text:
    VAN AUKER v. TOAN.
    1. Fraud — Evidence—Presumption.
    Fraud is not to be presumed or lightly inferred.
    2. Same — Cancellation of Instruments — Deeds.
    In a suit for the cancellation of certain deeds, claimed to have been obtained by fraud by defendants, in an ex'change of properties, the burden of proof resting upon plaintiffs is not sustained where the proof of defendants’ participation in the fraud rested upon inference or suspicion; the evidence showing that plaintiffs relied upon the real estate broker who represented them and with whom all their dealings were had.
    3. Appeal and Error — Delivery of Deeds — Review.
    Where, from the evidence, the court below might well have found for defendants that the delivery of the deeds was completed, a decree dismissing the bill without passing, upon the question of delivery will be affirmed, upon appeal.
    Appeal from Jackson; Parkinson, J.
    Submitted October 16, 1918.
    (Docket No. 73.)
    Decided December 27, 1918.

      Bill by Ira Van Auker and others against Robert Q. Toan and others for the cancellation of certain deeds on the ground of fraud. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      James J. Noon and Thomas M. Poynton, for plaintiffs.

      John F. Henigan, for defendants.
   Stone, J.

The bill of complaint herein was filed for the purpose of obtaining cancellation and surrender of certain deeds executed by the plaintiffs to the defendants Robert O. Toan and wife, and an abrogation of plaintiffs’ contract or bargain of purchase of a certain farm taken in exchange therefor. In May, 1915, the plaintiffs were the owners of five houses and lots, all subject to mortgages, in the city of Jackson, which they had listed with Harry J. Holt, a real estate agent, to sell for them, and he had examined the properties. The defendants Robert O. Toan and his wife, Edna M. Toan, owned an equity in a farm of 105 acres in Columbia township, Jackson county, known as the Johnson farm, which they held under an assignment of a land contract bearing date August 7, 1912, made by James Johnson and wife of the first part, and John H. Griffith and wife of the second part, the consideration of which was $4,000. This contract had been assigned by said Griffith and wife to said Toan and wife on October 5, 1914, in a trades for certain other Jackson real estate. Eight hundred dollars had been paid upon this contract, and it provided that on October 1, 1915, there would be due thereon $160 of interest, and $200 of principal. This property, by the Toans, had been also listed with Holt for sale. Both the plaintiffs and said defendants Toan were, in a measure, represented by the said Holt.

The case presents mainly disputed questions of fact, and there is a great conflict in the testimony of the parties, and the record is a large one. The learned circuit judge, after hearing all of the testimony, upon the final hearing, denied relief to the plaintiffs and dismissed the bill of complaint. The plaintiffs have appealed, and they state that the grounds upon which their appeal is based are:

(1) That there was no valid delivery of the deeds.

(2) That the consideration has wholly failed.

(3) That defendants secured possession of the deeds fraudulently.

The manner in which the exchange of properties was brought about is pretty well illustrated in the testimony of the plaintiff Ira Van Auker. On direct examination, after describing the Jackson city lots and property, he testified:

“I first met Holt in April, 1915. He came to our place with a gentleman to look at the house we had for sale. I didn’t know anything about the Johnson farm then. Mr. Holt came up to our place about a week later to look those houses over, and we listed them with him to sell.
“Q. When did you first learn of the Johnson farm?
“A. It wasn’t but a very short time after that he came to our place and he said he had a man on the string, he thought he could change those houses into a farm for us if we saw fit and get them condensed. I said to him we didn’t care for a farm. He said, T can change that farm for you right away into a block where you will have your property condensed and get out of debt.’ We considered — we had him look this deal up. He didn’t mention the Johnson farm at that time. A few days after he made the proposition about the Johnson farm. I wasn’t at home. I was in Battle Creek then. It must have been about the first of May that we discussed the matter. He had told my wife about this and she asked my opinion about trading for this place, and I said if the farm was worth the money, and he could change it off in such a way as we could get out of debt, that was what we wanted to do.
“Q. Was there any other talk until the 10th day of May?
“A. Not with me, no, sir.
“Q. On the 10th of May these deeds were made out, were they?
“A. Yes, sir. Just let me make one more statement. When I came home Saturday in the evening, he had made the proposition with my wife that he’d take us out to this farm on Sunday morning, all three of us (myself, my wife and son) to look the farm over, and I said I wouldn’t go on Sunday to look a piece of property over, and in the first place I wasn’t a judge of farm property, and he claimed to be a judge, and I said ‘let — if he is the judge that he says he is, he has been in it a lifetime — let him look the property over and if he is satisfied we can get the worth of our property out of it, we will make the change.’ The day the deeds were signed, we met at Holt’s office. I did not see Mr. Toan on that day.
“Q. Up until the time this deal was made had you talked with Mr. Holt about a land contract; anything said about a land contract?
“A. No, sir. There was an agreement by which the farm was to be retained by Toan until the first of November, and we were to retain the home we lived in. There was nothing further until fall, more than this. We called Holt two or three different times to get a deed of the farm and get it recorded, and he put us off, saying he had the deal for the block nearly completed, and to leave it in his safe until this was completed, and then we could make the change all at once.
“The Court: Did you suppose you were getting a deed?
“A. Yes, sir, never supposed that we were getting anything else but a deed.”

One cannot read this record without being satisfied that at this time both the plaintiffs and the defendants Toan and wife placed implicit confidence in the man Holt, who turned out to be dishonest, and later left the country. The only writing relating to the deal, save the deeds Of the houses and lots, and the assignment of the land contract from Toan and wife to the plaintiffs, consisted of the written agreement by which the defendants Toan were to retain the possession of the farm until November 1, 1915, and the plaintiffs were to continue to occupy one of the houses, involved in the sale in which they then lived, until November 1, 1915. The deeds that were executed upon the 10th day of May, 1915, were left with Holt, who also had the assigned land contract in his possession. Just what the understanding was, as to the delivery of the deeds was one of the disputed questions in the case, it being the claim of the plaintiffs that the deeds, as they testified, were left in escrow with Holt to be held by him until the whole matter was consummated.

It is the claim of the defendants Toan that the deeds were delivered absolutely to them, and that they were simply left in the possession of Holt as a sort of collateral security for the payment of a certain note for commissions, that had been given by defendant Robert O. Toan to Holt, and which note Holt had indorsed and discounted at a bank in Jackson.

It is significant and somewhat unusual, that the plaintiffs in this trade had personally no interviews-with the defendants Toan, but that Holt was the go-between in all of the negotiation. Possession had been, given to the defendants of the city property, with the-exception of one house occupied by the plaintiffs. There had been turned over to the defendant Robert O. Toan certain building and loan association books, relating to the mortgages upon the Jackson city lots, and certain money had been paid by defendant Toan to the building and loan association; a furnace and electric lights had been put in one of the houses which had been deeded to Toan and wife, and said defendants took charge of the property conveyed, renting portions thereof, with the one exception mentioned.

Things ran on until October 1, 1915, when Johnson, the owner of the farm in question, called the attention of the plaintiffs to the fact that an installment of principal of $200 and $160 of interest were due on the contract upon October 1, 1915, and that unless those amounts were promptly paid he should take steps to forfeit the contract. Although the plaintiffs claim in their testimony that they supposed they were receiving a deed of the Johnson farm subject to a mortgage of $3,200, yet they made an effort to raise the money to pay the installment due upon the contract, but were not successful. Johnson proceeded to declare the contract forfeited, but later offered to receive the amount due upon the contract, which would reduce the amount unpaid to $3,000, offering to deed to the plaintiffs, they giving him a mortgage back for $3,000, in accordance with the terms of the contract. This offer plaintiffs did not comply with, but refused to pay anything. After the plaintiffs were informed of the conditions surrounding the farm and the nature of their title thereto, or interest therein, which was about October 1st, they took no steps to rescind the trade.

The defendants Toan and wife, .about the middle of November, moved from the farm into one of the houses deeded to them by the plaintiffs, and adjoining the one occupied by the plaintiffs, and proceeded to collect the rents upon the other houses, except the one occupied- by the plaintiffs. The defendants also disposed of one of the houses and lots deeded to them, realizing a small sum therefor, and generally took charge of the property. Soon after this, and probably in the month of November, 1915, the plaintiffs consulted Mr. Kirkby, an attorney who had been doing some business for Johnson, relating to the forfeiture of the land contract. Mr. Kirkby was sworn as a witness in the case, and it appears from his testimony that the burden of the complaint of the plaintiffs to him was that Holt had misrepresented to them the value of the Johnson farm; that he had represented to them that the property was worth at least $5,000 over and above the incumbrance upon it; that he had promised to exchange that farm for certain property in the city of Jackson, known as the Pope block, on Francis street, and that they had placed implicit confidence in him.

This record shows that the plaintiffs have to blame their own credulity in believing all that Holt said to them. Mr. Kirkby saw Holt, who promised to adjust the matters, and Kirkby testified that he at that time learned that the deeds of the houses and lots in Jackson were still in the hands of Holt, and that Holt promised the same should not be delivered until the whole matter was adjusted. Mr. Kirkby advised against the payment of anything upon the land contract. Mrs. Van Auker, one of the plaintiffs, consulted with Mr. Kirkby, and upon that subject he testified as herein stated in the opinion of the court.

Holt left the country in December, 1915, and as the record shows he never returned. He left his office in charge of a Mr. Harrison. Mr. Toan went to the office to obtain his deeds after learning that they had not been recorded, as he claims Holt promised should be done and. the fees paid, as Holt had money in his hands belonging to Toan, arising from rents collected, and other moneys that he had collected and finally got away with. Harrison testified that Holt had said to him that the deeds were kept by him as collateral security for the note which had been given him by Toan for commissions, and which had been discounted by Holt at the bank; and that he would deliver the deeds to Toan as soon as that note was paid, or in some way canceled so far as his liability was concerned. Toan called upon Harrison for the deeds. He had canceled the Holt note by a renewal thereof, so that Holt was no longer liable thereon, and.claimed that he was entitled to the deeds. Harrison made search and could not find the deeds, but there was one compartment in the safe of which Harrison had no key. He later obtained the key to that drawer, opened it, and found the deeds, which he delivered to Mr. Toan, and the same were placed on record on February 21, 1916. Toan also served notice upon the plaintiffs to quit the possession of the house and lot occupied by them, and embraced in one of the deeds, they refusing to pay rent.

These are some of the salient points upon which testimony was given, and these conditions continued, until proceedings were brought by defendants Toan to obtain possession of the house and lot occupied by the plaintiffs, when the bill of complaint herein was filed on April 5, 1916, and an injunction was issued and served.

The learned circuit judge, in a carefully considered opinion, reviewed the testimony in the case at some length. The first question considered by him in his opinion was as to whether defendant Toan was shown to be a party to the fraud.

Second. Whether the transfer of properties was complete so that Holt may be said to have been holding the deeds of the Van Aukers for the defendants Toan. In other words, As to the Van Aukers, had there been a delivery?

Third. Whether delivery was or was not complete, Are plaintiffs now entitled to a rescission of the contract?

The learned circuit judge found upon the first point that there was no direct evidence of any fraudulent act or misrepresentation on the part of defendant Toan. In fact, it may be said, from this record, that the plaintiffs hardly knew the defendants Toan. They did business with the man Holt; and they allowed Holt to represent them in the trade. The circuit judge found that if the conduct of Toan was to be questioned in respect to his good faith, it could only rest upon inference or suspicion, and that the proofs in his judgment did not establish it; that fraud is not Co be presumed, or to be lightly inferred. In this view we are constrained to agree with the trial judge. We are of the opinion that the plaintiffs have not sustained the burden of proof placed upon them relating to this question.

2. Upon the second and third points the circuit judge reached a conclusion which he stated as follows:

“2. As to the kind of conveyance or transfer to be made by Toan to the Van Aukers and whether the transfer was intended to be complete, there is evidence on either side. The Van Aukers claim they were to have a warranty deed; that they were told the outstanding indebtedness on the farm was secured by a mortgage on which no principal was due for three years and that they had no knowledge Toan’s interest was only that of a vendee in a land contract or that a payment of $200 of principal besides $160 of interest fell due October 1st. They never went to inspect the farm; they never sought to ascertain, except from Holt, the nature of Toan’s interest in the farm; nor to have any abstract of title furnished or to be shown Toan’s deed, but trusted all to Holt.
''And before October 1st and soon after the execution of the deeds and the assignment of Toan’s contract of 'purchase, the parties began to perform and carry out their bargain. Toan took possession of a part of the property, disposed of another part. Whatever the parties did before October 1st I do not regard as so material and significant as what they did after that date. And it seems to be conceded that Holt was holding out to the Van Aukers that he' could, trade their equity in the Toan farm for a certain building in Jackson and if not, he could for other property and so improve their financial condition. After they learned of the situation of the farm, as to title and value, from its owner, Mr. Johnson, and on or about October 1st, they consulted Mr. Kirkby, who was then also the attorney for Mr. Johnson, who was seeking payment of the interest and $200 installment of the principal. They then learned the condition as to title and Toan’s interest in the farm when Johnson pressed for pay October 1st, or very soon thereafter.
_ “After that they sought to have Holt make things right and directed him to keep in his possession the deeds made by the Van Aukers and all papers then held by him until he should make things right. He promised to do this. After some delay he absconded. Then Toan went to Holt’s office and induced the person in charge to permit him to obtain the deeds. He claims they were his and that he was entitled to them. They claim they were not his, that Holt was simply the custodian holding them in escrow; that they had the right to recall them and that Toan can derive no advantage from so obtaining the possession of these conveyances. I am inclined to think I need not finally pronounce an opinion upon this question, as I think the next proposition I discuss may dispose of it.
“After October 1st the Van Aukers seem to be laying all responsibility on Holt and to be pressing him to make things right. Toan was still in the possession of the Johnson farm; Johnson was pressing for payment. They visited Kirkby, Johnson’s attorney. They even make some proposition to turn over a contract to satisfy Johnson, which Kirkby informs them Johnson will not accept. They seem even at that time disposed to make some arrangement and to keep the farm. Kirkby testifies that from what he learned of the_ entire transaction, Holt was trying to defraud plaintiffs out of their property. He says Holt was evidently delaying the thing and it looked like he was going to beat them out of all the property they had. And during the arguments of counsel, Kirkby was again placed on the stand and the following occurred:
‘The Court: Did she make complaint that if the deed had been given to Toan it was wrong, in violation of any understanding?
‘A. X don’t think she did at first until she found out the condition of affairs, then, of course, she became satisfied everything was wrong.
‘Q. I know, hut I want to get the conversation; if she made any claim that the deed wasn’t to he delivered until some other things were all done, and if it had been delivered it was contrary to the understanding by which. Holt held it. Did she make any such claim as that?
“ ‘A. I don’t believe so.’
“And it must be remembered that no notice was given to Toan of any rescission, nor that he should not receive the deeds, or obtain them, or that he should not take further possession of the Van Auker property, or that they would not accept, assume or perform the land contract and that to save it from forfeiture he must himself perform its conditions. Nor was any demand made upon him to give up or re-transfer any of the property of the Van Aukers over which he had taken control or exercised dominion.
“In addition, in November they permitted him to move into one of the houses on one of the lots they had executed deed of to Toan, and without protest or objection although that lot was next to their own home, or the house they occupied. They did not, of their own accord nor under the advice of Mr. Kirkby, make any claim or demand on Toan or give him any notice whatsoever.
“All this seems to have a material bearing upon the question as to the character of the delivery. However, as I before remarked, the next proposition I discuss, in view of my conclusions respecting it, I will not lay down any final opinion upon this question as to the character of the delivery to Holt or his possession or custody. Nor have I assumed to refer to or review all of the testimony on both sides bearing upon this question of delivery.
“3. If all the contentions of the Van Aukers as to fraud on Toan’s part and as to delivery were to be resolved in their favor, still would they now be entitled to a decree for a rescission or cancellation and restoration of their title?
“I understand the rule of law to be that one who is defrauded by another in respect to a contract- may either rescind or stand upon his bargain, ratify and confirm it.
“I also understand it to be the duty of one who desires to rescind or repudiate a bargain because of fraud, to act promptly on discovery of the fraud and riot to proceed further or continue to act under the contract or recognize it as binding. As before stated, the Van Aukers learned the truth on or about the first day of October respecting Toan’s title , to the farm; the condition of his contract as to payments; the amounts paid and owing; the purchase price and everything they now know pertaining to Toan’s interest and the terms on which he held and the value of the farm. They make all of their complaints to Holt and to Johnson and his counsel, Kirkby, who also advises them. They do this early in October. Toan still lives on the farm. They give him no notice of a rescission nor make any demand for him to yield up any property he has received from them. They do not forbid his moving onto one of the lots traded to him. He does not do so until after the middle of November. They do not talk to him at all about the situation. Their attorney does not.’ They urge this was not necessary, as Holt was his agent as well as theirs. But I hardly think Holt was such an agent of Toan’s that under the circumstances no other notice to him was necessary. They at least could have mailed him notice or sent it by Johnson, or have been prompt in letting him know that he must give up what he had enjoyed under the deal with them; that he could have nothing further; that they would not take possession of his farm or assume and perform' the contract of purchase and that he must take care of his contract, rights or lose them. I cannot help suspecting this would have been done had Mr. Kirkby known there was any claim that Toan was guilty of fraud or of participation in it.
“On the contrary, Toan is suffered to ignore the Johnson contract, to let it be forfeited; to move off the farm and to move into one of the Van Auker houses with full knowledge on the part of the Van Aukers that they had been deceived and defrauded. They knew as much early in October as they know now, or at least might have known, but they suffer Toan to change his situation and his relation to the farm and lose by forfeiture such rights as he had and to his pecuniary loss and even to go on unopposed to take possession of additional property under his contract arrangements with the Van Aukers. And they do not in this proceeding offer to restore to him what he turned over to them, nor can they now do so, but remained silent and inactive as to him, and themselves permitted the forfeiture to become complete and Toan’s loss of his contract interest to become final and irreparable.
“If they believed Toan himself was a party to the fraud and if he was such party, still it was their duty to act promptly, after they knew of the fraud _ and not to hold the contract and permit the forfeiture without giving Toan the opportunity to himself provide against it. He who asks equity should do equity. What he has obtained under a fraudulent contract he should restore if he asks a return of what he has parted with.
“As to the defendants Mr. and Mrs. Toan, I think it must be held that the Van Aukers cannot now rescind. If there was fraud to which Toan was a party, the repudiation of it has not been timely. If so, as to Toan and wife, the contract must be held to be in force.
“It results from these findings that the bill must be dismissed.”

After carefully reading and considering the testimony in this case, we have reached the conclusion that the circuit judge might well have found in favor of defendants upon the second question; that he made a proper disposition of the case, and that from all the evidence in the record, we do not feel justified in changing the result reached by him. The decree below is in all things affirmed, with costs to the defendants to be taxed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    OXFORD v. BERRY.
    1. False Imprisonment' — Habeas Corpus — Res Adjudicata — Parties Concluded.
    In an action for false imprisonment against the sheriff, deputy sheriff, and probation officer, a judgment discharging plaintiff in habeas corpus proceedings directed against the sheriff was not res adjudicata as to the deputy sheriff and probation officer, they not having appeared in same so as to be in any sense a party thereto.
    2. Divorce — Alimony—Default—Contempt—J urisdiction.
    Where plaintiff had been arrested upon an attachment issued in pursuance of Act No. 379, Pub. Acts 1913 (3 Comp. Daws 1915, § 11443), being an act to facilitate the collection of alimony, and had a hearing, the court had jurisdiction to enter an order finding him guilty of contempt for default in payment of alimony, and committing him to the charge and custody of the probation officer until all sums of money due for alimony were paid.
    3. Same — Arrest—Bench Warrant — Contempt.
    Plaintiff being at large, and having been found guilty of contempt, it was competent for the court to issue a bench warrant for his arrest.
    4. Contempt — Arrest—Bench Warrant.
    A “bench warrant” is defined as a process issued by the court itself, or “from the bench,” for the attachment or arrest of a person, either in case of contempt, or where an indictment has been found against him.
    5. Arrest — divorce—Contempt—Bench Warrant — Surplusage —Protection of Officer.
    When the record showed that plaintiff was prima facie guilty of contempt — failure to pay alimony — and such charge was written in the printed form used for the bench warrant, said warrant was fair upon its face, and a protection to the officer making the arrest, although it contained certain redundant matter, which was mere surplusage, no information having been filed by the prosecuting attorney, as recited therein.
    6. Evidence — Circuit Courts — Judges—Judicial Notice.
    The Supreme Court will take notice that there was more than one judge of the circuit court for the county of Kent.
    7. Arrest — Duty to Present Party Before Court — Delay — Breach of Duty.
    When an officer has made an arrest, it is his duty, even in criminal cases, as soon as possible, to bring the party before the court according to the import of the warrant, and if the officer be guilty of unnecessary delay in so doing, it is a breach- of his duty which is the same whether the arrest was made with or without process.
    8. Same — Unseasonable Time — Reasonable Delay.
    If the time when the arrest is made be -unseasonable, or in or near the night, whereby the officer cannot attend the court, or if the party be sick or the like, the officer may secure the prisoner in a house or other place until the next day, or until such time as it may be reasonable to bring him into court; and this rule is applicable in eases of civil contempt as well as in criminal contempt.
    9. False Imprisonment — Delay in Arraignment.
    Where the officer unreasonably delays in making the arraignment, the delay amounts to false imprisonment.
    10. Same — Delay—Question for Jury.
    The facts in this case being in dispute, the question-.,as to whether there was an unreasonable delay in presenting plaintiff before the court was one for the jury; but where the facts are conceded or clearly established the question is one of law for the court.
    11. Same — Right to Arraignment — Waiver.
    Prisoner’s right to be presented before the court without unreasonable delay may be waived by him.
    12. Same — Good Faith — Justification.
    Good faith does not excuse an unauthorized arrest, nor an unreasonable detention and deprivation of one’s liberty.
    13. Same — Trespasser ab Initio — Intent.
    An unlawful detention, following a lawful arrest by a sheriff, does not make him a trespasser ah initio, in the absence of evidence of intent to use said airest for a subsequent wrong.
    14. Arrest — Custody—Incarceration Among Felons — Statutes.
    Where plaintiff was under arrest charged with civil contempt, but no judgment had been pronounced against him, his “incarceration among felons,” was in violation of his rights under section 14762, 3 Comp. Raws 1915.
    15. Witnesses — Evidence — Admissibility — Res Adjudicata — Cross-Examination — Credibility of Witness.
    In an action for false imprisonment for contempt, the merits of the divorce case, out of which the contempt charge arose, was inadmissible except as affecting plaintiff’s credibility, on cross-examination.
    Error to Kent; Collingwood, J., presiding.
    Submitted October 23, 1918.
    (Docket No. 22.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Case by Richard E. Oxford against Charles A. Berry and others for false imprisonment. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed as to defendant Berry, and affirmed as to other defendants.

      Broomfield & Worcester and Lombard & Hext, for appellant.

      H. Monroe Dunham and John M. Dunham, for appellees.
   Stone, J.

This is an action on the case for damages for false imprisonment of plaintiff against the defendant Berry, sheriff of Kent county, defendant Griswold, deputy sheriff, and defendant Hyde, probation officer of said county. The following are some of the salient features of the case:

The wife of the plaintiff had filed a bill against him for divorce in the circuit court for the county of Kent, in chancery, on June 17, 1914. On July 1, 1914, upon the petition of the wife, the court upon due hearing ordered the defendant therein (plaintiff here) to pay to the register of the court the sum of $15 per week in advance, the first payment to date from June 29, 1914, and a like sum of $15 on Monday of each week thereafter for her support, and the- support of the minor children of said parties, during the pendency of the suit. Also that said Richard E. Oxford pay to the register of the court the further sum of $50 for complainant therein for the purpose of supplying her said children with necessary clothing and immediate supplies. Also that he pay to the register within 30 days from the date thereof, the further sum of $25 for solicitor’s fees.

On September 9, 1915, upon the sworn petition of the complainant therein, alleging that said Richard E. Oxford was in arrears on said order, in the sum of $256.50, and had violated said order, and had failed and neglected to pay said amount for such purposes, it was ordered by the court that a precept of attachment issue out of and under the seal of the court, directed to the sheriff of said county, commanding him forthwith to take the body of said Richard E. Oxford, and keep him in actual custody, and bring him forthwith before the court, and keep and detain him until it should make some further order in the premises, or until the defendant therein should be discharged according to law.

Under date of September 11, 1915, appears the following order duly entitled in said cause, as. a court order, and signed by Willis B. Perkins, the circuit judge:

“In this cause a writ of attachment having been heretofore issued out of and under the seal of this court against the defendant, Richard E. Oxford, for his misconduct and contempt in violation of the order for payment of alimony, heretofore issued in this cause, which writ of attachment was directed to the sheriff of the county and was returnable forthwith, and the sheriff having returned that he had attached the said Richard E. Oxford and taken his body, and had him in custody before the court, on the said 11th day of September, A. D,. 1915, and the said Richard E. Oxford having been personally before the court by virtue of said attachment on the said 11th day of September, A. D. 1915, and it appearing to the court, after having heard the answer of the said defendant, Richard E. Oxford, that the said Richard E. Oxford is guilty of, and has committed the misconduct and contempt charged: It is ordered and adjudged that the said Richard E. Oxford is guilty of the said misconduct and contempt alleged, and that the said misconduct and contempt was calculated to, and did, injure and impair and prejudice the rights and equities of the complainant in this cause, and it is therefore ordered that the said Richard E. Oxford be, and he hereby is, ordered to stand committed to the charge and custody of Joseph E. Hyde, probation officer of this court, and to remain charged with such contempt until all sums of money due and unpaid on the order for alimony, heretofore referred to, be fully paid and satisfied, or until the further order of this court.”

After this order of September 11, 1915, no further order of the court appears to have been made in said cause, and the plaintiff herein was treated as on probation, under the charge and supervision of defendant Hyde, as probation officer. Said probation officer permitted this plaintiff to return to his home in Big Rapids, and he was visited there by the said probation officer.

Act No. 239, Pub. Acts 1913 (3 Comp. Laws 1915, § 11449), being entitled—

“An act to authorize courts of record to place parties found guilty of contempt of court for failure to pay alimony, temporary or permanent, on probation in divorce and separate maintenance cases,”

—is discussed by counsel. It may be said in passing that there is no claim that plaintiff was ever sentenced for contempt of court, or that any commitment for contempt has ever been issued against him.

Later, and on the 22d of November, 1915 (the plaintiff herein being still in arrears in the payment of alimony), upon the verbal request and report of the defendant Hyde, Judge Perkins signed and delivered to said defendant a paper called in this record a “bench warrant” in the words and figures following:

"Greeting.
“To the Sheriff of said County:
“In the name of the people of the State of Michigan: You are hereby commanded to arrest the body of Richard E. Oxford, and bring him forthwith before the circuit court for the county of Kent, to answer unto an information filed against him in behalf of said people by the prosecuting attorney of the county of Kent, aforesaid, for the crime of contempt of court, failure to pay alimony.
“Given under my hand and the seal of said court, at the city of Grand Rapids, this 22d day of November, A. D. 1915.
“Willis B. Perkins,
“Circuit. Judge.
“Prosecuting Attorney.”

Concerning this bench warrant defendant Hyde testified, on cross-examination, as follows:

“I caused the bench warrant (defendant’s exhibit 10) of November 22d to be issued. I did not file any affidavit with Judge Perkins before it was issued, and did not after either of these bench warrants. After the clerk made it out, I took it up to Judge Perkins and asked him to sign it, and he did. I read it when it was made out in the clerk’s office. I read what was there. Don’t know whether Judge Perkins read it before he signed it or not. He looked at it; he didn’t read it aloud. * * *
“Q. Well, you know what an information is, speaking of the criminal law, do you not?
“A. Yes, sir.
“Q. Yes. And you know what a crime is, speaking of criminal law, do you not?
“A. Yes, sir.
“Q. You knew who the prosecuting attorney was at that time, did you not?
“A. Yes, sir.
“Q. Did you ever present this document to the prosecuting attorney of Kent county?
“A. No, sir.
“Q. The prosecuting attorney had not filed' any information against Mr. Oxford, had he?
“A. No, sir.
“Q. You knew that at the time you presented this to Judge Perkins, did you not?
“A. Sure.
“Q. Yes, and you knew that Mr. Oxford had not committed any crime, didn’t you?
“A. No, he had not committed any crime. * * * I knew that no affidavit had been filed with Judge Perkins as the basis for the issuance of that bench warrant. When I saw Mr. Oxford in jail in November, 1915, he was in the big cage upstairs. They keep persons convicted of and charged with felonies and misdemeanors in that cage. I couldn’t tell you how many were there at the time I saw him.
' “Q. Well, would you say there was one, or twenty?
“A. Well, I would say there was one, but I would not say there were twenty.
“Q. You would say there were more than one, and less than twenty, would you?
“A. Yes, sir; easy. I talked with him there just a few minutes at that time. After Judge Perkins signed it, I took the bench warrant of November 22d to the sheriff’s office and presented it to Mr. Gibbs, the chief deputy, and asked him to see that it was served. I didn’t tell the clerk, that I remember of, what to put in the bench warrant when he made it out. He wanted to know what it was and I told him it was a bench warrant for Richard E. Oxford, contempt of court, failure to pay alimony, and he made that part out in accordance with my instructions. The written part was dictated by me.”

The plaintiff herein was arrested in Big Rapids on November 22, 1915, on the said bench warrant by the defendant Griswold, and brought to Grand Rapids.

Referring to the bench warrant of November 22d, defendant Griswold, on cross-examination, testified:

“This is the only document I had in my possession when I -went to Big Rapids at that time and took Mr. Oxford into custody. I had no written commitment. I first brought him to the sheriff’s office. Don’t remember whether we had any conversation going from the train. I would not say whether or not he requested a hearing before the judge. If he says he did, I wouldn’t deny it. After bringing him to the sheriff’s office, I went to see if the judge was there. Mr. Oxford was not there. He was in the sheriff’s office, and did not hear what took place between me and the judge. After I came out from the judge’s office, I took him over to the jail and did not bring him before the judge that night. Exhibit 10 is the only document I had in my possession at that time with reference to Mr. Oxford. From November 22d to November 29th, I did not bring Mr. Oxford before the judge. Don’t recollect having any talk with Mr. Oxford at the jail. I didn’t know, at that time, in what part of the jail he was confined. I learned later. I knew that the reason for his arrest was that it was claimed he was not paying alimony.”

It appears to be undisputed that the plaintiff was placed in that part of the jail reserved for the detention of persons charged with and convicted of crime, and was kept there until November 29, 1915, when he was released, but not as the result of any hearing in court.

Again, and on December 27, 1915, another bench warrant was issued for the arrest of the plaintiff, signed, and in the exact form, except as to date, as was the writ of November 22, 1915, and issued under similar circumstances. Referring to this last warrant, defendant Hyde testified:

“I had a second bench warrant issued on December 27th for the same purpose — to get Mr. Oxford to pay alimony; that was the sole purpose.”

Referring to this second arrest, the defendant Gris-wold testified:

“I next saw him the morning of the 4th of January. I arrested him that morning. Exhibit D-12 is the only document I had in my possession then. On this occasion, I also first took him to the sheriff’s office, in the court house. It was in the morning. I think I took him into Judge Perkins’ office. I won’t say for sure. I am pretty positive I took Mr. Oxford into the judge’s office with me on that occasion, but I might be mistaken about that. I left him in the office in charge of Mr. Gilman when I went to dinner, and he took him to jail at my request and told him that the court ordered him over. I did not bring him to court at any time, from January 4th to February 10th for a hearing. The only written authority I had was exhibit 12.”

The plaintiff testified that from the time he was arrested on November 22d, until his release on November 29th, he was not brought before any court or magistrate and given a hearing. Referring to the last arrest he testified:

“On the 4th of January, 1916, I was again arrested at my office in Big Rapids by Mr. Griswold. He took me to Grand Rapids. * * * He took me to the sheriff’s office, in the court house. We stayed there a little while and he went out. I told him I wanted to see the judge, and he came back and told me the judge was not ready for me, that we would have to go down to the jail.
“Q. Did you tell him what you wanted to see the judge for?
“A. Yes; I wanted a hearing. * * *
“Q. Did he tell you when the judge would be ready for you?
“A. No, sir. Then he took me down to the jail, and put me in the same place as before, in the same part of the jail. * * * On this occasion I was there from January 4th to February 10th, 87 days, during which time I was not out of the cage at all.”

Judge Perkins was called and sworn as a witness for the defendants. Relative to the bench warrants, and to the action taken thereunder, on direct examination, he testified as follows:

"I remember issuing the bench warrants of November 22d and December 27, 1915. My recollection is that Mr. Oxford appeared before me with the probation officer shortly after the bench warrants were issued.
“Q. Do you recall what disposal was made of the matter on the two occasions that Mr. Oxford was brought before you on those two bench warrants?
“A. Yes. On one or two occasions. I directed the officer to take him to jail to await further action of the court. * * * I think those were the occasions when Mr. Oxford was brought before me on those bench warrants with the probation officer. Of course, I have had a great many similar cases since that time, and my recollection is rather indistinct, but that was the usual custom and that is my recollection as I have it now in reference to this.”

On cross-examination he testified:

“Q. Now, I think you said you didn’t know whether Mr. Oxford was actually brought before you on that bench warrant, or not?
“A. I can’t tell whether it was this one or some other bench warrant. I know he was brought before me on the so-called attachment of September 10th or 11th. He was brought before me on one or more of those bench warrants subsequent to the order placing him on probation. I wouldn’t fix the date at all. If he was brought before me on either of the bench warrants, he did not have any hearing at that time. No witness sworn or testimony taken at all. * * * He had no hearing before me between January 4, 1916, and February 10, 1916, and he had no hearing before me between November 22,, 1915, and November 29, 1915, that I recall, and during those periods, I issued no sentence or commitment confining him to the county jail.”

Section 4 of Act No. 105 of the Public Acts of 1913 (1 Comp. Laws 1915, § 2032) is referred to by defendants as authorizing the issuance of the bench warrants.

On February 10, 1916, upon the petition of the plaintiff, a writ of habeas corpus was issued out of the circuit court for the county of Kent, by Judge McDonald, directed to the defendant Berry, for the purpose of inquiring into the cause of plaintiff’s imprisonment. The return of said defendant stated among other things as follows:

“That said Richard E. Oxford was in his custody by virtue of an order of the circuit court for the county of Kent, in chancery, bearing date September 11, 1915, in the case of Nellie M. Oxford, complainant, v. Richard. E. Oxford, defendant, whereby the said Richard E. Oxford was adjudged guilty of contempt of court, and the said Richard E. Oxford was ordered to stand committed to the custody of Joseph E. Hyde, probation officer of Kent county, and the said Richard was taken into custody and placed in said county jail, by the authority and direction of the said Joseph E. Hyde, as probation officer, and under and by virtue of the authority of a bench warrant, issued December 27, 1915, by the Honorable Willis B. Perkins, circuit judge, under the seal of said court,” copies of which were attached.

The hearing was adjourned to, and took place February 19, 1916, at which time Judge McDonald determined and made an order as follows:

“That the order of this court, bearing date September 11, 1915, in the case of Nellie M. Oxford, complainant, v. Richard E. Oxford, defendant, whereby the said defendant was ordered to stand committed to the charge and custody of Joseph E. Hyde, probation officer of said county of Kent, did not authorize the commitment of said Richard E. Oxford to the county jail of said county, without the further order of the court, and it appearing that no further order was made therein; and it further appearing that the sheriff and deputy sheriff had no right to detain the petitioner in the Kent county jail, and especially in that part of the jail reserved for the detention of criminals; it is therefore .ordered that the said'petition be, and the same is hereby granted, and the said Richard E. Oxford be, and he hereby is discharged from the custody of the said Charles Berry, sheriff of Kent county.”

The plaintiff was thereupon discharged from custody, and on August 26, 1916, he began this suit. The declaration counts upon the said arrests of November 22, 1915, and January 4, 1916, alleging that plaintiff was arrested—

“without any process, and without any lawful process fair on its face, and without any sworn evidence being first filed with a magistrate immediately prior thereto, charging this plaintiff with the violation of some law for which lawful process could issue [defendants did] unlawfully cause the arrest of plaintiff, and did then and there unlawfully take him to the county jail of Kent county aforesaid, and did then and there, from November 22d to November 27, 1915, without any hearing, and against his will, unlawfully detain him in a cell, in that part of said jail reserved for, and where persons held for, and convicted of high crimes and misdemeanors were incarcerated, which part of the jail was infested with rats, and cockroaches, and did then and there unlawfully open, inspect and read plaintiff’s outgoing mail, and did then and there greatly injure him, in his good name,” etc.,

—in violation of his constitutional rights, naming them, and contrary to section 10534 of the Compiled Laws of 1897 (3 Comp. Laws 1915, § 14762). A similar charge is made with reference to the arrest of January 4, 1916.

Under the plea of the general issue the defendants gave a lengthy notice that they would justify their action under the said order of September 11, 1915, and said bench warrants and the statutes applicable to such proceedings. At the close of all the testimony, and upon the motion of the defendants, the trial court directed a verdict and judgment for the defendants to be entered, and the plaintiff has brought the case here on writ of error.

There is a large number of assignments of error. Instead of treating them separately, we will consider the points argued by appellant in his brief, all of which a,re covered by the assignments of error.

It is first claimed by appellant that the order made by Judge McDonald in the habeas corpus proceeding was a final order, and that the matters passed upon and determined by him are res adjudicaba, not only as to defendant Berry, but as to defendants Hyde and Griswold, they having made affidavits in support of the return of the sheriff to said writ, as to matters not within his personal knowledge.

Appellant refers to the case of Castor v. Bates, 127 Mich. 285 (89 Am. St. Rep. 471), as supporting this contention. We do not think that case a parallel one. In that case the plaintiff, having been arrested on a ca. sa. at the instance of the defendant, sued out a writ of habeas corpus, and, on the hearing, after notice to defendant under 3 Comp. Laws 1897, § 9885, was discharged on the ground that the judgment upon which the execution was issued was void, it was held that such adjudication was conclusive in a subsequent action against defendant for false imprisonment. An examination of that case will show that defendant appeared as a party, and was heard in the case. In the instant case neither Griswold nor Hyde appeared or took any part in the proceeding, so as to be in any sense a party thereto. Neither of them had any control over the proceeding. We do not think they are bound by the judgment or order. Fowler v. Blount, 191 Mich. 575.

There is respectable authority which holds that an order or judgment in a habeas corpus suit is res adjudicaba as to the person charged with unlawfully restraining another of his liberty, until reversed in some proper proceeding. State, ex rel. Durner, v. Huegin, 110 Wis. 189 (85 N. W. 1046, 62 L. R. A. 700); 21 Cyc. p. 349.

It is the next claim of appellant that the order of September 11, 1915, was void, and no justification. We do not agree with this contention. In our opinion the court had jurisdiction to make the order of September 11, 1915. The plaintiff had. been arrested upon an attachment issued in pursuance of Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443), entitled:

“An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for divorce.”

He had been brought before the court and had had a hearing. It will be noted that the declaration does not count upon his arrest upon the attachment which brought him into court on that occasion. We passed upon this statute in Whitman v. Branstrom, 202 Mich. 457, and said:

“The statute contemplates that the party is not yet in contempt, and could not be, under our statutes and decisions until he had had a hearing in court.”

That hearing seems to have been had on September 11, 1915. We agree with counsel for appellant that the order made on that date indicates that the court had in mind the statute relative to contempt, to enforce civil remedies as amended by Act No. 230, Pub. Acts 1899, as the order set forth that the misconduct was calculated to, and did injure and impair the rights and equities of the complainant. It will be observed that no judgment was pronounced upon the plaintiff for the contempt of court, of which he was found guilty.

Counsel next discuss the probation law, and claim that the provisions of the uniform probation law (Act No. 105, Pub. Acts 1913) are not applicable to husbands found guilty of contempt of court for nonpayment of alimony; and that Act No. 239, Pub. Acts 1913, seeking to enlarge the scope of the uniform probation law, is unconstitutional. We do not find it necessary to pass upon this question, for we are of the opinion that the defendant therein (plaintiff here) being at large, and having been found guilty of contempt, it was competent for the court to issue a bench warrant for his arrest. A bench warrant is defined as a process issued by the court itself, or “from the bench,” for the attachment or arrest of a person; either in case of contempt, or where an indictment has been found against him. Black’s Law Dictionary.

It will be observed that this bench warrant was issued by the court, directed to the sheriff of the county, commanding him in the name of the people of the State of Michigan to arrest the body of Richard E. Oxford and bring him forthwith before the circuit court for the county of Kent; and it was under the seal of the court, thus distinguishing it from the writ passed upon by us in Whitman v. Branstrom, supra.

The next question discussed is whether the bench warrants were processes fair upon their face, and a protection to the persons acting under them in arresting the plaintiff. Applying the definition of process that may be said to be fair upon its face, we refer to the definition in Cooley on Torts (2d Ed.), at p. 538. This language has been referred to recently in Brown v. Hadwin, 182 Mich. 491 (L. R. A. 1915B, 505), and in Whitman v. Branstrom, supra.

It appears from this record that these bench warrants were filled out by defendant Hyde. He testified that they were printed blanks, and that he inserted the written matter, which consisted of the words “contempt of court — failure to pay alimony.” It, was a fact, appearing from this record, that the plaintiff was then prima facie guilty of contempt of court— failure to pay alimony, and that defendant Hyde stated the facts in that regard. The printed form contained certain redundant matter, because no information had been filed in behalf of said people by the prosecuting attorney of Kent county. Those words, we think, were mere surplusage in the printed form, and the gist of the charge was “contempt of court — failure to pay alimony.” After a somewhat lengthy examination of this subject, we are of the opinion that the warrants for the arrest of the plaintiff were fair upon their face, and a protection to the officers making the arrests. The writs issued from a court or body having authority by law to issue processes of that nature, and there was nothing upon the face of the papers to apprise that officer that they were issued without authority; nor does it appear that they were issued without authority. It follows, we think, from what we have said, that all of the defendants were protected in making the arrests of the plaintiff on the occasions complained of in the declaration. *

Whether the conduct of the defendant Berry was justified in detaining the plaintiff for the length of time he was incarcerated in the county jail under the circumstances appearing here, presents another question.

From this record it is a disputed question and may be said to be doubtful, whether the plaintiff was ever brought before the court in pursuance of the command of the writ. At all events, even if the officer was directed by the circuit judge who issued the writ, to take him to jail until such time as he could hear him, this did not justify the sheriff in holding him an unreasonable length of time. The writ did not command the sheriff to take the plaintiff before the circuit judge who signed the writ, but “before the circuit court for the county of Kent.” We will take notice that there was more than one judge of that court, and there is no claim that the circuit court was not in session during the period of imprisonment. It is elementary that, even in criminal cases, when the officer has made the arrest it is his duty, as soon as possible, to bring the party before the court according to the import of the warrant; and if the officer be guilty of unnecessary delay in so doing, it is a breach of his duty; and his duty is the same whether the arrest was made with, or without process. He must take him before the court as soon as he reasonably can. If the time when the arrest is made be unseasonable, as in or near the night, whereby the officer cannot attend the court, or if the party be sick or the like, the officer may secure the prisoner in a house or other place until the next day, or until such time as it may be reasonable to bring him into court. See English cases cited in Tiffany’s Crim. Law (Howell’s 4th Ed.), p. 103.

This rule is applicable in cases of civil contempt, as well as in criminal contempt of court. It is the duty of the officer who makes the arrest under warrant to exercise reasonable diligence in presenting the person arrested before the court; and it has been held repeatedly that where the officer unreasonably delays in making the arraignment, the delay amounts to false imprisoment.

In Anderson v. Beck, 64 Miss. 113 (8 South. 167), it was held that the unexplained detention of the prisoner arrested on warrant, for more than 30 days without bringing him up for examination or trial amounted to false imprisonment. What amounts to reasonable diligence in presenting a prisoner before the court depends upon the peculiar facts in each case. And whether a prisoner was detained for an unreasonable length of time before being presented for examination or trial is usually a question of fact to be determined upon the circumstances attending the particular arrest and detention. The facts are here in dispute, and therefore they became questions of fact for the jury. It follows that where all the facts are conceded, or clearly established, the question whether said detention was unreasonable is one of law for the court. See the very fully extended note to the case of Atchison, etc., R. Co. v. Hinsdell (76 Kan. 74, 90 Pac. 800, 12 L. R. A. [N. S.] 94), 13 Ann. Cas. p. 984 et seq.

Recent cases sustain the well-established rule that, as a prisoner is entitled to a hearing within reasonable time after his arrest, delay for an unreasonable length of time in bringing him before the court constitutes false imprisonment. Gomez v. Scanlan, 155 Cal. 528 (102 Pac. 12); Clark v. Tilton, 74 N. H. 330 (68 Atl. 335); and see numerous other cases cited in Keefe v. Hart, 213 Mass. 476 (100 N. E. 558), as reported in Ann. Cas. 1914A, at p. 716, and note on p. 717. This right may be waived by the prisoner.

In the instant case it is not claimed that the plaintiff ever assented to any delay. While he claims that he was constantly asking for a hearing, the most that is claimed on behalf of the defendants upon that subject is that he made no request in the matter.

In Linnen v. Banfield, 114 Mich. 98, which was an action for false imprisonment against Banfield, a police officer, and others, and after approving the directed verdict as to the other defendants, this court, speaking through Justice Montgomery, said:

“As to defendant Banfield the case is different. We think there was a case made for the jury on both counts. Assuming that the arrest without warrant was justified, it was the duty of arresting officers to take accused before a magistrate at as early a date as was practicable. This arrest was made on the evening of the 31st [December] and the plaintiff was detained without bail until the evening of the 2d of January. The information upon which the warrant was sworn out was all this time in the possession of the officers. We think it should not be held as a matter of law that this delay was reasonable. Malcolmson v. Scott, 56 Mich. 465. * * *
“The officers were authorized to detain the plaintiff on the charge of felony without a warrant for a reasonable time only. 1 Am. & Eng. Enc. Law, p. 732; Rohan v. Sawin, 5 Cush. (Mass.) 281. Time is presumed to be of some importance to one incarcerated without process, and promptness is required when the information, upon which proceedings are to be based is at hand, in order that the accused may not be deprived of the right to give bail. We do not overlook the claim that the officer was acting under the instructions of the prosecuting attorney, but we know of no rule which authorizes a prosecuting attorney to enlarge the authority of the arresting officer. While such instructions may bear on the good faith of the officer’s acts and thus affect the question of damages, it must be borne in mind that good- faith does not excuse an unauthorized arrest.”

Neither does it justify an unreasonable detention and deprivation of one’s liberty. There is, in other jurisdictions, an abundance of authority to the effect that an unlawful detention following a lawful arrest by a sheriff makes him a trespasser ab initio. But this court held in Friesenhan v. Maines, 137 Mich. 10, that an unlawful detention following a lawful arrest by a sheriff does not make him a trespasser ab initio, unless the original arrest was made with the .intent of being used for a subsequent wrong. We think that this rule is applicable to the instant case, as we find no evidence of such intent.

Much stress is laid by appellant upon the point that the plaintiff was “incarcerated among felons,” in violation of the statute already referred to. It should be borne in mind that the plaintiff never had been sentenced, and that no commitment had been issued for his detention. "He was simply charged with contempt of court; and, in our opinion, not with criminal contempt. It is true that the border line between what may be termed “civil,” and what “criminal,” contempt is exceedingly indistinct and narrow, leaving it often a question of extreme refinement as to whether the act was. one or the other. Of course, all judgments for contempt are, in a sense, punitive, since the sentence may be fine and imprisonment in both. But here there had been no judgment pronounced. In our opinion the statute relied upon by the appellant is applicable here, and the manner in which the plaintiff was treated by the defendant Berry while in custody and where he was detained, are matters, that were pertinent in the case.

There were certain cards introduced in evidence, known as the “yellow” card and the “white” card, which appeared to be instructions of the circuit judge relating to the question of probation. We think their introduction was not warranted under the notice in the pleadings, but we do not deem the question an important one.

The defendants in their evidence went far afield upon the question of the merits of the divorce suit. Save as a matter of cross-examination, as affecting the credibility of the plaintiff, we do not think that was an open question upon the trial.

In our opinion the court erred in directing a verdict in favor of all of the defendants; and the question whether the defendant Berry was guilty of an unreasonable detention in jail of the plaintiff should have b,een submitted to the jury under proper instructions ; and the case should go back for a new trial as to the defendant Berry, for the reasons herein stated.

Judgment as to the defendants Griswold and Hyde is affirmed, with costs; and as to defendant Berry is reversed with costs, and a new trial ordered.

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


author: Stone, J. MOORE, J.

text:
    BRITTON v. MICHIGAN RAILWAY CO.
    1. Appeal and Error — Assignments of Error — Sufficiency.
    An assignment of error that “the court erred in finding as a question of law that the plaintiff was guilty of contributory negligence,” fairly and sufficiently presents the question.
    2. Railroads — Personal Injuries — Crossing Accident — Contrib-utory Negligence — Directed Verdict.
    In an action against a railroad company for personal injuries by a 15-year-old boy who was driving a horse and buggy with the curtains up on a rainy day, testimony by plaintiff that he stopped and looked both ways when his horse’s head was about 18 or 20 feet from the track, and then proceeded to cross the track without looking again in the direction from whence the car came, although it was within the range of his vision, when he was struck and injured, held, by a divided court, to justify a directed verdict for defendant.
    Error to Kent; Brown, J.
    Submitted October 23, 1918.
    (Docket No. 4.)
    Decided December 27, 1918.
    Case by Claude Britton, an infant, by Ms next friend, against the Michigan Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed by a divided court.

      Martin H. Carmody, for appellant.

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

This case is here upon writ of error sued out by the plaintiff to review the action of the court below in directing a verdict and judgment for the defendant upon the ground of the contributory negligence of the plaintiff. The plaintiff having rested his case, upon motion of the defendant, the court directed a verdict for the defendant upon the ground stated. The action of the court in that regard presents the only meritorious question in the case. The assignments of error are criticised by appellee as too general, under the rule; but we think that the fourth assignment of error, that “the court erred in finding as a question of law that the plaintiff was-guilty of contributory negligence,” fairly and sufficiently presents the question. The action was brought to recover damages for personal injuries to the plaintiff, sustained about 10:55 a. m. on June 26, 1916. He was then a boy 15 years of age. The injury occurred at a crossing of the electric railway then being operated by the defendant, between the city of Grand Rapids and the city of Holland, the crossing being known as Shackhuddle crossing, in Ottawa county. The negligence complained of, and relied upon, was that the defendant neglected and failed to blow the whistle, or ring the bell when approaching the crossing, and that its train collided with the horse and buggy driven by plaintiff. The facts as to the conduct of the plaintiff are not in controversy, except as he varied his testimony upon some matters during the trial, as we shall notice.

At this crossing the railway runs north and south, having a double track, and the highway runs, practically, east and west. There is a downgrade of the tracks at the crossing, from the south to the north, the direction in which the defendant’s train, which caused the injury, was moving; which grade begins about 800 feet south of the crossing, and continues beyond the crossing. This grade is a little more than one per cent. The train which collided with the plaintiff’s horse and buggy consisted of a work car and two empty gravel cars. The work car was about as high as an ordinary box car — 12 to 13 feet — and the gravel cars had side dumps, about 6 feet high. The schedule of regular trains showed 21 trains to Holland, and 20 trains to Grand Rapids, daily. The plaintiff knew that gravel and freight trains were, from time to time, run over the railway. The train, as it approached the crossing from the south, was running from 25 to 35 miles an hour. Whether or not the whistle was sounded was a disputed question. The defendant did not claim that any bell was rung.

The testimony of the plaintiff was very lengthy, and cannot be all inserted here; but that part of it relating to his conduct in approaching the track, we think it our duty to here set forth. It should be said that he was a bright; intelligent boy, well acquainted with the location, and accustomed to driving the horse which he was driving that day. The trial took place in May, 1917, beginning on the 23d, about eleven months after the injury. He testified on direct examination :

“I am sixteen years old, was fifteen on the 26th of last June. I was at that time living near Shackhuddle, on the Shackhuddle road, a half mile west of the crossing. On the 26th of June last I had occasion to drive to Shackhuddle, to meet my father who was coming from Grand Rapids. I started to get him with a horse and buggy a little after ten. I had a single-seated top carriage. I live on the west side of Shack-huddle crossing, and when I arrived there I drove over on the east side, because the road was wider there so I could turn around easier.
“After I had turned around there I backed my horse up so I wouldn’t be so close to the track, and stopped about 70 feet from the track. I remained there about 20 minutes, and during that time one train went through towards Grand Rapids. No train went through going the other way. After waiting there 20 minutes I drove up to Mrs. McCoy’d to find out if that local I expected father on had gone through before I got there. (Mrs. McCoy lived a few rods west of the crossing.)
“Then I drove back again to the crossing, and drove across, and my horse being restless, I drove on up about 175 feet on the east side of the crossing and. turned around and waited for that car. I waited there about 10 minutes, and one car went through going towards Holland. None went through towards Grand Rapids. After I waited for some 10 minutes, it looked so rainy I put on my side curtains, and then it looked so rainy that I thought I wouldn’t wait for my father so I started for home. I was then 175 feet from the track. Before starting towards home, towards the track, I drove down a little ways and looked, stopped the horse and looked. I pulled the curtains loose from the top, and I looked out between the top of the curtain and the top of the buggy. I looked both ways. I looked up the track and down the track. I listened when I was there. At that time when I was there looking both ways there was no train in sight. * * * From that point I had a good view south along this track, and I could have seen a car coming' along there then for a distance of a number of poles. I did not see any car coming then from the north, and did not hear any whistle. After I had looked both ways, and listened, I then drove down towards the track. I went about 120 feet. I went to somewhere around 30 feet from the track. I then stopped and listened again and I looked on the track there. I looked both ways. I looked out of the buggy. 1 leaned forward and looked around the side curtains. I leaned forward far enough so I could get a clear view. I listened there. No whistle was blown. I have stopped at that crossing different times. I have lived out there near that crossing about a year. I have occasion to go across there different times. About once or twice a week, driving a horse. The same horse I had that day. I had stopped there bn other occasions, and the whistles can be heard for this crossing from the point where I stopped. I have nothing the matter with my hearing. I was listening that day. I heard no whistle either way. I recall which way I looked first when I stopped at the point just before crossing. I first looked south, and after looking south, I then looked towards the north. I was expecting the train with my father on from the north. That train was past due then. After I had looked to the north I started my horse up, and after I started my horse up I kept on looking and listening, and I just started up, and in a couple of seconds I thought I was struck. I saw the car before I was struck. It seems it was standing right aside of me, just as it struck me. It was a couple of seconds between the time I started up my horse the last time and I was struck. I continued to listen for trains from the time I left the 150 feet, where I was back on the hill, until I stopped at this crossing. There was no whistle blown during that time, and there was no whistle blown after I stopped 30 feet from the track up to the time I was struck. At the point where I stopped 30 feet from the track my horse’s head was about 18, 20 feet from the track. There are two trees on the south side of .the roadway just before you reach the tracks. These trees are about 10 feet distant from each other. Where I stopped I was about in the middle between those trees. There is an embankment along the railroad track there. * * *
“It hadn’t started to rain yet that day when I started home. It was getting ready, it looked as if it was going to start in a minute, but it hadn’t started yet. It was raining when I got to the crossing. The storm came up quickly. It got quite dark. After I saw the car right there upon me, the next I recall was when I came to, and I found myself lying near the track about 50 feet from the road.”

Upon cross-examination the plaintiff testified as follows:

“Q. You went from 30 feet to the track going 8 or 10 miles an hour, didn’t you?
“A. Yes. I never timed them trains. I don’t know how fast they do go.
“Q. You might have been going 10 miles, might you not?
“A. I might have.
“Q. At 10 miles an hour, and they going 60 miles an hour, they would go 180 feet while you were going 10 wouldn’t they?
“A. Yes, sir.
“The Court: Thirty and 180.
“Q. Well, he was going 30, yes. In other words, while you were going this 30 feet that train wouldn’t have gone to exceed 180 feet, would it?
“A. No, sir.
“Q. What?
“A. No, sir.
“Q. It couldn’t have, could it?
“A. No, sir. Undoubtedly I would have heard it there, if it hadn’t been for the storm.
“Q. And you could see a car coming between four and five hundred feet, couldn’t you?
“A. Yes, sir.
“Q. And when you got down at 25 feet frotn the first rail, you could see clearly a car coming clear from the top of the hill, couldn’t you?
“A. Yes, sir.
“Q. Well, it must have been in there somewhere, wasn’t it?
“A. I wasn’t looking that way just at that second.
“Q. Oh, you weren’t looking that way, is that the idea?
“A. I wasn’t looking that way just as they happened to come along there.
“Q. You were looking for a car in the opposite direction?
“A. Yes.
“Q. In other words, from the time you left this point 30 feet back, you were looking for the car that you expected in the opposite direction?
“A. Yes, sir.
“Q. Although this car was right there in sight, must have been?
“A. Must have been.
“Q. But you didn’t see it?
“A. I didn’t see it.
“Q. You didn’t look at it?
• “A. I didn’t see it until I got right on the track.
“Q. Until you got right on the track?' In other words, you went this 30 feet looking for the car in the opposite direction, is that right?
“A. I wasn’t looking that way at all. I was looking—
“Q. But that is what you were looking for, the car you thought your father was coming on?
“A. Yes.
“Q. From the time you left 30 feet back there, you were watching for that car?
“A. Yes.
“Q. Although this car that hit you was in sight in that distance?
“A. Yes, sir.
“Q. Now this horse wasn’t going so fast but what you could have stopped it?
“A. I presume not.' I could have stopped it.
“Q. Why, sure, you could have stopped it at any point along there, couldn’t you?
“A. Yes, sir.
“Q. So that if you had looked in the opposite direction you would have seen the car, wouldn’t you?
“A. I presume I would.
“Q. And you could have stopped your horse?
“A. Yes, sir.
“Q. At any point from the time you left this 30 feet back there, is that right?
“A. Yes, sir.
“Q. But you didn’t, did you?
“A. No, sir.
“Q. You were looking for the car in the opposite direction, is that right?
“A. Yes, sir.
“Q. Weren’t expecting this car?
“A. Wasn’t expecting it.”

On redirect examination he also testified as follows:

“Q. Now, when you got within 30 feet of the track, counsel has asked you if you continued looking the other way. At that point where you stopped 30 feet from the track, which way did you look first?
“A. Towards Holland. I looked carefully that way. There was no train in sight then. I am sure of that. Then after I looked that way I looked the other way and started my horse up. Then I looked towards Grand Rapids last, because I knew that car was late and was looking for it any minute, any second. When I looked that way I immediately started my horse up. After looking towards Holland I looked immediately towards Grand Rapids, and I started my horse up then when I looked towards Grand Rapids.
“Q. State what you did in the way of looking after you started your horse up?
“A. I started my horse, I kept on looking, and kind of that way (indicating) and just stopped looking and listening; as I got on the track I was still looking and listening, and I caught sight of that other car; I bent over_ looking, and I just got through looking there (indicating) when I saw this other car right at the side of me. I had started to look back the other way then. I just got through looking towards the north, and started to look towards the south again as I got to the track, and just as I got to the track, I seen it was on top of me.”

Later, the plaintiff was recalled and stated that he wanted “to make some corrections” of his cross-examination. Those corrections related to the speed of the horse, which he changed to about 5 miles an hour; he also corrected his former testimony as to the distance he could see south at 30 feet from the track, testifying:

“At 30 feet, on that day I could not see over 150 feet; on a clear day I could not see over 300 or 400 feet.”

Again he testified that he could see up the track about 200 feet.

Plaintiff’s testimony relating to the direction and way in which he looked after leaving the point 30 feet from the track remained unchanged. But one just conclusion can be reached from his testimony: Plaintiff was expecting his father on a car coming from the north, and during all the time that he was approaching the track from the point 30 feet east of the track, until the car was upon him, he was looking in a northerly direction, and never once looked. towards the south, the direction from which the work train was approaching, with which he collided. Had he looked south he would have seen the cars, for, according to the undisputed evidence, they were at that time within the range of his vision.

We agree with counsel for appellant that upon the subject of the contributory negligence of the plaintiff, the question “must be determined largely from the testimony of the plaintiff.”

The ground upon which the trial court directed the verdict is clearly stated in its charge as follows:

“A view to his left any time after he passed the tree would have disclosed the fact that this, car was coming. He says he could have seen 150 or 175 to 200 feet to the left if he had looked, could have seen it if he had looked. It seems to me that there cannot be any question about it, but that his. failure to look —and he said he had his horse entirely under control, could have stopped at any time or place from the 30 feet up to the track, that he could have seen the car within 175 feet south of the road if he had looked— it seems to me to be clearly an admitted fact of negligence to fail to look.”

In treating that question as one of law, the trial court referred to the case of Bray v. Traction Co., 191 Mich. 435, and quoted the following language of Justice Moore, who wrote the opinion in that case:

“On his [plaintiff’s] cross-examination he made it even more apparent that he looked but once, and that, if he had looked just before going upon the track, when there was an opportunity to do so, he could have seen his danger in time to avoid it. Under the version given by the plaintiff of the occurrence, we think the trial court was justified in directing a verdict, for the reason given by the following authorities.”

See cases there cited; also Congdon v. Traction Co., 199 Mich. 564.

We are left in no doubt concerning the manner in which the plaintiff was injured. As was said by Chief Justice Ostrander in Knickerbocker v. Railway Co., 167 Mich. 596, 602, in speaking of an infant ten years of age killed at a railroad crossing, we may say here:

“His intelligence and his ability to appreciate the danger which actually threatened, and to avoid it, if seasonably discovered, cannot be questioned. He did not discover the actual danger. Under the circumstances, he was chargeable with some degree of care for his own safety, and it does not appear that he exercised any care. The jury should have been so instructed.”

See, also, Mollica v. Railroad Co., 170 Mich. 96 (L. R. A. 1917F, 118), where a boy under ten years of age was held guilty of contributory negligence. The presence of the storm called for increased vigilance and care.

Some of the language of the trial court, in its charge directing the verdict, is criticised by appellant’s counsel. Upon this subject it is sufficient to say that affirmance of the judgment does not imply agreement with all that was said to the jury in directing the verdict. Schneider v. C. H. Little Co., 200 Mich. 874; Lewis v. Brick Co., 164 Mich. 489, 501.

We find no reversible error in the rulings of the court relating to the admission of evidence. In our opinion the court did not err in directing a verdict for the defendant, for the reason stated, and the judgment below is affirmed.

Ostrander, C. J., and Steere and Brooke, JJ., concurred with Stone, J.

MOORE, J.

(dissenting). I think the testimony presented a question of fact which should have been submitted to the jury.

Bird, Fellows, and Kuhn, JJ., concurred with Moore, J.


text:
    GARASZEWSKI v. WURM.
    1. Evidence — Stenographer’s Notes — Admissibility — Genuineness — Hearsay.
    A stenographer’s notes of testimony at a former trial are not original evidence, being neither read over to, nor signed by, the witness, and have no greater efficacy than those taken by any other person, and in the absence of the affidavit of the stenographer or other evidence of the accuracy and genuineness of such alleged testimony, it is merely hearsay.
    2. New Trial — Newly-Discovered Evidence — Cumulative.
    Where alleged newly-discovered evidence would, at most, be merely cumulative, a motion for a new trial was properly denied.
    3. Same.
    A motion for a new trial upon the ground of newly-discovered evidence is not regarded with favor,, the policy of the law being to require of parties care, diligence, and vigilance in securing and presenting evidence.
    4. Trial — Instructions—Evidence.
    In an action for personal injuries caused by defendant’s motor truck in April, 1916, a requested instruction that if plaintiff was injured in April or March, 1917, and concealed that fact, it might be considered in determining the weight of his testimony, was properly refused, there being no evidence that he was injured at that time.
    5. Same — Instructions—Damages.
    In such action, where defendant claimed that plaintiff was suffering from previous injuries, an instruction that previous injuries had no bearing- on the case unless they were of the same character, was not erroneous, it being evident that the court used the word “character” in the sense of kind, sort, or nature.
    Error to Wayne; Dingeman, J.
    Submitted October 9, 1918.
    (Docket No. 19.)
    Decided December 27, 1918.

      Case by Andrew Garaszewski against Otto A. Wurm for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Guy W. Moore and Hal P. Wilson, for appellant.

      Clarence P. Milligan, for appellee.
   Stone, J.

By his declaration and testimony the plaintiff herein claims that he was injured on April 4, 1916, by a motor truck belonging to the defendant, and being driven by his servant; that at the time the plaintiff was walking on the public sidewalk on the north side of Hendric street, at or near the intersection of the East Grand boulevard and Hendric street, in the city of Detroit; that the motor truck was operated in such a careless and negligent manner that it was steered and driven from the roadway over the curbstone and onto the public sidewalk, striking the plaintiff with great force and violence, before he had time to reach a place of safety, knocking him down and crushing his left foot and injuring his left knee; that he was severely and permanently injured in his left foot and ankle; that by reason of the said injury he was for a number of weeks laid up and kept from his work, which was that of a body-maker in the employment of the Packard Motor Company; that he was unable to earn his former wages by reason of the injury; that he suffered great pain, and had incurred a doctor’s bill, and had by reason of said injury a stiff ankle. The plaintiff is a Pole, and he testified through an interpreter. His testimony was corroborated by other witnesses who claimed to have been present at the time of the injury. There was also medical testimony as to the nature and permanency of the injury.

On behalf of the defendant, the driver of the truck testified that the plaintiff was not hit at all, or injured in any manner. The trial took place in May, 1918.

Upon the cross-examination of the plaintiff he testified as follows:

“Q. Have you ever had an accident before this time?
“A. He says, I don’t think if a person cuts his finger or something like this, that a person can live without it.
“Q. Did you ever have a street car accident?
“A. Yes.
“Q. How long ago did you have your street car accident?
“A. Several years ago. It would be 8 or 4 years ago.
“Q. And who was your doctor in that case?
“A. Different doctors. Whichever one I could get.
“Q. Dr. Griffiths?
“A. No. He says it was a different doctor. Tall fellow. Altogether different doctor.
“Q. And you were thrown as you were getting off the car. were you?
“A. The car just started and I fell down.
“Q. Fell down on the street, did you?
“A. On the street.
“Q. And how long were you laid up from that accident?
“A. Several weeks I was sick.
“Q. Did you ever have a lawsuit with the Detroit United Railway on that case?
“A. Yes.
“Q. Who was your lawyer in that case?
(Objected to by plaintiff’s counsel as incompetent and immaterial, and the objection sustained.)
“Defendant’s Counsel: If your honor please, it is nearly time for adjournment, and these things have developed, and I know nothing of, and I would like to have until this afternoon to look into the matter.
“The Court: Be back in your places at two o’clock, gentlemen.”

At two o’clock p. m. the cross-examination was resumed as follows:

“Q. As a matter of fact, your street car accident occurred on Friday, the 26th day of February, 1915, did it not?
“A. I do not remember the dates.
“Q. Well, it happened in February, 1915, didn’t it?
“A. With this last accident now, my memory is so that I cannot recollect things.
“Q. Well, at that time, did you then and there sustain a fracture of the ribs on the right side?
‘‘Plaintiff’s Counsel: Just a moment. I object to this. I object to any questions along this line, unless, if the court please, the only relevancy that any other injury that he got, might have, in this case, would be that he was claiming in this case for,,'some injury which he sustained on another occasion. Now, unless the counsel is going to show to the court that the injury which he claims in this case was due to some other accident, I object to any examination along those lines. I think we are entitled.to know whether he intends to do that.
' “Defendant’s Counsel: If your honor please, we are going to show that he claims to have been well before this accident, this street car accident, and that as the result of this street car accident, he was permanently incapacitated for work. Those injuries were permanent, and that he could not work as a result of these permanent injuries at that time. In other words, we think we have a right to show that he did not come in here a well man, according to the declaration in this case.
“The Court: Well, I will take the testimony.

(Question read to the witness.)

“A. I was injured on the right side; right side in my hips.
“Q. Causing continued and great pain in the side upon inhalations and deep breathing?
“A. There is nothing about me since. I am all right now.
“Q. And did you tell the court that that was a permanent affliction because of adhesions of the pleura and the ribs?
“A. I do not remember.
“Q. And that you received a severe concussion of the right ear drum, of a permanent nature?
“A. I can hear.
“Q. And do you say that your injuries from the street car accident were permanent, and will always prevent said plaintiff from engaging in hard manual labor, and permanently impair his health and strength?
“A. I don’t remember.
“Q. And did you tell the court that you were permanently hurt, crippled and injured?
“A. I say that I cannot remember distinctly now.
“Q. And that you had to go to the hospital?
“A. Yes, naturally, when I was hurt, I said that.'
“Defendant’s Counsel: I think that’s all.”

Later the plaintiff was recalled and testified as follows :

“Q. Mr. Interpreter, will you ask the plaintiff, after the street car accident, how long it was before he returned for the Packard Motor Car Company?
“A. It was some time, I exactly don’t remember, maybe four, maybe five months afterwards.
“Q. When you returned what condition were you in?
“A. I was 'not feeling just exactly.
“Q. Well, were you better, able to work, as you did before?
“A. Work, and I was strong enough to work.”

Counsel for defendant, among other things, requested the court to charge the jury as follows:

“Fourth: I charge you that if you find that the plaintiff was injured in April or March, 1917, and concealed that fact from you, then you may consider the fact of such concealment in determining the weight to which his testimony is entitled.
“Ninth: I charge you that under his oath it was the duty of the plaintiff to disclose to you every cause, fact, and condition, bearing on the extent of his disability.
“Tenth: I charge you that the wilful concealment of other disabling injuries, if you so find, with an intent to charge this defendant therefor, is fraud.”

Neither of the above requests to charge was given.

The case was submitted to the jury in a very full and clear charge, in which, referring to witnesses generally, the following language was-used:

“You have the right to say and ask: Has this witness, in telling his story, been fair and frank, or has he been elusive, trying to avoid direct answers to questions ? Has he tried to conceal, rather than to tell fully and fairly all of the facts? Is the witness interested in, the outcome of the case, or is he a disinterested witness? If interested, has he, notwithstanding any such interest, been entirely frank and truthful, or has his interest biased him and colored his testimony? These are the right considerations which should be borne in mind when you come to pass upon the relative value and weight of the testimony of each of the witnesses, for you have to plant your verdict upon what you find the truth to be. * * *
(“Now, gentlemen, if after a fair consideration of the case you determine that the plaintiff is entitled to recover, then another phase of the case arises for your consideration, and in this connection, I charge you that the courts are open to redress injuries, and persons have a perfect right to sue for injuries, sustained at the hands of others, one or more times, and the fact that the plaintiff was injured before the present accident has no bearing whatever on his right to recover in this case, unless the injuries sustained in some other case are of the same character as the injuries for which he is suing in the present case.)
“Now, in approaching the question of damages in this case, if you come to it, you should bear in mind that it is the purpose of the law in awarding damages to award full, fair, adequate compensation for any and all injuries -growing out of the accident complained of. The purpose of awarding damages is not to punish the defendant. No such theory as that at all should occupy any juror’s mind when he considers the question of awarding just and proper damages. But the rule of damages is to award, as nearly and fully as money can, each and every injury for which the jury find the defendant to have been responsible. Approaching this phase of the case, if you come to it, in that spirit, what are the elements that you may rightly consider, if you determine that the plaintiff is entitled to damages?
“First, let me say to you, gentlemen of the jury, that no damages canche assessed against this defendant because of any injuries which, the plaintiff may have sustained in any accident other than the one in question in this case.
“Excluding, then, any damages of the nature just suggested, you should ascertain the extent of any injury growing directly and necessarily out of this accident.”

The trial resulted in a verdict and judgment for the plaintiff for $2,500 damages and costs of suit. The defendant made a motion for a new trial, upon the following grounds:

1. That the verdict was excessive.

2. That on or about October 4, 1916, or six months after this claimed injury, plaintiff, in a suit against the Detroit United Railway, testified in court as follows: (Here follows alleged testimony of plaintiff in suit against the Detroit United Railway.)

3. That in the instant case, plaintiff’s witnesses testified that by September, 1915, he had entirely recovered from those former injuries, and plaintiff testified that he was off work, by reason of this accident, five weeks in the spring of 1916. That he had lost 60 or 70 days’ time. That his pay was reduced instead of increased. And that Dr. Griffith was not a witness for him.

4. That in plaintiff’s Detroit United Railway trial Dr. Griffith testified as follows: (Here followed the alleged testimony of Dr. Griffith in the case against the Detroit United Railway.)

5. That the plaintiff, and his doctors in this case, have in another court testified that plaintiff, at least six months after this claimed accident, was still permanently disabled, deafened and suffering a hip injury which he was trying to cure — that the doctor was trying to keep down the inflammation of the pleura, and that all these injuries were the result of said former accident.

6. That plaintiff claimed in this trial that, when this defendant injured him, the plaintiff was then a well man — whereas plaintiff was not well, and when he described his condition to the former jury, had forgotten all about this claimed accident.

7. That plaintiff had attempted fraud on this defendant; that he knew or was advised the proof of a former continuing injury would decrease his verdict, if any; therefore, that proof was missing.

8. That proof of the former testimony of plaintiff and his doctor would render a different result probable.

An examination of the affidavit in support of this motion fails to show where, or of whom, the alleged former testimony was obtained. There is no proof of its accuracy, or that such testimony was ever given by the plaintiff or by Dr. Griffith. The affidavit in support of the motion simply states—

“that he (deponent) was so busily engaged in the trial of this case, that he had no opportunity to secure the testimony of plaintiff and his doctor until after the trial.”

We infer from the brief of appellant’s counsel, that it is claimed that such alleged testimony was found in the court stenographer’s notes of the former trial. But we have repeatedly held that a stenographer’s notes of testimony are not original evidence, being neither read over to, nor signed by, the witness, and have no greater efficacy than those taken by the judge, or by any other person. Barker v. Hebbard, 81 Mich. 267; Toohey v. Plummer, 69 Mich. 345, 350. See collection of cases upon this subject in Merrill v. Leisenring, 166 Mich. at p. 227. In the absence of the affidavit of the stenographer, or some other evidence of the accuracy and genuineness of such alleged testimony, it was merely hearsay.

The motion for a new trial was denied upon this ground on its merits, and in his reasons for denying the motion the learned circuit judge said:

“In the trial of the case at bar, defendant was permitted to introduce the declaration filed in the case against the railway company, and plaintiff was cross-examined as to the injuries and claims made by him in the previous action. The proofs in the case at bar were closed on Friday afternoon, and at counsel’s request, the cause was continued until the following Monday for argument, and submission to the jury. On Monday, counsel for defendant asked leave to reopen the case to introduce further testimony; the case was reopened and a witness testified on behalf of defendant, as to certain matters not material to this inquiry. No request was then made, or at any time during the trial, for an opportunity to secure the testimony in the street railway case, nor was any claim made that any attempt had been made to secure the same, or that it was desirable to have it. No sufficient showing is now made, in my judgment, to warrant the court in setting aside this verdict upon this ground, especially in view of the fact that the alleged newly-discovered evidence would, at most, be merely cumulative.”

The court, however, held that the judgment was excessive, and required the plaintiff to remit $1,000 as a condition of denying the motion. That amount was remitted and the judgment stands for $1,500 damages.

Defendant’s counsel failed to except to the denial of the motion for a new trial, and application has been made to this court to remand the record for resettlement of the bill of exceptions, in order that defendant may reduce to writing and file an exception to the refusal to grant such motion. Without discussing the wisdom of the practice here proposed, it is sufficient to say that in our opinion such proposed exception would be unavailing, for the reason already stated, and for the reasons stated by the circuit judge.

“A motion for a new trial, upon the ground of newly-discovered evidence, is not regarded with favor. The policy of the law is to require of parties care, diligence, and vigilance in securing and presenting evidence.” Canfield v. City of Jackson, 112 Mich. 120.

This case has been referred to many times with approval, as an examination of Shepard’s Michigan Citations will show. The circuit judge reached the correct conclusion on the motion.

The case is here upon errors assigned by the defendant. The first error assigned is that the court erred in refusing to give the three requests to charge, above set forth. The fourth request was properly refused for the reason that there was no evidence that the plaintiff was injured in “April or March, 1917.”

The state of the record as it appeared upon the trial, did not justify the giving of the ninth or tenth request. The charge upon the subject of the credibility of witnesses was sufficient to cover the case, as presented by the evidence.

The second assignment of error is that the court erred in charging the jury in the language embraced in the parentheses, above set forth — and the court is criticised for using the words: “unless the injuries sustained in some other case are of the same character as the injuries for which he is suing in the present case.”

Taking the charge as a whole, it is evident that the trial court used the word “character,” in the sense of kind, sort, or nature, which was permissible; and when taken in connection with the language immediately following, we think was understood by the jury, and was not erroneous.

We find no reversible error in the record, and the judgment below, as modified upon the motion for a new trial, is affirmed.

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