author: Grant, J. Montgomery, J.

text:
    TUNISON v. WEADOCK.
    1. Street Railways — Contributory Negligence — Question eor Jury.
    Plaintiff was being driven along a street in the beaten track, which took her conveyance so near the track of a street railway as to render a collision reasonably certain. The driver thought he was far enough away to avoid accidents. The railway company claimed that plaintiff’s driver turned suddenly upon its track without looking back. A car going in the same direction as plaintiff struck her carriage, and she was injured. Held, that the evidence did not conclusively show that plaintiff’s driver turned suddenly towards or across the track, and the question of contributory negligence was for the jury. Grant, J., dissenting.
    2. Same — Rights oe Traveler on Street.
    A person driving along a street railway has a right to assume that the motorman of a car following him will make some effort to prevent a collision, and is not bound to be constantly looking back.
    3. Same — Duty of Motorman.
    Where a person, for a considerable distance, is driving on a course so near a street-railway track as to make it reasonably certain that a collision will occur unless the car is brought under control, the motorman has no right to pursue his course and run the carriage down.
    Error to Bay; Shepard, J.
    Submitted November 15, 1901.
    (Docket No. 127.)
    Decided March 26, 1902.
    Case by Petronilla Tunison against John C. Weadock and Michael P. Heraty, receivers of the Bay Cities Consolidated Street-Railway Company, for personal injuries. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    Plaintiff and her husband, who was driving, were returning home from Bay City about half past 5 on the evening of December 15, 1899, along Center avenue. They were driving on the south side of defendants’ track. Just behind them was another horse and wagon, with two occupants, — a man and his wife, named Robinson. A street car was coming from the rear. It passed Mr. Robinson’s wagon, and some part of the car struck' some part of the wagon in which plaintiff was riding, overturned it, and injured her. In some manner the wagon and its occupants were carried or thrown to the north side of the track, so that, when the car stopped, the horse stood facing in the opposite direction. The night was clear and cold. As the witnesses stated: “ The cold made a squeaky noise. You could hear the wheels squeak.” The road was level between the car tracks and the gutter, a width of 12 to 15 feet. Three grounds of negligence are alleged: (1) That the car was going at an unlawful rate of speed, viz., more than 12 miles an hour, the limit allowed by the ordinance; (2) that the motorman failed to give any signal or warning of the approaching car by ringing the bell or otherwise; (3) that he neglected to see plaintiff, and take measures to prevent a collision with her buggy.
    It seems essential to state somewhat fully the testimony upon which recovery is sought. Mrs. Robinson, who was riding in the wagon behind plaintiff, testified:
    “ We were going right along in the beaten track. We were close to plaintiff’s carriage. We were more than a foot from the south rail of the street-car track, — about a foot; not more than that. We were coming right behind Tunison’s rig, and the car passed us as quick as lightning, and it came onto this head rig. It must have been in a little farther than ours. It turned it bottom side up, and threw it farther onto the track like, and caught onto the car, and the car was dragging it along. ”

      Cross-examination: “ It was quite light, so you could . see a car a great many blocks away, and a rig a great distance ahead of you. The road was free and clear. * * * I did not notice how close Tunison’s rig was being driven to the track. I was not thinking anything about the car coming, it caught us so quick. I knew the cars came there regularly. I was sitting on the side next to the car, and thought I was entirely safe, and didn’t pay any further attention to the car, nor how far from the track Tunison’s rig was. In my judgment, they were almost, if not quite, as far from the track as our rig was. The car struck the side of the buggy, — the side that was to the car, — the whole side at once. It kind of struck it and threw it over in front of the car. It gave it a whirl around. * * * I did not know which part the car struck. I saw Mrs. Tunison on the south side of the track when the car catched her rig. It caught her rig, and kind of turned her around the opposite way, over onto the other side. The rig was not on the track. The car caught the side of the buggy. The horse got around in front of the car. It jumped over the track. The car must have shoved the buggy in front of it and along until it worked loose, and went over on the other side of the track. It kept going until it got loose from the car. ”

      Redirect Examination: “ It must have caught onto the side, and pulled the horse in front of the car. The horse kept on going after the buggy was struck.”

      Recross-examination: “ Q. How did the buggy get around on the other side ?

      “A. The car struck it, and it was right in front of the car, and of course the car kept shoving it off.
    ‘ ‘ Q. Then the whole buggy was in front of the car ?

      “A. Yes, sir.”
    Mr. Robinson testified:
    “We were going along the regular beaten road. In some places the road was beaten a little closer to the railroad, and in some places a little farther. The first thing I knew about it, the car struck the rig, and the rig came right around in'front of the car. The car was running on at the rate of about 18 or 20 miles an hour. * * * The north side of Tunison’s rig was about two feet and a half from the south rail of the track, as near as I could tell; at the time of the collision, in the regular beaten road. We were about two and a half feet in the regular beaten road. In some places it goes closer in than at others. No bell was rung until the buggy was struck. Tunison’s rig was nearer the car track than mine at the time of the accident. I am positive he was in the beaten portion of the track. The side of the car must have scraped his buggy, and the horse got frightened and started. It threw the buggy over to the south a little. The horse made a kind of jump, and jumped over towards the car track. The buggy followed the horse. After the car ran ahead, the horse became separated from the buggy about 40 or 50 feet from the first collision. The buggy then left the track.”
    On cross-examination he testified:
    “There is a broad, open roadway between the south rail of the track and the gutter line of the street where the accident took place. One portion may be a little better beaten than another portion, but it is all a broad, open, level roadway. You can drive on it all with convenience and safety. As near as I can tell, it is about 12 or 15 feet wide. * * * I thought I was far enough from the track to be entirely safe. I was right in the same beaten track he was. There was plenty of room to be six or eight feet away from the track, I suppose, if I had wanted to be; and Tunison was in the same beaten road. His rig was about a foot and a half from the track. I was observing at the time. I noticed because of the regular beaten track. There was nothing to hinder his driving along without reference to the regular beaten track. I thought he was safe. Just at the point where the accident happened, Mr. Tunison’s rig came in too close to the track,— came in suddenly. As near as I can tell you, he must have turned in suddenly with the bend of the road, or otherwise. He must have pulled in onto the track suddenly, almost instantaneously; and, at the time he pulled in close to the track, the car was coming right behind and right alongside of me, and before he could get away the car struck him.”
    Adalbert Curry testified that he was upon the sidewalk about 60 feet from the place of the collision; saw the car coming for two blocks, and the rigs; that the car was running about 20 miles an hour.
    “Tunison’s rig looked to me as though he was three feet off the track. When the car struck the rig, the latter was, I thought, three or four feet away from the track. When the car got opposite the rear of Tunison’s rig, the latter was still on the south side of the track, and had not started to cross the track. I don’t know how it came to get on the track, unless the way the road was beat, and the horse happened to take the road and to turn in towards the track. * * * About the time the car struck the rig, the horse gave a jump and dragged the buggy over onto the track.”

      Cross-examination: “During the time I was attending to my own affairs, the car and the, rig came together. As quick as I heard the noise, I turned around. * * * The horse must have turned in suddenly to get the wagon where it could be hit. It could not have been more than a second — a short bit — before the collision. At the time the horse turned in, the car was fight behind him, I think, so there was not more than a second between his turning in on the track and the striking of the buggy by the car.”
    On redirect examination he testified:
    ‘ ‘ At the time the rig was first touched, it must have been on the track, of course, ahead. I couldn’t tell positively whether the rig was right ahead of the car or at one side.”
    Mr. Tunison, plaintiff’s husband, testified:
    “ I must have been pretty close to the track. If I had not been on the track, the car could not have struck me. I was driving in the beaten track, which is sometimes close to the rail and sometimes goes off two or three feet.”

      On cross-examination he testified:
    ‘ ‘ I don’t know how the accident happened, but I thought I was far enough away from the tracks to be safe. I know I did not turn onto the track. I was on the side at the time the street car struck the buggy. I was not turning.”
    The witness admitted that he gave the following testimony upon the former ,trial:

      “Q. Hadn’t you started across the track?
    ‘ ‘A. I didn’t start to cross the track.

      “Q. Hadn’t you got your horse across the track, and your wagon right on the track, before the car struck you?

      “A. I didn’t "calculate to go across the track. The horse shoved. That is more than I know yet.

      “Q■ Hadn’t the horse got across the track? Wasn’t the fore wheel of your wagon across the first rail and on the second rail before the car ever struck you at all ?

      “A. I don’t know anything about it at all.

      “Q. You don’t know anything about it at all?

      “A. No.

      “Q. Why don’t you?

      “A. I don’t know anything about it.

      “Q. Will you say that you had not?

      “A. Yes, I said I did.

      “Q. You don’t mean that, do you?
    “JL I say I don’t know that.
    > “Q. You don’t know, then, whether you had turned your horse to go across the track, or whether you were crossing the track, at the time the car struck you ?
    “A. No, I don’t know about that.”
    He further testified:
    “I could not say how close to the track the buggy was; maybe a foot, maybe ten inches,' maybe six inches. I can’t tell how long the buggy had been so close to the track. I didn’t pay any attention to it. There was plenty of room there to keep away from the track.”
    He also admitted having testified upon the former trial as follows

      “ Q. You don’t know where your buggy was at the time the car struck it, — whether it was in front of the car or beside it ?

      “A. No.”

      Plaintiff testified, that she did not know where the buggy was when the car hit it. The above comprises ail the testimony on the part of the plaintiff referring to the manner •of the accident.
    One Mrs. Butterfield, the sole occupant of the car at the time, was called as a witness for the defendants, and testified that there was a switch they had just passed, and that a car goes slower across a switch; that the car did not go fast by the switch on that occasion; that she heard the bell ring; that it started to ring near Green avenue, and kept ringing long enough for a half dozen teams to get •out of the way.
    ‘ ‘ I was in the front end of the car on the south side. I thought I would look around, and see what the trouble was, and started to get up from my seat. Just then the horse’s head struck the window on the north side of the car. I got out of the car, and noticed that the rig was on the north side of the car. The motorman was trying to .stop the car.”
    One George L. Walt was returning from his work to his home from the east, and testified that he heard the bell just before he heard the crash of the collision; that he had gone about 30 feet, after hearing the bell, before the collision; and that he was on the track of the Michigan Central Railroad Company, east of the place of the accident, when the bell was rung.
    The motorneer testified that he slacked down for the -switch; that, when crossing Green avenue, he saw two rigs alongside the track, from two to three feet from it. As he got closer, he rang the gong, as he always did. That, when he got up to the rig behind,—
    “This other rig pulled right across ahead of me. The car struck it in the side, and the old lady and gentleman were right in front of the window, sitting right there in front of the car. The rig slid around and tipped over. It lay right at the hind end of the car when I stopped. When I first saw the rig, I was going about six miles an hour, and when I caught up with the rig I was going between four and five miles an hour. I shut off the current and put on the brakes. When I saw they were going to cross, I reversed. ”
    That he saw the rig as soon as it started to cross the-track; that before that it had been a safe distance from the track.
    “Just as soon as they started to cross, I commenced to-take precautions, and undertook to stop. It was not possible for me to avoid striking them. After it was struck, no part of the rig was on the south side of the car. * * * When I hit the buggy, the horse was on the north side of the track, headed towards the north, — had gotten across the-track.”
    That a car running about six miles an hour could be-brought to a stop in about 60 feet by using brakes and reversing. There was no conductor on the car.
    Plaintiff and her husband had often traveled over this street between the city and their home, were perfectly familiar with the situation of the tracks and the running of cars thereon, and knew that cars were passing every few minutes. The accident occurred about 150 feet east of Green avenue. The only testimony as to the distance-the car went after striking the buggy was that of Mr. Bobinson, who testified that, “after the car ran ahead, the-horse became separated from the buggy about 40 or 50-feet from the first collision.” The court, in his instruction to the jury, said that the claim of the plaintiff was that the car struck the left forward wheel of the buggy,1 and that by some means the horse and buggy then got around in front of the car and on the north side of the car. If the car struck the forward wheel first, it is evident that the horse and buggy were going towards the track.. Plaintiff recovered verdict and judgment.

      T. A. E. & J. C. Weadock, for appellants.

      Edward E. Anneke, for appellee.
   Grant, J.

(after stating the facts). The following: facts are established by the testimony:

1. Plaintiff and her husband were familiar with the manner and the usual speed of running cars in that part •of the city.
2. A car passed every few minutes, and therefore they should have expected one.
3. Plaintiff and all her witnesses, including her husband, who was driving, supposed that" they were far enough away from the track to permit a car to pass.
4. Plaintiff’s husband turned suddenly towards or across the track just before the buggy was struck.
5. There was a good and safe roadway, 12 to 15 feet wide, between the track and the gutter.
6. Plaintiff and her husband took no steps to determine whether a car was coming. Either could have seen the •car and its headlight in a second by turning his or her head. They do not testify that they took the precaution to listen for the ringing of the bell.

The disputed facts relate to the speed of the car, the ringing of the bell or gong, and the position of the horse and buggy at the time the car struck the buggy.

Two witnesses on the part of the plaintiff alone testified to the speed of the car, — Mr. Robinson, who did not see the car until just as it was passing his buggy; and Mr. Curry, who stood upon the sidewalk. Robinson testified to a speed of 18 to 20 miles an hour; Curry to a speed of 20 miles an hour. Mr. Curry testified that he did not know anything about the speed of cars running in the, locality, but that they ran .very swiftly, he should think. He did not see the car between Green avenue and the place of collision, a distance of 150 feet. His attention was directed to something else. He was then asked as to his competency .to testify about the speed of the car that night, and was permitted to do so. Such testimony is of no value, and does not rise to the dignity of evidence, and should have been excluded. The horse was going at a “slow jog.” If the car was going at a speed of 18 to 20 miles an hour, it would manifestly be impossible for the horse to jump in front of the car and to the other side of the track without being struck, and all agree that the horse was not struck. The opinion of Mr. Robinson as to the speed is shown to be unreliable and incorrect by the undisputed facts and by his own testimony, for he says-the car was stopped at 40 to 50 feet from the place of the collision. It would be impossible to stop a car in that distance going at the rate of six miles an hour, according to the uncontradicted testimony of the motorneer, who had been a motorneer on this road for six years. It is common knowledge that it could not be stopped in that distance if it was running at a speed of 18 to 20 miles an hour. The motorneer was the only witness on the part of the defendants who testified to the speed, and he fixed it at about six miles per hour. The sole passenger testified that the-car did not go fast by the switch, which had just been passed, but gave no opinion as to the speed. The lawful rate of speed was 12 miles an hour. Whether this testimony was sufficient to justify the jury in finding that the car was running at an unlawful rate of speed I do not deem it necessary to determine, as I think the case must be disposed of upon another point.

The only disagreement among the witnesses in regard to the ringing of the bell is the distance of the car from the carriage when it was rung. Three of the witnesses for the plaintiff agree that the bell was rung at or before the collision. Mr. Robinson, on the part of the plaintiff, testified he was listening; that, “at the time he went by me, he struck the buggy, and the bell rang.” Mrs. Robinson testified: “ It did ring just as it struck the rig. It rang-three or four times.” Mr. Curry said, “There was no-bell rung until about the time the car struck the rig.” Plaintiff testified that “the bell did not ring before we-were struck.” Mr. Tunison testified, “ I heard no bell rung before we were struck. ” In view of the noise made-by the two horses and carriages over a hard and frosty road, it would not be surprising if these witnesses, only one of whom testified that he was listening, did not hear the bell, if it was rung. Three witnesses who were in position to know, and two of whom were entirely disinterested, swear positively that the bell was rung.

The important questions are, What duty did the defendants owe to the plaintiff, and what duty did she owe to herself and the defendants, while both were traveling upon the public highway, over which each had a right of passage ? Courts have almost universally held that street railways have no exclusive right of way, and that motormen must be vigilant in keeping a watch for pedestrians and teams crossing their tracks or driving in front of the cars. Electric cars have become a necessity, and they are traversing not only cities and villages, but country towns. They must, and are permitted to', travel faster than ordinary vehicles drawn by horses; otherwise they would be of little use. At street crossings, and other places, where the motorneers see people about to cross, or see them upon the track, or in a dangerous position, or partially on the track in front of them, they are bound to ring their bells or gongs as a warning; and, when they see any signs of danger, to keep their cars under control as much as possible. These cars cannot be stopped as speedily as carriages drawn by horses. Their speed is fixed by ordinance within cities and villages, and in this case the speed in the populous parts of the city is fixed at 8 miles per hour, and outside those limits 12 miles. The speed allowed where this accident, occurred was 12 miles per hour.

This court, speaking through Chief Justice Morse, in Rascher v. Railway Co., 90 Mich. 413 (51 N. W. 463, 30 Am. St. Rep. 447), said:

“A street car can neither turn to the right nor left. It runs with greater rapidity and with greater momentum than a wagon or omnibus; therefore greater caution must be taken in its running to avoid collision. It ought to be lighted in the night-time, so that its approach can be seen by other travelers; and between twilight and dark, if not lighted, it ought to be run so slowly as to avoid collision, or else give by some signal warning of its approach. Street cars have precedence, necessarily, in the portion of the way designated for their use. This superior right must be exercised, however, with proper caution and due regard for the rights of others; and the fact that it has a. prescribed route does not alter tbe duty of tbe defendant to the public, who have a right to travel upon its track until met or overtaken by its cars.”

'. A corresponding duty is also imposed upon the traveler by the fact of these heavy cars being run over the public highways for the convenience and carriage of the public. He is chargeable with notice that they travel faster than ordinary vehicles, that the momentum is greater, and that while running at a lawful rate of speed they cannot be instantaneously stopped. Therefore, when he turns his carriage to cross the street, it is his duty to look and see whether a car is approaching so near as to make it dangerous for him to make the attempt to cross. The same rule applies when one suddenly turns towards the track, and brings his carriage in line of an approaching car. Applying this principle, what was the duty imposed by the law upon the plaintiff and her husband ? They believed that they were at a safe distance from the track. ■ So did those who saw them, until a sudden turn was made towards the track, which brought the carriage within the danger line. They were in as good, and probably better, position to know they were at a safe distance from the track than was the motorneer. A man has not the right, knowing that the cars are apt to approach any moment, to put himself at what he believes to be a safe distance, and then hold the defendant company liable for damages because its motorman made a like error in judgment. If the plaintiff and her husband were'riding upon the track, or were crossing it, or were in obvious danger while riding too close, it would have been the duty of the motorneer to not only ring his bell, but to apply his brake and reverse his motive power. The motorman is not called upon to act uhtil he sees, or should see, that a person is in danger, or liable to run into danger. Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73); Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139).

While the travelers by carriage have the right to use the entire highway from curb to curb, yet they have not the right to turn quickly and blindly from a safe distance to a dangerous nearness to the track, or to attempt to cross without looking for an approaching car. Such negligence has been termed by this court gross negligence. Wood v. Railway Co., 52 Mich. 402 (18 N. W. 124, 50 Am. Rep. 259); 2 Thomp. Neg. (2d Ed.) § 1389; Graham v. Traction Co., 64 N. J. Law, 10 (44 Atl. 964); Christensen v. Trunk Line, 6 Wash. 75 (32 Pac. 1018); Davidson v. Tramway Co., 4 Colo. App. 283 (35 Pac. 920); Sonnenfeld Millinery Co. v. Railway Co., 59 Mo. App. 668.

In Christensen v. Trunk Line the car and the plaintiff were traveling in the same direction, and plaintiff suddenly turned to cross the track in front of the car. The court held that the motor man “had a right to presume that, the respondent would remain off the track, and not knowingly place himself or his property in imminent danger; and he was not bound to regulate his speed at such a rate as would certainly avoid injury to any one who might attempt to cross the road in an unreasonable and improper manner.”

In Davidson v. Tramway Co. it is said:

“It is very difficult to imagine circumstances which would excuse the injured party for his neglect to use his ■eyes as well as his ears to guard against an accident occurring while he is crossing the track.”

In Sonnenfeld Millinery Co. v. Railway Co. it was held not to be the duty of a motor man to stop his car on seeing a person in the street, near the railway tracks, if such person when seen by him is not in a position of peril.

In Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), plaintiff was driving a milk wagon in the same ■direction that the car was going, — the car coming from behind. He testified that he listened for the ringing of the bell, but could not hear anything. Without looking, he then turned diagonally across the track, and the rear wheel of his wagon was struck by the car. At page 53 my Brother Montgomery, who wrote the majority opinion, discussed the general rules relating to travelers upon the highway and street cars, and said:

“ Unless he had the right to assume that there was no-car in the rear with which he was likely to come in contact, or unless he had the right to rely upon his failure to-hear the sound of the gong, it was clearly negligent for him to turn across the track suddenly, and without assuring himself by proper investigation that no car was coming. Booth, St. Ry. Law, § 315. In fact, until the car-approached the crossing, it is very doubtful whether it was-the duty of the motorman to sound any gong. So long as-the plaintiff was traveling in the same direction, and at such a gait as would not result in collision, it cannot be-said that the motorman had any occasion to sound the gong, as he would have no reason to apprehend that the plaintiff would come to a stop, or make a short turn across-the track.”

In Blakeslee v. Railway Co., 105 Mich. 462 (63 N. W. 401), it was held to be negligence to go upon a street-car track without taking precautions to ascertain whether or-not it is safe to do so, and that plaintiff could not avoid the legal effect of such negligence by placing himself in such position where he could not easily see an approaching car. In that case my Brother Hooker cited with approval Fritz v. Railway Co., and said:

“It was there held that one riding in a covered carriage, and thereby prevented from looking behind, could, not recover against the street-car company when he turned suddenly upon the track in front of a car and was injured.”'

So, in this case, plaintiff and her husband were riding-at a safe distance from the track, and suddenly turned towards it, and brought themselves within the danger line..

In Wood v. Railway Co., supra, plaintiff was driving a one-horse vehicle along the street on one side of the-tracks, when, encountering obstructions, he turned towards-the tracks so that his right-hand wheels were over the rails. He did not look behind him to see if a car was coming, until he felt something strike the rear wheel. It was-held, as a matter of law, that he was guilty of contributory negligence.

In Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139), we held that a motorneer has the right to assume-that a person standing on the track will step out of the way, and that the motorneer is not bound to check thg speed of the car until he has good reason to believe that such person is paying no heed to the customary signals. Why should the motorneer be required to assume that one traveling at a safe distance from the track will suddenly walk or drive upon it ?

Counsel for plaintiff cites and relies upon two cases: Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139), and Rouse v. Railway, 128 Mich. 149 (87 N. W. 68). In the former case plaintiff had crossed the track from the south side to the north side, and before doing so looked both ways, and no car was visible. The roadway for about 9 feet from the track on the north side was macadamized with broken stone, worn smooth only in two parallel tracks where the wheels of vehicles ran. Plaintiff drove so that the wheels would follow in the beaten portions of the road. Cars passed at intervals of a half hour each. She had driven about 300 feet, when she heard a bell, and attempted to guide her horse away from the track, but was struck, before she had time to do so. It was there contended that plaintiff had turned in towards the track. This, however, was a controverted question of fact, and, of course, properly submitted to the jury. The court plainly instructed the jury that, if this were so, she could not recover. That case would rule this if there were any dispute as to plaintiff’s husband suddenly turning his horse towards or across the track, and if the roadbed in this case had been like the one in that. In the latter case there, was a deep ditch upon the side of the highway, and the roadway at the side of the track was so narrow that teams in the daytime were driven into the ditch when cars were passing. The roadway was between 9 and 10 feet wide, and the footboard extended over the roadway outside the. rail 2 feet. The deceased and his companion had never driven over the road before. It was in the night, and dark. We held, speaking through my Brother Long, that the question of contributory negligence was for the jury. Clearly, in my judgment, those cases do not control this one, where there was a roadway 12 to 15 feet wide, perfectly level, and the plaintiff and her husband knew thatcars were passing every few minutes, and that one was liable to overtake them at any moment, and yet took no steps whatever to protect themselves from injury, which they might have done without any inconvenience.

To sustain this verdict establishes the rule that jurors may find that travelers are free from negligence when they ride in a level street alongside street-car tracks at what they consider, and what in fact is, a safe distance therefrom, and suddenly turn towards the track and into the danger line, without taking any precaution whatever to determine whether a car is approaching, and in reliance upon their ability to hear the gong sounded or bell rung amid the noise made by two horses and two carriages, each with four wheels, riding over frozen ground. If such were the rule, it would be unsafe- for street cars to run at the speed now allowed by law, and necessary for the convenience of the public. Such a rule is not, in my judgment, a just and reasonable one. A traveler has the right to drive upon the street-car tracks, and has an' undoubted right to rely upon a warning from the approaching car for him to give it the right of way; in which case he is entitled to sufficient time to place himself outside harm’s reach. But when, in his own judgment, as well as that of the motorneer, he is traveling outside harm’s reach, I cannot recognize a rule which calls upon the motorneer to assume that he will suddenly turn within harm’s reach. If it be granted that there was a conflict of evidence as to the speed and the ringing of the bell, and that the defendants were negligent in these respects, it is apparent to me that plaintiff was equally negligent.

The learned circuit judge very clearly defined the rights and duties of the parties in the following language:

“Now, the plaintiff’s husband, in driving along there, knew that the street-car track was there, and that cars were being operated upon it every few minutes, and he should use care in driving. He should be careful not to get on the track, or, if he did go on or near enough to the track to endanger them, before doing so it was his duty to look out; to look around to see that no car was approaching ; to do what a reasonable and prudent person should to see that it was safe for them, to go on the street-railway track, or to go at any time so near to it as to endanger their conveyance or themselves. And the street railway, or the car motorman in operating his car, was bound to keep a lookout for any obstructions that might exist upon the track, and to be careful and exercise due care lest he should run against or upon any obstructions there might .be upon the car track, so as to avoid running against anybody in case they were upon the track-. Any person driving along the highway has no right, as I have stated, to drive upon the track or to attempt to cross the track suddenly, without looking out to see whether or not the car was approaching. They have no right to attempt to cross a street-railway track, or put themselves in a place of danger, without looking or listening or taking some means to be certain that a car is not approaching. It is recognized nowadays that electric cars as well as steam cars are dangerous. They run with rapidity. They cannot be instantly controlled. They must be operated with care, and the people who use the streets and highways where they are in operation must equally understand that they must watch out and be careful, and not expose themselves to unnecessary danger.
_ “ Now, the plaintiff in this case and her husband had a right to drive on the street-car track if they did it carefully. And, if it became necessary in any way for their purposes, they had a right to drive on the track; and if, while on the track, a car comes from behind, and the motorman sees them driving on the track or in close proximity to it, and he does not take care nor attempt to get his car under control so as to prevent hitting them, and he hits them, then he is guilty of negligence, and the company is liable, because they have rights on the track, and he must be careful. But that is a very different thing from what it is for a driver to suddenly turn on the street-car track when the motorman has reason to expect or anticipate no such thing, and, in fact, has a right to assume that the driver going along on the street with a clear road ahead will continue so to drive. The motorman has a right to fairly assume that they will do so.”

The vice of the instruction lies in the fact that there was no conflict of testimony. Plaintiff and her husband did the very things that the judge told the jury constituted negligence on their part. They used no care. They did not look or listen, or take any means to be certain that a car was not approaching. Under the plaintiff’s own theory, both she and her husband erred in judgment as to the distance they were from the track. If plaintiff and her husband had no reason to anticipate that they were in the danger line, why should they expect the motorman to have a judgment superior to theirs ? Where a traveler is riding beside the track, and there is a good roadbed 12 to 15 feet wide, it is his duty1 to drive a sufficient distance from the track to avoid collision with a car. It is a reasonable rule that he do so, since the car cannot turn aside, and he can. By so doing he-.does not inconvenience himself, and avoids delays and dangers to other travelers upon the cars.

I think the judgment should be reversed, and new trial ordered.

Montgomery, J.

I cannot agree with the opinion of my Brother Grant. The case is brought here to determine questions of law, and an examination of this record convinces me that there were distinct questions of fact as to the manner of this accident, which were submitted to the jury, and of which there was testimony, but which the opinion of Mr. Justice Grant assumes not to exist. There was testimony tending to show that the plaintiff’s husband was following the beaten track. That this beaten path took him and his conveyance very near to the car track is true, but the evidence by no means conclusively shows that he suddenly turned towards or across the track. Under these circumstances, I do not adopt the view of the law which my Brother Grant takes. It is true that one traveling a public highway on which there is a street-car track is bound to use some caution. If he is turning to drive across the track, he is bound to look to see whether a car is liable to come in collision with him. He is undoubtedly bound to look ahead for the same purpose. But I am not prepared to hold that he is, as a matter of law, bound to be constantly looking backward when driving upon or in proximity to the track. He has a right to assume that some effort will be made by the motorneer to prevent a collision; that he is in a position to see in advance, and to note whether a collision is likely if he continues in the course. See Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); La Pontney v. Cartage Co., 116 Mich. 514 (74 N. W. 712); Goldrick v. Railroad Co., 20 R. I. 128 (37 Atl. 635); Rouse v. Railway, 128 Mich. 149 (87 N. W. 68).

In the present case there was evidence from which it might be found that for a considerable distance, at least, the vehicle in which the plaintiff was traveling was pursuing a course near the railway track, — so near as to make it reasonably certain that a collision would occur if the car was not brought under control. Under such circumstances it cannot be said that the motorneer had the right to pursue his course, and run this vehicle down. The case of Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), presented a very different state of facts. In that case such a case as this was expressly saved. It was said in the opinion:

“ It is not a case in which the plaintiff had been driving up the track, and was run down by the motorman, but an attempt to cross the track, unexpected and sudden.”

This case and others cited by my Brother Grant are distinguished by Mr. Justice Long in Rouse v. Railway, supra. I think the case was a proper one for the jury.

The judgment is affirmed.

Hooker, O. J., and Moore, J., concurred with Montgomery, J. Long, J., did not sit.


source: Caselaw Access Project

author:
Montgomery, J.
      Grant, J.

license: Public Domain

text:
    ERTZ v. PIERSON.
    Negligence — Children—Machinery—Instruction.
    Where it appears that the plaintiff, though of tender years, knew of and appreciated the danger of a'machine he was-operating, no recovery for personal injuries against his employer can be based upon a failure to warn him of the danger - but whether reasonable care required the owner to give him instructions as to the manner of operating a feed cutter safely is a question for the jury. Allen v. Jakel, 115 Mich. 484. Grant, J., dissenting.
    Error to Wayne; Donovan, J.
    Submitted November-20, 1901.
    (Docket No. 146.)
    Decided March 26, 1902.
    Case by Albert Ertz, an infant, by Peter Ertz, his next friend, against Harry L. Pierson and Willis Hough, copartners as Pierson & Hough, for personal injuries. From a judgment for defendants on verdict directed by th& court, plaintiff brings error.
    Reversed.

      Lehmann Bros. & F. J. Biggs, for appellant.

      May & O’Brien, for appellees.
   Montgomery, J.

The plaintiff, who, at the time of receiving the injuries hereinafter referred to, was a little less than 16 years of age, was employed by defendants in their harness-making establishment. He worked in the harness, department about a week. He then went into the stock room, and worked for a few days, and, on the 23d day of February, 1899, he was sent into the collar department, where he was instructed by the foreman to cut long straw with a hand machine, and lay it in bundles, and, when short straw accumulated, he was directed to run it through an Ohio feed cutter. He had never operated a machine of' that kind before that day. He used it about half an hour in the forenoon, and again about half an hour in the afternoon. The third time he attempted to make use of it, the straw got clogged in the bin, and he attempted to shove the straw away from the machine with his left hand, and, while pushing the straw away, his hand got caught in the knives, and cut off. The circuit judge directed a verdict for the defendants, on the ground that the danger was obvious.

The case is certainly very near the border line. The testimony of the "plaintiff shows that he knew that there were knives in the machine, and that, if he got his hand in the machine far enough to come in contact with them, he would be injured. There would be no difficulty in saying, therefore, that, so far as the fact of the machine being dangerous is concerned, the failure to warn the plaintiff of this danger could not be availed of as a ground for recovery; for, where it appears affirmatively that the plaintiff, though of tender years, knew of the danger, and appreciated it, no recovery can be based upon a failure to give the warning. See Borck v. Nut Works, 111 Mich. 129 (69 N. W. 254); Monforton v. Brick Co., 113 Mich., at page 43 (71 N. W. 588). The precise question in this case, however, is whether the plaintiff should have been instructed as to the manner in which this work might be done with safety. It is the theory of the defendants that he might either have stopped the machine, or have used a shovel to clear out the obstruction. But the plaintiff testified that no one told him not to use his hands, that no one told him what to do in case the straw would not go through, and that no one told him to stop the machine before he went into the bin to shovel. It is true, he testified, ‘ ‘ I knew, as anybody would, that if I got them [his fingers] in far enough, they would be cut.”We think, upon the turning point in the case, that the question is ruled by Allen v. Jakel, 115 Mich. 484 (73 N. W. 555). In that case, the plaintiff had been warned not to get her hands in the rollers; but it was said:

‘ ‘ The only question in the case would seem to be whether the defendant was in duty bound to give her instructi on as to how to do this work, or might leave her to learn it from observation and experience, inasmuch as it was obvious that the hand would be injured if it got into the rollers. It may be that no further instruction was required; but this would depend upon the character of the work, and the opportunities she had enjoyed for understanding how to do it safely. It sometimes happens that the dangers of a tool or machine are obvious, yet some methods of use are much safer than others. Skill and dexterity are essential, and prudence dictates that inexperienced persons, especially young children, should have some instruction, or opportunity to learn the proper way, before they are allowed to attempt to use them. Whether this was such a machine, and whether the opportunity for observation was all of the instruction reasonably necessary, were questions to be submitted to the jury, not being sufficiently clear to warrant us to dispose of them as questions of law arising on undisputed facts.”

So we think that in the present case the question as to whether reasonable care required that instruction should be given to this plaintiff as to the manner of doing the work was a question for the jury. This question should be determined with full recognition of the fact that he knew that it was dangerous to put his hands in this machine where they would be likely to come in contact with the knives. No testimony was offered on behalf of the defendants in the present case. It is proper to say that if it should appear that plaintiff was instructed to stop the machine before attempting to remove the straw when it accumulated, or to use the shovel in such an emergency, or if it could be said that using the hands while the machine was in motion was so palpably negligent that the boy should himself know that he should not have done so, but should have used a shovel or other tool, or stopped the machine, which he had been instructed how to do, there would be no ground upon which a recovery could be had.

The judgment will be reversed, and a new trial ordered.

Hooker, C. J., and Moore, J., concurred with Montgomery, J.

Grant, J.

(dissenting). I think several former de-

cisions of this court clearly sustain the ruling and opinion cf the circuit judge, and that a reversal of the case would result in overruling those decisions. This plaintiff had nearly attained the stature of a man, — he was five feet ■seven inches in height, — and the judge, in directing a verdict, said: “He was a well-developed boy, well grown np, bright, intelligent, and in every way seems to háve ■been able to understand the danger.” He had seen these cutters before. He had been cut with one when about six years old. He admits he was shown how to work it. He had been shown how to start and stop it, and was furnished a shovel with which to shovel away the cut straw as it came from the machine. The machine became clogged. He could have stopped the machine before attempting to •clear the cut straw away. He could and he ought to have used the shovel which was provided for removing the straw. It was entirely unnecessary to use his hands. He testified:

“ I took the straw from away over here to the other bin. I did not use the shovel when I got in here to clear this ■away, because I did not think anything of it. I did not think about using it; that is the only reason. I did not use the shovel to- clear the straw away from in front of the spout of the machine, because I did not think anything of it. I knew that there was a shovel there; I used it before. They told me to use it to put the straw over into the other bin. I knew that there were knives on the inside of the box, but I did not know just where; had not seen them in there; they were covered. I did not see the kniVes in there. * * * Had not at any time during the day before that used my hands for clearing away the straw from the spout of the machine. That was the first time I had used my hands. * * * In order to stop the machine all I had to do was to raise my hand and touch this lever and push it over. * * * I knew when I was in the bin clearing the straw away that if I got my hands far enough into the spouts of that machine they would be cut, but I did not know where they were'.”

In Palmer v. Harrison, 57 Mich. 182 (23 N. W. 624), plaintiff was a boy 16 years old. The plaintiff in this case lacked two months of being 16. The court in the Palmer Case said:

“The plaintiff was a boy 16 years old, of moderate intelligence, and, at the time of his employment by the defendant, had never before worked in a factory or shop where machinery was used, and had had no experience in working about it.”

The same cause of negligence was alleged there as here. The plaintiff there, as here, knew that if he came in contact with the knives he would be hurt. He did not look, because he supposed the knives were still. The court said, speaking through Justice Sherwood :

“Upon these undisputed facts and the testimony of the plaintiff himself, it is difficult to see what notice or warning the defendant could have given which would in any manner have helped the plaintiff in avoiding the danger which overtook him; and if he could not, certainly the law requires none. The plaintiff’s testimony shows him to be a young man of fair intelligence. * * * The case shows the injury to the plaintiff was the result of an accident which could have been avoided by a little more-caution on the part of the plaintiff, as all the means for so-doing were fully within his own observation and reach; and we quite agree with the learned judge of the superior court that it was,'under all the circumstances, his duty to-give the direction he did to the jury.”

In Borck v. Nut Works, 111 Mich. 129 (69 N. W. 254), the plaintiff was 12 years old. One ground of negligence-was the failure to instruct the plaintiff in regard to the danger. The court said:

“ The testimony of the plaintiff shows conclusively that he knew and apprehended the danger. It cannot therefore be said upon this record that he was too immature to know the danger he was in.”

In Monforton v. Brick Co., 113 Mich. 39 (71 N. W. 586), a boy 14 years old was killed by coming in contact with the cogwheels of a revolving shaft. It is there said:

‘ ‘ He [the deceased] was advanced sufficiently in years so that he ought to have known that a shaft with a collar upon it, revolving 150 times a minute, was dangerous.”

In Journeaux v. E. H. Stafford Co., 122 Mich. 396 (81 N. W. 259), plaintiff, a boy 15 years old, was injured by coming in contact with a saw. We there said:

“There is no room for claiming that he was inexperienced, unintelligent, or so young as not to appreciate the situation.”

I think that those cases clearly control this one.

Plaintiff relies upon Allen v. Jakel, 115 Mich. 484 (73 N. W. 555). I cannot consent to extend that case, where the plaintiff was a girl 14 years of age, had just been put at work on a complicated machine, and was attempting to arrange the paper, which came up in the wrong place, to include this case, where the machine is simple, where there is no claim that the plaintiff was not of sufficient intelligence to understand the working of the machine and to apprehend the danger, where he did understand and comprehend, and where he used his hands to do work for which he had been furnished a shovel, and which he had used several times before.

In O’Keefe v. Thorn, (Pa.) 16 Atl. 737, a boy 14 years of age was injured by getting his hand under a stamp machine, and the court said:

“All machinery is dangerous if not properly used. There was no danger in this particular machine that was not as obvious to a boy of 14 as to an adult. He could see that if he placed his hand under the stamp it would be crushed. If boys are not allowed to use machinery until they have become accustomed to its use, it would be difficult for them to learn any useful trade or occupation by which to earn a livelihood.”

In Ciriack v. Woolen Co., 146 Mass. 182 (15 N. E. 579, 4 Am. St. Rep. 307), a boy 12 years of age came in contact with uncovered gearing, and was injured. The court held that “explicit instructions would have added nothing to what the lad was presumed to know.” See, also, Coullard v. Tecumseh Mills, 151 Mass. 85 (23 N. E. 731); Buckley v. Manufacturing Co., 113 N. Y. 540 (21 N. E. 717).

Before instructing the jury, the circuit judge who tried the case called his associates upon the Wayne county bench into consultation, among whom was Judge Frazer, who heard the Allen-Jakel Case. After such conference,,' the circuit judge directed a verdict for the defendants.

I think the judgment should be affirmed.

Long, J., did not sit.


author: Grant, J. Hooker, C. J.

text:
    STELLWAGEN v. WAYNE PROBATE JUDGE.
    1. Inheritance Tax — Exemptions.
    Act No. 188, Pub. Acts 1899, relating to the taxation of inheritances, is a substantial copy of a pre-existing statute of New York. Section 21 (32 of the New York statute) was. construed by the courts of that State, before its adoption here, to have been enacted for the express purpose of making plain the intent that the exemption of $5,000, allowed by section 2, should be taken from the whole estate, and not from each interest transferred. Held, that the construction given the act by the courts of New York State should be-adopted in this State. Grant, J., dissenting. '
    2. Statute Adopted from Another State — Construction.
    It is a general rule of construction that, where one State adopts, a statute from another State, it also adopts the construction the courts of that State have placed upon the statute.

      Certiorari to Wayne; Donovan, J.
    Submitted November 21, 1901.
    (Docket No. 87.)
    Decided March 26, 1902.
    Petition by Augustus C. Stellwagen, administrator of the estate of Christopher Moross, deceased, against Edgar O. Durfee, probate judge of Wayne county, for a writ of prohibition to forbid the appointment of an appraiser under the inheritance tax law. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Russel & Campbell, for relator.

      Horace M. Oren, Attorney General (Roger Irving Wykes, of counsel), for respondent.
   Grant, J.

The estate of which the relator is administrator consists of personal property of the value of $8,000. The deceased left five children, who, as his heirs, are entitled to it. The respondent imposed the tax upon the entire estate. The relator insists that the exemption provided by the statute applies to each legacy, and not to the entire estate. The question arises under section 2 of Act No. 188, Pub. Acts 1899, which reads as follows:

“When the property, or any beneficial interest therein, passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, or to or for the use of any child or children adopted as such in conformity with the laws of this State, of the decedent, grantor, donor, or vendor, or to any person to whom any such decedent, grantor, donor, or vendor, for not less than ten years prior to such transfer, stood in the mutually acknowledged relation of a parent, or to or for the use of any lineal descendant of such decedent, grantor, donor, or vendor born in lawful wedlock, such transfer of property shall not be taxable under this act, unless it is personal property of the value of five thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of all such property in excess of five thousand dollars.”

The title to the act is one providing “for the taxation of inheritances, transfers of property by will, * * * i by the intestate laws of this State, * * * or by deed, grant, bargain, sale, or gift made in contemplation of death, * * * or intended to take effect after death.”

The tax is not upon property, otherwise it would be void under the Constitution of Michigan. Chambe v. Wayne Probate Judge, 100 Mich. 112 (58 N. W. 661); Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487 (84 N. W. 1101). The act consists of 21 sections. The first 20 sections are carefully drawn, and leave but one conclusion possible, viz., that each transfer stands by itself, that the tax is imposed upon each transfer, and that no tax is imposed upon property. It recognizes the personal and individual right of each devisee, heir, grantee, or donee to receive and enjoy the property transferred to him upon the ■ payment of the tax imposed upon his right to receive it. Each devise, gift, conveyance, or right of inheritance is complete in itself, without any regard to the others. Each transferee is entitled to receive his property upon payment of the tax, or upon giving bond as provided in section 7. Section 3 gives a lien only upon the property of each transferee. This is conceded. But the sole claim is that under section 21,' — the last section of the act, — entitled “Definitions,” a definition has been given to the words “estate” and ‘ ‘ property ” which completely nullifies the language of the other sections of the act, overrules legal and popular definitions, and imposes the tax upon the entire estate of every decedent, grantor, donor, or vendor of property. The section attempts to declare that the words ‘£ transfer to or for the use of any father, mother, husband, wife, child, brother, sister,” etc., used in section 2, cover all transfers, and impose a tax upon the entire estate, and that any transferee desiring to receive his own must pay the tax upon all if the others do not pay.

The right of an heir or devisee vests in him upon the death of the testator. Davis v. Newton, 6 Metc. (Mass.) 537; Gelsthorpe v. Furnell, 20 Mont. 299 (51 Pac. 267, 39 L. R. A. 170). Under the first 20 sections of the act, there is no room for construction, interpretation, or definitions. Under them each devise, gift, or grant was a separate conveyance or transfer, entitled the devisee, grantee, or donee to receive his entire share upon paying the succession tax thereon, and the exception of section 2 of the act applied to his individual share, and not to the entire estate. Such was the .construction placed upon the act of the State of New York, nearly identical with ours, prior to the amendments made by the legislature of that State in 1892. In re Cager’s Will, 111 N. Y. 343 (18 N. E. 866); In re Howe, 112 N. Y. 100 (19 N. E. 513, 2 L. R. A. 825). Section 21 is as follows:

“ The words ‘ estate ’ and ‘ property,’ as used in this act, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor, or vendor passing or transferred to those not herein specifically exempted from the provisions of this act, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees, or vendees, and shall include all property or interest therein, whether situated within or without this State, oYer which this State has any jurisdiction for the purposes of taxation. The word ‘transfer,’ as used in this act, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale, or gift in the manner herein prescribed. The words ‘ county treasurer ’ and ‘ prosecuting attorney,’ as used in this act, shall be taken to mean treasurer or prosecuting attorney of the county having jurisdiction as provided in section ten of this act. ”

This section attempts to, and, if held controlling, does, take away from each devisee, grantee, or donee the right to pay the succession tax upon the property unequivocally transferred to him by the other sections, merges the taxes of all such devisees into one, and then makes such tax a lien upon the entire estate, contrary to section 3, which provides for a lien upon the share transferred to each person. Under it no such devisee, etc., can enter into the enjoyment of his share until the tax upon the whole property is paid. If the act had simply provided for a tax of a certain percentage upon the entire property of the estate before the estate should be distributed to the heirs or devisees, it would clearly have been a tax upon property, and wholly void under the Constitution. It would, in that event, have made no difference that the act was entitled “ An act for the taxation of inheritances,” etc. The character of a thing is to be determined, not by what a legislature may choose to call it, but by what.it actually is. To call a tax upon property by another name does not relieve it from its character as a tax upon property. “ If the tax is upon the property as such, it is illegal, by whatever name we may christen it.” ■

Section 21 expressly says that the terms used in the preceding sections of the act shall not be construed to mean what they say, but shall be construed to mean the entire property of a deceased person, or of a grantor or donor, and that the tax shall be deducted from the entire of said estate before any distribution is made. If this contention of the respondent be sustained, the entire act must fail, for the reason that it is a tax upon property, and not upon the right of succession. State v. Switzler, 143 Mo. 287, 328 (45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653); In re Cope’s Estate, 191 Pa. St. 1 (43 Atl. 79, 45 L. R. A. 316, 71 Am. St. Rep. 749); State v. Mann, 76 Wis. 469 (45 N. W. 526, 46 N. W. 51).

When the constitutionality of this act was assailed in Union Trust Co. v. Wayne Probate Judge, supra, it is significant that none of the learned counsel for the relator or for the State relied upon section 21 as changing in any respect the plain language of the previous sections. Section 21 Was not mentioned either in the briefs or upon the' argument. It was not relied upon. All the learned counsel seemed to concede that the validity of the act must depend upon the construction to be placed upon the first 20 sections, regardless of the definitions provided for in section 21. Upon the construction to be placed upon those sections we decided the validity of the act, and based our decision upon the express ground that it was not a tax upon property, — 'particularly the property of the estate, — but. that it was a tax upon each transfer. If the position had there been taken that section 21 entirely changed the language and meaning of the previous sections, and treated the estate as entire, the tax as entire, and the entire estate subject to a lien for the whole tax, the question would then have been presented whether this court should have held statutory definitions binding where no definitions were needed, the result of which holding might be to hold the act unconstitutional.

Until an estate vests, the power to tax does not exist. In re Roosevelt’s Estate, 143 N. Y. 120 (38 N. E. 281, 25 L. R. A. 695); State v. Switzler, supra. In that case it is said:

“It is obvious that the tax is upon the transfer by will or devolution by inheritance, and, in the absence of a transfer and a transferee, there is no basis for a succession tax in its true sense, as it comes to us in the history of jurisprudence and of nations.”

In that case it is also held that, where the tax is upon a succession, it must be computed on the value of the separate interest, and not upon the aggregate valuation of the whole estate; and that it is a charge only against each share or interest, according to its value, and against each person entitled thereto. If this be the law, — and I see not how it can be doubted, — it would hardly be in the power of the legislature to impose upon a devisee, grantee, donee, or heir a condition that he pay taxes upon others in order to take and enjoy his own.

A law of the United States provided that ‘ any person or persons having in charge or trust, as administrators, executors, or trustees, any legacies or distributive shares arising from personal property, where the whole amount of such personal property shall exceed the sum of ten thousand dollars,” shall be subject to certain taxes, varying according to the amount of the personal property of the estate and the degree of relationship of the beneficiary. This statute was construed in Knowlton v. Moore, 178 U. S. 41 (20 Sup. Ct. 747), decided May 14, 1900. At page 65, the opinion reads:

“On the very threshold, the theory that the tax is not on particular legacies or distributive shares passing upon a death, but is on the whole amount of the personal property of the deceased, is rebutted by the heading, which describes what is taxed, not as the estates of deceased persons, but as ‘ legacies and distributive shares of personal property.’”

After quoting from section 29 of the act (30 Stat. 464), the opinion further states :

“The statute clearly imposes the duty on the particular legacies or distributive shares, and not on the whole personal estate. It does not say that the tax is levied on the personal estate left by the deceased person, but it is imposed on legacies or distributive shares arising from such property.”

The reasoning of that case is equally applicable in this.

Our statute is adopted mainly from that of New York. Section 22 of the New York act, which is section 21 of this act, was enacted in 1892. That act came before the court of appeals in Re Hoffman’s Estate, 143 N. Y. 327 (38 N. E. 311), in 1894. The court in that case said that the act of 1892, which was a revision of the whole law, was passed with the knowledge of the decisions of that court upon the subject, and was obviously intended in some respects to compel, on the part of the court, different conclusions. Commenting upon these definitions of “estate” and “property,” the court said:

“I recall that I have somewhere spoken of the danger of legal definitions, because almost always certain to prove incomplete and inaccurate, and those referred to are now relied upon and used to overturn and utterly reverse the whole scope and theory of the act as described in our decisions; for the appellant claims that, by force of those definitions, the tax is no longer upon the shares of individuals or their right of succession, but upon the property of the decedent in the hands of his executors or administrators. It would have been easy to have said that if such a- reversal of our theory of the tax had been intended; but all through the act it is persistently declared that the tax is imposed, not upon the property of the decedent, but upon the transfer of that property to persons not exempt from taxation. It was useless, upon this point, to define the word ‘ estate,’ for it does not appear at all in the first two sections, which impose the tax. But the definition of the word ‘ property ’ as being the aggregate transfer to the aggregated taxable transferees cannot be applied to those sections generally without involving the statute in contradictions and utter confusion, for the aggregate transfer is clearly not taxed as such. It is constantly distributed into the separate transfers bearing different rates of taxation, chargeable severally against the several transferees, each made personally liable for his own tax, and that to be collected by executors and administrators severally and in due proportions out of the shares of each. The whole law is full of this distinction, provides for it in every direction, and would be a discord of difficult explanation if we applied the definition generally. Nothing, therefore, in these definitions, can be permitted to touch our general doctrine of the nature of the tax.
“But what, then, do they touch, and what purpose do they subserve? We must look for some place in the act where the word ‘ property ’ is used by itself, and to some extent ambiguously, and therefore needs the help of a definition. We find such a possible place in section 2, where the phrase is, ‘ unless it is personal property of the value of ten thousand dollars or more.’ That may mean the aggregate value of all the property transferred to taxable persons, or the separate value of each several transfer. We had said that it meant the latter, but now comes, the legislature declaring that the word ‘property’ shall mean what passes to those not exempted, and not what passes to individual transferees. While the prohibition cannot apply to the general theory of the tax, it can apply to this description of a specific limitation. We had said it related to the property of individual transferees, but that construction section 22 was intended to forbid and to prevent. If it does not mean that, J am unable to perceive any office it can perform, or any useful purpose it can subserve. That effect, I think, we are bound to give it, since we can do so without disturbing the scope of the act, and in view of the legal situation which existed, and the possible evil which it was thought prudent to prevent.”

The court of appeals of New York seems to have held that, under the constitution of that State, it was immaterial whether the tax was one upon property or upon the right of inheritance. In re McPherson, 104 N. Y. 318 (10 N. E. 685, 58 Am. Rep. 502). In Re Westurn’s Estate, 152 N. Y. 93 (46 N. E. 315), decided in 1897, in a unanimous opinion, the court said:

“It has been steadily maintained that the tax, while, in a general sense, a tax on the property of a decedent, is, in its essential nature, under the legislation on the subject, a tax on the right to succession to the property, imposed upon and collectible out of each specific share or interest given by will or derived under the statutes of descent or distribution, and limited, as to each share or interest, to its value, with a superadded personal liability for the payment of the tax by the person taking the interest. The tax is computed, not on the aggregate valuation of the whole estate of the decedent considered as the unit for taxation, but on the value of the separate interests into which it is divided by the will or by the statute laws of the State, and is a charge against each share or interest according to its value, and against the person entitled thereto.”

It is strenuously urged on the part of the attorney general that our own statute, enacted after the decision in Re Hoffman’s Estate, is binding upon this court, upon the' theory that, when a statute is adopted by one State from that of another, it also adopts the construction placed upon it by the courts of that State. This is the general rule, but such construction is not absolutely controlling upon the courts. The court in that case held that the definition of the word “ property ” given by the statute had no application, except possibly in one place. Such a decision does not, in my judgment, constitute that well-established construction which is controlling in the State subsequently enacting the law. Such an apologetic opinion I am not willing to follow. Neither is it controlling if its adoption results in defeating the validity of the act.

Section 21 changes the tax upon each transfer, and merges all the taxes into one upon the entire property. Thus, as already stated, one must pay the taxes belonging to others in order that he may receive and enjoy his own. If this be so, the constitutionality of the act is very doubt- ' ful. A testator devises his property to five persons. Upon what theory of the law can one be compelled to pay the inheritance tax of the other four,? The difficulties in adopting the views of the attorney general are great. The rate of taxation upon the succession differs according to the degree of relationship. A discount of five per cent. is allowed if the tax is paid within six months. If not paid within 18 months, interest is chargeable. One beneficially interested, but not entitled to present possession of his devise, may give a bond not to pay it until he comes into possession. In case of a devise to executors or trustees in lieu of commissions or allowances, the amount of such devise over and above commissions prescribed by law is taxable. By section 11 the appraiser is authorized to appraise, not the estate of the deceased as a whole, but to fix the fair market value of the estate of the person who is subject to the payment of the tax imposed. These provisions not only show the clear intent to treat each devise by itself, but show the difficulty of any attempt to transfer the tax from the specific shares to the entire estate in the hands of the executor, administrator, or trustee.

If, in anticipation of death, a person divides his property equally among his five children, and conveys and delivers to each an equal share, four of the parties take their shares, squander them, or take themselves and their possessions beyond the jurisdiction of the court, can the one remaining be sued for the entire tax, which, by section 21, in connection with section 3, is made a lien upon the entire property conveyed? Can such lien for the whole be enforced against his share ? Can each be sued to, recover his share of the tax imposed upon the entire estate as a whole, or can they be sued jointly ? These questions, and others which readily suggest themselves, show the difficulty in enforcing this act if we adopt the construction placed upon it by the respondent. Where no interpretation is needed, none will be applied. Newell v. People, 7 N. Y. 97; End. Interp. Stat. § 4.

The words “estate” and “property,” as used in the first 20 sections of this act, do not require or admit of any definition. They are susceptible of, and are used with, hut one meaning. The definition of these words, as given in section 21, if adopted, would lead to difficulty and confusion, would tie up the estate, would prevent a devisee or heir from taking possession of his own in accordance with the will of his testator or grantor, and would, in my judgment, change the tax imposed from a succession or inheritance tax into a tax upon the property of the estate.

The order of the court below should be reversed, and the case remanded to the probate court, with instruction to proceed with the division of the estate in accordance with this opinion. No costs should be allowed.

Hooker, C. J.

The statute under discussion is a substantial copy of a pre-existing statute of the State of New York, of which section 21 was a component part, being-numbered 22. In the case of In re Hoffman's Estate, 143 N. Y. 327 (38 N. E. 311), this section was construed, and it was there held to have been enacted for the express purpose of making plain an intent that the exemption should be taken from the estate of the decedent as a whole, and notfrom each interest transferred. Undoubtedly, this might have been more clearly expressed, and, if it were here raised for the first time, we should hesitate to give it this construction if any other could be found which would give any effect to the section. The history of the legislation upon the subject in this State shows that some difficulty was experienced in enacting a valid law, and we may, therefore, attach more than ordinary weight to the fact that the legislature copied the act of a sister State, which had been repeatedly passed upon by her courts, and can have little doubt that those decisions were considered and understood. We conceive it improbable that section 22 of the New York act was copied for another purpose without excluding the construction which had been given it in this particular, if the legislature intended that the exemption should apply to the transfer to each beneficiary.

We recognize a limitation upon the general rule that the construction of the law goes with the law when adopted. It is not an unyielding rule, and we do not lose sight of the fact that it may be an extension of the general rule of adoption of previous construction of domestic statutes by re-enactment, and that it is subject to qualifications ; yet it must be admitted that only strong reasons will warrant its disregard. Such reasons we 'do not find in the present case.

The order is affirmed.

Moore and Montgomery, JJ., concurred with Hooker, C. J. Long, J., did not sit.


author: Grant, J.

text:
    HARTUNG v. SHAW.
    1. Libel — Pleading—Privilege.
    Statements made in an answer to a bill of complaint in chancery, if relevant or material to the issue, are absolutely privileged, and cannot be made the basis for an action of libel.
    2. Same — Necessary Averments.
    A declaration for libel, founded upon statements contained in an answer to a bill of complaint in chancery, is fatally defective if it does not allege that the statements were irrelevant or immaterial to the issue in the chancery suit, and an averment that the statements were false and malicious is insufficient.
    3. Same — Demurrer—Waiver.
    Such an allegation is necessary to state a cause of action, and is not waived by a failure to demur to the declaration.
    4. Same — Privilege.
    Whether statements made in the course of judicial proceedings are absolutely privileged, — queere.
    Error to Macomb; Whipple, J., presiding..
    Submitted December 12, 1901.
    (Docket No. 185.)
    Decided March 26, 1902.
    Case by George G. Hartung against Georgia A. Shaw and John L. Starkweather for libel. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      This is an action of libel. The declaration is in the usual form. The libel complained of was in an answer to a bill in chancery, filed by one Sarah A. Brabb against plaintiff, defendant Shaw, and others. The declaration alleges that the bill of complaint to which this answer was filed prayed for the partition and division of certain lands devised under the seventh clause of the will of Mar vil Shaw, deceased. The libelous matter complained of, and stated to be in the answer, is as follows:
    “ That defendant would further set up on information and belief, and so believing the facts states the truth to be, on which she relies in this case for her defense herein, the facts and circumstances in this case, that the facts as stated in the affidavit of Will Chisnell about the agreement made on the 21st day of July, 1896, and the carrying out of said agreement on the 27th day of July, 1896, that the facts stated in the affidavit of John Mellen, as detailed in October and November, 1896, as to the sickness and cause of the sickness of Ratie Eldred, are repulsive and inhuman.
    ‘ ‘ That this defendant would further set up on information and belief, and so believing states the facts to be, upon which she relies in this case for her defense to the division of said property, or the sale of said property, as the facts and circumstances in this case, that said facts and circumstances tend to show strongly that George G. Hartung was directly and indirectly responsible for the condition and sickness of said Ratie Eldred, with a wicked intent, as this defendant verily believes, with a full belief and intention to destroy in Ratie Eldred the physical possibility of leaving at his death a child or children by his body begotten.”
    The declaration then proceeds, by the appropriate innuendo, to state what is meant by the above article. Defendant Shaw pleaded the general issue, with notice that the answer containing the alleged libelous matter was filed and a copy thereof served upon complainant under and in accordance with the rules of the court; that she employed the defendant Starkweather as her solicitor; that the answer was filed and served in good faith pursuant to the advice of her solicitor, upon whose advice she fully relied; and that such alleged publications were privileged. Defendant Starkweather filed a plea of the general issue, with notice that the words and matters complained of were pertinent to the issue in said cause, and that the answer was filed in good faith, and also gave notice of the truth of the matters stated in the publication. Upon the trial defendants objected to the introduction of testimony upon the ground that the declaration did not state a cause cf action. The court so ruled, and judgment was entered for the defendants.

      Dwight N. Lowell (Geer & Williams, of counsel), for appellant.

      Byron B. Erskine, for defendant Shaw.

      E. H. & G. L. Canfield, for defendant Starkweather.
   Grant, J.

(after stating the facts). The ruling of the judge appears to have been based upon the theory that the declaration disclosed a case prima facie privileged, and that it was fatally defective in not alleging that the publication was not within the privilege, or that the defendant exceeded her privilege. Counsel for the plaintiff insist that the averment that the statements were false and malicious negatives every possibility of pertinency, materiality, and relevancy. We do not so understand the •rule. If statements made in the course of judicial proceedings, in pleadings or in argument, are relevant, material, or pertinent to the issue, their falsity or the malice of their author is not open to inquiry. They are then absolutely privileged. Hoar v. Wood, 3 Metc. (Mass.) 193, 197; Maulsby v. Reifsnider, 69 Md. 143 (14 Atl. 505); Moore v. Bank, 123 N. Y. 420 (25 N. E. 1048, 11 L. R. A. 753); 2 Stevens, Mich. Prac. § 275. It is only necessary that the language be pertinent, or, as some authors say, relevant. Chief Justice Shaw in Hoar v. Wood said:

“In determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party, or counsel, who naturally and almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such party may become involved. ”

Where a party shows in his declaration a publication-presumptively privileged, it is his duty, in order’ to recover, to prove that the words spoken were not pertinent or relevant, and that they were not spoken bona fide. Mower v. Watson, 11 Vt. 536 (34 Am. Dec. 704); Henry v. Moberly, 6 Ind. App. 490 (33 N. E. 981); McNabb v. Neal, 88 Ill. App. 571; Johnson v. Brown, 13 W. Va. 71. If it be necessary to prove this, it is equally necessary to-allege it. All the information the declaration gives is that the words complained of were uttered in an answer to a bill in chancery filed to obtain a partition of lands.. For all that appears there may have been averments or allegations in the bill in chancery to which the averments of the answer were responsive.

Did the failure to demur waive the objection? The defective statement of a cause of action is waived by a failure to demur. But in such cases the declaration must state a case. Material averments, essential to maintain a. cause of action, are not waived. Parker v. Armstrong, 55 Mich. 177 (20 N. W. 892); Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911).

It is urged by the defendants that pleadings are absolutely privileged, and that no action of libel based thereon will lie. In England they are held absolutely privileged. In this country the authorities are divided. The question has not been directly decided by this court. This court in Hart v. Baxter, 47 Mich. 198 (10 N. W. 198), recognized that there was a limit to the privilege, and approved the rule as stated in Hoar v. Wood, 3 Metc. (Mass.) 193. The statement was purely dictum, and was made after the court had decided the question that the statements complained of there were relevant, and therefore privileged. The same remark is true of many of the ■cases cited in 18 Am. & Eng. Enc. Law (2d Ed.), 1024. The question is an important one. Inasmuch as it is not necessary to now decide the question, we refrain from ■expressing any opinion.

Judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Hooker, C. J.

text:
    HART v. VILLAGE OF NEW HAVEN.
    1. Evidence — Admissions—Instructions.
    It is not error to instruct the jury that verbal admissions should be carefully scrutinized, if given with care not to reflect an opinion, or lead the jury to deny to the testimony its proper weight.
    2. Defective Walk — Notice.
    In an action against a village for personal injuries received from a fall caused by stepping into a hole in a sidewalk, a witness who lived about 10 rods from the alleged hole testified that he called the attention of the street commissioner to the condition of the walk in the vicinity of the hole, and that the . commissioner told him to go to the street committee. The commissioner was not called to contradict it. Held, that, if the walk was badly out of repair, this was sufficient to create the duty of inquiry, and justify an instruction that the village “had notice of the condition of the walk, whatever it was.”
    '3. Requests to Charge.
    The refusal of a request to instruct the jury is not error where the substance of the request is given, but not in the words requested.
    4. Same — Misleading Request.
    A request that plaintiff could not recover for medical attendance unless he showed the same had been paid for or agreed to be paid for was properly refused, as it would probably have been misunderstood.

      5. Evidence — Want oe Exception.
    A case will not be reversed for the admission of testimony to. which no objection was made or exception taken.
    6. Damages in Tort — Loss oe Proeits.
    A falling off in receipts of plaintiff’s business is some evidence-of the value of his attention to his business, and is admissible in an action of tort for personal injuries as bearing on the amount of damages.
    Error to Macomb; Tucker, J.
    Submitted December 13, 1901.
    (Docket No. 186.)
    Decided March 26, 1902.
    Case by Louis K. Hart against the village of New Haven for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Seth W. Knight (C. D. Joslyn, of counsel), for appellant.

      O. C. Lungerhausen {Byron B. Erskine, of counsel), for appellee.
   Hooker, C. J.

The plaintiff claims to have suffered a sprain in the ankle by stepping into a hole in defendant’s-sidewalk upon a dark night, whereby he was incapacitated from business. The jury found a verdict in his favor for $800, and the defendant has brought error.

A number of witnesses testified, upon the part of the defendant, to statements made by the plaintiff relating to the place and occasion and extent of his injury, some of' which tended to show that he was hurt at a different place in the same village; others that the accident occurred, or that the injury was aggravated, at Flint; others that his. injury was trifling. The court instructed the jury that:

“ As to these statements claimed to have been made by the plaintiff as to the cause of his injury, you are instructed that it is proper to take them into consideration as bearing upon his credibility, and also upon the question of whether or not the injury he complained of was caused in the manner complained of, or' in some other or different way. In this connection I think I should caution you that this class. of evidence — that is, statements made by witnesses as of admissions or statements made by the plaintiff to them— should be carefully scrutinized; not because witnesses willfully misstate alleged admissions or statements they may have heard, but because of the fact that we know so well by experience how éasy it is to be mistaken as to a word or expression uttered by a third person, and which we are undertaking to repeat long afterwards. You have seen it exemplified in this case, where witnesses misspeak themselves, and where the attorneys differ as to what their witness has actually said here upon the stand.”

There was testimony tending to show that officers of the village were notified that the walk in the vicinity was defective, and also that the hole complained of was of six months’ or a year’s standing; while, upon defendant’s behalf, there was testimony denying actual notice on the part of most of the officers, and testimony tending to show that the walk was not in a dangerous condition.

At the time of the alleged accident, the plaintiff was carrying on the livery business. He testified that he was prevented by his injury from being at the barn and giving it his personal attention, and that, while his receipts for a given time before the accident were a sum stated, they were much less for a corresponding period thereafter, and that he sold out the business soon after.

The court was requested by defendant’s counsel to instruct the jury that:

“You are instructed that a municipal corporation is required to exercise vigilance in keeping its streets and sidewalks in reasonably safe condition for public travel by night as well as by day; but it is not an insurer against accidents, nor is it required to maintain the surface of its sidewalks free from all irregularities, and from any possible obstruction to mere convenient travel.”
‘ ‘ I charge you, as a matter of law, that a village, city, or township is not an insurer against accidents to pedestrians passing along their streets or highways, and that all that is required of a village, city, or township is to have their streets, highways, or sidewalks in a reasonably safe condition for public travel; and such reasonably safe condition exists whenever such streets, highways, or sidewalks can be safely passed over by a person who is in the exercise of reasonable and ordinary care-.”

He refused these requests, and instructed the jury as follows:

“It is the duty of the village authorities to keep the sidewalks along its public streets in a reasonable state of repair, and in a reasonably safe and fit condition for public travel, so that pedestrians lawfully passing and repassing along and over such walks by day as well as by night may do so with reasonable safety to themselves in the exercise of due care.”
‘ ‘ Personal knowledge of a defect in the sidewalk is not alone sufficient to bar recovery by one injured by reason of such defect. If plaintiff had made it appear that he had not the defect in his mind at the time of the alleged injury, and otherwise exercised due care to avoid the accident, he is not guilty of contributory negligence.”
‘ ‘ However, as I view it, it is not of material consequence in this case, as I think it is my duty to instruct you that the village, as a matter of fact, did have actual notice of this defective condition alleged to have existed in this walk. There is some dispute in testimony between the officers of the village and the witnesses on the part of the plaintiff as to whether or not certain ones of them received notice of this alleged defective condition; but, as I remember the testimony, it appears, without contradiction, that Mr. Hull, who was, at the time of the accident, street commissioner of the village, was informed, some time before this alleged accident, that the walk was defective; so that the village must be held to have had actual knowledge of the condition of the walk, whatever it may have been; and, if you find this walk was not in a reasonably safe condition for public travel at this time mentioned, the defendant, under the proofs in this case, must be held to have known the fact. Whether this knowledge came to them a sufficient length of time prior to this alleged accident to have permitted of the walk being in a reasonably safe condition and state of repair if the village exercised due diligence, is a question of fact for you to consider.”

Plaintiff’s physician testified that he charged him $13 for attendance, which had not yet been paid. The court refused to give a request that, “The plaintiff cannot recover for any medicines purchased or medical attendance in this case until he has shown that the same has been paid for, or agreed to be paid for.”

Error is assigned upon several of these subjects. It is uiged that the instruction relating to the testimony of witnesses offered to prove admissions was injurious, as it incicated distrust, on the part of the court, of such testimony. The instruction was one which the authorities jusífy; but justice requires care in giving instruction, lest the furors infer that it reflects an opinion, or are led to deny to the testimony its legitimate and proper weight. Any liscussion of witnesses or their evidence, especially where it applies to individual witnesses, or, if a class, to those \pon one side only, should be dispassionate. We think tiis was so intended, and do not feel justified in concludingthat the jurors were misled by it.

It is said that the court erred in the instruction that the defendant “had notice of the condition of the walk, whatevei it was.” This instruction was made to rest upon pro(f of notice to the street commissioner, who was not produced to deny it. The proof was from witness Sutherland who said that a hole had existed for about two years, and hat he “ called the attention of the street commissioner to the condition of the walk, not right there, just above it and'there and all the way down from my place.” He l.ved about 10 rods from the alleged hole. He said to him tlat there were holes all the way down the walk, and testfled that Hull told him to go to the street committee. Nothing appears to discredit Sutherland, and the fact of notici was proved. It is true that there was a dispute as to whvther the hole was such a defect as to be dangerous, but th) court recognized that by saying that the notice to Hull vas notice of such condition as actually existed. If the wilk was badly out of repair, this was enough to have created the duty of inquiry. The jury must have found thewalk defective.

Counsel were entit'ed to have the substance of the third and sixth requests given, and this, we think, is found in the charge. The coup did not say, in explicit language, that the village was not an insurer, or that the streets are in a reasonably safe condition for public travel when they can be safely passed over by a person who is in the exercise of reasonable and ordinary care; but the language-used was apt, and could not well have failed to convey a proper understanding of the true rule.

It was not error to refuse to instruct the jury that payment or agreement to pay for medical attendance was necessary to authorize a recovery. The law implies a promise to pay for medical attendance when it is called and accepted, and the instruction proposed, even though it be considered broad enough to cover an implied premise to pay, would probably have been misunderstood.

There was no proof that plaintiff sold out his busiaess at a loss, and the court excluded damages of such character. It is said that the plaintiff should not have been permitted to testify that he was compelled to sell out. The admission of this testimony was not excepted to. Being in, it was proper-for the court to instruct the jury tliat it was not an element of damage.

While the difference in profits was not the exact measure of damages, the showing of the falling off of receipts was some evidence of the value of plaintiff’s attention to his business, — -a circumstance from which the value of his time might be estimated, — and was admissible in an action of tort. The plaintiff was not to blame for being unable to demonstrate just the amount of his loss; and he was entitled to show it by, and the jury to fiad it from, the circumstances of the case, of which this was one. We-think the verdict pretty liberal, but not unusually so, and. we cannot review it upon this record. Allison v. Chandler, 11 Mich. 542; Gilbert v. Kennedy, 22 Mich. 117; McKinnon v. McEwan, 48 Mich. 108 (11 N. W. 828, 42 Am. Rep. 458); Geveke v. Railroad Co., 57 Mich. 589 (24 N. W. 675); Grand Rapids, etc., R. Co. v. Weiden, 70 Mich. 390 (38 N. W. 294); Kinney v. Folkerts, 84 Mich. 616 (48 N. W. 283); Haines v. Beach, 90 Mich. 566 (51 N. W. 644); Commissioners of Parks & Boule vards v. Moesta, 91 Mich. 154 (51 N. W. 903); Oliver v. Perkins, 92 Mich. 304 (52 N. W. 609); Patterson v. City of Boston, 23 Pick. 425; Turner v. Railway Co., 15 Wash. 213 (46 Pac. 243, 55 Am. St. Rep. 883); 8 Am. & Eng. Enc. Law (2d Ed.), pp. 620, 626, 650, 651, and notes, 653, 654.

The contents of the newspaper article was unimportant, am the refusal to admit it should not reverse the case.

The judgment is affirmed.

M>ore, Grant, and Montgomery, JJ., concurred. Loni, J., did not sit.