but with the note before them it was for them to say whether the presumption as to its having been given in settlement was removed.

■ 3. In view of the conclusion which we have reached as to the Catholic Mutual Benefit Association policy, it is unnecessary to discuss defendant’s third assignment. The jury have found that this policy was held by defendant as security for the payment of the indebtedness. This is not a controversy between the association and a creditor. The amount of the policy has been actually received by defendant, and she refuses to apply it. It was agreed between the parties that the amount of said policy, when received, should be applied upon, and should pro tanto extinguish, the indebtedness. That was a valid agreement. Plaintiff is not now seeking to recover the proceeds of that policy. He is simply insisting upon its application in accordance with the terms of the agreement, and that the indebtedness to that'extent shall not be offset against other moneys which defendant has collected. Suppose the same agreement had been made with a stranger and creditor, and the association had paid over the proceeds of the policy, could such creditor be heard to say that the proceeds of the policy were not applicable to the payment of the debts of the decedent, and that he could sue and recover the debt? The insurance contract was with decedent. It was within his power to change the beneficiary at any time. ’

Plaintiff is entitled to an addition to the judgment of the sum of $2,000, with interest from the date of the collection of that sum from the association. With this modification the judgment is affirmed.

The other Justices concurred.


author: McGrath, C. J.

text:
    The People v. George L. Laird.

      Criminal law — Privileged communications — Evidence of good character — Instructions.

    1. Where, in a prosecution for burglary,'the defense is an alibi, and the officers who made the arrest explain their presence in the building by testifying that they expected it to be entered, it is not error to reject testimony, sought to be drawn out on their cross-examination, relative to the source from which they derived their information that a burglary was premeditated.
    2. A case might arise where a person claiming to have been innocently at the place where the crime was committed, at the solicitation of a person suspected of being the informant, would.' be entitled to inquire whether such, person was the informant.
    3. Where, in a prosecution for burglary, the sole disputed question of fact is as to the presence of the respondent at the scene of the burglary, and there is positive evidence on both sides of thé question, it is error to instruct the jury that, if they find that there is positive evidence that the respondent-did commit the offense, they .are to pay no attention to the-evidence which he has introduced tending to show his previous good character, such evidence being entitled to consideration in determining the disputed question.

      Error to recorder’s court of Detroit. (Chambers, J.)
    Argued June 28, 1894.
    Decided September 25, 1894.
    Eespondent was convicted of the crime of burglary, and sentenced to imprisonment in the State prison for seven years,
    Judgment reversed.
    The facts are stated in the opinion.

      George Cox, for respondent.

      A. A. Ellis, Attorney General, and Allan H. Frazer, Prosecuting Attorney, for the people.

       GOOD CHARACTER AS A DEFENSE IN CRIMINAL CASES.
      For cases bearing upon the question of proof of good character in criminal cases, and the effect that should be given to it by the jury, see:'

        General Rules Applicable to the Subject.

      1. People v. Garbutt, 17 Mich. 9, 26, holding that good character is an important fact .with every man, and never more so than when put on trial charged with an offense which is rendered improbable in *the last degree by a uniform course of life wholly inconsistent with any such crime; that there are cases where it becomes a man’s sole dependence, and yet may prove “sufficient to outweigh evidence of the most positive character; that the most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave; that good ■character may not only raise a doubt of guilt which would not ■otherwise exist, but it may bring conviction of innocence; that in ■every criminal trial it is a fact which the respondent is at liberty "to put in evidence, and, being in, the jury have a right to give it ■such weight as they think it entitled to.
      2. People v. Mead, 50 Mich. 228, 233, holding that a person on trial for crime is entitled in all cases to the benefit of testimony as to his good character; but, if the evidence of his guilt is convincing beyond a reasonable doubt, he should be convicted, notwithstanding .his good reputation.
      3. People v. Evans, 72 Mich. 367, holding that the failure of a respondent to offer affirmative evidence of his good character raises no legal inference that he is guilty of the offense charged, or that his character is bad, and it is the gravest error for the court to permit the prosecuting attorney to comment upon the absence of such testimony, which error is not cured by an instruction to the jury not to consider the argument, M
      4. People v. Marks, 90 Mich. 555, holding that where a respondent introduces evidence of his good character, which is not attempted to be rebutted by the prosecution, it is prejudicial error for the court to instruct the'jury that, while the law permits him to make such proof, the people are prohibited from showing his bad character.

   McGrath, C. J.

Eespondent was convicted of burglary. The police department, on the evening of December 15, 1893, received information that a bm-glary would probably be committed some time during the night, or early the following morning, at the residence of one Tannenholtz. Acting on this information, six officers were sent by Oapt. Bachman to Tannenfioltz’s place, with instructions, if a burglary was committed, to arrest the parties. The officers informed .Tannenholtz, procured from him a key, and secreted themselves upon the premises. At a few minrrtes after 5 in the morning, the rear door was broken open, and the place entered. Just after the place was entered, several shots were exchanged, and the burglars ran. Respondent was recognised by one of the officers at the door, and by two other officers in the course of the chase' which followed. The defense was an alibi. The officers, in explaining their presence in the saloon, 2testified that they expected the place to be entered. On cross-examination, each officer was asked a number of questions relative to the source from which they derived their information that a burglary was premeditated, bu.t the testimony was rejected.

The general rule is that persons engaged in the detection of crime are not bound to disclose the sources of the information which led to the apprehension of the prisoner. The reason for the rule is that such disclosure can be of no importance to the defense, and may be highly prejudicial to the public in the administration of justice by deterring persons from making similar disclosures. 1 Q-reenl. Ev. § 250; Best, Ev. (Ohamberlayne’s 1st ed.) § 578, note la; Rex v. Akers, 6 Esp. 125; Hardy’s Trial, 24 Howell, St. Tr. 808; U. S. v. Moses, 4 Wash. C. C. 726; Attorney General v. Briant, 15 Mees. & W. 169; State v. Soper, 16 Me. 293; Gray v. Pentland, 2 Serg. & R. 23, 32; Worthington v. Scribner, 109 Mass. 487. In the last case cited, Gray, J., says:

“It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws. To encourage him in performing this duty, without fear uf consequences, the law holds such information to be among the secrets of state, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shall be suffered to' be known to' the absolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of justice, therefore, will not compel or allow, the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government. The evidence is excluded, not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications.”

And our own Court, in People v. Davis, 52 Mich. 569, 573, recognize the rule. Chief Justice Cooley in that case says:

“ And we are not called upon in this case to consider whether there may not be eases in which the prosecuting attorney would be excused, in the ¿interest of the State, from disclosing what had been told to him with a view to the commencement of criminal proceedings.. There would be strong reasons in many cases why the counsel of the State should be inviolably kept; and nothing we shall say in this case will be intended to lay do,wn a rule except for the very case at bar and others standing upon the same facts.”

The rule is broad enough to protect the information as well as the informant, at least so far as it is necessary to shield the informant. In the present case the question involved was the presence and identity of the respondent at the scene of the burglary, and the court permitted a disclosure of the information so far as it related to him. A case might arise where a person claiming to have been innocently at the place of the crime, at the solicitation of a person suspected of being the informant, would be entitled to inquire whether such person was the informant. U. S. v. Moses, supra. But no such case is here. The defense here was that respondent wras not present. '

Much is said in the respondent’s brief about the methods of the police department. The police are dealing with dangerous characters. Burglary is a profession. Men known to be connected with the profession 'infest communities. They are desperate characters, and take life to facilitate escape. The duty of the police lies beyond the protection of the public from a particular offense. It will not do to lay down the rule that, if a burglary is suspected,'it is the duty of police officers to_ prevent the commission'of that particular offense, rather than lie in wait and secure the guilty parties. In such case the police do not encourage the commission of the crime, but simply apprehend parties bent upon the crime, who, in carrying out plans already formulated, rush into the arms of the officers. Even an informant accompanying his associates does not necessarily encourage their purpose, and it is not proper that he should, but he simply acquiesces in a plan already formed. We find no error in the record in respect to these matters.

The conviction must, however, be set aside for. other reasons. Several witnesses were called as to the previous good character of the'respondent, and the people called no witnesses upon that subject. The court instructed the jury that—

“Good character is always' admissible, gentlemen, in criminal cases, and may be always received by you, but it is for you to say whether it will have any weight with you in coming to your verdict, or not. The testimony of the defense may be introduced to show what the character of /the defendant is; and if the testimony is incompatible with your judgment in regard to defendant's good character, if you think it is insufficient, or if you think defendant is guilty without any testimony with reference to character, it would be your duty to say so. The defendant might have a good character up to a certain time, and afterwards he might have committed a crime.
“If a crime was absolutely committed, and you are satisfied beyond a reasonable doubt, then good character would be comparatively useless, so far as you are concerned, because men sometimes have to have some commencement in crime, and a man might have a good reputation and good character most all of his life, and he may commit some crime; and it does not follow, because he has always had a good reputation, that, therefore, he is a good man. It is a question for you to say whether, if there is any doubt in regard to the case, — whether you believe that testimony, or lohether you will accept testimony to shoto that his character is good, when you have positive evidence that his character is not good, and that is a question for you to say entirely.
“In regard to the man's reputation, you have heard the testimony introduced here of some' of the witnesses that defendant had borne a good character up to the time of this offense; and it is a question for you to consider whether a man who has lived a good life and enjoyed a high reputation for 35 or 40 years, — whether he would be likely to commit the offense charged. If you believe he would, then, of course, character would be of no importance. If yon believe that he did commit the offense, and you find that there is positive evidence that he fitid commit it, of course you would pay no attention to the man's reputation.”

This instruction was erroneous, in that it authorized the jury to disassociate the testimony as to good character from the other testimony in the case. The sole question was as to respondent’s presence at the scene of the burglary. The evidence upon that question was conflicting. There was positive evidence that respondent was present, but there was also testimony, equally as positive, that he was not. The testimony as to good character supplemented the latter class of testimony, and was entitled to consideration in determining the disputed question. The court might as well have said:

“ If you find positive evidence that, respondent was present, then you may reject the testimony which tends to show that he was not.”

The 'precise question was before this Court in People v. Jassino, 100 Mich. 536.

The judgment is reversed, and a new trial granted.

Long and Hooker, JJ., concurred. Grant and Montgomery, JJ., did not sit.

       The first story of the building was occupied as a saloon, and the second as a dwelling.
      5. People v. Mills, 94 Mich. 630, holding that, where a respondent’s general character is put in issue by the defense, comment upon that character is clearly proper.
      6. People v. Jassino, 100 Mich. 536, holding that evidence of good character is admissible not only in a ease where doubt otherwise exists, but may be offered for the purpose of creating a doubt.

        Illustrative Cases.

      1. People v. Garbutt, 17 Mich. 9, 26, where, in a prosecution for murder, evidence was adduced by the respondent to establish his uniform good character previous to the time of the alleged offense, and the court was requested to instruct the jury that they had a right t& consider whether such evidence tended to rebut the presumption of malice. And it was held that the proposed instruction was correct in substance, and that the respondent was entitled to it without explanation or qualification; that the evidence could have no bearing whatever except upon the question of malicious intent; that to refuse the instruction, therefore, was equivalent to holding, or at least to leaving the jury to infer, that the evidence, which was lawfully put into the case, was immaterial after it was in.
      2. Campbell v. People, 34 Mich. 351, where, in a prosecution for rape, the court instructed the jury that the respondent had offered evidence tending to show his good character; that it was not usual, perhaps, for good men to commit crime, but it was possible, and men who have stood high have been convicted; that the jury-should consider the evidence with the rest, and give the prisoner all the benefit of it that they believed him entitled to. And it was held that the instruction was calculated to insure to the respondent the full benefit of his good reputation.
      3. Brownell v. People, 38 Mich. 732, 736, holding, in a prosecution for murder, that it was entirely inadmissible, in answer to proof of the general good reputation of the respondent, to receive evidence of an alleged act of violence against another person than the deceased, at a former time and different place; that the respondent could not (be expected to) be prepared to meet any such testimony or explain it, and its introduction might seriously prejudice the jury.
      4. People v. Harrison, 93 Mich. 594, where, in a prosecution for larceny, the circuit judge instructed the jury that a good character was of importance to a person charged with crime, and that the jury had the right to consider whether a person with a good character would be less liable to be guilty of crime than one of bad habits and character. And it was held that this is undoubtedly the true rule, and it is so beneficient in its character that it is entitled to the constant recognition of all courts when engaged in the trial of any person charged with the commission of a crime.

        5. People v. Pyckett, 99 Mich. 613, where, in a prosecution for arson, testimony was introduced as to the general good character of the respondent, the question put-to the witnesses being, “Do you know what his reputation for good moral conduct is?” On cross-examination the witnesses were interrogated as to specific acts pf the respondent which occurred prior to the fire. And it was held that such interrogation was proper.
      6. People v. Jassino, 100 Mich. 536, where, in a prosecution for an assault with intent to do great bodily harm less than the crime of murder, the court instructed the -jury that a man’s good character is a valuable thing under all circumstances; that it is proper evidence to be considered by the jury in doubtful cases to determine whether or not a man having that good character would commit the offense charged; that it often avails, and should avail, to acquit a man under such circumstances; but that, when there is positive proof of the commission of an offense, good character cannot avail to overthrow the proof. And it was held that the instruction was erroneous, in that it deprived the respondent of the benefit of proof of good character if the jury should find positive evidence tending to show the commission of the offense.


author: Lons, J.

text:
    John B. McNaughton v. Charles A. Quay.

      Slander — Evidence—Instructions—Justification.
    1. Where in an action for slander consisting, as alleged, in chatging the plaintiff with having committed the crimes of perjury and larceny, the defendant gives notice that under his plea of the general issue he will prove the truth of the charge as to the commission of the first-named crime, the court should ex-elude, not only such circumstances as tend to prove the truth of the other accusation, but all the circumstances which would tend to cast suspicion upon the plaintiff as having been guilty of said offense.
    2. Where the defendant in an action for slander consisting, as alleged, in charging the plaintiff with having committed the crime of perjury, proves the truth of the charge to the satisfaction of the jury, the plaintiff is not prejudiced by a statement in the charge that the defendant admits speaking the words charged in the declaration, it appearing that the words admitted by .him to have been spoken were not actionable per' se.

    Error to Clinton. (Daboll, J.)
    Submitted on briefs June 28, 1894.
    Decided September 25, 1894.
    Case for slander. Plaintiff brings error.
    Beversed.
    The facts are stated in the opinion.

      Lyon & Booling, for appellant.

      Fedewa & Merrill, for defendant.
   Lons, J.

The declaration in this cause was for slander, and alleged that defendant had accused the plaintiff of the crime of perjury in testifying as a witness in a cause tried in justice's court, and also that defendant had accused him of the crime of larceny, by reporting that he had •stolen his (defendant's) honey. The plea was the general issue, with notice that defendant would prove on the trial the truth of the charge as to the commission of perjury. On the trial the defendant was sworn as a witness, and testified that he had accused the plaintiff of perjury, and produced some evidence tending to show the truth of the accusation. Defendant denied, however, that he had ever accused the plaintiff of the larceny. The jury rendered a verdict in favor of defendant.

The defendant was permitted, under plaintiff’s objection, to testify that upon a certain evening, about three years before, he had some honey stolen, and to detail the circumstances under which it was taken. This is assigned as error, and it is claimed that plaintiff’s case was prejudiced by the admission of the testimony. The court was in error in admitting this testimony. The defendant, by his plea of the general issue to this charge in the declaration, would not have the right to prove the charge to be true. He in fact denied absolutely that he uttered the slander, and he did not have the right to offer evidence, the only purpose of which would be -to prove the truth of the charge. In such cases the rule is settled that the court should exclude, not only such circumstances as tend to prove the truth of the charge, but all circumstances which would tend to cast suspicion upon the plaintiff as having been guilty of the offense. Storey v. Early, 86 Ill. 461.

Error is also assigned upon that part of the. charge in which the court instructed the jury that the defendant admitted that he spoke the words attributed to him as to the charge of perjury, and further that, if they found by a preponderance of the evidence that, plaintiff did commit perjury, then as to that issue they should find for defendant.

The declaration charged the defendant with having published and declared of and concerning the plaintiff the following slanderous and defamatory words: “McNaughton (this plaintiff meaning) went down there (to the office of Byron V. Soule, a justice of the peace in and for the county of Clinton, and in the village of Ovid, meaning) and swore to a God-damned lie, or I would have beaten her” (the defendant in that suit). And that at another time he used these words: “He did swear to a Goddamned lie down at Ovid, and I won’t deny I said so. I wouldn’t have been beaten if it hadn’t been for John” (meaning thereby, and intending to chage, that in a case tried before Byron V. Soule, a justice of the peace, and in which one Jane Runciman was defendant and Charles A. Quay plaintiff, the said John B. McNaughton gave testimony material to the issue,, and in so doing committed the crime of perjury). The testimony given by the plaintiff bore out the allegations in the declaration, one Clarence Kimball testifying that he had heard Quay say “ he would have beat Jane Runciman, down at Ovid, if it hadn’t been for John McNaughton. He said he swore to a Goddamned lie.” George W. Kimball testified to the same thing.

It is claimed that the defendant did not admit on the trial that he spoke the slanderous and defamatory words as they were set forth in the declaration, but that his only admission was that he told one Exelby that “he [McNaughton] falsified,” and that he “ told Clarence Kim-ball that McNaughton swore falsely at the trial at Ovid.” This appears to be the only admission made by the defendant as to what he said of and concerning the plaintiff. It is therefore insisted that the court was in error in stating to the jury that the defendant admitted that he spoke the words attributed to him as to the charge of perjury, and that the plaintiff’s case was prejudiced by this charge, for the reason that the evidence on the part of the defendant was not identical with the charge, in point of law, as the gist of the charge was, “I wouldn’t have been beaten if it hadn’t been for John,” and that the defendant’s admission as to what -he said would not make the words actionable per se, while the words charged in the declaration are actionable per se. It is further claimed- that inasmuch as the declaration sets out words which are actionable per se, and the plaintiff having proved that such words were tittered, the defendant cannot, under his plea of justification, claim that he has justified when he proves he has uttered words which are not actionable per se, and which are not identical in point of law with the charge made in the declaration; and that under these circumstances the question whether the plaintiff did commit perjury should not have been submitted to the jury.

It is a little difficult to see how the plaintiff was injured by the charge as given, or what the real, contention of counsel is. The declaration sets out words which are actionable per se. The charge made was one of perjury. The defendant, under his plea of the general issue, gave notice that, if the words were spoken as alleged in the declaration, they were true. The plaintiff proved that the words were spoken, and rested his case. The defendant then took the case, and showed substantially that, in the suit referred to, defendant sued Mrs. Runciman to recover the principal and interest of a promissory note given by Mrs. Runciman to him for the price of some sheep sold to her by defendant. Defendant contended that Mrs. Runciman agreed to pay interest on the note, and that the note was correct as written. She denied that she was to pay interest, and claimed that the interest clause in the note was forged. The plaintiff in this cause was called as a witness by Mrs. Runciman, and testified that, in a conversation had with Quay in relation to the sale of the sheep and the price to be paid therefor, Quay said to him, among other things, that—

“I don't know.but what I have done just as well as if I had held onto them, for I have waited on her for the price without interest; but she takes care of the lambs, and the keep of the lambs is ■ worth-more to me than the interest on the price of the sheep."

On the trial of the present case, defendant offered testimony tending to show that the plaintiff did testify falsely before the justice in the Runciman suit. The court regarded the plea sufficient to admit this testimony, and directed tbe jury that, if they believed that plaintiff did testify falsely on that trial, they should find upon ■that issue a verdict for the defendant. We see no error in this charge, and if the court, by some inadvertence, stated to the jury that the defendant admitted speaking the words charged in the declaration, it is not clear how the plaintiff was prejudiced. The defendant had proved the words, as laid in the‘declaration, true, to the satisfaction of the jury, as they found with him. Conceding, therefore, all that plaintiff’s counsel claim, we see no prejudicial error in the charge.

Some other errors are claimed, which we do not deem of sufficient importance to discuss, as on another trial the rights of the parties will undoubtedly be fully protected.

For the error pointed out the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Lon», J.

text:
    The People v. William H. Kindra.

      Criminal laiv — Indorsing names of witnesses on information — Res gestae — Liquor traffic — Trial—Argument of prosecutor.

    1. Where, in a prosecution for keeping respondent’s saloon open after hours, three witnesses testify in behalf of the people that, after the hour for closing, they, in company with three women, whose names are not indorsed on the information, went into a room back of the bar-room kept by the respondent, and there purchased lager beer of respondent’s barkeeper, it is not error for the court to deny respondent’s motion to place the names of the women upon the information, and produce them as witnesses for the people; it appearing that the prosecution has not failed to put all parts of the transaction before the jury by the testimony of the three men, and that the introduction of the testimony of the women would be merely cumulative.

    2. After the respondent had rested, one of the women was found, and examined as a witness for the people. Her testimony corroborated that of the three men, but was taken under respondent’s objection that it was more prejudicial to him than it would have been had it been taken earlier in the trial. And it is held that the time of calling the witness was within the discretion of the court, and, inasmuch as respondent was given the right to rebut the testimony, he cannot now complain.
    8. After one of the witnesses for the people had been examined in chief, and cross-examined at some length, the court inquired of the prosecuting attorney if that was all of the witness, and that officer responded that he “ was through with the witness some time ago,” whereupon respondent’s counsel stated that he desired to examine the witness. The court declined to wait for such examination, and dismissed the witness from the stand, and counsel for respondent took an exception to this proceeding, but did not advise the court what further questions he desired to ask of the witness. And it is held that, while the court should not have thus summarily dismissed the witness from the stand, yet it was the duty of the counsel for the respondent, under the circumstances, to state to the court some reason why he desired to examine the witness further; that no reason is here assigned, and the Court are unadvised as to whether the respondent’s rights were prejudiced by the action taken; and that, under the circumstances, they are unable to say that there was any prejudice, as the facts brought out on the direct examination seem to have been fully covered by Cross-examination.
    4. Where, in a prosecution for keeping a saloon open after hours, the respondent was called as a witness in his own behalf, and testified that he had once been convicted of a like offense, his case cannot be said to have been prejudiced by the remark of the prosecuting attorney, in his closing argument to the jury, that the case followed another case, in which the respondent pleaded guilty.

      Exceptions before judgment from the superior court of Grand Rapids. (Burlingame, J.)
    Argued June 29, 1894.
    Decided September 25, 1894.
    Respondent was convicted of keeping his saloon open after hours.
    Conviction affirmed.
    The facts are stated in the opinion.

      Griffin, McDonald & La Grou, for respondent.

      A. A. Mlis, Attorney General, and Alfred Wolcott, Prosecuting Attorney, for the people.

       See, as to indorsement of names of witnesses on information, People v. Machen, 101 Mich. 401, and note; and as to duty of prosecuting attorney to produce the testimony of res gestae witnesses, People v. Germaine, Id. 488, and note.

       The prosecuting attorney states in his brief that “ the language used was not apparently strictly borne out by the record, but evidently referred to the statement of the respondent that he had been convicted for keeping open after hours;” and adds that “it would not have been improper to comment on this testimony as affecting the. credibility of the witness, and as to that it would make very little difference whether it was a conviction or a plea ■of guilty.”

   Lon», J.

The respondent was arrested and tried before the superior court of Grand Rapids for keeping his saloon open on the night of August 24, 1893. At the time in question, the respondent was running an hotel and saloon in the city of Grand Rapids; and, on the evening of that day, a dance 'was in progress in the hall upstairs, in the same building. The dance was concluded about 11 o’clock. On the part of the prosecution, it is claimed that, after the' dance, the witnesses Stoutjesdyk, Price, and Rittenberg, together with Lou Thayer and her sister and one May Wyman and several others, came down from the ■dance hall, and got some beer in a small room back of the main bar-room, which beer was paid for by Stoutjesdyk.

The people, after swearing the witnesses Stoutjesdyk, Price, and Rittenberg, rested their case. These witnesses had testified that, after 11 o’clock, they, in company with these women, went into the room back of the bar-room, kept by respondent, and there purchased lager óf respondent’s barkeeper. The names of the women were not placed on the information. Respondent thereupon insisted upon their being produced as witnesses by the people, and that their names be placed upon the information. The court declined to order the people to place their names upon the information, but had subpoenas issued for them. The witnesses not being found, after waiting two hours,, the court directed the respondent to proceed with his defense. He did proceed, and examined eight witnesses, who all testified that the saloon was not open upon the night in question, and that no liquors were sold there that night after the hour of closing. After the defense rested, the witness May Wyman, who the defense had insisted should be produced by the people, was found, and called into court, and examined on the part of the people. Her testimony corroborated the people’s witnesses, but was taken under respondent’s objection, who now claims that her testimony ‘was more prejudicial to him than it would have been had it been taken earlier in the trial.

We think the court was not in error in denying the motion to place the names of these- witnesses upon the information. It is evident that the people had not failed to put all parts of the transaction before the jury by the testimony of the three witnesses called to sustain the prosecution; that the introduction of the testimony of the other witnesses would have been merely cumulative. It is true that the prosecutor in a criminal ease is not at liberty, like the plaintiff in a civil case, to select out a part of an entire transaction which makes against the respondent, and then put the respondent to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed, especially if it appears to the court that the evidence of the other portion is attainable. If the facts stated by the witnesses who are called show prima facie or even probable reason for believing that there are other parts of the transaction to which they have not testified, and which are likely to be known to other witnesses present at the transaction, then such other witnesses should be called by the prosecution, if attainable. Hurd v. People, 25 Mich. 415. But the rule laid down in such cases is really aimed at the suppression of evidence, and does not decide that in all cases all the witnesses to a transaction must necessarily be called by the prosecution. The justice-of requiring this must depend upon circumstances, and it would seldom be as manifest in cases of mere misdemeanor as in cases of higher offenses, especially those accomplished by violence. But in this case there was no reason to suppose that the prosecution had failed to put all parts of the transaction in evidence before the jury, and the testi■mony of the others who were not called could only have been .cumulative. This rule was laid down in Bonker v. People, 37 Mich. 4. In People v. Quick, 51 Mich. 547, it was held that the prosecution in a criminal case is not obliged to call all the witnesses named on the information.

But in the present case the good faith of this claim may well be questioned; for, when one of these witnesses was subsequently called, sworn, and examined by the people, ,the defense objected to the testimony (such testimony corroborating the people’s case), for the reason that the witness was called at a later stage of the proceeding. The time of calling the witness was within the discretion of the trial court, and, inasmuch as respondent was given the right to rebut this testimony, we think he cannot now complain.

One of the witnesses for the people was called, examined in chief, and at some length- cross-examined by respondent’s counsel. The court then asked of the prosecution, “Is that all of this witness?” and the attorney for the prosecution responded, “ I was through with the witness some time ago.” Respondent’s counsel then said, “ I desire to examine this witness;” when the court stated/ “ I cannot wait,” and dismissed the witness from the stand, counsel for respondent taking an exception to this proceeding. It is not stated in this record what further examination the respondent desired to make of this witness, and the court below was not advised what further questions respondent desired to ask; but the whole matter was dropped, as appears by this record, by respondent’s counsel’s taking an exception. We think, if respondent desired further examination of the witness, he should then have stated to the court upon what subject he desired to examine him, for he had already cross-examined the witness at great length. While the court should not have summarily dismissed the -witness from the stand, yet we think it was the duty of counsel, under the circumstances, to state to the court some reason why he desired to examine the witness further. No reason is assigned in this Court why further examination was desired, and we are left wholly in the dark as to whether respondent’s rights were prejudiced by the action taken. Under the circumstances, we are unable to say that there was any prejudice, ¡as- the facts brought out on the direct examination seem to have been fully covered by cross-examination.

Complaint is made of the remarks of the prosecuting ‘attorney during the trial. He stated, in the presence of the jury, in the closing argument:

“This case follows another case, in which respondent pleaded guilty.”

We do not think this remark prejudiced respondent’s ■case. He was called as a witness, and testified that he had once- been convicted for keeping open after hours.

The conviction must be affirmed.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


author: Hooker, J.

text:
    Calista Edwards v. The Common Council of the Village of Three Rivers.
    [See 96 Mich. 625.].

      Pleading — Amendment—Damages—Municipal corporations — Defective sideioalk — Evidence—Hypothetical questions— Contributory negligence.

    1. It is within the discretion of a circuit judge to permit the amendment of the declaration in a personal injury case by inserting therein, after the general description of the injuries alleged,to have been sustained, an averment “that said injuries so received and sustained as aforesaid are permanent.”
    2. A declaration in a personal injury case which, after describing the manner in which the injuries complained of were received, alleges that plaintiff was greatly wrenched, bruised, sprained, and injured in her left foot, ankle, and limb, so that on acfcount thereof her said left foot, ankle, and limb became and were, and ever since said date have been and continued to be, greatly swollen, sore, and lame, so much so that plaintiff has ever since said injury been hardly able to walk about the house, and is thereby disabled from carrying on her business, that of keeping a boarding-hoúse, and that said injuries so received and sustained by her as aforesaid are permanent, is sufficiently specific to admit of proof of permanent injuries of the kind alleged.
    3. It is not error to permit a witness in a personal injury case, whose attention has been called to the portion of the walk where the injury is claimed to have been received, to testify to the condition of the walk at that point, the evidence being competent as bearing upon' the question of notice.
    4. The introduction of testimony on the part of the defendant in a personal injury case tending to show that the plaintiff had for many years prior to the injury been lame, that her limbs had long troubled her, and that she had varicose veins, justifies the admission on behalf of the plaintiff of the testimony of acquaintances of the plaintiff tending to show an absence of such conditions; that plaintiff was healthy, and had been during the period covered by defendant’s testimony; and that intimate acquaintances never had known that she was afflicted in the manner testified to.

      5. A witness for the plaintiff was examined about a point in the walk 35 or 36 feet from a bridge, and testified concerning a hole in the walk at that point that he thought was 5 inches deep. The plaintiff identified the place of the accident as being near a telephone pole, which she located at a distance of from 34 to 35 feet from the bridge. The witness said nothing about a telephone pole in describing the place he saw. Expert witnesses were asked hypothetical questions, in which the hole was described as of the depth testified to by the witness. And it is held that the court properly allowed the questions to be answered, as jt was for the jury to say whether or not the plaintiff was hurt in the place testified to by the witness.
    6. A request to charge in a personal injury case, which goes to the extent of saying that if the plaintiff, at the time she stepped into the hole in the sidewalk upon which she was injured, was afflicted with any disease, it was necessary for her to use more caution in looking for holes in the walk than is required of ordinarily healthy persons, is properly refused.
    Error to St. Joseph. (Loveridge, J.)
    Argued June 28, 1894.-
    Decided September 25, 1894.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      H. 0. Bliss and Newton H. Barnard, for appellant.

      B. E. & L. F. Andrews and 0. F. Bean, for plaintiff.
   Hooker, J.

The defendant appeals from a judgment rendered against it in an action for an injury alleged to have been received by the plaintiff on the occasion of a fall upon a sidewalk.

Plaintiff's counsel sought to show that' the injury alleged was permanent, and, being met by the objection that the declaration did not so allege, asked to amend the same by inserting in the first count the words, “And the plaintiff alleges that said injuries so received and sustained by her as aforesaid are permanent.” The second count already contained the allegation “ that said injury is likely to prove permanent.” It needs no citation of authorities to-vindicate the power of the circuit judge to permit this amendment, or to support the proposition that the exercise of his discretion should not be interfered with unless abused. We think the amendment was a proper one.

It is contended, however, that the declaration as amended was not sufficiently definite to admit of proof that the injuries were permanent. The language of the first count is that plaintiff,—

By stepping her left foot into tile hole in said sidewalk where said plank or board was gone and out of said sidewalk as aforesaid, was greatly' wrenched, bruised, sprained, and injured in her left foot, ankle, and limb, so that on account thereof her said left foot, ankle, and limb •became and was, and ever since said date has been and continued to be, greatly swollen, sore, and lame, so much so that she, said plaintiff, has ever since said injury been hardly able to walk about the house.”

The second count alleges that plaintiff—

Stepped her left foot into a hole where said board or plank was so out of and gone from said sidewalk as aforesaid, and was thereby greatly wrenched, sprained, bruised, and injured in her said left foot, ankle, and limb, and by means whereof was greatly injured.”.

The cases of Shadock v. Plank Road Co., 79 Mich. 11, and Kalembach v. Railroad Co., 87 Id. 509, are cited in support of ° this contention, in which cases, it is said, the descriptions of the injuries are quite as specific as in the declaration before us. We consider them much less so, and think this declaration sufficiently specific to admit of proof of permanent injuries of the kind sought to be proved.

A Mr. Aspinwall, who lived in Three Rivers at the time of the accident, testified that three planks were broken, one of which was loose during July and August, though he thought it was not out until the middle of August; that he replaced it several times; that the sills were decayed, and one plank broken in two; that when walking across the walk great care was necessary if. one stepped on one end or close to the sill. The last sentence was objected to, and taken under exception. The witness afterwards explained that there was danger of tipping the plank up and throwing it out. It has been repeatedly held that evidence of the condition of the walk in the vicinity of the place of the accident is admissible, as bearing upon the question of notice. See Fuller v. City of Jackson, 92 Mich. 197; Corcoran v. City of Detroit, 95 Id. 84; O’Neil v. Village of West Branch, 81 Id. 544; Dotton v. Village of Albion, 50 Id. 131. In Campbell v. City of Kalamazoo, 80 Id. 660, testimony nearly identical with that objected to was held proper.

Counsel for the defendant offered testimony tending to show that plaintiff had for many years been lame, that her limbs had long troubled her, that she had varicose veins, etc. This justified the admission of testimony of acquaintances tending to show an absence of such conditions, and that she was healthy, and had been during the period covered by defendant's testimony, and that intimate acquaintances never had known .that she was so afflicted. We have examined this testimony, and think that the defendant has no ground for complaint in regard to it. It is more than negative testimony.

Expert witnesses were asked hypothetical questions, which described the hole as four or five inches deep. Counsel say in their brief that the testimony of the plaintiff would tend to show that the depth of the hole was just the thickness of the plank, and that the only other witness who testified about the depth was talking of a hole that he thought was five inches deep. It is argued that they must have been talking of different places, because “she identified the place as being near a telephone pole, but he said nothing about a telephone pole in describing the place he saw.” Mr. Edwards, plaintiff's husband, was being examined about a point in the walk 35 or 36 feet from a bridge, and the plaintiff had testified on cross-examination that the telephone pole was 34 or 35 feet from the bridge. Her testimony about the depth of the hole was as follows:

“ Q. How deep was the hole ?
“A. I cannot tell yon.
Q. About two inches ?
“A. I think it was more than two inches.
Q. Is it not a fact that the hole was just the depth of the thickness of the planks P 1
“A. I suppose so. I do not know. I could not say.
“ Q. You would not say that it was any deeper than that ?
“A. No, sir; I would not say either way.”

The court properly allowed these questions to be answered, as it was for the jury to say whether or not she was hurt in the place testified to by Edwards. That theory being supported by testimony, the question was proper. Fox v. Lead & Color Works, 92 Mich. 243.

Error is assigned upon the refusal of the court to give the following request to charge:

“If the plaintiff, at the time the injury is claimed to have been received by her, was in a diseased condition, then she was required to use greater care and caution than an ordinarily well person would have- been.”

It is true that a blind man should not walk with the assurance of a robust youth in the full possession'of all his faculties. A lame man might not be justified in going over obstacles where a sound man might venture, but there is no reason for a greater apprehension of defects which he has no reason to suppose exist. This request, as applied to this case, goes to the extent of saying that any disease makes it necessary for a man to use more caution in looking for holes in a walk than is required of ordinarily healthy persons. We think this rule has no such broad application as that contended for. There must be some apparent relation between the disease or infirmity and the danger to be avoided. None is shown here which required the plaintiff to be more diligent in looking for holes in the walk than the ordinarily prudent person is expected to be.

A number of other questions are raised, but, after examining them, we think it unnecessary to refér to them further than to say that we find no error in them.

The judgment will be’ affirmed.

The other Justices concurred.

       The plaintiff was injured on the 21st day of August, 1890.