text:
    WHITE v. WADHAMS.
    1. Bills and Notes — Certificate of Deposit — Conditional Payment — Negotiability.
    Although a certificate of deposit was issued by a bank subject to the rules of its savings department, it did not thereby become conditional, affecting its negotiability, under section 6044, 2 Comp. Laws 1915, it being the obligation of the bank and not merely of its savings department.
    2. Same — Certainty of Payment.
    Nor can it be said to be lacking in certainty, and therefore nonnegotiable, because subject to the rules of the savings department.
    3. Same — Interest—Certainty of Amount.
    A provision in a certificate of deposit for interest at 2 per cent, if left for six months, and interest to cease at end of year if not renewed does not render it uncertain, since the amount due thereon can be readily ascertained at any time.
    4. Same — Payable at Certain Time.
    A requirement by the bank of 30 days’ notice before a certificate of deposit is payable does not thereby render it payable at an uncertain time.
    5. Same — Interest—Complete and Regular.
    It cannot be contended that a certificate of deposit is not complete and regular upon its face although it carries 2 per cent, interest, when it appears that 3 per cent, is usual and customary, since the parties could agree upon any interest not contrary to law.
    6. Same — Presentment—Reasonable Time — Statute.
    A certificate of deposit payable on demand or 30 days thereafter, according to the rules of the bank, must be presented within a reasonable time after its issue, under section 6112, 2 Comp. Laws 1915.
    7. Same.
    Holding for 11 months before presenting for payment a certificate of deposit carrying interest if left for six months, but to cease at end of a year, held,, not an unreasonable length of time under sections 6041, 6112, 2 Comp. Laws 1915.
    8. Same — Holder in Due Course — Notice—Gifts.
    Where a bank paid full value for a certificate of deposit, notice that the indorsee received it as a gift would not make the bank any the less a bona fide holder in due course.
    9. Gifts — Certificate of Deposit — Delivery—Owner.
    One who acquires a certificate of deposit by a valid complete gift, with proper delivery, has a perfect title to it.
    10. Bills and Notes — Holder in Due Course — Full Face Value.
    Where a bank, in accepting a certificate of deposit, issued to the indorsee its own certificate of deposit, becoming absolutely liable thereon on its bona fide sale to another bank, it cannot be contended that it was not a purchaser for full face value.
    Appeal from Kent; Brown, J.
    Submitted October 10, 1918.
    (Docket No. 34.)
    Decided December 27, 1918.
    Bill by Marl S. White against Frederick N. Wad-hams and the Hastings City Bank for an accounting. The State Savings Bank of Ann Arbor intervened, claiming to be a bona fide holder of a negotiable instrument. From a decree for plaintiff, intervening defendant appeals.
    Reversed, and decree entered for intervener.

      Swarthout & Master, for plaintiff.

      Arthur Brown (E. R. Sunderland, of counsel), for appellant.
   Kuhn, J.

Plaintiff filed his bill to secure an accounting of a farm partnership existing during the summer of 1916 between himself and the defendant Frederick N. Wadhams. The plaintiff prevailed, and the decree provides that the defendant Wadhams owes the plaintiff $492.24 and interest, and, in addition, plaintiff was given an attorney fee of $75, payable out of the partnership funds. The findings and the decree both state that a certificate of deposit was issued to the order of the defendant Wadhams, December 18, 1916, by the defendant Hastings City Bank for $950 and that this fund was the sole avails of the partnership after the debts had been paid. On December 23, 1916, an injunction was issued and served on the Hastings City Bank and on the defendant Wad-hams, inhibiting the latter from transferring the certificate or drawing the money and the bank from paying out the money. This injunction has been respected by the Hastings City Bank, but Wadhams transferred the certificate to his sister, Ida E. Wadhams, who, on December 3, 1917, presented it for payment at the State Savings Bank of Ann Arbor, then known as the State and German American Savings Bank, which bank cashed it, paying therefor its full face value, partly in credit on a liberty bond, partly in cash, and partly in a certificate of .deposit for $700, issued by the State Savings Bank, payable to the order of Clara E. Straith, the sister of Ida E. Wadhams. On December 15, 1917, while the hearing was in progress, the Ann Arbor bank filed its petition asking that it be allowed to intervene, on the ground that it was a good-faith purchaser of the $950 certificate, and an order was made permitting it to intervene, and it filed its answer. The $700 certificate issued by the State Savings Bank was presented on December 7, 1917, to the First National Bank of Ypsilanti, which bank paid it in currency and then mailed it to the Ann Arbor bank for credit to its account at the Ann Arbor bank. According to the testimony of the cashier of the Ann Arbor bank, the certificate was received by the Ann Arbor bank on the morning of December 8th and was credited up to the account of the Ypsilanti bank, and about an hour after this was done, Walz, the cashier, was called up by the assistant cashier of the Peninsular State Bank of Detroit, which bank is the correspondent of the Ann Arbor bank, and through which bank the Ann Arbor bank had sought to clear the Hastings bank certificate, and was informed that the $950 certificate had been protested by the Hastings bank on December 5th. It appears that the Ypsilanti bank, however, did not check out the money, that is, the $700, until after Mr. Walz had received this information from the Detroit bank. The certificate of deposit in question reads as follows:

“Hastings City Bank
“Hastings, Mich., Dec. 18, 1916.
“F. N. Wadhams has deposited in this bank nine hundred fifty dollars, $950.00, payable to the order of self, upon the return of this certificate, properly endorsed, with interest at 2 per cent, per annum if left six months.
“Subject to the rules of the savings department.
“No interest for fractional part of one month.
“Interést to cease one year.from date, unless renewed.
“A. A. Anderson,
“Cashier,
“C.”

It will be noticed that it was presented for payment at the Ann Arbor bank on December 3, 1917, more than 11% months after its date. The decree provides that the Ann Arbor bank was not a good-faith purchaser and did not get the Hastings certificate in due course, not having taken it within a reasonably short time of its issue, and directs the Hastings bank to pay to the plaintiff the amount of the decree and costs. It further directs the bank to turn over the balance of the $950 certificate to the court, same to be subject to the further order of the court after the rights of the parties in interest shall have been determined. The intervening defendant, the State Savings Bank of Ann Arbor, appeals.

As stated by counsel for appellant in their brief, there are two questions presented on this appeal:

(1) Was the certificate of deposit for $950 a nego tiable instrument?

(2) Was the State Savings Bank a holder in due course?

1. The negotiable instruments law provides that an instrument is negotiable which conforms to the following requirements (2 Comp. Laws 1915, § 6042) :

“First. It must be in writing and signed by the maker or drawer;
“Second. It must contain an unconditional promise or order to pay a certain sum of money;
“Third. It must be payable on demand or at a fixed or determinable future time;
“Fourth. It must be payable to order or to bearer; and
“Fifth. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.”

The first requisite is present, and no question is raised in regard to it, and likewise the fourth and fifth requisites are not involved or questioned in this appeal. The second requirement, however, is questioned by the plaintiff, who claims that the certificate of deposit is conditional in three respects, viz., that it was payable out of a particular fund; that it is conditional, because subject to the rules of the savings department; and that the amount is uncertain, because of the provision as to interest.

With reference to the claim that the certificate of deposit was payable out of a particular fund and therefore conditional, it is argued that because the certificate of deposit is carried in the savings department of the bank and subject to its rules, it is merely a charge on a particular fund, and therefore conditional. We are not impressed that there is any merit to this contention. While it is true that under our law the banks divide their business into savings and commercial departments, nevertheless the certificate of deposit was issued by the bank and thus became the obligation of the bank and not of its savings department. The negotiable instruments law provides (2 Comp. Laws 1915, § 6044) :

“An unqualified order or promise to pay is unconditional within the meaning of this act, though coupled with:
“First. An indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount.” * * *

The rule applicable to this situation is thus stated in 8 Corpus Juris, p. 123:

" “The true test in every case is, Does the instrument carry the general personal credit of the drawer or the maker, or only the credit of a particular fund?”

In the situation here presented, we are clearly of the opinion that the certificate of deposit, as we have said, carried the credit of the Hastings City Bank, and not merely that of its savings department.

Regarding the claim that the certificate of deposit is nonnegotiable, as it lacks the certainty required of commercial paper because it appears on its face that it is “subject to the rules of the savings department,” we think it is sufficient to say that the rules and regulations of the savings department are provided for by the banking law and act as a protection to the bank against sudden demands to' be met out of its rather unliquid assets. In our opinion, this protection given by the banking law to the bank should not be construed to operate to put it out of the power of a savings bank to issue negotiable certificates from its savings department; in which department, under the banking practice, they are generally carried.

The certificate of deposit provides for interest at 2 per cent., if left for six months, and further provides that interest is to cease one year after date, unless renewed. We do not think there is anything uncertain about this, as it can readily and easily be ascertained, on examination of the certificate itself, the amount due thereon at any time. Cate v. Patterson, 25 Mich. 191.

Is the certificate payable at an uncertain time? The rule of the bank .with reference to time of payment was as follows:

“Thirty days’ notice must, in all cases, be given in writing to the cashier at his banking office, during banking hours, before a depositor will be entitled to withdraw his deposit or any part thereof.” * * *

There does not seem to be anything uncertain about this rule. By virtue of its terms the certificate becomes due 30. days after notice in writing given to the cashier. The time is clearly therein fixed, which must inevitably happen, and therefore it complies with the rule laid down in Wilson v. Campbell, 110 Mich. 580 (35 L. R. A. 544), where it is said, as to the certainty of time required:

“I think it is sufficient if a time be fixed which must inevitably happen.”

We are of the opinion that the certificate of deposit herein under consideration meets all the requirements of the statute and must therefore be said to be a negotiable instrument.

2. The negotiable instruments law provides (2 Comp. Laws 1915, § 6093) as follows:

“A holder in due course is a holder who has taken the instrument under the following conditions:
“First. That it is complete and regular upon its face;
“Second. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“Third. That he took it in good faith and for value;
“Fourth. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

It is urged that the certificate is not complete and regular upon its face, because it carries 2% interest, when it appeared usual and customary to pay 3%. We see no merit in this contention, as the parties thereto could agree upon any interest which is not contrary to law. In an adjudicated case, Tripp v. Curtenius, 36 Mich. 494 (24 Am. Rep. 610), the certificate carried no interest at all. In Beardsley v. Webber, 104 Mich. 88, the certificate carried 6% interest.

This court has held that a certificate of deposit is a promissory note payable on demand. Cate v. Patterson, supra; Tripp v. Curtenius, supra; Birch v. Fisher, 51 Mich. 36; Beardsley v. Webber, supra. This certificate was payable on demand, or 30 days thereafter, according to the rules of the bank. Section 73 of the negotiable instruments law (2 Comp. Laws 1915, § 6112) provides:

* * * “Where it is payable on demand, presentment must be made within a reasonable time after its issue.” * * *

Counsel for the plaintiff strenuously urge that the certificate was not presented within a reasonable time, that is, holding it for eleven months should be construed by the court as an unreasonable length of time, as a matter of law, and many cases with reference to promissory notes involving this question are called to our attention. In determining what is a reasonable time, we can again refer to the negotiable instruments law, section 2 (2 Comp. Laws 1915, § 6041), where it is said:

* * * “In determining what is a ‘reasonable time’ or an ‘unreasonable time’, regard is to be had to the nature of the instrument, the usage of trade or business, if any, with respect to such instruments, and the facts of the particular case.” * * *

We are of the opinion that a study of the instrument itself before us for consideration shows that a reasonable time within which it should be presented is one year after date, at which time the interest stops running. It provides that it shall carry 2% interest, if left six months, and that interest shall cease one year from date, so that if the payee is to enjoy the interest provision, he must let the certificate run not less than six months and not more than one year. The limitation of the interest period operates as a direct inducement to the holder of the certificate to present the certificate at the end of a year, as he is penalized if he does not present it at that time. The certificate was presented within the year, on December 5, 1917, or 13 days less than the year for which it was to run as an interest-bearing security. We do not think that it was the intention of the parties that the certificate of deposit was to be immediately presented for payment, and the rule which seems applicable is thus stated by Daniel on Negotiable Instruments (6th Ed.), § 610, quoting Byles on Bills:

“Sometimes the note is expressly made payable with interest, which clearly indicates the intention of the parties to be that though the holder may demand payment immediately, yet he is not bound to do so.”

See Kirkwood v. National Bank, 40 Neb. 484 (58 N. W. 1016, 24 L. R. A. 444, 42 Am. St. Rep. 683); Pierce v. National Bank, 215 Mass. 18 (101 N. E. 1060, 46 L. R. A. [N. S.] 693); Murray v. National Bank, 234 Fed. 481 (148 C. C. A. 247). These cases are sufficient to show that the courts have generally recognized a different rule applicable to these certificates of deposit which provide for an interest rate from those that do not and thus are payable on demand. It will be noticed, on an examination of the case of Tripp v. Curtenius, supra, upon which counsel for the plaintiff rely in their argument as to what, was a reasonable time for presentation of the certificate, that there was no interest provided in the certificate there under discussion.

Did the State Savings Bank take this certificate in good faith and for value? It is urged that the Ann Arbor bank showed a disregard of plaintiff’s right and it is accused of bad faith, but we are not impressed that there is much force to this argument. The Ann Arbor bank knew nothing about the plaintiff, who was not a party to the certificate and lived a considerable distance away. It dealt with Ida E. Wad-hams as-a stranger who had a certificate of deposit to sell. It believed that the certificate was genuine, which was true, and that the woman who indorsed it was the real indorsee and had a right to indorse it, which was true, and it had nothing to gain by taking the certificate, for it paid the full value for it. Some claim is made that the Ann Arbor bank knew from the statements made by Ida Wadhams at the time she negotiated the certificate, that she received it by gift. While a reading of the testimony Upon this point does not satisfactorily show that she gave the officer of the bank information which would lead him to believe that it was a gift, and the statement relied upon might well be construed to mean that she simply received the certificate from her brother, not necessarily meaning that she received it as a gift, nevertheless, even if it should be construed to mean a gift, we are of the opinion that it would not make the bank any less a bona fide holder in due course. One who acquires a certificate by a valid complete gift, with proper delivery, has a perfect title to it.

There is also a contention made that the Ann Arbor bank did not pay full value for the certificate, because it gave Miss Wadhams its own certificate of deposit for $700, instead of cash. This $700 certificate, however, was purchased by the Ypsilanti bank, and that bank thereupon became a bona fide holder for value and the Ann Arbor bank became absolutely liable to it upon the certificate, and it is not material that the Ann Arbor bank did not actually pay out money on the $700 certificate until after it knew of the dishonor of the $950 certificate of the Hastings bank, for it was clearly bound to pay it. Upon this record it appears that the Ann Arbor bank became legally abound to the Ypsilanti bank on the $700 certificate before it knew of any claim by plaintiff on the $950 certificate issued by the Hastings bank, and in our opinion it was therefore a purchaser of the certificate for its full face value. We are of the opinion that the learned circuit judge should have held that the certificate of deposit was a negotiable instrument and that the State Savings Bank of Ann Arbor was a holder thereof in due course. It follows, therefore, that the decree should have provided that the Hastings City Bank pay to the State Savings Bank the amount due thereon at the time it was presented to the Hastings bank for payment.

The decree will therefore be reversed and one here entered in accordance with this opinion, with costs in favor of the appealing intervening defendant against the plaintiff and appellee.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    OMMEN v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Negligence — Infants — Imputed Negligence — Contributory Negligence.
    In an action under the survival act for personal injuries resulting in the death of a minor 18 years of age, who was a passenger in an automobile struck by defendant’s train, the negligence, if any, of the driver of the car, is not to be imputed to decedent.
    2. Same — Infants—Contributory Negligence.
    Where decedent had arrived at the age of discretion, considering his position in the car, his age, and the situation in which he found himself, whether he exercised that care and prudence which a reasonably prudent person should, under the circumstances, held, a question for the jury.
    3. Railroads — Crossing Accident — Negligence—Speed of Train —Question for Jury.
    In an action for the death of plaintiff’s decedent, caused by a collision at a highway crossing between an automobile and defendant’s train, where the crossing was within the village limits, was virtually in a railroad yard, there was a freight train engaged in switching, there were four sets of tracks, the depot was only 1,300 feet away, and it was upon one of the main traveled streets of the village, the speed of the train, upon the question of defendant’s negligence, held, a question for the jury, although there was no village ordinance regulating the speed of trains.
    4. Appeal and Error — Stipulations.
    In view of stipulation by counsel for defendant that an inadvertent reference by the court in his charge to a statute, under which plaintiff had claimed no rights, would not be taken advantage of, on appeal, the question will not be considered by this court.
    5. New Trial — Weight of Evidence.
    Verdict for plaintiff held, not so contrary to the great weight of the evidence as to warrant setting it aside.
    See notes in 8 L. R. A. (N. S.) 597; L. R. A. 1915A, 761.
    Error to Kalamazoo; Weimer, J.
    Submitted October 18, 1918.
    (Docket No. 87.)
    Decided December 27, 1918.
    Case by Jill Ommen, administrator of the estate of Ludwig Ommen, deceased, against the Grand Trunk Western Railway Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer (William K. Williams, of counsel), for appellant.

      Mason & Sharpe, for appellee.
   Kuhn, J.

The families of John Ommen and of his neighbor, George Suntken, who lived on their farms near Colfax, in Illinois, left their homes on the morning of September 8,1917, in two automobiles, an Overland and a Ford, for the purpose of motoring to Sun-field, Michigan, to pay a visit to the family of Jill Ommen, a brother of John Ommen. The course of their travels led them through the village of School-craft, in Kalamazoo county, in this State, which village they approached from the south along Grand or Main street, so called, shortly before 4 o’clock in the afternoon of Sunday, September 9th. Grand street in Schoolcraft, which is a village of 800 inhabitants, is crossed by the tracks of the defendant railway company within the corporate limits, but at the very southerly portion thereof. Two main tracks run in a southwesterly and northeasterly direction, the southerly track carrying eastbound traffic and the next northerly track, westbound. These main tracks are crossed by a single main track of what was formerly a division of the Lake Shore & Michigan Southern Railway, now the New York Central Lines, and the intersection is at the southeasterly limit of the village, the crossing being at right angles. Situated in the northeast angle formed by this intersection is the signal or interlocking tower, from which are operated the derailing and signal devices with reference to safety at this railroad crossing or diamond. Defendant’s depot and freight house combined is situated just north of the westbound main line and just west of the right of way of the Lake Shore. Four tracks cross Grand street, the two southerly being the main line above referred, to, the third a “Y” used as an interchange track between the defendant company and the Lake Shore railway, and the northerly track is a stub switch which serves an elevator and a coal shed, which are located to the north of the tracks. South of the crossing, the land is used for farming purposes, with the exception of two or three lots south of the tracks and east of the crossing, upon which there are dwellings. There are houses some distance north of the crossing. As the automobiles approached the Grand street crossing, and when some 50 or 80 rods south thereof, the occupants observed a freight train moving slowly over the crossing in a westerly direction. As the machines came to the crossing, it was blocked by this freight switching on the so-called interchange track. .The Overland car was driven by John Ommen, who was sitting on the left side of the forward seat. John Suntken sat at his right. Theda Ommen sat at the right of the rear seat, and next to her was Marie Suntken, then Edward Suntken, and on the left side of the rear seat, Ludwig Ommen. The remainder of their party was in the Ford car, which was following them. The Overland car stopped some 12 to 20 feet south of the eastbound main track, and the motor was shut off. Witnesses for the plaintiff, who were members of the party, testified that in their judgment the stop at the crossing was four or five minutes, and the crossing was then cut, and thereupon John Ommen started the engine of his car, which was equipped with a self-starter, and attempted to pass over the crossing and was struck by the pilot of defendant’s eastbound passenger train No. 8 just as the front part of the hood of the machine reached the southerly rail. The driver was instantly killed, Theda Ommen, the mother, was injured, and Ludwig so severely injured that he died the same evening at 9 o’clock. This action is brought by the administrator of the estate of Ludwig Ommen, deceased, seeking to recover damages under the survival act, so-called, for the personal injuries sustained by the decedent in the collision above detailed. The issues involved were submitted to the jury and resulted in a verdict for the plaintiff in the sum of $6,504.70.

The errors relied upon by counsel for defendant are thus stated in their brief:

“1. Refusal of the trial judge to charge the jury that decedent was guilty of contributory negligence.
“2. Refusal to charge the jury that there was no negligence in the speed of No. 8 as it approached Grand street.
“3. Refusal of the trial judge to give defendant’s 4th and 5th requests to charge, and in instructing the jury that it was for them to say whether or not the bell and whistle were sounded in a reasonably prudent manner, if they should find that it was sounded not less than 40 rods from the crossing.
“4. In refusing to charge the jury that defendant was not guilty of any negligence and in refusing to grant a new trial on the ground that the verdict was against the great weight of the evidence.”

Decedent at the time of the accident was a minor just past 18 years of age, so that the negligence, if any, of John Ommen, the driver of the car, is not under the law of this State to be imputed to the decedent. Hampel v. Railroad Co., 138 Mich. 1 (110 Am. St. Rep. 275); Donlin v. Railway, 198 Mich. 327. But the court submitted to the jury, and we think properly so, the question whether or not the decedent, Ludwig Ominen, was guilty of contributory negligence himself, having arrived at the age of discretion; that is, whether or not, under all the circumstances of the case, considering his position in the car, his age,’ and the situation in which he found himself, he exercised that care and prudence which a reasonably prudent person under the circumstances should have exercised, the law placing upon him the duty to exercise ordinary care to avoid injury under the circumstances. The trial judge charged the jury as follows:

“Every person is supposed to use his senses, both of sight and hearing, in self protection whenever there may be reasonable cause to apprehend danger. He must do all that an ordinarily prudent man ought to do or might be expected to do in any given circumstances. Thus, a railroad track is, in itself, a warning of danger, and every person should stop, look and listen before attempting to cross. Failure to do this is held to be negligence in and of itself, as a matter of law. So strongly has this rule been enforced, that even where there is a view of the track only for a short distance, and the approach of the train could have been seen by stopping, looking, and listening before actually reaching the track, the traveler in the highway has been held guilty of contributory negligence, as a matter of law, when injured in such a case, unless he is misled by flagman, trainmen, or trains, or otherwise. As I have just said to you, a person approaching a railroad track, a railroad crossing, must stop, look, and listen,, and must use his senses of sight and hearing. If, however, his vision, his view, is obscured by smoke or steam, or both, after stopping and after endeavoring to use his sense of sight, and being unable to do so, he has a right, I say, to rely upon his sense of hearing, but his duty to use his sense of hearing is greater than if he had the full use 'of his sense of sight. In other words, a man is not absolutely barred from crossing a railroad track because he cannot see, because his vision may be obscured by steam or smoke or both, but, if his vision is obscured so he is unable to see, then his duty to use his other senses is greater, he must exercise more care and more caution in the use of the sense, the use of which is available to him.”

It seems to be undisputed that in the position that the car occupied when it was stopped and where it remained for four or five minutes, the view of the occupants of the car to the west and along the tracks of the defendant railway was unobstructed, under ordinary conditions, for a considerable distance and that they could have easily seen an approaching train at a sufficient distance to have readily avoided any accident. It is, however, plaintiff’s claim that on the day in question, during all of the four or five minutes that the cars were standing waiting for the freight train to open the crossing, the view of the occupants of the car was continually obstructed by smoke from the freight engine and from a fire in a dump heap three rods west and a rod north of the crossing; that the atmosphere was dreary and foggy and that the smoke was carried by the wind in a southwesterly direction down and across the tracks. It is strenuously urged .by counsel for the appellant that all this testimony with reference to the smoke is simply an afterthought, and that in view of the fact that at the inquest which was held the morning after the accident, where no mention was made by any of the witnesses called as to smoke obscuring their vision, it was strange that the matter was first called out upon the trial of this case. Eight witnesses were sworn sustaining the claim of the plaintiff to the effect that the smoke obstruction was there and continued for the period of four or five minutes at least, and among these witnesses were Emil Decker and Charles Decker, both of whom, as far as the record discloses, are disinterested witnesses, being strangers to the deceased and his family. They were walking down the track approaching the crossing from the west and were some distance west of the crossing when the passenger train passed them. They both testified to the presence of the smudge and the smoke coming from the freight engine and from the bonfire, which created a smudge smoke, and that the smoke came down and spread out close to the ground. It was the further contention of the plaintiff that after the freight train had opened the crossing, a brakeman on the cars made a motion toward them, as if inviting them to cross. The credibility of all of these witnesses and the value to be placed upon their testimony was for the jury to determine. In view of all these circumstances and the situation in which the occupants of the car found themselves at the time of the accident, we cannot say that, as a matter of law, plaintiff’s decedent can be held to be guilty of contributory negligence, but we think it was clearly a question for the jury to determine. We think that the charge of the court to the jury submitted this question with instructions as favorable to the defendant as it was entitled to. See McDuffie v. Railway Co., 98 Mich. 356; Wilbur v. Railroad Co., 145 Mich. 350; Welch v. Railroad Co., 147 Mich. 220; Amanta v. Railroad Co., 177 Mich. 280.

2. The learned trial judge charged, with reference to the speed of the train, as follows:

“It is the theory and claim of the defendant, that the defendant’s employees upon the passenger train were not guilty of any negligence; that they operated the train at a proper and reasonable speed under the particular circumstances; that the commerce of the country demands rapid transit, and that the speed of the passenger train was such as careful and prudent men, engaged in railroading, would maintain under just such circumstances. Right here I want to say to you, there does not seem to be any question about the rule with reference to speed in the country, upon purely country crossings. There is practically no limit to it, and the courts recognize it. It is not negligence for a railroad to operate through the open country, over ordinary country crossings at. a rate of forty, fifty, or sixty miles an hour. All train schedules are planned and framed upon practically that basis, and the business and commerce of the country demands that sort of speed, the public recognizes it, and the courts hold in view of that the public must also recognize, when they approach a railroad crossing in the country at any point, that they may expect and should expect, at any time, a passenger train, or a freight, for that matter, to-be coming along at the rate of forty or fifty or sixty miles an hour, and they are all charged with notice of that.
“The same rule I do not understand to obtain in cities or villages or congested communities. When trains leave the open country and approach settled districts, then it becomes a question of what care and caution ordinarily prudent men would exercise under such circumstances. * * *
“Now it is for , you to say what the character of this particular crossing was; if it was, to all intents and purposes an open country crossing, then you would not be at liberty to consider the question of the high rate of speed as an element of negligence. It is for you to say what its character was, what the surroundings were, what the conditions presented there were on the occasion in question; how much of a settlement there was there; how much traffic there was there; what.do the facts show as to what the conditions were? You have heard the testimony; you must say what it is.
“Even at that crossing, or at any crossing, it would not follow that a speed of thirty-five or forty, or forty-five miles per hour would, in and of itself, be negligence, or be negligent. It would not, as a matter of law, standing by itself, constitute negligence. It is a question to be determined in view of the facts and circumstances surrounding it, and the conditions presented. It must be found in the light of those surrounding circumstances and conditions, and you must say whether or not, in the light of those circumstances and conditions, this train was operated not only with reference to speed, but with reference to signals, in a prudent manner, and in a manner that ordinarily prudent men would have operated it under the same circumstances, or in an imprudént manner, or a careless, reckless manner. * * *
“A high rate of speed is not, in itself, negligence. The question for your determination is whether or not those in charge of the passenger train on approaching the crossing, operated the train with reasonable and ordinary care. In determining this, you are at liberty to consider all the testimony as to the speed of the train and warning by bell and whistle, or lack thereof, and in fact, all other facts and circumstances that have any bearing upon it.
“In determining what would amount to reasonable and ordinary care in the operation of a passenger train on approaching a crossing, you may and should consider the conditions as they existed at the crossing so far as they were apparent to those operating the engine of the passenger train, or in so far as those conditions should have been apparent to those operating that engine had they been in the exercise of reasonable and ordinary care.”

It is the contention of counsel for the appellant that the submission of the question of speed was error, because it is their claim that the crossing in question was, in effect, nothing more than an ordinary country railway crossing and that there were no special circumstances and conditions existing at this crossing that would bring it from without the rule that upon an ordinary country crossing there is no legal limitation upon the rate of speed at which a train might be operated. With this contention we cannot agree. We think that the situation here presented was vastly different from those which surround the ordinary open country crossing. The crossing was virtually in a railroad yard. There was a freight train engaged in switching operations. There were four sets of tracks across the street at the point of crossing. The depot was about 1,800 feet east and was in plain sight of the crossing, and the crossing was upon one of the main traveled streets of the village of Schoolcraft, about 20 rods south of the business section of the village and within the village limits. It is true that there was no village ordinance with reference to the speed of trains operating across this crossing, but we do believe that the situation presented brings it within the rule which says that where there are special circumstances and conditions which should, and ordinarily would, induce an ordinarily prudent person to exercise greater caution, the question as to whether or not the train was operated with ordinary care and prudence with reference to speed is one for the jury. See Guggenheim v. Railway Co., 66 Mich. 150; Thayer v. Railroad Co., 93 Mich. 150; Haines v. Railway Co., 129 Mich. 475; Gorton v. Harmon, 152 Mich. 473 (15 Ann. Cas. 461); Folkmire v. Railways Co., 157 Mich. 159 (17 Ann. Cas. 979); Littlewood v. Railway, 189 Mich. 388; Halloran v. Railway Co., 197 Mich. 308; Coston v. Railroad Co., 201 Mich. 232; Block v. Railroad Co., 202 Mich. 341. We think that the charge as given by the court was justified under the circumstances of the case.

3. Section 8302, 2 Comp. Laws 1915, reads as follows:

“A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and said whistle shall be twice sharply sounded at least forty rods before the crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed, under a penalty of one hundred dollars for every neglect: Provided, That at street crossings within the limits of incorporated cities or villages, the sounding of the whistle may be omitted, unless required by the common council or board of trustees of such city or village; and the company shall also be liable for all damages which shall be sustained by any person by reason of such neglect.”

These statutory requirements were first brought into the case by defendant’s requests Nos. 4 and 5, and the court read a portion of the statute to the jury and explained its effect. In the certificate of the judge annexed to the bill of exceptions is found the following:

“At the close of. the charge and immediately after the jury had retired, counsel for the plaintiff called to the attention of the court, in the presence of counsel for the defendant, the fact that the plaintiff had at no time, throughout the trial or in argument insisted upon any rights under the statute to which the court referred in the charge and the further fact that this statute was first brought into the case by reference thereto made by counsel for the defendant in argument to the jury and in their request to charge. To this, counsel for the defendant agreed. It was then in open court stated by Mr. Geer, representing the defendant, that no advantage would be taken by the defendant, on appeal, of such reference to the statute as was made by the court in the charge to the jury, thereby avoiding as it appeared to the court, the necessity of recalling the jury for the purpose of further instructions in regard to the statute.”

It was the contention of the plaintiff that because of the proviso in the statute, and it being conceded that the accident occurred within the limits of an incorporated village, the statute was inapplicable insofar as the failure to blow the whistle was concerned. There was testimony from witnesses that the bell was not ringing when it went over the crossing. In view of the concession made by counsel, according to the certificate of the judge, and in view of the positive testimony of witnesses that there was no bell ringing, we think that the question of the negligence of the defendant was properly submitted to the jury, and the inadvertent reference of the court in his charge to the statute should not at this time be taken advantage of.

4. A careful reading of this record has satisfied us that there was abundant evidence to warrant the submission of the question of the defendant’s negligence to the jury and that the verdict was not so contrary to the great weight of the evidence as to warrant our holding that the court erred in refusing to set the verdict aside on that ground.

We are of the opinion that the questions involved presented issues for the jury which were submitted to them with proper instructions as to the law applicable thereto.

Finding no error, we’ are constrained to affirm the judgment.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


author: Kuhn, J. Fellows, J.

text:
    TIPSON v. JEANNOT.
    1. Courts — Probate Courts — Jurisdiction.
    A probate court, having assumed jurisdiction of the estate of a deceased person, has exclusive jurisdiction with reference to matters concerning that estate which it can properly hear and determine.
    2. Same.
    The probate court, upon the final hearing as to the distribution of the estate of deceased, can determine the rights of the parties under a postnuptial agreement between deceased and her husband settling their property rights pending divorce proceedings.
    3. Same.
    In a suit for the specific performance of a postnuptial contract, between deceased and her husband, settling property rights, where no question is raised as to any fraud, accident, .or mistake in its execution, the chancery court should not exercise jurisdiction after the probate court has assumed jurisdiction of the subject-matter.
    Fellows, J., dissenting.

      Appeal from Kent; Perkins, J.
    Submitted October 9, 1918.
    (Docket No. 21.)
    Decided December 27, 1918.
    Bill by Agnes E. Tipson against Joseph O. Jeannot for the specific performance of a postnuptial agreement. From a decree for plaintiff, defendant appeals.
    Reversed, and bill dismissed.

      Hatch, McAllister & Raymond, for plaintiff.

      Charles G. Turner, for defendant.
   Kuhn, J.

The plaintiff brings this suit for herself and in behalf of the other surviving heirs of Florence B. Jeannot, who died at Muskegon, Michigan, February 2, 1918. Before her death she had parted from her husband, the defendant, Joseph O. Jeannot, and a bill for absolute divorce was pending in the circuit court for Kent county. In October, 1913, the parties entered into the following postnuptial agreement:

“This agreement, made and entered into by and between Florence Jeannot, of Grand Rapids, Michigan, party of the first part, and Joseph O. Jeannot, of Grand Rapids, Michigan, party of the second part, witnesseth:
“Whereas, the said parties to this agreement are husband and wife and unhappy differences have arisen between them which they have been unable to harmonize and which have resulted in said Florence Jeannot filing a bill of complaint, in the circuit court for the county of Kent, in chancery, against the said Joseph O. Jeannot as defendant, praying for an order requiring the said Joseph O. Jeannot to support her, the said Florence B. Jeannot, which said suit is now pending in said court, and divers proceedings have been had and taken therein and various orders have been made in relation thereto; and,
“Whereas, the said Florence Jeannot is the owner of certain real estate situate in the city of Muskegon, Michigan, and the said defendant, Joseph O. Jeannot, is the owner of certain personal property and a business situate at Grand Rapids, Michigan:
“Whereas, certain negotiations have been entered into by and between the counsel for the respective parties in behalf of said parties for a settlement and adjustment of all their property rights, which negotiations have finally culminated in the making of this agreement between said parties in relation thereto.
“Now, therefore, for the purpose of settling all of the property rights between the said parties hereto, it is hereby agreed to by and between the said parties and the said Joseph O. Jeannot, party of the second part, does hereby agree to pay to said Florence Jean-not, party of the first part, the sum of eleven hundred and fifty dollars ($1,150), in the following manner, to-wit, fifty dollars ($50) on the 15th day of November, 1913, and the sum of thirty dollars ($30) or more, on the 15th day of each and every month thereafter until the full sum of eleven hundred and fifty dollars ($1,-150) is paid, and the said Florence Jeannot does hereby agree to accept the foregoing provision so made for her of eleven hundred and fifty dollars ($1,150) in full settlement of any and all rights that she may have upon the said Joseph O. Jeannot, for support and maintenance, and does hereby release him from all obligations of her support and maintenance hereafter, and in full settlement of all moneys loaned and due from said second party to first party, and does hereby accept the same in full settlement of any and all alimony, solicitor’s fees and other allowances growing out of the suit now pending between said parties, and does hereby release any and all dower rights which she now has, or may hereafter have in any property of the said Joseph O. Jeannot, and each of said parties do hereby release any claims which they have, or may hereafter have, in or to the property of the other, and in case either of said parties hereto should at any time make application for divorce from the other the foregoing provisions shall be in lieu of any and all permanent and temporary alimony or expenses that may be incurred therein, it being the intention by this agreement to settle all property rights between said parties and to make full provision for the support and maintenance of first party and to release said second party from all obligations in relation thereto.
“In witness whereof, the parties hereto have hereunto set their hands and seals this 15th day of October, A. D. 1918.
“Fioeénce Jeannot (L. S.)
“Joseph O. Jeannot. (L. S.)”

No will was found, and it is assumed that the deceased died intestate, leaving certain real estate and other property, located in the city of Muskegon, of the value of $6,000 and upwards. Soon after her death the defendant, Joseph O. Jeannot, was appointed special administrator of her estate, and having filed a bond, letters of administration were duly granted to him by the probate court for the county of Muskegon. Thereafter a bill was filed by the plaintiff in the circuit court for Kent county, in chancery, alleging, substantially, that the defendant, as surviving husband, is endeavoring to get control of the deceased' wife’s property through proceedings in the probate court for the county of Muskegon, and asking the court to decree that the above agreement between the parties was in full force and effect and binding upon the defendant. On the filing of the bill a temporary injunction was issued, restraining the defendant—

“from attempting to claim any right or interest in and to the property referred to in a certain agree-, ment dated October 15, 1913, made between Florence Jeannot and Joseph O. Jeannot, which constitutes the estate of Florence B. Jeannot, deceased.”

A motion to dissolve this injunction and dismiss the bill of complaint was made by the defendant on. the ground that there is no equity in the bill of complaint; that the plaintiffs have a full, adequate and complete remedy at law; that the circuit court for the county of Kent, in chancery, has no jurisdiction; and that no bond was filed to stay the proceedings at law, as provided by statute, before the injunction was issued. The only ground argued by the defendant’s counsel in the court below and the only question here presented is that the circuit court, in chancery, had no jurisdiction to entertain the case, on the theory that the questions involved are questions that, under the statute, the probate court of Muskegon county had full authority and power to adjudicate, and that that court, having acquired jurisdiction, can retain it until the rights of the parties are disposed of. With this contention the circuit judge did not agree, it being his opinion that a court of equity has exclusive jurisdiction to enforce specific performance of a postnuptial contract, and that this proceeding in no way interfered with the right or authority of the probate court of Muskegon county to proceed with the administration of deceased’s estate.

This is not a question of whether the circuit court, in chancery, has the power to construe a postnuptial agreement, which, under the authorities, it clearly has, but rather presents the question whether or not, when the validity of the agreement is. not questioned, the probate court has a right to consider the agreement in making an assignment, and also whether, in order to sustain the plaintiffs claims with reference thereto, it was necessary to bring the matter into the chancery court. The probate court of Muskegon county, having assumed jurisdiction of the subject-matter, viz., the estate of Florence B. Jeannot, deceased, has exclusive jurisdiction with reference to matters concerning that estate which it can properly hear and determine. Brooks v. Hargrave, 179 Mich. 136. The question then is, Can the probate court determine the rights of the parties to this agreement? In my opinion, it can clearly do so upon the final hearing as to the distribution of the estate. The plaintiff and other heirs of the deceased can at that time present this agreement, and the probate court can then determine whether or not it should be a bar to the defendant’s claim of any right to the estate of the deceased. In the recent case of In re Butts’ Estate, 173 Mich. 504, Chief Justice Steere, in reviewing the question of the jurisdiction of the probate court, said the following:

“In view of the peculiarities and restrictions necessarily appertaining to the probate courts, the legislature, in the same section by which it conferred upon said court jurisdiction of all matters relating to settlement of estates, also provided:
“ ‘That the jurisdiction hereby conferred shall not be construed to deprive the circuit court in chancery, in the proper county, of concurrent jurisdiction, as originally exercised over the same matters.’ Section 651, 1 Comp. Laws (5 How Stat. [2d Ed.] § 12099).
_ “Under our probate system, this section, in its entirety^ has been construed to give the chancery court jurisdiction only where an adequate remedy does not exist in the probate court, and to declare that in such contingency the chancery court does have jurisdiction to exercise its inherent equity powers, amongst which, peculiarly within its province, are fraud, accident and mistake. People v. Wayne Circuit Judge, 11 Mich. 393 (83 Am. Dec. 754); Holbrook v. Campau, 22 Mich. 288; Smith v. Boyd, 127 Mich. 417 (86 N. W. 953); Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977).”

No question is here raised by the plaintiff as to any fraud, accident or mistake in the execution of the instrument, but on the contrary she is seeking to sustain it, and therefore it is not one of those situations peculiarly within the province of equity, so that a court of chancery is necessarily called upon to exercise its inherent equity powers. The rule seems to be settled that the chancery court should not exercise jurisdiction, when an adequate remedy exists in the probate court, after such probate court has assumed jurisdiction to act with reference to the subject-matter.

We have also had occasion to review the power of the probate court in the recent case of Brooks v. Hargrave, supra, where it was said:

“There can be no question that the probate court assumed jurisdiction of the subject-matter in controversy when the will was admitted to probate and the defendant qualified as executor. It does not lose jurisdiction until the estate is finally closed. Having assumed jurisdiction, it has exclusive jurisdiction and no other court, save an appellate one which subsequently assumes to act in the matter, should proceed further when the priority of jurisdiction is called to its attention. E. T. Barnum Wire & Iron Works v. Speed, 59 Mich. 272 (26 N. W. 802, 805).”

A somewhat similar situation was presented to the court in Knapp v. Knapp, 95 Mich. 474, where a case was brought by an heir to enforce the provisions of a separation agreement and to enjoin the widow from claiming a distributive share in her husband’s personal property. In that case Chief Justice Hooker, speaking for the court, said:

“Without saying that equity cannot entertain such a.case as this, we feel that there is little excuse for bringing it here. Our law (3 How. Stat. § 5964) gives to probate courts the authority to make decrees assigning estates to those by law entitled to the same. This would seem to confer the power to adjudicate between contesting claimants, as was done in the case of Jenks v. Trowbridge’s Estate, 48 Mich. 94. In the present case the complainant’s bill asks a decree denying to the defendant a hearing in the forum expressly provided by law for such cases.”

See, also, Parkinson v. Parkinson, 139 Mich. 530.

I am of the opinion that the trial judge should have dismissed the bill of complaint on the ground that the chancery court had no jurisdiction to proceed, as the probate court had already assumed jurisdiction with reference to the subject-matter in controversy.

The decree of the lower court will be reversed and a decree entered dismissing the bill of complaint, with costs to the appellant.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, and Stone, JJ., concurred with Kuhn, J.

Fellows, J.

(dissenting). I think it is now too late to deny the jurisdiction of a court of equity to entertain a bill filed for the specific performance of a contract entered into by husband and wife. See Dakin v. Dakin, 97 Mich. 284; Thompson v. Tucker-Osborn, 111 Mich. 470; Carr v. Lyle, 126 Mich. 655; Kundinger v. Kundinger, 150 Mich. 630; Phillips v. Phillips, 83 Mich. 259; Koch v. Koch, 126 Mich. 187; Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596, 16 Am. St. Rep. 528).

I think the decree should be affirmed.


author: Steere, J.

text:
    GAMBLE v. OCEANA CIRCUIT JUDGE.
    Exceptions, Bill of — New Trial — Extension of Time — Jurisdiction — Discretion.
    Where the trial court lacked jurisdiction, under section 12634, 3 Comp. Laws 1915, to further extend time in which to settle a hill of exceptions or move for new trial, his denial of same on the exercise of his-best judgment and judicial discretion will not be interfered with by this court.
    Mandamus by Joseph E. Gamble to compel John Vanderwerp, circuit judge of Oceana county, to extend the time to settle a bill of exceptions.
    Submitted October 8, 1918.
    (Calendar No. 28,380.)
    Writ denied December 27, 1918.

      F. E. Wetmore, for plaintiff.

      Alex. Sutherland (C. N. Sessions, of counsel), for defendant.
   Steere, J.

Plaintiff seeks by mandamus to compel the circuit judge of Oceana county to further extend the time in which to settle a bill of exceptions or move for a new trial in a civil case entitled Francis W. Fincher, Executor, v. Joseph E. Gamble, wherein judgment was rendered against defendant, October 17, 1917, upon a promissory note given by him to Charles Jensen, deceased, for the amount of said note and interest. Charles Jensen died testate leaving all his property, both real ahd personal, to his wife, Anna Jensen, who thereafter died testate bequeathing her estate to Lewis Jensen, Annie Gamble (defendant’s wife), and Maggie Gulumbo. Fincher brought this action.

Certain phases of the litigation were before this court in Jensen v. Gamble, 191 Mich. 233, and Jensen v. Oceana Circuit Judge, 194 Mich. 405. In the first-mentioned case Lewis Jensen had sued defendant to recover his undivided one-third of this note and defendant interposed the objection that a cause of action based on the note could not be thus split, which the trial court overruled and on appeal by defendant from a judgment against him for plaintiff’s third of. the amount of the note this court held that the note for one stated sum of money presented a single cause of action which could not be split, since there can be but one action on a single demand; but further stated in the opinion, against plaintiff’s contention, there was no other way in which the rights of plaintiff and defendant could be determined when owners of the remaining interests in the note refused to join as plaintiffs, that the executor or administrator de bonis non of the testator’s estate could bring an action on the note and reversed the case without a new trial, whereupon this action followed.

At conclusion of the trial defendant’ obtained an order granting him 20 days in which to move for a new trial or settle a bill of exceptions, with a stay of proceedings and a further extension of 60 days on condition that a bond in the sum of $10,000 be filed within the 20 days. Defendant’s counsel thereupon in the presence of the court and opposing counsel ordered a transcript of the testimony from the court stenographer, who then stated he would furnish the same as soon as possible thereafter, which appears to have been accepted as a substitute for the certificate of the stenographer required by section 62, chapter 18, of the judicature act (3 Comp. Laws 1915, § 12634). The bond provided for in said order was not filed.

The judgment was entered and this order extending time was made on October 17, 1917. No further application was made to the court until February 9, 1918, when defendant filed a motion for a new trial and served the same on opposing counsel two days later. On February 13, 1918, plaintiff filed a motion to strike defendant’s motion for a new trial from the files on various grounds, amongst which were that no bond had been filed as required by order of the court, no order or application for an extension of time had been made beyond the original 80 days granted, which expired January 5, 1918, although the court stenographer had furnished defendant’s counsel a transcript of the testimony on December 10, 1917.

Upon submission of this motion to the court on February 13th by consent of counsel they were given 10 days from February 14, 1918, to file briefs, and on March 18, 1918, the court made an order granting plaintiff’s motion to strike defendant’s motion from the files.

On March 21st defendant filed a motion asking that the time in which to file a motion for a new trial or settle a bill of exceptions, etc., be extended. This motion was noticed for hearing on the 8th day of April following, which was the first day of the next ensuing term of court in that county. The motion was supported by affidavit stating as reason therefor that upon the 15th of December, 1917, shortly after receiving a transcript of the testimony from the stenographer and before completing the preparation of a bill of exceptions, counsel began assisting military registrants in filling out their questionnaires and devoting his time almost exclusively to that patriotic service until the 4th of February following. Counter affidavits were filed by plaintiff showing that the court was in session on the ,2d day of January, 1918, at which time defendant’s counsel attended and obtained a decree of divorce for a client, and again on the 22d, 23d and 24th days of January, 1918, during which time defendant’s counsel attended court and obtained a decree of divorce for another client and participated in a contested equity case involving the construction of a will.

Respondent’s return, amongst other things, points out that no bond was ever filed by defendant in compliance with the order extending time and “a certificate of the stenographer was never made and filed as required by the judicature act”; avers in relation to defendant’s claim his time was devoted to assisting registrants in preparing their questionnaires, “that the attorney for relator took such time during that period as he thought was necessary to attend to his pressing private and professional affairs”; stated “the 2d day of January, 1918, was the first day of the January term of said court and that attorney for the relator appeared before the court and took such time as he thought was necessary to present his proofs to obtain and did obtain a decree of divorce in the case of Becker v. Becker”; court was also in session “during the 22d and 23d days of January, 1918, and that attorney for relator appeared before said court and presented proofs in the divorce case of Mackin v. Mackin and obtained a decree. Further, that the attorney for relator was in court and took part in an equity proceeding to construe a will; that most of the time of the court on January 23, 1918, was taken up in presenting the proofs and arguments of counsel in these two cases”; says that “when plaintiff moved to strike the motion for a new trial from the files because of delay relator did not'at that time ask for an extension of time, but waited until after respondent granted plaintiff’s motion to strike relator’s motion for a new trial from the files, and on or about March 21, 1918, the relator filed this motion for an extension of time, 75 days after the expiration of relator’s 80 days, which he had to prepare his motion for a new trial or prepare his bill of exceptions.” In conclusion respondent returns “that he exercised his best judgment and discretion in refusing to grant relator further time to prepare a motion for a new trial or settle a bill of exceptions and that in view of all the circumstances of the case, he did not consider that in justice to all parties, such extension should be granted.”

The return makes plain that the trial judge’s refusal to grant this motion was not based upon the assumption of loss of jurisdiction under the limitations prescribed by section 12634, 3 Comp. Laws 1915, but on the exercise of his best judgment and judicial discretion “in view of. all the circumstances of the case.”

If within the discretion of the court we cannot find from this record such palpable abuse of discretion affirmatively shown as to call for interference by this court, but we are impressed that the court might well have refused the motion for lack of jurisdiction under the recent cases of Boyne City Hardware Co. v. Charlevoix Circuit Judge, 197 Mich. 374, reviewed in Brevoort v. Wayne Circuit Judge, 203 Mich. 388 (decided October 29, 1918).

Assuming, without deciding, as defendant contends in the instant case, that the stenographer’s statement in open court was equivalent to a certificate under the statute, the testimony had actually been furnished and that ground for delay eliminated between 3 and 4 weeks prior to the expiration of the 80 days’ limit previously granted and between 3 and 4 months before this application for extension of time was made.

In Boyne City Hardware Co. v. Charlevoix Circuit Judge, supra, a belated certificate of the stenographer was filed and relied on, which the court disposed of as follows:

“In the case at bar, although the certificate of the stenographer is- relied upon, that certificate shows- the transcript had actually been furnished upwards of four months before the application for an extension of time was made.”

In the Brevoort Case the court said, referring to this situation—

—“but one of the affidavits in support of the motion showed that the completed transcript had been delivered by the stenographer to the attorney four months before the date of the motion. Under those circumstances the court was clearly without authority to grant the extension.”

Those cases go so fully into this question that it is unnecessary to further discuss it here.

For reasons above stated the writ of mandamus applied for herein is denied, with costs to respondent.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    BARGER v. BISSELL.
    1. Estoppel — Issues on Retrial — Res Judicata.
    Counsel’s accepting, in the argument of a case, as established, a fact proven by opposing witnesses detrimental to their theory, which as the record stood they could not successfully question, does not in itself work an estoppel to an issue upon that fact on a subsequent trial, where their theory and claim as to the specific act of negligence remain unchanged.
    2. Same — Inconsistent Claims — Issues on Retrial..
    In an action for personal injuries caused by defendant’s automobile, counsel’s acceptance of the fact that a wagon obstructed the view of the driver of the automobile, on the first trial, while on the second triaí said fact was controverted, does not render plaintiff’s claims inconsistent, where in each case the driver’s neglect to see plaintiff and stop his car in time to avoid the accident was relied upon.
    3. Same — Failure to Call Witness — Plaintiff as Witness.
    In an action for personal injuries to a child about seven years of age, caused by defendant’s automobile, where the extent oí plaintiff’s permanent injuries was in dispute, failure to call plaintiff as a witness on the first trial on account of her claimed physical and mental condition as a result of the accident, together with her youth and immaturity, does not estop her from testifying on the second trial upon any issue authorized by the pleadings,

      i. Negligence — Contributory Negligence — Automobiles — Infants — Question for Jury.
    Where plaintiff, in an action for personal injuries caused by defendant’s automobile, was less than seven years of age, at the time of the accident, her, age and degree of developed judgment, together with her testimony that the driver of the car saw her when 25 feet away, render the question of her contributory negligence one of fact for the jury.
    5. Trial — Weight of Evidence — Question for Jury.
    What weight should be given testimony is primarily for the jury.

      6. Appeal and Error — New Trial — Weight op Evidence.
    Whether a verdict is against the great weight of evidence, under all the circumstances of the case, is primarily for the trial court.
    7. Same — Questions Reviewed — Judgment Non Obstante Vebe-DICTO.
    On a record showing that the order of the trial judge granting a new trial was hy consent of counsel for both parties set aside, after which 'judgment of “no cause of action” was entered for defendant, the only question before this court for review is the validity of such judgment, and this court, although reversing the judgment entered hy the trial judge, will not reinstate the verdict of the jury.
    Error to Wayne; Hosmer, J.
    Submitted June 7, 1918.
    (Docket No. 83.)
    Decided December 27, 1918.
    Rehearing denied January 31, 1919.
    Case by Orilia Barger, an infant, by her next friend, against Edward W. Bissell for personal injuries. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Reversed.

      Dohany & Dohany, for appellant.

      Harrison Geer, for appellee.
   Steere, J.

On the 25th day of March, 1911, plaintiff, then six years, ten months, and ten days old, was struck by the front right mudguard on defendant’s automobile while crossing Gratiot avenue in the city of Detroit at a point between Townsend and Sheridan avenues, a distance of about four miles from the city hall towards Mt. Clemens, from whence defendant was returning accompanied by some friends, with a chauffeur driving his automobile.

For a general understanding of the circumstances of the accident and the then claims of the parties reference is made to a review and reversal of a former judgment in this case reported in 188 Mich. 366. A retrial resulted in a judgment for defendant which is now here for review.

At the first trial plaintiff was not called as a witness owing, as her counsel states, to her physical condition and tender age. Aside from her testimony the evidence in this record is substantially the same as upon the first trial, that of some of the witnesses being introduced from the former record by consent. The new feature in the case is plaintiff’s testimony as to the exercise of vigilance on her part and absence of any conveyance to obstruct the vision. She testified upon this trial that she was attending school when injured, went from school to visit her aunt who lived above Michael’s grocery store and was making a dress for her; that her aunt accompanied her down stairs to the sidewalk, “looked up and down” and told her to go across the street, which she started to do and when about a foot away from the curb she also looked up and down the street, but did not see anything from either way except a street car between Field and Sheridan avenues some distance off, and “there was no horse and wagon or automobile or anything of that sort in front of Michael’s store”; that she then started across the street in a slanting direction towards Sheridan avenue and as she came out from the curb an automobile attracted her attention by “blowing their horn,” when she was “about the middle, between the street car track and the curb”; that she saw it was about 25 feet away and “kept walking on”; did not hear it any more but “somebody yelled” to her,, when she then looked to the east “and .saw it was right on top of me” and it struck her when she was “just in the first street car track,” injuring her head and left side from which she was in bed about two months, after which she was “up but did not walk around,” and first began to go to school again in September. On suggestive question by her counsel as. to her attending school in May and June she replied she thought that she went some days, saying, “my best judgment is six or seven days.” On cross-examination she testified that in going to school at that time she had to cross Gratiot avenue twice a day, going and coming, knew there were two street car tracks along it, was familiar with the danger of getting in front of an automobile and that she had to look out for those automobiles, and knew the necessity of watching for cars that went up and down the street. In Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271), it is said that intelligence, not age, controls the question of contributory negligence, citing Henderson v. Railway Co., 116 Mich. 368.

Sister Emalinda, a teacher in St. Anthony school which plaintiff was then attending, testified that plaintiff was a pupil in her grade during that school year,, from September, 1910, until school ended in June, 1911, except as absent on account of her accident; that witness heard of the accident and plaintiff returned to school about three weeks later, was absent more days in- April than in March, but she attended quite regularly in May and June, saying:

“I did not notice any change in her physical or mental condition in the month of May or June. I had learned of her accident and that she had an injury. I did not notice any change in her mental condition during May and June compared with what it had been before. She returned again in September, in the fall of 1911. * * * I can say nothing else but that she was just as normal after coming back to school as before. She returned the latter part of April and I recollect distinctly outside of the book, during the months of May and June, 1911, she was quite regular.”

Mrs. Helen Hopp, who was not a witness on the former trial, was sworn for plaintiff and testified that at the time of the accident she was employed in Michael’s grocery store; that she was in the store when it happened and did not see it but heard of it immediately after and went out, saying, “As soon as I saw the people running I went out immediately on the street, I ran out.” Asked if Mr. Michael had a grocery wagon with a top on it at that time, the question was objected to on the ground that no one had testified the wagon standing there, which it was claimed obstructed the chauffeur’s view of plaintiff, belonged to Michael. To this objection the court said, “I think that is so.” She, however, answered that Mr. Michael had no grocery wagon with a top on it and was then asked — “Q. When-you came out of the store was anybody’s wagon in front of the store?” Which was objected to and the objection sustained. She was then asked but not permitted to answer the following questions:

“Q. Whether or not when you got out there there was any grocery wagon or anything standing in front of Michael’s store with a horse hitched to it?
“Q. 'Was there any wagon of any sort, or automobile at the curb in front of Michael’s store, or in that neighborhood when you went out there?
“Q. How recently before the accident happened had you been out in front of the store to see whether or not there were any wagons there?”

Plaintiff’s counsel then said his further proof would be along the same line which in view of the ruling of the court he would not offer.

In sustaining the objections to these questions the court said, “there is no presumption that a wagon would stand there, or continue standing there.”

At the close of the testimony a request for directed verdict in behalf of defendant was denied and the case submitted to the jury under a clear and well-guarded charge as to negligence, contributory negligence, etc., resulting in a verdict of $1,500 for plaintiff.

Thereafter and before entry of judgment on this verdict defendant’s counsel served notice upon opposing counsel that by direction of the judge who presided at the trial argument would be had before him on November 10, 1917,—

—“upon defendant’s request for a directed verdict filed before submission of said cause to the jury and for the entry of judgment in the above entitled cause, in defendant’s favor in accordance with defendant’s said request, notwithstanding the verdict heretofore rendered in said cause.”

On the date for which notice was given counsel were heard and defendant’s application denied, the court saying:

“This comes before the court upon a motion to enter a judgment for defendant non obstante veredicto, and if this motion is to be refused, to grant a new trial on the ground that the verdict is against the weight of evidence. There can be but one answer to this last proposition. There is no difference in the testimony brought by the plaintiff to support her case, between this trial and the trial which has been- reviewed by. the Supreme Court of this State, save that she herself testified on the last trial and has never been heard beforé._ The very immaturity upon which the plaintiff relied to take the case to the jury would militate against credence being given to her testimony, and under these circumstances the court would have but one course, and that is to grant a new trial on its own motion. The other questions which are raised by the first motion are more difficult. It cannot be said as a matter of law that the examination of the plaintiff at the present trial can conclusively show that she had sufficient maturity at the time of the accident to allow the ordinary rules with reference to contributory negligence to control, and I am not disposed to say there is sufficient evidence before the court to enter a judgment for this reason. Now, when the plaintiff’s testimony is considered, can I say there is not a scintilla of testimony to go to the jury, although if the testimony were the same on the succeeding trial, I should feel compelled again to grant a new trial.
“Counsel, in further support of his motion, has urged that there has been a complete change in the theory of the plaintiff. It does not seem to me that the cases which counsel have cited here are apposite. The plaintiff has never testified before and while the testimony of the witnesses for the, defendant showed beyond question the presence of a wagon at the curb I cannot say that the plaintiff is bound by their testimony.
“For these reasons the motion to enter a judgment will be refused.”

Later, and next so far as the record discloses, the following order was made and a formal judgment entered for defendant:

“Upon the trial of this cause, at the close of the testimony, and before the case was submitted to the jury, defendant requested the court for a directed verdict in his favor. The case was submitted to the jury and a verdict was thereafter rendered for plaintiff. After the verdict was recorded and before the entry of judgment, defendant, with the approval of the court, gave plaintiff notice that arguments would be heard by the court for and against said request for a directed verdict, and the arguments were had on the 10th day of November, 1917.
“Thereafter, on November 26, 1917, the court entered an order granting a new trial in the case. By consent of counsel for the respective parties it is hereby ordered that the aforesaid order granting a new trial be set aside.
“It now appears to the satisfaction of the court, and the court decides, as a matter of law, that the defendant was entitled to a directed verdict on his motion for judgment notwithstanding the verdict, therefore,
“It is ordered that a judgment of ‘no cause of action’ be entered for the defendant.”

As the situation is presented by this record the question for review is the validity of this' judgment entered for defendant as on directed verdict, apparently on the ground that the decision of this court upon the former trial is conclusive. An issue is here raised by plaintiff upon a fact not then in dispute. There is now conflicting testimony in the case upon whether there was a grocery wagon in front of Michael’s store which concealed plaintiff from the chauffeur’s view until she passed into the street from beyond it. Ihis view was not so obstructed the questions of his negligence and her contributory negligence would clearly be questions for the jury. In the former case the presence of the grocery wagon there was not controverted. It was then shown by the undisputed testimony of several witnesses and assumed in the decision that a high-topped grocery wagon with horse attached stood on the side of the street in front of a grocery store between the automobile and plaintiff when she hurried out into the street. With the view from the automobile thus cut off it was held that under all the evidence in the case defendant was not shown guilty of actionable negligence in not sooner seeing plaintiff and stopping in time to avoid the accident.

It is said in defendant’s brief that on the former trial plaintiff’s counsel introduced testimony showing the presence of this obscuring high-topped grocery wagon, and that defendant’s testimony conclusively corroborated it; that “it was the contention of the attorneys for plaintiff at that time as well as the defendant, that by reason of the horse and wagon standing in front of Michael’s grocery store the view of plaintiff, also that of the chauffeur was cut off,” and it is urged that plaintiff’s attorneys cannot upon the second trial change their theory from that taken on the first trial, and show there was no horse and wagon standing in front of the grocery store. On the part of the plaintiff it is denied that any of her witnesses testified to this grocery wagon being there, or that any testimony was introduced in her behalf by her counsel to that effect, although defendant and his chauffeur, called for plaintiff under the statute for cross-examination, to prove ownership, agency, etc., volunteered such testimony; that the fact was not claimed to sustain plaintiff’s case, and this court in its former opinion entirely disregarded the testimony of defendant’s witness Mrs. Boss, tending to negative the fact.

An examination of .the record and briefs of the former trial does not fully sustain the contention of either counsel. During the trial plaintiff’s counsel were not seeking to prove or claiming as part of their proofs that the wagon was there. No witness of plaintiff’s was interrogated by them upon the subject or so testified, except as defendant and his chauffeur, called by them under the statute and by whose testimony plaintiff would not be bound, volunteered and adhered to the claimed excusing fact. Mrs. Boss was not examined on that subject by plaintiff’s counsel, but on cross-examination by defendant’s counsel as to whether she saw any teams or wagons along the north side of Gratiot avenue replied that she did not notice any, and when the subject was pressed answered she did not see any wagons or vehicles of any description along there between Townsend avenue and the place where the little girl was struck — adding, “I would not swear to it, I didn’t see any.” Of the probative value of such negative testimony against positive affirmative testimony of witnesses who have observed and testify to the fact, it may be noted that she also testified she did not hear the horn of defendant’s automobile blown or see any car down the street further away, to both of which facts plaintiff herself testifies in this case. On the former appeal defendant was appellant and his counsel’s brief was filed first, containing a statement of facts as required by the rule. On the first page of the brief of plaintiff’s counsel under the heading “Additions and amendments to statement of facts,” the following appears in reference to the grocery wagon:

“Defendant’s chauffeur saw plaintiff passing out of the doorway, * * * saw her pass out of his view behind the grocery wagon and saw her come out in front of the horse into the street. At this time the chauffeur was just back of the wagon and the front of the automobile even with the rear of the wagon.”

This court in the former opinion not only accepted the statements in the briefs of counsel on both sides that the grocery wagon was where the undisputed testimony of several witnesses located it, but was and is of the opinion that counsel in their statements and the court in accepting them properly disregarded the testimony of Mrs. Boss, that she did not see or notice any wagon there, but “would not swear there wasn’t any,” as not of sufficient probative force, standing alone against the affirmative evidence, to raise a question of fact. But counsel’s accepting in the argument of a case as established a fact proven by opposing witnesses detrimental to their theory, which as the record stands they cannot successfully question, does not in itself work an estoppel to an issue upon that fact on a subsequent trial where their theory and claim as to the specific act of negligence remain unchanged.

A careful comparison of the briefs and records in both cases does not sustain defendant’s contention that plaintiff’s theory and claim of the basic fact to establish negligence on this trial, are changed or inconsistent with the former. In the former case and this, counsel’s theory and claimed ground of negligence are that at the rate of speed the automobile was going when the chauffeur saw or could and ought to have seen plaintiff, he could and should have stopped the automobile in time to avoid the accident. Manifestly the presence of the intervening grocery wagon was detrimental to that theory, but in the absence of testimony to the contrary and accepting its presence as shown, counsel contended that nevertheless the chauffeur-saw or could and ought to have seen plaintiff in time to avoid the accident had he acted with reasonable promptness. In this case, with testimony raising an issue of fact as to whether the grocery wagon was there, the same theory is urged and claim made. That it is narrowed by the former opinion to the contingency of that issue of fact does not create an inconsistency.

Plaintiff was present in court during the former trial but was not called as a witness. It is claimed for defendant that she was then eight years old and in normal condition, necessarily knew the facts as well at that time as when she testified upon the second trial several years later and her silence at the first trial when the material fact she now denies was proven against her estops her from testifying upon the second trial to supply fatal omissions in her proof pointed out in the former opinion. The force of this contention is largely contingent on disputed facts which this court cannot pass upon. Plaintiff’s counsel contend that her physical and mental condition resulting from the accident, in connection with her youth and immaturity, then precluded her being called as a witness, as the evidence of her physician Dr. Knaggs, who attended her at the time of her injury, shows. Without going into details, the record shows that Dr. Knaggs, who stated he had again examined her that day, testified to apparently permanent injuries resulting from the accident, both mental and physical, indicated by her senemie condition, exaggerated heart action, shattered nerves and unbalanced mentality; while ■ Dr. Shurly, who also examined her at the time of her accident and during the trial, called by defendant, testified that he had carefully examined plaintiff and while she was slightly eenemic, as many children are at the growing period of life, she had a fairly well nourished body and said that, aside from a scar over her eye, “there is absolutely no permanent injury to that child in any possible form or manner.”'

All that need, or can, be said here of this irreconcilable testimony of the two physicians is that from it this court cannot say as a legal conclusion based on undisputed facts that failure to call plaintiff as a witness on the first trial estops her from subsequently testifying in a trial de novo upon any issue authorized by the pleadings.

Of the cases cited to sustain defendant’s contention on this question it can be said without reviewing them at length that they relate to retrials where in support, of an inconsistent change of theory the testimony of plaintiffs, or their witnesses by whose testimony they are bound, is directly contradictory to that given by them on a previous trial. Such is not the situation here. It is further urged for defendant that this judgment should be sustained because as a matter of lav/ plaintiff is shown by her own testimony to have been guilty of contributory negligence. Not only is her age and degree of developed judgment at the time of the accident involved in that inquiry, but her testimony as now given with precision shows that the driver of the approaching automobile sounded his horn, indicating that he saw her when 25 feet away and, with room to safely pass behind her on the side of the street along which he was driving, struck her when she was at the street car track 16 feet from the curb.

The conclusion is unavoidable that the conflicting evidence on this trial carried the case to the jury. What weight should be given her testimony is primarily for the jury, and whether a verdict is against the great weight of evidence under all the circumstances of the case is primarily for the trial court.

Counsel for plaintiff request not only that the judgment be reversed but that this court direct the trial court to reinstate the verdict of the jury, with instruction to enter judgment thereon. That this court cannot do upon this record. The judgment brought here for review cannot be sustained for the reasons above given. It is therefore reversed, with costs to abide the final event of this action, and a new trial granted.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    MANSHAEM v. KENT CIRCUIT JUDGE.
    Appeal and Error — Writ of Error — Judgment Exceeding $500— Statutes.
    An order of the circuit court, on appeal from the probate court, reversing an order of the probate court, and directing distribution of a fund of $3,000 to persons other than the one mentioned in the probate court order, is a final determination of an amount exceeding the sum of $500, under Act No. 172, Pub. Acts 1917, and the circuit judge, in his discretion, had the right to grant an extension of time in which to settle a bill of exceptions, although no writ of error had been applied for or other proceedings taken under Supreme Court Rule No. 59 and said act.
    Mandamus by Daniel F. Manshaem to compel William B. Brown, circuit judge of Kent county, to grant an extension of time to settle a bill of exceptions.
    Submitted January 7, 1919.
    (Calendar No. 28,539.)
    Writ granted January 15, 1919.

      Jewell & Smith, for plaintiff.

      Charles E. Ward, for defendant.
   Moore, J.

This is an application for a writ of mandamus to compel the circuit judge to grant an extension of time in which to settle a bill of exceptions in a cause pending in the Kent circuit court on appeal from the probate court in which the relator was petitioner and Florence Nichols and Della J. Dennis were respondents.

The answer of the circuit judge contains the following:

“1. That said petition is regularly, seasonably and in good faith filed.
“2. That said petition and the circumstances of the case appeal to the discretion of the court to such an extent that were it not for the fact that the court believes under the further findings of this order that the plaintiff has lost the right to sue out a writ of error, the court in the exercise of its discretion would without hesitation grant said petition and further extend the time for the settlement of said bill of exceptions.
“3. But the court is of the opinion that this cause falls within the provisions of Act No. 172 of the Public Acts of 1917, providing as follows:
•“ ‘Seo. 1. Writs of error, upon any final judgment or determination, where the judgment exceeds in amount five hundred dollars, may issue, of course, out of the Supreme Court, in vacation as well as in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the Supreme Court upon proper application.’
“4. It being conceded that no writ of error has been applied for or other proceedings taken under Supreme Court Rule No. 59 and said act, this court finds that plaintiff has lost the right to sue out a writ of error as a matter of law regardless of the action it would otherwise take were it not restricted by said act and rule.”

The relator is a son of John Manshaem, deceased, who left a will which was duly probated and his estate was duly administered. The executor filed his final account. The relator asked for what he claimed was due him from the estate. The probate court made an order reading in part:

“For the purpose of distributing the cash balance of $7,391.28 it is hereby determined that the gross receipts coming into the hands of said executor amounted to $7,869.99, and that the gross expenses and charges of administration, debts paid, etc., amounted to the sum of $478.71 and that, of said sum of $7,-869.99, the sum of $6,000 shall be deducted and set aside for equal division of $3,000 each, to and between the said two sons, Evril J. Manshaem and Daniel F. Manshaem, and that the balance of the said gross receipts, same being $1,869.99, shall be divided in the proportions of two-thirds thereof to said Florence Nichols, and one-third thereof to Della J. Dennis aforesaid.”

An appeal was taken from this ordér to the circuit court, where after a hearing the circuit judge made an order reading in part as follows:

“That the order of said probate court for the county of Kent, made the 18th day of August, 1916, construing said will and distributing said estate be and the same hereby is set aside and reversed; that said cause be remanded to -the said probate court of the county of Kent, and that said probate court enter the necessary order or orders assigning and distributing all of the personal property belonging to said estate, including the proceeds of the sale by the testator of the farrn of John Manshaem, deceased, except that part of said personal property mentioned in the second paragraph of said will already distributed, between Florence Nichols and Della J. Dennis, according to the third paragraph of said will; that is to say, two-thirds thereof to Florence Nichols and one-third thereof to Della J. Dennis subject, etc.”

Heading these two orders together it must be concluded that the circuit judge made a final determination that a fund of $6,000, one-half of which was ordered by the probate judge to be distributed to the relator should not be distributed to him, but should be distributed two-thirds to Florence Nichols' and one-third to Della J. Dennis. We think this was a final determination of an amount exceeding the sum of $500, and that the circuit judge in the exercise of his discretion had the right to grant an extension of time in which to settle a bill of exceptions.

Inasmuch as he returns that if he thought he had the power he would have granted the extension the relator will be given 60 days from the filing of this opinion to settle his bill of exceptions.. He will recover costs of this, motion from Florence Nichols and Della J. Dennis.

Bird, c. J., and Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.