author: Stone, J.

text:
    EESLEY LIGHT & POWER CO. v. COMMONWEALTH POWER CO.
    1. Evidence — Corporations—Effect of Admission Upon Right to Show Incorporation — Certified Copy of Articles.
    Upon the trial of an action for damages against a nonresident corporation charged with injuring plaintiff’s power rights, thé plaintiff was not precluded by defendant’s admission that it was incorporated from offering in evidence a certified copy of its articles of incorporation, admissible in evidence in pursuance of the provisions of 3 Comp. Laws, § 10169: a party is not obliged to accept his adversary’s admission in lieu of • record evidence unless he chooses.
    2. Same — Hearsay—Death of Witness —Former Testimony-Cross-examination.
    Testimony of a deceased witness in another suit relating to the condition of the water power and river in the past was properly excluded by the court upon the objection of plaintiff who was not a party to the first cause or successor in interest of either party thereto, no showing being made that the issues in both cases were substantially identical.
    3. Same — Opinions—Expert Testimony — Quantity.
    The opinion or conclusion of a witness, who was in a position to know the facts, that three-fourths of the coal used by plaintiff during a given period in producing steam power was required because of interference with plaintiff’s water power on defendant’s part, was properly admitted in evidence by the trial court and the qualification of the witness to give testimony as an expert was sufficiently shown on cross-examination so as to obviate any possible error committed by plaintiff’s alleged failure to lay a proper foundation.
    4. Same — Conditions Subsequent to Suit.
    Any error that may have been committed in permitting a witness to testify to conditions prevailing after suit was commenced was rendered harmless by the fact, as shown by the record, that the subject was first introduced on cross-examination by counsel for appellant.
    5. Waters and Watercourses — Charge—Dam.
    It was not misleading for the court to charge, in an action for damages caused by ice gorges and water backing upon plaintiff’s power plant, resulting as it claimed from defendant’s negligent failure to allow slush and anchor ice to pass its dam, that the jury might consider all items of expense that plaintiff was put to for extra labor and fuel while its water power was affected, considered with other portions of the charge limiting the damages to expenditures traceable to ice gorges resulting from defendant’s negligence, and instructing the jury that the defendant could only be held liable for damage done by backwater caused by defendant, not by other natural causes.
    6. Same — New Trial.
    On error, the court will not reverse the discretion of the trial court who denied defendant a new trial when the verdict was sustained by the evidence and was not overwhelmingly contrary to the great weight thereof.
    Error to Allegan; Padgham, J.
    Submitted June 19, 1912.
    (Docket No. 97.)
    Decided October 1, 1912.

      Case by the Eesley Light & Power Company against the Commonwealth Power Company for negligent interference with plaintiff’s water rights. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. S. Westerman and O. B. Wilkes, for appellant.

      Ed. J. Anderson, for appellee.
   Stone, J.

The plaintiff is a domestic corporation engaged in the generating and sale of electricity at Plain-well, Mich. It was admitted upon the trial that plaintiff since 1905 has been the owner of 2,266f square inches of water at the plaintiff’s tailrace, and had the right to use this water during the years from 1905 to May, 1910, the time of bringing this suit. It depends for the most part upon water power from the river to generate its electricity. Plaintiff has a steam plant to supplement the water power, when it is needed for any reason, and this steam plant is of sufficient capacity to supply the power necessary to produce the electricity required by the plaintiff. The plaintiff has a head of nine to ten feet under normal conditions.

The defendant corporation is organized under the laws of the State of Maine, and it has owned and operated a dam about a mile and a half below the plaintiff’s plant since 1905, the dam having been built in 1902 by another corporation which transferred it to the defendant. The dam of the defendant carries about 13£ feet head. It is also engaged in producing electricity and the sale thereof.

The claim of the' plaintiff is that in the winter time, from December, 1905, to the time of the commencement of this suit, the slush ice and anchor ice came down the river below the plaintiff’s plant and lodged in the pond of the defendant, and was, at times, when the pond was frozen over, stopped by this ice at the upper end of the pond, and that the defendant neglected and failed to keep an open channel through its pond, and neglected to permit the slush and anchor ice to pass down the river, as it would have done if the dam and pond had not been there; and it claims that as a result the ice formed gorges across the river at the upper end of the defendant’s pond, and set back the water of the river against the wheels at the plaintiff’s water power, so as to materially affect the power of the plaintiff, and so that the plaintiff had to use its steam plant, and burn coal for power. There is no claim for damages except for coal burned and the cost and expense of extra help required at such times, as it had to maintain its power by the use of its engine, while there was backwater in the winter time, resulting from the damming up by ice that would not have dammed up, if defendant’s dam and pond had not been in existence, or if it had done its duty in the premises. The defendant claimed that the history of the river showed that ice jams and ice gorges had always formed in the winter time before its dam was built, and that this backwater was the result of natural conditions, and was not caused by defendant’s dam and pond.

It appears that there were two question for the jury: First, whether defendant was in fault for the backwater complained of; and, if so, second, how much coal plaintiff was obliged to burn, and how much extra labor furnish, to supply power, because of the acts of the defendant. The jury returned a verdict for the plaintiff of $900, and a judgment followed. The defendant has brought error.

The assignments of error grow out of the admission and rejection of evidence, the charge of the court, and the refusal of the court to grant a new trial on the motion of the defendant. Before discussing the assignments of error, counsel for appellants urge that there was no evidence offered in the case tending to show the amount of damages that the plaintiff had sustained, except the testimony of John E. Eesley, president and manager of the plaintiff corporation, and Judd O. Pratt, the engineer who ran the steam plant; that Mr. Eesley’s testimony shows that in the winter of 1905-06 plaintiff expended:

The testimony of this witness also shows that he was paid by the lessee of the Eesley Milling Company toward the cost of the coal $180.70, so that the total cost of the coal and extra labor from 1905 to 1910, after deducting the last-named sum, was $1,298.93; that the plaintiff did not claim that defendant was responsible for all of the coal burned. It was admitted that part of the coal would have been burned, whether defendant’s dam had been there or not; and it • is claimed by the defendant that the principal error in the trial was in admitting testimony on • the question of how much of this coal should be charged to the defendant, and it is further claimed that the undisputed testimony — i. e., the testimony of Mr. Eesley and Mr. Pratt — clearly shows that .the verdict was excessive. It will be seen that the jury gave the plaintiff a verdict for nearly three-fourths of the total amount of coal and extra labor used by the plaintiff during those five years after deducting the $130.70; and the defendant’s contention is that this evidence shows that even if the jury discredited all of the testimony of the defendant as to the history of the river, and accepted the testimony on the part of the plaintiff upon that subject, then the verdict was at least double what the evidence justified.

We shall consider the first nine assignments of error under the heads as they are discussed by appellant.

(a) Assignment of error No. 1. The court permitted counsel for plaintiff to read before the jury a certified copy of the articles of incorporation of the defendant, against the objection and exception of the defendant. It is the claim of the appellant that, it having admitted its incorporation and that it was lawfully doing business in this State, it was error to permit the reading of the articles in evidence, and that the effect was to prejudice the jury. We cannot agree with this contention. The statute (section 10169, 3 Comp. Laws) makes a duly certified copy of the articles admissible in evidence. The language of this court in John Hancock Mutual Life Ins. Co. v. Moore, 34 Mich. 41, is applicable here:

“A party can never be compelled to accept his adversary’s admission in lieu of record evidence, unless he chooses.”

See, also, the following cases: Kimball & Austin Manfg. Co. v. Vroman, 35 Mich. 310-321 (24 Am. Rep. 558); Baumier v. Antiau, 79 Mich. 509-515 (44 N. W. 939); In re Miller’s Estate. 160 Mich. 309-312 (125 N. W. 2).

(6) The seventh assignment of error raises the question of the right to introduce the testimony of Alford Whit-comb, a deceased witness, taken in the case of Michigan Paper Co. v. Kalamazoo Valley Electric Co., relating to the history of the Kalamazoo river prior to the building of defendant’s dam. The admission of this évidence was refused by the trial court. It is said by appellant that that suit was between parties only one of whom stood in privity of relation to the parties in the instant suit. Counsel concede that the general rule only admits such evidence when the testimony is between the same parties, or those who stand in privity of relation with them. 1 Greenleaf on Evidence, § 164, and cases cited. Mason v. Kellogg, 38 Mich. 132. This plaintiff had nothing to do with that case, and had no opportunity to cross-examine the witness. It further appeared that the attorney who represented the defendant in the instant case represented the plaintiff in the former case, and the counsel for plaintiff in the instant case had nothing to do with that case. Counsel for appellant rely upon the rule stated in 2 Wigmore on Evidence, at section 1388, where that author says:

1 * The principle, then, is that where the interest of the person was calculated to induce equally as thorough a testing by cross-examination, then the present opponent has had adequate protection for the same end. Thus, the requirement of identity of parties is after all only an incident or corollary of the requirement as to indentity of issue. It ought, then, to be sufficient to inquire whether the former testimony was given upon such an issue that the party opponent in that case had the same interest and motive in his cross-examination that the present opponent has; and the determination of this ought to be left entirely to the trial judge.”

We are of opinion that the trial court did not err in its ruling. It appears that the former suit was not between the same parties or their representatives in interest. It does not appear that the issue or subject-matter was the same, and this is essential to the admissibility of the testimony. 2 Wigmore on Evidence, §§ 1386,1387,1388. At the close of the quotation cited by appellant, Wigmore says:

“Nevertheless, the courts have not, in name at least, often gone so far as to accept so broad a principle.”

See 16 Cyc. p. 1088 et seq.

(c) The second, third, fourth, and fifth assignments of error may be considered together. It is the contention of the appellant that there was a prejudicial error in permitting the witness Eesley to testify that he “used in the year 1905-06 about three-fourths of what the coal cost,” viz., of the $202.44 on “account of this high water and ice.” The record discloses that the testimony of this witness, before the above evidence was received, had been extended and full, and covers more than 15 pages of the printed record, in which he had gone into the particulars of his observations and examinations relating to the subject. The objection of counsel was as follows:

“I will make an objection to that manner of proving damages, and move to strike it out as incompetent. The witness kept a record of the time, shown by his own testimony, when he claimed the water was set back, and gives the times. It is not for him to generalize and speculate on what proportion of the entire cost of running his plant came from what he says is ice and backwater. He cannot guess at it. I move to strike out his testimony, so far where he says about three-quarters. It is, of course, eventually for the jury, but it is for this witness to tell what he knows, and it is for them to say whether it is about three-quarters or not. If he can tell how much coal he burned in the different days he says he was shut down, I don’t object to that at all. He is giving dates and times. It is all guesswork the rest of it. W;e object to his guessing.”

To this plaintiff’s counsel replied as follows:

“We claim the witness has got a right to give his best judgment from his own knowledge, not from any hypothetical question, but from his own knowledge, of how much more he used on account of the backwater that prevented his using the water wheels, and he is in a situation to give a judgment to the jury. His coal cost during that time, that winter, so much money. Now, he has got some kind of an idea as to how much of that coal he had to use on account of running while this' high water interfered with him.”

The witness further testified, before the court ruled on the objection, that he did not keep a record of just how much coal he burned each day when he was troubled with the backwater. There was a lengthy discussion by counsel, followed by a ruling to let the testimony stand, as bearing upon the measure of damages. It is urged by counsel for appellant that this was permitting the witness to give opinion evidence upon the subject. It appeared in evidence that the plaintiff had some trouble with ice in its race, and that some of the coal was used because of that difficulty, a condition that the defendant was not responsible for; and the question is whether it was competent to allow the witness to give his judgment or estimate of what portion of the trouble and expense was caused by the ice in the race, and what portion was caused by the setting back of the water from below by defendant.

Counsel spend the greater portion of their argument upon this question, and cite authority bearing more or less upon the subject. ' The evidence shows that no complete records were kept as to the dates, and length of time when plaintiff was obliged to use coal, nor whether the coal was used on a particular occasion by reason of the trouble from the race, or from below. The record discloses the testimony of at least 18 witnesses upon the subject, giving to a greater or less extent the setting back of the water from below, and the extent of the trouble from the race. We cannot agree with counsel for appellant that the witnesses Eesley and Pratt were the only witnesses who gave any evidence upon the subject of the measure of damages. The testimony of numerous other witnesses for the plaintiff bore upon this subject. It is true that none of them except Eesley and Pratt testified to the amount of coal used, or gave any estimate or judgment as to the relative quantity chargeable to the different sources of trouble. The defendant offered no evidence as to the quantity of coal used. It does appear that Eesley and Pratt had more knowledge of the quantity of coal used, and the conditions at the ■ premises by reason of their employment, than the other witnesses had. We are not able to agree with appellant’s counsel that the testimony of the witnesses Eesley and Pratt was opinion evidence. It was their estimate or judgment, founded on their acquaintance with the situation, as to the relative quantity of coal used by reason of the trouble in the race, and the backwater from below. The witness Eesley was cross-examined at great length upon this subject, and the following questions and answers appear:

“Q. And you estimated that this defendant was responsible for how much of that coal bill ?
“A. I estimated two-thirds, three-fourths. •
“Q. What did you do that for F
“A. Because of conditions that I knew that probably existed, but I have no record of that. I am estimating it from conditions that have existed all the way through.”

The language of Justice Campbell in Kelley v. Richardson, 69 Mich. 436 (37 N. W. 516), is pertinent here:

“The phrase ‘expert testimony’ is not entirely fortunate as designed to cover all cases where a witness may give his opinions. That is done, in a multitude of cases, by witnesses who have no more personal fitness than any one else, but who have been so placed as to have seen or heard things which can only be described to any one else by giving the impression produced on the mind or senses of the witness. These cases are so common that few persons ever think that what are rightly called facts are at the same time no more nor less than conclusions. Thus, impressions of cold or heat, light and darkness, size, shape, distance, speed, and many personal qualities, physical and mental, are constantly acted on as facts, although not uniformly judged by all observers, for the simple reason that the facts cannot be otherwise communicated. Any person can give such impressions without special experience or special intelligence.
“Beyond these everyday matters, known to all men, are things which most, if not all, persons can become qualified to judge by more or less opportunities of observation, local or habitual, but which require no peculiar intelligence. Then there are branches of business or occupations where some intelligence is requisite for judgment, but opportunities and habits of observation must be combined with some practical experience. This seems to be the beginning or lower power grade of what may be properly termed ‘experts;’a word meaning only the acquisition of certain habits of judgment, based on experience or special observation.”

. So without splitting hairs to determine whether the evidence complained of was opinion evidence, or a conclusion, or the statement of an estimate of a fact, we think that it was admissible, as much as would be the testimony of a witness on an estimate or comparison of the amount or quality of an article. Withey v. Railroad Co., 141 Mich. 412 (104 N. W. 773, 1 L. R. A. [N. S.] 352, 113 Am. St. Rep. 533, 7 Am. & Eng. Ann. Cas. 57).

We are of opinion that there was a sufficient foundation laid for this evidence. If there were any doubt about a sufficient foundation for the evidence when given, it was fully supplied by the thorough cross-examination of the witness by appellant’s counsel, and the error, if any, was not prejudicial. This whole subject and the testimony of the witnesses upon the question of damages were submitted to the jury in a very clear and comprehensive charge that is not complained of. It is also, in the same connection, urged that the evidence of damages was indefinite, and not sufficient to support a verdict. We think there was evidence which, if believed by the jury, warranted the verdict in the case. It is often difficult, especially in actions of tort, to determine by evidence the exact amount of damages suffered by a party. Much has to be left to the good sense and sound judgment of the jury. In Gilbert v. Kennedy, 22 Mich. 117, this court held that a plaintiff in trespass would not be denied the right to recover the actual damages he had suffered because their nature was such that they could not be accurately measured; and, when from the nature of the case adequate damages cannot be measured with certainty by a fixed rule, all facts and circumstances tending to show such damages , as are claimed, or their probable amount, should be submitted to the jury, to enable them to form, under proper instructions from the court, such reasonable and probable estimate as, in the exercise of good sense and sound judgment, they think will produce adequate compensation. Allison v. Chandler, 11 Mich. 542; Mueller v. Mineral Spring Co., 88 Mich. 390 (50 N. W. 319); Lafler v. Fisher, 121 Mich. 60 (79 N. W. 934); Bowden v. Voorheis, 135 Mich. 648 (98 N. W. 406); H. J. Reedy Co. v. Cameron, 163 Mich. 638 (129 N. W. 27).

(d) The sixth assignment of error is based upon the ruling of the court permitting the witness to testify that plaintiff had not been bothered with backwater as much in the winter of 1910-11 as it was in the previous winters back to 1905. It has been noted that the suit was begun in May, 1910. It was tried in the spring of 1911, and it is said that this was permitting the witness to compare a winter not in issue, with former years, the purpose being to prejudice the jury by showing that, after the suit was begun, conditions were better. An examination of the record discloses the fact that this evidence was given upon redirect examination of the witness Eesley. Upon his cross-examination the following occurred:

“Defendant's Attorney: I will ask you this: Is the current any different now from what it has been during 1905 up to 1910 ?
“A. Yes; back of our mill. The current is better now.
“Q. You mean, just today?
“A. No; I mean some months back.
“Q. How long?
“A. I couldn’t say. When the river is all open, just as it is now, the current back of our plant going down is better than it was two years ago.
At the same time of the year ?
“A. Yes, sir.”

On redirect examination, plaintiff’s attorney asked the following question:

“Q. Have you been bothered as much this winter as you were previous winters, back to 1905, the 1st of December ?
“A. Not so much this winter.”

Then came the objection that the question was irrelevant and immaterial, followed by the statement of plaintiff’s attorney that he did not claim any damages for “this winter.” The court let the answer stand, to which defendant’s attorney excepted. We think that, in view of the cross-examination, appellant’s counsel is in no position to complain of the ruling.

(e) The ninth assignment of error is that the court erred in charging the jury as follows:

“ If you find a verdict in this case for the plaintiff, in fixing the amount that the plaintiff is entitled to recover, you should take into consideration all of the items of expense that the plaintiff was put to for extra labor and fuel while its waterpower was shut down or affected; or, in other words, plaintiff would be entitled to recover, if you find a verdict in its favor, such lawful damage as the proofs in the case show that it has actually sustained.”

The above is a short extract from a lengthy charge. Standing alone, it might be said that it authorized a recovery for all of the extra labor and all of the fuel used, but the court also charged the jury as follows:

“There is evidence in the case that the plaintiff, during the winter time, had trouble with its power by reason of anchor and slush ice in the race above plaintiff’s mill; and there is evidence in the case that would warrant the jury in finding that this trouble existed at times when the plaintiff was also troubled with backwater below its mill. Now, I charge you that, if you find that at any time when there was backwater at the plaintiff’s mill, that such backwater was the result of negligence on the part of the defendant; and if you also find that at the same time plaintiff’s power was crippled by reason of ice in the race, or because the flow of the water in the race had been reduced by the gorging of ice in the race, then I charge you that you could not hold the defendant liable in damages for only such part of such injury as was caused by the act of the defendant, and you could not hold the defendant liable for that part of the injury that resulted from the trouble in the race.”

This subject was referred to in other parts of the charge,1 and, taking the whole charge together, we do not think that the jury was misled by the reference to extra labor and fuel contained in that part of the charge complained of, but that they must have understood that it referred to the damages occasioned by the backwater on account of the ice gorges which it was claimed were formed through I the defendant’s neglect.

(a) It is claimed that the court erred in refusing a new trial for the reason that the verdict was excessive, and against the clear weight of the evidence, and that the jury must have found that all of the backwater, during all of the winter months when coal was burned, was caused by defendant’s dam. We have read the entire record with care, and we cannot agree with appellant’s claim in this matter. The evidence shows that, prior to the building of defendant’s dam, backwater had occurred a few times, but that it was very seldom and was the ex-caption and not the rule, while, after the dam was built, it became the rule, and not the exception.

What this court said in Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), relating to the reversal of a case upon the question of the weight of the evidence, is applicable here, and the collection of authorities there given justify us in holding that the court committed no error on that branch of the case.

We have examined the other assignments of error, and are of opinion that they present no reason for a reversal of the case. Finding no reversible error in the case, the j'udgment of the circuit court is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Ostíiander, and Bird, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    YANELLI v. LITTLEJOHN.
    1. Trial — Statement of Plaintiff’s Attorney — Opening — Conduct of Counsel.
    Where counsel in opening his case stated that plaintiff and his wife, who sued defendant for fraud and deceit in the sale of a farm, had saved up §300 from his earnings and from money the wife had earned by working in a factory, upon which the court interrupted, sustaining an objection of defendant’s counsel, and ruled that the manner of earning it should be omitted, and did not make any difference, the action of the court corrected any possible prejudice from the statement.
    2. Evidence — Vendor and Purchaser — Fraud.
    In an action for falsely representing that a farm sold to plaintiff was suitable for raising good crops of corn, wheat, etc., and was worth §15 per acre, testimony of plaintiff and his wife that he had to work elsewhere during the first winter, and they were forced to seek help from the neighbors and from township officers, was competent in support of his contention that the farm was of poor quality, and not as represented.
    3. Same — Trial—Cross-Examination.
    Upon the cross-examination of defendant, who claimed that he had conveyed the farm in question to a third party from whom plaintiff bought, the court did not err in permitting plaintiff to show, that defendant had advertised other similar land for sale at a lower price and had made false representations concerning quality, value, and state of title; the facts developed bore upon defendant’s credibility and upon a gen, eral scheme to defraud that he may have been engaged in; nor would the testimony be inadmissible because fraud may be predicated upon a false statement regardless of the intent of the defendant or of his belief in the truth of the representations.
    4. Same — Improvements—Value.
    Testimony of plaintiff that he became indebted for lumber and built a house with it on the farm could not be held to have misled the jury when defendant’s witnesses testified to the value of the premises from a view thereof after the making of improvements.
    5. Same.
    Evidence bearing upon the general value of similar land in the community where the property lay was not erroneously admitted, both parties having offered evidence relating to the general situation and surrounding property.
    6. Fraud — Negligence of Injured Party.
    No duty to use diligence in discovering a fraud is imposed on the injured party.
    7. Same.
    That plaintiff disregarded his attorney’s advice not to purchase the land, because it was not as valuable as defendant represented, was no defense, if plaintiff purchased inreliance upon defendant’s false statements.
    8. Same — Damages—Mortgages.
    Plaintiff was properly allowed by the court to recover the difference between the actual value of the land and the value that it would have had if the farm had corresponded with defendant’s representations, where the testimony had a tendency to show that he paid $300 for the property, gave a mortgage back for §300 more, on which he made certain payments, and which defendant treated as subsisting though

      he claimed that plaintiff owed only §34 on it, by reason of an alleged deduction from and adjustment of the purchase price made by both parties.
    Error to Allegan; Padgham, J.
    Submitted June 20, 1912.
    (Docket No. 67.)
    Decided October 1, 1912.
    Case by Guiseppi Yanelli against Fred Littlejohn for fraud and deceit in the sale of real property. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles Thew, for appellant.

      Clare E. Hoffman, for appellee.
   Stone, J.

This is an action brought to recover damages which the plaintiff claims he has sustained in the purchase of 40 acres of land from the defendant, by reason of the alleged false and fraudulent representations made by the defendant relating to the quality and value of the land for farming purposes, which representations the plaintiff claims he relied upon. The plaintiff recovered a verdict and judgment for $534, and the defendant has brought the case here upon writ of error. There are 51 assignments of error. The appellant has not complied with Rule 40 of this court by making a clear and concise statement of the facts of the case distinct from argument, and we have found it unsafe to follow counsel in his alleged statement of facts, as it appears to be based largely upon defendant’s testimony and theory. ' Counsel has also failed to comply with Rule 36, in that the pages of the record where exceptions may be found are not stated in the record, nor in the assignments of error. We have, however, with the aid of the briefs, been able, by much labor, to search out the errors relied upon. The court in its charge to the jury made a statement of the claims of the respective parties as furnished by them, from which wé glean the following: That in the early spring of 1908 the plaintiff came to Allegan, and made arrangements with the defendant, or with one Pirro and defendant together, with reference to the purchase of the 40 acres of land in question. Plaintiff claims that defendant described this land to him, and represented that it was suitable for raising large crops of potatoes, corn, wheat, oats, rye, hay, and other farm crops, that it was a good quality of land, and was worth $15 per acre; that plaintiff is an Italian, had resided in Chicago, and was wholly ignorant of the value of land in this country, and that he relied upon what defendant and Pirro told him about the land. The plaintiff claims that Pirro was acting as the agent of the defendant; that some time after he had bought the land and obtained his deed he learned that Pirro claimed that he was buying the land of defendant and selling it to the plaintiff; that during the negotiations for the land he knew nothing about Pirro’s dealing with defendant in any way, except that he was selling the land for the defendant. Plaintiff claims: That he came to Allegan county and looked over the land, but relied upon the recommendations which defendant and Pirro made as to the quality of the land; that he paid $300 before he got his deed, and that afterwards he paid to defendant in Chicago $83. Defendant and his wife gave plaintiff a warranty deed of the land on April 28, 1908, the consideration of which was $600. That he gave back to defendant a mortgage on the land for $300, payable $50 April 1, 1909, and $50 on or before April 1st of each year thereafter, until the amount was wholly paid with interest at 7 per cent, per annum. The $83 appears to have been paid to defendant on the mortgage in the spring of 1909. Plaintiff claims that in the deal he was defrauded; that he was deceived by defendant and his said agent in the condition and quality of the land; that the land is not fit for growing crops; and that a living could not be made by him on the farm. Plaintiff claims that the land is valueless for farming purposes, and claims damages by reason of the failure of the land to come up to the recommendations which were made by the defendant and his agent.

The defendant pleaded the general issue, and claims that he did not sell the land; that he sold it to the man Pirro, and that the latter sold it to plaintiff, and that he, the defendant, had nothing to do with the sale; that he made no recommendation as to the quality of the land; that he never saw the plaintiff until he had been on the land, and until he came to defendant’s office and paid the money and got his deed. Defendant further claims that he made an agreement with Pirro in the forepart of April, 1908, to sell him the south half of section 18 (which included this land), excepting the west 40 acres thereof, for $7 an acre, if he paid up on all of it, and $7.50 per acre if he paid up only part of it, and that he would deliver deeds to Pirro, or any one named by him, of parcels of not less than 20 acres, upon being paid thereon one-half the purchase price, and take back a mortgage for the balance; that about April 11th Pirro, with five Italians, including the plaintiff, came to Allegan; that Pirro took them out to look at the property, and that plaintiff saw the 40 in question; that in January prior to this visit Pirro had been shown the premises by defendant’s agent; that while on the premises in April, the plaintiff and the other four selected parcels of land and paid to Pirro $20 apiece, taking a receipt for the same to apply on the purchase price agreed upon of $15 an acre; that they returned to Allegan and came into defendant’s office and were introduced to him, but that no conversation was carried on between defendant and them; that next morning they returned to Chicago, and employed a lawyer there to come to Allegan and investigate the land and title; that the lawyer did so and reported to them that the land was poor, and that he could furnish them as good land for $5 an acre, and warned them to look out for Pirro, as he could not be trusted; that on May 2d the said five Italians (including the plaintiff) with four others, came to Allegan, and went out to the property and looked it over thoroughly; that at that time the plaintiff saw this 40, and on the low land thereof water was standing; that one of the Italians brought with him his brother-in-law, who declared that the land was not worth $15 an acre, and induced him not to bu.y the land, and that this fact was then known to the plaintiff; that they returned to Allegan, and plaintiff and one Russo paid to Pirro $280 and $180, respectively, and that Pirro paid over the money to defendant, with enough added thereto to make a payment of $300 for plaintiff; that plaintiff and his wife had executed a mortgage in Chicago for the balance of the purchase price of $300, which was delivered to defendant; that two of the parties who had decided not to buy, returned to Chicago, and the others, with the plaintiff, returned to the land to help survey it; that on May 5th Russo came to Allegan, and obtained the deed to himself for his purchase, and a deed to the plaintiff for the 40 acres in question, and had them recorded, and a day or two thereafter the parties returned to Chicago; that two of the parties decided to purchase each a 40 acres, but were unable to raise the payment of $200, as required, and at the request of Pirro had promises from defendant to give them quitclaim deeds, until they or Pirro should pay on such first payment as much as $200 apiece, and accept a smaller payment to start with; that at the time plaintiff paid the money these two parties gave defendant a check for $560, which represented a payment of $300 for each; that defendant immediately banked this check, and, when Pirro came for the deeds on May 5th, the check had been protested and returned, and defendant called Pirro’s attention to this fact, and he said that he expected to take care of that by the sale of enough parcels of land to enable him to protect the check for the parties, and to give them longer time and smaller payments, and that he expected to sell enough to others to do so. It is a fact that he failed to do so. It came to the knowledge of the plaintiff later that Pirro bought the land from the defendant for $7 to $7.50 per acre, and he brought pressure to bear on Pirro, who finally assigned his interest in the contract to defendant. It was further claimed by defendant that he had advanced Pirro, in expenses and cash, the sum of $199, and that plaintiff and Russo had authorized defendant to settle with Pirro on the best terms obtainable, but not to exceed $50, and that defendant had done so before he had notice of, and before the assignment itself had been delivered to them; that plaintiff had paid to start with $300, and $83 afterwards, and figuring $7.50 an acre for 40 acres, and half of what difference had been paid Pirro on his contract, it left $34 for plaintiff to pay, upon which defendant agreed to cancel the mortgage, and on such terms it makes the purchase price of 40 acres $417. This balance of $34 is all that defendant claims he is entitled to hold on the mortgage against the forty.

There was testimony tending to support the claims of the respective parties, and there being a sharp conflict in the testimony, the questions of fact were for the jury to consider. We gather from the record that the plaintiff went into the occupancy of this land in the spring of 1909, and cleared and cultivated some of it, and in the year 1910 he built a house thereon, and has continued to live there since. It will be noted that the plaintiff does not seek to rescind the sale, but seeks to recover damages for the fraud which he claims the defendant was guilty of in the transaction.

In the discussion of the assignments of error appellant treats them as follows:

(1) Error calculated to prejudice defendant’s case by arousing undue sympathy for the plaintiff.

(2) Error in cross-examination calculated to prejudice the jury against the defendant and some of his witnesses.

(3) Error in the admission of evidence calculated to mislead and confuse the jury.

(4) Error in the introduction and rejection of evidence bearing upon the value of the land, and matters affecting said land.

(5) Error in charge of the court.

First. Taking up the first point, appellant claims that the record discloses a persistent effort on the part of plaintiff’s counsel to arouse prejudice of the jury against defendant, and undue sympathy for the plaintiff. He, by the first assignment of error, complains because in his opening statement plaintiff’s attorney was permitted to state over defendant’s objection and exception that:

“Guiseppi Yanelli, a married man, his wife being with him, lived in Chicago, and these two people had something like $800 which they had saved from his earnings, and from the money his wife earned working in the factory.”

Upon the objection being made, the court remarked that it did not make any difference, “Better leave it out,” whereupon plaintiff’s attorney said that he wanted to give the jury an idea of what the case was about, that they had $300 which they had saved at that time, and which they desired to invest in a farm. It was material to show that the plaintiff had and paid $300 on the purchase. How he had earned or obtained it was probably immaterial, but we do not consider the statement of sufficient importance to be discussed, and the remark of the court that “it didn’t make any difference” probably set the matter at rest in the minds of the jurors.

The fourth, fifth, sixth, and seventh assignments of error complain because the court permitted the plaintiff and his wife to testify that plaintiff had to work elsewhere than on the farm the first winter, and that they were forced to seek help from the neighbors and from the town- , ship officers. Bearing in mind that the declaration alleges that the land had been sold to plaintiff as good farming land, and that it would grow the numerous crops stated, the plaintiff sought to show the extent of the labor and effort made to produce crops, that enough could not be raised to support the family, and the necessity of going elsewhere to work, and the fact that the family had to be assisted by others. We think that whether the plaintiff was able to live on the place, and the amount that could be produced there, were material questions, as well as the efforts made by the plaintiff and family in that direction. While some of the testimony here complained of was rather remote and might have been properly excluded, we do not think that its reception constituted reversible error.

Second. The alleged errors in cross-examination complained of relate to the cross-examination of the defendant. It should be borne in mind that it was the claim of the plaintiff that the defendant and his alleged agent, Pirro, had conspired to cheat and defraud the plaintiff by deceit and false representations. It also appeared that the defendant was, and for some time had been, engaged quite extensively in the real estate business, and had advertised his business in the newspapers and by circulars. After testifying as to the value of the land in question, the defendant was cross-examined as follows:

“Q. Didn’t you sell land of the same quality as this for a great deal less than $15 per acre ?
“A. I don’t know where. * * *
_ “Q. November 16, 1905, didn’t you insert these advertisements in one of the Chicago papers:
“ ‘To close out quick, I am offering a good forty-acre farm close to Allegan courthouse, on the main road, all nice and dry, level land, with perfect title, for only $3001 ’
“(Objected to as immaterial; objection overruled and exception.)
“A. I may have done so. I don’t say I didn’t.
“Q. Did you offer this place for sale':
“ ‘ Highly improved forty-acre farm on main road, telephone, daily mail. This is two miles to Allegan, county seat of Allegan county. The farm is of nice, smooth, level land, no blow-sand or swamp. About 18 acres cleared and no hillside cultivation, all good black soil. Balance second growth wood; a first-class log house, lath and plastered, a small stable, good, poultry house, apples and peaches in bearing. Owner is forced to sell; has cut price down to $600.00. $100.00 or more cash, balance to suit you. Will furnish abstract free, showing title to be perfect. Take advantage of the cheap New Year rates — round trip from Chicago to Allegan $6.00. Come and see the biggest bargain ever offered in Allegan ?’
“ (Objection for the same reason; overruled; exception.)
“A. I don’t remember. I may have done so. * * *
“The Court: Where is that with reference to this land ?
“Plaintiff’s Attorney: I am trying to find out.
“A. I don’t know any such place.
. “Q. Did you sometimes offer places in the paper you didn’t have ?
“A. I have done so; yes, sir.
“Q. Put in different descriptions of land you didn’t have, and didn’t know of ?
A. I have.
“Q. Is that a sort of drawing card ?
“A. Simply to get a mailing list.
“Q. Then I understand it is your practice to insert in the papers these descriptions of land that don’t exist ?
“A. Not a practice. I have done it probably a half dozen times. (Motion by defendant’s attorney to strike out as immaterial and irrelevant; overruled; exception.)
“Q. Sometimes you make false printed statements in newspapers as to quality of land, and descriptions of land, you haven’t got for sale?
“ A. You can take it any way you are a mind to.
“Q. I am asking you.
“A. I have done that — written those men and paid the paper the price, if I didn’t have them for sale.
“Q. So the property described therein really never existed ?
“A. It may have existed. I won’t say it did or not.
“Q. It didn’t cover anything you had for sale ?
“A. No, sir. (Same objection; ruling and exception.)
“Q. You sometimes sent out circulars which falsely stated the amount a man could make on a certain parcel of land ? (Objected to as immaterial and irrelevant.)
The Court: No; it is charged in here, misrepresentations.
“Defendant’s Attorney: There is no tie to link the two.
The Court: I don’t know about that. There is quite a latitude of cross-examination in cases of this kind. Go ahead. (Exception.)”

The foregoing is a fair sample of the testimony complained of.

Bearing in mind that this was the cross-examination of a defendant charged with deceit and false representations relating to the quality and character of land sold by him, we cannot say that there was an abuse of discretion or error in permitting the cross-examination. Such examination bore upon the credibility of the witness, and it was relevant as tending to show that false representations may have been made as part of a general scheme to defaud, and that such representations were made intentionally or recklessly, and as bearing upon the fraudulent intent. Beebe v. Knapp, 28 Mich. 53; Stubly v. Beachboard, 68 Mich. 401 (36 N. W. 192); French v. Ryan, 104 Mich. 625 (62 N. W. 1016); Shrimpton & Sons v. Rosenbaum, 106 Mich. 68 (63 N. W. 1011); Diel v. Kellogg, 163 Mich. 162 (128 N. W. 420). Counsel for appellant argues that because, in this State, in order to constitute fraud, it is not necessary that the person making the statement should either know that it is untrue, or be recklessly and consciously ignorant whether it be true or untrue, but it is sufficient if the representation be false in fact, therefore. that such evidence was immaterial and irrelevant. We cannot agree with this contention. The rule stated would not do away with the right to cross-examine a party as to his real intention. It might also affect his credibility as a witness, and tend to enlighten the jury as to “what manner of man he was.”

Third. Alleged error in the admission of evidence calculated to mislead and confuse the jury. Complaint is here made that the plaintiff was allowed to show that he had built a house on the land, and had run in debt for the material. The record shows that the plaintiff had testified that defendant had promised to build a house at the expense of plaintiff. This was objected to by defendant as immaterial and irrelevant, whereupon plaintiff’s attorney said that to clear the record he did not care anything about the testimony, and the court ordered it stricken out, and the following occurred:

“Q. The talk between Mr. Littlejohn and Yanelli, as to the house, I don’t care anything about that. There was no house on this land, and you built a house ?
“A. I built a house, bought the lumber at Hamilton.
“Q. How much?
“Defendants Attorney: I object to going into this, as to the house.
"The Court: He may state that.
"Defendants Attorney (continuing): On the ground that it is immaterial and irrelevant, and has no bearing on the case. Note an exception.
"The Court: Let it stand.
“Q. How much did you pay for the lumber to build the house ?
"Defendants Attorney: Same objection.
"The Court: He may state that.
"A. I didn’t pay for it.
etDefendants Attorney: I move to strike that out.
"Q. How much did you buy ?
"A. One hundred and twenty-five dollars or $121.
"The Court: That don’t seem to have anything to do with the case at all.
"Plaintiff's Attorney: Undoubtedly they will swear witnesses to prove the value of this property, and we wish to have the jury understand the improvements that have been made, and what the cost of them was. ^
^ "The Court: That would not be a proper question anyway. Strike out the balance about the house.”

It is difficult to understand just what the court intended to strike out, whether all that had been testified to after the previous ruling, or only the latter part thereof. We do not think that it was error to permit the then condition of the premises to be shown, and who had made the improvements, especially in view of the evidence on behalf of defendant of numerous witnesses, who had examined the premises just before the trial. We do not think that the jury was misled by any evidence about the house, as the court plainly charged that the proper measure of damages would be the difference between the actual value of the land at the time of the purchase and what its value would have been had it been of the quality and condition represented. Aldrich v. Scribner, 154 Mich. 23 (117 N. W. 581, 18 L. R. A. [N. S.] 379); Painter v. Lebanon Land Co., 164 Mich. 260 (127 N. W. 739, 130 N. W. 205). We do not think that there is any merit in this contention.

Fourth. Alleged error in the introduction and rejection of evidence bearing upon the value of said land, and matters affecting such.

We have carefully examined the record and the assignments of error relating to this subject, and we are of the opinion that the court did not err therein. Bearing in mind that the declaration alleges' that the defendant had represented the land to be valuable, and suitable as farming land, and that it was sold for a home, upon which a living could be made by suitable treatment, it was proper to receive evidence, not only of climatic or frosty conditions there, but . of other land similarly situated in the neighborhood; that whole sections of land in that vicinity (including the land in question) were so poor in quality that they had been abandoned for farming purposes. These questions were gone into by both .parties, and in the introduction of evidence we do not think that the defendant was discriminated against by the court, as is claimed by appellant. Jackson v. Armstrong, 50 Mich. 65 (14 N. W. 702).

Fifth. Alleged error in the charge.

It is here claimed that the court failed to charge the jury properly on the question of diligence that the plaintiff should use before he would be authorized to rely on representations made by the defendant. Among other things, the defendant requested the court to charge the jury as follows:

“If you should find in this case that the plaintiff had employed an attorney to investigate this land, and report to him thereon, and that said attorney had reported to plaintiff, before he completed his purchase in this case, that said land was poor land, and as good land could be bought in this locality, to wit, Allegan county, for $5 per acre, and advised them not to buy the land, and warned them against the representations of Pirro, and you further find that Pirro was a stranger to them, and that defendant was a stranger to them, then I charge you that plaintiff would not be using reasonable diligence, under such circumstances, in relying upon the statements of either Pirro or defendant in regard to the value, or productiveness of said land; if he went ahead under such circumstances and purchased the said land, he cannot base an action on such representations.”

Theré was evidence tending to show the facts embraced in this request, but we do not think that appellant was entitled to have the request given. It was a question for the jury to determine whether or not, under the circumstances, the plaintiff had exercised reasonable diligence. The court did charge as follows:

“ I charge you that it is an essential element in a case of this nature, and it is necessary for the plaintiff to show, that he not only relied upon the statements made to him, if you find such statements were made, as alleged in his declaration, but that in so relying he was using reasonable diligence, under the circumstances in this case; and, if you do not so find, your verdict must be for the defendant.”

We think that defendant has no cause to complain of this branch of the charge. Bearing in mind the quality of the facts and the character of the inquiry, it was certainly not a question of law that the truth was discoverable by the plaintiff in any particular way. Jackson v. Armstrong, supra; Swimm v. Bush, 23 Mich. 99; Starkweather v. Benjamin, 32 Mich. 305; Holcomb v. Noble, 69 Mich. 396 (37 N. W. 497); Smith v. McDonald, 139 Mich. 225 (102 N. W. 738); Smith v. Werkheiser, 152 Mich. 177 (115 N. W. 964, 15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406).

A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud. Lewis v. Jacobs, 153 Mich. 664 (117 N. W. 325). It appears that plaintiff did not rely upon the advice and statements of Barassa, the attorney, but acted in disregard of such advice. Had his attorney advised him to purchase the land, and had he relied upon such advice, then the defendant would not have been liable: but the fact that Barassa advised him not to purchase, and that he did not follow the advice, might be urged as evidence of the strength of the representations claimed to have been made by the defendant. The question is not, Was he warned? but Was he deceived and defrauded by the defendant?

Although defendant made no motion for a new trial, he claims that the verdict was excessive, and that the court erred in submitting the subject of the measure of damages to the jury in the following part of the charge:

“The question here for you to decide is simply this: Did Mr. Littlejohn make the representations that the plaintiff claims were made to him, about the farm, about its value, about what it would grow, what it was worth for farming purposes ? Did he make those representations to the plaintiff, before he bought the land, at any time before he bought the land ? Did plaintiff believe and rely upon those representations, and pay his money upon those representations,'and take the land? Were those representations fraudulent and calculated to deceive the plaintiff ? Has the plaintiff been deceived in relying on those representations and paying his money ? He has got his deed and given a mortgage back. He paid $300 cash and gave a mortgage for $300 more — that is, $600 that he has got in it. The mortgage in this case stands good against thé land. There is a $300 mortgage, with no indorsements of payment, on the land. So we might assume that the mortgage still exists on that land. I say, if those representations were made, and he believed them, and they were calculated to deceive and did deceive him, as to the value of it, and the plaintiff has been defrauded by it, and damaged, by it, then he is entitled to receive, as I told you, the difference between what the proof shows to you is the actual value of the land and what it would have been if it had been as represented, as the plaintiff has claimed.”

The position of the defendant relating to the mortgage was rather equivocal. It is true that he stated that the plaintiff would have to pay him $34. It also appeared that the $83 paid in February, 1909, had never been indorsed on notes or the mortgage. Most of the amount secured by the mortgage was yet to become due, when defendant testified in the fall of 1911, and defendant could assign to an innocent purchaser. On his cross-examination he testified as follows:

“ The plaintiff has paid me on this land $383. I gave him a receipt for it. I still hold his notes and mortgage for $300. The notes were for $50 each. He don’t owe me anything now. I offered him his deed through Lemoine. The mortgage has not been discharged nor notes canceled. I don’t think I could collect them until they became due. I guess I could foreclose. I never foreclosed a mortgage, and am not familiar with it.”

Defendant nowhere offered to surrender the notes and mortgage, or declare them paid. We are not satisfied that the court erred in treating the notes and mortgage as a subsisting claim against the plaintiff, and against the land.

Such being the situation, there was evidence, which, if believed by the jury, was sufficient to support the verdict. We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steers, McAlvay, Brooke, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    RATTENBURY v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Negligence—Animals—Trespassing on Tracks.
    Trainmen owe no duty to the owner of animals trespassing on the right of way to look out for or to discover them: reasonable care merely requires that they should save them if it is fairly possible after discovering the animals.

      2. Same.
    Evidence of plaintiff tending to show that two horses were at large in the vicinity of defendant’s right of way on the night of the killing, that just before defendant’s train passed the crossing the whistle was blown in an unusual manner, that at the point where they were killed the track was straight and the headlight rendered objects visible 200 feet ahead, that the train could have been stopped within 100 feet on the grade at that point, was insufficient as against the denial of defendant’s engineer that he saw the animals, to raise an issue of fact for the jury, his testimony being unimpeached.
    Error to Wayne; Mandell, J.
    Submitted June 5, 1912.
    (Docket No. 112.)
    Decided October 1, 1912.
    Case by George Rattenbury and another against tbe Pere Marquette Railroad Company for tbe negligent killing of two borses owned by plaintiffs. Judgment for defendant upon a directed verdict. Plaintiffs bring error.
    Affirmed.

      C. G. Yerkes, for appellants.

      Bills & Streeter (8. L. Merriam, of counsel), for appellee.

      As to duty of railroad employés to keep a lookout for live stock on track, see note in 24 L. R. A. (N. S.) 858.

   Ostrander, J.

Testimony for tbe plaintiffs tended to prove that two borses escaped from an inclosure where they pastured, wandered through tbe streets of tbe village of Northville, Mich., passed upon the tracks of defendant, and proceeded north for some distance, when they were overtaken and killed by a north-bound passenger train which left Northville at about 3:25 a. m., September 7, 1908. Undisputed testimony tends to prove that the horses went upon the track within the limits of the yard maintained by defendant at- Northville, and plaintiffs abandoned as a ground for recovery the alleged negligence of defendant in not constructing and maintaining certain cattle guards and fences. They claim the right, under the second count of their declaration, and upon the testimony produced, to take the opinion of a jury upon the question of whether the engineer discovered the presence of the animals on the track and could so have driven the locomotive as to save them. This the trial judge denied, and directed a verdict for the defendant.

In Granby v. Railroad Co., 104 Mich. 403 (62 N. W. 579), the plaintiff’s contention was that the company’s servants negligently ran the horses down after they knew of their presence on the track, and when they might have avoided their destruction. Upon this point it was held in the majority opinion that the testimony of the engineer and fireman that they discovered the presence of the horses too late to stop the train was not necessarily conclusive, and that the case was rightly sent to a jury. There was testimony tending to prove that the horses ran, either between the rails, or just outside of them, for 44 rods before being struck and killed. It appeared further that it was in the daytime, and that the horses on the track could have been seen for a distance of more than half a mile. Both opinions affirm the rule that as to the owner, trainmen are not bound to look for and discover trespassing animals, or to do more than save them after they are discovered, if it is reasonably possible so to do.

In the instant case the engineer testified that he did not see the horses, and did not know that they had been struck by the locomotive, or that anything had been struck by it, until he reached Wixom, when he discovered hair on the left side of the pilot beam and some injury to the step.of the pilot, which he reported. He testified, also, that he gave no other than the regular station and crossing signals with his whistle. He saw one horse in the said highway on the right, or east, side of the track, which came running up to the engine and stopped. He did not strike that horse. Manifestly, if this testimony is conclusive, the verdict was rightly directed.

Plaintiffs say it is not conclusive, and, as making an issue of fact upon the question, they point out the following testimony: A woman living on the west side of the line, and south of the highway from which the horses went upon the right of way, heard the horses, or some horses, in her yard. She then heard defendant’s train whistle south of the station, which was south of her house. She saw the horses as they left her premises going to the west, and when they again returned, going towards the railroad. The train was approaching, and she heard it whistle some rods south of the crossing—

“And all I know the train whistled and made lots of noise from the bridge to behind our house, and that is all I can say. * * *
'“ Q. You say they made lots of noise. What was the nature of it ?
“A. Sometimes when they are unloading teams they make noise to notify the people.
Q. What do they make the noise with ?
“A. Blowing the whistle, and they did that until they were behind my woodshed, and there I thought by myself, if the horses get scared by the train, they made lots of noise and that is all I know.”

Another woman, a witness, testified that she lived about 100 rods from the tracks, and that upon the particular morning the—

“ Train tooted the danger signal. That started at the bridge, at the overhead bridge. The direction of it is south from the house. They were tooting and whistling. I could not tell how long it continued. When it stopped, they were at the end of our coal sheds. It was not a steady noise. * * * When I first heard the whistling, the sound came from the bridge, from the overhead bridge. * * * The bridge is between our house and the depot. The depot is south of the overhead bridge, and the bridge is between our house and the depot, and the bridge is toward the house from the depot.”

The station is a half mile south of the highway from which the horses went upon the track. The overhead bridge referred to is 990 feet south of the highway. South of this bridge there is a curve in the track. The highway, at the crossing, is 30 feet wide. North of the highway about 38 paces is a bridge, over a small stream, on which the ties are laid some four or five inches apart. The horses were found on the left side of the track, one 50 and the other about 100 feet north of the bridge. Appearances indicated that at least one of them was struck on the bridge. The testimony for plaintiffs tends to prove that the horses seen by the witness were running (galloping) in the highway, going towards the tracks, and that the horses killed were running on the tracks. The locomotive headlight permitted seeing objects on the tracks 200 feet ahead of the locomotive. The view on the track to the north was unobstructed, and the train, traveling up a grade as it was, could have been stopped in 100 feet. It was dark. In the argument for plaintiffs it is said: '

“If the engineer had admitted the truth of the testimony of plaintiffs’ witnesses that he had given an alarm, from which it could be assumed that something was on the track, and explained by a showing that he was whistling, say, for people on the highway, or that he had seen the two horses, was whistling for them, and was afraid to stop his train for fear of injuring his passengers, then his testimony might have been a basis for the court to direct a verdict. His testimony, however, was a direct denial, raising a question of fact; and the only question left in the case was whether the plaintiffs’testimony, as it stood, was sufficient to leave to a jury. It would be impossible for a plaintiff to testify directly that an engineer sees obstacles on the track. He can only testify to those acts of the engineer which indicate that he has seen something, or that the .circumstances were such that he should have seen. In this case it is claimed that he did see the stock, as shown by his act; but that if the jury did not find that he saw, that the testimony showed such a state .of facts that they might find that he should have seen this stock in time to have avoided the killing.”

This contention, as well as the case made by the declaration, is plainly too broad, because it assumes the existence of a duty to exercise care to discover, the presence of the animals on the track. Plaintiffs’ case depends upon the existence of two facts, one the discovery of the horses on the track; the other a needless running them down. No one saw these horses go upon the track. Their hoof prints were not found in the highway. One or more other horses were running about in that vicinity that night. The horses seen by the witness in her yard may, and may not, have been the horses which were killed. Prom the fact that a succession of signals was given with the whistle, it may be inferred that it was thought necessary to give them; that the warning was given because something, or somebody, was discovered upon the track, or near it. It is a necessary part of the inference that the signals were given, not before, but after, the discovery was made. When from this inference we are asked to find that the engineer discovered the presence of these horses on the track, or in the highway, from which they turned upon the track, we are asked to base inference upon inference; a necessary part of the second inference being that the horses were discovered a long distance south of the highway. The testimony of the engineer that he did not at any time discover the presence of the horses on the track is not directly disputed, and he was not impeached generally. As they were struck by the left-hand side of the locomotive and within a few feet of the highway, his testimony is not inconsistent in itself, especially if he was observing, as he testified that he was, a horse in the highway, running towards the train. It will not be assumed that he willingly took avoidable risks. If it is assumed that he was mistaken about the signals which were given with the whistle, it is still true that he is not contradicted upon a material point. To permit plaintiffs to recover, we must assume, what ought to be proved, that he saw the horses and could have safely avoided injuring them.

In my opinion, the trial court committed no error, and the judgment is affirmed.

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


text:
    RAUHALA v. MAKI.
    1. Intoxicating Liquors — Statutes—Surety Company — Bonds —Pleading.
    Since the court takes judicial notice of the statute permitting defendant surety company to act as surety on a liquor dealer’s bond, bonds executed thereunder were admissible in evidence in a civil-damage action in which the statute authorizing the action (2 Comp. Laws, § 5398, 2 How. Stat. 2d Ed. § 5074) was pleaded, and defendants pleaded the general issue, although the declaration did not allege that defendant corporation was duly qualified to aot.
    2. Same — Evidence—Means of Support.
    Reversible error was not committed by permitting plaintiff to testify that because her husband failed to support her she was obliged to work to support herself and children, by doing washing and ironing away from home, and that she had received aid from the county.
    3. Same — Witnesses—Privilege.
    Plaintiff having called one of defendant saloon keepers as a witness, was entitled to cross-examine him under the statute, Act No. 307, Pub. Acts 1909, in the absence of any claim of privilege on the part of the witness, whose testimony did not tend to incriminate himself.
    4. Same — Mental Suffering.
    The compensation to be awarded for the mortification and shame of the wife is particularly a matter for the jury, and, unless convinced that injustice is done, this court will not set aside the verdict.
    5. Same — Damages.
    Eive thousand four hundred dollars would not be held to be an excessive award of damages but for misconduct of plaintiff’s attorney requiring a reversal.
    " 6. Same.
    Where plaintiff’s attorney frequently referred to plaintiff’s children during the progress of the trial and asked numerous questions with evident intent to get such fact before the jury, notwithstanding an adverse ruling of the trial judge, the error was prejudicial and reversible.

      Error to Houghton; Streeter, J.
    Submitted June 21, 1912.
    (Docket No. 51.)
    Decided October 1, 1912.
    Case by Gustava Rauhala against John Maki and others for illegal sales of intoxicating liquors to plaintiff’s husband. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Galbraith & McCormack, C. A. Marsch, and A. F. Bunting, for appellants.

      Burritt & Burritt, for appellee.
   Ostrander, J.

Setting out in her declaration that on May 1, 1908, her husband had the habit of drinking intoxicating liquors and of becoming intoxicated, plaintiff alleged that thereafter, during the years 1908, 1909, and 1910, certain of the defendants unlawfully and to her injury sold her husband liquor. After the testimony was concluded, she dismissed her action as to certain defendants, and it is not claimed that any unlawful sales were proven to have been made after April 30, 1910. Against the remaining defendants, the jury returned a verdict for $5,400, and judgment was entered on the verdict. A motion for a new trial was made, and was denied.

The contentions of appellants will be noticed in the order in which they appear in the brief.

An objection was made, on behalf of the defendant Michigan Bonding & Surety Company, to the introduction of any testimony, upon the grounds (a) that it was not alleged in the declaration that the company was qualified by law to execute the bonds of retail liquor dealers; (6) the declaration counts upon 2 Comp. Laws, § 5398 (2 How. Stat. 2d Ed. § 5074), and refers to no other statute, and that statute requires personal bondsmen for liquor dealers; (c) the declaration alleges sales of liquor by one Joel Matson during different years, in only one of which was the surety company his surety. These objections are stated in the brief, but are hot argued beyond this, that it is said:

“The question simply is, Shall the plaintiff be allowed to count specifically on one statute and then introduce evidence under another ? ”

We do not perceive that the question stated is presented. Plaintiff produced and offered in evidence certain liquor dealers’ bonds which appeared to have been executed by the said surety company. Judicial notice is taken of the statute which permits that company to become such a surety. The statute gives a right of action against the saloon keeper and his surety or sureties, and was pleaded. The surety company pleaded the general issue. See Johnson v. Grondin, 170 Mich. 447 (136 N. W. 423), where substantially the same objections were considered and overruled.

Errors are assigned upon, rulings admitting testimony. Plaintiff claimed that her husband had after a time wholly failed to support her, and in consequence that she was obliged to work to support herself and children. She was asked what kind of work she did, and was permitted to answer, over the objection that the testimony was incompetent, irrelevant, and immaterial. She then stated that she did washing and ironing away from her home. She stated further, over like objection, that she received aid from the county.

The statute gives a right of action to a wife injured in person or property, or means of support, or otherwise, by reason of the selling, etc., of liquors, against any person who shall by such selling have caused or contributed to the injury. A wife, injured because her husband fails, in part or wholly, to support her, because of the liquor-drinking habit, has usually no need to re-enforce her testimony showing the support she would have received, and the loss of it,- by detailing the manner in which she provided for herself, or was provided for by others. Whether she is obliged to support herself by work in an office, or in a laundry, or is supported by the public, the injury for which she may recover is the same. She has lost, wholly or in part, her means of support formerly furnished by her husband. The trial judge said to counsel in the presence of the jury:

“I think, perhaps, Mr. Bunting’s position is correct, with regard to what the members of the family, outside of Mrs. Rauhala, may have done; and I do not see how the question of where or in what manner she obtained her support can be material either, unless the defense will bring out that she had means of her own that she was using before. I think the sole question here is whether she was deprived of support that was furnished by her husband, and deprived of it through illegál sales of liquor, or means to which the illegal sales contributed.”

This is a correct statement. We think, however, that reversible error was not committed in allowing her to prove that she was obliged to earn her living; and the character of the work she did, and, generally, the sources from which she derived what her husband failed to provide were some evidence of the fact.

One of the defendant saloon keepers was called as a witness by the plaintiff; her counsel stating that he was called and would be examined in accordance with the act permitting opposite parties to be called, and limiting the effect of the testimony they may give. It was objected that the act is unconstitutional and void. It is said here that in this instance the examination invaded the constitutional immunity of the witness from giving testimony against himself. One answer to this is that it was not the objection made in the trial Court. Another answer is that the witness at no time claimed his privilege. Still another answer is that he gave no testimony tending to incriminate himself. We find no merit in any of the assignments of error based upon rulings admitting testimony.

The very substantial verdict returned evidences the fact that plaintiff was awarded damages for something besides her loss of means of support. The nearest she came to stating a definite sum as the cost of her sup-' port was that it was over $30 a month, without luxuries. Her husband was a drunkard at the beginning of the period, although giving attention to his business as a tailor. During a portion of the time, he supplied something for his wife and family. She sold furniture and utensils from his shop and had the avails thereof. He left his home and family; and his whereabouts and conduct, and whether he has furnished anything to his family since this suit was begun, are facts not disclosed.

It is contended that the charge of the court and refusals to charge as requested, respecting the damages recoverable in this action, permitted the jury to employ improper rules in estimating the damages. The charge of the court is a fair and full presentation of the issues and of the applicable law. It contains the substance of such requested instructions as should have been given. We find no error in it.

In denying the motion for a new trial, the court said:

“The amount of the verdict, considering the testimony, cannot be held excessive.”

The compensation to be awarded in such cases for the mortification and shame of the wife is particularly a matter for the jury; and, while the power of the court to prevent plain injustice is clear, it must be convinced that injustice has been done before it will interfere. The testimony tends to prove that plaintiff notified the defendant saloon keepers not to sell liquor to her husband. Upon various occasions, she went to their saloons to get him and take him home. It appears that he was sent to jail, and while working there furnished some support to his wife. It is possible — indeed, it is probable — that the jury were impressed by facts referred to by counsel and hereinafter mentioned, and the impression may be reflected in the verdict. But for the errors of counsel we should not, however, reverse the judgment.

4. In his opening statement to the jury, the attorney for the plaintiff said he would prove that the plaintiff worked to support herself, and that her children worked. While he was interrogating the plaintiff as a witness, he inquired of her, “How many members were there of your family in 1908 and 9 and 10 ? ” An objection was sustained, and thereafter the following occurred:

“I would like to state to the court the reason of the question. This action is brought to recover damages for loss, or partial loss at least, of the means of support of this plaintiff; and, as it will appear in evidence in this case that her husband made some contributions for the support of the family during a certain period of time, it seems to me that the number of the members of the family between whom that contribution made by him was to be divided, and for that purpose and that purpose only, and I make a disclaimer for all other purposes. That testimony would be admissible as bearing on the amount of the loss occasioned to this plaintiff.
Mr. Bunting: I desire an exception to the statement of counsel and to his asking the question; it being an incompetent and immaterial matter to the jury.
The Court: You may take an exception.
" Mr. Burritt: Your honor understands the purpose of the question ?
The Court: Yes.
“Mr. Burritt: Of course, that question is asked, your honor, in view of the legal rights of the defendants and every other person who might be interested.
“Mr. Bunting: The same exception, please.
“Mr. Burritt: Does your honor sustain the objection?
The Court: I ruled before you made your remarks.
“Mr. Burritt: Give me an exception.
“Q. In 1908 and 1909 how much did it cost a month to support Rauhala’s family ?
“ Mr. Bunting: I object to that as incompetent, irrelevant, and immaterial.
“The Court: Sustained.”

The record discloses that later plaintiff’s attorney again took up the subject of the family.

“Q. Now state, after your husband quit providing for you in 1909, and before the 23d day of July, 1910, your children, or either of them, had to work, or did work ?
“Mr. Bunting: I object to that as incompetent, irrelevant, and immaterial, and I take an exception to the repeated questions including family and children.
“The Court: I sustain the objection.
“Mr. Burritt: I presume, if your honor pleases, the defense will take exception, and I don’t want to say anything here that would- have a tendency to prejudice; but if a child is compelled to go out and work for the support or assistance in getting necessaries of life, is that humiliating ? -
“Mr. Bunting: I desire an exception to the use of that language.
“Mr. Burritt: It is for that purpose that I offer it.
“ The Court: I think, under the decisions in this State, the ruling was the only one I am permitted to make, Mr. Burritt.
“Mr. Burritt: May I take an exception to the ruling of the court ?
“ The Court: Certainly.”

Again the subject was introduced: .

“Q. Did you talk to either of those men ?
“A. I did talk, and I was a little angry, and I told them not to give any liquor to my husband. When I talked to him, he asked me if I was Matt Rauhala’s wife, and I said 'Yes,’ and he said he didn’t know Matt Rauhala had a wife, and I said: ‘ Yes; you know it now. He has a wife and six children.’
“Mr. Galbraith: I move that that be stricken out. The answer is incompetent, irrelevant, and not responsive to the question.
“The Court: I think the latter part may be stricken out. * * * So you only saw your husband in Matson’s place three times ?
“A. Yes; but my son saw him going in there several times, and I saw myself.
“Mr. Galbraith: I would like to have that stricken out.
“The Court: It may be stricken out.”

• In denying the motion for a new trial, the court said upon the subject:

“ The fact that the plaintiff had children being brought to the attention of the jury was error. A number of cases in this State hold that the admission of testimony to establish that fact is reversible error. In this case the testimony offered on the part of the plaintiff bearing upon this question was not admitted. I am satisfied that the presence of one of the children in the courtroom during part of the trial was not occasioned by the attorneys for the plaintiff; and his presence was not made prominent nor noticeable, except by the statement of the plaintiff in an answer to a question on cross-examination. The plaintiff did not understand English, and her mention of her son was evidently an endeavor to designate a person having the information called for by the examiner, and not a desire to show that she had children. Taking into consideration the character and capacity of the men who composed the jury, the fact that two of the jurors were from the same place where plaintiff and her husband had lived during all of their married life, the testimony given by two of the defendants themselves and that given by their barkeepers, and taking into account the amount of the verdict, I am satisfied that in this particular case the error had no influence whatever upon the jury, and was not prejudicial to the defendánts, or either of them.”

Appellants insist that upon this point reversible error is made out. In Johnson v. Grondin, supra, a recent case, this court took occasion to review at some length applicable decisions of the court. The statute gives a separate right of action to the wife and to the children, and to preserve the rights of each; and, that no injustice might result to any one, this court has repeatedly held that the action of the wife must proceed upon the theory that for only her own injuries can she be awarded damages. So far as judicial admonition and decision can be useful in this direction, the attorney for plaintiff was advised. Uncalled-for replies of his client, made without instruction and in ignorance of their import, might be excused. But his persistence in recurring to the subject of the children, his suggestions, in the presence of the jury, calculated to enhance the damages, because there were children, and because they, too, were affected by the habits of their father, cannot be excused, unless a rule heretofore adhered to is to be abrogated, because persistently disobeyed.

The judgment is reversed, and a new trial ordered.

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

      Act No. 307, Pub. Acts 1909.


author: Moore, C. J. Ostrander, J.

text:
    MESSMORE v. KRACHT.
    Municipal Corporations — Counties—Board oe Supervisors— Sheriff — Public Officers —Malicious Prosecution — Reimbursing Officer for Attorney’s Fees.
    The board of supervisors may reimburse a deputy sheriff for attorney’s fees paid out by the deputy in defending himself against an action of malicious prosecution brought against him by one whom he had arrested on a warrant fair on its face charging a violation of the compulsory school law, where the officer acted in good faith and was held not liable in the action. Act No. 74, Pub. Acts 1907. Ostrander, McAlvay, and Stone, JJ., dissenting..
    Certiorari to Macomb; McKay, J.
    Submitted June 4, 1912.
    (Calendar No. 24,997½.)
    Decided October 1, 1912.
    Mandamus by Howard O. -Messmore against William F. Kracht to compel relator to sign and deliver to relator an order for money allowed to relator on a claim presented to the board of supervisors. An order denying the writ is reviewed by relator on certiorari.
    Reversed.

      Bert V. Nunneley (Warren 8. Stone, of counsel), for relator.

      Erskine & Lungerhausen (Wm. T. Hosner, of counsel), for respondent.
   Moore, C. J.

The relator was a deputy sheriff duly appointed. A Mr. Zimmerman was proceeded against for a violation of the compulsory school law. Relator, together with one Kandt, who was truant officer of Ma-comb county, arrested said Zimmerman by virtue of a warrant fair on its face issued by a justice of the peace for an alleged violation of the school law. Mr. Zimmerman was acquitted of the charge because no legal notice had been served on him as required by law. After his acquittal, Mr. Zimmerman brought an action against both of these officers for malicious prosecution and abuse of process, in the defense of which both were successful. Respondent does not question that these officers were proceeding as they supposed in the due discharge of their duties. After the termination of the suit against him, relator presented to the board of supervisors of Macomb county a claim for his expenses incurred in that litigation involving counsel fees. No question as to the reasonableness of the attorney’s bill is raised. The board of supervisors were advised as to the nature of the claim, and allowed it at the sum of $120. The regularity of the proceedings before the board of supervisors is not questioned. Respondent William F. Kracht is county clerk of Macomb county and clerk of the board of supervisors. On demand made he refused to sign and deliver to relator his order for the money so allowed him. Relator applied to the circuit court for the couty of Macomb for a writ of mandamus to compel respondent so to do. The said circuit court denied the writ, and the cause has been brought to this court on certiorari.

It is the claim of relator that the only question involved is:

“Has the board of supervisors the power, if it so determines, to reimburse a deputy sheriff for expenses incurred by him in successfully defending himself in litigation growing out of the good faith performance of his duties as such officer ? ”

The rule has been stated as follows:

“It is within the discretionary power of a municipality to indemnify one of its officers against liability incurred by reason of any act done by him while in the bona fide discharge of his official duties, and the municipality has the right to employ counsel to defend the officer, or to appropriate funds for the necessary expenses incurred by him in such defense, or pay a judgment rendered against him.” 28 Cyc. p. 454.

In the case of Sherman v. Carr, 8 R. 1.431, the mayor of the city was sued upon a charge of false imprisonment, and he made defense upon the ground that the acts complained of were committed by him in his capacity as mayor. A verdict having been recovered against him, the common council made an appropriation to reimburse him, and suit was brought by a taxpayer to enjoin payment of the same. In disposing of the case, the Rhode Island court said, in part:

“The terms of the city charter forbid the council, after the enumeration of certain prohibitions having no direct resemblance to the matter in hand, to ‘do or transact any matter except such as belong to the legitimate duties of a municipal body within its own province,’ ‘or to vote money for any object except for the regular, ordinary and usual expenses of the city.’ Is it then a legitimate duty? Is it then one of the usual and ordinary expenses of the city to protect its officers who, while exercising in' good faith the functions of their office, have been found by the verdict of a jury to have exceeded the lawful powers of that office, and to have trespassed on the rights of a citizen? If the power to indemnify an officer under these circumstances does not rest in that body who appropriate the money fob all the legitimate duties of a municipality within its own province, the various executive officers of a city perform their duties at the peril of an individual responsibility for all their mistakes of law and of fact, however honest and intelligent they may be, and also at the peril of the possible mistakes of a jury naturally jealous of the rights of the citizen, when brought in conflict with the exercise of official power. If the officer is thus responsible, he will naturally be too cautious, if not timid in the exercise of his powers — powers which must be frequently exercised for the protection of society before and not after a thorough investigation of the case in which he is called upon to act. On the other hand, it may be urged, if the officer has the right to fall back upon the treasury of the city, there is danger that he will become reckless and overbearing in the exercise of the powers of his office. It would seem, therefore, to be the wisest to leave the indemnification of the officer to the discretion of those who represent the interests of the city, that, on the one hand, they should not be without the power to indemnify a meritorious officer, acting in good faith, for the. consequences of his conduct, and on the other hand, they should not be obliged to protect every officer, though acting in good faith, under circumstances which seem to them to indicate a blamable want of care and caution. Under such a state of the law, every executive officer of the corporation would feel that he was acting as the servant and agent of that corporation, relying upon their good faith and good judgment toward him, so long as he acted in good faith and good judgment in the discharge of his duties.
“ This distribution of power, which would be practically the wisest in the administration of municipal affairs, is the one which we understand to be in accordance with the existing law and long continued practice in this State. It is one in which many decisions in a neighboring State, whose system of statute law and judicial decisions is most like our own, show to have been frequently upheld in the courts ^ of that State. We are not furnished with any authorities which tend to establish a contrary doctrine. We know of no case in which, while the officer continues to act in behalf of the community, it cannot indemnify him. We therefore find that the appropriation of money in this case by the city council of Newport was within their authorized powers, and it is not for us to inquire as to the wisdom or discretion with which those powers were exercised. We must therefore deny the injunction.”

In the case of Abels v. Ingham County Sup’rs, 42 Mich. 526 (4 N. W. 206), wherein a private detective sought pay for services in apprehending a criminal, though not controlling, contains the following language:

“We make no question that relator performed valuable services honestly, but he performed them as a private citizen, and the board have full discretionary authority to make such allowances as they may think proper. But they are not legally compellable to make any.”

See Pistorius v. Saginaw County Sup’rs, 51 Mich. 125 (16 N. W. 262). In disposing of the case, the trial judge used the following language:

“A policeman or marshal are officers of the municipality in enforcing its ordinances. They are appointed by the municipality, and are subject to removal by the municipality for any malfeasance or misconduct of duty. A sheriff and his deputies are not under the control of the county, nor of the board of supervisors, but are officers of the State, independent of the board of supervisors and the county, in the performance of their duties. The subject-matter in this case was the attempt to enforoe the compulsory school law of the State of Michigan. The duty of enforcing this law is specifically imposed upon the officer by statute, and the county of Macomb, the board of supervisors thereof, has no duty to perform, and has absolutely no control or direction over the officer in the performance of his duty relative thereto. But the officers of the State of Michigan have a duty to perform in the enforcement of the compulsory school law; * * * that the action of the board of supervisors in allowing relator’s claim was void and of no effect; that it was the duty of respondent to refuse to sign a warrant for the same.”

Counsel for respondent cite many cases which they claim sustain the action of the circuit judge. An examination of them will show they are not controlling. They may be divided into two classes: (1) Either the case for which indemnity was sought was a case of the public against the party claiming indemnity; i. e., impeachment or investigation. Such cases are People v. Lawrence, 6 Hill (N. Y.), 244; Merrill v. Plainfield, 45 N. H. 126; Butler v. City of Milwaukee, 15 Wis. 493; Chapman v. City of New York, 168 N. Y. 80 (61 N. E. 108, 56 L. R. A. 846, 85 Am. St. Rep. 661). (2) Or the matter on which the officer was acting and out of which the litigation for which indemnity is sought grew was a private matter, and the officer was acting for private individuals, and not for the public, much as the sheriff acts in serving civil process. Such cases are Gregory v. City of Bridgeport, 41 Conn. 76 (19 Am. Rep. 458); Smith v. City of Nashville, 4 Lea (Tenn.), 69; Follensbee v. St. Clair County Sup'rs, 67 Mich. 614 (35 N. W. 257). The truant act, so called, is Act No. 74, Pub. Acts 1907. Sections 2 and 3 expressly provide for the appointment of a county truant officer and the payment of his salary and expenses by the county, and expressly makes violation of the act a misdemeanor. Section 4 makes it the duty of justices of the peace and recorders’ courts to issue warrants and commands the magistrate or justice to proceed to hear and determine the case in the same manner as is provided in the statute for other cases under his jurisdiction.

We think the view of the trial court is too restricted. The people of the State have long believed in establishing schools in which the children should be educated. The taxpayer, though having no child, is taxed to support the public schools. To insure the education of all the children, the truant act, so called, was passed. These measures are justified upon the theory that in a republic all the citizens should be so educated as to be able, when attaining maturity, to intelligently act upon the questions awaiting solution by adult citizens. . The locality where the school is located, the county, and the State are all interested in having the school laws enforced. We think it was within the discretion of the board of supervisors to allow this claim, and it is not for the clerk of the board to nullify their act.

The action of the court below is reversed, and the writ of mandamus should issue as prayed, with costs to the relator.

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

Ostrander, J.

(dissenting). In my opinion supervisors have no power to appropriate money to reimburse a sheriff, or his deputy, for expenses incurred in defending a suit based upon an alleged improper arrest upon a criminal warrant, except in cases where the county, as a municipality, is interested in or has brought about the arrest. A county is not so interested in the arrest of one charged with violating- the school laws of the State. A sheriff is, it is true, elected in each county, and, in making arrests upon criminal warrants, is performing an official duty; but his official responsibility to the county is not like the responsibility of a policeman or mayor to a city. He does not, in making arrests, execute any law or ordinance of the county. And the cases will be few in which his actions in executing criminal warrants involve any county interest.

The action of the circuit court should be affirmed.

Stone and McAlvay, JJ., concurred with Ostrander, J.