text:
    SAYRE v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Pleading — Declaration—Sufficiency—Demurrer.
    Id an action against a railroad company for damages by a fire alleged to have been caused by an engine, where no demurrer was interposed or motion made, in view of tbe present liberal rule relating to pleadings under tbe judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12004 et seq.) and Circuit Court Rule No. 22, tbis court cannot say that the declaration was insufficient, although the time of day when the fire occurred is not alleged.
    2. Railroads — Fires—Evidence—Engines.
    Under the statute (2 Comp. Laws 1915, § 8305) plaintiff in an action against a railroad company for damages caused by fire must show by evidence which reasonably leads an unbiased mind to the conclusion that the particular engine charged caused the fire.
    3. Pleading — Amendment—New Cause of Action — Limitation of Actions.
    An amendment to the declaration changing the allegation of the date of the fire from July 18, 1895, to July 17, 1895, did not introduce a new cause of action.
    4. Railroads — Fires—Pleading—Variance.
    Where the declaration alleged that the fire was caused hy a freight engine, but the record discloses that shortly after the fire defendant took a written statement from a witness which disclosed that a light engine passed about an hour after the freight engine and soon thereafter the fire was discovered, and that plaintiff’s attorney, in opening the case, referred to these matters, and there was no claim of surprise on the part of defendant, it cannot be claimed that there was a fatal variance between the declaration and the evidence, although the evidence showed that the fire was caused by the light engine instead of the freight engine as alleged.
    5. Abatement and Revival — Survival of Actions — Statutes.
    Under 2 Comp. Laws 1915, § 10117, a cause of action against a railroad company for damages caused by fire survived the death of the plaintiff.
    6. Assignments — Causes of Action — Torts.
    A cause of action against a railroad company for damages caused by fire is assignable.
    7. Abatement and Revival — Assignment of Interest in Pending Suit — Real Party in Interest.
    The transfer of a plaintiff’s title or interest in a pending suit at law does not abate it, but the suit may proceed as instituted so long as the assignee acquiesces in the proceeding, notwithstanding 3 Comp. Laws 1915, § 12353, providing that actions shall be prosecuted in the name of the real party in interest.

      8. Judgment — Assignments—Parties Bound — Res Judicata.
    Where plaintiff transfers his title or interest in a pending suit at law, and the assignee permits such action to proceed in the name of the assignor, the defendant cannot complain, since he is in no way injuriously affected, and any judgment that may he recovered will be a bar to any future proceedings by the assignee for' the same cause ■ of action.
    9. Abatement and Revival — Death of Plaintiff^-Assignment of Cause of Action — Revival.
    Where a plaintiff dies pending an action at law, it is necessary for the death to be suggested on the record and .the suit to be continued in the name of the personal representative, under 2 Comp. Laws 1915, §§ 10113-10116.
    10. Appeal and Error — Executors and Administrators — Res Judicata.
    Where no appeal was taken fr.om the decision of the circuit court affirming the order of the probate court appointing an administrator de Vonis non, that question is not open in proceedings to revive an action begun by deceased.
    11. Abatement and Revival — Laches—Responsibility for Delay —Statutes.
    Where, under the statute (2 Comp. Laws 1915, §§ 10113-10116), defendant could have brought on the case at any time and had it dismissed on motion, the court will not place' all the responsibility for a long delay upon the plaintiff and refuse a trial upon the merits.
    12. Limitation of Actions — Abatement and Revival — Statutes.
    3 Comp. Laws 1915, § 12320, limiting time for reviving actions to one year, applies to cases abated by the death of any party thereto) but has no application to an action which did not abate upon the death of the plaintiff.
    13. Damages — Interest—Instructions—Trial.
    In an action for damages caused by fire, the court below was not in, error in instructing the jury to add interest from the date of the commencement of the suit to the amount of damages found.

    Error to Shiawassee; Collins, J.
    Submitted January 28, 1919.
    (Docket No. 68.)
    Decided April 3, 1919.

      Case by Frank J. Sayre, administrator d& bonis non of the estate of Charles H. Sayre, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent burning of decedent’s buildings. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer (H. B. Martin, of counsel), for appellant.
    • Leon F. Miner, for appellee.

       See note in 18 L. R. A. 449.

   Stone, J.

This is the second appearance of this case in this court. When first here the decision bore date December 27, 1917, and is reported in 199 Mich. 414. Reference is made to that opinion for a full statement of the facts to that time, and it will not be necessary to repeat that statement here. The order of the circuit court dismissing the case was reversed, and it was sent back for trial. A trial has been had, resulting in a verdict and judgment for the plaintiff for $3,184.43, and the case is brought here by the defendant, and the assignments of error argued by appellant will be considered.

Pending the first administration, and under date of July 14, 1905, all of Mr. Sayre’s heirs-at-law, except his widow, Judith C. Sayre, assigned in writing to her all their right, title and interest in and to his estate. She is still living. On February 26, 1906, the administrator filed his final account, the allowance of which was consented to by all of the heirs, and was duly allowed by the probate court on that date. Under date of April 4, 1906, Judith C. Sayre receipted to the administrator for all the assets of the estate, and on April 9, 1906, the administrator was formally discharged.

It appears that the inventory and appraisal in the matter of said estate made no mention of the cause of action upon which this suit was brought. Neither did the final account of the administrator in any way mention said cause of action. At the time of the said assignment of the heirs to the widow, and of her receipt to the administrator, all of the debts of said estate had been paid, and all expenses of administration had either been paid or provided for.

From November 80,1896, when defendant’s demand for a bill of particulars was denied by the court, until 1916, no steps were taken in the suit. The defendant’s attorney had died in the meantime. In August, 1916, Frank J. Sayre was appointed administrator de bonis non; the defendant appeared in the probate court and contested the appointment; and appealed to the circuit court, filing its claim of appeal, in which it claimed that there was no unadministered estate; that the estate had been fully administered; that the property was assigned to Judith C. Sayre; that the statute of limitations was a bar; that the heirs were estopped from claiming that there were unadministered assets of said estate; that Judith C. Sayre must prosecute the suit in her own name; that she was estopped from claiming that there were any unadministered assets; that the estate had no further interest in all money, property or effects of said estate; that th§ former administrator not having revived and prosecuted the suit, and having settled the estate and been discharged, and the assignment to, and acceptance by said Judith C. Sayre, operated as an abandonment by said estate of said suit, and by reason thereof that said suit was abated, and could not be revived and prosecuted by an administrator de bonis non; and that the former administrator, the heirs, and the petitioner, Judith C. Sayre, had been and were guilty of such laches as legally precluded prosecution of said claim by an administrator de bonis‘ non, and that said claim was not unadministered assets of said estate.

This appeal was heard at the circuit, the defendant by its attorney being present and contesting. The court seems to have been of the opinion that the case, not having been dismissed, was prima facie an asset of the estate, and the order of the probate court was affirmed. No appeal was taken from this decision. On November 25, 1916, by what appears to have been an ex parte order the death of the plaintiff was suggested and the case revived of record; and on the same date defendant was notified, pursuant to the statute, to appoint another attorney, and did so.

The plaintiff made a motion to increase the ad damnum clause of the declaration from $5,000 to $10,000, and to add the following: “And plaintiff further claims interest at the legal rate upon all sums of money heretofore due for the damages aforesaid.” An order was made allowing such amendment and the amended declaration was filed, the second count of which was as follows:

“4. For that whereas on, to-wit: said 17th day of July, A. D. 1895, at the place mentioned in the last count, said plaintiff was possessed of in his own rights, a certain sawmill, situated on said land, machinery, belting and boiler used and connected with said sawmill and said lumber, logs, spokes, bolts and staves, all of great value, to-wit: $4,000, and being so possessed on said day and said defendant well knowing the premises, but not regarding the safety and preservation of the property of plaintiff, did on, to-wit, the 17th day of July, A. D. 1895, aforesaid, run its freight train, composed of a locomotive engine and freight cars, over and along said track mentioned in said last count, at and near said building and so negligently and carelessly run its train and managed said engine, that it permitted sparks to escape from said engine and smokestack connected therewith, which so escaped, set fire to the grass and refuse matter upon said defendant’s right of way and upon said plaintiff’s premises, which said fire spread, and so spreading, burned said sawmill and said belting, and completely destroyed said machinery and engine and burned up and completely destroyed said lumber, logs, spokes, belts and staves, and through the negligence and improper conduct of defendant as aforementioned, and without any negligence on the part of said plaintiff, said property was entirely destroyed to said plaintiff’s damage of $10,000, and, therefore, he brings suit.
“5. And plaintiff further claims interest at a legal rate upon all sums of money heretofore due for the damages aforesaid.”

The date of the fire was not changed from July 18, 1895, to July 17, 1895, until changed by order of court upon February 19, 1918. The defendant with leave of the court amended its plea by adding thereto notice of special defenses, in substance, the assignment and transfer to Judith C. Sayre, and that the failure to prosecute the suit from 1896 to 1916 constituted an abandonment; and that all of its records for 1895 relative to the inspection of engines, etc., were burned in a fire at Milwaukee Junction, in the fall of 1908.

The case was brought on to trial on February 19, 1918, the plaintiff’s attorney, in his opening statement, stating that he would show that the fire occurred on July 17, 1895. The defendant objected to the introduction of any evidence, for the reason that the declaration alleged the fire to have occurred on July 18, 1895. The plaintiff asked leave to amend, to which objection was made on the ground that an amendment would set up a new cause of action, barred by the statute of limitations, but the amendment was allowed and exception taken. The case was then continued for the term, and again came on for trial April 25, 1918.

The testimony definitely fixed the date of the fire as July 17, 1895, the time of day at between 12 noon and one o’clock local time. The plaintiff’s testimony showed that an east-bound freight train passed about 11:20 or 11:50 local time, and that about an hour later a west-bound light engine passed, and that the fire was discovered a few minutes later. There was evidence that the fire started in or near a pile of “hounds,” just outside one of the store-houses, and about ten feet outside the right of way; that the engine was going about fifty miles an hour; the weather had been dry for some time; that the wind, a strong one, was blowing toward the mill from the railroad; that there had been no fire in the mill that day and nobody around the mill, and that in fact it had not been running for a number of months; that there was considerable grass and material on the premises; that the grass on the right of way had been burned by the section men about two weeks before the fire. The mill, lumber, machinery, etc., were destroyed by the fire. Several witnesses testified regarding the property destroyed and its value.

The defendant showed by its testimony the burning in 1908 of its 1895 engine records; the death of several of its employees having to do with the inspection, etc., of its engines during the period at, and following the fire; the nature of its standard fire extinguishing devices in 1895, but it claims that because of the destruction of its records in 1908, it was unable to furnish direct evidence regarding the equipment of the light engine, or its management at the time of the fire.

It should be stated that the declaration stated that the fire was caused by a freight train, not a light engine. However, in his statement to the jury at the opening of the case in February, 1918, and before the continuance, plaintiff’s attorney had said: “that a light engine went by shortly after 12 o’clock, sun time.”

Evidence was introduced by the defendant showing the assignment to Judith C. Sayre, and the defendant’s position that the cause of action had been abandoned was insisted upon. At the close of the testimony, defendant moved for a directed verdict in its favor on the ground that the declaration failed to state a cause of action, which motion was overruled and exceptions taken. In his argument to the jury one of plaintiff’s counsel claimed, against the defendant’s objection and exception, the right to recover interest at the rate of 5 per cent, per annum from the date of commencement of the suit.

The following requests of defendant to charge the jury were refused by the court:

“1st. Under all the testimony in this case, it will be your duty to find a verdict for the defendant.
“If the court declines to give this request, the defendant requests the court to instruct the jury:
“2d. It appears from the undisputed testimony in this case, that Charles H. Sayre departed this life on to-wit, the 5th day of August, 1902, intestate, and left an estate consisting of real and personal property of the value of approximately ten thousand dollars ($10,000); that such personal property was largely in excess of all claims and demands of every nature against said estate; that said Charles H. Sayre left surviving him as his sole heirs and distributees, his widow, Judith C. Sayre, his sons, Fred D. Sayre and Frank J. Sayre, his daughters, Lorena M. Hutchinson and Mary E. Sherman, all of whom were above the age of 21 years at the time of the decease of said Charles H. Sayre; that at the time of the decease of Charles H. Sayre, the suit now on trial was pending and untried and undetermined in this court; that on the 22d day of September, 1902, such proceedings were had in the probate court for Shiawassee county that one Elford C. Sherman was, by said court, appointed administrator of the estate of the said Charles H. Sayre, deceased; that said Sherman qualified as such administrator, entered upon and continued to execute his trust until, to-wit, the 9th day of April, 1906, when he was discharged by order of said probate court; that previous to the discharge of said administrator, said probate court adjudicated and adjusted all claims presented against said estate, and which were paid by such- administrator, and that after said administrator had paid all of said claims and all of the expenses of administering said estate, there remained in his hands the property of said estate, money, property and effects for distribution among the heirs and widow of said Charles H. Sayre, deceased; that on the 14th day of July, A. D. 1905, all of the heirs of said Charles H. Sayre, deceased, executed the following instrument:
“ ‘In consideration of the love and affection which we, the undersigned, have for our mother, Judith Sayre, do hereby assign to said Judith C. Sayre, to have and to hold for and during the period of her natural life, to do with as she sees fit, all the right, title and interest which we or any of us have in any money, property, or effects which might or otherwise would come to us or any of us by reason of our right to share in the property or estate of our father, Charles H. Sayre, deceased.
“ ‘In witness whereof, we have hereunto set our hands and seals this, the 14th day of July, A. D. 1905. Signed by
“ ‘Fred D. Sayre,
“‘Frank J. Sayre.
‘“Lorena M. Hutchinson,
“‘Mary E. Sherman,’

—and which was filed in the probate office for Shiawassee county on the 17th day of August, 1905, in the matter of the estate of Charles H. Sayre, deceased; that afterwards and on, to-wit, the 26th day of February, 1906, the final account of said administrator, showing payment in full of all claims against said estate was filed with the probate court of said county and among which was endorsed,—

“ ‘We, the undersigned, hereby consent to the allowance of the within account, and request that the administrator be discharged without further notice to us.
“‘Judith C. Sayre,
“ ‘Mary E. Sherman,
“ ‘Fred D. Sayre,
‘“Lorena M. Hutchinson,’

—and which account was, on the said 26th day of February, 1906, allowed by order of Matthew Bush, judge of probate; that on the 4th day of April, 1906, Judith C. Sayre made and executed the following paper:

“ ‘State of Michigan, in the Probate Court of Shiawassee County.
“ ‘In the matter of the estate of Charles H. Sayre, deceased.
“‘This is to certify that Elfórd Sherman, administrator of the above-named estate, has turned over to me all property, money and effects, belonging to the said estate, and I hereby acknowledge receipt in full to him for the same, the interest of all the heirs having been previously assigned to me.
“ ‘Dated this, the, 4th day of April, 1906.
“ ‘Judith C. Sayke,’

—and which was filed in the probate office of said county in the matter .of said estate, on the 9th day of April, 1906, and that afterwards and on the 9th day of April, A. D. 1906, by an order and decree of the probate judge of said county, said administrator was acquitted and discharged of his said trust. Under these facts, you are instructed that the estate of Charles H. Sayre, deceased, divested itself of all right, title and interest in and to all of the property, money and effects of said estate, existing at the time of the execution of said assignment to Judith C. Sayre, and at the time of the transfer of the same to her by the administrator, all right, title and interest in and to the same became and was by reason of the facts appearing in this case, vested in Judith C. Sayre, at least during her lifetime, and the estate having thus divested itself of its. title cannot now prosecute this cause of action.

“3d. You are instructed that plaintiff cannot recover in this case, for the reason that it appears from the testimony that it has no interest in the subject-matter involved in this cause of action.

“4th. You are instructed that under the facts as appearing in this case, that the heirs and widow, after all the debts and expenses of administering said estate had been fully paid, settled and divided said estate between themselves and that they are now estopped from alleging the contrary and that they cannot recover in this case.

“5th. You are instructed that more than six years having elapsed since the assignment by the heirs of Charles H. Sayre to the widow, Judith C. Sayre, before any steps were taken to revive this case that the statute of limitations is now a complete bar to its prosecution and your verdict should be for the defendant.

“6th. You are instructed that it appears from undisputed proofs in this case that after all the debts and expenses of administering the estate of Charles H. Sayre, deceased, had been paid by the administrator that all of the heirs- of Charles H. Sayre, deceased, by an instrument in writing, did sell, assign to their mother, Judith C. Sayre, all the right, title and interest which said heirs, or any or either of them, had in all, or any money, property or effects of said estate including the cause of action for which this suit is being prosecuted and that this in connection with the various steps taken in closing up said estate by the administrator and the probate court had the legal effect of divesting the estate of all its interest in such property and of vesting the legal title thereto in said Judith C. Sayre, at least during her lifetime, and under this state of facts, the plaintiff cannot recover in this case.

“7th. You are further instructed that under the facts in this case the plaintiff must be held to have abandoned, that is, of having forsaken or given up the prosecution of this case, and for such reason, plaintiff cannot recover.

“8th. If you find, from the testimony in this case, that this case was commenced by Charles H. Sayre some time in. 1895, that it waS not brought to trial during his lifetime, that the administrator of said estate never took any steps to revive and prosecute the same, that all of the heirs assigned to the widow all their right, and-interest in all the money, property and effects of said estate as disclosed by the testimony in this case, and that such property was distributed by the administrator to said widow and by her receipted for to him in the course of administration, that the administrator was discharged in 1906, and that no steps were taken by anyone, looking towards the revival of this cause until some time in 1916, you are instructed that you have a right to take each and all of these facts and all the facts and circumstances in this case into consideration in determining whether or not these parties abandoned this case, and if you find that up to the time, and about the time, an application was made to the probate court for the appointment of an administrator de bonis non, these heirs and widow had abandoned this case, then I instruct you that plaintiff cannot recover in this case.

“9th. The cause of action involved in this suit having, as is disclosed by the undisputed testimony in this case, been sold, assigned and transferred by the heirs of Charles H. Sayre, deceased, and by his estate, to Judith C. Sayre, and the legal title thereto having vested in her, and now being in her, this suit cannot be prosecuted by the administrator de bonis non of the estate of said Charles H. Sayre, deceased.

“9-A. I instruct you that the second count of plaintiff’s declaration in this case charges, in substance, that defendant, on the 17th day of July, 1895, carelessly and negligently ran the engine in question past the property of the plaintiff involved in this case. You are instructed there is no testimony in this case to establish, or pretend to establish, such allegations, nor is there any testimony tending in any way to prove that defendant negligently and carelessly permitted a spark to escape from said engine when passing plaintiff’s mill, and the verdict will, therefore, be for the defendant. * * *

_ “9-C. The testimony in this case discloses that Judith C. Sayre is the legal owner of the subject-matter involved in this case and that plaintiff has no right, title nor interest therein, your verdict will, therefore, be for the defendant. [Cummins & Beecher, Michigan], Judicature Act, § 476 (3 Comp. Laws 1915, § 12353); Lange v. Perley, 47 Mich. 352. * * *

“11th. I charge you that the declaration filed in this case makes no claim that the equipment of defendant was in a bad condition of repair. I charge you that you shall not consider the condition of repair of defendant’s engine.

“12th. I charge you that under the declaration of plaintiff, he must show by preponderance of the evidence, that the engine of defendant was improperly managed at the time in question before he is entitled to recover, and I further charge you that the fact that the engine in question may have thrown sparks as it passed the mill premises is no evidence of improper management.

“13th. I charge you that the declaration herein alleges an engine drawing a freight train emits sparks which it is claimed set the fire. I charge you that the evidence fails to show that any freight train passed the mill property within such a time that it could have set the fire in question. I charge you that the evidence shows , a light engine passed the mill property, said engine going in a westerly direction, before the fire occurred. I charge you that should you find, under the evidence, the fire was set by the light engine, plaintiff cannot recover because to permit you to render a verdict against defendant, should you find the fire was set by a light engine, would be a variance between the pleadings and proofs.

“14th. I charge you that the evidence shows that the fire in question caught either in dry grass or in a pile of culled hounds on the mill premises. I charge you that under the evidence plaintiff was guilty of contributory negligence in the premises in permitting dry grass, hounds and other accumulations of refuse to remain on his premises and in such a position as to be apt to take fire from the sparks of a passing engine. I charge you that plaintiff was guilty of contributory negligence in the premises and cannot recover.

“141/2. I charge you that if you find plaintiff entitled to recover, he is only entitled to such sum as the reasonable and fair worth of the machinery and mill buildings would be as they stood on the property at the time of the fire. I charge you that the measure of damages being unliquidated, this is not such a case as would warrant you in giving any interest on such sums as you may feel plaintiff entitled to recover in addition to the value of the mill and machinery.

“15th. I charge you that before plaintiff is entitled to recover any sum for loss of materials in said mill, he must show what materials were contained therein by competent evidence and not by guess or conjecture.

“16th. I charge you that in considering whether plaintiff has established by preponderance of the evidence the value of the materials which it is claimed were destroyed, you have a right to consider the length of time between the fire and the time when the witnesses who have testified on the subject, attempted to determine the quantity of the various articles of material which it is claimed were destroyed in the fire, and to consider the probability of their being able to' accurately determine this fact at this late day.

“17th. The defendant requests the court to instruct the jury that they should find the actual cash value of the property at the time of the destruction at the place where the same was destroyed by‘fire, and extend the amount so found if they find for the plaintiff.

“18th. The court instructs the jury that no interest should be allowed upon any amount that may be found due the plaintiff by reason of said fire.”

The assignments of error áre to the effect that the court erred in permitting the plaintiff to amend the declaration by increasing the ad damnum clause from $5,000 to $10,000; and in allowing the amendment in the declaration to state that the alleged fire occurred on the 17th day of July, 1895, instead of on the 18th day of July, 1895, as originally alleged; in overruling defendant’s objection to any evidence being received because the declaration failed to state a cause of action; and in holding that the declaration was sufficiently specific to allow the introduction of evidence; that the court erred in overruling defendant’s motion to strike out the evidence that had been given on the part of the plaintiff, for the reason that no bill of particulars had been ever filed, the records and files showing that the same was demanded; that the court erred in denying defendant’s motion for a directed verdict for the reason that the plaintiff’s declaration failed to state a cause of action; that the court erred in permitting* one of plaintiff’s attorneys to argue to the jury that the plaintiff was entitled to interest at 5 per cent, per annum. There are also specific assignments of error in refusing to give each of defendant’s requests above set forth; and that the court erred in charging the jury in the language contained in paragraph 11 of the general charge, which was as follows:

“In determining those two questions, you may take into consideration and should take into consideration, all the evidence in the case, the rate of speed and the direction in which the engine was running at the time, the direction of the wind, the distance that the engine passed from where the fire was first discovered, the condition of the engine and its machinery, and its manner of operation in the vicinity of the land upon which the fire started, also the weather conditions, also the time when said engine went by and along said land, also the length of time that intervened between the passage of the engine and the discovery of the fire, and all other evidence in the case which throws any light upon any one of these questions; and after such consideration, if you should find that said fire was not started by a spark thrown upon plaintiff decedent’s land by an engine operated by said.defendant, then your verdict should be no cause of action. Or, if you should find that a spark from said engine set said fire upon the land of plaintiff’s decedent, and that plaintiff’s property was thereby destroyed, and you should further find that such spark was thrown from an engine whose machinery, smokestack or fire boxes were in good order and properly managed, then your verdict should be for the defendant. But if you should find that such loss or damage was caused by fire originating from a spark emitted from said engine at said time and place, and that the defendant has not shown to your satisfaction that said fire originated from a spark thrown by an engine, whose machinery, smokestack or fire boxes were in good order, and properly managed, then your verdict should be for the plaintiff. And when I speak of an engine here, I mean the engine testified to as a light engine that passed the mill, as shown by the testimony, a short time prior to the discovery of the fire.” ■

That the court erred in charging the jury in the language contained in paragraph 12, which was as follows:

“Now, in this case, if the plaintiff is entitled to recover at all, he is entitled to recover a true cash value of the sawmill and storehouses and the other personal property being machinery, as testified to here, as they were on the premises at the time they were destroyed; and in determining the value of the sawmill and storehouses and such personal property, you are to take into consideration all the facts connected with such property, such as its cost, its age, its condition, the uses to which it had been put, its location, and any other fact which, in your opinion, fixes or determines what its true cash value was at the time of the fire, excepting therefrom such property as you may find was. saved from destruction by the fire. As to the lumber and products of the mill, if the plaintiff is entitled to recover, he is entitled to recover the fair market value of such lumber and products at the time and place of such fire.. And when you have determined the amount of said damages, if you should find the plaintiff is entitled to any damages in this case, you should add thereto interest thereon, at the rate of five per cent, per annum from the date of the commencement of this suit, being December 11, 1895, and adding such interest to the amount of the damages found by you, the result would be your verdict herein, if you find in favor of the plaintiff.”

And, finally, that the court erred in charging the jury, as matter of law, that this suit and cause were properly prosecuted here by the present administrator of said estate; and that the fact that the case had not been brought on for trial before did not, as a matter of law, bar plaintiff’s right to recover.

The errors assigned are discussed by appellant under the following heads:

(1) The declaration fails to state a cause of action.

(2) It was error to permit the plaintiff to amend his declaration by changing the allegation of the date of the fire from July 18, to July 17, 1895, for the reason that such amendment set up a new cause of action, barred by the statute of limitations.

(3) There was a fatal variance between the declaration and the proofs, in that the declaration alleged that the fire was caused by a locomotive drawing a freight train, while the proof showed that a light engine caused it, if it was caused by any locomotive, running on defendant’s railroad.

(4) Plaintiff cannot maintain this suit because the cause of action had been assigned to Judith C. Sayre.

(5) The right to prosecute the suit was abandoned, lost, through the long failure to prosecute. The statute of limitations is a complete defense.

(6) Interest was improperly allowed.

1. It is urged by counsel at great length that under our statute (2 Comp. Laws 1915, § 8305) a railroad’s liability for a fire originating from its road is the common liability for setting fires, the effect of the statute being merely to shift the burden of proof, and the following cases are cited: Fisk v. Railroad Co., 114 Mich. 248; Dolph v. Railway Co., 149 Mich. 278; Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375; Beach v. Railroad Co., 190 Mich. 592; Schindler v. Railway Co., 77 Mich. 136. There are many quotations from the last cited case, and other cases are cited. It is also claimed that where a declaration wholly fails to state a cause of action, advantage may be taken of it on the trial, and Stoflet v. Marker, 34 Mich. 313, and other like cases are cited. Upon the subject of the date of the fire the language of this court in Hewitt v. Railroad Co., 171 Mich. 211 (41 L. R. A. [N. S.] 635), is quoted at length. Aside from the change in the date of the fire, attention is called to the fact that the time of day, when the fire occurred, is nowhere alleged.

It should be borne in mind that at the time the amended declaration was permitted and filed the judicature act was in effect, as well as Circuit Court Rule No. 22, § 1, which provides that:

_ * * * “No declaration shall be deemed insufficient, which shall contain such information as shall reasonably inform the defendant of the nature of the cause he is called upon to defend.”

In Malloy v. Railway Co., 192 Mich. 344, at page 350, this court held that the purpose of the pleading is to enable the defendant to prepare his defense.

After the case was placed upon the calendar under the judicature act, defendant filed motions to dismiss, but no objection was made to the sufficiency of the declaration. That the declaration was not attacked was mentioned in the former decision .of this court. (See page 420 of opinion.)

The fact that no demurrer was interposed, or motion made, and in view of the present liberal rule relating to pleadings, we cannot say that the declaration was insufficient. The language of this court in Jolman v. Alberts, 186 Mich. 643, at page 645, is pertinent here. There is no claim of surprise urged here in regard to the time of day of the fire — or with reference to the light engine. The record discloses that shortly after the fire the defendant took a written statement from Libbie Dumond Fowler which disclosed the hour of the fire and the westbound light engine, and, as already stated, plaintiff’s attorney in opening the case on February 19, 1918, referred to those matters.

Under the statute the plaintiff must show by evidence'which reasonably leads an unbiased mind to the conclusion that the particular engine caused the fire. Clark v. Railway Co., 149 Mich. 400 (12 Ann. Cas. 559); Hewitt v. Railroad Co., supra.

“The making of a prima facie case by simple proof of the setting of the fire arose out of the difficulty of a plaintiff to prove the defect, and from the fact that the construction, condition, and management of the engines- are peculiarly, if not exclusively, within the knowledge of the company’s employees.” Dolph v. Railway Co., supra.

2. Was it error to permit the plaintiff to amend his declaration by changing the allegation of the date of the fire from July 18, 1895, to July 17, 1895, for the reason that such amendment set up a new cause of action, barred by the statute of limitations? We think not. A mere change in date, does not introduce a new cause of action. Hapke v. Davidson, 180 Mich. 138, 148. In that case Justice Kuhn, speaking for a unanimous court, said:

“The mere change in the date did not, in our judgment, introduce a new cause of action, and, under the rule announced in Pratt v. Montcalm Circuit Judge, 105 Mich. 499, unless this is the result, the amendment is proper. As stated in 1 Enc. PI. & Prac., p. 564:

“ ‘The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony.’ ”

See, also, the cases cited by Justice Kuhn.

Here again the defendant was not surprised by the change of date. The record shows that on November 25, 1895, the defendant filed the affidavit of Lewis C. Stanley in the case, in which he. stated, among other things, that “deponent is informed and believes that the actual wrong and injury to this place occurred on a different day than they named in said declaration.” On October 18, 1916, the affidavit of George F. Dick was filed by the defendant, in which he stated that the fire occurred on July 17, 1895. These affidavits were before the court when the amendment was permitted. Hewitt v. Railroad Co., supra, cited by defendant upon the question of dates, is readily distinguished from the instant case.

3. We do not think there was a fatal variance between the declaration and the evidence for the reasons already stated.

4. Can the plaintiff maintain this suit, notwithstand-' ing the assignment to Judith C. Sayre? There can be no question that this cause of action survived (3 Comp. Laws 1897, § 10117). Nor can there be any question that it was assignable. In the early case of Final v. Backus, 18 Mich, at page 231, Chief Justice Cooley, speaking for the court, said:

“The position is that the right of action for a tort is not the subject of assignment; and this we understand to be the general rule.” (Citing cases.)
“But this rule applies only to those torts which are merely personal, and which, on the death of the person wronged, die with him; while torts for taking and converting personal property, or for injury to one’s estate, and generally, all such rights of action for tort as would survive to the personal representatives, may, it seems, be assigned so as to pass an interest to the assignee which he can enforce by suit at law.” (Citing cases.)

This case has been followed and cited in many cases. Boynton v. Roe, 114 Mich. 401, 408; Holmes v. Loud, 149 Mich. 410, 413; Perkett v. Railroad Co., 175 Mich. 253, 264.

It is pertinent to examine the statute in force at the time of the death of Charles H. Sayre, and at the time of the assignment. This case was pending and at issue at both of those dates. Section 10113, 3 Comp. Laws 1897, reads as follows:

“In all personal actions, the cause of which does by law survive, if there is only one plaintiff, or one defendant, and the sole plaintiff or defendant shall die after the commencement of the action, and before the final judgment, the action may proceed and be prosecuted by or against the surviving party, and by or against the executor or administrator of the deceased party, in the manner provided in this chapter.”

Section 10114:

“The death of the party shall be suggested on the record, and his executor or administrator may thereupon appear and take upon himself the prosecution or defense of the suit, as the case may be; and it shall be thenceforth conducted in the same manner as if it had been originally commenced by or against the same executor or administrator.”

Section 10115:

“If the executor or administrator does not voluntarily appear on or before the first day of the next term after the death of such party, the surviving party may have an order of course, that the executor or administrator appear and take upon himself the prosecution or defense of the suit, within thirty days after the service of notice of such order.”

Section 10116:

“If the executor or administrator shall not appear within the time limited by such order, or within such further time as the court shall allow for that purpose, he shall be nonsuited or defaulted, and judgment shall be rendered against him in his representative capacity, and shall be evidence of a debt established, to be paid in the course of administration.”

Conceding that this assignment covered this cause of action, the suit would not abate by reason of the assignment, and the case should have proceeded in the same manner as though no assignment had been made.

The transfer of a plaintiff’s title or interest in a pending suit at law does not abate it, but the suit may proceed as instituted. Peters v. Gallagher, 37 Mich. 407; Moon v. Harder, 38 Mich. 566; Toledo, etc., R. Co. v. Johnson, 55 Mich. 456.

So long as the assignee acquiesces in the proceeding, and permits the suit to go on in the name of the assignor, the defendant cannot complain as he is in no way injuriously affected thereby. Any judgment that may be recovered in such action will protect him, and be a bar to any future proceedings which the assignee might undertake to commence, for the same cause of action. Peters v. Gallagher, supra.

So, in our opinion, it was still necessary for the death to be suggested, and the suit to be continued in the name of the personal representative of the deceased plaintiff, under the very terms of the sections of the statute above quoted. He alone could prosecute it. This case could not be affected by the provisions of the judicature act invoked by the defendant (3 Comp. Laws 1915, § 12353).

The right to have an administrator de bonis non appointed is not really before us. That is not an open, question, but was settled upon the appeal from the probate court to the circuit court. No appeal was taken from the action of the circuit court, and the matter is res adjudicata.

It is further urged by defendant that the rule is well established that laches constitutes good ground for denying a petition to revive, and many cases are cited from other jurisdictions, the leading one being Lyon v. Park, 111 N. Y. 350 (18 N. E. 863). It may be doubted if that question is before us, as the order suggesting the death was not excepted to, nor is error assigned upon it. But treating it as an open question, we do not think that the cases cited are either controlling or persuasive under our statute. All of the cases cited are from States where the statutes materially differ from ours. Most of them are equity cases, and many of them deal with the death of defendants, where the property of deceased had been distributed, and conditions materially changed.

In Vickery v. Beir, 16 Mich. 50, it was held that the proceeding to substitute the administrator is entirely a matter of statutory regulation. It was there said:

“The proceeding on suggesting the death of a plaintiff is entirely ex parte, and there is no provision of statute by which notice of it is to be given to the' defendant.”

Under our statute such suggestion is. a matter of course, and there is no provision for a contest, as there is in the States from which cases are cited.

In the examination of this record one is impressed with the fact that, notwithstanding the lapse of time between the institution of this suit and the trial, the responsibility for the delay did not rest upon the plaintiff solely. The defendant could have brought- on the case at any time, under the provisions of the statute above quoted, and the case dismissed on defendant’s motion, its records were not destroyed until about twelve years after the case was at issue and the deceased witnesses died later. As we said when the case was here before: “A notice from either party would have placed it upon the trial docket,” yet the case was allowed to slumber. In the absence of the running of the statute of limitations, should the court be swift to place all of the responsibility for this delay upon the plaintiff, and refuse a trial upon the merits? We think not.

5. It is claimed finally by the defendant that the statute of limitations is a complete defense, and section 12320, 3 Comp. Laws 1915, is invoked, which reads as follows:

“If any action, of which the commencement is limited by this chapter, shall be abated by the death of any party thereto, or if, after verdict for the plaintiff, the judgment shall be arrested, or if judgment in any such action be given for the plaintiff, and the judgment shall be reversed for error therein, the plaintiff or any person claiming from, by or under him, may bring an action for the same cause at any time within one year after the determination of the original action, or after the reversal of the judgment.”

It is claimed that under this statute the right of revivor lapsed one year after the abatement of the suit by Sayre’s death. The difficulty with this position is that the suit did not abate upon Sayre’s death,' and the statute has no application except in actions which “shall be abated by the death of any party thereto.” By the express terms of the statute which we have quoted, this action did not abate upon the death of the plaintiff — hence the statute invoked does not apply. The cases cited by counsel like McKenzie v. A. P. Cook Co., 113 Mich. 452, and Conley v. Sinclair, 163 Mich. 306, were ejectment cases, in which by the statute the death of a sole defendant did abate the action.

6. Lastly, it is claimed that interest was improperly allowed. We cite the following cases in support of the charge upon this subject. Kendrick v. Towle, 60 Mich. 363, 368 (1 Am. St. Rep. 526); Taylor v. Railway Co., 101 Mich. 140, 146; Larsen v. Telephone Co., 164 Mich. 295, 324, 328. See cases cited.

We find no error in the charge, and in our opinion the case was properly submitted to the jury in a careful charge.

Finding no reversible error in the case, the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    WHITE v. COWING.
    1. Jury — Challenge por Cause — Friendship for Party — Impartiality.
    That a juror had a general acquaintance with, and expressed friendship for, one of the parties, was not ground for challenge for cause, where it appeared that he could and would try the case impartially, “although it would mate it harder” for him.
    2. Master and Servant — Infants — Personal Injuries — Negligence — Question for Jury.
    In an action for the loss of a foot hy a boy nine years of age who was employed by defendant to drive chickens out of the grass in front of a mowing machine, the court below properly refused to instruct the jury, as requested by plaintiff, that defendant was guilty of negligence in the manner indicated therein, where, under the evidence, the question was one for the jury.
    3. Trial — Instructions—Requests to Charge.
    Where the substance of a requested instruction was given by the court in its general charge, it was not error to refuse the request.
    4. Same.
    In determining whether a cáse was properly submitted to the jury, the charge should be construed together as a whole.
    5. Same — Issues—Instructions.
    In an action for personal injuries to an infant nine years of age, where the age of the boy, his negligence, if any, and his opportunity to observe obvious danger, were all dwelt upon by the court, in his charge to the jury, as was the claimed negligence of the defendant, 7iel&, the case was properly presented to the jury.

    Error to Jackson; Parkinson, J.
    Submitted January 14, 1919.
    (Docket No. 35.)
    Decided April 3, 1919.
    Case by Albert G. White, an infant, by his next friend, against Lizzie Allen Cowing for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Price & Whiting, for appellant.

      W. S. Cobb, for appellee.

       See notes in 17 L. R. A. 79; L. R. A. 1917F, 10.

   Stone, J.

The plaintiff, on July 22, 1913, when he was nine years and three or four months old, lost his left foot by coming in contact with a mowing machine driven by the defendant, and this action was brought to recover damages for such injury. The plaintiff’s parents lived in a tenant house on the farm known as the “Allen 'farm,” and plaintiff’s father worked for defendant’s sons, who worked the farm and lived with defendant on the farm. Plaintiff was born in England, and came to this country with his parents about two years before the injury, and plaintiff’s family moved onto the farm about three months before the injury. Plaintiff testified on the trial that he had had no experience with mowers, and did not understand the manner in which grass was cut by a mower, although he sáw the grass fall; and that he had never seen a mowing machine work before they went to the Allen farm. The defendant’s sons had a piece of alfalfa to cut, and she, assisting them, was driving the mower herself. They had a large number of chickens, and the coops were in and near one corner of the field, and as plaintiff’s brother, Arthur, who was four years older, was passing the defendant’s house in the morning, defendant spoke to him, and asked him if he would ask the plaintiff to come down and drive the chickens out of the grass, while she was mowing. Arthur told the plaintiff as requested, and he went immediately down into the field. When he reached the field where the defendant was. mowing, he described in his testimony what occurred as follows:

“The chickens were right in the edge of the field. There were coops there, and there were a good many chickens. They were about five or six weeks old. When I went down there to the field, she told me she wanted me to keep the chickens away from in front of the mower. She didn’t say anything else to me. She didn’t give me any caution or warning about the mower, about getting in the way of it.”

After testifying to his inexperience with mowers, he continued:

“The chickens were just on one side of the field, and when she went around two or thrée times I started to keep the chickens away again where they were, and I seen a frog, and I started after him, and I stepped right in front of the knives. The chickens were on one side of the field in which she was mowing — the north side. When I was cut she was going north.
“The Court: May I ask a question here? Were these mower knives, the cutting part of the machine, on the right side of the machine or on the left side?
“A. On the right side.
“Q. Then as she was going north she was on the west side of the field?
“A. Yes.
“Q. And the knives were to the right, or east side of where she sat?
“A. Yes.
“Q. Were you on the west side of the field?
“A. Yes. The coops where the chickens were, were kind o'f at the northwest corner of the field. I wasn’t very far from the corner.
“Q. What had you done the.other two times she had gone around in the way of driving those chickens. What did you do, or how did you keep them out?
“A. I got in the grass and drove them back.
“Q. When you started after the frog, how many steps did you take before you got your foot cut?
“A. About three. These steps were taken all one way. The machine was about four rods from me when I started after the frog.
“Q. Did she come that four rods while you were taking three steps?
“A. Yes. I was reaching down all the time to get the frog.
“Q. What?
“A. Yes, because I was reaching down all the time to try and catch the frog.
“Q. You were reaching down. Did the frog keep straight ahead all the time?
“A. Went right straight one way.
“Q. What I want to get at here is whether — you say you were reaching down — did the frog go straight ahead after you started after him, or did he jump zigzag?
“A. First one and then the other. He didn’t jump straight ahead. Kind of went one way and then the other, then kind of straight; kept going straight, not all the time, first one way and then the other.
“The Court; If you grabbed for him, he dodged from you, didn’t he?
“A. Yes.
“Q. Then you would go for him and miss him again?
“A. Yes.
“Q. How many times did that happen to you while you were after him?
“A. About two or three times.
“Q. As she came along with the team, were you facing her, or was she coming behind you or to the side of you?
“A. Coming kind of one side of me. The frog went west. The lane was on the north side of this field, and the team was going towards the lane.
“Q. Which way was the frog going, toward the lane or away from it, or parallel with the lane? Which way was it the frog jumped?
“A. Going west — the frog was. * * * He kept going off one side, then the other, but he was kind of going west all the time. He was going toward the cut alfalfa. I was out in the uncut alfalfa. The frog had not got out of the standing alfalfa when I. got hurt. The last time I dove after the frog I moved a step or two. I was going towards the west.
“Q. Towards the west. Going right straight toward the machine that was coming up against you?
“A. Yes. It was the left foot that was cut.
“Q. Which side was nearest the machine, which foot, as you were after that frog the last time?
“A. The right foot was.
“Q. How did you get your left foot cut, then?
“A. I thought you meant which foot was nearest the knives before the other one got cut.
“Q. No. At the time you dove after that frog the last time, you say you took a step or two. Which foot was next to the machine, the .way the machine was going, closest to the machine?
“The Court: Do you remember which way yon were facing? You would know then how to answer it.
“A. My left foot. I was facing west. * * *
“The Court: The knives were on the east side and he was going west, and his left foot was nearest the knives. You were going toward the west, were you, chasing the frog?
“A. Yes.
“Q. How far away from where the machine would have cut its swath would you have been, if you had remained out there and hadn’t started after the frog? Would the knives- have come very close to you?
“A. Yes.
“Q. This is what I mean: We will say this is the alfalfa (illustrating) ; here are the horses and the knives right back that way and cutting a swath right along. You were out in the alfalfa to the west; you took after the frog. Would the knives have gone by without hitting you if you hadn’t taken after the frog, if you had stood still where you were when you first went after the frog, would the cutter bar have gone by you without hitting you? * * *
“A. Maybe it would just went by. I couldn’t say.
“Q. Would it have hurt you at all if you hadn’t been following the frog west, do you think?
“A. It might have went by me. The last time the frog jumped was toward the west.
“Q. What direction did it jump in before that, the last time before that, if you recall?
“A. Jumping toward the west.
“Q. Was it jumping toward the west all the time? Then it didn’t jump first one way and then the other, as you said awhile ago?
“A. It was going towards the west, but then it didn’t go exactly straight. My foot was cut just above the ankle. It was left just hanging a little bit, was all. I have an artificial foot now. * * * Mrs. Cowing was driving two horses. There was no one else in the field when it happened, but the defendant and myself. I couldn’t say for sure whether she had mowed any in the field before I went down there, or whether I was there the first time round.”

The foregoing is substantially all of the testimony of the plaintiff, upon the subject of the injury, on direct examination.

The récord shows that the plaintiff was a large boy of his age, and, as. shown by his testimony, was in no respect deficient mentally, but a bright and active boy. Upon cross-examination the plaintiff testified that while he did hot realize there was any danger from the machine, yet that he saw the grass fall, and knew that if the chickens got in the way they would be injured; that he never stopped to think whether the machine would hurt him; that- plaintiff and his family continued to live upon the Allen farm until a year from the next March or April after the injury, during which time there was ho talk about suing the defendant. It appears that the instant suit was commenced on November 1,1915. The following occurred on his cross-examination:

“Q. You were not paying any attention to anything else except the frog were you?
“A. Just simply trying to catch him, was all.
“Q. I say you were not paying any attention to anything else except trying to catch the frog, isn’t that true?
“A. Yes.
“Q. Do you want to say anything more?
“A. No. * * *
“Q. What do you mean by saying on direct examination the team was four rods away from you?
“A. They were back four rods when I started to catch the frog.
“Q. Then the team had traveled four rods from the time you started to catch the frog before you were cut?
“A. Yes.
“Q. Did you notice the team at all after you saw it four rods away before you were cut?
“A. No, never noticed them. * * *
“Q. You were not driving chickens out when you got cut, were you?
“A. No.
“Q. How long before you got cut had you driven any chickens out of the grass?
“A. I was driving chickens out of the grass and I happened to see the frog, and I started for the frog.”

The defendant testified, in substance, that she sent for the plaintiff, as already appears, and that when he came into the field there were no chickens in the grass, and that she said: “Well, Bert, you need not have come because the chickens are not here.” She testified that they conversed, and that the plaintiff followed her around the field, and that they stopped near a big tree, and as she came around the next time she stopped the team,' and that the plaintiff then told her that a boy named Hoisington was making lots of money catching frogs.

“I said, Ts that so?’ He says, ‘Yes, he gets 20 cents for small ones and 25 cents for big ones.’ Well, that was all there was. After a few minutes I started around. He didn’t follow me that time, and when I came around last I saw he had left the shade of the tree and gone out into the grass, and I can’t tell, I think it must have been four or five cutter bars away, 6 foot out; he was all of 25 feet or more out in the grass, but farther than that away ahead of me, and I spoke to him, I says, ‘Have you found one already, Bert?’ and he said ‘Yup,’ and at that time he was facing the southeast or facing that way (indicating), bent, looking into the grass, and as I approached this-tree I saw him off here (indicating). Of course, as I gradually came up he was in this direction; as I came along it brought me out more even with him. I got the machine — then I drove up around the tree; I had to make a turn to keep the wheel, my line — the swath was on a line. I didn’t have to turn but a very little, but my attention was directed to keeping the wheel from the tree.
“The Court: You passed around to the east of the tree?
“A. To the east of the tree. The left wheel was next_ to the tree, but my attention was directed in guiding my team so that the wheel didn’t strike the tree; that attracted my attention. When I had swung right around and was straight again, I turned, and there was that child. t
“Q. Did you see him after you commenced to turn your’ team around the tree, until you saw him there in the knives?
“A. No, I didn’t see him because the time was short. I says, ‘Why, Bert, Bert!’ I could not have it, and the child never made a sound, never a sound.”.

She then described the manner in which she cared for the child, and getting him to the house.

In impanelling the jury the following transpired: Milton J. French was called as a juror, sworn as to his competency, and said:

“Examination by Mr. Price: I heard of the case before, about the time it occurred. I live about a mile from the farm on the same road. I can’t say I heard it discussed. I heard about it. I couldn’t say now who I heard talk about it. It has been too long. I have a speaking acquaintance with the Allen boys (defendant’s sons) • and with Mrs. Cowing. Have known them about as long as the Allen boys have been in the neighborhood. I don’t know just how long that is. I have always lived in the neighborhood, and the Merriman farm has always been there. I met the defendant and her boys, in a business way. Never exchanged work with them, but met them in a business way. The Allen boys live on the farm down there, I suppose. Our relations are friendly. I never heard either of them or the defendant mention this matter at all. I never heard the case discussed by either one of the parties connected with it.
“Q. Is there anything about the case or your acquaintance with the parties, Mr. French, that would make it embarrassing for you to sit in this case?
“A. Why, personally, I had rather be excused.
“Q. You feel you would be somewhat embarrassed, do you?
“A. I can’t say. Of course, looking at the matter now, I might not be. I can’t tell what testimony might maybe be brought up.
“Q. You have some impression, now, have you, in regard to the case, Mr. French?
“A. I can’t say I have. I simply heard the circumstances spoken of.
“Q. You heard it discussed sufficiently so it gave you some impression in regard to the merits of the case?
“A. Why, I don’t know as I could answer that by yes or no.
“Q. I took that from your answer. You didn’t know what testimony might be brought up?
“A. Of course, my acquaintance is largely with Mrs. Cowing and the boys. The parties that were injured I have no acquaintance with whatever. With such understanding, I might be considered an interested person.
“Q. You would start in the case, in the consideration of it, with that friendly feeling towards the defendant and her sons?
“A. I certainly would.
“Q. That might have some weight with you in case it was a close question?
“A. I think it would be a great deal harder for me to sit in such a case.
“Q. Because of your friendship to them?
“A. Yes, sir, and render an honest verdict.
“Q. You don’t feel entirely certain then, you could approach consideration of the case with a mind entirely unprejudiced and uninfluenced?
“A. I think I could’ as far as that is concerned.
“Q. What do you mean by saying it would make it harder for you than if you didn’t have any acquaintance with the defendant and her sons? What would make it harder for you to sit in the case? What is there about it that would make it difficult and hard for you?
“A. Well, in case a verdict should be rendered for the defendant, why, friendship — rather, for the plaintiff — friendship with the Allen boys would make it harder for me to try and render such a verdict.
“Q. So you wouldn’t feel as free to bring in a verdict against the boys as you would if you didn’t have that acquaintance?
“A. I don’t think I should.
“Q. Then it would necessarily influence you, or it might, in the consideration of the case, wouldn’t it?
“A. There would be a tendency.
“Mr. Price: I challenge him for cause.
“Examination by Mr.. Cobb: Q. Mr. French, the court would, of course, instruct you, as well as the other jurors, that no verdict should be based upon sympathy, prejudice or friendship for either of the parties, that such a thing as that should not influence you one way or the other. Now, with that understanding, I want to know whether or not you could, in your judgment, sit as a juror in the trial of this case, listen to the testimony and render a verdict uninfluenced by any such consideration?
“A. -I could, yes.
“Q. Would you, if you sat as a juror?
“A. I certainly would.
“Examination by Mr. Price: Q. Nothing which the court might say in his instructions would remove the feeling of friendship which you have towards the defendant and her boys?
“A. It wouldn’t remove my friendship.
“Q. Or make it any easier for you to render a verdict against them?
“A. I don’t think so.
“Q. That would be a thing you would have to overcome, no matter what .the-court said to you?
“A. Yes, sir.
“Q. You feel you could do that, but still you realize that on account of your acquaintance and friendship for these people, you cannot approach the case the same as a stranger could?
“A. I could not.
“Q. It would make it more difficult for you to do justice to the plaintiff in the case?
“A. It would.
“Mr, Price: We say the challenge is good.
“The Court: I understand the juror to say, notwithstanding the difficulty, he can overcome the difficulty and would not be influenced by-it. * * * (The Court, continuing.) The juror has been very frank in his answers. In his neighborhood — lives within a mile, as I understand, of the defendant, Mrs. Cowing, and would prefer not to sit in the suit. Yet he says he can discharge his duty although it would be an unpleasant task and a hard task. He can do it, and do it impartially. That is what I understand you to say.?
“The- Juror: "Yes, sir.”

After an extended colloquy between court and counsel the court overruled the challenge, to which ruling plaintiff’s counsel took an exception, and the juror was then challenged peremptorily, the plaintiff thus using his last peremptory challenge, and the juror stood aside.

The juror that was next called was not challenged for cause, counsel for plaintiff saying, in argument, that there was no ground for a challenge for cause. The jury were then sworn to try the case, and the trial proceeded.

The plaintiff requested the court, among other things, to charge the jury as follows:

“(2) If the defendant set the plaintiff to work to keep the chickens away from in front of the mower in the uncut grass, he being at that time only nine years of-age, she put him at a work which was hazardous and dangerous to'life and limb for one of his years, and she was therefore guilty of negligence.
“(3) If the defendant set plaintiff to work as plaintiff testifies she did, I charge you that she was guilty of negligence.
“ (4) It would be negligence on the part of anyone to set a boy of plaintiff’s age and lack of experience at work keeping chickens out of the uncut grass in front of the mowing machine, without warning him of the danger of getting into the knives, or without taking precaution to prevent his being cut by the knives.
“(6) In determining whether plaintiff was so negligent as to prevent him from recovering at your hands, you must take into account his immature years, and make the due allowance for the fact that boys of his age are playful and apt to do thoughtless things. He should not be held to any greater degree of care than other boys of his age and experience, and you cannot hold him to the same degree of care that you would an adult or a person of mature years.”

The court refused to give either of the foregoing requests in terms, as requested. The case was submitted to the jury in a very extended and elaborate charge, in the course of which the following language was used:

“2. This action is what is known in law as an action upon the case to recover damages for claimed negligence on the part of the defendant. Under the law no one has any right to a verdict or to maintain an action of this character unless the evidence — the greater weight of the evidence establishes two propositions, and these must both be established in the affirmative before the jury have any occasion to consider the question of damages at all.

(“A. Those two propositions are, that the party seeking to recover and claiming damages must himself have been free from any negligence or carelessness which helped to bring about the injury complained of; and the second is, that the other party against whom damages are sought must have been guilty of negligence or carelessness, and that negligence must have been the sole and only cause of the injury complained of.)

“4. The burden of proving both of these' propositions rests upon the plaintiff. It does not have to be made out beyond a reasonable doubt as is necessary in criminal cases to sustain a conviction. It is only necessary that it be made out to the satisfaction of the jury by a preponderance of the evidence or the greater weight of the evidence. That is, after considering all that the jury believes the evidence sustains or considering all the jury considers true in the case, the greater probabilities must be in favor of the plaintiff, or the plaintiff cannot recover.

“5. I will discuss the first proposition which the plaintiff must maintain in order to recover, and in case he does not he must fail, irrespective of any other question in the case. Was the plaintiff himself, this boy, guilty of any negligence or lack of care which he ought to have observed for his own protection, which said lack of care helped to bring about this injury to himself?

(“6. Now, the diligence or care in this case must be such as children of his age, experience and knowledge should exercise for his own protection.) It is neither more nor less than that. What might be carelessness on the part of a grown person might not be carelessness on the part of a child. It depends on the circumstances, and you are the judges of those circumstances. (You take into consideration the age of this boy and his knowledge of the machine, its purpose, its use and its operation, and what it would do to him if he got in the way of it so it should come against his legs.)

(“7. He should exercise the care that any child should exercise under the same circumstances, in the same place and amid the same conditions, and is required to use his diligence in proportion to his knowledge of what might happen to him if he should not pay attention and should get in the way.) You should consider what he had seen of its workings, if anything, either on this or on any other occasion, of its operation, what it was doing, what it might do if it got against him and he ran into the knives, what he knew, or in view of his age, and ability to see, understand or comprehend he should have known and understood as tó what it might do to him if he came in contact with the cutting parts. He should have acted in reference to the situation as he understood and comprehended it, and if he knew that getting against those knives would result in injury to him, then he should have taken such care, with such knowledge, as one of his age and experience should take for his own protection.

“8. Consider what he was doing, the way he was doing it, why he was doing it, where he was, where the machine was, and his movements, what he knew as to the dangerous character of the machine, if anything; also her movements, that is, Mrs. Cowing’s movements, what she was doing as he, the boy, perceived or should have perceived, and determine whether he was exercising that ordinary care that a boy of his age, knowledge and experience would exercise under the same or similar circumstances for his own protection.

“9. If he knew of the danger, understood it and paid no attention, allowed his mind to be wholly diverted and at a time, when the machine was nearing him, moving in his direction, and carelessly ran in front of the knives and was cut by them, and in so doing was not exercising such care as the ordinary boy of his age, knowledge and experience and perception of what was evident or apparent would exercise under the same circumstances, then this boy was himself careless and so helped to bring about the injury to himself, and in such case cannot recover, no matter whether Mrs. Cowing was also careless or not.

“10. If he knew and understood the danger to himself from coming in contact with the machine in the way he did, then he should have exercised care to keep away from it.

“11. Although you may believe the defendant, Mrs. Cowing, was negligent and that her negligence contributed to the injury of plaintiff, that is, helped to bring about that injury, nevertheless I instruct you that the plaintiff cannot recover unless he was free from negligence contributing to his injury.

“12. It matters not that you may believe the defendant’s negligence was very great and the plaintiff’s negligence was very slight, nevertheless, if the plaintiff’s negligence, though slight and much less than that of defendant, contributed to his injury, your verdict must be not guilty.

“13. The fact that the plaintiff was requested to go to the field to keep chickens out of the grass and that pursuant to such request he did go into the field, and that except for such request plaintiff would not have been injured, will not of themselves justify you in rendering a verdict in plaintiff’s favor.' In other words, inviting him into the field and asking him to take care of the chickens is not the direct, immediate, proximate cause of the injury. A person might go into a field and drive chickens a month and not run into a mowing machine. The proximate cause of the injury was getting in — was the knives coming in contact with his leg, and the question is in reference to his right to recover whether he was careless in getting there and also whether she was careless in not preventing the accident.

(“14. Therefore, those things must concur; his entire freedom from carelessness and her carelessness as the sole cause before there can be a recovery.)

(“15. The plaintiff, the little boy, was only bound to exercise such care as a boy of his years and knowledge would ordinarily exercise under like circumstances. It is for you to say whether a boy nine years old would know what it was to get in front of those knives and what diligence he would exercise to keep out of them. You are to consider all the circumstances attending the accident, the boy himself, his knowledge, his experience, what he knew or should have known, in determining whether he was careless and thereby aided in bringing about the injury. He should have known whatever was apparent to him which a boy of that age would understand.)

■ “16. I give you those instructions with reference to the boy’s 'duty — what is incumbent upon him. Now, if he is at fault under these instructions, that is the end of the case and you do not have any occasion to consider anything else. Your verdict will then be not guilty. (But if under the evidence in this case you think the boy was exercising due care, such caré as a boy of his age, knowledge and experience under those circumstances, and in view of what he could see should exercise, then you would pass to the consideration of the next question,) (was Mrs. Cowing guilty of negligence which produced this injury and was it her fault and her fault only? If so, then the plaintiff has made out the two propositions necessary for him to make out and would be entitled to damages.)

“17. The defendant in this case, Mrs. Cowing, is only chargeable with the use of ordinary care. That is, she should use the care and caution that an ordinarily careful and prudent person would use or exercise in the same place and under the same or similar circumstances. You should consider all of the circumstances attending her movements and her conduct that morning. Have in mind the field, the tree, her proximity to it and the boy, and where he was and what he was doing as she saw him, and all the circumstances that will enable you to determine whether at the time of the accident or immediately preceding it she was guilty of carelessness, of not observing that, due care which an ordinarily careful and prudent person would in the same place, amid the same surroundings and under the same circumstances observe.

“18. If in view of the situation and what she was doing and where she was doing it she was using the care that an ordinarily careful and prudent person, in the same situation and under the same circumstances, taking also into consideration where the boy was and what she saw or should have seen, would exercise, then she was not guilty of negligence and is not liable.

(“19. To make her liable, she must have been herself careless, and such carelessness, as I have before said, must have been the sole cause of the boy’s injury.)

(“20. If when she last saw the boy he was in a safe place and not where by his position or action or movements she had reason to suspect he would change his place to where he would be in danger, and at this time of seeing him it was very shortly before the accident, and hey attention was directed to driving her machine around the tree and without any reason on her part to suspect he would run in front of the cutter bar, and he did so suddenly and she had no opportunity to prevent the accident to him, she should not be adjudged careless or negligent and in such event she should not be found guilty, even if the boy himself was free from negligence.)

(“21. If the boy was in close proximity, where he might get in front of the machine, and it was apparent to her and she did not warn him, why, then, it might possibly be carelessness on her part according as you view the entire situation, what she did, what she was doing and anything that might engage her attention in taking care of her machine on account of her taking her machine around the tree. All these circumstances you must consider.)

(“22. It has been conceded in this case that under the testimony if the boy had not taken the last step or two steps, whatever it was, to get the frog, the knives would have passed on by him. Counsel say that will be conceded. Now, he did take that last step or two steps in getting the frog. Is she to blame for that? Has her carelessness brought about that injury to the boy solely?)

“23. In reference to that — because that gets it down to a close — where you may easily understand and appreciate — taking that step or two steps — consider the age, experience and knowledge of this boy, what he knew about the machine and what it would do or didn’t know about it, where she was with her team when he took the last step or two and how close, and say was he careless to take such last step or two steps. If so, under the instructions I have given you as to the care required of a boy of his age and experience, he cannot recover without any reference to her conduct. You are to consider the entire case, all the facts and circumstances and all my instructions on that subject.

“24. If the boy did not exercise due care which I have explained to you and which it was his duty to exercise for his own safety and protection, then he cannot recover. (And if she was not negligent, or her carelessness or negligence was not the sole and only cause of the injury, then,he cannot recover.) If she was careless and her carelessness or want of due care was the sole, the entire cause of the accident, then he can recover.

(“25. Now, then, gentlemen, you should determine whether or not the boy has made out in his favor these two propositions, he was not careless, and that she was and her carelessness was the sole cause of the injury. If you find that is true, find those inquiries in favor of the boy, you reach the question of damages. If you do not find both of those propositions in favor of the boy, you have no occasion to consider the question of damages but should come into court and render your verdict of not guilty.) * * *

“40. Now, gentlemen, your verdict in this case will be in form either guilty or not guilty. (If you are not able to say that the boy was free from carelessness which helped to bring about his injury to himself and that she was careless and solely responsible — her carelessness is the sole cause, then you need not consider the question of damages but your verdict would be not guilty.) If you think the boy was entirely free from carelessness for which he is responsible, and that she was careless and her carelessness was the sole cause of the injury, then your verdict would be guilty and in connection with the verdict of guilty you state the damages you award.”

The trial resulted in a verdict for the defendant of not guilty. The plaintiff has brought error, and the first error assigned relates to the action of the court in overruling plaintiff’s challenge for cause of the juror Milton J. French. Error is also assigned upon the refusal of the court to give the foregoing requests to charge, and in charging the jury in the language expressed in the several parentheses in the charge as set forth.

1. It is strenuously urged by appellant’s counsel that the court erred in overruling the plaintiff’s challenge of said juror, thus making it necessary for the plaintiff to exercise his final peremptory challenge, to remove the juror from the panel. We have, at the expense of tediousness, deemed it our duty to set forth in full the examination, on oath, of the juror French. Counsel for plaintiff quote in extenso from 24 Cyc. pp. 186, 268, 278, 283 and 285, also cite the recent case of Peklenk v. Isle Royale Copper Co., 187 Mich. 644, where it was held by this court that an employee of a mining company. under the same general management as the defendant company, but having an independent and separate superintendent and conducting its operations separately, was disqualified to sit as a juror, and the language of this court is quoted to the following effect:

“It places him in a situation which appeals to his selfish interest, and that is a very potent factor with the average person in controlling his actions.”

Counsel for plaintiff do not insist that the question here involved is the same as in the cited case, but say,—

“we submit that selfishness is no more a potent' factor than friendship, depending entirely upon the circumstances and personal feelings of the person involved,”

—and argue that because French had expressed a friendship for the defendant and her sons that he was thereby disqualified. We have considered this matter with considerable care in connection with an examination of our decisions. We have said, in substance, that the fact that a person summoned as a juror has a general social acquaintance with one of the parties to a case, and for that reason prefers not to sit, is not ground for challenge, where he declares that should he sit he could and would render a verdict according to the evidence. Brennan v. O’Brien, 121 Mich. 491.

The question is really one of degree and one that appeals to the judgment of the court. In the instant case it does not appear that the juror had formed an opinion in the case, nor that plaintiff had any ground of objection to any of the jurors who finally sat in the case, but the plaintiff was obliged to exhaust his peremptory challenges in order to get rid of Mr. French. That the challenged juror had a general acquaintance with, and expressed friendship for one of the parties, was not ground for challenge for cause, where it appeared, as it did here, that he could and would try the case impartially, “although it would make it harder,” for him. He had never talked with any of the parties, nor their relatives respecting the case, and had never heard the case discussed. We cannot say that the ruling of the court was erroneous.

2. The court did not' err in refusing to give plaintiff’s requests to charge, above set forth. We think it would have been error to have given the second, third and fourth requests, because it cannot be said, as matter of law, that the defendant was guilty of negligence in the manner there indicated. We think that the question of defendant’s negligence was one for the jury to consider.

The sixth request to charge, in our opinion, was given in substance by the court in its general charge. Upon the subject of refusal to give that request counsel for plaintiff cite the following cases: East Saginaw City R. Co. v. Bohn, 27 Mich. 503; Wright v. Railway Co., 77 Mich. 123, and claim that the charge of the court was erroneous in the light of those cases. We have examined them with care, and are of the opinion that the refusal and the charge as given are not open to the criticism of counsel which is indulged in. In short, it may be said that the entire charge of the court correctly covered the law of the case. There is a great deal of repetition in discussing the charge of the court, which it is unnecessary for us to follow.

Upon the subject of proximate cause counsel for plaintiff cite 1 Thompson on Negligence, § 48; also §§ 51, 52, 53; Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469; Lane v. Atlantic Works, 111 Mass. 136; also Calliari v. Fisher, 190 Mich. 56, and the language of Justice Brooke in that case. We have spoken so recently and so often upon this subject that it is hardly necessary to cite cases.

Counsel for defendant have called attention, upon the subject of proximate cause, to Stoll v. Laubengayer, 174 Mich. 701. We have frequently held that in submitting a case to the jury the charge should be construed together, as a whole. The circumstances surrounding this case and the issue between the parties made it necessary to submit the questions to the jury, and they seem to have been submitted with great care and fairness. The age of the boy, his negligence, if any, and his opportunity to observe obvious danger were all dwelt upon by the court, as was the claimed negligence of the defendant.

The following cases dealing with the subject of the contributory negligence of infant plaintiffs, we need only cite: Ecliff v. Railway Co., 64 Mich. 196; Henderson v. Railway Co., 116 Mich. 368; Zoltovski v. Gzella, 159 Mich. 620 (26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752); Mollica v. Railroad Co., 170 Mich. 96 (L. R. A. 1917F, 118); Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271); Knickerbocker v. Railway Co., 167 Mich. 596.

An examination of the entire case satisfies us that it was carefully and fairly submitted to the jury, and the issue was made plain by the charge. Finding no reversible error in the record, the judgment of the circuit court is affirmed.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Ostrander, J., did not sit.