text:
    FITZGERALD v. DETROIT UNITED RAILWAY.
    1. Trial — Instructions—Damages—Permanent Injury.
    In an action against a street railway company for personal injuries, it was error for the court to advise the jury that they might allow damages for permanent injury, in the absence of evidence that the injury was permanent.
    2. Same — Argument oe Counsel — Duty of Court — Curing Error.
    Argument by plaintiff’s counsel, in a personal injury case against a street railway company, that the testimony of defendant’s medical witnesses was colored, apparently made deliberately and withdrawn only in an effort to prevent a reversal of any judgment secured, deserved immediate and emphatic condemnation by the court.
    3. Same — Cubing Error.
    There is no good reason for trial counsel imposing upon the trial court the duty to cure, if possible, the calculated and the natural effect of improper argument of counsel to a jury.
    4. Appeal and Ebroe — Miscarriage of Justice — Instructions— Argument of Counsel.
    Where, in an action for personal injuries, a verdict was returned for plaintiff, and upon examination of the evidence by the appellate court it cannot be said that there was no miscarriage of justice by reason of erroneous charge of the court and intemperate argument of counsel, the judgment will be reversed.
    Error to Wayne; Hally, J.
    Submitted April 9, 1919.
    (Docket No. 13.)
    Decided May 29, 1919.
    Case by Grace M. Fitzgerald against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Corliss, Leete & Moody and A. B. Hall, for appellant.

      Monaghan, Monaghan, O’Brien & Crowley, for appellee.
   Ostrander, J.

Plaintiff had a verdict for $4,500, upon which judgment was entered. Defendant’s motion for a new trial was denied. The testimony returned with the writ of error relates to two principal subjects, one, the nature and extent of plaintiff’s injuries, the other, her physical condition previous to the injury; it being contended here, as it was upon the motion for a new trial, that the verdict is against the weight of evidence and is excessive, and urged that improper argument of plaintiff’s counsel and an error in the charge of the court are reflected in the verdict.

Testimony for the plaintiff tended to prove that when alighting from defendant’s street car with one foot upon the step, one on, or approaching, the pavement, supporting herself by grasping a handle or railing on the car, the car was suddenly started, throwing her against it, dragging her for some distance, and, besides ruining her clothes, injuring her spine, her head and shoulder. As alleged in the declaration, some consequences were—

“that her ovaries, stomach, bowels and internal organs were permanently affected; that she suffers severe nervous headaches, and is confined to her bed for long periods of time; that she suffered severe bruises all about her body, head and legs; that her eyesight and hearing have been affected; that by reason of said injuries she becomes easily fatigued; that the ligaments of her legs and back were severely strained, and she suffers great pain since that time by reason of the said accident and that her nervous system has been permanently deranged.”

It is also alleged that prior to receiving the injury she wás in perfect health, both in mind and body. The court instructed the jury to fix her damages—

“at such sum as will compensate her for the injury and destruction of her garments, the loss of wages she suffered by being absent from her work, the doctor bills and medical expenses which aróse from the injury, and reasonable and fair compensation for the pain and suffering she has endured since the accident and reasonable and fair compensation- for the pain and suffering she may endure in the future, if you find, from the testimony, she will endure pain and suffering in the future.”

In this connection the jury was told:

“I charge you that in determining what may be fair compensation for the injury done to the plaintiff in this case, you may take into consideration her present age, together with the mortality tables, as set forth in the statute laws of the State of Michigan, if you find from the testimony in this, case that the injuries complained of herein specified will be permanent and are permanent in their character.”

And again:

“Now, gentlemen of the jury, you have been told that you have a right to take into consideration the mortality tables. You have a right to take into consideration the mortality tables, which are the expectancy of life, provided there is-testimony here in this case which will warrant you in concluding that the injuries that were suffered here are of a permanent character.,”

The mortality tables were not introduced in evidence. While the very nature of the injuries, some effects of which were claimed to- be present at the trial, which was about two years after the injury, was such that the inference would be natural, if not necessary, that they would continue for some time ¿hereafter, there was ho medical or other testimony tending to prove that the' injuries were permanent or the period within which the effects would probably cease.

As to the argument of plaintiff’s attorney to the jury, the record shows the following:

“And, gentlemen, when these leeches will bring in neighbor against neighbor, why didn’t they bring a neighbor here that has seen her walk since the injury, a further distance than two or three blocks. Do you suppose, with the methods that they use in trying lawsuits that they would have disregarded that if it could have been done. Dp you suppose for a minute, if they could get testimony that Miss' Fitzgerald was able to walk, was able to work, was able to dance, was able to play, as you and I and all of us are entitled to, that they would not have brought them here — and then speak about other people’s rot. I don’t know whether to resent the way it has been tried or not. I know the D. U. R is an artificial body, but if it was made up of flesh and blood it ought to be ashamed, ashamed to the core, to bring in neighbor against neighbor, to try to put sister against sister, because of something that Mr. Hall knows, and you can guess that he knows.
“Mr. Hall: Now, if the court please, I want an exception to that statement. There was absolutely no testimony here that I know anything about this family whatever.
“Mr. Murphy: If you confined your own remarks to the testimony then this would not be necessary.
“Mr. Hall: Just a minute. I wish counsel would let me get my objection. I would like that, Mr. Stenographer.
“The Reporter: I was taking it.
“Mr. Hall: Will you note an exception, your honor.
“The Court: Very well. You may note an exception.
“Mr. Murphy: Of course, Mr. Hall, if you are interrupting me for the purpose of putting me off my theme, let me caution you it cannot be done.
“Mr. Hall: I am just saving my record, Mr. Murphy.
“Mr. Murphy: Sometimes young lawyers will hold to their convictions upon a case. Gentlemen, I want you to stand not only upon the testimony of their own doctors, and I have got it here written up, and he cannot take any exception to these remarks. I want you to stand on this woman’s condition, on the testimony of their expert, Dr. Povey; that will please me. Let me tell you, there is no issue to the neurotic condition, to the effect her spine is in, to the bent end of her spine, to the bruised vertebrae, to the shattering of her nervous system, there is no issue, Mr. Hall agrees and I agree. He says it is due to a previous illness, I say,- and Miss Fitzgerald says, it is due to an accident. That is the only issue in this case; there is not another thing involved, and that is brought out simply for the purpose of reducing the damages in this case, and for no other reason.
“Gentlemen, who are our doctors? Are they the trained physicians of the D. U. R.; are they trained by Miss Fitzgerald to 26 years’ experience as the D. U. R. surgeon was; are they trained as Dr. Povey was with six years’ experience as the D. U. R. expert? Any jury that will believe an expert that is placed on the stand by the defendant in this case, knowing that their testimony could not be colored — anything but colored, or they would not have them, you know that.
“Mr. Hall: If the court please, I think this has gone far enough; I wish your honor would take some action.
“Mr. Murphy: I say that their testimony is colored.
“Mr. Hall: I want an exception to that statement. Did you get that, Mr. Stenographer?
“The Reporter: Yes.
“Mr. Hall: The idea counsel stating here, we would not have a doctor whose testimony was not colored, it seems to me is going beyond the limit. I think your honor ought to take some action.
“Mr. Murphy: I will withdraw that, Mr. Hall.
“Mr. Hall: Of course you will, after you have said it.
“Mr. Murphy: Because I do not want to give you a chance to get out from under this.
“Mr. Hall: Will your honor please take some notice of my exception?
“The Court: His statement, as I understand it, has been withdrawn by counsel.
“Mr. Murphy: It will be withdrawn, your honor.
“The Court: When it has been withdrawn, gentlemen of the jury, you also are to disabuse your mind of any impression, if it made any impression upon your mind.”

It was error for the court to advise the jury they might allow damages for permanent injury. The statements of plaintiff’s counsel in his argument to the jury were calculated to prejudice defendant. There is some evidence, found in the reason stated by counsel for withdrawing the charges made against the medical witnesses, that they were deliberately made and only withdrawn in an effort to prevent a reversal of any judgment which plaintiff might secure. The attack made upon the medical witnesses produced by defendant was gratuitous and deserved immediate and emphatic condemnation by the court.

In the charge, the court said:

“Never mind this row between these attorneys here, that has not anything to do at all with the facts that are in evidence before you. Attorneys get excited sometimes and sometimes they don’t get excited, and sometimes when they are making an argument to the jury they say things that probably they would not say if they had a little time to think about them, but that has not anything to do with it. ■ You have this case presented to you from the testimony that has been offered here upon this witness stand. That is the thing that is to determine the issue that exists between these people, and you must determine that issue from that testimony and from nothing else, because if you should take into consideration, for instance, this row between these attorneys and should say to yourself, 'One is right and the other is wrpng,’ or you should sympathize with them in some fashion or other, don’t you see that you are letting your minds be swayed by something else besides the testimony in the case.”

Counsel for appellee do not discuss in the brief the criticism of the charge of the court which has been referred to and upon the subject of alleged improper remarks of counsel content themselves with saying that intemperate and improper remarks of counsel are not grounds for reversal unless the court is satisfied that substantial injury to defendant resulted, that they are not ground for reversal if withdrawn or the jury instructed to disregard them, that a mere exception to the statements of counsel not supported by' testimony is insufficient to establish error, and that the court will not reverse a case for improper remarks of counsel when those remarks are provoked by opposed counsel and are retaliatory. Upon each of these propositions, which are really presented in confession and avoidance of error, decisions of the court are cited.

No good reason can be given by and in behalf of trial counsel for imposing upon the trial eourt the duty to cure, if possible, the calculated and the natural effect of improper arguments of counsel to a jury. It would be mere waste of time and space to repeat here the obvious reasons which require fair treatment of witnesses and fair discussion of testimony by trial counsel

It is not possible to say, in this case, that there has been no miscarriage of justice. On the contrary, an analysis of the testimony raises very grave doubts concerning the extent of the injury suffered by plaintiff on account of defendant’s negligence. Plaintiff declined to give her name to the conductor of the car because, she says, she thought she was not much hurt and did not desire publicity. This is, of course, not conclusive of anything except her state of mind at the time, but tends to negative the idea that she was, or believed she was, seriously hurt. There js testimony tending to prove that five days after she was hurt she went to her doctor’s office for examination and treatment and five days later returned to her work. There is testimony tending to prove that up to a few months before she was hurt she was disordered, under treatment by medical advisers, that many of the symptoms of disorder which are ascribed to the injury were present long before the injury was' received. Before as well as after her injury, her medical advisers found absence or retardation of the knee jerk, and other reflex nervous movements, indicating spinal and nervous disorders. Her history previous to the injury includes a condition in which her lower limbs were for some time paralyzed and a period during which she walked with the aid of crutches and a cane. Very shortly before the injury she carried a cane when she went abroad. Upon resuming work she also carried the cane. It was for the jury to determine the nature and extent of her injuries, and we have examined the testimony only for the purpose of deciding whether it is plain that no harmful effects resulted from the error in the charge and the improper conduct of counsel. We conclude that reversible error is made to appear.

There are some assignments of error not set out or commented on for the reason that grounds for the exceptions taken are not likely to be present upon a new trial. The judgment is reversed, and a new trial granted, with costs to appellant.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    HANSBARGER v. HANSBARGER.
    1. Wills — Agreement to Probate.
    Persons having such an interest in an estate as entitles them to contest a will may make agreements to forbear or prevent contests.
    2. Same — Breach of Agreement — Construction of Will.
    An agreement between children of testator and their stepmother that the will should be probated and said estate administered according to its terms, except as therein provided, was an agreement not to contest the probating of the will and was not breached by the bringing of a suit for construction of same, notwithstanding the preamble to the agreement recited that it was made for the purpose of avoiding all litigation.
    3. Contracts — Construction—Conflict.
    If, construing the entire agreement, there seems to be any difference in meaning between the preliminary statement and the agreement proper, the operative part, being clear and unambiguous in meaning, must be given effect.
    4. Wills — Construction.
    Construction by the court below that the will gives to the widow one-third, in value, of the real estate, affirmed.
    On validity of contract not to contest will, see note in 13 L. R. A. (N. S.) 484.

      Cross-appeals from Ionia; Davis, J.
    Submitted April 15, 1919.
    (Docket No. 49.)
    Decided May 29, 1919.
    Bill by Harley Hansbarger and others against Ada R. Hansbarger for the construction of a will. Defendant filed a cross-bill asking affirmative relief. From the decree rendered, all parties appeal.
    Affirmed in part, and reversed in part.

      Walt & Colwell and Hawley & Eld-red, for plaintiffs.

      Nichols & Locke, for deféndant.
    Jerry Hansbarger died April 6, 1918, owner of real and personal property, which he disposed of by a will, which was later admitted to probate and is here set out:
    “I, Jerry Hansbarger, of the township of Odessa, county of Ionia, and State of Michigan, being of sound mind and memory, do make, publish and declare this, my last will and testament, hereby revoking all former wills by me heretofore made.

      “First: It is my will that all my just debts and funeral expenses first be paid out of my personal property, except debts on land, if so much there be. The deficiency if any be charged and paid out of my real estate.
    “2d. I hereby give and bequeath to my beloved wife, Ada R. Hansbarger, in case she should survive me, one-third of all of my real estate wherever situate, the same to be selected by her together with all of the buildings situated thereon. Said real estate to become as of her own property in fee simple, giving to her, my said wife or widow as she may be the full and clear title to said real estate and buildings to do with as she shall deem best. Also all of my personal property of whatever name or nature of which I shall die seized. Including all household and kitchen furniture, money, notes, bonds and mortgages of which I may be possess at the time of my death.

      “3d. I give and bequeath to my beloved son, Nelson David, now an infant, the sum of one thousand dollars in money, and also the same sum to each and all other children that may be hereafter born as heirs of my body. The said bequest to be paid from the proceeds arising out of the remaining two-thirds of my real estate, either from the sale by the executor of this will or in such manner as he shall deem to be to the best interest of my heirs. It is further my will that should he, my executor, not be able to raise the said sums as herein provided from the sale of said two-thirds of my real estate. Then and in that case each of the said heirs above mentioned shall the sum as may be raised pro rata share and share alike. And should the said sum of one thousand dollars be so raised as above provided and should there be any surplus left over and above the said bequests then and in that case the residue whether in land or money shall be my executor be divided equally among all of my heirs or the heirs of any of my children that are deceased share and share alike, and according to right of representation. That is to say that the children of the deceased heir taking what would have been taken by my heir if he had lived.
    “4th. I do hereby request and authorize the judge of probate court to appoint such person or persons as to him shall deem best as executors or executor of this, my last will and testament, and I do hereby authorize and empower said executor or executors as the case may be to sell so much of the two-thirds of my real estate (after the selection of the one-third has been made by the said Ada R. Hansbarger as allotted to her) as shall be necessary to carry out the terms and conditions of this will. Any residue remaining of said real estate to then be divided share alike among all of my heirs whether of the whole or half blood, or the heir of any deceased heir.
    “5th. It is my intention and will that the one-third of my real estate be taken by Ada R. Hansbarger shall be, equal in value. * * *
    “In witness whereof I have hereunto set my hand and seal this day of December on thousand nine hundred and fifteen.”
    After the will was deposited with the judge of probate, the persons interested in the estate, under the terms, of the will, excepting the infant Nelson David, had a conference, as a result of which an agreement was arrived at, which they caused to be put in writing, and on the 24th of April, 1918, they signed and acknowledged the same. It reads as follows:
    “Memorandum of agreement made this 24th day of April, A. D. 1918, between Ada R. Hansbarger of Odessa township, Ionia county, Michigan, party of the first part, and Harley Hansbarger, William Hansbarger, Plenie Hansbarger and Arthur Hansbarger, parties of the second part.
    “Whereas, the said Ada R. Hansbarger is the widow ■of one Jerry Hansbarger, late of the township of Odessa, who died on April 6th, 1918, leaving a last will and testament bearing date December, 1915. And, “Whereas, the said parties of the second part are sons and heirs at law of the said Jerry Hansbarger, deceased. And,
    “Whereas, the said last will and testament of the said Jerry Hansbarger, deceased, has been filed in the office of the probate court for Ionia county, Michigan, for the purpose of having the same probated. And, “Whereas, the said parties of the second part are not satisfied with the terms and conditions of said last will and testament of said deceased, and are desirous of contesting the said will. And,
    “Whereas, the said parties are anxious to avoid all litigation and the expense of the same, and are desirous of reaching an amicable settlement of said estate. i ■ ■
    “Therefore, for the purpose of adjusting their differences and avoiding litigation, it is agreed between the said parties hereto as follows:

      “First. The said party of the first part hereby agrees to pay the sum of one thousand dollars, from the personal property owned by the said Jerry Hansbarger at the time of his death, to her infant son, Nelson David Hansbarger, and thereby release the real estate owned by the said Jerry Hansbarger at the time of his death from the payment of the said one thousand dollars, according to the provisions of paragraph three of said will, and also release the said parties of the second part from any liability to pay said sum of one thousand dollars to the said David Nelson Hansbarger, as provided by the terms of paragraph three of said will. Said sum of dne thousand dollars to be paid by the said Ada R. Hansbarger within ninety days from the time of appointment of the executor of said Jerry Hansbarger, deceased.

      “Second. It is further agreed that the said party of the first part shall be entitled to receive the entire proceeds obtained from the sale of the forty acres of land formerly owned by the said Jerry Hansbarger, being the northeast quarter (%) of the northwest (%) of section six' (6), township of Sebewa, Ionia county, Michigan.

      “Third. It is further agreed that in consideration of the said party of the first part paying the said sum of one thousand dollars, above mentioned, to Nelson David Hansbarger, and releasing the real estate and the said parties of the second part from the payment of said sum of one thousand dollars, that said parties of the second part shall not in any way contest the probating of the said last will and testament of the said Jerry Hansbarger, deceased, but that said instrument now on file in the probate court shall be probated, and said estate shall be in all respects administered according to the terms of said will, except as herein provided.
    “In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.”
    Thereafter the will was admitted to probate and an administrator with the will annexed was appointed, and still later the widow filed in probate court a. certain declaration and election, the relevant portions of which are:
    “Whereas, by the terms of said last will and testament the said Jerry Hansbarger, deceased, did give, bequeath, and .devisé to me, Ada R. Hansbarger, his wife, the one-third (1-3) of all his real estate wherever situated, the same to be selected by me together with all the buildings situated thereon, said real estate to become my own property in fee simple and giving to me the full and clear title to said real estate and buildings to do with as I shall deem best, and, whereas, I now decide to make my selection of my one-third (1-8) of the real estate together with said buildings, I do by this instrument elect and declare that I hereby select the east forty (40) acres of the east three-fourths (%) of the southwest quarter (%) of section No. ten. (10), township five (5), north of range seven (7) west and the buildings thereon situated as and for my share of the real estate of said deceased to me devised under the terms of said will and I hereby request that said court in making the decree of assignment of said estate to assign to me the aforesaid described parcel of land hereby selected.”
    Plaintiffs, July 1, 1918, filed the bill in this cause, setting up the facts which are above related and others. The fifth paragraph of the bill reads:
    “5. Your orators further show unto the court that after the death of the said Jerry Hansbarger, as hereinbefore set forth, and prior to the allowing of the admission of said will to probate on May 11, 1918, that your orators and the said Ada R. Hansbarger, the defendant, got together and talked over the matters pertaining to said estate, and then and there entered into an agreement or contract in writing, wherein and whereby they agreed that certain disputed matters pertaining to said will should be settled; that said agreement was executed on the 24th day of April last, and is now on file in the probate court for said county of Ionia, a true copy of the same being hereto attached and marked Exhibit ‘B,’ and is made a part of this bill of complaint.”
    The seventh paragraph of the bill reads:
    “7th. Your orators further show unto the court that at the time of the execution of the will hereinbefore mentioned, and marked Exhibit ‘A,’ the said Jerry Hansbarger was the owner of,one hundred and sixty acres of land, forty acres of which he disposed of prior to his death, and a considerable amount of personal property, and thát your orators are the sons of the said Jerry Hansbarger, deceased, by a former wife, and that the said Jerry Hansbarger, at the time of the execution of said will on, to-wit, the month of December, 1915, was desirous of providing generously for his said wife, Ada R. Hansbarger, and. that it was his intention to devise to the said Ada R. Hansbarger a one-third share of all of his real estate wheresoever the same might be situated, and not one-third of the said real estate together with the buildings thereon, and that he also wished to bequeath to the said Ada R. Hansbarger all of his personal property.”
    The relief prayed for, so far as it is of importance to state it, is:
    “That the said last will and testament of said deceased may be construed, and the true meaning and construction and intent thereof ascertained and determined by the order and decree of this court whether under the proper construction to the meaning and intent of said will the said defendant, Ada R. Hansbarger is entitled to any more than a third interest in value of said real estate of which the said Jerry Hansbarger died seized.”
    The widow answered the bill, admitting most of the matters therein stated. As to paragraph 5 she says:
    “5. Answering paragraph 5, this defendant admits that prior to the admission of the said will to probate the plaintiffs and this defendant met at the office of Watt & Colwell, attorneys of Ionia, Michigan, at the request of the said plaintiffs and that R. A. Colwell, one of the said attorneys, prepared an agreement in writing attached to said bill of complaint marked Exhibit B and the said Colwell representing said plaintiffs and the said plaintiffs representing that by the execution of said agreement all litigation of said estate would be avoided and this defendant desiring to avoid all litigation and so signed said agreement. That said agreement and the consideration therein expressed was for the purpose of settling all differences relative to the probate of said will and the construction thereof, and that in consideration thereof and of the. moneys therein to be paid by this defendant, it was fully intended and agreed that there should be no litigation over said will or the probate thereof, and that this defendant should have her full share of said estate as provided for in said will without litigation and this defendant alleges that she is entitled to the full and complete performance of said agreement on the part of said plaintiffs and that she and said éstate should not be put to any expense concerning the administration of said estate and the construction of said will. That this plaintiff understood at the time of making said agreement that she was entitled to have and receive the full one-third of the lands owned by said Jerry Hansbarger at the time of his decease with the buildings thereon and that she had a right to select the full forty acres of said lands containing said buildings. And this defendant avers that she is entitled to the specific performance of said agreement.”
    As tó the seventh paragraph of the bill, she answered :

      “7. Answering paragraph 7, this defendant admits that at the time of the execution of said will marked 'Exhibit A’ and attached to said bill of complaint the said Jerry Hansbarger was the owner of 160 acres of land and that he disposed of forty acres during his lifetime. This defendant further admits that the said plaintiffs are the sons of the said Jerry Hansbarger by a former wife and that the said Jerry Hansbarger at the time of the execution of said will was desirous of providing generously for this defendant and further admits that it was the intention of the said testator Jerry Hansbarger to devise to this defendant, Ada R. Hansbarger one-third of all of his real estate, wherever the same may be situated and to bequeath to this defendant, Ada R. Hansbarger, all of his personal property; _ but this defendant denies that it was not the intention of said testator to devise to this defendant one-third of all his real estate together with the buildings thereon.”
    She claims the benefit of a cross-bill, in which she asks the court to construe the will and to construe paragraph 5 of the will as if it were meaningless, asks that the decree provide that Nelson David Hansbarger is an heir of the testator and entitled to one-fifth of the rest, residue and remainder of the real estate, and that the agreement made April 24, hereinbefore set out, be canceled and held for naught because plaintiffs have neglected to abide by the terms thereof. The plaintiffs answered the crosg-bill. The cause came on to be heard in open court, testimony was offered and received, from which, and from the pleadings, it appears that when the will was drawn the testator owned 160 acres of land, one forty of which he sold in his lifetime for $1,625, which sum appeared to be a part of his personal estate when he died. With respect to the making of the will, the testimony of the lawyer who drew it is to the effect that .the testator brought a penciled memorandum to his office, asking him to prepare a will as indicated in the memorandum. It was prepared when he returned to the office and testator read it, called attention to the division of the land as provided for in the draft of the will and made objection to it. Upon this subject, the lawyer further testified:

      “Q. What did he say about it?

      “A. He wanted to know how it could be remedied without destroying the entire will and write an entire new_ one. He did not have time to wait. I thought a minute and I thought after getting his explanation of what he wanted of that land, I told him I thought it could be corrected by adding another clause expressing his intentions. At that time the fifth clause was not there at all, when he came back.

      “Q. What statement did he make to you?

      “A. He wanted it changed. He stated this: ‘I don’t intend for it to cover the entire one-third of that land. I want her to have the home with the buildings,’ he says, T want to be governed according to the valuation. That forty is worth nearly or quite half as much as the entire balance of the land, had all of the buildings on and I want her to have that for a home.’ Then I suggested that there be added the fifth clause to state his intention, what he meant that it should be, one-third value in real estate. I did not describe any land value whatever he died seized. Same way with the personal property. My memory was at that time he had one hundred sixty acres. After I suggested that, he says, ‘that is what I want, that is what I intend, what I want.’ So I wrote it and he looked it over, read it carefully. He said ‘Yes, that is all right.’ I wrote that, then I called in a witness that was passing by, or rather just coming into the office. He witnessed the will, put it away in my office safe. I kept it there until after he was dead.
    “Cross-examination, by Mr. Locke:
    “I presume that the east 40 acres, without the buildings is equal in value to either of the other forty acres. At the time the will was drafted there was 160 acres, I think.
    “That is all.
    “By the court:

      “Q. What did you understand the law to be at that time with reference to the widow’s right in real estate if no will had been made?

      “A. Make selection of her dower. I understand the law to be, statute very plain for a great many years on it, if she made selection of her dower, had it set off to her, it was to be set off to her according to value.

      “Q. I know, but what share would she own?

      “A. One-third.

      “Q. Would she have it as dower or heir?

      “A. She would have it as dower.

      “Q. You understand the law to be that way?

      “A. Then if she selected it.

      “Q. Didn’t you know the law had been changed so that the wife inherited actually one-third of all the real estate a man died seized of if there is children, and if there is no children, she could get one-half?

      “A. I wasn’t aware of that fact.
    “Q. If you had not made any will at all she would be just as well off in reference to real estate, as you now claim she would be by this will?

      “A. If that is the law now.

      “The Court: I asked the question for the purpose of ascertaining why he deemed it necessary to put anything about the buildings at all in, if the husband did not intend she would take any more than the valué. His expression in this will don’t make it any better for the widow as to real estate than as though there had .been no will made.”
    The decree, from which both parties appeal, construes the will as meaning that the widow was devised an undivided one-third in value of the real estate including the buildings, holding that she is entitled to select any one-third of the real estate after the same is divided into thirds of equal value. The decree further provides:
    “That said Nelson David Hansbarger is bequeathed the sum of $1,000, the payment of which is made a charge upon the remaining two-thirds of said real estate and buildings after the said Ada R. Hansbarger has selected her one-third of said real estate and buildings according to value; that the executor of said last will and testament is. authorized to sell said remaining two-thirds of said real estate after, said Ada R. Hansbarger has made her selection as aforesaid for the purpose of paying the said bequest to the said Nelson David Hansbarger, that the remainder of the said two-thirds of the said real estate after the payment of the said $1,000 to the said Nelson David Hansbarger, is devised in equal shares to the said Harley Hansbarger, William Hansbarger, Plenie Hansbarger,. Arthur Hansbarger, and David Nelson Hansbarger* share and share alike in fee simple,” .
    —and that the contract of April 24th has been forfeited by the plaintiffs and is canceled and the parties thereto relieved from all liability thereunder. Provision is made for filing a petition in this cause for a supplemental decree ordering a partition of the real estate according to the construction of the will indicated by the decree. It is recited in the decree that the testimony of the scrivener relative to conversation had by him with the testator relative to the making and execution of the will is stricken from the record.
   Ostrander, J.

(after stating the facts). It is the rule in this State that persons having such an interest in an estate as entitles them to contest a will may make agreements to forbear or prevent contests. Bean v. Bean, 144 Mich. 599; Hull v. Hull, 149 Mich. 500; Garvin v. Stone, 152 Mich. 594; Conklin v. Conklin, 165 Mich. 571; Layer v. Layer, 184 Mich. 663; Sellers v. Perry, 191 Mich. 619. We are of opinion that the agreement in this case is, plainly, not to contest the probating of the' will. The agreement was executed when the will was, without contest, admitted to probate. No appeal was taken and the widow paid the legacy to Nelson David Hansbarger, releasing the real estate and the proceeds of it from any lien in his favor. The will, however, was still an instrument, the meaning of which was to be determined. Admitting it to probate necessarily submitted it to the probate court for construction, if construction was required, and to interpretation. None of the parties agreed to submit to any assignment of the estate which the probate court might make. And when the widow indicated by her election that she gave to the will a meaning different from the one claimed for it by the other persons in interest, the power of the chancery court to settle the dispute was clear. Judicial construction of this instrument under the circumstances does not involve a contest of the probating of the will. The agreement expressly recites that the estate shall be administered “according to the terms of said will except as herein provided.” The question presented to the court is one of the meaning of the terms of the will. It is true the preamble to the agreement expresses as an inducement for making it the avoidance of all litigation and the expense of the same and a desire to reach an amicable settlement of the estate. If, construing the entire agreement, there seems to be any difference in meaning between these or any of these preliminary statements and the agreement proper, the operative part, being clear and unambiguous in meaning, must be given effect. This is the general rule. 24 Am. & Eng. Enc. Law (2d Ed.), p. 59. See, also, Black v. Herring, 79 Md. 146 (28 Atl. 1063) ; Chase v. Dickey, 212 Mass. 555 (99 N. E. 410) ; Chew’s Appeal, 45 Pa. St. 228; Rood on Wills, § 622; Page on Wills, § 683.

. The circuit court has determined that the widow was wrong in her construction of the will and was claiming too much — has decided that by the terms of the will she cannot have what she claims. This construction preserves to the widow a right of selection, which the will gives to her, does no violence to any language contained in the will. Testator might have devised to her a particular portion, bounding it or describing it. It is not clear, we think, that the fifth clause of the will is entirely meaningless; certainly it does not cast doubt upon the proposition that the testator devised one-third of his real estate, in value, to his wife.

We affirm the decree in respect to the construction of the will and reverse it in so far as it adjudges the agreement of the parties to be forfeited and canceled. Plaintiffs will recover costs of this appeal.

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


text:
    ROSE v. DESMOND CHARCOAL & CHEMICAL CO.
    Master and Servant — Workmen’s Compensation Act — Recovery —Suspension oe Compensation.
    On petition of employer to cease payments to an injured employee, 'alleging complete recovery, -where the evidence tends strongly to prove that claimant has recovered, his refusal to submit to an X-ray examination, held, to demand the application of section 19, part 2, of the workmen’s compensation act (2 Comp. Laws 1915, § 5449), suspending his right to compensation.
    The'question of duty of injured employee to submit to examination is discussed'in a subdivision of notes in L. R. A. 1916A, pp. 160, 161; L. R. A. 1917D, 174.
    Certiorari to Industrial Accident Board.
    Submitted April 17, 1919.
    (Docket No. 71.)
    Decided May 29, 1919.
    Henry J. Rose presented his claim for compensation against the Desmond Charcoal & Chemical Company for injuries received in defendant’s employ: On petition of defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, to cease payments. From an order denying the petition, defendants bring' certiorari.
    Reversed, and order set aside.

      Kerr & Lacey, for appellants.

      Willard J. Banyan, for appellee.
   Ostrander, J.

Henry J. Rose, an employee of the Desmond Charcoal & Chemical Company, was injured. An agreement for compensation was made, was approved by the industrial accident board, and, performing it, claimant has been paid from January 5, 1915, the date of injury, to June 11, 1918, a period of 179 weeks. In June, 1918, the employer and the insurance company filed with the industrial accident board a petition, as follows:

“That on January 5, 1915, and for some time prior thereto, one Henry J. Rose was in the employ of the Desmond Charcoal & Chemical Company; that on the last named date, to-wit: January 5, 1915, said claimant, while in the employ of said respondents and petitioners, at what is commonly known as Carter’s Siding, in the county of Benzie, and State of Michigan, received an accidental injury as follows: While wheeling ashes, tripped on plank across railroad track, and fell, tearing ligaments on knee cap.
“That in due course thereafter, an agreement in regard to compensation was duly executed by and between the respective parties, whereby said petitioners were to pay compensation to said claimant at the rate of 6.125 per week, during period of disability in accordance with the provisions of the workmen’s compensation law, so-called; that in accordance with said agreement, your petitioners have paid or caused to be paid to said claimant, compensation in accordance with said agreement from the date of injury, to-wit: January 5, 1915, to June 11, 1918.
“Your petitioners respectfully represent that through duly authorized agents and representatives they have ■caused a careful and complete investigation to be made, in order to determine whether or not claimant is entitled to further compensation, because of said accidental injury. Petitioners represent that they are informed and believe, and therefore expressly charge the truth to be that the injuries received by said claimant, as a result of accident on the date above designated were not of such a serious nature as to cause disability, during the period for which compensation has been paid, and that said claimant has fully recovered from the effects of said accidental injury, and is not entitled to receive further compensation from petitioners.
“Petitioners respectfully represent that for some considerable period prior to March 16,1918, they were negotiating with said claimant with reference to making arrangements whereby claimant would report to a competent, disinterested, and highly qualified physician and surgeon, at either Chicago, Illinois, or Detroit, Michigan, for the purpose of having a careful, complete, and thorough physical examination made, to determine the exact physical condition of said claimant ; that said petitioners agreed with said claimant to advance to him and defray all expenses incidental to making either the trip to Chicago, Illinois, or Detroit, Michigan, for the purpose of being examined and attended, or both, and that all expenses, including the charge of physician and surgeon would be paid by said petitioners; that said claimant on several occasions agreed with said petitioners that he would report at the time and place designated by petitioners for such medical attention as. was deemed necessary, and requested your said petitioners to advance to him money to defray expenses. Petitioners state, however, that on each and every occasion said claimant at the last moment offered some excuse, and thus failed to comply with his. many and divers agreements with your respondents and petitioners, with reference to medical services.
“Your petitioners further represent that on the 16th day of March, 1918, Dr. Arche C. Hall, a duly qualified physician and surgeon, licensed to practice his profession as such, with offices in the David Whitney Building, Detroit, Michigan, at the request of your said petitioners, the General Accident, Fire & Life Assurance Corporation, Limited, called at the then residence of said claimant, to wit: 192 Ninth street, Benton Harbor, Michigan, and made a physical examination; that on April 30,1918, said doctor at the request of petitioner, the insurance company,- submitted a written detailed report, indicating the result of said physical examination, a copy of which report is included in this petition and is attached hereto, being marked as Exhibit ‘A.’
“Your petitioners, also represent that prior to April 30, 1918, and on or about April 18, 1918, said Dr. Hall made an oral report to your said petitioners’ representatives, to wit: Kerr & Lacey, with offices 1719 Dime Bank Building, Detroit, Michigan, which said oral report was substantially the same as indicated by Exhibit ‘A.’ That said attorneys, acting for and in behalf of your petitioners, wrote the industrial accident board under date of April 18, 1918, in accordance with copy of said letter, which is made a part of this petition, and which is attached hereto, and marked Exhibit TL’
“That some time thereafter, on or about May 5, 1918, said petitioners, through their said attorneys, Kerr & Lacey, received a letter from the industrial accident board which is dated May 4, 1918, and which is made a part of this petition, being hereto attached, and marked Exhibit ‘C.’
“In view of the facts and circumstances thus presented, your petitioners respectfully represent that they should be relieved from further payment of compensation to said claimant, on and after the 11th day of June, 1918, for the following reasons:
“1. Said claimant Henry J. Rose has fully recovered from the effects of accidental injury received while in the employ of respondent and petitioner, Desmond Charcoal & Chemical Co. under date of January 5, 1915.
“2. That if it should be determined that the proofs which said respondents and petitioners are able to 'submit in support of this petition are not sufficient to establish to a certainty^ the exact physical condition of said claimant, that said respondents and petitioners should be relieved from making further payments of compensation, because of the unreasonable conduct and attitude of said claimant in refusing to consummate arrangements whereby further medical attention could be given at the expense of said respondents and petitioners, including careful and thorough physical examination by some disinterested and highly qualified physician and surgeon, and also such X-ray examinations as were considered necessary by such physician and surgeon, to make a proper diagnosis of the case.
“3. Respondents and petitioners have acted with fairness and in good faith, with reference to the selection of a physician and surgeon to make proper physical examination, including X-ray pictures, to determine the true situation from a medical standpoint; that the attitude of said claimant in his refusal to accept proposition submitted by respondents and petitioners, as to further medical attention, or to co-operate in the selection of a disinterested and qualified physician and surgeon, is unreasonable.
“Wherefore your petitioners pray:
“A. That a copy of this petition as filed be forwarded to said claimant, and that he be directed to answer the same, paragraph for paragraph, and that upon his failure so to do, or upon his admission that the allegations therein contained are true, that the same be treated as such, and that said respondents and petitioners be relieved from further payment of compensation.
“B. That if said claimant refuses or neglects to answer the allegations contained in said petition, or in answering the same denies the allegations therein contained, or if it is the desire of the industrial accident board that proof be submitted to substantiate the allegations in said petition, that said respondents and petitioners be allowed a reasonable time within which to submit testimony in the form of deposition^, of various doctors and witnesses, whose knowledge in the premises is important in the' determination of the issues.
“C. In the event it is the desire of the industrial accident board that proofs be submitted in the form of deposition, that after the receipt thereof, the matter be set for hearing before the full board, at its. offices in the city of Lansing, in accordance with the rules and practice of said board in such cases made, and provided.
“D. That upon hearing of said cause, an order be entered by the industrial accident board relieving said respondents and petitioners from further payments of compensation.
“E. That respondents and petitioners may have such other and further relief in the premises as is agreeable to equity and good conscience, and as is also just and proper.”

Various papers were attached to the petition, as referred to therein. Later, depositions were taken by respondents upon notice and submitted to the board. The board requested claimant to report to a physician in his eity (Benton Harbor, Michigan) for a medical examination. The examination was made and reported by the physician to the board. Finally, in October, 1918, the board made its order (the one appealed from), which reads:

“A petition having been filed by respondents in the above entitled cause, praying for reasons therein set forth that they be permitted to cease payments of compensation to said applicant, and the same having come on to be heard before the board on July 9, 1918, and due consideration having been had of the facts and circumstances of the case; it is ordered and adjudged that said petition be and the same is hereby denied, and said applicant is entitled to receive and recover compensation from said respondents as per the agreement in the files from the date of the last payment, March 11, 1918, to the date of the filing of said petition, June 8, 1918. It is further ordered that payments be suspended during the period when applicant is receiving the same or higher wages than he was receiving at the time of the accident, and should there be a diminution of wages he shall be entitled to receive compensation at the rate of one-half the difference between the wages he was receiving at the time of the accident and that which he is able to earn thereafter, all in accordance with the terms of the workmen’s compensation law.”

Setting up a brief history of the case, the petition for the writ of certiorari assigns as error:

“1. There is no testimony upon which the order of the industrial accident board can be based.
“A. Testimony submitted in support of petition to be relieved from further payment of compensation was conclusive, and to the effect that claimant had fully recovered from the effects of accidental injury.
“B. Report of Doctor B. G. Watson, the impartial physician, selected .by the industrial accident board .to make careful and complete examinatiofi, was.also to the effect that claimant had fully recovered from the effects of accidental injury.
“2. The action of the industrial accident board in entering the order of October 26, 1918, is contrary to the terms and provisions of the .workmen’s compensation law, so-called.”

The printed record in this court contains 153 pages, a large part of which is made up of matter sent up over the objection of plaintiffs in certiorari. What plaintiffs in certiorari say is that such evidence as they have submitted to the board, and such as the board ordered to be taken, points conclusively to the fact that claimant has recovered from the effects, 'of his injury; if there is any doubt about it, then, in view of the showing made, payments should be suspended until a further complete X-ray examination of claimant’s limb is made. In other words, plaintiffs in certiorari assert that claimant has recovered and is, in any event, recalcitrant because he will not, at the expense of the employer, present himself for such complete and thorough examination as will demonstrate his present condition. As affecting these questions, the larger part of the return is of no account, while the printing of it entails an unnecessary expense upon the interested parties.

Whether claimant’s recovery is established depends upon the evidence of his present condition. Whether evidence is lacking and can be obtained only by cooperation of the claimant, and he refuses to submit to examination, must be determined by the .evidence relating to those subjects. Very little more than such evidence needed to be returned with the writ,

We have read the evidence upon the subject of claimant’s injury and condition, — the medical testimony and his. own. We think it cannot be said that it is conclusive, establishing the fact that he has recovered from his injury. It must be said there is some, if slight, evidence supporting a contrary conclusion. It tends strongly to prove that claimant is recovered. But the doubt which it leaves in the mind is a small one, and the refusals of claimant to submit his person to expert X-ray examination demand, we think, application of section 19, part 2, of the workmen’s compensation law (2 Comp. Laws 1915, § 5449), and such application will suspend his right to compensation. This, in our opinion, is the order which the board ought to have made in the premises. We do not intimate that it is our opinion that he has not had expert X-ray examination, which was some time in the year 1915. But it is a fair consensus of the opinions expressed by the medical witnesses that any doubts now existing about his condition may be resolved by an expert X-ray examination made presently. Claimant has only to give his time in order that such examination may be made. Order set aside.

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


text:
    DEAKE v. LIVINGSTON PROBATE JUDGE.
    Eminent Domain — Drain in Three Counties — Right to Jury.
    1 Comp. Laws 1915, § 4932 et seq., as amended by Act No. 270, Pub. Acts 1917, construed to authorize the probate court of Livingston county, on the petition of landowners affected thereby, to order a jury to determine the necessity for the taking and the damages resulting to lands thereby, in the construction of a drain traversing the counties of Livingston, Ingham, and Washtenaw.
    Certiorari to Livingston; Collins, J.
    Submitted April 8, 1919.
    (Calendar No. 28,538.)
    Decided May 29, 1919.
    Mandamus by Clayton E. Deake, drain commissioner of Washtenaw county, and another to compel Eugene A. Stowe, probate judge of Livingston county, to vacate an order empaneling a jury in certain joint drain proceeding’s. From an order denying the writ, plaintiffs bring certiorari.
    Affirmed.

      Cavanaugh & Burke and William C. Brown, for appellants.

      Louis E.- Howlett and Glenn S. Mack, for appellee.
   Ostrander, J.

The proceeding concerns a drain proposed to be laid out in the counties of Livingston, Ingham, and Washtenaw, involving the action of the county drain commissioners of each of said counties. Governing statute provisions are found in 1 Comp. Laws 1915, § 4932 et seq., as amended by Act No. 270, Pub. Acts 1917. Not all of the owners .of land traversed by the drain released .the necessary right of way and. the damages to result from constructing the drain. Upon an application made to the probate court for Livingston county, a jury was ordered to determine the necessity for taking and the damages resulting from taking lands not released. It was objected that the landowners could not rightfully demand a jury and that the power of the court was limited to the appointment of special commissioners. Whether the objection is good is the question presented, to be answered as the statute shall be interpreted.

An examination will disclose that the general stattute, chapter No. 93, is subdivided into chapters, of which portions of subchapters III and VII are to be considered. In subchapter VII, entitled “Drains Traversing more than one County,” a jury is not mentioned, unless, as it is claimed, by reference to subchapter III. If it is mentioned by reference, it is in the words, found at the end of section 3 (1 Comp. Laws 1915, § 4934):

“All proceedings had in the appointment of special commissioners, under the provisions of this chapter, shall be similar to those provided in chapter three for the appointment of other special commissioners.”

Section 7, chapter III (1 Comp. Laws 1915, § 4886), provides for the appointment of special commissioners. There are four provisos following the enacting part of the section, one of which is: -

“Provided, further, That any person whose premises are traversed by the proposed drain may in writing demand and have from such court at the time of hearing of said application a jury of twelve freeholders of said county, * * * to ascertain and determine the necessity for taking or using such lands, and to appraise and determine the damages and compensation to be allowed therefor.”

It may reasonably be said that the provision that a landowner may, upon his demand, have a jury, instead of special commissioners, does not affect (is not part of) a “proceeding had in the appointment of special commissioners” at all, because upon’the demand of the landowner the proceeding, although instituted for the purpose of appointing special commissioners, becomes at once a proceeding for, the appointment of a jury. Other considerations support this view. Usually,' not always, the matter.found in a proviso limits or qualifies the enacting part of the law. The effect of the proviso set out above is to limit the right of the probate court to appoint special commissioners at all and to require the court to .summon a jury, upon the demand of the landowner. It does not, strictly, mark out a step in the proceeding to appoint commissioners. On the other hand, the loose language employed in the act, and the manner in which matter is introduced therein by proviso, supports the interpretation adopted by the circuit court that:

“All proceedings had in the appointment of special commissioners, under the provisions of this chapter, shall be similar to those provided in chapter three for the appointment of other special commissioners,”

—means that the entire of the provisions of chapter three, relating to the appointment of special commissioners, including the said proviso, is adopted in chapter seven by reference, and that “proceedings” was meant to include the provision found in the proviso above set out. This seems to be the interpretation given the act in Rodgers v. Huntley, 166 Mich. 129, 133, both in the circuit court and in this court.

We find nothing in other portions of the law which aid one interpretation rather than the other and conclude that it is not so clear that the court below was in error that its judgment should be reversed. It is affirmed. No costs are awarded.

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


author: Bird, C. J.

text:
    PERSHING v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroads — Death — Crossing Accident — Contributory Negligence — Directed Verdict.
    In an action against a railroad company for injuries resulting in the death of plaintiff’s decedent, caused hy a collision at a highway crossing between an automobile which deceased was driving and defendant’s locomotive, evidence that, had deceased looked when he had an unobstructed view, 45 feet, from the track, he could have seen the locomotive, which was only 225 feet away, and applied his brakes in time to prevent the accident, held, to justify a directed verdict for defendant.
    On care required of driver of an automobile at railroad crossings, see notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 924, and 46 L. R. A. (N. S.) 702.

      Error to Clinton; Brown (W. B.), J., presiding.
    Submitted April 17, 1919.
    (Docket No. 68.)
    Decided May 29, 1919.
    Case by Linda M. Pershing, administratrix of the estate of Girard B. Pershing, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      William M. Smith and George G. Hunter, for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.
   Bird, C. J.

Defendant’s line of railway extends from east to west through the village of Ovid and intersects Gratiot street at right angles. On Sunday, June 14, 1914, while plaintiff’s intestate, Girard B. Pershing, was driving north on Gratiot street, his Ford automobile came in contact with one of defendant’s locomotives, with the result that he was thrown therefrom and so badly injured that he died within a few hours. His, widow, as administratrix, brought this suit to recover damages, and at the trial relied chiefly upon the ground of negligence, that defendant was operating its train at an excessive and unlawful rate of speed and at a rate of speed in excess of eight miles per hour, the speed prescribed by the village ordinance.

At the trial, after plaintiff had placed before the jury her case, the trial court, upon motion, directed a verdict for defendant for the reason that neither of the grounds alleged by plaintiff was the proximate cause of the collision. In this connection the trial court stated:

“It seems to the court that the proximate cause of this injury, the reason why he was injured, was the fact that he drove up so near the track "and stopped and remained there, just the same as though he had walked up in the same place and stood within 2 feet of the track, he would have been hit. He drove up within two feet and a half of the track and his automobile is hit, he stands there and he is thrown out and becomes injured and because of the injury he dies. So it would seem that the proximate cause of the injury would be the fact that he stopped in a place of danger and remained there.”

Plaintiff is here urging that the trial court was in error in controlling the verdict, that defendant’s and plaintiff’s negligence were questions of fact for the jury.

The testimony discloses that the station is located on the south side of the track, 267 feet east of the Gratiot street crossing. As plaintiff approached the crossing from the south his view of the track to the east was more or less obstructed, by the station house and other obstructions, until he reached a point 45 feet south 'Of the track. At this point he could see the track for 500 feet and upwards. Edward Beebe, who saw the accident, testified that when Pershing reached the 45-foot point, where he could see the track east of the station, he was running 8 or 10 miles an hour; that he looked to the west and afterwards to the east and at once applied his brake; that the automobile stopped very close to the south rail. At that moment the locomotive was within 30 feet of him and coming toward him at a rate of from 25 tc 40 miles an hour.

Had plaintiff’s intestate stopped, looked or listened when nearing the track, the accident would doubtless have been averted. Had he glanced to the east and applied his brake at any point 15 feet from the track, the collision could have been avoided, as a Ford dealer testified that the Ford in question was 11 feet long, its brakes in good condition, and could have been stopped in its length, and easily, within 15 feet, running at a speed of between 8 and 10 miles an hour. It is conceded that Pershing did not stop until he reached the track and it is obvious that he did not look as soon as he could have seen, because if he had, and applied his brake, he would have stopped in a place of safety.

But counsel argue that Pershing had a right to expect that the train was being operated in obedience to the ordinance, and if it had been so operated the accident would not have occurred. This may be so, but even if we concede that defendant was guilty of negligence, before plaintiff can recover, she must show that her intestate used reasonable care under all the circumstances to protect himself from injury. If he could have avoided injury by stopping, by listening, or by glancing to the east as soon as the obstructions would permit, and he failed to observe these duties, he did not use the care which an ordinarily prudent man does on such occasions.

Much reliance is placed by plaintiff upon the cases of Moran v. Railway, 124 Mich. 582, and Beck v. Railroad Co., 156 Mich. 256. In the Beck Case the plaintiff’s view was obstructed by box cars on the siding near. the crossing. Before attempting to cross he stopped, looked, and listened.

In the Moran Case the plaintiff observed the track for 40 rods and saw no car. In the present case had the plaintiff looked when at the 45-foot point he would have seen the train, because, under the facts as contended for by plaintiff, the train was only five times as far from the crossing as plaintiff’s intestate was. That would bring the locomotive only 225 feet away from the crossing. Both of the cases cited are easily distinguishable from the present one, not only as to the surrounding circumstances but as to the conduct of the plaintiffs. The present case has more resemblance to the case of Strong v. Railway, 156 Mich. 66, and cases there cited.

We are unable to agree with the trial court that plaintiff was guilty of contributory negligence because “he drove up so near the track and stopped and remained there” until struck. The evidence shows that plaintiff stopped his car as soon as he could after he decided to stop and it is evident that after the car stopped he did not have time to back away from the track before being struck. Plaintiff’s negligence was anterior to those acts and lay in his failure to observe the precautions while in a place of safety which are ordinarily observed by one approaching a railway track. We agree, however, that the trial court reached the right conclusion.

The judgment must be affirmed.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Bird, C. J. Ostrander, J., concurred in the result.


text:
    FISHELL v. FISHELL.
    1. Executors and Administrators — Evidence — Admissibility — Services — Expectation of Pay.
    Testimony by the mother that plaintiff, a son, 'stayed at home under an agreement to work the farm on shares, but, because they were in debt, his share was applied on the debt with the understanding with the father that he would be compensated later, was admissible for the purpose of showing that plaintiff rendered services With the expectation that he .would be compensated therefor, In a claim against his father’s estate.
    2. Appeal and Error — Witnesses — Competency — Saving Question por Review.
    An objection that the mother was incompetent, under the statute (3 Comp. Laws 1915, § 12555), to testify as to an admission made by the father during the marriage that he was indebted to the son for services, raised for the first time on appeal, will not be considered.
    3. Trial — Court Rules — Special Questions — Submission.
    In view of Circuit Court Rule No. 42, subd. 4, providing for the submission of special questions to the jury at the conclusion of the testimony, it cannot be said that it was error for the trial court to refuse to submit a special question tendered during the closing argument, even though such question was otherwise proper.
    4. Same — Argument op Counsel.
    An argument by plaintiff’s counsel that the mother and sisters and every one interested in the case except contestant approved plaintiff’s claim, held, not reversible error, in view of the fact that the parties referred to were all witnesses and testified in plaintiff’s behalf.
    Error to Lapeer; Williams, J.
    Submitted April 9, 1919.
    (Docket No. 9.)
    Decided May 29, 1919.
    Rehearing denied June 13, 1919.
    Clarence Fishell presented a claim against the estate of Miles A. Fishell, deceased, for services rendered. The claim was allowed by the commissioners, and Rozell Fishell appealed to thé circuit court. Judgment for claimant. Contestant brings error.
    Affirmed.

      Herbert W. Smith, for appellant.

      Theo. D. Hatpin, for appellee.
   Bird, C. J.

Clarence Fishell, the plaintiff, filed a claim for services against his father’s estate for $2,752 and it was allowed by the commissioners. On appeal in the drcuit court the claim was allowed at the' sum of $2,807.96.

The circumstances under which the services were rendered were, in substance, these: Miles Fisheli, the father of plaintiff, was a farmer and resided in Lapeer county. Clarence worked at home on the farm until he was of age. He reached his majority in February, 1902. Both his father and mother were anxious that he should remain on the farm, and we infer from the record that the father made an arrangement with him to work the farm on shares. This arrangement appears never to have been carried out because of certain indebtedness on the farm which they were desirous of paying. After the indebtedness was paid additional land was ■ purchased and another debt incurred. This indebtedness, however, was paid before the father died, in May, 1915. The arrangement to work the farm on shares never having been carried out, plaintiff filed a claim against the estate for the value of his services. The claim was contested by his brother, Rozell Fisheli, who insisted that the plaintiff had an agreement with the father to work the farm on shares and that having such agreement he, could not now claim wages as compensation.

1. Lena Fisheli, the mother of plaintiff, testified over defendant’s objection, as follows:

“(a) Now, did you have any talk with Clarence about that time about staying at home?
“A. Yes; I told him to stay at home and- we had to have him or some one else.
“(b) Were you out of debt at that time?
“A. No, sir.
“(c) How much did you owe on the place?
“A. About $400 on the 80.
“(d) What did Mr. Fisheli ever say about Ciar-, ence’s share?
“A. Why, he said he wanted him to have a share, but as we were in debt, why, to take it all for to pay up our debt, and when we get out of debt I am going to see that Clarence gets his pay.”

(a) This question and answer should be considered with two other questions and answers which followed:

“Q. Was anything said about compensation or pay?
“A. Yes, sir. I told him he would get his pay.
“Q. Did he ever tell you or intimate he would stay there for nothing?
“A. Ño, sir.”

The trial court was of the opinion that the testimony was competent for the purpose of showing that plaintiff rendered the services with expectation that he would be compensated therefor. The testimony appears to have been competent for that purpose.

(b and c) If the arrangement to work the farm on shares was not carried out by reason of the indebtedness, it was competent and material to show that there was indebtedness and it was not error to show the amount of it. It also furnished an explanation why plaintiff had not been compensated from time to time as he did the work.

(d) This question was objected to because immaterial. The answer was material as tending to establish the contract relation between the father and son. It was, in substance, an admission by the father that he was indebted to the son and that he intended he should be paid as soon as the debts were out of the way.

Another, and more serious, objection is now raised to the admission of this testimony, namely, that the mother was not a competent witness under the statute (3 Comp. Laws 1915, § 12555). The statute referred to reads:

“Nor shall either, during the marriage or after-wards, without the consent of both, be examined as to any communication made by one to the other during the marriage.”

Plaintiff replies to this objection, that it was not raised at the time Mrs. Fishell was sworn, nor was it raised in the trial court, and that under the well-known rule of .this court that it will not consider objections that are not first raised in the trial court, this objection ought not to be considered. We think plaintiff’s point is well taken. For the reason stated the objection will not be considered. Benson v. Bawden, 149 Mich. 584 (13 L. R. A. [N. S.] 721); Moneyweight Scale Co. v. David, 180 Mich. 8.

2. Error is assigned upon the refusal of the tria) court to submit to the jury a special question which was tendered to him during the closing arguments. Plaintiff makes the point that the special question was not tendered within the time which the rule prescribes. Circuit Court Rule No. 42, subd. 4, provides that:

“When special questions are to be submitted to a jury, such questions shall be prepared by the party requesting their submission, and presented at the conclusion of the testimony to the court and counsel for the opposite party, and before the beginning of the argument the court shall indicate what special questions shall be submitted to the jury.”

In view of this rule we cannot say that the trial court was in error in refusing to submit the question, 'even though it were otherwise proper.

3. Plaintiff’s counsel in his argument to the jury made use of this language:

“This claim meets the approval of the mother, and the sister Blanche, and the sister Mrs. Wallace, and every one interested in this case except Rozell.”

It is urged that this argument was prejudicial, that it was an attempt by plaintiff to prejudice the jury against Rozell, the contestant. The parties referred to in plaintiff’s argument were all witnesses and testified in behalf of plaintiff. Ordinarily it does not take long for the average juryman to discover the leanings of a witness and it is very doubtful whether counsel, in making use of this language, informed the jurors of anything which they were not already apprised of. The argument was not reversible error.

There are other assignments of error relating to the charge of the court. We think a discussion of them is unnecessary as we have examined them and found them without merit. The case was a 'simple one, very well tried by both counsel, and was followed by an excellent charge by the court covering the entire situation.

We are of the opinion that the judgment should be affirmed.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    PROST v. PROST.
    1. Divorce — Temporary Alimony — Pleading—Showing—No Separate Property.
    ■ Allegations in wife’s bill for divorce and petition for alimony that she was “compelled to earn ber own living,” and tbat “sbe is compelled to work every day for tbe support and maintenance of berself,” field, while meager, sufficient showing tbat plaintiff bad no separate property, to give tbe court jurisdiction to make an order for temporary alimony.
    2. Appeal and Error — Final Order — Judgment—dismissal.
    Motion to dismiss an appeal from an order for temporary alimony will be granted since said order is not final and therefore not appealable.
    Authorities passing on tbe question of right to temporary alimony on annulment of marriage, are collated in notes in 3 L. R. A. (N. S.) 192; 26 L. R. A. (N. S.) 500.

      Appeal from Wayne; Hart, J., presiding.
    Submitted April 24, 1919.
    (Docket No. 102.)
    Decided May 29, 1919.
    Bill by Emma A. Prost against Edward G. Prost for a divorce. From an order granting plaintiff temporary alimony and a solicitor’s fee, defendant appeals: On motion to dismiss.
    Motion granted.

      Fritz Haller, for the motion.

      James H. Pound, contra.

   Bird, C. J.

Defendant appeals from an order granting plaintiff temporary alimony of $7 a week and $25 solicitor’s fee, pending her suit for separate mainteance. Plaintiff filed a motion to dismiss the appeal because not a final order, and, therefore, not appeal-able. Defendant’s counsel admits such orders are not ordinarily appealable, but he insists that in the instant case the court was without jurisdiction to make any order for temporary alimony because no showing was made hy plaintiff that she had no separate property. Counsel bases this contention on the case of Ross v. Ross, 47 Mich. 185, wherein it is said in part that:

“It is only in cases where it is made to appear, by the bill of complaint or petition, that the wife has no separate property of her own to support herself and enable her to carry on her suit, and her husband has property, that the court will compel him to make a suitable allowance for her maintenance and to enable her to employ counsel.”

We have examined plaintiff’s bill of complaint and her petition for alimony and the only showing as to her financial necessity and defendant’s ability to pay is the following:

“9th. Your plaintiff further represents that the defendant is a healthy, able-bodied man, well able to earn large wages, and does earn large wages, to-wit, about thirty-five ($85) dollars a week and is. therefore abundantly able to take care of and support his wife, but that he has refused and neglects to provide for the support and maintenance of your plaintiff, compelling her to earn her own living
“2d. Your petitioner further shows that she is not in the best of health, and compelled to work every day for the support and maintenance of herself ”

While this showing is somewhat meager we are inclined to the opinion that it is sufficient to authorize the court to make an order for temporary alimony. The allegations that she was “compelled to earn her own living” and that “she is compelled to work every day for the support and maintenance of herself” show, by inference at least, that she had no separate means. While this is far from being a satisfactory showing we are impressed that it is some showing as to her resources.

Taking this view of it, the motion to dismiss must be granted, with costs to the plaintiff.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    OAKMAN v. ESPER.
    1. Specific Performance — Not a Remedy op Right — Discretion op Court.
    Specific performance is not a remedy of right, but one resting in the sound discretion of the court.
    2. Same — Default—Forfeiture—Equity—Discretion.
    Where the purchaser on a land contract defaulted, and the vendors forfeited the contract and sold the premises to another, as the contract provided they might do, plaintiff is not entitled to specific performance on tendering the amount due, there being no mitigating circumstances or equity which appeal to the discretion of the court.
    3. Same — Time—Essence of Contract.
    As to whether time was of the essence of the contract, field, under the circumstances of this case, unnecessary to discuss.
    4. Appear and Error — Pleading—Review.
    Where the pleadings in a suit for specific performance do not raise the question of the return of the down payment, it will be unnecessary for the appellate court to consider it, on appeal from a decree dismissing the bill.
    Appeal from Wayne; Tucker, J., presiding.
    Submitted May'l, 1919.
    (Docket No. 96.)
    Decided May 29, 1919.
    Bill by Robert Oakman against Gertrude Esper and others for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Edmond J. Stafford (Frank W. Atkinson, of counsel) , for plaintiff.

      Stevenson, Carpenter, Butzel & Backus (Thomas G. Long and Rockwell T. Gust, of counsel), for defendant Esper.
   Bird, C. J.

The specific enforcement of a land contract is what the bill of complaint prays for in this cause. The land contract bears date of September 1, 1916, and provides that defendants should sell and convey to plaintiff 26.66 acres of land, situate in the township of Springwells, Wayne county (known as a part of the Ford highway tract) for a consideration of $33,383, the same to be paid as follows: Down payment, $3,600; $13,066 on December 1, 1916; the balance on or before five years; the vendor, on payment of $13,066, to give a warranty deed and take back a purchase money mortgage for the other half of the consideration. The contract further provides that defendants should retain possession of the premises until the execution and delivery of the aforesaid warranty deed. The 4th section of the contract provides that:

“If the second party shall fail to pay the said sum required to be paid within ninety (90) days from the date hereof, at any time after five (5) days after the expiration of said 'ninety (90) days, the first party may treat this contract as having been abandoned by the second party and may keep all sums paid hereon and for damages for the nonfulfillment hereof, and may at any time thereafter resell the said premises to any other party without any damage or liability to the second party whatsoever.”

On December 1st the payment of $13,066 was due. After December 5th defendants had a right to treat the contract as abandoned. These facts were called to plaintiff’s attention on December 1st but no payment was made. Plaintiff was notified by defendants, on several occasions between December 5th and December 22d, that payment must be made or the contract would be forfeited. In reply, promises were made but no payment followed them. On December 22d, plaintiff still being in default, defendants sent to plaintiff by registered mail the following notice:

“To Robert Oakman,
“Congress Bldg.,
“Detroit, Michigan.
‘‘Dear Sir: The payment not having been' made within ninety days from the first day of September, 1916, as required by that certain contract between you and the undersigned, bearing the date last mentioned, for the sale of * * * and more than five days having elapsed since the expiration of said ninety days, you are hereby notified that the undersigned, in pursuance of paragraph 4th of said contract, does now treat said contract as having been abandoned by you and wholly at an end.
(Signed) “Gertrude Esper.”

On January 13, 1917, defendants made a sale of the premises to Tarsney & Morrison. On February 5th plaintiff made a tender of the amount due on the contract, together with the interest thereon, and demanded a conveyance of the property. This, of course, was refused as his rights in the contract had been forfeited, and because the property had passed to other hands. Plaintiff then launched this proceeding to compel a conveyance, insisting, first, that, notwithstanding his default, time was not of the essence of the contract and that he is entitled to a conveyance. Second, That if the court shall hold otherwise he is entitled to a return of the down payment of $3,600.

1. It has often been observed by this court in proceedings of this character that the remedy of specific performance is not a remedy of right but one resting in the sound discretion of the court. Applying this rule to the record before us, we find little therein which appeals to our discretion in plaintiff’s behalf. He permitted the day of payment to pass without either payment or excuse. He knowingly allowed the last day of grace to expire in which he could demand as of right a conveyance of the premises. For two weeks thereafter he made promises but none of them were made good. Then came the notice of forfeiture. Even this notice did not elicit protest or comment. Two months after default defendants sold the premises to Morrison & Tarsney. A month after this a tender was made to defendants and a conveyance demanded. In making the sale to other parties defendants did just what plaintiff promised in writing they might do if he did not make payment, except that they did not make it as soon as they might lawfully have made' it under the stipulation. These applications to a court of equity for relief usually include some mitigating circumstance, some unavoidable delay, or some equity which appeals to the discretion of the court, but this application is barren of any of these. It is simply a plain cold request by plaintiff to be relievéd of his own supineness and neglect. We cannot see our way clear to enforce the contract under these circumstances. It would be inequitable, not only to defendants, but to their grantees, to grant the relief prayed, and this would be true even though, as claimed, that defendants’ grantees had previous knowledge of the situation. Russell v. Nester, 46 Mich. 290. See, also, Tattan v. Bryant, 198 Mich. 515. Taking this view of the matter it will be unnecessary to discuss the question whether time was of the essence of the contract.

2. Should the down payment of $8,600 be ordered returned to plaintiff? As the pleadings do not raise this question it will be unnecessary to consider it.

We are of the opinion that the decree made by the trial court was the proper one under the circumstances and it is hereby affirmed, with costs to the defendants.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.