text:
    ZANLEY v. HYDE.
    1. Libel and Slander — Letter Accusing Crime — Publication.
    The writing and. sending of an unsigned letter by defendant to plaintiff, a boy about 15 years of age, accusing him of larceny, was no such publication as would support an action for libel, although the letter was received, opened, and read by plaintiff’s mother.
    2. Same — Privileged Comimvnication, What Constitutes.
    Where a party makes a communication and such communication is prompted by a duty owed either to the public or to a third party, or the communication is one in which the party has an interest and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice.
    3. Same — Letter to Father of Accused — Discharge of Moral Duty — Qualifiedly Privileged.
    Where defendant believed that a hoy related to him had taken his children’s hanks and money and wrote to him to return the same, but, receiving no reply, wrote the facts to the hoy’s father, such communication was qualifiedly privileged, being written in the discharge of a moral duty.

      4. Same — Privilege—What Determines.
    It is the occasion, and not the language used, "which determines whether a communication is qualifiedly privileged.
    5. Same — Libelous Per Se — Malice Presumed.
    A letter to a father imputing the crime of larceny to his son is libelous per se, and malice will be presumed.
    6. Same — Presumption Rebutted Where Communication Privileged — Burden of Proof.
    But where it appeared that such communication was privileged, the presumption of malice was rebutted, and the burden of proving actual malice or a lack of good faith on the part of defendant devolved on plaintiff.

    7. Same — Evidence—Intrinsic—Extrinsic—Proof.
    The evidence to prove same may be either intrinsic, being shown by the nature of the language used and the manner and extent of its publication, or extrinsic, consisting of facts which show previous ill-feeling or personal hostility, or that the letter was written without the defendant’s having made reasonable inquiry and investigation and not in good faith.
    8. Same — Absence of Malice — Directed Verdict.
    Where the record shows that plaintiff’s counsel,, at the close of the proofs, and also on motion for new-trial, conceded that there was no evidence of malice, either in law or in fact, in the writing of the letter sued on, the trial judge properly directed a verdict for defendant.
    Error to St. Clair; Tappan (Harvey), J.
    Submitted October 7, 1919.
    (Docket No. 5.)
    Decided December 22, 1919.
    Case by Floyd Zanley, an infant, by his next friend, against John Hyde for libel. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      McIntyre & Robinson, for appellant.

      Walsh & Walsh, for appellee.

      The question of privilege of communications to relatives of person defamed, is discussed in a note in L. R. A. 1915A, 572.

      As to whether malice, which will preclude qualified privilege, be inferred from publication alone, see note in 12 L. R. A. (N. S.) 90.

   Sharpe, J.

The action is for libel. The defendant had judgment on a directed verdict, and plaintiff appeals. The plaintiff, a boy 15 years of age, residing with his parents in the city of Detroit, was taken by his mother to Yale, Michigan, where she obtained employment for him for' the vacation period in 1918 with a farmer named Palmer. The defendant, whose wife is a cousin of plaintiff’s mother, lived on a farm near by. Plaintiff frequently visited at defendant’s home while working at Palmer’s. After a few weeks, Palmer had no further need of plaintiff’s services and defendant, at plaintiff’s request, consented to plaintiff’s staying at his home and agreed to pay him what the service rendered was worth. He remained there from Saturday until the following Friday. The day after plaintiff left, the defendant and his wife missed two small metal banks, in which their children kept their savings. Defendant testified that these banks and where they were kept was talked about in plaintiff’s presence on the Sunday he was there and while in their automobile and on their way to a picnic. Defendant’s wife testified:

“i remember this trip on Sunday to the lake. My husband and my family and myself and Floyd in the machine. We were at church first and I got lunch ready and we went after that, we took our lunch with us. Floyd was sitting in the front seat with my husband and one of our little boys. And I was in the back seat and I heard my husband say, ‘Boys, how about your banks, are they all right and safe?” and one of the little boys said, T know they are all right because I put them in the drawer of the kitchen cabinet away back in the drawer of the kitchen cabinet’ ; he put them there that morning, so he said he knew they were safe, something like that. I had seen the banks in there that morning because I put a dime in one of them for one of the boys. It was so full I could hardly get the one dime in. They were round like a dollar, I don’t believe they could be larger than a silver dollar, and a picture of the Capac Savings Bank on the outside.”

They both testify that the banks were missed on the following Saturday, the day after plaintiff left. On August 9, 1918, a few days later, plaintiff’s mother received, opened and read the following letter, addressed to plaintiff:

“Floyd Zanley:
“I want you to return that money and things you took from here; if you don’t send it back in five days I will go down and take the sheriff and detective from this county. I would do it now only for your mother and father; now if you 'send it back at once I will not tell your mother or father or any one else, but if you don’t, you will get the punishment and I surety will not spare you. I will not sign my name to this so if your mother should get it, she won’t know who you took it from, but you know and you return those things with every cent and register them in five days, at the latest, or you will see me.” i

This letter was written by defendant’s wife and, as they both testify, without his knowledge or authority. No answer having been received thereto, defendant’s wife wrote plaintiff’s father the following letter:

“Capac, Michigan.
“Yale, Mich., Aug. 17th, 1918.
“Dear Mr. Zanley:
“I wrote to your son, Floyd, about some money that we have proof that he took from here, but he has failed as yet to return it. I told him I would keep it quiet and not tell any one about it if he returned it, but as yet has failed; out of respect for you and your family, I did not make any arrest and thought I would write to you first to see if he told you. From what I have always heard about you, I know you would not want one of your boys to take a thing that didn’t belong to them, so if you will have him send it back, I will not have any more trouble about it. I have been busy or would have gone to the city today, but will wait until I hear from you.
“We used Floyd, good for the short while he was here; took him to church with us and to the lake, in fact, any place he went which only the last few days he was here and gave him $2 besides. Now, I will want to hear from you.
“I am, respectfully,
“John Hyde,
“Yale, Michigan.”

No answer was received to this letter, but on August 22, 1918, plaintiff’s attorney wrote defendant as follows:

“Mr. John Hyde,
“Yale, Michigan.
“Dear Sir:
“Mr. Floyd Zanley and Mr. Charles Zanley have received letters written by yourself, in which you accuse Floyd Zanley of being a thief. At this time, we absolutely deny such charges and demand that you write a letter of apology to Floyd Zanley and to Charles Zanley by return mail. If this advice is not followed, we shall take legal steps to collect for the damages which you have caused this young man by this most cruel libel.”

No reply was made by defendant and a few days after plaintiff’s mother and the attorney went to defendant’s home near Yale to see him. ■ The parties differ as to what there occurred, but it is apparent that defendant insisted that plaintiff had taken the money. While it appears that the letters, received by the mother and father of plaintiff, were written and sent by defendant’s wife without his knowledge or assent, they were considered on the trial as though defendant had himself written and mailed them and we so treat them here.

At the close of the proofs, the trial judge directed a verdict for defendant, holding that there was no publication of the letter to plaintiff and that the letter to plaintiff’s father was a privileged communication, written in good faith and under an honest belief that the facts stated therein were true. In the discussion which preceded this action on the part of the court, the record shows that plaintiff’s counsel said:

“I agree with the court that I have been unable to produce any evidence of malice either in law or in fact.”

He, however, insisted that the letter was not a privileged communication. A motion for a new trial was subsequently made. In denying it, the trial judge said:

“Upon the motion for a directed verdict at the close of the trial, Mr. McIntyre, counsel for plaintiff, in open court, conceded the fact that plaintiff had failed to establish proofs of express malice or malice in fact and claimed that notwithstanding this lack of proof, the question of the bona fides of the defendant was still a question of fact for the jury to pass upon. This concession is a matter of record in the case. Again, upon the argument of the present motion, he makes the same concession and claim.”

It seems clear that there was no such publication of the letter sent to plaintiff as would justify the action.

Should the question of defendant’s liability on account of the letter written to plaintiff’s father have been submitted to the jury? The general rule is stated in 25 Cyc. p. 385:

“Where a party makes a communication and such communication is prompted by a duty owed either to the public or to a third party, or the communication is one in which the party has an interest and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice.”

A distinction, as to such communications, is drawn between absolute and qualified privilege. This is carefully pointed out in Bacon v. Railroad Co., 66 Mich. 166. We content ourselves with a reference to it. Defendant’s claim is one of qualified privilege. As to this, it is said in the Bacon Case, just referred to:

“It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.”

Many cases from this and other courts are cited.

If the defendant believed that the plaintiff had taken the banks and the money therein contained, on his failure to get a reply from plaintiff a moral duty certainly rested on him to communicate the facts to plaintiff’s father. This seems particularly true in view of the relationship existing between the families. It is the occasion, and not the language used, which determines the question.

Was there any evidence of malice or a lack of good faith on the part of the defendant in writing the letter to plaintiff’s father? The language employed by the defendant imputed the crime of larceny to the plaintiff. It was therefore libelous per se, and it follows that malice is to be presumed therefrom. But when it appeared that the communication was privileged, this inference was rebutted and the duty devolved on plaintiff to assume the burden of proving actual malice or a lack of good faith on the part of defendant. The evidence to prove same may be either intrinsic, being shown by the nature of the language used and the manner and extent of its publication, or extrinsic, consisting of facts which show previous ill-feeling or personal hostility, or that the letter was written without the defendant’s having made reasonable inquiry and investigation and not in good faith.

The purpose of defendant’s wife in writing these letters is apparent. She wanted the children’s money returned. She apparently had no desire to in any way injure plaintiff. She gave him an opportunity to return the money before writing his father about it. While positive in the statement that he had taken it, she says nothing that would indicate she felt any ill-will towards plaintiff.

We cannot but conclude that there is nothing in the language employed which in itself can be said to rebut the inference derived from the privileged nature of the communication. Nor, as we understand plaintiff’s brief, does he so contend.

What are the extrinsic facts? The plaintiff was a welcome visitor at defendant’s home while employed at Palmer’s. He accepted the amount paid him by defendant for the services rendered him and expressed himself as satisfied with it. He left voluntarily. No unkind word was spoken to him while there. There is nothing to show anything but a kindly feeling towards him on the part of the defendant until he found that the banks and the money in them were missing. Defendant claims that he then recalled the conversation in the automobile relative to the banks and where they were kept. One of his children told him that he saw plaintiff searching in the cupboard where the banks were hidden and, on being asked what he was looking for, answered, “A cup.” The plaintiff had left, as defendant thought, somewhat hurriedly, it having been his understanding that plaintiff would stay until about September 1, when school opened.

The following language of Erie, C. J., in Jackson v. Hopperton, 16 C. B. (N. S.) 111 E. C. L. 829, is quoted approvingly in the Bacon Case:

“A plaintiff does not sustain the burden of proof which is cast upon him by merely giving evidence which is equally consistent with either view of the matter in issue. When the presumption of malice is neutralized by the circumstances attending the utteranee of the slander or the publication of the libel, the plaintiff must give further evidence of actual or express malice in order to maintain his action.”

The rule of determination is thus stated in Newell, Slander and Libel (3d Ed.), § 396:

“When the matter complained of is privileged the burden of proving malice lies on the plaintiff; the defendant cannot be called on to prove he did not act maliciously till some evidence of malice, more than a mere scintilla, has been adduced by the plaintiff.”

See, also, Livingston v. Bradford, 115 Mich. 140.

After a careful consideration of the entire record, we feel constrained to say that the verdict for defendant was properly directed. The ’udgment is therefore affirmed.

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


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    SMITH v. BYRNE.
    1. Deeds — Covenants—Restrictions—Garage—Injunction.
    The erection of a garage for rental purposes on a lot in a residential district restricted to a “single private residence and the necessary outbuildings” is in violation of such restriction, and was properly enjoined by the court below.
    2. Same — Intention—Estoppel—Preponderance on Evidence.
    The finding of the court below that defendants’ contention that plaintiffs were aware of defendants’ purpose in erecting said garage building was not supported by a preponderance of the evidence, held, justified by the record.
    Authorities passing on the question as to whether garage or stable as within restrictive covenants in conveyance of real estate are collated in a note in 34 L. R. A. (N. S.) 730.

      Appeal from Wayne; Hosmer (George S.), J.
    Submitted October 21, 1919.
    (Docket No. 116.)
    Decided December 22, 1919.
    Bill by Albert E. Smith and others against Dennis Byrne and others to enjoin the violation of building restrictions. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Guy A. Miller, for plaintiffs.

      Merriam, Yerkes & Simons for defendants.
   Sharpe, J.

The decree appealed from reads as follows:

“The above entitled cause having come on to be heard in open court, on pleadings and proofs, the testimony on behalf of plaintiffs and defendants having been offered in open court, and having been duly considered, counsel for plaintiffs and defendants having been heard, and it appearing to the court:
“1. That complainants Albert E. Smith and Josephine Smith, his wife, are seized and possessed of a legal estate in lot 101, Voigt Park subdivision of E. W. Voigt’s subdivision of Voigt Park Farm, the same being a part of quarter section 36, 10,000 acre tract, according to a plat recorded in liber 22 of plats, page 94, in the Wayne county registry of deeds; that complainants Joseph W. Dykstra and Laura A. Dykstra are the owners of lot 100 of said subdivision; that defendants Dennis Byrne, Alice Byrne, E. L. White and Mrs. White are the owners of the legal title to, and of a legal estate in lot 102 of said subdivision.
“2. That the lots within said subdivision, and located on the north and south sides of Calvert avenue, in the city of Detroit, and between Second and Third avenues, within which limits said lots 100, 101 and 102 are located, are subject to a uniform building restriction which, in part, contains the following words: ‘Nothing but a single private residence and the necessary outbuildings shall be erected on any one lot.’ Such building restrictions are binding and valid, and in full force and effect as between plaintiffs and defendants in the above entitled cause.
“3. That said defendant Dennis Byrne, oh or about the 4th day of April, 1917, entered into a contract in writing with one Shepherd, said Shepherd being the owner of a flat building located upon the next street to the south of Calvert avenue, wherein it was agreed, among other things, that said Shepherd was to advance certain sums of money for the construction of a garage building or buildings upon said lot 102; that said Byrne was to construct such building or buildings, and, when constructed, said agreement provided for the leasing to said Shepherd of said building or buildings; that said Shepherd was to pay a rental of five dollars ($5.00) per month for each car which said buildings were capable of accommodating; and that the purpose of said agreement was that said Shepherd might sublet space in said building or buildings to the tenants in his apartment building for their use in the storage of their automobiles.
“4. That at the time of the making of said agreement, there was upon the southeast corner of lot 102 a garage building sufficient in size to accommodate two automobiles; that after the making of said agreement, said defendants proceeded with the construction of an additional garage building upon the southwest corner of said lot 102, and the construction of an addition to the original garage building, and that the purpose of such new construction was to carry out the terms of said agreement with said Shepherd; that said buildings, when completed, were and are capable of accommodating five automobiles.
“5. That upon the completion of said buildings, said Shepherd went into possession thereof, under the terms of said agreement, paid rent thereunder, and is now in possession thereof and paying rent therefor.
“6. That subsequent to the erection of said buildings, said defendants White became purchasers under land contract from said Byrne of said lot 102, and are now_ securing the benefit of the rental received from said buildings by way of credit upon the amount owing by them under the terms of said land contract to said defendants Byrne.
“7. That the construction and occupation of said buildings constituted a violation of the terms of the building restrictions, binding upon the owners and occupants of said lot 102, and running in favor of plaintiffs in the above entitled cause.
“8. It further appearing that the plaintiffs are entitled to the relief prayed for in their bill of complaint:
“It is hereby ordered, adjudged and decreed that said defendants, Dennis Byrne, Alice Byrne, E. L. White and Mrs. White be permanently enjoined and restrained from renting to others space in said garage buildings on said lot 102, Voigt Park subdivision of E. V/. Voigt’s subdivision of Voigt Park Farm, the same being a part of quarter section 36, 10,000 acre tract, according to a plat recorded in liber 22 of plats, page 94, in the Wayne county registry of deeds; and from using said buildings in any manner whatsoever for hire, and from using said buildings in any manner whatsoever in the prosecution of any business enterprise whatsoever;
“It is further ordered, adjudged and decreed that said defendants, Dennis Byrne, Alice Byrne, E. L. White and Mrs. E. L. White, within a space of four months from the service upon them, or upon the firm of Wilkinson, Routier & Hinkley, their ¿ttorneys in the above entitled cause, of a certified copy of this decree, remove from said lot 102 in said subdivision all of said garage buildings, constructed and maintained thereon by said defendants, except such as are sufficient to reasonably accommodate two automobiles, and are fairly equivalent to the garage building located thereon prior to the fourth day of April, A. D. 1917. ^
^ “It is further ordered, adjudged and decreed that said defendants, Dennis. Byrne, Alice Byrne, E. L. White and Mrs. E. L. White, be permanently enjoined from erecting in the future, any buildings upon said lot, except such as are reasonably necessary as properly appurtenant to the single dwelling house located thereon.”

The defendants, who appeal therefrom, apparently find no fault with the facts as found therein. They urge, however, that the proofs submitted establish the following additional facts:

(1) That, when the defendant Byrne bought lot 102 in 1916, the smaller garage building stood thereon and that he rented the space therein for storing automobiles without objection from any one.

(2) That such action on his part was in accordance with the practice of many other owners of residences in the same block.

(3) That the plaintiffs were aware of his intention to rent the space in the larger building and raised no objection thereto until its completion.

The first two of these are immaterial to the issue here presented. The facts stated in no way estop the defendants from asserting their rights under the restrictive clause in the deeds. As to the third, there is a sharp conflict in the proofs. After a careful reading of the testimony, we feel constrained to hold, as did the trial judge, that it is not supported by a preponderance of the evidence.

The defendants claim that no violation of the restriction, if it be given a reasonable construction, is shown, and that, in any event, the relief granted in the decree was not justified. The language employed in the restriction is in no way uncertain or ambiguous. It reads:

“Nothing but a single private residence and the necessary outbuildings shall be erected thereon.”

Its purpose is apparent. It was intended to preserve the territory for a residential district, for a place for dwelling houses and the outbuildings necessary for the enjoyment of their occupants. In other words, only such buildings additional to the residence can be, constructed as are ordinarily used and occupied as aids to the use of the dwelling house. Clearly, a garage for rental purposes is not so needed.

Defendants insist that they should not be required to remove the buildings as provided for in the decree and that the only relief which should be granted, in any event, is to enjoin the use for a purpose inconsistent with the restriction. There is nothing in the record which even suggests that the building might be used for any other purpose. It should not be permitted to remain on the lot, where, to some extent, at least, it restricts plaintiffs’ view unless it be a necessary outbuilding.

The trial judge was somewhat familiar with the surroundings. Certain photographs were introduced which made the situation plain to him. It is manifest that the conclusion reached by him is likely to be more reliable than one arrived at by us from an examination of the printed record. We therefore do not feel justified in interfering with his judgment as to the necessity for such removal.

The decree is affirmed, with costs to plaintiffs.

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


text:
    PEOPLE v. MARTIN.
    1. Appeal and EJrrob — Evidence—Admissibility — Saving Question por Review.
    Assignments of error based on tbe admission or exclusion of testimony will not be considered by tbe Supreme Court, where there was no objection; the error must appear on the face of the record.
    2. Criminal Law — Rape—Evidence—Admissibility — Harmless Error.
    In a prosecution for statutory rape, testimony by a police officer that he saw the complaining witness and ashed her what the trouble was, but that she did not answer, fteZd,. not prejudicial.
    3. Same — Lesser Oeeenses — Instructions—Trial.
    In such prosecution, the trial judge properly instructed the jury as to the lesser offenses, viz., assault with intent to commit rape, and assault and battery, and instructed them that they might convict of either in the event that they did not find defendant guilty of rape.
    4. Same — New Trial — Jurisdiction—Statutes.
    Two terms of .court having elapsed since the denial of a motion for a new trial, the trial court was without jurisdiction to entertain a motion to set the same aside under 3 Comp. Laws 1915, § 15836.
    Error to recorder’s court of Detroit; Wilkins (Charles T.), J.
    Submitted October 17, 1919.
    (Docket No. 113.)
    Decided December 22, 1919.
    Rehearing denied April 10, 1920.
    See 210 Mich. 139.
    Harry Martin was convicted of assault with intent to commit the crime of rape and sentenced to imprisonment for not less than 2% nor more than 10 years in the State prison at Jackson.
    Affirmed.

      George B. Murphy, for appellant.,

      Alex. J. Groesbeck, Attorney "General, Matthew H. Bishop, Prosecuting Attorney, and Van H. Ring, Assistant Prosecuting Attorney, for the people.
   Sharpe, J.

The respondent was charged with having, on the 4th day of June, 1918, committed the crime of statutory rape upon Anna Jaracz, a female of the age of 15 years. He was convicted of assault with intent to commit such crime, and, on November 1, 1918, sentenced to Jackson prison for a maximum period of 10 years and a minimum of 2^ years.

At the time of the trial, respondent was represented by Attorney James R. Neill. A motion for a new trial was made by him on August 24,1918, before sentence, and denied. Thereafter, and on May 29, 1919, the present attorney for said respondent was substituted for Mr. Neill. On June 10, 1919, he moved the trial court to set aside the order made denying a new trial and enter an order granting same. Many affidavits were filed by him in support of this motion. It was denied and respondent now seeks a review in this court by writ of error.

The assignments relate:

(1) To the admission of testimony.

(2) To the charge of the court.

(3) To the refusal to grant a new trial.

The facts on which the prosecution relies to support the conviction are, briefly, as follows:

On the 4th day of June, 1918, the respondent was employed as a paper hanger for Isadore and Hyman Greenberg, who conducted a store at 1745 Michigan avenue, in the city of Detroit. They were dealers in wall paper and took contracts for papering residences. Respondent was at that time 42 years of age, married and living in Detroit with his wife. Anna Jaracz was also employed by the Greenbergs, and had been since May 1, 1918. She waited on the trade in the store. There are four rooms in the store, which at one time had been used as a dwelling house. Behind the front or show room was a stock room, and back of it a smaller stock room, formerly a bedroom. On the day in question, respondent was at work hanging paper in the home of Charles Gronau, a few blocks distant from the Greenberg store. During the forenoon, Mrs. Gronau expressed a desire to have some of the paper changed, and respondent offered to have the exchange made at lunch time. About 11:30 he went to the store for that purpose. Anna was there alone, and she claims that he followed her into the smaller stock room when she went there for the paper and there assaulted her and committed the crime charged. She says that Isadore Greenberg came into the store immediately after the offense was committed, and he testified that she ran to him and fell into his arms and fainted, and that respondent then said, “I just wanted to scare her.” The respondent went back to his work and a few hours after was arrested and has been confined since that time. Greenberg and several others testify that there was blood on Anna’s clothing, and an examination by Dr. Watson, two days after, revealed the fact that her person had been recently violated.

The respondent was sworn in his own behalf and, while admitting that he was at the store for the purpose stated, denied that he had in any way committed any assault on Anna or had sexual intercourse with her.

1. It is -the claim of the prosecution that there was no objection by respondent’s counsel to the testimony which he claims was improperly admitted. The most serious complaint is that Kate Jaracz, mother of Anna, was permitted to testify to what Anna told her when she arrived home several hours later. Quoting from the record:

“Q. Did Anna say what had happened to her?
“A. Yes.
“Q. Told you all about it?
“Mr. Neill: I object; that would be hearsay that she told all about it.
“Q. What did she tell you occurred?”

No further objection was made, nor was any motion made to strike out the testimony. The court no doubt understood that the objection was made to the witness stating that Anna had told her “all about it,” and not to her relating in detail what Anna had said to her. This court has many times refused to consider assignments of error in the admission or exclusion of testimony, where the same was received without objection. The error must appear on the face of the record. In People v. O’Brien, 92 Mich. 17, in which respondent was convicted of murder, it was said:

“Many of the assignments of error relate to the admission or exclusion of testimony, to which no objection was made or exception taken. They cannot, therefore, be now considered. If we understand respondent’s counsel correctly, he assigns, error upon these for the purpose of showing in this court that the respondent has not had a fair and impartial trial. If this were so, the defendant and his counsel would be responsible for it. If his counsel considered offered testimony to be inadmissible upon any ground, it was their duty to object, and, failing in this respect, he cannot be heard to complain in this court.”

The rule thus laid down has, we believe, been uniformly followed in this court.

The 8th assignment of error is based on an objection made to a question asked Police Officer Barnes, who saw Anna at the store shortly before the arrest was made. A careful reading of his testimony does not show that he testified to any facts stated to him at that time by her. On the contrary, he says, “she didn’t give me any answer,” and adds that as Green-berg had told him about it he told her that he “would go over and get the man.” We cannot see anything prejudicial to the respondent in any of the testimony, voluntary or otherwise, given by this witness.

2. Error is alleged on that portion of the instructions in which the court defined the lesser offenses included in the crime charged, viz.: Assault with intent to commit rape, and assault and battery, and instructed the jury that they might convict of either of these in the event that they found the respondent not guilty of the crime charged. There is no complaint made of error in the language used in such instruction, but the claim is broadly made that the evidence showed the respondent to be guilty of rape, if at all, and that the jury should have been so instructed.

Counsel for respondent, in support of this contention, relies on the cases of People v. Partridge, 86 Mich. 243, and People v. Rivers, 147 Mich. 643, in both of which it was held that on an information charging rape, with an added count charging felonious assault and taking indecent liberties, where the only testimony given, if true, established the crime of rape, a conviction under the second count would not be permitted to stand. This holding was, as stated in the first of these cases, because “there was not a scintilla of evidence to support the second count,” and, both being statutory offenses, that charged in the second count was not included in the offense charged in the first count.

But the crime of which respondent was convicted is included in that with which he was charged. It was the duty of the court under our repeated decisions to so charge. Hall v. People, 47 Mich. 636; People v. Abbott, 97 Mich. 484; People v. Ryno, 148 Mich. 137. A similar question was raised in People v. Miller, 96 Mich. 119. At page 120, it is said:

“It is true that upon this record the proof upon one side shows the completed act of sexual intercourse with a girl under the age of 14- years, while upon the other a denial of any offense is made. Under such proof it cannot be denied that a verdict of assault with intent to rape is illogical. But an assault with intent to commit rape is necessarily included in every rape. The defendant’s counsel are alleging, not an injurious error, but one which, if it could be called an error, has resulted to defendant’s advantage.”

We find no error in the instruction given.

3. As before stated, a motion for a new trial was made before sentence, and denied. On June 10, 1919, two terms of the court having in the meantime elapsed, a motion was made to set aside the order denying the same. While the court apparently passed on the merits of the motion in denying it, it clearly had no jurisdiction under our decisions to hear the same. This question has been so recently passed on in Nichols v. Houghton Circuit Judge, 185 Mich. 654 (Ann. Cas. 1917D, 100), in which the authorities are collected and discussed and the conclusion therein reached approved in People v. Ayres, 195 Mich. 274, that we content ourselves with a reference to these cases in concluding that the record shows no error in this respect.

Finding no reversible error, the conviction and sentence must stand affirmed.

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


text:
    CANDLER v. HEIGHO.
    1. Appeal and Error — Evidence—Directed Verdict.
    In reviewing a directed verdict in favor of defendant, tlie Supreme Court will view the testimony in the light most strongly tending to support the claim of plaintiffs.
    2. Fraud — Representations—Elements oe Action.
    In order to make misrepresentation actionable, there must be a reliance upon the representation.
    3. Same — Reliance upon Representations — Directed Verdict.
    Although defendants, officers and stockholders of a corporation, misrepresented to the administrator of an estate the value of certain shares of the stock of the corporation inherited by plaintiffs, and bought it for much less than its book value, such misrepresentation was not actionable where the proofs conclusively show that the administrator fully investigated and placed before plaintiffs the facts as to its book value before the sale, and no reliance was placed upon such misrepresentation.
    On degree of certainty necessary to establish fraud in a civil action, see note in 33 L. R. A. (N. S.) 836.

      Error to Wayne; McDonald (John S.), J., presiding.
    Submitted October 9, 1919.
    (Docket No. 23.)
    Decided December 22, 1919.
    Case by Mary V. Candler and another against George W. Heigho and others for fraud and deceit in the sale of corporate stock. Judgment for defendants on a directed verdict. Plaintiffs bring error.
    Affirmed.

      J. O. Murfin, for appellants.

      Stellwagen & MacKay (Alex. J. Groesbeek, of counsel) , for appellees.
   Sharpe, J.

The plaintiffs are the wife and daughter of Claudius H. Candler, who died in the city of Detroit on February 24, 1910. Prior to his death, Mr. Candler had been the president and superintendent of the Calvert Lithographing Company. At the time of his decease, he owned 1,700 shares of its capital stock or 17/40ths of a total capitalization of $200,000, consisting of 4,000 shares of a par value of $50. At that time there were but 12 stockholders in the corporation. The stock was not listed for sale on the general market, nor had it been for years. The officers of the corporation at the time of Mr. Candler’s death were himself as president, the defendant Ross as vice-president, and the defendant Heigho as secretary and treasurer, and these three constituted the board of directors. On March 16, 1901, the corporation had adopted a by-law which provided that—

“Any stockholder of this corporation who shall be desirous of selling any of his shares, the executor or administrator of any member deceased, and the grantee or assignee of any shares sold on execution or mortgage sale, shall cause such share or shares respectively to be appraised by the board of directors which it shall be their duty to do on request. If the owner, executor, administrator or assignee aforesaid shall feel aggrieved at the appraisal of the board he may so notify the board in writing and designate therein one appraiser, and the board shall thereupon designate another, and they together shall select a third, and the appraisal of such three appraisers (hereinafter called award) after hearing the parties and an examination of the books of the company, if they so desire, shall be final and binding.” * * *

It further provides that after such value is fixed by an appraisal or award the directors may buy the shares for the other stockholders, and that they should then be assigned, but that, if not so purchased within 60 days, they may be sold to any person in the usual way. At the time of its adoption, the stock in the corporation was held as follows: Calvert owned 2,482 shares, Candler 1,222, Ross 246, and Heigho 50.

Soon after Mr. Candler’s death, Alexander K. Gage, the husband of the plaintiff Gertrude Candler Gage, was appointed administrator of the estate. He was an attorney, and at that time was in the active practice of his profession in the city of Detroit. Mr. Gage was familiar with the provisions of the by-law above referred to, and after Mr. Candler’s death talked about it with the defendant Heigho. On May 31,1910, Gage, as administrator, wrote the corporation, requesting that the stock held by Mr. Candler at the time of his decease be appraised by the board of directors pursuant to the by-law. On June 3, 1910, the corporation by letter advised him that' such appraisal had been had and the value of the stock fixed at par, $50 per share. On June 9th, Mr. Gage acknowledged receipt of the letter and said he would give the matter prompt attention. On June 24th, Heigho as president reminded him of such promise, and on July 11th Gage wrote that he was not prepared to accept the value of the stock as appraised, and requested that the stock be transferred to him as administrator. On July 13th, the corporation again wrote him, requesting that if dissatisfied with the appraisal he comply with the bylaw and appoint an arbitrator, and declined to transfer the stock to him. On August 13th, Gage notified Heigho by telephone that he would accept the price fixed by the appraisers, and the stock was soon thereafter transferred and paid for at that price. Five hundred dollars was added as estimated dividends up. to the time of Mr.' Candler’s death.

There is no claim made by plaintiffs that they were in any way influenced in the sale by the acts or representations of the defendants made direct to them. In fact, no personal interview or communication was had between any of them concerning it, except that Mr. Heigho on several occasions expressed a desire for a personal interview with the plaintiffs, about it, and on June 20th, Mrs. Candler wrote the board of directors declining such interview and saying,—

“we have left the matter entirely in the hands of Mr. Gage, who is the administrator and who has full power to act for us.”

Mr. Gage had many interviews with Mr. Heigho while the matter was pending, at some of which the other defendants were present. He was furnished with a copy of the report, presented to the stockhoíders by Mr. Candler as president, for the years 1908 and 1909, in which the condition of the corporation, both financial and otherwise, was set forth at considerable length. He expressed to the defendants a desire to keep the stock for the benefit of plaintiffs, and says they insisted on a sale under the by-law. He claims they refused to permit him to examine the books, but admits that from the information he got, and after going over the matter with others, he knew that the book value at the time of the transfer was $81 per share. Gage reported to the plaintiffs the result of all of his interviews with the defendants; showed them the correspondence that passed between them, and advised them that—

“if they were to resort to legal procedure, if they were to resort to the arbitration that they would find that the stock was worth more than these men had said it was.”

F. G. Roiland was a stockholder in the corporation. He had purchased some of Mr. Calvert’s stock after his death, paying $47 a share for it. He had charge of the sales in the western district, with headquarters at Chicago. On March 4, 1910, Heigho wrote him relative to his conferences with Mr. Gage about the transfer of the stock. In this letter he said:

“I explained in careful detail at first the unwisdom of Mrs. Candler holding the stock even if she were free to do so,, and then went further and stated that it was impossible for her to do it under the by-laws. ❖ * *
“I submitted to him in a tentative way my idea of what Mrs. Candler should do in the matter of selling her stock to us, and it seemed to impress him very favorably. He is evidently very strongly desirous of getting in here and he or some members of the family may approach Mr. Ross, Mr. Huetwohl or yourself. In case this is done, you will, of course, be very diplomatic in what you say, and it may be wise to compare notes with me before you make any reply. In fact, if you receive any communication from them, you had better come over and hold a consultation with us collectively before you make any reply, if it seems to you to be at all advisable to do so.
“The more I think of the whole matter the more I am convinced that we can work it out to the satisfaction of everybody interested and without leaving any sore spots, but we must protect our own interests.”

Two expert bond salesmen, Mr. Noble and Mr. Nebe, of Detroit, testified that the book value of the stock at the time of the transfer was $81 per share.

Mr. Heigho was cross-examined under the statute permitting same and admitted that the stock was paid for by a loan secured by a note of himself and the other stockholders, and that this note was paid within 18 months out of insurance money received from a policy carried by the corporation on the life of Mr. Candler and the profits of the corporation.

The declaration, after describing the nature of the corporate business and the interests of the several defendants therein, and alleging the death of Mr. Candler and the appointment of Mr. Gage as administrator and setting out at length the by-law referred to, contains the following allegation:

“Plaintiffs further aver that at the time of his death the defendants, guided and directed largely by the defendant Heigho, fraudulently, wrongfully and maliciously combined and conspired to acquire from these plaintiffs the aforesaid seventeen hundred shares of the capital stock of the said Calvert Lithographing Company, formerly owned by Claudius H. Candler, at a grossly inadequate price and for a figure far below the real value of the stock aforesaid.”

It further alleges that the defendants Heigho and Ross were appointed appraisers of the Candler estate and valued the stock in question at $45 per share; that the plaintiffs were ignorant of business methods and details and, being apprehensive for their future livelihood, were imposed on by defendants and induced to consent to the transfer of the stock at much less than its fair value; that the relations existing between defendants and plaintiffs were of such a confidential and fiduciary character that it was the duty of defendants to fully and fairly disclose to them all the facts which would have any bearing on the fairness of the transaction; that such representations as defendants made were false, and known by them to be so, and that in reliance thereon, and because of the wrongful and fraudulent acts and conspiracy of the defendants, the stock was transferred at a grossly inadequate value and that plaintiffs sustained great damage thereby.

At the conclusion of the plaintiffs’ proofs, the trial court directed a verdict for the defendants for the reason that, no matter what misrepresentations were made by defendants as to the value of the stock, it was clear to him that the administrator did not rely thereon as he admitted that he then knew the book value of the stock to be $81 per share. From the judgment entered on such verdict the plaintiffs appeal.

There are several assignments of error, among them being that the court erred in directing a verdict for the defendants. We have set forth the testimony at considerable length for the reason that in the consideration of this action on the part of the trial court it must be viewed in the light most strongly tending to support the claim of the plaintiffs. There is no conflict of opinion as to the character of the proofs which plaintiffs must have submitted to entitle them to the verdict of a jury. It is well stated in 20 Cyc., at pago 13:

“The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a' recovery.”

That these several elements of such a charge must be established has long been the rule in this State. Parker v. Armstrong, 55 Mich. 176; Frohlich v. Deacon, 181 Mich. 255; Kimble v. Gillard, 177 Mich. 250. In the latter case the court said:

“It is a well-settled rule, familiar and fundamental, that, in order to make misrepresentation actionable, there must be a reliance upon the representation.”

But if we concede, as did the trial judge, that there was sufficient evidence supporting the other elements to take this case to the jury, we feel constrained to hold, as he did, that the proofs clearly show that the administrator did not rely on anything that the defendants said in making the sale. He became convinced that the stock had a book value of $81. This was the same as that fixed by the bond salesmen who were called. He acted entirely on the information acquired from the reports furnished him and the independent investigation which he made. He realized fully that he had the right, and the defendants were urging him to exercise that right, to have the value of the stock fixed by arbitration under the provision in the by-law therefor. If he doubted the validity of the by-law, he was in no way prevented from testing it in any proper legal proceeding.

Conceding it to have been the duty of defendants to have rendered a fair and frank disclosure of all the facts affecting the financial condition of the company and the value of the stock, even if not asked for, how can any liability for a violation of such duty be predicated on a failure to. disclose facts already within the knowledge of the administrator and which had been communicated by him to plaintiffs. How can it be said that any action or non-action, any information given or concealed, or any intent to deceive or defraud on the part of the defendants, in any way affected the judgment of the administrator or of the plaintiffs in deciding upon the wisdom of accepting the appraised value?

Neither the administrator nor the plaintiffs were unduly hurried in arriving at a decision. Mr. Gage admits that on June 26th he informed the defendants that he knew the book value of the stock was as stated. The transfer was not made until July 18 th. During that period he had plenty of time, not only to advise with, plaintiffs but to take counsel concerning the advisability of submitting the question of value to arbitration or obtaining a judicial determination of the legal effect of the by-law. He admits that he submitted all the facts of which he was possessed and the conclusion he had reached therefrom as to the value of the stock to plaintiffs, and, while he says that he did not recommend either way, they finally decided to accept the appraised value. We are constrained to hold that any loss they sustained thereby is not recoverable in this action and that the verdict was properly directed for the defendants.

The conclusion reached renders it unnecessary to consider the other assignments of error.

The judgment is affirmed.

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


text:
    RICE v. MICHIGAN RAILWAY CO.
    1. Carriers — Street Railways — Duty to Intended Passenger— Negugence — Question eob Jury.
    In an action for personal injuries, testimony by plaintiff that, intending to take defendant’s interurban car, he went upon the platform at the small waiting room, signaled the car to stop, and was answered by a signal by the motorman, advising him that it would stop, that he stood near the edge of the platform expecting the car to stop, when, instead of doing so, it went by at a rate of speed of from 50 to 60 miles an hour, that he was caught in the suction of the car and. seriously injured, and by the motorman that no signal nor answer thereto were given, held, to present a question of fact for the jury as to defendant’s negligence.
    2. Same — Relation of Carrier and Passenger — Intended Passenger.
    It is the general rule that the relation of carrier and passenger commences when a person with the good-faith intention of taking passage, and with the express or implied consent of the carrier, places himself in a situation to avail himself of the facilities for transportation which the carrier offers.

    3. Same — Trial—Instructions—Duty of Carrier.
    An instruction by the court that if the jury believed plaintiff’s testimony, it was the duty of defendant in all ways to exercise a very high degree of care for his safety or protection in the operation of its car, held, not erroneous.
    4. Same — Negligence—Evidence—Sufficiency.
    Testimony held, sufficient to justify a finding by the jury that plaintiff was injured in the manner claimed by him, and that defendant's negligence was the proximate cause of his Injury.
    5. Same — Contributory Negligence — Question of Pact.
    Where plaintiff was in a position of safety when he gave the signal to stop and received the answer thereto, had the car stopped as he had a right to expect it would, and he had but little time after discovering that it was not . going to stop before it rushed by, it cannot be said, as a matter of law, that he was guilty of contributory negligence because he failed to step back or because he acted in a manner not afterwards found to be in the interest of his personal safety.
    6. Same — Trial—Instructions—Theory of Defense.
    An instruction by the court that if the jury found that plaintiff stood on the platform with an arm extended so close to the track that the car struck it and caused the accident, plaintiff would be guilty of contributory negligence and could not recover, held, to fairly present to the jury defendant’s claim as to the cause of plaintiff’s injury.

      7 Same — Appeal and Error — Trial—Instructions—Issues.
    Where the charge of the court clearly submitted to the jury plaintiff’s claim that the negligence complained of was the running of defendant’s car past the platform at a high rate of speed after signaling an intention to stop, an objection that plaintiff’s action was based on mere failure to stop for a passenger is untenable.
    8. Appeal and Error — Trial—Instructions—Charge as Whole.
    The charge should be considered as a whole, and the portion objected to should be read and considered in connection with all other portions of the charge given bearing upon the same subject.
    9. Carriers — Appeal and Error — Trial—Instructions — Charge as Whole.
    The giving of plaintiff’s requested instruction as to defendant’s duty to a passenger, stating a broad proposition of law applicable to such cases, but making no application to the particular facts, while unfortunate, held, not prejudicial, in view of the fact that in other portions of the charge the court properly instructed the jury as to the duty defendant owed to plaintiff as an intended passenger,
    10. Appeal and Error — Refusal to Give Requests Covered in Charge.
    Refusal of the court to give certain requests proffered by defendant, which might well have been given, but which merely stated negative propositions whose force and effect were fairly covered in the charge as given, held, not erroneous.
    11. Trial — Argument of Counsel.
    Although plaintiff’s counsel, in his argument to the jury, discussed matters which the court later in his charge withheld from their consideration, this court will assume that the jury realized it was their duty to be governed by the instructions of the court as to the law and not by the argument of counsel, where it appears that defendant was not prejudiced.
    12. New Trial — Overwhelming Weight of Evidence.
    The verdict of the jury in favor of plaintiff held, not so overwhelmingly against the weight of the evidence as to call for a new trial.

      13. Damages — Excessive Verdict — Personal Injuries.
    A verdict for $13,800, held, not excessive on a showing that plaintiff received, serious and painful injuries which are permanent, that his usefulness as a physician is impaired, that he will never be able to do any surgical work, that at the time of his injury he was 52 years old, that his income previous to his injury was more than $300 a month, that he was unable to practice for eight and one-half months, and was confined to bed for eight weeks.

    Error to Shiawassee; Collins (Joseph EL), J.
    Submitted October 16, 1919.
    (Docket No. 57.)
    Decided December 22, 1919.
    Rehearing denied April 10, 1920.
    Case by L. Frank Rice against the Michigan Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sanford W. Ladd and Justin R. Whiting (Warren, Cady, Ladd & Hill, of counsel), for appellant.

      Neil R. Walsh Albert L. Chandler, and O. J. Hood, for appellee.

      For authorities discussing the quéstion of effect of signaling car to make one a passenger are collated in notes in 13 L. R. A. (N. S.) 283; 25 L. R. A. (N. S.) 407; L. R. A. 1916C, 1022.

      On exeessiveness of verdicts in actions for personal injuries other than death, see comprehensive note in L. R. A. 1915F, 30.

   Sharpe, J.

The plaintiff, a practicing physician residing in Owosso, took defendant’s car on the evening of February 16, 1917, to visit a patient several miles distant. About eight o’clock, he returned to the point where defendant’s road crosses the highway known as the Grand River road, where a small waiting room, with platform in front, had been theretofore constructed. He knew that a through car on defendant’s line would pass there about that hour, and that it would' stop for passengers on being signaled. It is his claim that as the car approached the crossing from the south, and when about 85 rods distant, he signaled it to stop by waving his arm; that the car did not stop, but passed by at a speed of .from 50 to 60 miles per hour; that, expecting it to slacken and stop, he stood near the edge of the platform and was caught in some way by the suction of air, thrown against the building and then the car, and badly injured.

The defendant moved for a directed verdict at the close of the plaintiff’s case and also at the conclusion of the testimony. These motions were denied. The plaintiff had verdict and judgment for $13,800, and the defendant appeals. While there are 92 assignments of error, the defendant’s counsel discuss them under the following heads:

(1) No negligence on the part of the defendant was proven and a verdict should have been directed in its favor.

(2) The plaintiff was guilty of contributory negligence.

(3) Error in the charge of the court.

(4) Error in the argument of plaintiff’s counsel.

(5) Defendant’s motion for a new trial should have been granted.

These will be considered in the order stated.

1. The claim of negligence as submitted by the court in its charge to the jury was as follows:

“3. Plaintiff further claims that while he was standing on the platform he noticed the headlight of a car coming from the south towards Owosso, and that when the car was some thirty-five or forty rods south of the station building, he signaled it by waving his hand, and that thereupon, the motorman of the car responded by blowing two short blasts of the whistle on the car. That the car did not stop at the station, but passed by at a high rate of speed, coming so close to the plaintiff that the suction and the wind caused by the passing of the car, caught the overcoat and clothing of the plaintiff, and threw him from the position where he stood, over to and against the car, and by reason thereof, he was seriously injured. And he further claims that at the time of such accident, he was guilty of no negligence which contributed to the injury, but was acting with due care and reasonable precaution. * * *
“9. I further charge you in this case that if you should find upon the night in question that the plaintiff signaled for the car to stop and that the motorman answered such signal with the usual answer of two short blasts of the whistle, then I charge you it was the duty of the defendant to have slowed down the car and brought it to a stop at the platform of the station so that'plaintiff could have safely had access thereto; and if you should find that defendant did not do this, then it would be guilty of negligence and plaintiff would be entitled to recover; if you should further find that defendant’s failure to slow down the# car was the proximate cause of the accident and that” plaintiff himself was free from any negligence that contributed to the injury.”

He also gave plaintiff’s request to charge as follows:

“14. In this case, I charge you that if you believe from the evidence that on the 16th of February, 1917, the plaintiff in good faith came to the depot of the defendant and upon the platform of the defendant for the purpose of taking said car for passage to the city of Owosso; that at that time and place that he signaled the defendant’s trainman when about four hundred feet or more away, and that said trainman answered said plaintiff’s signal for the purpose of accepting him as a passenger, then I charge you that plaintiff then and there became a passenger and it was the duty of the defendant in all ways to exercise a very high degree of care for his safety or protection in the operation of the car and the maintenance of its road, and in deciding whether or not the defendant performed that duty you have a right to consider the lighting of the platform, the rate of speed the car was running at the time of the accident and all the surroundings at the place of the accident, and if you find that the defendant violated its duty to render that high degree of care for the plaintiff that an ordinarily prudent person engaged in the same kind of business would have done under the same or similar circumstances and conditions, then I charge you that the defendant is guilty of negligence and the plaintiff is entitled to recover.”

It is conceded that the car in question should have stopped at this way station if signaled to do so; that no particular kind of signal was required; that anything which apprised the motorman that a person was waiting to take the car was sufficient, and that two short blasts of the whistle was the customary way in which notice would be given that the signal had been observed and that the car would stop. The waiting room was a small frame building, about 9 by 10 feet, and between it and the tracks of defendant was a platform about 5 feet wide, the outer edge of which was about 3 feet from the nearest rail of defendant’s track. There is a step leading to the platform from the south end. On the night in question, there was no light in the waiting room or on the platform. Plaintiff testified that the night was cold and he was wearing a heavy fur overcoat; that he had his medicine case under his right arm; that he was familiar with the surroundings, having often taken a car there; that after he had given the signal by waving his left arm, and heard the answer thereto, he stood near the edge of the platform, expecting the car to stop; that when it passed it was going at the rate of 50 or 60 miles per hour; that—

“the wind or the suction or whatever you call it, made a regular top of me. I was facing the south there, and it whirled me right into that car, into the side of the car, towards the latter end of it. Now, that is just what took place.”

He was asked: “Q. To what extent was there a suction from that car when it went by there?” and answered, “A. Why, it was terrific, I call it.” His shoe was torn from his left foot and the heel partly ground up. Defendant’s motorman denied that he saw any signal given or that he answered it, as claimed by plaintiff, and he testified that when the car was about 20 feet from the plaintiff he saw a man’s hand, go up, that the car hit it, and that he stopped as soon as he could do so and within 800 or 900 feet. He says the car was traveling at about 45 miles per hour. The conflict in the testimony of the plaintiff and the motorman as to the giving of the signal and the answer thereto presented questions of fact for the jury, and under the instructions given, in view of the verdict rendered, must be considered as having been determined in plaintiff’s favor. In the further consideration of the errors assigned, we may therefore treat these facts as established by the proofs.

There was considerable evidence offered on both sides as to the effect of the suction of air produced by a rapidly moving car on a person standing within a few feet of it. George Cook, a farmer who lived near the crossing, said:

“Q. Witness, have you stood by one of those street cars that was passing rapidly by on that track, to notice whether there was a suction to that car when the car went by?
“Mr. Whiting: I desire to object to that unless it is given more in detail, what the car was and what the conditions were.
“Question read.
“The Court: He may ariswer.
“A. Why, I have stood near them at times. I have a front gate, when I lived there to the crossing, that went from the yard out over the railroad into the highway. It is very close to the gate. It is so close, really, that we never allowed it to be swung except the one way, in, and probably within 4 or 5 feet of the track, just a little ways.
“Q. How do you describe the suction to any of those cars that are going through from 30 to 40 miles an hour?
“Mr. Whiting: I desire to have my same objection.
“The Court: Very well.
“Mr. Whiting: To all of this line of testimony, incompetent and irrelevant.
“A. There is a draft, a suction. The conductor sometimes, or motorman, would throw paper off at times, used to give me an evening paper sometimes when he would have one. I have had them drop a little short of the mark and roll along after the car, you know, as it would be going along at a rapid rate and there is a great suction there.”

Defendant’s general superintendent, Clinton E. Morgan, testified as to certain experiments that had been made as to the force and effect of such suction; that the general direction of the air force produced by the car is away from it, that it leaves an air pocket or vacuum behind the car, and that he had never seen a person or object sucked into the side of a single motor car. On cross-examination he testified:

“Q. What would be the effect of this air current you speak of, this outward current, if a building 8 by 10 and 8 feet high, were placed in the path of this air current?
“A. It would have a tendency to shove the building over, * * *
“Q. If it didn’t blow it away, what would be the effect ?
“A. When the car went back, that is, went by, the vacuum behind would have a tendency to kind of pull it in towards the track. * * * I have tried several means of measuring that vacuum behind the car, but I haven’t been able to find a contraption to measure that air behind there. You can’t catch it. It is there, there is a vacuum there. You have got to have something to pass that air through. * * *
“q * * * Isn’t it true, if a man had on a big overcoat and standing there when the car, we will say — suppose he was standing to the south, in this way, and the car comes by, and he has on this big fur overcoat, standing there, and when the head of the car comes by and that current of air came around the comer of that car, would you not think that there would be a heavy pressure on the man standing there?
“A. It would shake him a little bih
“Q. Shake him a good deal, wouldn’t it?
“A. Not much.”

R. C. Taylor, the superintendent of equipment of the defendant company and a mechanical engineer of many years’ experience, was called by defendant. He testified as to the improbability of the plaintiff receiving his injuries in the manner claimed by him. His testimony differed greatly from Mr. Morgan’s in his estimate of the air pressure produced by a rapidly moving car. In the course of his examination he said:

“I should think if a car was going 66 feet in less than a second and a hard substance of the car came in contact with a hand held out, that the impact would cause some mark on the hand if it impinged against the car, it would make a scratch, bruise or mark, or even break it off. I would think it would make a mark. * * * It is impossible to give any description of what occurred, so as to swing him around to such an extent so as to throw his feet under the car, but it is quite conceivable how it could be done. I have seen it done .in other cases. I have seen it done upon the western division of the Michigan Railway. There a lady held her hand out in front of the car. It rolled her all over the place. I mean, it threw her down, rolled her down a bank, rolled her over two or three times, and she only got hit in the hand, and it didn’t break her hand, and the car was going 80 miles an hour. It marked her hand, .but it didn’t break it. .It didn’t break her hand. That is the only instance like that that I know of personally.”

That the passing of a car, going at a high rate of speed, will create some considerable disturbance in the air, and thus affect a person standing near it, is apparent from the testimony. This court, in Richardson v. Railway Co., 176 Mich. 413, seemed to take judicial notice that a suction would be created by the passing of a train of cars and that the effect thereof might be sufficient to draw the skirts of a woman standing near by into the wheels of the train. At page 423, it is said:

“If this train was running at the rate of speed claimed for it by plaintiff’s witnesses, it is apparent that the suction from the rapid motion of the train may have drawn the skirts of decedent into the driving wheel, or machinery, causing the marks or grease spots described upon her clothing, and tearing her clothing from her hips, and winding it around her feet, as described by the doctor. This might draw her legs into the machinery, and may have severed the one and broken the other, as described.”

The facts in Great Falls, etc., R. Co. v. Hammerly, 40 App, Cas. D. C. 196, were quite similar. In the statement of facts it is said:

“Between 9 and 10 o’clock at night she (plaintiff) was upon the station platform waiting to board a car. She saw one approaching, heard it whistle, stepped towards the front of the platform, * * * and waved her hand for the car to stop, but it did not; ‘that it turned her around and she fell,’ and one of her feet was struck by the car. * * * The whistle did not sound as the car reached the platform, and there was nothing to indicate that the car would not stop. There was evidence that it was going very fast, and that its speed did not lessen as it passed the station. When it was about 50 or 100 feet distant, plaintiff realized it would not stop ‘as it was running too fast’; did not then change her position, because ‘you wouldn’t have time to think, much less move.’ ”

In the opinion written by Mr. Justice Robb and concurred in by the other Justices it was held:

“In the present case we think the question of the defendant’s negligence and of the plaintiff’s contributory negligence was clear for the jury to determine. The plaintiff desired, to take the car, and, to effect that purpose, it was necessary for her to signal it to stop. There was nothing to indicate to her that her signal would not be effective; in other words, she had no reason to believe, when she stepped towards the front of the platform, that the car would not respond to her signal. Whether the conductor was legally bound to stop we need not determine, since it is sufficient for the purposes of this case that plaintiff had reason to believe he would. Having reason to believe the conductor would respond to her signal, she was justified in assuming a position which she would not otherwise have been justified in assuming. The evidence was to the effect that she at no time voluntarily placed herself sufficiently near the edge of the platform to be struck by the car. This leads to the further observation that under the evidence it was competent for the jury to find that the speed of the car as it passed the station was the cause of the plaintiff’s fall and consequent injury. It was well known to the defendant that prospective passengers would assemble at its suburban stations in the expectation of boarding its cars. Knowing this, did it fulfill its obligation to such prospective passengers who, as we have previously suggested, were then constructively in its care, when it not only failed to stop its car in response to their signal, but rushed that car by the station as fast as it could go? We think not. Having impliedly invited prospective passengers to assemble upon its platform, and having given such prospective passengers reason to believe its cars would be stopped upon their signal, it was clearly its duty in passing such a point to take such reasonable precautions as would, in the circumstances, properly insure their protection. The rule applicable to express trains that stop at scheduled points only has no relation to an electric railway car that is supposed to stop at all stations if signaled. It might constitute contributory negligence for a prospective passenger to place himself so near the edge of the platform of a station at which an express train was not scheduled to stop, as to be affected by the passing of such train, while such passenger would be justified in assuming the same position for the purpose of signaling an approaching electric car that was expected to stop.
“In the present case the evidence is to the effect that the signal was given in ample time to have permitted the stopping of the car. The plaintiff was in a position of safety, had the car either stopped or passed at a reasonable rate of speed. When the car was within 50 or 100 feet of her, she realized it would not stop because ‘it was running too fast.’ It is urged that she was negligent in failing immediately to step back. Assuming that the car was. going 50 miles an hour, and we think the jury would have been warranted in finding that to have been its speed, it was going 73 1/3 feet a second. Plaintiff fixed the distance of the car from her when she realized it would not stop at about 50 or 100 feet. It is apparent, therefore, that only about a second of time interposed between her realization that the car would not stop and the accident. To say that a women weighing nearly 200 pounds, situated as she was, startled as she may have been, — indeed as she says she was, — was guilty of contributory negligence because she permitted a second to elapse without getting out of the way, would be to usurp the functions of the jury. Clearly, it was for them to decide, as practical men, whether plaintiff’s conduct was not natural and reasonable.”

While we do not assent to all that is said as to the plaintiff being a passenger (a question later discussed herein), we are in accord with the reasoning of the court on the question of the contributory 'negligence of the plaintiff. See, also, Trieber v. Railway Co., 134 App. Div. 661 (119 N. Y. Supp. 439).

It also seems apparent that the effect of such disturbance of the air on a man would be increased if he stood in a narrow space between a building and the passing car, as was the case here. The plaintiff testified positively that his injury was produced in that way, and we cannot find from the proofs, or from anything of which we may take judicial notice, that it was physically impossible to so occur.

Was the plaintiff constructively a passenger and did the defendant owe him a duty as such? Error in the court so holding is also discussed by counsel in his criticism of the charge of the court. We dispose of it here. We do not find that this court has passed upon the question as here presented. Assuming the facts to be as plaintiff testified, and as the jury found, we find him upon the platform at the waiting room maintained by the defendant for the accommodation of persons desiring to take passage on its cars, intending to board this car. On its approach he gave a signal for it to stop, which was answered in the usual way and which advised him that his signal had been observed and that the car would stop. The motorman then knew that an intended passenger was on the platform and it was his duty to so run the car past the platform as not to needlessly expose him to danger. We believe that duty is fairly expressed by defining it as that high degree of care to which a passenger is entitled. The rule is clearly stated in 6 Cyc. p. 536 et seq.:

“The relation of carrier and passenger commences when a person with the good-faith intention of taking passage,_ and with the express or implied consent of the carrier, places himself in a situation to avail himself of the facilities for transportation which the carrier offers. In case of a railroad this relation arises not merely when the passenger enters the train with the ticket already purchased, giving him a contract right to ride, but when he enters upon the premises of the carrier, with intention to take a train in due course. But one who is about the carrier’s premises, without intent to be transported in due course, or after the abandonment of such intent, is not a passenger. One who enters upon the premises or takes passage on the train of a railway, with intent to become a passenger, but by mistake as to the proper place or proper train is not, by reason of such mistake itself, precluded from the rights of a passenger. * * *
“To give rise to the relation of passenger and carrier there must be not only an intent on the part of the former to avail himself of the facilities of the latter for transportation, but also an express or implied acceptance by the latter of the former as .a passenger. Until there is an acceptance, that is, until with the express or implied knowledge of the carrier or his employees the person seeking to become a passenger has indicated his intention to become a passenger, which intention has been in some way acquiesced in, at least to the extent of not refusing transportation, the relation does not arise, even though, the purpose of the person attempting to become a passenger is to pay fare when required. But just as there may be sufficient intent to become a passenger before transportation actually commences, so there may be an implied acceptance as to persons seeking transportation before they have entered into the train or other conveyance and it has started toward its destination. Those who by express or implied assent are waiting in the passenger room or in a standing car, for the departure of a train, or are crossing the premises of the carrier for the purpose of going upon a train, or are in the act of mounting the car steps, are passengers, provided their acts are such as are presumed to be known and assented to by the agents of the railroad company having authority in the matter, and regardless of whether or not a ticket has been purchased, if no rule or regulation of the company is being violated. But the mere fact of intention to go on board a car, which intention has not been, by acts or otherwise, indicated to the servants of the railroad company, does not render the person having such intention a passenger, although he may be entitled to transportation. It matters not that the person gets on board a train at an unusual or unauthorized place; if he is entitled to transportation he becomes a passenger from the time he gets on board the train.”

The rule thus stated is abundantly supported by the authorities from other jurisdictions cited in the annotation to the text. The cases cited by defendant’s counsel (Georgia, etc., R. Co. v. Tapley, 144 Ga. 453 [87 S. E. 473, L. R. A. 1916C, 1020]) are easily distinguishable. In these cases there was no acceptance, express or implied, of plaintiíf as a passenger. To complete 'the relation, there must be an intent on the part of the passenger to take passage; a communication of such intent to the carrier, and an express or implied acceptance by the latter. Brott v. Railroad Co., 220 N. Y. 92 (115 N. E. 273). In our opinion, there was sufficient testimony, in view of the surrounding circumstances, to justify a finding by the jury that plaintiff sustained the injury in the manner claimed by him, and, if he did, we are of the opinion that the jury was also justified in finding that such negligence was the proximate cause of his injury.

2. Contributory negligence. It is the defendant’s claim that plaintiff was guilty of contributory negligence, and that such fact is established by his failure to move back a few feet when the car was approaching. After the plaintiff had given the signal to stop and had received the answer thereto, he was in a position of perfect safety, even were he standing by the edge of the platform, had the car stopped as he had the right to expect it to do. A car traveling 45 miles an hour will pass over more than 65 feet each second. So that, between the time that he would have discovered that it did not intend to stop and the time it rushed by, he would have little time to act or even think of the danger in which he was placed. He could not but be confused and if, under the circumstances, he failed to step back, or acted in a manner which in cool deliberation we might find not to be in the interest of his personal safety, we do not think it can be said as a matter of law that he was thereby guilty of negligence which contributed to his injury.

The duty of a person about to take a train, or one who has business with a train about to stop at a flag station, is well stated in Tubbs v. Railroad Co., 107 Mich. 108. We quote from page 115:

“We cannot say, as a matter of law, that persons having business with a train at a way station, at which the stop is but momentary, are guilty of negligence in not waiting until the train comes to a standstill. It is a fact open to every day observation that those awaiting the arrival of a train do not wait until the train stops, but, on the contrary, as the train approaches, those having business with the train take their position near the track, and wait for the train to come to a standstill. Indeed, this custom is so general that it must be within the knowledge of those operating trains.”

The court instructed the jury that if the plaintiff stood on the platform with an arm extended so close to the track that the car struck it and caused the accident, the plaintiff would be guilty of contributory negligence and could not recover. This instruction fairly presented the claim of defendant as to the cause of plaintiff’s injury. The determination of this question of fact was for the jury. Great Falls, etc., R. Co. v. Hammerly, supra.

3. Charge of the court. These errors are largely based on the claim of defendant “that mere failure to stop a car for a passenger is not negligence upon which a personal injury action can be predicated.” The instructions of the court heretofore quoted show clearly that the negligence of the defendant was not predicated on any such claim. Under the charge as given, recovery was not had by reason only of the negligence of the defendant in its failure to stop the car, but in its running its car past the platform at a high rate of speed after it had advised the plaintiff by an answer to his signal that it would stop.

Complaint is made of the following instruction, given at plaintiff’s request:

“13. In this case, I charge you that the defendant is a common carrier of passengers for hire and that having accepted a passenger for transportation the defendant owes such passenger a duty to use the highest degree of care for his protection and safety consistent with the reasonable operation of its business j that this high degree of care should be exercised by defendant from the time that the passenger in good faith enters into the buildings, platforms and premises of the defendant for the purpose of entering said cars as a passenger, and which duty also includes a high degree of care to keep the platforms in a safe condition, keep them lighted when necessary, provide means of signaling a car when necessary and to run its car at and by said station in such a manner as_ to observe a very high degree of care for the protection and safety of such passengers.”

■ As to this instruction, defendant’s counsel say in their brief:

“By this paragraph of the charge it is assumed that the plaintiff was a passenger, while in other paragraphs of the charge it is stated that he is not a passenger unless the jury believe that he signaled the car as testified to, and that the motorman answered the signal by two short blasts of the whistle.- One or the other is erroneous.
“This place where the accident occurred was merely at a country crossing; there was no agent there; no tickets sold; no heat provided; merely a shelter where passengers might wait before signaling a car. No one would contend that plaintiff when he appeared there became a passenger before he signaled a car. We submit, that he does not become a passenger then. But assuming, for argument’s sake, that he does, this was a question for the jury. The motorman had testified that he gave no signal, and none of the other witnesses heard the two short blasts of the whistle. Yet, paragraph 13, of the charge, presupposes that defendant had accepted him, and lays down a rule as to the duty.”

They concede that in other portions of the charge the court properly instructed the jury as to the duty the defendant owed plaintiff as an intended passenger and that he only became such in case the jury found that he had given the necessary signal and the motorman had answered in the usual way. They insist, however, that under the rule many times stated by this court—

“Where a charge contains two conflicting portions, one of which is correct and the other incorrect, it will be presumed on appeal that the jury followed the erroneous portion.” Bayne v. Everham, 197 Mich. 181.

See, also, Rathbone v. Railway, 187 Mich. 586.

While the language employed was unfortunate, we cannot believe, in view of the other portions of the charge, that the jury could have been in any way influenced by it. It did not instruct them that the plaintiff was a passenger. It in no wajr applied the instruction to the particular facts, but stated a somewhat broad proposition of law applicable to such cases. Besides the rule above stated on which defendant relies, it has also been said:

“This court has frequently laid down the rule that the charge of a trial court to the jury in a given case should be considered as a whole, and that the portion objected to should be read and considered in connection with all other portions of the charge given bearing upon the same subject.” Marshall v. Railroad Co., 184 Mich. 601.

The other errors complained, of . 'relate to the refusal of the court to give certain requests proffered by defendant. While they might well have been given, they merely stated negative propositions and their force and effect were fairly covered in the charge as. given.

4. Argument of plaintiff’s counsel. The argument of both of plaintiff’s counsel is inserted in full in the record. As is not unusual in such cases, there was much said by them which should have been omitted. It is apparent that at the time of the argument the court had not intimated to counsel the manner in which he would submit plaintiff’s claim to the jury. They were thus required to anticipate his instructions, and consequently discussed matters which under the charge as given were not to be considered by the jury. We must assume that the members of the jury were intelligent men; bent on deciding the case fairly between the parties; that they realized it was their duty to be governed by the instruction of the court as to the law, and not by the argument of counsel. Without alluding to the particular errors pointed out, we are of opinion that the jury were not improperly influenced or swayed to defendant’s prejudice by such arguments.

5. Weight of the evidence. Should a new trial have been granted to defendant because the verdict was contrary to the weight of the evidence? This question having been properly raised on the motion for a new trial, it becomes our duty to examine the testimony to determine whether or not the verdict is so overwhelmingly against the weight of the evidence as, in justice to the defendant, to call for a new trial. In re McIntyre’s Estate, 160 Mich. 117.

~ The plaintiff’s testimony as to the cause of his injury was uncorroborated except as the surroundings may have given it support. Uncontradicted, it would not, in our opinion, appear unreasonable or even improbable. His right of recovery depended upon his establishing the fact that he had given the signal and that it was responded to by the motorman. He was at the flag station to take the car, and knew he must signal to have it stop. While contradicted by the motorman and by Conductor Southwell as to the answering signal having been given, if but this testimony be considered we would find no justification for disturbing the verdict for that reason.

It is insisted that plaintiff’s testimony as to the manner in which he sustained his injuries is so flatly contradicted by the statements he made soon after the occurrence as should have caused the jury to disregard it or, in any event, should entitle defendant to a new trial. It is claimed that such statements should be taken as admissions on his part and that they clearly show that his injury was caused by his right arm having been struck by the car.

We have made a careful examination of the testimony relied on to support this claim. Dr. Hume, who was on the car at the time of plaintiff’s injury, testified on cross-examination by defendant’s counsel as follows:

“Q. He told you he was signaling the car with his right arm — hand, didn’t he?
“A. I wouldn’t say positively that he said that, but my recollection is that he told me he was signaling the car. Now, he might have said with his right hand. I wouldn’t swear positively.”

Dr. Arnold, a surgeon employed by the defendant, who assisted Dr. Hume in reducing the fractures in plaintiff’s arm and leg, was called by plaintiff to testify to his injuries. On cross-examination by defendant’s counsel, he said:

“Q. And did you ask him what had happened, how the accident had occurred, or did he tell you?
“A. Yes, we talked it over in a way.
“Q. Did he tell you he was standing on the platform and attempted to flag a car by waving his right hand and that he misjudged the distance of the car and the car struck his right arm, whirling him around?
“A. I don’t know as he specified his right arm, but he was flagging — the impression I got from his conversation was, he was flagging the car.
“Q. Yes.
“A. And the car struck his arm.
“Q. The car struck his arm?
“A. And whirled him around.”

He was afterwards shown a report he had made to the company, and, after refreshing his recollection by reading it, he ,was asked:

“Q. What will you say whether or not he told you he was signaling with his right or left arm?
“A. Well, with his right arm.
“Q. Right arm? And that he misjudged the distance and the car struck his right arm?
“A. That was my impression.”

Benjamin Kleinstiver, the claim agent of the defendant, went with Dr. Arnold to plaintiff’s home on the 20th, four days after his injury. He testified that while there, and after the doctor had left, the plaintiff told- him that he signaled the car to stop with his right arm and that it was hit by the car. On cross-examination by plaintiff’s counsel, he said:

“I wouldn’t say which it was, right arm or hand, that he said which it was, either the right arm or hand. But the right arm was broken and he was whirled around and was thrown to the platform, or onto the platform, and he couldn’t tell how or in what manner his left leg or foot was injured. He also told me that when the car was about 40 rods away, he began to signal; that the headlight was burning, and burning bright. As I recall it, he said he commenced to signal about 40 rods; he thought the car was about 40 rods away.”

The deposition of -Robert W. Bell, of Columbus, Ohio, who was on the car, had been taken. In it he testified:-.

“The injured man stated that when the car came along he stepped out from the little storm building there that they might see him, and when he found they were not going to see him, why he attempted to touch the car with his medicine case, and he expects he must have got a little nearer than he thought he was, and the car hit him on the arm and knocked him off the platform, or pushed him off the platform — -he didn’t know just how he got in that position, or how he fell that his leg got under him. I.do not.know how his arm was hurt. When the injured man made these statements there were two men, another doctor, and two ladies and myself present.”

He further said that the car approached the station at the rate of 8 or 10 miles an hour, and that it was stopped within 75 yards of the station.

. The other three witnesses, whom defendant relies on, all of whom were on the car, testified that the plaintiff said “he didn’t think the car was so close to him.”

It may be observed that the witness Kleinstiver was contradicted by plaintiff and his wife and his daughter, all of whom testified that no such statement was made while the witness was at plaintiff’s home. Mr. Bell’s recollection differs from that of all others on the facts. It is significant that he estimated the speed at which the car was running at 8 or 10 miles an hour while the motorman believed that he was running 45, and that, in his judgment, the car stopped within 225 feet while the motorman fixed the distance at 800 or 900 feet.

A fair consideration of all this testimony does not, in our opinion, require us to overrule the finding of the jury as to the weight of the evidence. It is not suggested that plaintiff voluntarily placed himself in a position of danger. This car, running at 45 miles per hour, would, as before stated, travel more than 65 feet per second. If the plaintiff had a right to expect it to stop, the time which would elapse between his discovery that it would not and its passing the plaintiff would be brief indeed; and his recollection of what he did in that time plight well be hazy and imperfect. As the only purpose of this contradictory, evidence is to show admissions on plaintiff’s part as to where he was and what he did at the precise moment the car passed, we do not feel that it so affects the real question at issue as to entitle defendant to a new trial for the reason claimed.

Was the verdict rendered excessive? The injuries sustained by plaintiff were serious and painful. He was confined to his bed for 8 weeks. After a time he was able to go about on crutches, but was unable to resume his practice for 8% months. His right forearm was fractured, both bones having been broken, and his right wrist partly stiffened so as to greatly impair the use of his arm. Both bones of the left leg, near the ankle, were fractured. This joint is stiffened, and will always remain so. The leg is shortened about one and one-half inches. The surgeons who examined plaintiff agree that his injuries are permanent and much impair his usefulness in the practice of his profession. He is now, and always will be, unable to do any surgical work. Plaintiff was 52 years of age at the time of his injuries. His income from his practice at that time was more than $300 per month. Under these facts, which are not in dispute, we do not feel called upon to interfere with the judgment of the jury as to the damages to which they found him entitled.

After a careful reading of the entire record, and giving due consideration to the several assignments of error alleged by defendant, we are constrained to hold that this case was fairly tried and that there was sufficient evidence sustaining the burden of proof assumed by plaintiff on the issues presented to justify the verdict of the jury.

The judgment is, therefore, affirmed, with costs to plaintiff.

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