text:
    HUGHES v. HUGHES.
    1. Logs and Logging — Liens—Logging Contracts — Presumptions.
    A contract for the purchase of posts, poles and ties was presumptively entered into with full knowledge of the rights of a camp foreman to a lien on forest products for labor thereon, upon the employers’ default, under the log lien law, and to enforce the. same, where such contract provided for advances or payments in instalments as the work progressed up to 50 per cent, of the contract price for ties and poles piled at the bank of the landing, to be estimated by the purchaser’s inspector, and the remaining 50 per cent, at delivery on board the vessel, all advances to be secured by a "bill of sale on cedar standing or cut on lands from which timber is to be cut,” and the posts, ties and poles were marked with the inspector’s initials after cutting, some in the woods before any money was advanced, and some on the bank before being watered for driving.

      2. Same — Liens—Necessary Prerequisites — Judgments.
    It was incumbent upon the plaintiff in proceedings by attachment under the log lien law (3 Comp. Laws, .§ 10756 et seg., as amended, 3 Comp. Laws 1915, § 14843 et seq.), in order to subject the property of the purchaser of logs, with whom he had no contractual relations, to a lien under the statute for labor, to show himself entitled to, and obtain a judgment against his employer.
    3. Same — Liens—Rights oe Intervening Owner — Validity.
    The intervening owner by purchase of property attached under the log lien law, who appears to contest the validity of a claimed lien for labor has the right, in connection therewith, to contest the amount claimed to be due from the employer, so far as it may have any bearing upon the amount of any lien claimed against his property.
    4. Same — Liens—Evidence—Question for Jury.
    Evidence held, to present an inference from which the jury might conclude that the poles, ties and posts attached were what plaintiff had worked upon.
    5. Judgments — Evidence—Basis oe Judgment — Conjecture.
    Where plaintiff, a camp foreman, furnished no definite data by which the jury could determine and differentiate between the time spent on the purchaser’s timber and at other things, a verdict fer $893, or $10 less than plaintiff’s entire claim, was based upon mere conjecture.
    Error to Bay; Coumans, J.
    Submitted April 13, 1917.
    (Docket No. 12.)
    Decided September 27, 1917.
    Proceedings by Frank J. Hughes under the log-lien law against John A. Hughes and the W. C. Sterling & Son Company, for work and labor. Judgment for plaintiff. Defendant company brings error.
    Reversed.

      H. V, Spike (M. L. Courtright, of counsel), for appellant.

      W. A. Collins, for appellee.
   Steere, J.

Plaintiff brought this action by attachment in the circuit court of Bay county under the so-called “log lien law” (3 Comp Laws 1915, § 14843 et seq.), to enforce collection of wages claimed due him for services performed while employed by defendant John A. Hughes, his brother, upon certain cedar posts, telegraph poles and railroad ties, which were purchased by the appellant, W. C. Sterling & Son Company. The forest products attached were cut from lands tributary to the Taquamenon rive'i in Chippewa county, and driven down that stream to its mouth, where they were delivered on board vessels to appellant, and by it taken to Bay City.

Appellant contracted the purchase of this cedar from defendant John A. Hughes in February, 1915, while woods operations were under way, agreeing to make advances, or pay instalments upon the output as the work progressed, up to 50 per cent, of the contract price for ties and poles piled at “the bank of landing,” to be estimated by its inspector, and the remaining 50 per cent, at delivery on board the vessel; all advances to be secured by a “bill of sale on cedar standing or cut on lands from which timber is to be cut.” These posts, ties, and poles were marked by the inspector’s initials after they were cut, some in the woods before any money was advanced, and some on the bank before being wateréd for driving. Under such conditions appellant presumptively made the contract with full knowledge of and reference to the statute giving the laborer a lien upon the forest products he helped to get out, and if the employer failed to pay the laborers for such work, their liens might, if the preliminary statutory steps were taken, be enforced by attachment against such products, in the circuit or justice’s courts of any county in the State, in which any portion of them might be situated' at the time of commencing attachment proceeding.

Plaintiff was employed by his brother, at the time appellant’s cedar was taken out, as camp foreman at $90 per month. After the last boatload of appellant’s cedar had been shipped to Bay City in the fall of 1915, he claimed a balance due him of $925 for labor upon it, extending from the time the camp started in September, 1914, until late in October, 1915. On November 2,1915, he filed with the clerk of Chippewa county, in which the labor was performed, a statutory statement and claim of lien in due form for work and labor performed in that county in cutting, skidding, handling, driving, etc., said cedar poles, ties, and posts, a portion of them stated to then be in Bay county, the last labor upon them performed October 23, 1915, the amount of wages due and for which a lien was claimed being $925. On November 11, 1915, plaintiff visited the office of Sterling & Son Company at Monroe, Mich. Of his mission and the result he testified:

“I was sent down by my brother to collect the full amount, and on arriving I tried to collect the money, and Mr. Sterling told me that it was impossible, that a $700 order had been sent in by a merchant, and that if he would pay me he would be liable himself for this $700 order, so I told him I didn’t have money enough to live on at the time, that I depended upon the money that I was to get from him, so he started to laugh, and he said, T won’t see you stuck,’ so he gave me a check for $50 with the understanding that the minute I was paid by Jack I would refund the money to him.”

He then commenced this attachment suit under the statute, in Bay county, to enforce the claim of lien which he had filed in Chippewa county. This, as the law provided, was combined with and contingent on an action and judgment in personam against his brother, whom the writ of attachment required the sheriff to summon, wherever he could be found within the State, in addition to attaching the cedar products stated to be “at the yards of W. C. Sterling & Son Company in Bay City, Mich.” The brother, defendant John A. Hughes, caused his appearance to be entered and pleaded the general issue, but thereafter interposed no defense, and sent a letter to plaintiff’s attorney containing a statement of plaintiff’s account, showing that defendant Hughes owed plaintiff Hughes a balance of $925 due for services during a period of employment for 13 months at $90 per month. The letter and statement were admitted in evidence at the trial against objection, in connection with plaintiff’s testimony, and a verdict was directed by the' court against defendant John A. Hughes under the undisputed evidence for $903.

Before plaintiff could subject the property of appellants, with whom he had no contractual relations, to a lien under the statute, it was incumbent upon him to show himself entitled to and obtain a judgment against his brother, by whom he was employed to do the work for which he claimed a lien.

“Proceedings to enforce a lien upon logs of the owner who is not in contract relations with the lienor, under this statute, assume a double aspect. As to the defendant in the suit, the proceeding is in personam, and the judgment obtained is a personal one, while the attachment against the logs of the owner is in the nature of a proceeding in rem. It is essential to the validity of proceedings in rem that notice shall be given of the time and place of condemnation. What, this notice shall be the legislature must prescribe. An opportunity’ must be given to the owner of the res to appear and contest the validity of the lien, and the amount due.” Reilly v. Stephenson, 62 Mich. 509 (29 N. W. 99).

Appellant appeared as intervening owner of the property attached to contest the validity of the claimed lien, having in that connection the right to contest the amount claimed due the brother, so far as it might have a bearing upon the amount of any lien claimed against its property. While objections were made and error is assigned on rulings in connection with that feature of the case, we are not impressed with their importance, and regard the serious questions involved here to be whether plaintiff has established any valid lien in his favor against the cedar products he attached in Bay county, and, if so, the amount.

Although it was shown that the cedar upon which plaintiff worked in Chippewa county was properly marked, no reference is made to any identifying marks in either the writ of attachment or in the sheriff’s return to the writ and inventory, which simply describes the property as “about” 7,000 cedar posts, 4,600 telegraph poles, and 8,000 railroad ties, without any statement of where located, who owned or claimed them, or how they were marked, if at all, and it is contended that a verdict should have been directed for appellant as requested because the record is destitute of any evidence of identification showing plaintiff performed any work upon the property attached. The return is manifestly scant and incomplete. Instead of counsel obtaining leave of the court for the sheriff to amend his return, he was sworn as a witness, and permitted to testify against objection that the cedar he attached was in appellant’s yards in West Bay City. It was also shown that the Hughes cedar from Chippewa county brought down by appellant was then in those yards. While meager, we think' that in connection with plaintiff’s testimony there was inferential evidence upon which a jury might conclude that the cedar atta'ched was that upon which plaintiff had worked.

It was also shown that the amount of cedar attached was worth about $14,000, and the levy concededly excessive. In relation to this there was apparently some agreement, or concession by counsel, not found in the record, as the court said at conclusion of the testimony:

“Let the record show that if a lien is found against the property it shall not exceed $1,200.”

As the .maximum amount of lien claimed was $875, with interest, the significance of this is somewhat conjectural. The jury found plaintiff had “a lien of $893 upon the property described in the declaration, not exceeding in value $1,200.” A motion for a new trial on various grounds, including alleged errors in the charge of the court, and that the verdict was contrary to the evidence and excessive, was denied.

When this case was tried in June, 1916, plaintiff was 23 years of age and a resident of Detroit. He testified that in 1914 and 1915 he worked as camp foreman for his brother on the Taquamenon river in Chippewa county, for 13 months at $90 per month, getting out this cedar, and claimed a lien upon it for his full wages during the entire time, deducting only what his brother had already paid, and the $50 given him by appellant at Monroe so he would not be “stuck,” as he expressed it, with the understanding that he would refund it the minute his brother paid him. It developed during his examination that during the 13 months of his employment his brother had other woods operations in progress in the same locality, to which plaintiff devoted a portion of his time. He testified that they went into camp on September 23, 1914, and did the preliminary work before starting to cut this cedar; that they ceased cutting in April, which he corrected by the statement, “there was some of that timber cut, if I don’t mistake, as late as June,” and they broke camp when they finished cutting; that they commenced to drive the timber some time in June, and the drive lasted until shortly before the boat was loaded, owing to the tide from the bay in Lake Superior breaking the booms and working it back and forth, and the last work on the drive was about Sep-, tember 20th, on which date he left for Sault Sainte Marie, and did not return until after the last boat was loaded and gone, It was shown that the drive down the Taquamenon river was only about 12 miles, and the last boat finished loading and left on October 1st. As to other work he testified on cross-examination that his brother made a contract with two other subcontractors to cut pulp wood, shingle timber, posts, ties, etc., and he was foreman over them; that other cedar was gotten out on the same land, at the same time, by other parties; that a contractor named Bolya got out some cedar for his brother, and some men outside his crew got out some boom timber; that the cedar gotten out by Bolya, was mixed with that involved here, and all went down the river in the same drive, but the 275 cords of pulp wood, which he superintended the work upon, was broken in under his direction at a prior time and was taken down by two men in a separate drive; that there were also about 700 pieces of the shingle timber which was not driven, and neither the. shingle timber nor the pulp wood belonged to appellant. Of this he further testified:

“About five or six men worked at the pulp wood, and some of the crew that worked in getting out poles, posts, and ties worked on the pulp wood, and they were under my charge, and some of the crew that was under my charge worked in getting out the shingle bolts.”

Of the work after they broke camp in the spring he said:

“We couldn’t do very much then, only get ready for the drive, and then when the boat would come up we hired men, and when the boat went away we would have to let them go.”

Four boats were loaded during the season — two in July; one took part of a load from there in August and the last came in during September, leaving October 1st, at which time plaintiff was absent. In explanation of his absence he stated that his brother ■ sent him to the Soo to try and make his credit good 'and “keep down” the merchants, who were getting uneasy, so they would send up more supplies for the men who were going to load the boat. He returned after the last boat had loaded and gone. About two weeks later, and within 30 days before filing his lien, as he states, he did some more work on appellant’s cedar by pulling up on the bank some of the posts and ties which had not been taken, and were adrift.

The court instructed the jury that they could not “find for the plaintiff for any time while he was working on other forest products not purchased by the claimant.” The jury found a lien of $893 in plaintiff’s favor, or $10 less than the entire amount for the 13 months due him from his brother. This was inevitably but a conjecture, for plaintiff claimed a lien for the entire amount, and furnished no dates, days, or definite data by which the jury could determine and differentiate between the time he spent on appellant’s cedar and at other things. In Glover v. Lumber Co., 94 Wis. 457 (69 N. W. 62), a similar condition arose under a claim of lien for sawing lumber by a plaintiff employed by the month, and shown to have devoted a portion of his time to other work. The court there granted a new trial, saying:

“It is evident that the jury had no testimony before them from which they could determine how much of the plaintiff’s time and labor was spent in manufacturing the lumber in question. At best, it could be but a mere guess. The statute gives a lien only for the labor and services performed in manufacturing the lumber. It is plainly the plaintiff’s duty to show the amount of such labor and services. Until he does, he is in no position to demand a lien. He cannot leave it for the jury to speculate upon, without evidence. There must be a new trial.”

Plaintiff’s own testimony shows clearly that a substantial portion of the 13 months he claims to have worked as a camp foreman for his brother was not devoted to work upon appellant’s cedar. It was incumbent upon him to definitely show the amount and value of such services before he could demand a lien. As he left it the jury could only make a random guess.

The judgment of lien is therefore reversed, with costs, and a new trial granted. .

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    BOLTON v. WALKER.
    1. Libel and Slander — Time, Place and Attending Circumstances — Malice—Presumptions.
    The time, place and attending circumstances are an important consideration in a charge of slander, and not only may the occasion and surrounding circumstances rebut the presumption of malice but a distinction must be recognized in many particulars between the same or similar defamatory words, when spoken in passion or in the heat of controversy and when deliberately written or printed.
    2. Same — Privileged Communications.
    There is an element of privileged communication in words spoken by one who is ex officio a member of the board of estimates of the city of Detroit at a regular meeting of such board and in discussion of a matter of public interest charging a member thereof with' being susceptible to improper influences.
    3. Same.
    Where the occasion and attending circumstances are not in dispute the question of privilege in uttering slanderous words is for the court.
    4. Same — Privileged Communications — Directed Verdict.
    Where a privilege in uttering slanderous words is found by the court to be absolute a verdict should be directed for the defendant.
    5. Same — Instructions.
    In case of a quasi or qualified privilege, the questions of slander or no slander, malice or no malice, are usually matters of fact for the jury, but the court must instruct the jury as to the nature and legal effect of the qualified privilege and its bearing upon the consideration of the facts in issue.
    6. Same — Qualified Privilege — Rule.
    The rule of qualified privilege in the law of slander relates more particularly to private interests, where the occasion casts upon the defendant a duty, or right, to communicate to another in regard to some matter of special concern to one or both or to others for the protection of society, or some interest he represents.

    7. Same.
    If the privilege in uttering slanderous words is absolute the questions of good faith and absence of malice are immaterial.
    8. Same — Matters of Public Concern — Absolute Privilege.
    Absolute privilege in uttering slanderous words applies more directly to matters of public concern, in regard to which it is considered for the general welfare that persons should be permitted to express their views more freely and fearlessly than in regard to private matters or persons.
    9. Same.
    Words spoken by the president of the poor commission of the city of Detroit, who is ex officio a member of the city board of estimates, with power to participate in the deliberations and proceedings of such board, but without right to vote upon measures brought before it, at a regular meeting of the board, and in relation to a matter of public interest, imputing that a member of the board was susceptible to improper influences, by bribery or otherwise, are absolutely privileged, since such board has a function in taxation demanding the exercise of semi-legislative discretion.
    Error to Wayne; Mayne, J., presiding-.
    Submitted April 18, 1917.
    (Docket No. 91.)
    Decided September 27, 1917.
    Case by Edwin C. Bolton against Wiliam M. Walker for slander. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      John E. Moloney (Monaghan, Monaghan, O’Brien & Crowley, of counsel), for appellant.

      Washington I. Robinson, for appellee.

      Authorities discussing the question of effect of qualified privilege of communication between members of an association or of a private corporation, are collated in a note in 26 L. R. A. (N. S.) 1081.
      As to burden of proving malice in case of qualified privilege communication, see note in 3 L. R. A. (N. S.) 696.

   Steere, J.

This is an action for slander, in which plaintiff recovered a verdict and judgment of $1,000 against defendant in the circuit court of Wayne county as damages for remarks in reference and reply to him by defendant at a public meeting of the board of estimates of the city of Detroit, of which both were members, held at the city hall in Detroit on April 25, 1913. Plaintiff is an attorney at law, who has been engaged in the practice of his profession in Detroit for many years, and had served several terms as a member of the board of estimates of that city. Defendant is president of Walker Bros. Catering Company, a corporation engaged in operating lunch rooms and doing a general catering business in Detroit. At the time of events involved here he was a member and president of the city poor commission, which consisted of seven members, and, as its president, ex officio a member of the city board of estimates, with power to participate in its deliberations, but without the right to vote upon measures brought before it.

The controversy in which the language complained of was used arose over an item of $600,000 in the annual report of estimates for care of the poor, made by the commissioners of the poor to the city council for its guidance in making up the city budget for the ensuing year; it being contemplated that sum would, if approved, be expended in building units to three hospitals in Detroit, which it was claimed the rapid growth of the city made imperative. Defendant was advocating and plaintiff opposing this proposition, over which considerable public interest had been manifested, owing to the congested condition of the city’s hospitals, and it having been under discussion at a previous citizens’ meeting held in the Cadillac Hotel. Under the local government of Detroit, its fiscal year ends July 1st, and preparatory to the city council providing to meet its expenses for the ensuing year the various departments of the city submit itemized estimates of their anticipated needs for the following year, which the city council passes upon and adopts, decreases, or increases as it may determine. Under its. charter the_ city also has a board of estimates to go over the budget after the council has passed it. This body is given no power to increase the estimates as determined by the council, but may disallow or decrease the same, its action being final, and as passed upon by it the estimates become the basis of the city tax to be levied the coming year.

Defendant had seen, but was not acquainted with, plaintiff. It was the custom of the mayor of the city to hold what are called “cabinet meetings” in the latter portion of each fiscal year before the council passed upon the estimates furnished by the departments. These were usually attended by the heads of the several departments and such members of the council and board of estimates as cared to participate in their discussion. At one of their meetings, this item for hospitals was called up, and an alderman named Barnett stated he had canvassed the board of aldermen in regard to it, and that 23 or 24 members would oppose it. Plaintiff was present, and then said it would not be approved by the board of estimates. Defendant was also present with the superintendent of the poor commission and inquired of him who plaintiff was. The superintendent'gave his name, and said:

“Mr. Bolton is a strong member of the board of estimates. If you expect to carry this appropriation, you will have to see Mr. Bolton and Mr. Barnett.”

The secretary of the poor commission, when talking the matter over with defendant, also advised him it would be well to see Mr. Bolton, who was an influential member of the board of estimates, and try to get him to withdraw opposition to the item. There is practically no dispute as to what was done and said at the meeting of the board of estimates on April 23d. Defendant and a Dr.' Hall had been delegated by the board of poor commissioners to urge favorable consideration of this hospital item at that meeting. Dr. Hall spoke, and defendant took part in the deliberations of the board, in advocacy of it, while plaintiff spoke several times against it, contending that it was an illegal subterfuge, and charged that the year before, when defendant was also a member of the board, an illegal appropriation for that department had been made. In replying, defendant made use of the language which constitutes the basis of this action. It is set out with variations in the three separate counts of plaintiff’s declaration, and the recollection of witnesses varies in unimportant 'particulars as to the phraseology; but it is undisputed that the material portions of what defendant said in the course of the controversy are substantially as follows:

“Estimator Bolton makes much of the fact that he is open to argument. Mr. Bolton has never been open to argumént. I was told, when I first came forward with my proposition for the care of the sick poor, that I would have to see Alderman Barnett and Estimator Bolton; that if I got them I would have both the council and the estimators. I want Mr. Bolton to understand that the poor commission absolutely refuses to do any lobbying to get through a worthy measure.”

Plaintiff arose and said, “Who told you I had got to be seen?” and defendant answered that he was so told at the mayor’s cabinet meeting. Plaintiff demanded that he name them, and defendant said, “There is one of them on the floor of this house now.” Plaintiff then said, “You have got your foot in it this time; I will make you prove it”; and defendant replied, “I will prove it, if necessary.” Both parties were angry at this time, several persons were standing up, and there was much confusion. Of the general trend of events one of plaintiff’s witnesses testifies :

“This meeting was a very warm one, and there had been considerable excitement, in view of the discussion of the hospital matter. Before this particular altercation between Mr. Bolton and Mr. Walker occurred, several warm and fiery speeches had been made by several, and the general discussion lasted about one hour and a half or two hours, and Bolton had spoken on the question two or three times. Mr. Bolton was one of the active leaders in the opposition.”

It is not shown that defendant at any time charged plaintiff with having in fact committed any corrupt or criminal act. The most that can be said of the language set out in the declaration, and shown to have been used by defendant, giving it the meaning charged in the innuendo, is the imputation that plaintiff was susceptible to improper influences, by bribery or otherwise. There is no charge or claim that defendant used any words implying dishonesty or corrupt tendencies, except the word “see,” and perhaps, in connection with it, “lobby.” The inducement, colloquium and innuendo of the declaration are similar in the three counts, charging in practically the same phraseology that defendant uttered the defamatory language alleged in the colliquium,

“meaning and intending thereby by the usual, ordinary, common, and popular accepted use, meaning, significance and interpretation of the said words and language; * * * to aver and charge that the said plaintiff was dishonest, disreputable, and corrupt, and susceptible to bribery, and that said plaintiff had and would corruptly accept a bribe and sell his influence and vote upon said measure for money or other remuneration, thereby charging him, said plaintiff, with dishonesty, and that he, said plaintiff would commit a felony and an offense for which plaintiff could be imprisoned under section 11312 of Miller’s Compiled Laws of the State of Michigan ('3 Comp. Laws 1915, § 14979).”

By reason of which it is alleged that plaintiff—

“is greatly prejudiced in his good name, fame, credit, and reputation; wherefore the said plaintiff says that he is injured, and has sustained damage to the amount of,” etc.

Aside from this, there is no averment of damages, special or otherwise, and no proof of any beyond what inferences may arise from the language used.

Aside from alleged defects urged against the declaration, defendant pleaded and claims that the language charged and shown to have been indulged in by him on that occasion was not spoken nor uttered maliciously against plaintiff, nor the word “see” used with the intent and meaning placed upon it by the innuendoes of plaintiff’s declaration, nor were the words charged and used susceptible of a defamatory meaning; that in any eventuality they were spoken at and during the deliberations of the city board of estimates, of which both were members, at a regular meeting, and in the discussion of a matter of public interest properly before it, and then called up for consideration; that the occasion made them privileged, and, if otherwise improper, no right of action could be maintained for that reason. It is well settled that the time, place, and attending circumstances are an important consideration in a charge of this kind. Not only may the occasion and surrounding circumstances rebut the presumption of malice, but a distinction is recognized in many particulars between the same or similar defamatory words, when spoken in passion or the heat of controversy and when deliberately written or printed, and that which would be actionable in libel may not support an action for slander. Newell on Libel and Slander (3d Ed.), § 49.

That there was an element of privileged communication in this case by reason of the occasion seems clear. Whether the privilege was absolute or qualified is a further question. When the occasion and attending circumstances are not in dispute the question of privilege is for the court. If a privilege is found by the court to be absolute, a verdict should be directed for the defense. If a quasi or qualified privilege, the questions of slander or no slander, malice or no malice, are usually matters of fact for the jury; but it yet remains for the court to instruct the jury as to the nature and legal effect of the qualified privilege and its bearing upon their consideration of the facts in issue. Neither was done in this case. Counsel preferred requests for instructions upon both propositions, alternatively as to qualified privilege, but they were not given. Without quoting at length, it may be said that the charge fairly instructed the jury as to the general principles of slander in a ease where the question of privilege is not involved, but failed to instruct them as a matter of law that the occasion was privileged in either degree, or to give defendant the protection either degree affords.

The rule of qualified privilege relates more particularly to private interests, where the occasion casts upon the defendant a duty, or right, to communicate to another in regard to some matter of special concern to one or both or to others for the protection of society, or some interest he represents, and the courts sometimes hold such privilege a complete defense to otherwise actionable utterances, as a matter of law, when satisfied no malice is affirmatively shown; Trimble v. Morrish, 152 Mich. 624 (116 N. W. 451, 16 L. R. A. [N. S.] 1017). If the privilege is absolute the questions of good faith and absence of malice are immaterial.

Absolute privilege applies more directly to matters of public concern, in regard to which it is considered for the general welfare that persons should be permitted to express their views more freely and fearlessly than in regard to private matters or persons. In Newell on Slander and. Libel (3d Ed.), § 506, the general rule is thus fairly stated:

“All actions for words so spoken are absolutely forbidden, even if it be alleged and proved that the words were spoken falsely, knowingly, and with express malice. This rule is, however, confined to cases in which the public service or the administration of justice requires complete immunity — for example, words spoken in legislative bodies, in debates, etc., in reports of military officers on military matters to their superiors; words spoken by a judge on the bench and by witnesses on the stand. In all such cases the privilege afforded by the occasion is in law an absolute bar to an action for defamation. In these cases the plaintiff cannot be heard to say .that the defendant did not act under the privilege, that he did not intend honestly to discharge a duty, but maliciously availed himself of the occasion to injure his reputation.”

That doctrine is discussed and finds support in Wachsmuth v. National Bank, 96 Mich. 426 (56 N. W. 9, 21 L. R. A. 278); Trebilcock v. Anderson, 117 Mich. 39 (75 N. W. 129), and Madill v. Currie, 168 Mich. 561 (134 N. W. 1004). In the instant case the alleged defamatory words were spoken in debate, by a public officer, in discussing a matter of public concérn, in which both he and plaintiff were officially interested and had a duty to perform, and on an occasion when it was properly up for consideration by a legally constituted public body, of which both were members, which had jurisdiction to dispose of the subject under debate and was then in session at a regularly convened meeting.

The board of estimates was created by legislative enactment and given a power of restraint in relation to taxation formerly vested in the electors. Board of Park Com’rs v. Mayor of Detroit, 29 Mich. 343; Robinson v. City of Detroit, 170 Mich. 168 (65 N. W. 10). The power of taxation is legislative, and rests in the legislature or municipalities or municipal bodies duly created by law to which such power is delegated. Cooley on Taxation (3d Ed.), pp. 100, 101; People v. Hurlbut, 24 Mich. 44, 70 (9 Am. Rep. 103). This board is given by the legislature a function in taxation, negative in its character, it is true, but demanding the exercise of at least semi-legislative discretion, with power and control in that municipality to disallow any item, parts of items, or the gross sum of different funds proposed and provided by act of the common council to be raised by taxation. Even if its reviewing power be thought to call for the exercise of a judicial rather than legislative discretion, the protective privilege of a member would be the same. The subject before the board and under discussion when the alleged defamatory language was used by one of its members involved the exercise of one or both of those discretionary functions.

Under the authorities cited, and many others to which they lead, we are well satisfied as a conclusion of law on the undisputed facts that the occasion presents a privilege absolute, and defendant’s request for a directed verdict should have been granted.

The judgment is therefore reversed, without a new trial.

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


text:
    WILLIAMS v. WILLIAMS.
    1. Deeds — T.eases—Cancellation of Instruments — Undue Influence — Burden of Proof.
    In a suit by an aged father against his son and daughter-in-law to set aside a deed of property to them subject to a life lease, in consideration of maintenance and support, the burden is on defendants to show that the agreement with the father is not to his disadvantage, is fair to him and of his own free will; that no advantage has been taken by them because of his age, mental condition, or confidence in them and that they have fulfilled the terms of their agreement, in letter and spirit, so far as permitted by him, and are ready and willing to continue so to do.

    2. Same — Evidence—Sufficiency.
    Evidence held, sufficient to show that plaintiff had not made out a case and that the contract was yet in force.
    3. Equity — Deeds — Leases — Changed Conditions — Duty of Court.
    If, as the result of unkind feeling developed between the parties to a deed by an aged father to his son and daughter-in-law in consideration of care and support on the premises in which the father retains a life lease, the father cannot agreeably and contentedly live with the children in the friendly relations contemplated by their agreement, it is within the power of the chancery court to subsequently require other suitable provisions to be made for him in other congenial surroundings by them or at their expense.
    Appeal from Calhoun; North, J.
    Submitted April 10, 1917.
    (Docket No. 118.)
    Decided September 27, 1917.
    Bill' by Charles H. Williams against Fred N. Williams and another to set aside a deed. From a decree dismissing the bill, plaintiff appeals.
    Modified and affirmed.

      Edward R. Loud (J. M. Hatch, of counsel), for plaintiff.

      Stewart & Jacobs, for defendants.

       On the question of undue influence in conveyance or transfer of property in consideration of support of the grantor or third person, see note in 52 L. R. A. (N. S.) 476.

   Steere, J.

On March 18, 1914, plaintiff conveyed to defendants, who are his son and daughter-in-law, a house and lot on Walnut street, in the city of Albion. The consideration was stated to be $1, with the following provision:

“This deed being made subject to a life lease made and executed by. the said parties of the second part to the said party of the first part, for and during his natural lifetime, conditioned for first party’s maintenance and support in sickness and in health so long as he shall live.”

Contemporaneous with this deed defendants gave to plaintiff a life lease of the property containing a lengthy agreement to support and care for him during the remainder of his life, stating in part that the deed of the property from him to them of that date was given in consideration of such support and maintenance, which meant—

“his comfortable board, washing, lodging, and kindly treatment at all times, and care, nursing, and medical treatment in times of his sickness and distress as his care shall reasonably appear to demand; * * * the intent being that the parties to these presents shall use and occupy the premises above described for their home as one family in that peace, harmony, and reciprocal courtesy towards one another that should always exist in families of respectability.”

The life lease further provided that, if defendants failed to keep their agreement in the particulars before stated, they should at once vacate and reconvey the premises to plaintiff, but by their—

“keeping and fulfilling the terms, covenants, promises, and agreements hereinábove set forth and expressed this lease and warranty deed of said above-described land and premises to first parties shall remain and be in full force and virtue.”

About a year after the deed was given plaintiff began this suit to set it aside and obtain a reconveyance, charging, in substance, that the deed was obtained from him by fraud and undue influence, that defendants had failed to live up to their agreement in various specified particulars, that he was dissatisfied, and it was understood between the parties that if they disagreed or he became dissatisfied at any time the property would be reconveyed to him.

Defendants by their answer made total denial of any solicitation, fraud, or influence on their part, undue or otherwise, to induce plaintiff to. give the deed, deny there was any misunderstanding or misrepresentation as to the contents of the instruments then executed, allege that they were drawn under plaintiffs direction, on his initiative, by his attorney, and accepted by them on his solicitation; that they were at the time living in their own home, where plaintiff lived with and was cared for by them, but in response to his request and proposal they'accepted the deed and assumed the obligations, removing with him to his former home, to which he was then anxious to return, and there kindly supported and cared for him in the manner specified in their agreement, where he remained with them apparently satisfied and contented until persuaded to leave his old home and them and induced to bring this suit by the jealous machinations of other relatives, who were seeking personal benefit; and that defendants are ready and willing, as they always have been and have offered since he left, to receive and care for him according to their agreement at any and all times he will return and make his home with them.

Plaintiff is an old man about 77 years of age, somewhat hard of hearing, a veteran of the Civil War, and a retired farmer. Some years before this deed was given he bought this house and lot on Walnut street for $1,200, and had lived there with his old wife since leaving the farm. When this case was heard the varying testimony indicated a then value of the property from $2,000 to $2,500. When plaintiff deeded it to defendants, his wife had recently died. Prior to her death the old couple had been living in this home together for some time alone, their five living children being mature adults and away for themselves. Defendant Fred N., who was their youngest child, was then a married man about 80 years of age, and had acquired a home of his own in Albion where he was living with his family. After his wife’s death, which left plaintiff alone with no one to stay with and care for him in his former home, he went to live with defendants, but was anxious to get back to the old home, where his wife died, and importuned defendants, to leave their home and move to his, where he could yet live with them. He admits that he desired and proposed this, but claims that Fred refused to go unless the property was deeded to him. This they deny, and claim both were his proposals; that he was welcome and well cared for in their home, and they only consented to comply with his solicitations after he had the papers drawn up without their knowledge, and requested them to join him in executing them.

That the presumptions are against transactions of this nature and they are critically scrutinized by the courts, putting the burden of proof upon those seeking to sustain them, requires no citation of authority. In view of plaintiff’s age, their kinship, and the confidential relations shown to exist between them at the time, it was incumbent upon defendants to show that the agreement with their father was not to his disadvantage, was fair to him and of his own free will, that no advantage was taken by them of his age, mental condition, or confidence in them, that they have fulfilled the terms of their agreement, in letter and spirit, so far as permitted by him, and are ready and willing to continue so to do.

The testimony was heard in open court. After hearing and seeing the parties and their witnesses, the court dismissed plaintiff’s bill, saying in part:

“But none the less the proof in this case satisfies me that the arrangement between the parties to this suit was entered into at the solicitation of the plaintiff and consummated by an attorney who took special pains to safeguard the rights of the plaintiff. The plaintiff is well advanced in years and is enfeebled to some extent both physically and mentally; but no other conclusion can be arrived at from the proof in this case but that the transaction into which he entered was carefully explained to him; that he entered into it knowingly and deliberately, and without any undue influence. And further than this the decided preponderance of the evidence fully satisfies me that the defendants in this case have performed the conditions in consequence of which the conveyance was given and still stand ready to.”

Of the attorney’s participation in the transaction, to which the court refers, it was shown that some days before these papers were drawn and executed plaintiff went, without defendants’ knowledge, to the office of Levi S. Warren, of Albion, a reputable attorney of long experience whom he had known for many years, and who had been his legal adviser, telling him what he proposed to do with the property and requesting that a deed be prepared from him to his son, who was the only child he' could depend upon. The attorney discussed it with him, suggested that such a course often proved unsatisfactory, advising him to wait and think it over, and when he reached a decision he might come again and let him know. Warren testified that, having thus put him off, he took it upon himself to see two of plaintiff’s old neighbors and make inquiry as to the character of Fred and his wife before anything further was done; that plaintiff came to his office again on March 18th, and said he had decided to have the papers made out; that witness then made out the deed and life lease, the latter being upon his own initiative, and read them over to plaintiff, who expressed himself as satisfied; that, while plaintiff was hard of hearing, witness had done quite a bit of business for him, and could.make him hear, which he took pain's to do; that witness had no previous talks with Fred about this matter, and when the parties came to his office to execute the papers he read them over, but there was little conversation at that time; that he did not represent defendants, and had never done any business for them.

When the execution of these papers became known to plaintiff’s other children, a daughter, Mrs. Kimmel, began proceedings in the probate court for appointment of a guardian over her father, because of his mental incompetency, for the purpose of having this deed set aside. The matter was tried out upon its merits in probate court, and plaintiff’s competency was vindicated, and the petition ordered dismissed. His testimony at that time as to how he liked it and was treated at defendants’ home does not agree with that given by him in this case. Mrs. Kimmel appealed from the order of dismissal, but later harmonized the strained relations with plaintiff resulting from the resented attack on his mentality, and her appeal was dismissed. Her subsequent ardent manifestations of affection for her father led him to “wonder what was in the wind,” and it is urged with some supporting circumstances that this litigation is the answer.

Plaintiff resided with defendants, as they claim and others with some knowledge testify, well cared for, kindly treated, and apparently contented until about October 14, 1914, when he left, without any notice to, disagreement with, or demand upon defendants, going to the home of a daughter, Mrs. Callaghan, where he remained up to the time of the trial of this case. About two weeks after he left he called upon defendants, accompanied by Mrs. Callaghan, and notified them, with his daughter’s assistance, that he had come over to settle and wanted them to get out of there. Defendants and a witness named Sears, who came in at Fred’s request, testify that the latter replied there was nothing to settle, but his old home was open to plaintiff, and he was welcome to return and live with them at any time. Plaintiff and his daughter deny this invitation.

The only witness to any breach of the contract, or discourteous treatment, is plaintiff himself. He stated that he left because he was dissatisfied and thought it best and thought he had reason for doing so; that he did not talk with them about it; that Fred never spoke disrespectfully to him, but the wife did at times; that he did not know as he had any fault to find with her manner towards him, but she was crabbed at times, mostly about the baby which he was fond of, and she found fault with his manner of handling it. To this he added her objection to his smoking in the house and locking the place when she left the premises, which were the only definite- matters of which he made complaint. Defendants deny any unkind treatment in these particulars, or "occasion for affront on his part, testify that he smoked in the house as he pleased without any objection by either of them, and that Fred sometimes furnished cigars and smoked with him; that when the rest were away and the wife left the house she would lock the door and put the key under a mat where the others could get it if they returned during her absence, of which he was fully advised (but which he denies), and that the matter of handling the baby when he played with it was only an ordinary caution, and request by the mother that he be careful about putting his hand on its head. A witness named Jennie Mulvaney, who lived in the family five weeks, during a period before and after the baby was born, testified that plaintiff smoked around the house when and where he pleased, and Mrs. Williams made no objection; that he was a quiet man and made no trouble; that defendants were very agreeable to him; they got along nicely and everything seemed pleasant.

While plaintiff generalized beyond the three matters mentioned, to the effect that it was not pleasant for him there, and he was dissatisfied, intimating that he got a “hunch,” that “they didn’t seem to appreciate my company,” etc., after a careful examination of this record we discover no tangible facts which justify disturbing the conclusions reached by the trial court, finding plaintiff had not made out a case entitling him to cancellation of his deed, and that the contract between the parties is yet in force and binding. By it the obligation yet remains upon defendants to provide for and maintain plaintiff according to its letter and spirit.

If, as the result of unkind feeling developed between the parties in this controversy, the situation is such that plaintiff cannot agreeably and contentedly live with defendants in the friendly relations contemplated in their agreement, it is within the power of the chancery court to require other reasonable provisions be made for him in congenial surroundings elsewhere, by them or at their expense. Marsac v. DeFord, 184 Mich. 389 (151 N. W. 582). The decree should leave that question open for supplemental proceedings if either party desires to be heard upon it.

With such modification the decree will stand affirmed, with costs to defendants.

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


author: .Brooke, J. Stanley J. Webster, Ostrander, J.

text:
    ANGEL v. GRAND RAPIDS & INDIANA RAILWAY CO.
    Railroads — Crossing Accident — Evidence—Sufficiency.
    In an action by a pedestrian against a railroad for damages for personal injuries sustained as the result of being struck by one of defendant’s trains at a crossing while his foot was caught between a rail and a plank outside the rail, evidence held, to warrant a verdict for plaintiff. Fellows and Brooke, JJ., dissenting.
    Error to Kent; McDonald, J.
    Submitted April 17, 1917.
    (Docket No. 61.)
    Decided September 27, 1917.
    Rehearing denied December 28, 1917.
    Case by Byron Angel against the Grand Rapids & Indiana Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Campbell (Elvert M. Davis, of counsel), for appellant.

      Lombard, Hext & Washburn, for appellee.
   .Brooke, J.

(dissenting in part). The plaintiff, a young man 25 years of age, had been .employed as a locomotive fireman by the Michigan Central Railroad from the year 1911 until May 14, 1914, when he received the injuries which constitute the basis of his claim against the defendant company. It is his claim that his child died on that day at about 6 o’clock in the afternoon, and was to have been buried two days later, on the 16th of May. He testified that in the evening he secured a burial permit from the Catholic Church, and did not reach his home until after 9 o’clock at night, and that about two hours later he, in company with his brother-in-law, Frank Charkowske, went out to find the sexton in order to make arrangements for the preparation of the child’s grave. Arriving at the sexton’s house, a considerable distance from plaintiff’s home, they found him absent, but claimed to have been told by a passing stranger that the sexton was visiting a friend or relative near the Standard Paper Mills at “the third or fourth house on Patterson street west of the railroad tracks.” Plaintiff testified that they knocked upon the door of the indicated house, but that nobody came. After some delay plaintiff testified that they started back home, walking on the north side of Patterson street. This street crosses at right angles the defendant railway tracks. While crossing the main track plaintiff claims to have had his right foot caught between tlie rail and the planking adjacent thereto and to have been held in that position until a passenger train struck him, causing the injuries for which this action is brought. His testimony upon direct examination with reference to the manner of the happening of the accident is in part as follows:

“A. Well, I got part way across — when I got part way across the track, why, between one of the tracks and the rail, why, my foot slipped in there.
“Q. Which foot?
“A. My right foot. And I could not get it out. When I pulled up on it, it was kind of wedged, and I could not get it out. When I pulled up on it, it was kind of wedged, and I could not get it out, and I went to untie my shoe, and I pulled the string the wrong way, and I tied it in a hard knot, and down so far down in there, in the hole there, that I couldn’t pull my foot out,- or no way to get it loose; in fact, I didn’t have no knife, anyhow, and I don’t know whether my brother-in-law had a knife or not; if he did, he didn’t seem to get it out to cut anything, and we tried a while, and along came a man by the name of Olin, and he tried to help us to get the foot out. I did not know Olin at the time, and the train was coming and they couldn’t get it out, so they just ran up. the track a ways and hollered and swung their hats. I saw them do that. I saw them when they went. When they went up the track I was left alone. I was still trying to get out. I have seen the arrangement of the plank and track since that time, so that I could recognize it.
“Q. Why couldn’t you get your foot out, what was the trouble?
“A. Well, one side of the bottom of the rail catched on my sole on one side, and the planking on the other and held it fast in there, and I couldn’t get it out, and it was so far in I had no room to wiggle my foot like that, from the top of the rail to the bottom. * * * Taking this photograph, I can point out how I got caught. I was going east on this sidewalk here, and crossed over the plank that appears in between the rails and the point of the toe of my shoe — the hollow of my foot was right across that hole, or the ball, whatever you call it, and the heel was on the plank here, and as I went to step, like that, my toes were just on the edge of the rail, like that, and when the heft of my body was on my foot it slipped down in there, like that, kind of sideways, and I kind of lost my balance a little, and when I went to pull my foot out it was fastened down in there so’s I couldn’t get it out. I do not know anything about the thickness of the planking. I should think the rail was about seven inches high from the base to the top. The base of the rail, as I always called it, is the bottom of it, the bottom where it rests on the tie. * * *
“Q. I want you to tell it yourself just what happened to you when your foot went down in there.
“A. Well, when my foot went down in there, why, I gave kind of a quick jerk after I straightened up and tried to wiggle it like that (illustrating), and I couldn’t wiggle it out, neither, and then I tried to unstring my shoe, and tied it in a knot, and I couldn’t get it out.
“Q. Now, what I want to get at, Mr. Angel, if you can tell, you know as to whether the sole of your foot, shoe, went below the rail; I mean the base of the rail, and I mean the rail of the track, did your shoe go below that?
“A. It did.
“Q. And do you know whether you went below the lower edge of the planking?
“A. I did.
“Q. Then why couldn’t you get your foot out?
“A. Because it wedged; the planking .on one side of the sole and the rail on the other, couldn’t pull it out. When I found my foot was wedged in that way I tried to jerk it out. My brother-in-law, Frank, was with me at the time. Someone else came along while I was in that condition. His name was Olin. I think the weather was good, but on that side of the street it was dark, but on the other side of the street it was quite light. At that time the leaves on some of the trees kept the light from shining down there from where the street light' was located. It must have been the leaves that came out in the spring. There was quite a bunch of brush along there, I know.
“Q. When you found that your foot was caught, what effort did you make to get it out? You have told us part of that, but I want you to give us in detail now, if you will.
“A. Well, I tried to pull it out, and I tied it in a knot, and my brother-in-law, he tried to help get it out, and he couldn’t, and they both took hold of my leg and tried to pull it out.
“Q. Who do you mean by ‘both’?
“A. This man Olin came along. They couldn’t get it out, and the train was coming, and they said, ‘There comes the train; can’t get it out; better go and see if we can’t stop it’; and they started up the track on a run. I saw them go up the track. I didn’t watch them after they went up the track. They went quite a ways. I was trying to get my foot out all of the time. I don’t believe the train stopped.
“Q. What happened? Just go on, tell the jury in your own way what happened to you.
“A. Well, the train come—
“Q. So far as you know.
“A. So far as I know, the train come along, and when it got close to me, that is the last I know about it.
“Q. Did you see the train coming yourself?
“A. I did.
“Q. When you saw it coming, what did you do to protect yourself?
“A. I tried to do as every switchman does when they try to protect themselves.
“Q. Louder; the jury can’t hear that.
“A. I say I tried to do as the switchmen do to protect themselves; they lean back and try to get their foot up to the footboard and protect themselves. You couldn’t protect very much.
“Q. You mean by that getting your body off the rail?
“A. Yes, sir.
“Q. Just tell the jury what happened when the train struck you.
“A. It struck me and knocked me across on the other side of the sidewalk, jerked my foot out of there, knocked me across on the other side of the street, pretty near to the other crosswalk.
“Q. Did the train stop?
“A. I didn’t see no train after that. It could not have stopped. I didn’t see them stop.
“Q- After you were struck what was the next thing that happened, so far as you know? I am speaking now what you can recollect yourself.
“A. My brother-in-law came over to me and kind of took hold of my arm and helped me up, and he asked me if 1 was hurt. I told him no. And then he asked me if I wanted a hack.
“Q. Speak up louder.
“A. He asked me if I wanted a hack to go home. I told him no. And he says, ‘Are you hurt?’ I says, ‘I guess not.’ And I got up, and this man Olin says, ‘Do you think you can manage him all right?’ My brother-in-law says, ‘Yes.’
“Q. Speak up loud so we can all hear you.
“A. He says, ‘Yes; I guess I can.’ So he went away. That was the last I seen of him.
“Q. That is, this man Olin went away?
“A. Yes.
“Q. And he left you with your brother-in-law?
“A. Yes..
“Q. Then you stated at that time that you didn’t think you were hurt?
“A. No, I didn’t feel hurt at all, felt kind of numb; I couldn’t even feel my feet when they touched the ground.
“Q. What did you do after that?
“A. Went home, I guess.”

He further testified that he reached home with the aid of his brother-in-law and that a doctor was immediately called to give him attention. Another doctor, Dr. Lang, saw him on the morning after the accident, and ordered his removal to a hospital, where he remained for four days. Dr. Lang testified as follows:

“I found his condition at that time to be a lacerated large toe, and, I think, a fracture of the bone, I have forgotten particularly but the toe.
“Q. Do you recall now, do you remember, how many bones were involved in the injury?
“A. I think there were at least two; I have forgotten; the second toe, the toe next to the large toe, I believe, was also bruised, split, some injury, and probably the third one as well was injured.
“Q. State it in your own way, Doctor, whát you found.
“A. It has been a long time ago since it has been brought to my mind. It seems to me he had bruises about his head and body, but I could not say definitely any more; I remember one particularly, bruise on the back of his head.
“Q. Will you point out where that was, Doctor?
“A. I think it was back in the occipital.
“Q. On which side was it on, do you recall now?
“A. I couldn’t say.
“Q. Describe that bruise as best you can, as you now recall it, Doctor.
“A. There might have been a rupture of the scalp, but I am not sure of that; at any rate I remember of examining the head and cleansing it, recleansing it, rather, the doctor before me had done so, and that there was some swelling in the back of the head.”

And on cross-examination:

“Q. Excepting the injuries to the toes on the right foot and the lump on the back of the head, did you find any injuries, cuts, bruises, or otherwise on any part of the body or the legs or arms?
“A. Not that I can recall now.
“Q. State whether or not you treated him for any such injuries.
“A. Not that I remember.
“Q. To the chest or to the body?
“A. No injury that I remember of.”

After his release from the hospital plaintiff claims to have become subject to “seizures” of an epileptic character, whether true epilepsy or due to neurosis or hysteria the record fails definitely to disclose. He suffered from such a “seizure” during the progress of the trial in the court below, and was taken to an adjoining room for treatment.

On May 16th, two days after the accident, plaintiff, who held a policy in the Standard Accident Insurance Company of Detroit, furnished that company with the following claim:

“Standard Accident Insurance Company of Detroit, Michigan. Notice of Accident. 1. Name of insured, Byron Angel. Residence, 106 Lincoln Court, Kalamazoo, Mich. Occupation when injured, locomotive fireman. * * * What date were you injured? May 14, eleven p. m. At what place? Kalamazoo. Who saw the accident? Myself. How were you hurt and what are your injuries? Toes crushed and hurt in the chest. What marks appear on external surface of your body? A bruise on my left side.
[Signed] “Byron Angel.
“Dated Kalamazoo, 16th of May, 1914.”

Another claim was made on May 25, 1914, in which the following appears:

“The Standard Accident Insurance Company of Detroit, Mich. Notice of Accident. 1. Name of injured? Byron Angel. * * * 12. What date were you injured? May 14th, 2 a. m. At what place? Kalamazoo. 13. Who saw the accident? No one.”

A third claim was made on May 26, 1914, the substance of which is as follows:

“1. My name is Byron Angel. 2. My age is twenty-five years. 3. My weight is 150 pounds. My height is 5 feet and 11 inches. My regular occupation, locomotive fireman.”

And some other personal matters, and going right down to question 10:

“10. The eyewitnesses to said accident were S. Webster.”

Stanley J. Webster,

the man mentioned in the last above mentioned claim as having witnessed the accident, was called by the defendant and testified as follows:

“He passed the day and called me out and asked me if I wanted to make $100, and I said ‘Yes/ and he said, ‘Well I told my lawyers that you saw the accident; I want you to testify that you saw it.’ I said, T won’t do it.’ I told him that because I didn’t see it. I knew nothing of it. He went away then. I next saw him on Burdick street, Kalamazoo, a week or ten days after his visit to me at my sister’s. He stopped me and said, T told my lawyers it was you; now, I want you to swear or say that it was you that saw it.’ I said, T did not see it and I won’t say it,’ and he went on.”

The record contains the evidence of at least ten persons who testified that the plaintiff told them severally that he was alone at the time of the happening of the accident and that he partly walked and partly crawled home from the place of the accident. Many of these witnesses are clearly disinterested, and received their information from the plaintiff shortly after the happening of the accident, some of them having talked with him on the following morning.

Defendant placed upon the stand five reputable and disinterested physicians who testified as experts that, in their opinion, if the plaintiff had been held with his right foot between the inside of the rail and the planking until struck by an engine weighing 140,000 pounds, drawing a train of four passenger coaches, and running at a speed of 12 or 15 miles per hour, it was physically impossible that he should have received injuries of so slight a character as shown by the objective evidence in this case.

Many photographs of the place of the accident were introduced in evidence and have been returned to this court. The exact condition of the point in question seems to be, as shown by the exhibits, that the easterly • plank of the walk, which was 5 feet wide, was distant from the east rail of the main track 3 inches, and that this 3-inch space was 3% inches deep.

Defendant introduced expert testimony tending to show that the sidewalk at the point of injury was constructed in the usual manner and in accordance with good railroading practice, and that it was reasonably safe for use by one exercising ordinary care. Defendant likewise called as a witness one Gordon Stewart, a practicing attorney of the city of Kalamazoo, who was retained by the plaintiff on the morning of May 15th, immediately after the accident. Stewart testified that plaintiff related to him the circumstances surrounding the happening of the accident on the morning he was retained, and that thereafter, and on the same day, he proceeded to Patterson street and examined the crossing with particular reference to the point where the sidewalk crossed the east rail of the main track. He testified:

“Q. Do you recall specially that place there between that rail and the plank?
“A. Yes; I went over it pretty thoroughly.
“Q. I am calling attention to the north crosswalk and to .the space there between the rail and the plank next to it, the east rail of the track.
“A.,Yes; I recall the condition there.
“Q. State in what condition you found that’opening between the rail, and as to whether it was filled up or not. * * *
“A. I found the crossing and the plank next to the rail in the ordinary condition as it was filled up> with dirt, and there was no hole of any depth there, other than enough for the flange of the wheel.
“Q: That opening there, the whole length of it, was filled up, and especially between the ties?
“A. Yes, sir.
“Q. And whether or not it was fresh filling?
“A. No; it appeared to have been that way for some time.
“Q. And these spaces were at that time filled up?
“A. Yes, sir.
“Q. So that there was no hole left?
“A. No, sir.
“Q. State whether or not the bottoms of the flange-way — whether the way for the flange inside of the rail within the limits of that plank walk was covered by earth.
“A. It was. * * *
“Q. Was that true, Mr. Stewart, of the whole space from the north end to the south end of the walk?
“A. Yes; I went over it very carefully, and could not find any hole in there or place that looked like where a man’s foot might have got in.
“Q. You found no place where a man’s foot could get in?
“A. No, sir.
“Q. No place where it could?
“A. No; not at that time.
“Q. And that was the next morning?
“A. Yes, sir.
“Q. After the accident?
“A. Yes, sir.”

Plaintiffs statement of the manner in which he received his injuries received some corroboration from his brother-in-law, Frank Charkowske, and the witness Olin. Both testified that they were with him after he got his foot caught and attempted to release him. They testified further that they had no knife with which to cut the shoe lace, and that they were unable to break it so as to release the foot, and that while engaged in their attempt to release plaintiff they observed the approach of the train; that thereupon they ran a considerable distance up the track waving their hands in an attempt to warn the on-coming train of plaintiff’s unfortunate predicament. Neither one of these witnesses claimed to have actually seen the train strike plaintiff, but both testified that after the passage of the train they immediately returned to the point where plaintiff was caught, and found that he had been thrown a distance of about 50 feet, and that he was injured in the manner described.

At the conclusion of all of the evidence defendant preferred a number of requests to charge, several of them in effect amounting to requests for a directed verdict. These requests were denied, and the case went to the jury under instructions:

“(1) That plaintiff could not recover unless the jury found that the accident happened in the manner detailed by him.
“(2) That the defendant was guilty of negligence either: (a.) In not maintaining the crosswalk in a condition reasonably safe for public travel; or (b) in the failure of the engineer or fireman to see and heed the .efforts of Charkowske and Olin to stop the train.
“(3) That plaintiff must be found free from any negligence contributing to his injuries.”

The jury returned a verdict in favor of the pláintiff for $8,000. Immediately thereafter a motion was made for'a new trial based upon the claim that the jury disregarded the instructions of the court and rendered a verdict against the great weight of the evidence. This motion the court denied, saying in part:’

“It is difficult to understand how the accident could happen in the manner claimed by the plaintiff and his witnesses. Yet it is a matter of common experience of men that accidents do happen sometimes in unusual and unexplainable ways and with most singular results. Men have fallen from great heights, or have been hurled with great force for long distances, and escaped with slight injuries. It is quite probable that this common knowledge weighed against the opinion evidence and led the jurors to credit the testimony of the three men who claimed to be eyewitnesses. The credibility of these witnesses was for the jury, and in view of their positive testimony I am not able to say that the verdict was against the great weight of the evidence.”

In this court defendant argues in support of three propositions:

“(1) That the court erred in refusing to direct a verdict for the defendant as requested in defendant’s first request (first asignment of error).
“(2) That the court erred in submitting the case to the jury and therein in refusing to instruct them as requested by defendant in its fifth request and in the modification, of the same as shown in the third and fourth assignments of error (Record, pp. 588, 589), and in the instructions set forth in the seventh assignment of error, thereby leaving the jury to find that plaintiff was struck by the engine drawing the train as he claimed that he was, in disregard of the undisputed and conclusive testimony of the surgeons that it was a physical impossibility that he could have been so injured.
“(3) That the court erred in overruling defendant’s motion for a new trial and to set aside the verdict in favor of plaintiff on the ground that it was against the weight of the evidence and in disregard of the evidence.”

We are of opinion that the court did not err in refusing a directed verdict. The positive testimony of the plaintiff supported in some measure by the testimony of Charkowske and Olin touching the manner of the happening of the accident raised a clear question of fact which could only be determined by a jury.

Defendant’s fifth request to charge was as follows:

“You must decide this case upon the evidence given before you upon the trial, and not upon whimsical conjecture and speculation. The testimony of Drs. Young, Barth, Spencer, Du Bois, and Campbell that a man on a railroad track with his foot held fast down between the rail and plank could not be struck by the bumper beam, or step, or pilot band of the locomotive engine No. 27, drawing a passenger train of four cars and running at the speed of about 15 miles an hour, without receiving severe and serious visible physical injuries at the place of the impact by the engine against his person which would be apparent for some weeks and from which it would take weeks to recover, if he recovered at all.
“The testimony of these doctors is undisputed; no one has testified to the contrary.
“You must accept and give effect to the testimony of these doctors in deciding the question whether the plaintiff was struck by the engine as he claims that he was.”

The first paragraph of this request was given by the court, but in lieu of the second and third paragraphs the court said:

“This testimony, if you find that it correctly states the physical possibilities, should be accepted by you; and if you do so accept it, it would be your duty to disregard the testimony of the plaintiff as to how he received his injury and render a verdict for the defendant, a verdict of no cause of action.”

We are of opinion that the instruction as modified was correct.

It was and is the claim of defendant that plaintiff did not receive his injuries in the manner detailed by him, but that the entire case is tainted with gross fraud and perjury. In this connection defendant relies upon the case of Baldwin v. Railway Co., 128 Mich. 417 (87 N. W. 380). In that case plaintiff claimed to have been injured through being jerked from the lower step of a passenger train while in the act of alighting. This court there' said that the manner of the accident as described by the plaintiff was improbable; there having been introduced the evidence of five experienced men to the effect that it would be impossible to start that particular train with such a jerk as to throw the plaintiff in the manner claimed. In that case, as in this, there was no eyewitness who testified that the accident did not happen exactly as claimed by plaintiff. In argument much reliance is placed on the testimony of five physicians who swore to their belief in the physical impossibility of the plaintiff having received such injuries as he sustained in the manner he claimed to have received them. With reference to this testimony it would seem that the opinion of an expert physician would not be of much more value than that of an ordinary layman. Most adults of ordinary intelligence would, as the learned circuit judge said, find it “difficult to understand how the accident could happen in the manner claimed by the plaintiff and his witnesses,” and it is presumed that defendant might easily have multiplied his five expert witnesses indefinitely upon this point. •

The fact remains that plaintiff in some way received an injury on the night of the 14th of May, 1914, and that defendant is obviously unable to offer a" jury any theory alternative to that of the plaintiff. Nevertheless we are of opinion that the judgment should be reversed upon the ground that the verdict is against the great weight of the evidence. We are moved to this course by the following considerations:

(1) The evidence of the plaintiff to the effect that he was held fast in the track and struck by an engine and train running at. 12 to 15 miles an hour, the engine alone weighing 70 tons, receiving as a result thereof only the external injuries described, is so contrary to all human experience as to border upon the miraculous.

(2) The asserted inability of the plaintiff and his brother-in-law to break the shoe lace and so release plaintiff’s foot.

(’3) The fact that within a week after the happening of the accident plaintiff in his claim to the accident insurance company asserted that no one was present when the accident happened but himself.

(4) The fact that the lawyer retained by plaintiff made an examination of the place where plaintiff claimed to have received his injuries and testified that the space between the rail and the planking for the whole distance of the sidewalk was full of dirt.

After careful consideration and a perusal of this entire voluminous record, we conclude that the judgment should be reversed, and a new trial ordered, with costs to appellant.

Fellows, J., concurred with Brooke, J.

Ostrander, J.

My brother Brooke concludes that the court was bound to submit the case to a jury, and committed no error in doing so. I agree with him. He concludes that the weight of the evidence demands that a different verdict be returned. With this I do not agree. Answering the argument he makes, it may be said: (1) That the weight of the engine is unimportant, and that, if an automobile weighing two tons had released plaintiff, it would have been no less a miraculous deliverance; but the weight of the engine may have caused such a vibration of the rail as to release the foot, (2) if the shoe lace had been broken, it does not follow that the foot would have been released, and there is nothing remarkable in the fact that one cannot in an emergency, break, or untie, a shoe lace; (3) there was no one immediately present when plaintiff was hurt, both the others having gone up the track to meet the on-coming train; (4)' the examination made of the track by the lawyer is not conclusive.

Really the evidence for plaintiff made out a very good case for him, and is not opposed, overwhelmingly or otherwise, by evidence. To set aside the verdict is to assume knowledge, to question evidence of unusual physical phenomena, and to infer, when two inferences may be drawn, that the one drawn by the jury is wrong.

It is not probable that upon the same record a different jury will return a verdict for defendant.

Kuhn, C. J., and Stone, Bird, Moore, and Steere, JJ., concurred with Ostrander, J.