text:
    SNYDER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Death by Wrongful Act — Damages—Infants — Expense of Education — Instructions.
    In an action for the negligent killing of a hoy between 11 and Í2 years of age, an instruction that, in determining the value of his services, the expense of educating him in the manner in which he would probably have been educated, and the number of years he would probably have attended school, might be tak$n into account, was not erroneous.
    2. Same.
    Nor was it error to instruct that the fact that the boy had shown some aptitude for a certain line of work would not “by any means” establish that he would have been able, through any such work, to earn large sums of money, where the court added that such fact might be considered, with all the other testimony, in determining the earning capacity of the boy.
    3. Same — New Trial — Inadequacy of Verdict.
    The action of the lower court in refusing to set aside, as inadequate, a verdict of §>250 for negligently causing the death of a boy between 11 and 12 years old, was sustained.
    Error to Kalamazoo; Adams, J.
    Submitted June 5, 1902.
    (Docket No. 21.)
    Decided September 17, 1902.
    Case by Gardiner F. Snyder, administrator of the estate of Leo R. Snyder, deceased, against the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment in his favor for a part of the damages claimed, plaintiff brings error.
    Affirmed.
    Howard, Roos & Howard, for appellant.

      Dallas Boudeman, for appellee.
   Moore, J.

In May, 1901, Leo R. Snyder, plaintiff’s intestate, was killed on a railroad crossing. Suit was brought, and a judgment rendered in favor of plaintiff for $250. Plaintiff moved for a new trial. His motion was overruled. The case is brought here by the plaintiff by writ of error.

Two questions are involved: First. Did the judge err in his instructions to the jury in relation to the measure of damages ? Second. Did the judge err in refusing to grant a new trial because the amount of the verdict was inadequate? Before answering these questions, a brief statement of facts is necessary. At the time of his death, Leo R. Snyder was 11 years and 5 months old. He was a boy of intelligence, who was attending graded school, and who' drove cows to pasture for his neighbors, and, when he had leisure, sold popcorn and peanuts. The father testified no plans had been made as to whether the boy should complete a course in the public schools. The testimony of his father was that he earned enough to pay for his own clothes, though it was not shown what the clothes cost. It was the claim of the plaintiff that his son had unusual aptitude for drawing and woodcarving; that he had some instruction from a relative, who was an engraver and designer, and that this boy, if he pursued that line of study, would make a skillful engraver and designer. None of his work was shown in evidence, and it was not shown he had ever earned anything as an engraver and designer. Against the objection of defendant, testimony was introduced of the following character:

“ Q. With this boy’s aptitude for the business as you saw it, with proper instructions that you gave him, about how long would it be before he would, in your judgment, become proficient enough to earn money at the business ?
“A. I think it would have taken him not over a year, and, if he had kept on at the way he was going at the time of his death until he was 15 years of age, — he was 12 at the time of his death,- — he could have earned easily from $12 to $15 a week. Any one could with the talent that he had. ”

On the part of the defendant there was testimony introduced as to the earning capacity of boys, some of whom had been instructed in drawing, and others of whom had no instruction. It was the judgment of some of these witnesses that boys of the age of the deceased would not earn anything over and above the expense of their board, clothing, and education.

The plaintiff offered the following request:

“You are instructed that, if you find that the plaintiff is entitled to recover in this case, the measure of his damages will be the value of the services of his son during his minority, less the probable cost of his support and maintenance, as shown by the testimony in the case, taking into consideration the probability of the deceased living until 21 years of age, and also the probability of the father and mother of the deceased living until the deceased reached the age of 21 years.”

This was not given, unless it was covered by the general charge, which was as follows:

“ In this case; if the verdict of the jury is for the plaintiff, it can only be for an amount that the boy Leo Snyder’s services would have been worth over and above the expenses of taking care of him, clothing him, and educating him from the time of his injury up to the time he was 21 years of age.
‘ ‘ In considering the question of how much the services of the said Leo Snyder would probably have been worth from the time of his injury up to the time that he was 21 years of age, over and above the expense of taking care of and clothing him and educating him in a manner which was probable that he would have been educated, the jury are entitled to take into consideration what the services of a boy, such as the testimony describes him to have been, would have fairly been worth ordinarily.
“While there has been testimony allowed in this case as to what wages have sometimes been paid boys for services in particular lines of business, this is not of itself conclusive as to what the services of this boy would have been worth.
“ There has been evidence introduced on the part of the defendant on the question of the value of the services of a boy of the age that this one was at the time of his injury, and from that time up to the time he was 21 years of age; and the jury must' make up their minds on this subject based upon facts, not upon any fancies which they may have in their minds. What would be the value, ordinarily, of the services of such a boy, over and above his expense as above set forth, as shown by the evidence ?
“ The jury has been allowed to hear the testimony of witnesses in different kinds of business, and in somewhat different stations or kinds of business of life, giving their judgment as to what the value of the services of a boy would ordinarily be from the age of Leo Snyder up to the time that he was 21 years of age, over and above the cost and expense of raising him, and his cost and expense of living; and the jury are entitled to take this testimony into consideration with any other that may be in the case for the purpose of determining this question.
“ The jury is instructed that the fact, if it be a fact, that the boy Leo Snyder was in the habit of making pictures or drawings, or was interested in that line of work, would not by any means establish as a fact in this case that he would at some future time be able, through any such work, to earn any large sums of money. You. may consider that testimony, however, as bearing upon his possible earning power and ability had he lived. While this testimony was allowed to go in before the jury, it does not follow that the jury would be justified in determining that his services in the future would be worth what those of somebody else may have been in the line of business that was mentioned by the witnesses.
“It is not alone what a boy would probably earn from the time he was 11£ years old until he was 21, but the jury should consider also the amount of probable expense of raising, educating, clothing, and feeding such boy, and the payment of such other ordinary expenses as would naturally be expected to be paid for him, during the years mentioned.
“ In considering the question of the value of services, the jury have a right to consider, from the testimony there is in the case, what would probably be the number of years that the boy would attend school for the purpose of obtaining an education to fit himself fo.r any particular line of work; and if, during a certain number of years of his life, he was not able to earn any money, or any great amount of money, but, during such years, whether it would or would not be probable that money would have to be paid out for his care, keeping, and clothing; then, as he grew older, he would be able to earn more money, but still be obliged to pay for his keeping and clothing and ordinary necessary expenses; all these things should be considered by the jury in determining what the net value of his service would be, if anything, for the whole period of time from his accident up to the time he was 21 years of age; and if, in considering all these facts, the jury believe that his services would not be worth anything in cash, then they are not entitled to find any damages beyond nominal damages in this case.
“ In considering this question of damages, the jury is not to take into consideration anything except the question of what his probable services would be worth from the time of his injui-y up to the age of 21 years, over and above his expenses as above explained, if he had lived. The jury cannot take into consideration, nor be in any way swayed in this case by, the grief which his death may have caused his parents, or any of his relatives, or by the loss of his society to them, or of any other facts in the case except that of loss of services; and consequently, however sad this accident may have been to his family, and however much sorrow may have been caused by such accident and by his death, is of no sort of consequence to this jury in determining the question that is before you to determine as to damages, if you come to a point of determining the matter of damages. If you find for the plaintiff, the verdict must be one based entirely upon monetary consideration for the value of services, less expenses, as above explained; and no other thing must enter into your consideration on the question of damages to be allowed. The law does not allow damages in this kind of a case for loss of companionship of the deceased, for sorrow on account of his death, for expenses for his burial, or for any other thing whatever except for the loss of services until he is 21 years of age, and no longer; and the jury must be governed by this law as given by the court, and apply no other rule to it.
Upon this question of damages I further instruct you that, if you find the plaintiff is entitled to recover, you should take into consideration the probability of the deceased living to be 21 years of age; also the probability of his father and mother living until the boy attained 21 years of age; also any liability to illness, and the liability of his inability to earn money, or for any other reasons which the testimony may show, — inability to get employment, injury to any part of his person which might impair one’s ability to earn money; you should, on this question, consider everything that would be likely to affect, favorably or unfavorably, his power to earn money.
“ On this question, gentlemen of the jury, I think it best to read you the following provision of law, which now exists, and which counsel on both sides in their argument to you commented upon, so that there will be no mistake as to the law; and, as both counsel seem to differ a little about it, in view of that difference in the statement of the law to you, I thought best for me to read this section of the statute, which is plain English, and you can understand it fully as well or better than if I tried to state it to you in general terms. [The judge read to the jury section 4847, 2 Comp. Laws, requiring children within school ages to attend the public schools.]
“You should weigh, gentlemen of the jury, with great care, this testimony upon the question of this boy’s claimed adaptabilities to draw and carve, if you find he had such adaptabilities, and you should only allow damages upon this branch — if you come to the question of damages— after the most careful consideration of the testimony bearing upon the question, and after satisfying yourselves from the testimony that he had- — -if he had — -such special adaptability to draw and carve as claimed by the plaintiff in this case, and, further, after being fully satisfied from the evidence that, if he did have such adaptability, he would have followed the business until arriving at 21 years of age. Would he have made a good workman at drawing, carving, etc.? Would he have followed it? Would he have received such wages as the witnesses testify are now being paid to draftsmen ? Consider all these questions, all the testimony, all the matters and contingencies weighing for and against the question of his special adaptabilities, and decide it according to your own good judgment. Unless you are satisfied that he would have earned something because of this claimed drawing ability or his ability to carve, you must not allow anything for it. Now, I am not telling you, and do not mean by this instruction, that you should not nor that you should allow anything on this account. I leave it to you wholly as a question of fact, and simply give you that instruction in view of that feature in this case, so that you will consider that branch of the case with great care.”

It is insisted the following portions of the charge are incorrect:

“In considering the question of how much the_services of the said Leo Snyder would probably have been worth from the time of his injury up to the time that he was 21 years of age, over and above the expense of taking care of and clothing him and educating him in a manner which was probable that he would have been educated,” etc.
“In considering the question of the value of services, the jury have a right to consider, from the testimony there is in the case, what would probably be the number of years that the boy would attend school for the purpose of obtaining an education,” etc.

It is said the judge left the jury to speculate as to how many years of his minority the deceased would probably have attended school had he lived, and that the jury were not entitled to speculate upon the probable kind of an education the boy would have received, and the expense of it, and allow the railway company to offset it against his earnings.

These portions of the charge should be read in connection with what preceded' and followed them. When that is done, we think the criticism is not well taken. The future of the boy was problematical. No definite plans had been made for his education. He had earned small sums of money, but it could not be said what sums he would be able to earn in the future. The testimony was not definite, nor was it conclusive. It was for the jury to take into consideration. We think the instruction was in harmony with the cases of Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Rajnowski v. Railroad Co., 74 Mich. 20 (41 N. W. 847); Hurst v. Railway, 84 Mich. 539 (48 N. W. 44); City of Elwood v. Addison, 26 Ind. App. 28 (59 N. E. 47).

The following portion of the charge was objected to:

“The jury is instructed that the fact, if it be a fact, that the boy Leo Snyder was in the habit of making pictures or drawings, or was interested in that line of work, would not by any means establish as a fact in this case that he would at some future time be able, through any such work, to earn any large sums of money.”

It is said that by this instruction the court invaded the province of the jury, and indicated what the evidence established. We cannot agree with counsel in this conclusion, but think the statement of the court is justified by the facts and experiences of daily life. While it may be probable that a bright boy, selecting a calling for which he has a natural aptitude, will be successful in that calling, it does not follow as an established fact that a bright boy, who has shown an aptitude for a given calling, will follow that aptitude, select the calling, and make a success therein. When the judge followed this portion of his charge by instructing the jury that this testimony might be considered in connection with all the other testimony in determining the earning capacity of the boy, we think he properly instructed them.

The other criticisms of the charge have been considered, but will not be discussed.

We now come to the question, Did the court err in refusing a new trial because the verdict was inadequate ? In giving his reasons for refusing a new trial the circuit judge said:

“Plaintiff insists that, the jury once determining that plaintiff was entitled to damages, then the jury was legally obliged to find damages larger in amount than were found. If the testimony in this case had all, or practically all, tended to show a minimum sum as a value of the services of plaintiff’s intestate over and above his care, maintenance, and support, and the jury had found a sum for the plaintiff much below a minimum sum as shown by the testimony, there might, under such circumstances, be good reason for urging that this verdict was inadequate. Defendant offered several witnesses who testified that a boy such as plaintiff’s intestate would earn nothing for his parents, over and above his maintenance and support, up to the time he became 21 years of age; so that there was testimony from which the jury could legitimately decide that plaintiff should recover nothing, or that he should recover some sum between nothing and the highest amount warranted by the testimony of plaintiff’s witnesses. In a case such as this one, and under the same state of facts, a court ought to hesitate "long before setting aside a verdict of a jury on a claim that the damages allowed are too small, and, before setting aside a verdict on that ground, the court should be able to conclude from the testimony, and be fully satisfied, that the testimony does not warrant the verdict as to the amount. I cannot say, from the testimony in this case, that the jury was not entirely justified in fixing the amount of the damages at $250, and must hold the amount as found fully sustained by the testimony.”

In Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482), Justice Champlin, in speaking for the court, said:

“The statute authorizes the jury, in every case of this kind, to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered. Under this statute the jury are not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted. They cannot give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances. The rule of damages in actions for torts does not apply to actions of this kind. The statute gives the right to damages; but it has been held, with rare exceptions, that they must be confined to those damages which are capable 'of being measured by a pecuniary standard. Cooley, Torts, 271, and cases cited in note 2.”

See, also, Rajnowski v. Railroad Co., 74 Mich. 20 (41 N. W. 847); Hurst v. Railway, 84 Mich. 539 (48 N. W. 44.

There was no testimony from which the earning capacity of this boy could be computed to a mathematical certainty. It was a question about which different persons might and would disagree. Such testimony as the parties were able to produce was offered on each side. The weight of that testimony, its credibility, and the conclusions to be drawn from it were for the jury.

There is a discussion of when the circuit judge ought to grant a new trial in Wheeler v. Jenison, 120 Mich. 422 (79 N. W. 643), and it will not be necessary to repeat what was said there. We are not satisfied the court erred in the exercise of his discretion in refusing a new trial.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    TEAKLE v. MOORE.
    1. Building Contracts —Extra Work — Authority of Architect.
    Where all of the contracts for the different portions of the work on a building referred to the supervising architect as the agent of the owner, and recognized his authority to order extra work, and such architect, in order to expedite the construction of the building, which had been delayed, entered into an arrangement with the contractor for the woodwork whereby the latter was to erect a scaffold for the use of the other contractors, but not necessary for his own use, and the owner was to pay therefor, the other contractors consenting to the deduction of the cost from their payments, the owner was bound by such agreement, though each contract provided that the contractor should furnish his own scaffolding.
    3. Same — Destruction of Building.
    One who contracts, for a gross sum, to do the carpenter work on a building, payments to be made from time 'to time as the work progresses, reserving 10 per cent, until 10 days after completion, may, on the falling of the roof through the negligence of the owner's agent, recover for the part of the work done, though it be injured by the fall.
    3. Same — Construction of Contract — Specifications.
    A condition contained in the general specifications for a building, furnished for the guidance of bidders, but not found in the carpenter’s specifications and contract, nor specifically referred to therein, forms no part of such contract.
    4. Same — Extra Work — Notice of Claim.
    A provision in a building contract that no claim shall be made for additional work unless done pursuant to an order from the architect, and that notice of all claims shall be given to the architect in writing within 10 days after the commencement of the work, does not make such notice a prerequisite to the validity of a claim, but if the architect gave an order for such work, knew of its commencement and progress, and has certified to its performance, a recovery may be had therefor.
    Error to Wayne; Hosmer, J.
    Submitted June 5, 1902.
    (Docket No. 43.)
    Decided September 17, 1902.

      Assumpsit by Robert T. Teakle and George W. Golden, copartners as Teakle & Golden, against James H. Moore, for labor performed and materials furnished in the construction of a building. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and Henry L. Lyster, for appellant.

      Maybury & Lucking, for appellees.
   Moore, J.

Prior to July 28, 1898, the defendant had caused plans to be prepared, and entered upon the construction of a theater building on Monroe avenue, Detroit. Six different contracts were made between defendant and others for the construction of different portions of the work, which contracts were similar in form and conditions to a contract entered into between him and the' plaintiffs on the 28th of July, 1898. Contracts for the masonwork, the ironwork, and some other portions of the work were made before the contract with the plaintiffs was made. The material portions of the contract are as follows:

“John Scott & Co.,
“Architects,
“ Detroit, Mich.
“This agreement, made the twenty-eighth day of July, in the year one thousand eight hundred and ninety-eight, by and between Teakle & Golden, of the city of Detroit, county of Wayne, and State of Michigan, parties of the first part (hereinafter designated the ‘contractors’), and James H. Moore, of the city of Detroit, county of Wayne, and State of Michigan, party of the second part (hereinafter designated the‘owner’), * * *.
“The contractors shall and will well and sufficiently perform and finish, under the direction and to the satisfaction of John Scott & Co.> architects (acting as agents of said owner), all the work included in the carpenter and joiner work and hardware of a theater building to be erected on the north side of Monroe avenue, between Campus Martius and Farmer St., in the city of Detroit, county of Wayne, and State of Michigan, agreeably to the drawings and specifications made by said architects (copies of which have been delivered to the contractors), and to the dimensions and explanations thereon, therein, and herein contained, according to the true intent and meaning of said drawings and specifications and of these presents, including all labor and materials incident thereto, and shall provide all scaffolding, implements, and cartage necessary for the due performance of the said work.
“Should it appear that the work hereby agreed upon and intended to be done, or any of the matters relative thereto, are not sufficiently detailed or explained on the said drawings or in the said specifications, the contractors shall apply to the architects for such further drawings or explanations as may be necessary, and shall conform to the same as part of this contract, so far as they may be consistent with the original drawings; and, in event of any doubt or question arising respecting the true meaning of the drawings or specifications, reference shall be made to the architects, whose decision thereon shall be final and conclusive. It is mutually understood and agreed that all drawings, plans, and specifications are and shall remain the property of the architects.
“ Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architects, and the sum herein agreed to be paid for the work according to the original specifications shall be increased or diminished, as the case may be. * * *
“The contractors shall and will proceed with the said work, and every part and detail thereof, in a prompt and diligent manner, and shall and will wholly finish the said work according to the said drawings and specifications, and this contract, on or before the first day of October, in the year one thousand eight hundred and ninety-eight, and, in default thereof, the contractors shall pay to the owner —■—■ dollars for every day thereafter that the said work shall remain unfinished, as and for liquidated damages.
“Should the contractors be obstructed or delayed in the prosecution or completion of the work by the neglect, delay, or default of any other contractor, or by any alteration that may be required in the said work, or by any damage which may happen thereto by fire, or by the unusual action of the elements, or by the abandonment of the work by the employés through no default of the contractors, then there shall be an allowance of additional time beyond the date set for the completion of said work. * * *
“The contractors shall make no claim for additional work unless the same shall be done in pursuance of an order from the architects, and notice of all claims shall be made to the architects in writing within ten days of the beginning of such work. * * *
“And it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractors for said work and materials shall be two thousand and sixty-two ($2,062) dollars, subject to additions or deductions on account of alterations as hereinbefore provided, and that such sum shall be paid in current funds by the owner to the contractors in installments as follows: From time to time as the work progresses, reserving 10 per cent.; it being understood that the final payment shall be made within ten (10) days after this contract is completely finished: Provided, that in each of the said cases the architects shall certify in writing that all the work upon the performance of which the payment is to become due has been done to their satisfaction. * * *
“And the said owner hereby promises and agrees with the said contractors to employ, and does hereby employ, them to provide the materials and to do the said work according to the terms and conditions herein contained and referred to, for the price aforesaid, and hereby contracts to pay the same at the time, in the manner, and upon the conditions above set forth.”

Attached to this contract were specifications dated July 9, 1898, entitled “Carpenter Specifications,” etc. Before the contract had been made, “general specifications” had been furnished to all the contractors, to enable them to make their bids. One of the conditions attached to the general specifications reads:

“The owner and architects shall have full power to make any alterations during the progress of the work which they may deem necessary or advisable, and such alterations shall not affect or make void the contract.
“No claim for extra work shall be considered unless the price for the same shall have been agreed upon in writing between the owner and architects prior to the commencement of the same. In the case of work being omitted, a deduction shall be made from the amount of the contract at the same rate as provided in the contract for similar work.”

No such condition was attached to the “carpenter specifications.”

The plaintiffs had done a small amount of work before the contract was entered into. After the contract was made, they entered upon its performance. The various contractors were to erect such scaffolding as their work made necessary. It is the claim of plaintiffs that the work which should have been done prior to their work was delayed; that, for the purpose of hastening this work, they were requested by the architect to build a large scaffold, which could be used by the other contractors, but which was not necessary to enable plaintiffs to perform their contract; and, in reply to their inquiry as to who would pay for it, they were assured that Mr. Moore would pay for it. The testimony of the architect does not differ materially from the testimony of the plaintiffs. Among other things, he testified:

Q. Did you have any authority from Mr. Wiggins or Mr. Moore to order a scaffold there ? (Objected to as incompetent, and exception noted.)
“A. I had no special — no authority from them.
Q. Was the scaffold a part of the plans and specifications ?
“A. The scaffold was necessary for the carrying out of the work.
Q. Was it a part of the plans and specifications ?
“A. The scaffold was necessary to carry out portions of the work, and in that way would be part of the plans and specifications.
Q. Mr. Scott, the contract entered into by the different parties provided that the scaffold should be furnished and provided by the contractors, did it not ?
“A. Yes, sir.
Q. And no expense whatever was to be fixed upon the owner ?
“Mr. Lucking: Objected to. As far as that is concerned, part of the contracts had never been let at this time that they undertake to charge part of this to.
“ The Court: You heard the testimony of Mr. Golden on that subject as to the general order. Did you give a general order to build the scaffold for the expedition of the building ?
“A. Yes, sir. Well, I gave the order to build the scaffold; yes, sir.
Q. Did you have any order from Mr. Wiggins or Mr. Moore to do that ?
“A. No, sir; not at that time.
“ Q. Did you state to Mr. Teakle or Mr. Golden, at the time they were building this scaffold, that it was to be paid for by the other contractors ?
“A. I stated to Mr. Golden that I wanted the scaffold built, and that the cost would be charged up against the different contractors. That is the sum and substance of what I said to him, as far as I remember. I may have told him that I would see that it was deducted from them out of their contract price. I presume I may have done so, but I do not remember exactly our exact words. I did not have any consent in writing from the owner to order that work. * * *
“ Q. Did you, in your judgment, consider it a good move to build that scaffold to hurry the construction ? (Objected to on the ground that he built the scaffold, according to his own statement, for the contractors. Objection overruled. Exception for defendant.)
“A. Yes, sir. In this certificate it is stated that the accounts were to be charged to certain contractors, and to be deducted from their contracts. That was my understanding with the contractors, that they were to pay their share of it, and I was to deduct it from their contracts, and pay it to Teakle & Golden.
“ Q. And you, of course, were acting for Mr. Moore ?
“A. I was architect of the building.
Q. Well, you were acting for Mr. Moore in that respect? Nobody else could have deducted it out of their contracts, could they ?
“A. No. I never told Teakle & Golden that they would have to look to those contractors for their pay. I do not remember telling Mr. Golden whom he was to get his pay from. I know I ordered the work. I do not remember that there was any question raised about the pay part of it in the beginning. I intended to deduct it from the contracts ; that Mr. Moore should deduct it from the contracts.
‘ ‘ Q. And Mr. Moore pay it to Teakle & Golden; isn’t that so ?
“A. Well, yes; that would be the way that I should do it. Mr. Thompson agreed with me to allow me to deduct his share out of his account. He had charge of the ironwork. Mr. Stapleton agreed to pay, as plasterer, a pro rata portion. They all agreed to that. The pro rata would be fixed by general agreement among all the contractors. * * * In making the arrangement for this scaffold as general superintendent of the building, I felt that the owner would not lose anything in that way if I took the total amount of it out of certain contracts, and paid it to the other people; and, if the building had gone along without the disaster, there probably never would have been any trouble about it.
Q. And, as general superintendent over all those contractors, you felt it was fully within your powers to do that, didn’t you ?
“A. Yes, I felt I had authority to do it.”

The plaintiffs entered upon the construction of this scaffold. On the 5th of November, 1898, the roof of the building fell. The record does not disclose the extent of the injury, or whether all the work performed by the plaintiffs was destroyed or not. After the roof fell, the original architects did no more work upon the building, only to help take care of the property for three or four weeks thereafter. A new architect was put in charge. The effect of the falling of the building was to make it impossible for the plaintiffs to complete their contract in the fall. Instead of the defendant going on with the completion of the building, a company was formed, known as the “Wonderland Company, Limited.” What the relations of Mr. Moore were to this company does not appear. After the building fell, an itemized statement of account was made, and presented to the original architects, who indorsed it:

“The above work, amounting to $1,237.82, was performed in accordance with the plans and specifications on Wonderland Building up to November 4th, 1898. The amount for scaffold, $684.90, is to be charged to the Peninsular Engineering Co., Alphonse De Mann, W. S. Staple-ton, Electric Wire & Repair Co., and Wm. Wright Co., and deducted from their contracts.”

Demand was made upon the defendant, who refused to pay the account, except $280. In the meantime building material had increased in price. The following notice was sent:

“New Wonderland Theatre,
“Detroit, Mich.
“The Wonderland Co. (Limited),
‘ ‘ Proprietors.
“Detroit, Mich, July 18, 1899.
“Messrs. Teakle & Golden,
“ Contractors.
Gentlemen: Referring to the statement of your Mr. Teakle, made to me some days ago, that unless you were paid for or guaranteed the payment for the scaffolding originally built by you in the Wonderland Theatre Building, you would not go on with your contract for the carpenter work on said building, I am instructed by the Wonderland Co., Ltd., to notify you that they will not •pay for or guarantee the payment for said scaffold, and, assuming that your decision in the matter was final, to notify you that, unless you signify your intention in writing to go on with said work within 24 hours from receipt of this, they will make arrangements with some other party to complete your contract.
Sincerely yours,
“ J. M. Wood,
“Architect.”

This suit was brought. After considerable testimony was put in by the plaintiffs, the following admission was made in open court:

“We admit that the scaffold, as charged for in accordance with the bill, is $684.91; that the amount of work performed under the contract, according to the plaintiffs’ charges, amounts to $316.16; and that the balance, $284.26 worth of work, was done outside of the contract, and outside of the scaffold, of course, for which last amount we are liable. The other two amounts we contest.”

Several witnesses were sworn in defense. It is not made to appear very clearly what caused the roof to fall. It was stated on the cross-examination by Col. Wood:

“I looked over the ruins with a view to ascertaining the cause of the fall of the roof. I studied it as an expert.
Q. Will you state to the jury the cause of the fall of the roof ? (Objected to as incompetent and immaterial. Exception noted.)
“A. I stated at the inquest that it was my belief that the fall of the roof was due to improper design in the construction of the trusses, and the carelessness in the supervision of the details. That was very apparent.”

The record does not show that any requests to charge were presented to the trial judge. He was of the opinion that, under the facts disclosed by the record, the plaintiffs were entitled to recover the full amount of their claim. The case is brought here by writ of error.

It is claimed that, as each contractor had agi’eed to furnish his own scaffolding, Mr. Scott was not authorized to make the contract he did. We cannot agree with counsel. Scott & Co. were the supervising architects. They were described in all the contracts as “acting as agents of ■said owner.” The plaintiffs’ contract provided that their work should be completed by October 1st. It is evident from the situation when the roof fell that the work necessary to be done before the carpenter work could be completed was delayed. The architects were acting for the ■owner in all the contracts. It is perfectly apparent that if, instead of each contractor putting up and taking down such scaffolding as he might need, a scaffold should be built that would answer the needs of all the contractors, it would save expense and expedite the work. We think the architects, for the purpose of accomplishing this, might arrange that the carpenters should put up this scaffold, that Mr. Moore should pay them, and, by agreement with the other contractors, the cost should be prorated among them, and deducted from the amount to be paid upon their several contracts. Had the roof not fallen, just this would have been done, and no question raised.

Defendant claims, where a building in process of erection is destroyed without the fault of either the owner or contractor, neither party can recover from the other on a nonapportionable contract, and that this is a nonapportionable contract; citing Fildew v. Besley, 42 Mich. 100 (3 N. W. 278, 36 Am. Rep. 433), and a great many other cases. The authorities are not in harmony with the contention of counsel. See Cleary v. Sohier, 120 Mass. 210; Lord v. Wheeler, 1 Gray, 282; Butterfield v. Byron, 153 Mass. 522 (27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654); Clark v. Busse, 82 Ill. 515; Rawson v. Clark, 70 Ill. 656; Schwartz v. Saunders, 46 Ill. 18; Cook v. McCabe, 53 Wis. 250 (10 N. W. 507, 40 Am. Rep. 765); Clark v. Franklin, 7 Leigh, 1; Hollis v. Chapman, 36 Tex. 1. We do not think it necessary upon this record to try to harmonize them or to decide between them. It is believed the cases cited may be distinguished from the case at bar. In all of them it was admitted or proven that the building was totally destroyed without the fault of the owner. In Brumby v. Smith, 3 Ala. 123, great stress is laid upon the fact that payment was not to be made until the work was completed, and, as the work was never completed, payment did not become due under the contract. In the case of Siegel, Cooper & Co. v. Eaton & Prince Co., 165 Ill 550 (46 N. E. 449), it appeared that the premises were totally destroyed by fire without the fault of the owner. In that case, as to the work upon which a payment was due at the time of the fire, plaintiff was allowed to recover. As to the balance the court held that, as payment.was not to be made until the elevator was put in running order, and as it was never put in running order, that payment did not become due by the terms of the contract.

In the case of Fildew v. Besley, 42 Mich. 100 (3 N. W. 278, 36 Am. Rep. 433), the agreement was for a completed building, for which was to be paid $250. In disposing of the case the court said:

“ It certainly does not clearly appear but that the contractors might yet go on and substantially perform the agreement on their part. This addition formed a complete building of and by itself. True, it was to be attached in part to the old, but not in so essential a manner as to prevent the erection thereof without the support which it would otherwise have derived therefrom. This work could have been carried on and fully performed without any reference to the main building in any important particular. A removal of the main building by the owner thereof would have excused the contractors from connecting this addition therewith, but would not have prevented their recovering the full contract price had they in all other respects complied with their agreement.”

In the case at bar plaintiffs were not to make a completed building; they were to construct simply a portion of it. It is not made to appear that the building was wholly destroyed, and, as to the damage which was done, that it was without the fault of defendant. While very little proof was offered upon that subject, what appears is to the effect that the casualty was caused by improper designs and careless supervision by the persons designated in the contract as “acting as agents of said owner.” The contract also provides that payment for the work shall be made from time to time as the work progresses, reserving 10 per cent., the final payment to be made within 10 days after the contract is completely finished. Take it altogether, it is a very different case from those cited by counsel.

It is said, as them was no agreement made in writing between the owner and the architects for the price of the extra work prior to its commencement, as provided in the condition attached to the general specifications, there can be no recovery. That condition was not attached to the “carpenter specifications,” which were attached to the contract for the guidance of the plaintiffs, and we do not think it was any part of the contract.

It is also urged that, as there was no notice of plaintiffs' claim given to the architects within 10 days of the beginning of the extra work, there can be no recovery. We do not so construe the contract. It provides that the contractors shall make no claim for additional work unless the same shall be done in pursuance of an order from the architects, but it does not make it a prerequisite to the validity of such a claim that notice in writing of the claim shall be given to the architects within 10 days of the-beginning of such work. In this case it clearly appears, that the order for the work was given by the architect; that he knew of its commencement and progress; that he afterwards certified that it was performed in accordance with the plans and specifications. It is not made to appear that any error was committed for which the case ought to be reversed.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


author: Hooker, C. J.

text:
    HENDERSON v. DETROIT & MACKINAC RAILWAY CO.
    1. Choses in Action — Assignment—Consideration.
    Where a claim against a railroad company for an injury to-cattle has been regularly assigned, it is no objection to the -right of the assignee to recover thereon that the only consideration for the assignment was his agreement to turn over the amount collected to the assignor.
    2. Same — Action—Jurisdiction.
    The. right of an assignee of several claims to maintain a single action thereon in the circuit court is not affected by the fact that, in the absence of such assignment, they would all have been within the exclusive jurisdiction of h justice.
    Error to Alpena; Emerick, J.
    Submitted June 5, 1902.
    (Docket No. 16.)
    Decided September 17, 1902.
    Case by Robert Henderson against tbe Detroit & Mackinac Railway Company for injuries to cattle. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles B. Henry, for appellant.
   Hooker, C. J.

The plaintiff and two or three other persons had claims against defendant for injuries to their respective cattle. The plaintiff took assignments from the others, of which the following is a sample of all:

“For a valuable consideration, to me in hand paid by Robert Henderson, the receipt whereof is hereby acknowledged and confessed, I herein and hereby soil, assign, transfer, and set over to said Robert Henderson all my right, title, and claim for damages against the Detroit & Mackinac Railway Company for injuries done to my cow on the 5th day of May, 1901, and I herein and hereby authorize and empower said Robert Henderson, in his name, to commence suit and prosecute the same against the Detroit & Mackinac Railway Company for the damages and injuries I sustained on account of the injuries to my said cow.
“Dated August 13th, 1901.
“Ed Fitzpatrick.”

The evidence shows that no agreement was made as to the compensation to be made for the assignments, except that it was agreed that whatever plaintiff should collect out of these claims should be turned over to the respective assignors. The assignments were admitted under objection, and defendant’s counsel urges that it was error to admit them and to permit the jury to consider them. Counsel says in his brief that:

‘ ‘ The only thing I complain of is the methods which these parties have employed in attempting to unite these causes of action. Had the several claimants not united their claims in this unique manner, the defendant would not have been subjected to a trial in the circuit court, as their claims would all have been exclusively within the jurisdiction of the justice of the peace; but, having attempted to unite them, they should have advanced in support thereof some substantial and concerted action as between themselves. They should show some agreement of a sufficiently definite character to constitute an assignment, and it should not be permitted to rest in so careless and indifferent condition. It is perfectly evident from the testimony of the plaintiff that the minds of the assignors and the assignee never met on a common plane, other than that the plaintiff was to sue in his own name for their united claims, and the question of consideration was left to abide the result of the suit.”

No claim is made that these claims could not be assigned, but it seems to be defendant’s contention that, inasmuch as the plaintiff’s obligation is to turn over only what he recovers upon the several claims, he did not become the owner of them, and therefore could not sue upon them. We think this is not a correct view. The claims might be the subjects of gift, and in such case the defendant could not object. The instruments, upon their faces, are fair assignments, and the defendant has no interest in the consideration, as we have frequently held.

There was no obligation on these parties to have their respective claims prosecuted in justice’s court. While parties cannot join in a suit upon claims which are individual, one may become owner, and sue upon all in one action.

No question arises over the pleading.

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.


author: Grant, J.

text:
    FISCHER v. FISCHER.
    Divorce — Adultery—Evidence.
    Evidence in a divorce case reviewed, and held to establish, a charge of adultery.
    Appeal from Houghton; Streeter, J.
    Submitted June 6, 1902.
    (Docket No. 23.)
    Decided September 17, 1902.
    Bill by Joseph Fischer against Margaret Blau Fischer for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Larson & Galbraith, for complainant.

      A. W. Kerr, for defendant.
   Grant, J.

Complainant seeks a divorce from his wife on the ground of adultery. The court denied a decree because the proof was not “absolutely convincing.” We are compelled to reach a different conclusion. It is difficult to prove adultery more clearly than it is proven in this case. The adulterous disposition and the opportunity to gratify it are shown by the most positive testimony of witnesses wholly disinterested. Defendant and her corespondent, Plyer, are shown to have occupied the same room and the same bed on several occasions. They rented rooms in Ashland, Wis., where they lived together, and were known as Mr. and Mrs. Plyer. She spoke of herself as Mrs. Plyer, and he treated her in the presence of others as his wife. The question being one of fact, it is unnecessary to review it.

Decree reversed, and decree entered in this court for complainant.

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


text:
    GEROW v. HYDE.
    Garnishment — Appeal erom Justice’s Court — Disclosure — Amendment.
    A garnishee, against whom a judgment has been rendered in justice’s court, may, on appeal, be permitted to file a plea, and show that his disclosure was a mistaken one, and that he did not owe the defendant, but another person.
    Error to Cheboygan; Shepherd, J.
    Submitted July 31, 1902.
    (Docket No. 105.)
    Decided September 17, 1902.
    Garnishment proceedings by Arthur M. Gerow against Robert N. Hyde, as garnishee of Isaac J. Stewart. Erom a judgment for defendant, plaintiff brings error.
    Affirmed.

      C. S. Reilley, for appellant.

      Cross & Harpster, for appellee.
   Hooker, C. J.

The plaintiff recovered a judgment against one Stewart in justice’s court in 1897. He commenced garnishee proceedings against Hyde in 1900, before the successor in office of the justice of the peace who rendered the judgment against Stewart. Garnishee process being served, Hyde filed his disclosure, admitting his indebtedness, on October 29,1900, and on October 30,1900, the return day of the garnishee summons, in the absence of the garnishee, who did not appear, judgment was rendered against him. An appeal was taken to the circuit court by Hyde, who was permitted to file a plea of the general issue against plaintiff’s objection. Upon the trial, evidence was offered tending to show that the disclosure was a mistaken one, and that the garnishee in fact did not owe Stewart, but another person, and this the jury must have found to be true. It is contended that he should have been bound by the disclosure, and that the court erred in receiving the plea and admitting this defense.

Several Michigan cases indicate that it is the duty of a garnishee to avoid compromising the legal rights of the original defendant by waiver or untrue admissions, and it cannot be doubted that voluntary submission to a judgment, with knowledge that such defendant was not his creditor, would not protect him against the real creditor. See Hirth v. Pfeifle, 42 Mich. 31 (3 N. W. 239) ; Laidlaw v. Morrow, 44 Mich. 547 (7 N. W. 191). In this case the testimony, which is all returned, shows clearly that, after disclosure by the garnishee defendant, a claim was made against him for the money due for the articles purchased, which he could not safely ignore. It would have been a hardship to hold him bound-by his disclosure, and it was competent for the court to permit the proceedings to be amended by tihe filing of a plea which would support the defense. See 1 Comp. Laws', § 929. Inasmuch as the defendant’s claim is supported by the undisputed evidence, it is unnecessary to discuss other questions.

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.


text:
    STYLES v. VILLAGE OF DECATUR.
    1. Municipal Corporations — Defective Sidewalks — Notice-Evidence.
    In an action against a village for injuries caused by the tipping of a loose board in a .sidewalk, attributed by plaintiff to the rotten condition of the stringers, evidence as to the general condition of the walk in the vicinity of the place of the accident is admissible.
    2. Same — Repairs.
    The fact that repairs were made to the walk shortly before the accident does not exclude an inquiry as to its previous condition, where there is room for the jury to find that the walk was not thereby rendered reasonably safe and fit for travel.

      8, Same — Section of Stringer.
    A piece of a stringer taken from the walk in close proximity to the place of the accident, hut not at the exact spot, is competent evidence to show the condition of the walk.
    4. Same — Contributory Negligence — Question for Jury.
    The fact that plaintiff knew that the boards in the walk were so loose as to rattle when walked on does not conclusively establish her negligence in attempting to pass over it.
    5. Same — Instructions.
    Where there is testimony tending to show that the accident occurred after dark, it is not error to instruct the jury that it was the duty of the village to keep its sidewalks in a condition reasonably safe and fit for travel by night as well as by day.
    6. Same — Witnesses—Interest.
    In an action against a village, it is within the discretion of the court to permit a witness for defendant to be cross-examined with reference to his interest as a taxpayer.
    7. Trial — Evidence—Opinion of Witness.
    A reversal will not be granted because a witness volunteered an opinion, where he was at once admonished by counsel that the answer was improper, and immediately testified to the facts.
    8. Same — Depositions.
    Error will not lie on the admission of a deposition to which no exception was taken.
    9. Same.
    Where a deposition was taken under a stipulation that it should be used only in case the witness should be unable to attend court, and she made affidavit that she was physically unable to attend, stating her condition and ailments, which showing was not contradicted except by the unsworn statements of counsel, it was not error to permit the deposition to be read.
    10. Same — Hypothetical Questions.
    An objection to a hypothetical question on the ground that it assumes facts not proved, to 'be available on error, should point out the facts assumed.
    11. Same — Requests to Charge.
    The refusal of requests to charge is not error where they are fully covered by the general charge.
    12. Personal Injuries — Damages—Question for Jury.
    In an action for personal injuries, the question of the extent of plaintiff’s injury is for the jury, on conflicting testimony, though her physician testifies that her injury is trivial.
    13. Same.
    Plaintiff in such action may recover what is reasonably compensatory, including the services of a nurse who has made no charge.
    14. Same.
    Fright and suspense may be inferred from circumstances, and treated as an element of damage.
    15. Same — Evidence—Res Gestae.
    Statements made by plaintiff immediately after the injury, to the effect that she must not be touched, and would have to straighten herself up little by little, are admissible as part of the res gestee.

    Error to Van Burén; Carr, J.
    Submitted June 5, 1902.
    (Docket No. 20.)
    Decided September 17, 1902.
    Case by Adelpbia A. Styles against the village of Decatur for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. L. Moulton and Dallas Boudeman, for appellant.

      David Anderson, for appellee.
   Hooker, C. J.

The plaintiff, a married woman, recovered a verdict and judgment of $750 against the defendant village by way of recompense for an injury suffered through a fall occasioned by a loose board in a sidewalk. The defendant has appealed. The accident is said to have happened in the evening after dark. She was walking with two of her children, when she was tripped by the board, which flew up in front of her as one of the children stepped upon its end, outside of the stringer. There was evidence tending to show that the walk was old, and that the boards had been loose for a long time. The plaintiff testified that she knew that the boards in the walk were accustomed to rattle as they were walked upon.

Several witnesses were examined, and testified in relation to the walk, and error is alleged upon the ground that this testimony was not confined to the place of the accident, and that it was not properly restricted in point of time. The accident happened near an alley, and the testimony referred to a board walk in front of a lot owned by McKay, upon which the woman fell. It was plaintiff’s theory that the stringers were rotten, and did not hold nails well, and it was competent to show the general character and condition of that walk. Campbell v. City of Kalamazoo, 80 Mich. 660 (45 N. W. 652); O’Neil v. Village of West Branch, 81 Mich. 546 (45 N. W. 1023); Fuller v. City of Jackson, 92 Mich. 205 (52 N. W. 1075); Grattan v. Village of Williamston, 116 Mich. 463 (74 N. W. 668).

Witness Congdon was asked to state the condition of the walk, and replied that he did not think it good. He proceeded to describe it. Mrs. Clifton answered a similar question by saying that it appeared to be in bad condition. Plaintiff’s counsel at once admonished her that her answer was not proper, and asked her to state the shape that it was in. Both questions were objected to when asked, and an exception was taken to the answer given by Mrs. Clifton. It is obvious that, if the witnesses gave opinions of the condition of the walk, they were not asked to do so, and counsel could not well have prevented it. It was corrected at once, and should not be made a ground for a reversal of the case.

One Gillum testified that he repaired the walk a short time before the accident, and it is insisted that this made testimony regarding its previous condition immaterial. He was called by the plaintiff, and testified that he was street commissioner; that he found this walk in front of McKay’s premises in bad condition, the stringers gone,— rotted out; that he could not nail through and get the boards to stay down; that he reported that condition to the council; and that he was directed to take stuff and patch it up. He visited the place and nailed the board in. The stringer was so that it wouldn’t hold the nails; and he said that he “kind of toe-nailed them crossways to the other boards.” That the council had notice of the defective condition of this walk, if Gillum’s testimony is true, admits of no doubt. Their duty was then to put it in a condition reasonably safe and fit for travel. That duty was not discharged by sending a man to repair it. It was therefore for the jury to determine whether the repairs made by Gillum were such as to render the walk reasonably safe and fit for travel. Counsel beg the question when they ask us to assume that Gillum’s repairs were adequate because his statement that he made repairs is not directly contradicted.

We think no error was committed in admitting the depositions. No exceptions were taken to one, and the condition upon which the other was to be read was complied with. There was prima facie proof that the witness could not attend court, and no attempt was made to contradict it, except by the unsworn statement of counsel.

The hypothetical question objected to is not open to the objection made, as there was testimony which warranted it. Moreover, the objection, when made, was very general, and did not point out what facts were assumed by the question.

A piece of wood was offered upon the claim that it was a part of the stringer of the walk. It was not claimed that it came from the exact spot where the accident occurred, but that it was a part of the stringer in immediate proximity. It was said to have been taken from the walk after it had been taken up. We think the testimony was competent.

It is unnecessary to discuss the questions raised upon the testimony of witnesses Potts and Shockley, further than to say that, if the questions asked the former were improper, they elicited no harmful testimony, and it was within the discretion of the circuit judge to permit questions tending to show Shockley’s interest as a taxpayer.

A number of errors assigned relate to the charge. Counsel asked that the jury be instructed that the plaintiff was guilty of contributory negligence and could not recover. We think that this was a question for the jury. A way might be in condition which would justify a court in saying that it was negligent to attempt to walk upon it; but that cannot be said of all highways that are out of repair, or that are not reasonably safe and fit for travel. They afford the only avenue for locomotion from place to place, and the exigencies of life are such that persons may go upon highways, though not in perfect condition, using reasonable prudence and care under the circumstances. Usually these questions are for the jury, as it was in this case. Mackie v. City of West Bay City, 106 Mich. 242 (64 N. W. 25); Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517). Other cases are also cited by counsel.

It was proper to leave the question of the extent of the plaintiff’s in jury to the jury, although the physician called to see her did testify that her injury was trivial.

We think the court did not err in refusing to give the requests of counsel. Some of them have been covered by what has been said, and of others it is sufficient to say that the charge as given covered their substance.

We think it was competent for the jury to award damages for plaintiff’s expenditures in and about her sickness, and she was under no obligation to this defendant not to compensate her nurse merely because she had made no charge, and she is not compelled to lose her damages of any kind merely because she does not prove the amount with mathematical precision and certainty. The circumstances being laid before the jury, they ascertain the amount that it is reasonable to believe will be compensatory.

The court said to the jury that “fright and suspense may be treated as elements of damage.” If there was no direct proof of fear as to the consequences, and suspense, they are readily inferable from the circumstances, and. it was not error to leave these questions to the jury.

The statement of the plaintiff immediately after her fall was properly treated as a part of the res gestee; and, if this accident happened after dark, there was no error in stating to the jury that it is the duty of the village to keep its sidewalks in a condition reasonably safe and fit for travel by night as well as by day. There is proof that the accident occurred after 5 o’clock on the evening of December 19th, and that it was after dark. It was therefore proper to instruct the jury upon that theory.

The motion for new trial was passed upon by the circuit judge, and we think his order denying it should not be disturbed.

The judgment is affirmed,

Moore, Grant, and Montgomery, JJ., concurred.

      Viz.: Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 13 Am. St. Rep. 457); Fuller v. City of Jackson, 82 Mich. 480 (46 N. W. 721); Argus v. Village of Sturgis, 86 Mich. 344 (48 N. W. 1085); McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 35 Am. St. Rep. 561); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7); Grattan v. Village of Williamston, 116 Mich. 462 (74 N. W. 668); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991).


text:
    MENOMINEE LOAN & BUILDING ASSOCIATION v. LOVELL.
    Building and Loan Associations — Mortgages—Defenses— Improper Conduct of Business — Ultra Vires.
    While a stockholder in a building and loan association has a right to insist that its business shall be conducted according to law, and may enforce such right in an appropriate proceeding, he cannot resist the foreclosure of a mortgage, given by him to the association as security for a loan, on the ground that its affairs have not been so conducted, or that his contract is itself ultra vires.

    Appeal from Menominee; Stone, J.
    Submitted December 12, 1901.
    (Docket No. 179.)
    Decided September 30, 1902.

      Bill by the Menominee Loan & Building Association ■against John Lovell and Martha M. Lovell to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      W. H. Phillips (H. O. Fairchild, of counsel), for complainant.

      Sawyer & Waite, for defendants.
   Hooker, C. J.

The bill in this cause was filed by the complainant, a building and loan association, to foreclose a mortgage upon defendant’s premises. A decree was granted in favor of the complainant, and the defendant has appealed.

Many points are raised in the brief, but the one which is in its nature meritorious is that the defendant was induced to take stock and a loan, according to the plan of business pursued by the complainant, upon the representation that the 'amount of his indebtedness would be fully paid in eight years if he made certain specified payments monthly. The learned circuit judge, who saw the witnesses, was of the opinion that the defendant had failed to prove the alleged statement that the stock would mature in eight years at the furthest, and we are of the same opinion.

At the time this defendant procured his loan, he was told that he could appear and bid for his loan, or he could send in his bid, and he chose the latter course, authorizing an officer of the company to bid 25 per cent. He asserts that he was informed that the association would not receive bids below 25 per cent., and his counsel insist that a practice that does away with competitive bidding is a noncorn. pliance with the statute, which entitles the borrowing stockholder to a loan for such premium as he may be able to bid it in for. The learned circuit judge found from the evidence that, while a motion to fix a minimum rate of premium at 20 per cent, was made nearly two years before the defendant made his application for this loan, it was not adopted, and that the offer to pay 25 per cent, was voluntary. In our opinion, he might have added explicitly, what, perhaps, should be inferred from his language, i. e., that the evidence failed to prove that he was given to understand that competitive bidding below 25 per cent, would not be considered by the directors, and that the evidence does not satisfactorily show that it would not have been. We therefore agree with him that the contract was not usurious.

We are also satisfied that the statements relied upon as warranties were the expressions of opinion, and that they do not affect the contract.

It is said that a rule was afterwards adopted fixing a minimum premium, and that,the rule was followed; that there came a time when inducements were offered for the withdrawal or surrender of immature stock; that money was loaned to persons who did not use it for the erection of homes; that nonmembers were induced to become members by the promise of loans; that the defendant was injured by complainant’s allowing corporations to become members and obtain loans; compromising disputed claims; referring bids to a committee before they were passed upon by the board; refusing to make a loan to a lady member from Marinette, upon the ground that their business from that locality would not justify it; payment of excessive salaries, etc. Whatever remedies may exist against the continuance of any or all of these practices, they do not constitute a defense to his mortgage, nor does the claim that the contract was ultra vires. As a stockholder, he has the right to insist that the business shall be conducted according to law, and may enforce his right by appropriate remedies; but he cannot permit practices which affect others as well as himself, and then claim advantages over them.

The decree is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.


text:
    JOHNSON v. DOON.
    I. Principal and Agent — Authority—Evidence.
    Evidence, in an action for the purchase price of property, reviewed, and held sufficient to justify a finding that the person buying it was still agent for defendants, notwithstanding their claim of a previous revocation of his authority.
    3. Same — Statements op Agent — Cross-Examination.
    Testimony of plaintiffs witness as to what P. told him about his agency is made admissible by its being first drawn out on defendant’s cross-examination of the witness that P. “told him of the arrangement he had made, whom he was working for, and all about it.”
    3. New Trial — Absence op Witnesses — Abuse op Discretion.
    The denial of a motion for a new trial, based on the alleged inability of defendants to secure the attendance of their witnesses, held not an abuse of discretion; defendants having failed to make a satisfactory showing of diligence.
    Error to Hillsdale; Chester, J.
    Submitted April 10, 1902.
    (Docket No. 54.)
    Decided September 30, 1902.

      Assumpsit by Addison E. Johnson and others against James W. Doon and Frederick J. Doon, copartners as J. W. Doon & Co., for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      C. A. Shepard and B. E. Sheldon, for appellants.

      Fellows & Chandler, for appellees.
   Moore, J.

The plaintiffs recovered a judgment against defendants for $335.30. The defendants have brought the case here by writ of error. It is claimed the court should have directed a verdict in favor of defendants.

The plaintiffs are farmers residing in this State. Defendants reside in Worcester, Mass., and are dealers in hay. Mr. William Pratt lived near Hudson, Mich., and made an arrangement with defendants by which he was to buy hay for them. It is claimed by plaintiffs that, while he was the agent of defendants, they sold him the hay for which this suit was brought. It is claimed by defendants that Mr. Pratt was never authorized by them to buy hay on credit; that, before the transaction in question, the agency of Mr. Pratt had been terminated; that the hay was sold to Mr. Pratt personally, and not to him as the agent of defendants.

"We cannot say, as a matter of law, which of these claims was established. It was shown that, after Mr. Pratt made his arrangement with defendants, he visited a bank, presumably for the purpose of doing business with it. The bank caused a letter to be written to defendants, and under date of August 11, 1900, received a letter, in which it was stated:

Dear Sir: Your letter of the 10th inst. at hand, and contents noted. We have engaged Mr. W. J. Pratt, of Prattville, Mich., to work for us on a salary, and we will pay the drafts which he may make on us with bills of lading attached. Yours very truly,
“ J. W. Doon & Co.”

It was also shown that Mr. Doon came on to Michigan, and rode about with Mr. Pratt, and represented that Pratt was buying hay for his firm. To use Mr. Doon’s language:

‘ ‘ I gave the farmers to understand that he was going to buy hay for me; yes, sir. I told the farmers that, if they sold Mr. Pratt any hay, they were to get their cash for it.”

It was also shown that Mr. Pratt bought hay of a number of farmers, and' stored' it in what was known as the ‘ ‘ mill property ” at Prattville, and after this suit was commenced the hay was claimed by defendants, and in at least one instance a balance which was unpaid on the hay by Mr. Pratt was paid by Mr. Doon. It is true Mr. Doon testified that the authority of Mr. Pratt was terminated before this hay was bought, and that his firm never received the hay; but it is claimed that his testimony was inconsistent with statements he made at the time the hay was attached, and we are not prepared to say it was not. We think the testimony made a question for the jury as to whether the agency existed when the hay was sold.

Complaint is made about the admission of the testimony of Mr. Bryant as to what Mr. Pratt told him about the' agency. If there was a doubt about the testimony, we think it was made admissible by the fact that it was first drawn out on the cross-examination that “after Pratt came back from the East he told me the arrangement he had made, and who he was working for, and all about it.”

Error is assigned upon the refusal of the court to give certain requests to charge. We think these requests, so far as they were proper, were fully covered in the general charge of the court.

After the verdict was rendered, a motion was made for a new trial. This motion was overruled, and this is assigned as error. The motion was based upon affidavits, which showed that one of the defendants had stated to their counsel what he expected to prove by witnesses living at Clayton, Hudson, and Prattville, which testimony would make a defense; that, at the time of the attachment proceeding, he saw one of his attorneys for but a short time, and arranged that he was to be notified in ample time to get ready for trial; that he received no notice until September 11th, when he was at Indianapolis; that he came to Hillsdale as soon as he could, arriving there September 12th, and found the trial then in progress, and upon the evening of that day he did all he could by ’phone to learn from parties at Hudson, Prattville, and Clayton what they might know, and to persuade them to attend court in the morning. It was also made to appear that one of the attorneys, who had recently been called into the case, and given charge of it, on September 3d wrote defendants the case had been set for September 11th, and, supposing defendants lived at Providence, R. I., wrote them there, and the letter was returned September 12th to the writer; that on the morning of September 10th one of the attorneys received a letter from Mr. Doon that he would be in Indianapolis, and telegraphed him, and the attorneys did all they could to get him there. The trial occurred at Hillsdale. Counter affidavits were filed, showing that this case was commenced by attachment in March; that Mr. Doon came on from Massachusetts, and secured a release of the property, and was about Hudson and Prattville for at least a week, and that during that visit he employed counsel; that the attorneys for said defendants stated in open court the last day of the trial that they had made an effort to get witnesses from Hudson and Clayton by telephone, but that they did not have subpoenas issued, and did not endeavor to have subpoenas served upon any of the parties whom they desired as witnesses ; that said attorneys for said defendants stated that the parties they had endeavored to secure were E. H. Cogswell, Mr. Gale, and Mr. Cole; that a train ran east from Hillsdale at 9:15 p. m.; that Hudson is east from Hillsdale about 16 miles, and Clayton about 22 miles; and that a train was due from the east about 9 o’clock a. m. It further appeared that, after Mr. Doon arrived, no application was made to postpone the case because Mr. Doon vfras not ready for trial, but the case was allowed to proceed ; Mr. Doon testifying at length, giving his version of the transaction. When a lawsuit is commenced, the parties to it are not justified in waiting until the case is about to be tried before looking up their testimony. Under the facts disclosed by the record, we are not prepared to say the circuit judge did not properly exercise his discretion in refusing a new trial.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    McTIVER v. TOWNSHIP OF GRANT.
    1. Pleading — Amendments—Clerical Error.
    Where a declaration shows, on its face, an attempt to describe a highway in defendant township, a clerical error in stating the number of the town and range may be corrected by amendment on the trial.
    2. Defective Highways — Contributory Negligence — Question por Jury.
    One is not necessarily negligent in attempting to drive over a corduroy road which he knows to be in a dangerous condition, where he also knows that the road is in constant use, and has no notice of any particular defect therein, and there is no other way by which he can conveniently reach his destination.
    Error to Cheboygan; Shepherd, J.
    Submitted June 4, 1902.
    (Docket No. 101.)
    Decided September 30, 1902.
    Case by Silas M. McTiver against the township of Grant for, injuries to horses, caused by a defective highway. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Cross & Harpster, for appellant.

      C. IP. Hull (C. S. Reilley, of counsel), for appellee.
   Montgomery, J.

The plaintiff recovered a judgment of $300 in an action against the defendant based upon the defendant’s failure to keep a certain highway in a condition reasonably safe for-travel. The testimony tended to show that the highway in question, on the west side of Black Lake in defendant township, consisted, in one portion of its length, of a corduroy way some 30 to 40 rods in extent; that the plaintiff had occasion to go to the farm of one John Grant to get some hay, which he had contracted for; that the usually traveled way was the one in question; that he started out two teams in charge of drivers, and that he himself followed with a single driving horse. The testimony further tended to show that the corduroy was not in good condition, and that, while crossing this portion of the road, the plaintiff’s driving horse stepped on a rotten piece of corduroy, and broke through, receiving injuries. Plaintiff repaired this place in the corduroy, and proceeded to the residence of Mr. Grant, caused the hay to be loaded, and started the teams in charge of the drivers homeward, cautioning the drivers to use care in crossing the corduroy. In crossing, one of the teams passed safely, but the other broke through. There was another road on the opposite side of the lake, but it was a much longer route, and there was some testimony to the effect that a bridge on this road was out of repair.

Plaintiff testified as follows as to his knowledge of the condition of the road:

“This road is a pretty bad piece of road. The corduroy is dangerous to drive over. I can’t say that I ever drove over it when I considered it was not dangerous. I had not driven over it that summer since the snow went off. I told my men to be careful. I found enough to warrant me in telling them. I went down to look after the men, to see if they got through all right, and, if anything happened, to help them out. I told them to be careful on the corduroy when they started from home.
Q. What did you say to them ?
“A. Why, I told them to be careful in going over, and they would get over all right, Other teams had done the same, and I supposed I could, and charged them to be careful expressly on the corduroy.
Q. You knew there was a poor road there, didn’t you?
“A. Yes, but what difference would that make to me? How could I help it ?
Q. ■ Then you was a little °kittish about that highway? You stopped, and tied your horse, and went to help these other teams; is that the idea ?
“A. No, I tied the horse, and followed them along, so that, if anything happened, I would be there to help them.
Q. Why did you do that ? •
“A. Why, I knew it wasn’t altogether right. I knew that there might be a chance to get them horses in. I just tied my horse there, because, if one of the teams got hurt, I didn’t want to get out and in again. I knew that there was a better chance of them getting in than her.
‘ ‘ Q. The first team got over all right ?
“A. Yes.”

At the close of the plaintiff’s case, an amendment to' the declaration was permitted in the statement of the number of the town and range. Plaintiff recovered for the injury to the driving horse, and also for the injury to the team.

Two questions are raised by this appeal: First, was the amendment properly permitted ? and, second, was the plaintiff guilty of contributory negligence, as a matter of law, in attempting to pass over the way ?

The amendment was properly allowed, as the declaration on its face showed that the attempt was to describe a highway in the defendant township, and the misstatement of the town and range was a clerical error, which could not have misled the defendant.

We are not prepared to hold that the knowledge which the plaintiff possessed that this highway was in general in a dangerous condition precluded him from the right to attempt to pass over it, using care for that purpose. He knew that the highway was in constant use; that others were daily using it. And while he knew that it was not in perfect condition, we are not prepared to say that he must be held bound to have anticipated the exact danger encountered. There are cases in which one knowing of the existence of a hole in the way, or a particular defect, stepping into which would necessarily result in injury, has been held guilty of negligence in walking into such danger. In such cases the exact danger is known and assumed. Such cases are Black v. City of Manistee, 107 Mich. 60 (64 N. W. 868); Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844); King v. Township of Colon, 125 Mich. 511 (84 N. W. 1077). But the true test is, Was the danger arising from the kndwn defect obviously of such a character that no person in the exercise of ordinary prudence would attempt to pass over the highway at that point ? If not, it is not negligence, as matter of law, for one to attempt to pass over a highway known to be defective. Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Laughlin v. Railway Co., 62 Mich. 220 (28 N. W. 873); Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7). See, also, 15 Am. & Eng. Enc. Law (2d Ed.), 470. Had there been an accessible way to drive around this corduroy, or to turn the team out to pass it, the case might have been different. We think it was not error to submit the case to the jury.

Judgment affirmed.

Hooker, O. J., Moore and Grant, JJ., concurred.


author: Montgomery, J. Grant, J.

text:
    FROHRIEP v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroads — Passenger on Freight Train — Assumption op Risk.
    One who takes passage on a freight train assumes the risk of injury from such jarring and jolting as is incident to the ordinary operation of such a train.
    2. Same — Negligence—Evidence.
    Plaintiff sued for injuries alleged to have been received by being thrown from a bunk in a freight caboose while the cars were being coupled. The only testimony as to the manner of the accident was that given by himself; and he testified that he was lying in the bunk, half asleep, when he suddenly found himself on the floor of the car, and then heard the clatter of the cars bumping together. Held, insufficient to warrant an inference of negligence in the management of the train.

      Error to St. Joseph; Yaple, J.
    Submitted June 5, 1902.
    (Docket No. 22.)
    Decided September 30, 1902.
    Case by John Erohriep against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Dallas Boudeman, for appellant.

      Howard, Boos & Howard and Charles A. Sturges, for appellee.
   Montgomery, J.

This is an action in which the plaintiff recovered for personal injuries received while riding in a caboose attached to a freight train of the defendant. The plaintiff shipped over defendant’s road a car load of stock, and, as is customary, accompanied the freight train to look after the stock. The injury which the plaintiff suffered occurred at the city of Hillsdale, while the trainmen were coupling cars in the yard. There is no evidence, aside from the plaintiff’s, which tends in any way to show that what occurred in the way of coupling cars was in any way unusual, or that any unusual jar or jolt was occasioned by coupling. The plaintiff’s testimony upon this subject we quote at considerable length:

“ I got on board the train- — took the caboose — between 4 and 5 o’clock in the afternoon. Reached Hillsdale about midnight. There were no passengers in the caboose at that time besides myself. Hillsdale is a great business point, with different branches running in'there,- — -junction point. There are a great many side tracks. When we reached Hillsdale, I laid down on what we call the ‘ bunk ’ in the caboose. Those bunks are lengthwise in the caboose. It is a bench on each side of the car, about 18 or 20 inches wide. I was on the north side in the east part of the car. When I reached Hillsdale, I was lying down on this bunk, and I was partly asleep when I came into Hillsdale. ' The first thing’ I knew there carne a crash that threw me endways of the car, and I bounded back, and I fell with the left knee on the floor, and also the left edge of my hip on a bunkboard. I don’t know whether I got up right away, but I got up, and I was there alone on the seat again. Shortly after I was on the seat, I heard another rattle of the train taking up the slack, and when I heard the clatter I braced myself to protect myself, and didn’t fall the second time.”

On cross-examination:

“I laid down when we left Coldwater, and I was asleep when we reached Hillsdale. I wasn’t awake just before that, and had any conversation with the men in the car. At Coldwater I got a cigar, came back, and smoked it, and took a little lunch, and then laid down. After leaving Coldwater, I waked up in Hillsdale yard, when this accident occurred.
Q. You mean when this bumping of the cars, as you suppose, took place ?
“A. Yes, sir.
Q. You didn’t wake up-before that ?
“A. I don’t remember that I was awake. I wasn’t sound asleep at all. I laid on the north side of the car, towards the east end. At Hillsdale the train faces east. I should think I was about five or. six feet from the end of the car. I laid far enough towards the end of the car so that the door swung clear. The bunk extended all the way to the end of the car. The stove wasn’t in that end, but about the middle of the car. I didn’t see any table in that end of the car. My feet rested towards the west as I lay there, and my head towards the east of the car, — the way the train was moving. Don’t know how long we were at Hillsdale. I didn’t get out while there. It was quite a while after I heard this bumping against the car while I was there before the train started on. They had to do some more switching and work, and I heard some more clattering and coupling of cars.
Q. As the car was pushed back, as you supposed it was, against the caboose, you say that you were thrown on the floor ?
A. I was thrown endways, and came back when the shock came to me.
Q. You were thrown endways ?
“A. Yes, sir.
‘ ‘ Q. Then you mean you were thrown under the seat ?
“A. I was thrown endwise, and bounded back and came on the floor.
Q. If you were lying on the east side, you would be pushed towards the end of the car ?
“A. Yes, sir.
Q. Is that the way it was ?
“A. I couldn’t tell exactly; I was partly asleep.- I fell with great force on the floor. I was not awake nor sound asleep; I was in between.
Q. The first you knew about it, you were on the floor ?
“A. Yes, sir.
“ Q. So that what occurred before that you don’t know?
“A. No, sir.
‘ ‘ Q. And whether you were shoved along on the seat or not, or anything of that character, you cannot tell ?.
“A.. I couldn’t say exactly.
Q. The first you knew, then, you were on the floor?
“A. Yes, sir.
“ Q- Of course, that being so, the car had already struck before you knew of it ?
“A. It did. _
_ “ Q. You didn’t hear it strike, did you ?
“A. When I fell I heard the clatter and the rumpus.
Q. You didn’t hear the car strike against the caboose until after you were on the floor ?
“A. Why, no.
Q. So far as the car that struck your caboose was concerned, you didn’t hear it ?
“A. Yes, sir. I wasn’t sound asleep when I was on the floor. It took quite a little time before the sound of the racket got away.
Q- Let me get this clear. The first, or, as I understand you to say, the first you knew anything about the accident, you found yourself on the floor ?
“A. Yes, sir.
Q. Then you hadn’t heard anything before that, had you ?
“A. No, sir. ,
‘ ‘ Q. And you couldn’t hear the car strike the caboose after the time that you were on the floor ?
“A. No, sir; I don’t claim I did.
Q. And just how the accident occurred, or how the bunting occurred, you don’t know anything about it, of your own knowledge ?
“A. I know the crash came in making up the train.
Q. I am asking you about the shock of the car against the caboose. You don’t know anything about that, because you were asleep ?
“A. I was partly asleep; yes, sir.
‘ ‘ Q. And you didn’t hear the oar when it struck the caboose ?
“A. No, sir. * * * The seat I was on was on the north side of the car, and I was five or six feet from the end of the car. I don’t know whether the seat ran clear to the end of the car or not. Don’t know whether I was right at the end of the seat or not. When I found myself on the floor, I was right opposite where I had been lying down on the side, and right close to the seat. The seat was about 10 inches from the floor, I should judge. When I first woke, I was lying on my left side. I was lying on my left side when I was on the seat.
Q. And when you were shoved or slipped off of the seat you lay on your left side ?
“A. I came down on my left side. I should think the fall was about 18 inches, but I couldn’t state how far I had been lifted off of the seat; that I couldn’t state.
Q. You can’t swear that you were thrown at all ?
“A. I couldn’t swear; I couldn’t state one way or the other.
Q. All you can say is, whatever the bumping was, you rolled off the seat on the floor ?
“A. I don’t know whether I rolled off. I came with force down on thd floor.
Q. And you don’t know what caused you to roll off or slip off ?
“A. It was because of the crash of the car that threw me.
Q. I understand you to say that when the car bumped against the caboose you rolled off or slipped off of that seat ?
“A. I did not slip off of my own accord.
“ Q. You don’t know whether you rolled off or slipped off of that seat on the floor ?
“A. I know I went on the floor somehow.
Q. You don’t know how it came about that you slipped off or rolled off of that seat onto the floor ?
“A. I went off when the crash came, and I heard the clatter of the cars. The car wasn’t standing still when I laid on the floor.
Q. You didn’t hear anything until you found yourself on the floor, or until after you struck the floor ?
“A. I didn’t hear the first strike of it, because it takes a little time; but the car was in motion when I picked myself up. * * *
‘ ‘ Q. Do you mean to swear that you heard the first shock ?
‘ ‘A. I don’t want to say that I heard the first car that was moved.
Q. That is what I am asking you, — the first car that struck the caboose you didn’t hear ?
“A. I don’t claim that I did.
“ Q. Did you?
“A. I heard the clatter from the collision from this crash.
Q. Will you confine yourself to this one question? I understood you- to testify that you did not hear the car that first struck the caboose which you were in. Am I right about that ?
“A. You are trying to make me say that I didn’t hear the clattering at all.
Q. No, I am not.
“A. I told you I did not hear the first clatter; I heard the clatter when I laid on the floor.
‘ ‘ Q. What clatter did you hear when you laid on the floor ?
“A. I heard the clatter from the drawbars.
“ Q. You have often heard freight cars bumping together ?
“A. Yes, sir; sure.
“Q. What you heard was this: You didn’t hear the first car when it struck your caboose, but after it struck your car, as is very often the case, as they were bumping against the others ?
“A. Yes, sir; I heard such a motion. .
“Q. The clatter you heard on the floor was the bumping of the other cars in the train, and not the bumping of the car against your particular car ?
“A. I said I didn’t hear the first bumping.”

The question presented is whether it is open to any just inference to be drawn by the jury, that there was any mismanagement of defendant’s train. We think not. It is very manifest from this testimony that the plaintiff was lying on this bunk, consisting of a narrow seat at the side of the caboose, with nothing whatever to prevent his falling off or being jolted off by any slight jar, and that the first warning he had was when he found himself-on the floor of the caboose, having been jolted or shaken from his precarious position. To say that this is evidence of any fault on the part of the defendant railway in the management of its train would be to permit the verdict to rest upon mere surmise. In saying this we consider the rule that those who take passage on freight trains are held in law to assume the risk of ordinary jarring, jolting, and jerking incident to the making up and distributing of such trains. This we held in Moore v. Railroad Co., 115 Mich. 103 (72 N. W. 1112). See, also, 3 Thomp. Comm. Law Negl. § 2903. We should add that the medical testimony introduced by the plaintiff himself shows that the injuries which he suffered might have been occasioned by his rolling off this narrow seat onto the floor of the car. The request that a verdict be directed for defendant should have been granted.

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

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

Grant, J.

I concur in the opinion, and think no new trial should be granted.