text:
    ROBINSON v. CHICAGO & ALTON RAILROAD CO.
    1. Railroads — Death or Passenger — Evidence.
    Where a passenger on a train which was lurching considerably was last seen alive going out of one oar for the next one, a door of the vestibule between which was open, and he was afterwards found dead beside the track, the manner of his death is not mere conjecture, but it is a fair inference that he was thrown through the door by the lurching of the train.
    3. Same — Joint Tort Feasors — Directing Verdict — Res Judicata.
    A railroad company sued jointly with the Pullman Company for the death of a passenger who was thrown through an open vestibule door between Pullman cars cannot complain because a verdict was directed for the Pullman Company; it not being concerned with whether that company was also liable to plaintiff, and the verdict and judgment not being conclusive as to its liability to the railroad company under the contract between them for the furnishing of the cars.
    3. Same — Negligence—Passage Between Cars.
    A railroad company, having placed its dining car at the rear of a train, and invited its passengers to go to and from it, is bound to provide them with a safe passage from one car to another, and cannot escape liability for its failure to do so by showing a contract with the Pullman Company to do it.
    4. Same — Defective Vestibule Door.
    Where an inspection before a train was made up would have shown defects in, a vestibule door between Pullman cars, their presence, by which a passenger was killed, was negligence on the part of the railroad company.
    5. Same — Open Door.
    The fact that a vestibule door on a fast moving train was open, owing to a defect, when it was intended to be closed, whereby a passenger was thrown through it, was negligence.
    Error to Kent; Wolcott, J.
    Submitted November 5, 1903.
    (Docket No. 87.)
    Decided December 22, 1903.
    Case by Samuel Robinson, Jr., administrator of tbe estate of Samuel Robinson, Sr., deceased, against the Chicago & Alton Railroad Company and the Pullman Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff against defendant railroad company alone, it brings error.
    Affirmed.
    Plaintiff recovered verdict and judgment for damages occasioned by the death of Samuel Robinson, Sr., while a passenger upon a train of the defendant railroad company, through the alleged negligence of said company. The deceased left his home in Charlotte, Mich., July 2, 1900, to attend the Democratic National Convention at Kansas City, Mo. The delegation to the convention from Michigan met in Chicago, having arranged with the defendant railroad company for a special train of sleeping cars to take them from Chicago to Kansas City on the night of July 2d. The train was made up of the engine, baggage car, five sleepers, and a dining car in the rear. The cars, for convenience, are numbered from the front of the train, 1, 2, 3, 4, and ‘5. The sleepers were owned by the defendant Pullman Company, the dining car by the defendant railroad company.

      Mr. Robinson had a railroad ticket, and also a berth ticket in Pullman car No. 3. The train left Chicago at 11 o’clock, an hour late. After getting out of the city, it ran at a high rate of speed. Mr. Robinson and some others went to the dining car for refreshments about midnight, where they remained until after the train left Joliet. They then left the dining car for their respective sleepers, and Mr. Robinson ¿nd some others stopped for a short time near the forward end of car No. 4, to converse with friends. One of them passed through the vestibule into car No. 3, followed by Mr. Robinson. Another soon after-wards passed from No. 4 into No. 3, and inquired for Mr. Robinson, desiring to speak with him. He could not be found. The last time he was seen alive was when he passed out of the front door of car No. 4 to cross the vestibule into car No. 3. In doing so he fell from the car and was killed. His dead body was found the next morning lying on the east side of the track near a station named Mazona, lying between the side track and the main track, near a switch which the train had just passed over. The body, after striking the ground, rolled about 30 feet.
    An investigation showed that the fastenings of the vestibule door, through which Mr. Robinson fell, were defective. The evidence on the part of the plaintiff showed that the slot which held the bar designed to keep the door closed was old and worn, and would not hold the bar in place, and that the spring and latches, also designed to keep the door closed, were broken and defective. There was evidence that the train swayed considerably in its movements, so that the passengers had to be careful to prevent being thrown down in passing through the cars, or from one car to another. The theory of the plaintiff is that Mr. Robinson was thrown through the open door of this vestibule. The Pullman Company was made a party as a joint tort feasor. At the close of the evidence the court directed a verdict for the Pullman Company, and left the question of negligence of the defendant railroad company to the jury. The following special questions were submitted to the jury, aud all answered in the affirmative:
    “1. Were the vestibule sleeping cars on the train owned by the Pullman Company at that time ?

      “A. Yes.
    “2. Were the latch and socket for the bar on one of the vestibule doors in the vestibule between cars Nos. 3 and 4 so broken and worn that the door would not and did not remain closed while the train was running ?

      “A. Yes.
    “ 3. If so, did Samuel Robinson, the deceased, leave the train through that door by falling or being thrown through that door while the train was in motion, from the vestibule to the ground ?

      “A. Yes.”
    Two other special questions were requested by the defendant railroad company, which the court refused to submit:

      “4. Did the conductor and porters, employés of the Pullman Company, use proper care to keep the doors of the vestibules, and particularly the door of the vestibule between cars Nos. 3 and 4, closed while the train was running ?
    “5. Was the injury caused by the negligence of the Pullman Company and its employés in not having the fastenings on the door of the vestibule between cars Nos. 3 and 4 in proper repair, and in not keeping that door closed while the train was running ?”

      T. J. O’Brien and James H. Campbell, for appellant.

      McKnight & McAllister, for appellee Robinson.

      Burlingame, Belden & Orton, for appellee Pullman Co.
   Grant, J.

(after stating the facts). It is urged that the manner in which Mr. Robinson met his death is mere conjecture, and that, therefore, there can be no recovery. This position is untenable. It is a fair inference from the evidence adduced in behalf of the plaintiff that Mr. Robinson was thrown through the vestibule door. He was seen to go out of car No. 4 for car No. 3, which he did not enter. The natural conclusion is that he either voluntarily jumped from the car through this door, or was thrown through it by the lurching of the train. There is nothing to indicate that he intended to commit suicide by jumping from the car.

It is next urged that the court erred in directing a verdict for the Pullman Company. This is not a question in which the defendant railroad company is interested. Th© verdict and judgment are not conclusive of the liability ®f the Pullman Company to the railroad company under the contract between them, by which the Pullman Company furnishes its cars to be run over the defendant’s road. Private contracts between these two companies do not affect the rights of travelers. Plai ntiff has not appealed from the decision against him and in favor of the Pullman Company. The sole question left for the jury was, Is the railroad company liable for the defects in the ears furnished by the Pullman Company to be used by the railroad company in transporting its passengers? If the defendant owed no duty to its passengers for defects in the cars of the Pullman Company, then the railroad company is not liable, and the verdict should be reversed. If, on the contrary, the railroad company, under its contract of carriage with its passengers, is liable for such defects, and cannot defend on the ground that, under a contract with the Pullman Company, the latter company furnished the cars, then the verdict must be sustained. The question is not whether a judgment could be maintained by the plaintiff -against the Pullman Company, but whether it can be sustained, against the railroad company. If the court had directed a verdict for the railroad company, and had left the question of the negligence of the Pullman Company in providing these cars for the use of passengers to the jury, the sole question would have been, Was the Pullman Company liable to a passenger for these defects in its own cars? Whether the Pullman Company is bound under its contract.to indemnify the railroad company is not involved in this litigation. In a suit by the latter company against the former, involving the liability of the former to the latter for the injury, the decision rendered by the court in this case is not res adjudicates. Upon that question no such issue is raised by the pleadings. Warren v. Railroad Co., 163 Mass. 484 (40 N. E. 895); Buffington v. Cook, 35 Ala. 312 (73 Am. Dec. 491). Plaintiff might have brought suit against the railroad company alone, or might at any time have discontinued it against the Pullman Company. Moreland v. Durocher, 121 Mich. 398 (80 N. W. 284); Burroughs v. Eastman, 101 Mich. 419 (59 N. W. 817, 24 L. R. A. 859, 45 Am. St. Rep. 419).

It is unnecessary to determine the question of the liability of the Pullman Company to the plaintiff, and we refrain from discussing it. The deceased’s contract of carriage was not made with the Pullman Company; it was made with the railroad company. He knew nothing' of the contract relations between the two defendants. It is quite likely that he did not know that the cars were owned, controlled, and managed by a separate company. As to the deceased, therefore, the railroad company owed to him the duty to see that the cars which were run over its road were properly equipped, in good condition, and properly managed. It failed in this duty, and cannot evade it by showing that it had a contract with another company to do it. Prom the description of the defects, they evidently existed when these cars were placed by the defendant upon its tracks for the transportation of the deceased and others. Defendant placed its dining car at the rear of the train, and invited its passengers to go to and from it. It was therefore bound to provide them a safe passage from one car to another. Pennsylvania Co. v. Roy, 102 U. S. 451; Dwinelle v. Railroad Co., 120 N. Y. 117 (24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611). See, also, Robinson v. Benevolent Soc., 132 Mich. 695 (94 N. W. 211). It follows from what we have said that there was no error in refusing to submit special questions 4 and 5 to the jury.

It is, however, urged that, the accident causing this injury occurring in the State of Illinois, this case will be ruled by the lex loci. It is urged that the courts of that State have decided that the Pullman Company is liable; citing Nevin v. Pullman Palace Car Co., 106 Ill. 222 (46 Am. Rep. 688); Pullman Palace Car Co. v. Fielding, 62 Ill. App. 577. In Nevin v. Pullman Palace Car Co. the plaintiff, a passenger, was refused a berth in a sleeping car of the defendant. In Pullman Palace Car Co. v. Fielding a passenger occupied an upper berth. Becoming ill in the night, he rang the bell for the porter, desiring to be assisted in descending from his berth. The porter did not respond. Plaintiff then attempted to get out of the berth alone, and by a lurching of the car was thrown and injured. It will be observed that in neither of these was there any defect in the cars provided or in the management. The railroad company had performed its duty towards the traveler in furnishing safe and suitable cars. The negligent acts complained of were solely those of the Pullman Palace Car Company’s employés. Whether the railroad companies would have been liable as well if the parties had seen fit to sue them, on the ground that the companies had provided sleeping cars for the use of their passengers, was not determined in either of those cases. In Pullman Palace Car Co. v. Fielding suit was brought against both the railroad company and the Pullman Company, and a verdict rendered against both. Pending a motion for a new trial, the plaintiff discontinued his suit against the railroad company. Those cases decided simply that, under their facts, the Pullman Company was liable. They do not decide that the railroad company was not liable. Neither do they decide that the railroad company would not be liable to a passenger for defects in cars furnished by the former for the use of the latter in transporting its passengers. This contention, therefore, cannot be sustained.

Counsel contend that, if the fastenings of the door were defective, that was not of itself negligence, and that negligence in these defects would consist of failure to repair within a reasonable time after the defects became known, or ought to have been known. We think there is nothing in this record to show the application to this case of the rule here invoked. It is evident that an inspection before the train was made up would at once have revealed the defective condition of the vestibule door. It was the duty of the defendant to inspect its cars before the train was made up, and to see that they were in proper condition, so far as a reasonable inspection would demonstrate that condition. This is not a case of defective highways, where sufficient time must elapse between notice of the defective condition and the accident to permit proper repairs.

Error is assigned upon the refusal of the court to instruct the jury, as requested, that the fact that the vestibule door was open was not of itself negligence. Counsel cite, in support of this proposition, Ward v. Railway Co., 165 Ill. 462 (46 N. E. 365). It will appear from an examination of that case that the failure to keep the doors closed was not one of the grounds of negligence. The negligence charged was that the railway company, instead of stopping at the station which had been announced, stopped 300 feet before reaching it, whereupon the plaintiff, assuming that he was at the station, proceeded to get off. The court said that:

“The statements as to obstructions, want of light, improper condition of the vestibule doors, etc., are merely matters explanatory of the manner in which the defendant [plaintiff] was thrown to the ground, and are only material provided it is sufficiently shown that he was justified in attempting to alight from the car at that place; that is to say, it was not, as a matter of law, the duty of the defendant to keep the doors of the vestibule closed, the vestibule lighted, the ground near the track at that particular place free from gravel and kept lighted, etc., as an independent proposition.”

In the present case the train was running at a high rate of speed. It was evidently intended that these doors should be closed. It was owing to a defect that the one in question was not closed. Under these circumstances the defendant will not be permitted to say that it was not negligence to have the door open, when in fact it was intended to be closed, and passengers had a right to assume that it was. The conductor of the train testified:

‘ ‘ In my walks through the train I should see that these vestibule doors were closed. We have instructions to do that from the trainmaster and superintendent. These instructions are in writing.” 1

Judgment affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    LANGE v. KLATT.
    1. Evidence — Matters Within Knowledge of Decedent— Waiver.
    Where plaintiff, an administratrix, was permitted to show, both on cross-examination of defendant and by independent testimony, certain claimed admissions made by defendant as a witness on a former trial between the same parties, defendant should have been allowed to testify fully as to the subject-matter of such admissions, though equally within the knowledge of the deceased.
    2. Same — Testimony on Former Trial — Stenographer’s Minutes.
    Parol testimony as to what a witness testified to on a former trial is not rendered' incompetent by the fact that a copy of the stenographer’s minutes of his testimony is accessible to counsel.
    Error to Wayne; Brooke, J.
    Submitted November 5, 1903.
    (Docket No. 14.)
    Decided December 22, 1903.

      Assumpsit by Ad die Lange, administratrix of the estate of Edward Lange, deceased, against William F. Klatt, for money loaned. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      Orla B. Taylor, for appellant.

      Ari E. Woodruff, George W. Coomer, and William E. Atkinson, for appellee.
   Montgomery, J.

This is an action of assumpsit brought by the plaintiff, as administratrix of the estate of Edward Lange, deceased, to recover the sum of $500, claimed to have been loaned by decedent to the defendant on March 25, 1898. Lange was the uncle of the defendant. Some time prior to Lange’s death, defendant ran a saloon and restaurant in the city of Detroit, and Lange was in the habit of visiting him whenever he came to the city. On the 25th of March, Lange gave the defendant the sum of $500, no note being taken therefor. Plaintiff says that this sum.was given to the defendant as a loan; defendant claims that it was given to him by Lange to be divided as a present between defendant and his brothers and sisters, $100 to be given to each. Afterwards, Lange assigned to the defendant a certain mortgage, with 'which, as collateral, the defendant raised the sum of $1,500. In August, 1900, Lange brought a suit in the Wayne circuit court, in chancery, to compel defendant to return this mortgage. Before the hearing, Lange died, and the suit was prosecuted to decree by the present plaintiff. After the final disposition of the chancery suit, this action was brought.

The question presented is whether the. court erred in excluding the testimony of defendant in relation to the receipt of this $500 in issue, and the conversations had by him with Edward Lange, either at the time of its receipt or immediately afterwards, with reference thereto.

On the trial of the present case the plaintiff was a witness, and testified that defendant had given evidence in the chancery suit to the effect that he (the defendant) borrowed this sum of $500 from his uncle, and that he had not paid it back. Ari E. Woodruff, who was solicitor for complainant in the chancery suit, gave testimony to the same effect. On cross-examination the stenographer’s minutes were read, and somewhat modified the testimony given by the witnesses as to what occurred in the chancery case. The defendant was called as a witness, and on cross-examination was asked this question:

Q. Were you here yesterday when Mr. Woodruff was asked by your counsel a number of questions, and read from the testimony ? You heard those questions ?
“A. Yes, sir.
“ Q. You heard those answers ?
‘‘A. Yes, sir.
Q. They were correct, were they ?
“A. Yes, sir.
“ Q. You did testify to that ?
“A. Yes, sir.
Q. And still stick to it ?
“A. Yes, sir.
“ Q. What was said there? Did you testify to the truth at that time as to how you got the $500 ?-
“A. Yes, sir.
Q. Where you got it, and all that?
“A. Yes, sir.”

Defendant’s counsel then sought to pursue the inquiry, and interrogated the witness further as to the transaction of the receipt of this money, and the testimony was excluded. We think this was error. The case of Fox v. Barrett’s Estate, 117 Mich. 162 (75 N. W. 440), cannot he distinguished from this.

It is further urged as error that the court permitted parol testimony of the plaintiff and her attorney, Mr. Woodruff, as to what testimony was given in the chancery case. We think this was not error. The testimony was competent, and its weight would be for the jury.

The other questions presented are not likely to arise on another trial, and the judgment will be reversed, and a new trial ordered.

' Moore, Carpenter, and Grant, JJ., concurred. Hooker, C. J., took no part in the decision. .


author: Moore, J.

text:
    DOWNEY v. DOWNEY.
    Divorce — Cruelty—Nonsupport.
    A bill by a wife for a divorce, alleging cruel treatment by her husband, consisting of a cold and sullen manner, pouting and refusing to speak, insisting that she transfer her property to him, constantly repeating that she has abused him, becoming angry over very small things, threatening divorce proceedings, and threatening to remove their household goods, and further alleging that, though worth §7,000 or §8,000, he has wholly neglected to provide her with clothing or spending money, is insufficient to justify a divorce, either on the ground of extreme cruelty or nonsupport.
    Appeal from Shiawassee; Smith, J.
    Submitted November 5, 1903.
    (Docket No. 98.)
    Decided December 22, 1903.
    Bill by Eusebia A. Downey against William Downey for a divorce. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed.

      Watson & Chapman, for complainant.

      John T. McCurdy, for defendant.
   Moore, J.

The bill in this case was filed to obtain a divorce. A demurrer was interposed by defendant. The circuit judge overruled the demurrer. The defendant brings the case here by appeal.

The stating part of the bill reads as follows:

“That the said defendant, disregarding the solemnity of his marriage vow, soon after their said marriage, and in the month of April, A. D. 1902, began a course of cruel treatment towards your oratrix, consisting of a cold and sullen manner, pouting and refusing to speak to your oratrix, which continued for about a week, and your oratrix was unable to find out what was the matter with him, until, about the last of April, 1902, defendant insisted that complainant transfer her property, consisting of two houses and three lots, to him, either by deed or life lease, and, when your oratrix refused to do this, he told her he would do no more, or in any way improve the property, or pay the taxes thereon of your oratrix, notwithstanding be was living on said property, and using the same as though it was his own, which property rented for one hundred dollars per year before the defendant came to live with complainant.
“Your oratrix further shows that in the month of May, 1902, your oratrix was invited to a supper given by the Oddfellows’ Lodge of the city of Corunna, and defendant said to your oratrix that he would not go out with your oratrix, because she had abused him, and, when she asked him how, he refused to make any explanation whatever; and he has kept repeating this statement every few days to your oratrix, and refusing to give any explanation as to how and in what manner she has abused defendant. And your oratrix alleges that such treatment caused her great grief, which defendant well knew, and kept repeating it, to injure your oratrix’s feelings; tha,t he kept this conduct up continually through the summer of 1902, and importuning your oratrix for her property. Your oratrix alleges that defendant is greatly worried because, if he should die before your oratrix, she would have the widow’s right in his property, and it keeps him worried and vexed on account thereof, and he becomes violently angry with your oratrix, without cause, over very small things. To illustrate: Defendant was assisting your oratrix to wash some clothes in the fore part of May, 1902, when your oratrix discovered that he did not understand running the wash machine, and your oratrix said to him, ‘ Let me show you how to run it,’ whereupon he became very angry, and banged the machine around in a violent manner, and with great display of temper. Your oratrix said, ‘Why, you act foolish,’ and went into the house, and defendant followed her in, and raised his fist over her, and said, ‘ Don’t you dare to call me a fool! ’ That he has kept up such conduct continually, greatly annoying your oratrix, and generally at such times demanding that your oratrix give him her property, or release her interest in his property; and on the 25th of April, 1903, he got John T. McCurdy to come with him to your oratrix and threaten her with divorce proceedings, threaten to move away their household goods; and your oratrix believes he will remove said household goods, unless restrained by an order of this honorable court. Your oratrix believes he will do personal violence to her, and annoy her, unless he is restrained by like order. That defendant is worth $7,000 or $8,000, and since their said marriage he has wholly refused and neglected to clothe your oratrix, or to furnish her any spending money.”

The sole question involved is whether the bill'■stated a cause for which divorce should be granted. The causes for which divorce may be granted are found in sections 8621, 8622, and 8623, 3 Comp. Laws. It is clear the case does not come within the provisions of section 8621, and we think it equally clear that the averments of the bill do not state a case of extreme cruelty, or one where “the husband, being of sufficient ability to provide a suitable maintenance for her [the wife], shall grossly or wantonly and cruelly refuse or neglect so to do.”

The decree is reversed, and complainant is -given 20 days to amend her bill of complaint.

Carpenter, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


author: Grant, J.

text:
    CITIZENS’ COMMERCIAL & SAVINGS BANK OF FLINT v. PLATT.
    1. Bills and Notes — Indorsement Before Delivery — Joint Makers.
    A third person indorsing -a promissory note before delivery is liable as a joint maker.
    2. Same — Payment—Renewal Note.
    The receipt and acceptance of a renewal note and surrender of the original note constitute a payment of the' original note.
    3. Same — Want of Protest — Burden of Proof.
    In an action upon a note executed by one partner in the firm name in renewal of a note on which they were indorsers, the burden of showing that the first note was not protested, in consequence of which the indorsers were discharged, is upon the defense.
    4. Same — Partnership—Authority.
    The managing member of a firm has authority to execute for the firm as joint makers a note in renewal of a former one on which they were liable at the time as indorsers.
    Error to Genesee; Beach, J., presiding.
    Submitted November 6, 1903.
    (Docket No. 101.)
    Decided December 22, 1903.

      Assumpsit by the Citizens’ Commercial & Savings Bank of Flint against Fred A. Platt and Marshall T. Gass, copartners ás F. A. Platt & Co., and Michael E. Houran and I. Wixom Whitehead, copartners as Houran & Whitehead, upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant Houran brings error.
    Affirmed.
    In 1895 the defendants Houran and Whitehead were co-partners doing business in Flint under the firm name of Houran & Whitehead. The defendants Platt and Gass were copartners doing business in the same city under the firm name of F. A. Platt & Co. About the 1st of October, 1895, Houran & Whitehead sold goods to Platt & Co., for which they received in payment a demand note for |1,570, executed by F. A. Platt & Co., payable to Houran & Whitehead. Houran & Whitehead indorsed it, and presented it at the plaintiff bank, which, at their request, discounted it for Houran & Whitehead, who received and used the entire amount paid. It was three times renewed, the last note being dated December 28, 1899, and being the one now in suit. Houran alone defends. As each renewal note was presented at the bank, it was accepted, and the old note surrendered. At the giving of the last note, Platt & Co. assigned some stock in a corporation as security, which proved to be worthless. The three renewal notes were given directly to the bank as payee, and all bore the indorsement of Houran & Whitehead. Whitehead had attended to the financial transactions of his firm. All the indorsements were signed by him for the firm. Houran & Whitehead dealt with the plaintiff all these years, and Whitehead attended to all the business with the bank. A few small payments were made. Plaintiff made an effort to collect the first note from the makers. There is no evidence to show that the first note was protested. The only testimony upon i the point is that of Houran that he knew of no protest being served. Under the undisputed evidence in the case, it would have been served upon Whitehead, and not upon him. At the conclusi.on of the testimony the court directed a verdict for the plaintiff.

      Rundell & Stockton and Black & Roberts, for appellant.

      Lee & Parker, for appellee.
   Grant, J.

(after stating the facts). The defense is that Houran & Whitehead were discharged on the first note, and that Whitehead had no authority to sign the firm name to the renewals, or to change the liability from indorser to that of maker. On the first note Houran & Whitehead were indorsers, and not joint makers. On the last note they were joint makers. Peninsular Sav. Bank v. Hosie, 112 Mich. 351 (70 N. W. 890). Whether they were makers or indorsers of the two intermediate notes does not clearly appear; neither is it material. The receipt and acceptance of each renewal note and the surrender of the former note constituted a payment of the former. Childs v. Pellett, 102 Mich. 558, 567 (61 N. W. 54), where this question is discussed and authorities cited.

Plaintiff made a prima facie case by proving the execution and indorsement of the note in suit. The burden of proof lay with Houran & Whitehead to show that the first note was not protested, and that they were discharged as indorsers thereof. Conley v. Winsor, 41 Mich. 253 (2 N. W. 31). They failed to show it. It must therefore be assumed that, when the first renewal note was given, they were still liable on the first note. It follows that Mr. Whitehead was authorized to renew the note. If the bank had insisted that they should take the note up and give their own note instead, and Whitehead had so done, he would have been acting within his authority. Mr. Houran, his partner, cannot now defend upon the ground that the indorsement in law made them joint makers instead of simply indorsers. Houran & Whitehead were not accommodation indorsers. An accommodation indorser is one who indorses a bill or note in order to enable another to obtain credit or money on it. Platt & Co., the makers, did not ask Houran & Whitehead to indorse this paper for their accommodation, or in fact to indorse it at all. They gave it in payment of a debt, and Houran & Whitehead, for their own accommodation, asked plaintiff to discount it for their (Houran & Whitehead’s) sole benefit. The plaintiff was dealing with the authorized manager of the firm. It might have insisted upon payment, and a payment by Whitehead for the firm would, of course, have bound the firm. Plaintiff might have refused to renew the note, but have offered to take the note of Houran & Whitehead alone. If they had insisted upon the latter, it would not have been the legal duty of the bank to see the other partner or partners and ascertain if they assented to giving the firm’s note in payment of the other. They were liable. It was due. They had received the consideration. The bank was dealing with the member of the firm who had attended to its financia! transactions with it. It was therefore within the authority of Mr. Whitehead to make the indorsement he did, and thus bind the firm as joint makers.

Judgment affirmed.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    WHITE v. WHITE.
    1. Divorce — Appeal—Review.
    While the conclusions of the circuit judge in a divorce case heard in open court will not be lightly set aside, if a consideration of the entire record satisfies the appellate court that the decree is wrong, it will not be permitted to stand.
    2. Same — Cruelty.
    Evidence .reviewed, and held to entitle a wife to a divorce on the ground of extreme cruelty, consisting principally of an abuse of the sexual relations.
    Appeal from Ingham; Wiest, J.
    Submitted November 17, 1903.
    (Docket No. 83.)
    Decided December 22, 1903.
    Bill by Myrtle K. White against Thomas E. White for a divorce. From a decree dismissing the bill complainant appeals.
    Reversed.

      Q. A. Smith and O. J. Hood, for complainant.

      Thomas, Cummins & Nichols, for defendant.
   Moore, J.

This is a bill for divorce. From a decree dismissing the bill, the case is brought here by appeal. The cause assigned by the bill is extreme cruelty. The testimony of the complainant is to the effect that, in addition to striking her, the defendant insisted upon having sexual intercourse with her during her pregnancy, and up to within a month before the child was born, and, against her protest, within two weeks after its birth, and while she was still sick; that he continued to insist upon excessive sexual intercourse, so as to greatly impair her health, and, to accomplish his purpose, would use force. Her testimony is confirmed in part by the testimony of her mother and her attending physician. Defendant denied many of the details of her testimony, and denied that, against her wish, he had excessive intercourse with her. He did not deny her testimony as to what occurred just before and just after the birth of the child, and admitted that upon one occasion he used force to accomplish his purpose.

We are not unmindful of the rule that, where the trial judge has seen and heard the witnesses, it gives him an advantage in determining their credibility, and this court ou'ght not to lightly reverse a decree made under such conditions. Nicholas v. Nicholas, 50 Mich. 162 (15 N. W. 64). On the other hand, when a consideration of the entire record satisfies us that the trial court has reached a wrong conclusion, its decree ought not to stand. Rosecrance v. Rosecrance, 127 Mich. 322 (86 N. W. 800); Knickerbocker v. Knickerbocker, ante, 102 (97 N. W. 1117). The testimony in the case, including correspondence, is of too disgusting a character to put in print. It is sufficient to say of it that we think it establishes the right of complainant to a decree, under the following authorities: Melvin v. Melvin, 58 N. H. 569 (42 Am. Rep. 605); 1 Bishop, Mar., Div. & Sep. § 1629; 1 Nelson, Div. & Sep. § 304; Walsh v. Walsh, 61 Mich. 554 (28 N. W. 718).

The decree of the court below is reversed, and one will be entered here in accordance with this opinion.

Carpenter, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    STANDARD WINE CO. v. CHIPMAN.
    1. Attachment — Sheriff’s Return — Amendment.
    In an action against a sheriff for failure safely to keep and deliver attached property, it was error to permit the jury to consider the sheriff’s return to the attachment writ as amended to conform to his testimony that he did not seize the amount of property therein recited; no application having been made to amend the return, or showing made upon that subject in the expectation that the court would pass upon its sufficiency.
    2. Same — Duties of Sheriff — Care Required.
    A sheriff in custody of property is not liable as an insurer, but is bound to use that degree of care and prudence which a man of ordinary discretion and judgment would use with respect to his own property.
    Error to Wayne; Hosmer, J.
    Submitted November 17, 1903.
    (Docket No. 116.)
    Decided December 22, 1903.
    Case by the Standard Wine Company against Harry F. Chipman, sheriff of Wayne county, for damages to property while in defendant’s custody under a writ of attachment. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Adolph Sloman, for appellant.
    ■ Bowen, Douglas, Whiting & Murfin, for appellee.
   Montgomery, J.

The defendant, while sheriff of Wayne county, levied an attachment upon a quantity of whisky belonging to plaintiff’s assignor, and made return of his doings. The attachment suit was adjusted, and the casks of whisky were turned back to plaintiff’s assignor, who claims that immediately thereafter it was discovered that the casks had been tampered with, and some 45 gallons of whisky withdrawn, and another 50 gallons diluted by substituting water in place of a portion of the whisky. This action is brought to recover of defendant for failure to keep safely and deliver the attached property to the plaintiff on discontinuance of the attachment suit. The evidence adduced raised a fair question for the jury as to the care of the property exercised by the defendant while the property was in his custody. Defendant was also permitted to offer testimony tending . to show that the quantity of whisky claimed was not in' fact seized by him on the attachment writ, although his return showed that it was, and the circuit judge charged that the return of the sheriff was only prima facie evidence of the quantity seized, and that the return might he considered as amended to conform to the truth as the jury should find it to be. This ruling is assigned as error.

The general rule undoubtedly is that, as between the parties to an action, the return of the sheriff is conclusive. Green v. Kindy, 43 Mich. 279 (5 N. W. 297). So in an action against the sheriff he will not, ordinarily, be permitted to contradict his return. Crocker, Sheriffs, § 46. He may in a proper case, and on proper showing and notice, be permitted to amend his return in the cause in which it is made. Green v. Kindy, supra; Cochrane v. Johnson, 95 Mich. 67 (54 N. W. 707). In the present case, so far as appears, no application was made to amend the return; certainly no showing was made in expectation that the court would pass upon its sufficiency. The plaintiff did not enter upon the trial in anticipation of an attempt to contradict the return. It was error to permit the jury to treat the return as amended.

Upon the other branch of the case, the rule established by the weight of authority is that a sheriff in custody of property is not liable as insurer, but is bound to use that degree of care and prudence which a man of ordinary discretion and judgment might use with respect to his own property. Mechem, Pub. Off. §§ 760, 775; Murfree, Sheriffs, § 961. Plaintiff relies upon a dictum in Fletcher v. Kalkaska Circuit Judge, 81 Mich. 194 (45 N. W. 641), as authority for requiring a higher degree of care of a sheriff than indicated above; but a reading of the case will show that the point was not involved, and that the language, taken as a whole, approving, as it does, of Moore v. Westervelt, 27 N. Y. 239, does not make fora more onerous rule.

For the error pointed out, judgment is reversed, and a new trial ordered.

Moore, Carpenter, and Grant, JJ., concurred., Hooker, C. J., took no part in the decision.


text:
    BALL-BARNHART-PUTMAN CO. v. LANE.
    1. Witnesses — Credibility—Corroborative Testimony.
    Where a witness testified that certain sugar sold by him to defendant was stolen by witness from plaintiff, evidence of witness’ plea of guilty to a charge of stealing other sugar at about the same time was incompetent to strengthen his testimony.
    2. Sale — -Title—Possession—Shipping Clerk.
    The bare fact that the owner of property intrusts its custody to another does not give that other any apparent authority to sell to a third person and pass title. So held where a shipping clerk sold, as his own, goods belonging to his employer.
    3. Same — Estoppel.
    The fact that plaintiff’s shipping clerk had embezzled money from it while employed as salesman did not charge plaintiff with the risk of future thefts, and preclude it from reclaiming property thereafter stolen by him.
    4. Trial — Credibility oe Witness — Directing Verdict.
    Where plaintiff’s case depended upon the testimony of a self-confessed thief, the credibility of the witness was for the jury, and it was error to direct a verdict for plaintiff.
    Error to Kent; Wolcott, J.
    Submitted November 17, 1903.
    (Docket No. 121.)
    Decided December 22, 1903.

      Trover by the Ball-Barnhart- Putman Company against Arthur J. Lane. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      TS. J. Adams, for appellant.

      Smedley & Corwin, for appellee.
   Montgomery, J.

This 'is an action of trover for 14 barrels of sugar. The plaintiffs are wholesale grocers in the city of Grand Rapids. The defendant is a retail grocer in the same city. Plaintiffs had in their employ as shipping clerk one Bert Rice. In August, 1902; Rice sold to defendant 14 barrels of sugar at cents per pound. This sugar Rice assumed to own himself, stating to defendant that he had been speculating, and was unable to carry the sugar longer. On this trial Rice testified that he stole the sugar in question from the plaintiffs, and caused it to be delivered to defendant, who paid him for it. It also appears that Rice had, while employed by plaintiffs on a previous occasion, embezzled a small sum of money, but, on his promise of reformation, had been taken back into plaintiffs’ employ, — not, however, as salesman, but as shipping clerk. He testified that he at times at the noon hour felt it his duty to assist the regular salesmen, but that he had no directions from'his employers to do so; and it does not appear that he took advantage of this circumstance to commit any fraud, or that the proceeds of such sales came into Rice’s hands. Plaintiffs were allowed to put in evidence Rice’s plea of guilty, entered in the superior court of Grand Rapids, to a charge of’ stealing other sugar at about the same time that that in question was taken. The circuit judge directed a verdict for the plaintiffs for the value of the sugar, and the defendant brings error.

Error is assigned upon rulings admitting certain testimony. These would be unimportant if the competent testimony justified the court in directing a verdict; but as we do not so hold, we feel called upon to say that we are not able to see upon what principle the testimony of the conviction of Bice upon his plea of guilty in the superior court could be received to strengthen his testimony for the plaintiffs in this case.

The defendant contends that the case is one for the. application of the rule that, “ where one of two innocent parties must suffer by the fraud of a third, he shall suffer who, by his indiscretion, has enabled such third person to commit the fraud.” And this contention presents the important question in the case. The bare fact that the owner of property intrusts its custody to another does not give that other any apparent authority to sell to a third party and pass title. Nichols v. Monjeau, 132 Mich. 582 (94 N. W. 6). The rule is, of course, otherwise if the owner has intrusted his property to another, and invested him with the indicia of ownership. But in the present case there was no act of plaintiffs which was calculated to, nor were Bice’s relations to plaintiffs such as to, induce the belief that sugar in plaintiffs’ storehouse was the property of Bice. Defendant bought the sugar as the property of Bice, and could not, therefore, have been misled by any appearance of authority claimed to have been given him by plaintiffs.

Does the fact that Bice had on a previous occasion embezzled money from plaintiffs result in this: That, by •employing him as shipping clerk, where he was not expected to receive .money, they incurred the risk of his thefts, and precluded themselves from reclaiming property stolen by him? We are cited to no case which so holds, .and should be sorry to find one. Such a rule would close the door of hope to any young man who takes the first false step. No avenue of escape would be open to the repentant. No man would feel safe in giving him employment in any capacity, whether the employment 'did or did not involve trust and confidence.

The remaining question is whether the court erred in directing a verdict for plaintiffs. The plaintiffs’ proof of title was not complete without the testimony of Rice. It is contended that, as Rice was a self-confessed thief, his credibilty was for the jury. We are constrained to hold that this contention should prevail. Druse v. Wheeler, 26 Mich. 195; Michigan Pipe Co. v. Insurance Co., 92 Mich. 482 (52 N. W. 1070, 20 L. R. A. 277); Goppelt v. Burgess, 132 Mich. 28 (92 N. W. 497). It is not enough that we are convinced of the truth of the witness’ statements. The functions of the court and jury are distinct. We regret the necessity of reversing the present case on this ground, as a different result is unlikely; but as, in bur view, the true rule was departed from, we have no option.

Judgment reversed, and new trial ordered.

Moore, Carpenter, and Grant, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    KASTL v. ARTHUR.
    1. Fraudulent Conveyances — Consideration — Question for Jury.
    Where, in replevin for cattle seized on execution against plaintiff’s husband and father-in-law, plaintiff’s testimony tended to show that the farm from which the cattle were taken, which was occupied by all of the parties, and worth about §3,000, was conveyed to her by the father, together with the stock thereon, in consideration of §300 loaned by her to him when she moved there, some 11 years previously, of her services during such period, and her agreement to support the father during life, the question of whether the transfer was fraudulent as to creditors was for the jury.
    2. Title to Personalty — Evidence—Husband and Wife.
    In replevin by a wife for property seized on execution against her husband, evidence that no personal tax was assessed against plaintiff, and that the husband had joined with her in a mortgage on the property, was admissible on the ques- ■ tion of title.

      Error to Wayne; Donovan, J.
    Submitted November 17, 1903.
    (Docket No. 128.)
    Decided December 22, 1903.
    Replevin by Rozy Kastl against Jerry Arthur and William McBride. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Hamilton Baluss, for appellant.

      Hiram L. Bice (John Galloway, of counsel), for appellees.
   Montgomery, J.

This is replevin for five cows, taken by the defendant Arthur, as constable, on an execution in favor of the defendant McBride. The cattle were taken from a farm occupied by John Kastl, his son, Paul Kastl, and plaintiff, the wife of the latter. The execution ran against the father and son. The plaintiff claimed on the trial to be the absolute owner of the cows. The defendants contended that the cows were in truth the property of John and Paul Kastl, and that any pretended transfer to the plaintiff was made with the purpose of defeating creditors. Upon this issue the jury found for the defendants, and plaintiff brings error.

The plaintiff contends in this court that a verdict should have been directed in her favor. By her testimony she moved onto this place 11 years ago. The title then stood in the name of John Kastl, and the farm consisted of 50 acres, subject to a mortgage of $300. Later this mortgage was taken up, an additional 40-acre piece was purchased, still in the name of John Kastl, and a mortgage of $1,100 was given back. • The personal property on the farm also stood in the name of John, or John and Paul. She testified that when she went to the farm she had $300 in money, which she loaned to John Kastl, and that in 1900 he deeded the farm to her to pay for money advanced and for her services. If is significant that she does not testify to any understanding as to her compensation. Her husband testifies that she was to receive $12 per month, and .that he assented to it; that the consideration for the deed of the farm was the wages so earned, the money advanced, and an agreement to support the father, John Kastl, during life. He also testified that there were four head of cattle on the farm when the deed was made to the wife. Plaintiff testified that she got this stock with the farm. On the part of the defense it was shown that John and Paul were indebted to different parties, some on note for cattle which had never been paid for; that a chattel mortgage had been given by plaintiff and Paul Kastl on some of these cows; and that no account of personal property had been made to plaintiff. We think there was clearly enough in these circumstances to raise a question of fact. The fact appears undisputed that property worth in the neighborhood of $3,000 found its way into plaintiff’s hands upon no consideration except about $300 and services in her own household while living with her husband, and that, when the conveyance was made, it was subject to a secret trust for the support of the grantor. If this transaction conclusively shows thrift, it does not as persuasively testify to .honesty and good faith.

Complaint is made of the ruling admitting proof that no taxes were assessed against the plaintiff for personal property. If the property belonged to her, it was her duty to give it in for taxation, and, while failure to tax it in her name was by no means conclusive, it was a circumstance to be considered with others in the case. Rayner v. Lee, 20 Mich. 387; Murray v. Hudson, 65 Mich. 676 (32 N. W. 889); Sauers v. Giddings, 90 Mich. 50 (51 N. W. 265); Whitaker v. Shooting Club, 102 Mich. 460 (60 N. W. 983). So, also, the joining of plaintiff with her husband in a mortgage was evidence tending to show title in him.

Complaint is made of the charge of the court. The only doubtful portion of the charge.is that relating to the transfer of the real estate. It is possible that the statement of the testimony by the circuit judge was slightly inaccurate, but, in view of the fact that plaintiff’s own testimony shows that there was a secret reservation in favor of the grantor, providing for his support during life, —an arrangement fraudulent per se as to creditors, — we do not see how any harm came to plaintiff from any slip in restating the testimony to the jury.

The judgment is affirmed.

Moore, Carpenter, and Grant, JJ., concurred. Hooker, C. J., took no part in the decision.


author: Carpenter, J.

text:
    HUNTER v. VILLAGE OF ITHACA.
    1. Personal Injuries — Survival op Actions — Damages—Claim Against Village — Suppiciency.
    The damages recoverable by an. administratrix for injuries to her intestate resulting in his death are those which the intestate might himself have recovered had he lived; and the fact that a claim for such injuries, filed with a village clerk pursuant to the statute, includes other damages, which claimant could not recover, is not fatal to her right to recover proper damages. So held where claimant, as widow and administratrix of the deceased, made claim for $3,000, as damages sustained by the deceased, “and'by his heirs, estate, representatives, and next of kin.”
    2. Municipal Corporations — Claim por Personal Injuries — Itemization.
    1 Comp. Laws, § 3754, providing that every account against a village, presented to the council for allowance, shall exhibit in detail all the items making up the amount claimed, and the true date of each, applies only to accounts made up of items, and has no application to a claim for damages for personal injuries caused by a defective sidewalk; the same being governed by section 2775, as amended by Act No. 223, § 7, Pub. Acts 1899.
    Error to Gratiot; Stone, J.
    Submitted November 17, 1903.
    (Docket No. 118.)
    Decided December 22, 1903.

      Case by Maranda Hunter, administratrix of the estate of Bruce Hunter, deceased, against the village of Ithaca, for negligent injuries to her intestate, resulting in his death. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      John T. Mathews, for appellant.

      John M. Ever den and Searl & Monfort, for appellee.
   Carpenter, J.

Plaintiff is the widow and administra- • trix of Bruce Hunter, deceased. As such administratrix, she brought this suit to recover for injuries which caused his death. The trial court directed a verdict for defendant, upon • the ground that the notice served by plaintiff upon defendant did not comply with the law. Was this decision correct?

On the 2d of December, 1901, plaintiff filed with the clerk of defendant municipality a verified petition, in which she stated that on the 3d of October, 1901, Bruce Hunter was injured by falling upon a defective sidewalk in said village; that he suffered great bodily pain until he died, as a result of his injuries, on the 27th of October, 1901. The objection to the petition arises wholly from the claim of damages, which was as follows:

“You are further advised that I, Maranda Hunter, widow of said Bruce Hunter, deceased, in my individual capacity and as administratrix of the estate of the said Bruce Hunter, deceased, have and claim to have, under the statute of the State of Michigan in such case made and provided, a right of action against the said village of Ithaca by reason of the premises aforesaid, and that I intend to hold said village of Ithaca for such damages as may have been sustained by said Bruce Hunter, and by his heirs, estate, representatives, and next of kin, by reason of said injuries, which damages are in the sum of three thousand dollars. ”

The petition was signed, “Maranda Hunter, as administratrix of the estate of Bruce Hunter, deceased.”

The sole objection to this petition is that one gross amount is demanded for several claims for damages. It is said that in this petition damages are claimed for the estate under the survival act (section 10117 of the Compiled Laws), for the next of kin under the death act (section 10438 of the Compiled Laws), and for the plaintiff and next of kin individually. If this petition has thus' blended claims, it is obvious that several unfounded claims are united with one well-founded claim, as it is settled by the decisions of this court (see Dolson v. Railway Co., 138 Mich. 444 [87 N. W. 639]; Jones v. McMillan, 139 Mich. 86 [88 N. W. 206]; Kyes v. Telephone Co., 132 Mich. 281 [93 N. W. 623]) that all the damages which can be recovered, under the facts stated in this petition, are those which the intestate might himself have recovered had he lived. In other words, under defendant’s construction, plaintiff claimed in her petition damages which she could not recover, and she did not separate them from damages to which she was entitled. The claim that such a defect in the petition shall work a destruction of a cause of action, otherwise valid, should be supported by nothing less than a clear legal enactment, for it is manifest that it can work no practical in j ury to the municipality. It is true that, if the municipality desired to settle the claim, it might be inconvenienced by not being informed by the petition precisely what would satisfy the legal claims of petitioner; but this inconvenience could be removed by a simple inquiry.

The learned trial judge was of the opinion that the law required petitioner to so state her claim for damages that, “ if found reasonable, * * * they might be paid, and thus avoid litigation.” The law governing this subject is contained in section 3754 of the Compiled Laws of 1897, and section 3775 of the Compiled Laws of 1897, as amended by section 7 of Act No. 333 of the Public Acts of 1899. Section 3754 reads:

‘ ‘ The council shall audit and allow all accounts chargeable against the village; but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered for the village, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim. And every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the village, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid.”

Section 2775, as amended, so far as material to this case, reads:

“No village * * * shall be liable in damages sustained by any person, * * * either to his person or property, * * * unless such person shall serve or cause to be served, within sixty days after such injury shall have occurred, a notice in writing upon the clerk or deputy clerk of such village, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury, as far as the same has become known, and that the person receiving such injury intends to hold such village liable for such damages as may have been sustained by him.”

The only language in either of these sections which, in . our judgment, tends to support the contention of defendant, is the following sentence in section 2754:

“And every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each.”

This language applies, as it clearly indicates, only to accounts made up of items. A claim for damages resulting from personal injuries is in no sense an account made up of items. The form of stating such a claim in the notice to the village is indicated, not by the sentence above quoted, but by section 2775, as amended, and a statement made, as plaintiff’s was, in conformity with that section, was a full compliance with the law.

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

Moore, Grant, and Montgomery, ,JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    GREGG v. FIRST NATIONAL BANK OF DURAND.
    Garnishment — Claims Subject — Security for Debt.
    A bank having security for a loan is not required to relinquish the same at the instance of a creditor of its debtor, and cannot be charged as garnishee on account thereof until its claim-is paid.
    Error to Shiawassee; Smith, J.
    Submitted November 18, 1903.
    (Docket No. 135.)
    Decided December 22, 1903.
    Garnishment proceedings by Edward P. Gregg against the First National Bank of Durand, as garnishee of Albert R. Harrington. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      A. L. Chandler and S. B. Terry, for appellant.

      Fred J. Northway (John T. McCurdy, of counsel), for appellee.
   Montgomery, J.

This proceeding was instituted to charge the defendant as garnishee of A. R. Harrington. The statement in appellant’s brief fails to follow the proper sequence as to dates, and has made it somewhat difficult for us to' understand the real facts. As we gather the facts from the record, they are, in brief, that, prior to the service of the garnishee process, Harrington was indebted to the bank in the sum of $2,700 to $2,800, the bank having direct security on a crop of 65 acres of beans, and also a chattel mortgage upon horses and other personal property. Also, prior to the garnishment, some of the horses had been sold by Halrington, and a portion only of the sum realized applied on the indebtedness to the bank. Also, prior to the service of process, Harrington turned over absolutely to the bank his entire crop of beans. The bank also held in its hands, as collateral security, certain contracts for the sale of personal property,, made by Harrington to third parties, which contracts were pledged as collateral. On the date of the service of the writ, the indebtedness to the bank aggregated $2,208.80. There was realized from the beans about $1,200, and the chattel mortgage continued in force as to the remaining property, which was of much less value, if all had been seized, than sufficient to pay the balance of the indebtedness to the bank.

The bank was not required to relinquish its security, and could not be charged as garnishee until its claim was paid. The circuit judge directed a verdict for defendant. The plaintiff contends that the evidence shows that the bank was fraudulently conspiring with Harrington to cover up his property. Such claim has no basis whatever in the record as we read it.

Judgment affirmed.

Moore, Carpenter, and Grant, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    PEOPLE v. MARSTON.
    Assault With Intent to Ravish — Evidence—New Trial.
    In a prosecution for assault with intent to ravish, evidence examined, and held not only to justify the inference of intent, but to warrant the trial judge in refusing to set aside the verdict as against the weight of .the evidence.
    Exceptions before judgment from superior court of Grand Rapids; Newnham, J.
    Submitted November 20, 1903.
    (Docket No. 245.)
    Decided December 22, 1903,
    Frank Marston was convicted of assault with intent to commit the crime of rape.
    Affirmed.

      Grove & McDonald, for appellant.

      William B. Brown, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of an assault with the intent to commit the crime of rape. The case is brought here for review, and the sole question is whether the record is barren of proof of the intent to use force and to have sexual intercourse with the prosecutrix at all hazards.

The case is one in which the intent must be inferred from the attending circumstances, and ■ such inference is to be drawn by the jury. We are all convinced that there were circumstances from which the jury was justified in drawing the inference of the specific intent charged. This being so, it is not enough that a doubt may exist in our minds as to whether the more reasonable inference is not that the respondent only aimed at seduction. The trial judge, who noted the appearance of the witnesses on the stand, was of the opinion that the verdict was not so clearly against the weight of testimony as to justify its vacation. We do not find the case so clear as to justify us in overruling his decision.

Conviction affirmed.

Moore, Carpenter, and Grant, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    AUDITOR GENERAL v. NEWMAN.
    1. Taxation — Void Sale — Discharge of Lien.
    Under the law providing that the lien of the State for taxes shall continue until payment thereof, a void sale does not discharge the lien.

      % Same — Setting Aside Sale — Refunding.
    Where a tax sale is set aside, the purchaser is entitled to have refunded, not only the price paid for the land, but the taxes for subsequent years which he was required to pay as a condition of his purchase.
    3. Same — Unauthorized Action of Auditor General.
    The unauthorized action of the auditor general in setting aside a tax sale, and refunding the amount paid by the purchaser, does not destroy the tax lien, or operate as a payment of the tax.
    4. Same — Estoppel.
    A sale of land for taxes does not discharge the lien of the ' State for the taxes of prior years, sales for which had been set aside and the purchase money refunded, nor does it estop the State to assert such lien.
    Appeal from Oceana; Russell, J.
    Submitted November 19, 1903.
    (Docket No. 229.)
    Decided December 22, 1903.
    . Petition by Perry F. Powers, auditor general, for the sale of lands delinquent for taxes: On objections filed by John Newman. From a decree for contestant, petitioner
    appeals.
    Reversed.

      This is a petition in chancery filed in 1902 by the auditor general, under the law, to foreclose tax liens upon delinquent lands. The land in question was purchased by contestant, Newman, at the annual tax sale in 1900, for the delinquent taxes of the year 1897. At the tax sale in 1897 the land was sold by the State to Minnie B. Eldridge for the delinquent taxes of 1891 to 1894, inclusive. At the time of her purchase, she paid, as the law required, the taxes for the years 1895 and 1896, which were then a lien upon the land. Upon her application, the auditor general, on May 8, 1900, canceled said sale as illegal, and refunded the money to her. Upon the belief that the taxes so refunded were still a lien upon the land, the auditor general included in this petition said lands, praying the foreclosure of the liens. Newman contested, making three objections: (1) That the sale to him for the delinquent tax of 1897 conveyed to him .the entire fee of the land, and was all the interest which the State had or claimed therein; (2) that the taxes for 1895 and 1896 were paid, and the lien of the State extinguished thereby; (3) that the proceedings on the part of the auditor general to re-establish the lien for the taxes of 1891 to 1896, inclusive, were unauthorized.. The court sustained the claim of the contestant.

      Charles A. Blair, Attorney General (Charles W. McGill, of counsel), for petitioner.

      Hartwick & Skeels, for contestant.
   Grant, J.

(after stating the facts). The auditor general, in canceling these sales and refunding the money, acted under the authority of Gurd v. Auditor General, 122 Mich. 151 (80 N. W. 1005). If that decision had correctly stated the law, the action of the auditor general in canceling the sales to Mrs. Eldridge and refunding the money would have been valid. That decision was overruled in Cole v. Auditor General, 132 Mich. 262 (93 N. W. 890), in so far as the former decision sustained the power of the auditor general to review and set aside proceedings prior to the decree. The law under which these sales were made to Mrs. Eldridge provided that the lien for the taxes, etc., should continue until payment thereof. A void sale does not discharge the lien. If the sale be void for any reason that does not affect the validity of the taxes, the lien remains, and can be afterwards foreclosed. Auditor General v. Patterson, 122 Mich. 39 (80 N. W. 884). Mrs. Eldridge was also entitled, under that case, to have the amount paid for the taxes of 1895 and 1896 refunded.

4 That the auditor general made a mistake, and canceled and refunded when the law did not authorize him to do so, does not destroy the lien, or operate as a payment of the taxes. Either the purchaser of the tax title still retains his title, although his deed and sale have been canceled and the money refunded, or the State still retains its lien for the tax, notwithstanding the action of the auditor general. But the auditor general, acting under the Gurd Case, which we held, in Cole v. Auditor General, justified him in taking such action, set many sales and deeds asidé in cases in which the proceedings prior to decree were void, and would have prevented a decree of sale if contested at the proper time. There is no provision of law for restoring the deeds and recovering the money so refunded. Newman’s purchase did not operate to discharge the former liens, or to estop the State to assert them. It follows that the lien of the State remains, and that it is the duty of the auditor general, by subsequent petition, to proceed to foreclose.

The decree is reversed, and the case remanded for further proceedings.

Moore, Carpenter, and Montgomery, JJ., con- ■ curred. Hooker, C. J., took no part in the decision.


text:
    LEE v. HURON INDEMNITY UNION.
    1. Evidence — Letters—Receipt—Question for Jury.
    Where the writer of a letter testifies that it was duly mailed, but its receipt is denied by the addressee, whether it was received is a question for the jury.
    2. Principal and Agent — Contracts—Salary.
    Plaintiff and defendant insurance company made an oral contract March 1, 1902, by which plaintiff was to act as defendant’s agent in securing and starting subagents and obtaining applications for membership, and was to receive a monthly salary. Defendant wrote plaintiff August 12, 1902, to the effect that thereafter his compensation would depend on his commission. Plaintiff testified that he at once replied, declining to continue work on those terms. Defendant denied the receipt of the letter, but subsequently directed plaintiff to continue his work, which he did until October 8, 1902. Held, that the jury were justified in finding that defendant consented to the payment of the salary for the whole period.
    3. Same — Estoppel.
    • Plaintiff, who acted as agent for defendant insurance company under a contract whereby he was chargeable with a $2 fee for each application obtained by him, was not estopped, as a matter of law, to deny his liability as to every application bearing his signature, where his testimony tended to show that he was authorized to sign applications secured by his subagents, who were entitled to the application fee, and that defendant continued him in its employ knowing of his contention in that regard.
    4. Trial — Instructions to Jury — Claims of Parties.
    In an action by an agent to recover a balance due on salary, the court, in charging the jury, said, “Now I give you another set of figures, based on another claim on the part of defendant.” The figures showed a less amount than the claim of plaintiff, and conformed to the testimony of a witness for defendant. Held, that the statement of the court was not cause for reversal.
    A. Same.
    During the course of .the charge, one of the jurors asked if there was any evidence to show that plaintiff had received, as application fees, more than he had accounted for. The court replied that that was a question for the jury to settle; that plaintiff said he had received no more than the amount remitted. Held, that as there was no testimony on the subject except as the court stated, — or, at least, defendant did not call the court’s attention to any such, — the remark was not cause for reversal.
    6. Same — Compromise Verdict.
    Plaintiff in such action claimed a balance of $185. Defendant claimed that it was entitled to a verdict against plaintiff for $329. The jury returned a verdict for plaintiff for $150. The evidence was conflicting, and that offered on behalf of each party might have been believed in part and rejected in part. Held, that there was no error in refusing to set aside the verdict on the ground that it did not conform in amount to the claim of either party.
    Error to Lapeer; Smith, J.
    Submitted November 19, 1903.
    (Docket No. 142.)
    Decided December 22, 1903.

      Assumpsit by John Lee against the Huron Indemnity Union for a balance due on salary. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Cady & Crandall, for appellant.

      Herbert W. Smith, for appellee.
   Carpenter, J.

Plaintiff brings this suit for a balance of salary which he claims defendant owes him. March 1, 1902, plaintiff and defendant made an oral contract, by which plaintiff was to act as defendant’s agent in securing and starting subagents, settling claims, and obtaining applications for membership, and was to receive a salary of $50 per month and expenses. For each application' obtained by bim, he was to remit to defendant a fee of $2. He worked for defendant until October 8, 1902, during which time he sent defendant 199 applications for membership, and forwarded as fees therefor the sum of $61. It was the claim of plaintiff that during all this time he was entitled to his salary under the above agreement, and that the $61 forwarded was the entire amount for which he was chargeable under said agreement. It was the claim of defendant that plaintiff had no right to the salary .after August 12th, and that he was chargeable with $2 for ■each of the 199 applications. Under plaintiff’s claim, the balance his due was $185. Under defendant’s claim, it was entitled to a verdict for $229. The issue was submitted to the jury, who rendered a verdict for the plaintiff for $150. We are asked to reverse the judgment of the ■court below upon several grounds.

It is contended that the evidence conclusively proved that plaintiff’s right to the salary of $50 per month ended August 12, 1902-. It is true that on that day defendant did write plaintiff, in effect, that thereafter his compensation would depend upon his commission; but it is also true that plaintiff testified that he at once replied, declining to continue work- on these terms. As this letter was duly mailed, according to plaintiff’s testimony, it may be inferred, notwithstanding defendant’s denial, that it was received; and, as defendant subsequently directed plaintiff to continue his work, we think the jury were justified in reaching the conclusion that defendant consented to continue the payment of the salary.

It is contended that the.testimony conclusively establishes plaintiff’s liability of $2 for each of the 199 applications. Plaintiff signed each of these applications as agent. It is his claim that most of them were secured by sub-agents, who, according to his testimony, were entitled to the application fee. It is the claim of defendant, as we understand it, that plaintiff had no right to sign his name to any application which he did not himself procure; that the fact of his signing would, as he knew, and did, lead defendant to believe that he was chargeable for the application fee; that, misled by this belief, defendant continued plaintiff in its employ; and therefore that he is estopped from denying his liability. According to plaintiff’s testimony, the agreement that he should not sign applications ■secured by his subagents was made long after his employment commenced. If this testimony was believed by the jury, there was no basis upon which the estoppel could rest, as defendant would have no right to assume, merely because plaintiff signed as agent, that he was chargeable with the $2 application fee. Neither does the testimony conclusively prove that defendant continued to retain plaintiff as an employé in reliance upon the belief that he was chargeable with these application fees. Plaintiff testifies that on the 30th of May defendant agreed on a settlement which did not charge him with the application fees, and, if defendant received plaintiff’s answer to its letter of August 12th, heretofore referred to, which was a question for the jury, it was sufficiently informed that the liability for said fees was denied.

The court charged the jury that they might render a-verdict upon the theory that plaintiff’s right to his salary continued till October 8th, and upon the assumption that he was chargeable with $1 for each of the 199 applications that he assisted a subagent in taking, and tbat in that, case the balance due plaintiff would be $47.56. In stating this theory, the trial court said, “ Now I give you another set of figures, based on another claim on the part' of the defendant.” It is contended that this was error, as. defendant did not make this claim. As defendant’s witness had testified that plaintiff was chargeable with $1 on the applications which he had assisted subagents in taking, this theory was warranted by the testimony, and we cannot say that the court was not warranted in assuming it to-be one of the claims of defendant. In any event, it was. more favorable to defendant than the claim of plaintiff, and therefore the statement was not prejudicial to its. interests.

During the charge of the court, one of the jurors asked whether there was any evidence to show that plaintiff had received, as application fees, more than he had accounted for. To this the court replied: “ That is a question for you to settle. * * * He himself says he took none of them, and received no money except the $61.”' Defendant was not harmed by this answer. There was no testimony upon this subject except that above referred to, furnished by plaintiff; and, if there had been, defendant should have called the court’s attention to it.

Nor can we say that the trial court erred in refusing to set aside the verdict on the ground that it was against the weight of testimony, nor because it did not conform in amount to the claim of either plaintiff or defendant. See Whalen v. Grant, 129 Mich. 178 (88 N. W. 401); Benedict v. Provision Co., 115 Mich. 527 (73 N. W. 802).

The judgment is therefore affirmed,, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Hooker, O. J., took no part in the decision.


text:
    CADY v. FAIR PLAIN LITERARY ASS’N.
    1. Building Contractors — Action by Assignee of Claim —Defenses — Liens.
    An assignee of the claim of a building contractor for a balance due under the contract may maintain an action thereon against the owner, notwithstanding claims of lien have been filed against the building, where all liens so filed have been assigned to plaintiff, and the time has elapsed for filing other liens.
    2. Same — Discharge of Lien.
    In such case it is not necessary that the liens be discharged before commencement of suit; an adequate remedy being afforded by 3 Comp. Laws, § 10732, in case the right of the owner to a discharge on payment of such balance is denied.
    3. Same — Notice by Contractor — Service—Authority of Attorney.
    It is within the authority of an attorney for a building contractor, who has drafted for him the notice of the claims of laborers and subcontractors, required by 3 Comp. Laws, § 10713, to be served on the owner as a condition precedent to an action on the contract, to direct the service thereof, so that service by a person directed by the attorney to make it is sufficient.
    Error to Berrien; Coolidge, J.
    Submitted November 20, 1903.
    (Docket No. 146.)
    Decided December 22, 1903.

      Assumpsit by Alvah P. Cady against the Pair Plain Literary Association to recover a balance due on a building contract. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      John J. Sterling, .for appellant.

      Cady & Andrews, for appellee.
   Carpenter, J.

Early in 1902 one Robert Armstrong built a hall or auditorium for defendant. On the completion of his work, August 5, 1902, there was a balance due on his contract of $77.55. On August 11, 1902, Armstrong’s two sons, Pred and Hector, filed claims for liens against said building for labor performed by them as employes of their father. The aggregate amount of these two claims was $106.22. December 23, 1902, Armstrong and his two sons each assigned their several claims above mentioned to plaintiff, and on the following day this suit at law was commenced, which resulted in the court below in a judgment for said balance in favor of plaintiff.

It is contended that the existence of the liens of the two Armstrong boys on defendant’s property was a complete answer to plaintiff’s claim. In considering this contention, it should be borne in mind that when this suit was commenced the liens of the two boys, assigned to plaintiff, were the only liens on récord, and that the time to file liens had elapsed. It is not claimed, as manifestly it could not be, that plaintiff can maintain this suit as assignee of the lien claimants. Those claims can be enforced only in equity. Plaintiff’s right to recover at law the balance due on the contract rests upon the assignment of the principal contractor, Robert Armstrong. As such assignee, plaintiff could not recover if the lien claims were outstanding, owned by third persons. But we cannot see how those claims constituted any objection to his recovery after plaintiff acquired their ownership. He owned the balance due, and all liens against it. A payment to him of the balance could have been safely made, and would have discharged the obligation of the defendant to the original contractor and to the lien claimants. We think the objections to a recovery in a suit at law are without force.

Nor was it necessary, as contended by defendant, that the liens should be discharged before the suit was commenced. It is true that the payment of the balance, whether before or after judgment, will entitle the defendant to such discharge; and, if that right were denied,— as it is not in this case, for the liens were discharged before judgment, — the law furnishes an adequate remedy. See section 10732, 3 Comp. Laws.

The defendant contends that there was no evidence tending to prove the service of notice containing names of laborers and subcontractors, as required by section 10713, 3 Comp. Laws. It is a sufficient answer to this contention to say that we think there was such evidence.

Defendant also contends that the service of the notice was insufficient because made by an agent who received his authority, not from the contractor, but from his attorney, who drafted the notice. The action of the attorney in directing the service was within the scope of his authority.

No other objection demands discussion.

The judgment of the court below is affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    GRAHAM v. EVENING PRESS CO.
    1. Negligent Driving — Collision with Pedestrian — Question eor Jury.
    Where, in an action for injuries received by plaintiff while attempting, in the early evening, to cross a street intersection diagonally, by being struck by a vehicle approaching from behind, there was testimony tending to show that she looked in both directions before leaving the curb, at which time the vehicle in question was 3 or 4 rods away, and that she had gone about 20 feet when the collision occurred, the question whether the driver was negligent either in not seeing plaintiff, or in failing to stop or avoid her, was for the jury.
    2. Same — Contributory Negligenoe.
    Whether plaintiff was guilty of contributory negligence in not looking behind her after leaving the curb was5 likewise a question for the jury.
    Error to Kent; Wolcott, J.
    Submitted November 20, 1903.
    (Docket No. 160.)
    Decided December 22, 1903.
    Case by Sarah Graham against the Evening Press Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. J. O'Brien and James H. Campbell, for appellant.

      Lombard & Hext, for appellee.
   Montgomery, J.

This is an action for negligent injury.' The plaintiff, a woman 74 years old, attempted to cross diagonally from the southeast corner to the northwest corner of Ionia and Pearl streets, in the city of Grand Rapids, about 6 o’clock p. m. of the 17th of October, 1901. While in the act of crossing, she was struck by a horse owned by defendant and driven by its employé, one Harry C. Stewart. Plaintiff sustained substantial injuries, and on the trial recovered a verdict of |250. Defendant brings error.

It is contended that there was no evidence of negligence on the part of the driver. The driver was made a witness for the plaintiff, and possibly, although we do not so decide, if his testimony as a whole be taken as an accurate statement of the incident, there was no negligence on his part. Butthe plaintiff adduced other testimony. She herself testified that, before she stepped off the sidewalk into the paved portion of the street, she looked in either direction, and saw no teams approaching in either direction sufficiently near to arrest her attention or cause concern for her safety. The driver testified that, at the time plaintiff left the curb, he was about a rod away; that the collision occurred when she had traveled about 30 feet from the curb; and that he was jogging along at a fair rate of speed. He further testified as follows:

“ Q. You said just a minute ago you were within 3 feet of the curb ?
“A. Yes, sir.
Q. Prom the same curb she stepped off of ?
“A. Yes, sir.
Q. Now, did you immediately turn your horse west?
“A. Not at once; no, sir.
Q. Why didn’t you ?
“A. Why, because I thought probably, if she continued on, I could go behind her.
Q. Well, she did keep on, didn’t she ?
“A. Yes.
“ Q. You could have stopped your horse, if you had tried, when you first saw her ?
“A. No, sir.
Q. Why could you not ?
“A. Too heavy.
Q. Too heavy ?
“A. Yes, you could not stop so quick.
Q. When did you first try to stop ?
' “ A. As soon as I saw her, I commenced to pull up.
Q. If you had turned to the west, you would not have struck her, would you ?
A. You could not turn a horse as quick as that.
“ Q. You say, in your judgment, she was 30 feet out into the street. How wide is your rig ?
“A. I don’t know.
Q. About 5 feet, isn’t it ?
“A. All of that.
Q. You had space between her and 20 feet to get through, didn’t you ?
“A. No, sir.
Q. Why?
“A. Because I was at the same point she was at the end of that 20 feet.
Q. But if you had gone the other way, if you ha^d started in behind her, in fact had gone either side, you would have escaped her, wouldn’t you ?
“A. Yes, of course.
Q. You had a chance to have done either ?
“ A. No, sir.
“ Q. Explain to the jury why you didn’t have a chance to go either side ?
“A. Why, there wasn’t time; neither time nor room.
Q. There wasn’t time ?
, “A. No, sir.
“ Q. There would have been if you had started to turn your horse as soon as you saw her, wouldn’t there ? How about that ?
“A. There might have been, yes.
‘ ‘ Mr. Lombard: That is all.
“A. But I doubt it.”

Edgar Rice, a witness for plaintiff, testified as follows:

“When I first saw her, she was on the southeast corner ; on the corner, standing there looking up and down the street. And one particular thing that called my attention to it at the time, she seemed to me like a lady that didn’t really know where she was going, or else looking to see if there was anything coming down the street either way. At the time I noticed her, I saw a team down the street, I should think three or four rods to the south of her. It was the Evening Press wagon. , While I was looking, she was looking up and down the street in different directions, and then started directly across the street, or diagonally across toward the Y. M. C. A. building.
Q. At the time she started across she street, you may state if you observed how far up the street this team was.
“A. I should think the team was between three and four rods from the corner.
Q. What did you next observe?
“A. The next that I observed was — the next I saw was — when the wagon was practically upon this lady. It was not over six feet the second time I noticed it.
Q. I will ask you whether you continued to observe that all the time, from the time you first saw that or not ?
“A. No, sir; I just noticed her when she was leaving the walk, and I did not think any more of it until I looked up and saw the wagon upon her. * * *
Q. Now, will you describe to the jury just what you saw then ?
“A. Do you mean at the second time I looked up ?
‘ ‘ Q. The second time you saw it.
“A. The second time I looked up I saw the horse, as I should judge, about five or six feet from this lady, and I saw immediately what was going to happen, but at the same time was not in any way to prevent it.
By Mr. O’Brien: Suppose you state just what you saw, without any reasons.
Mr. Campbell: That remark ought to be stricken out, his impression at the time. I move to strike out the first statement, — what he saw and what he thought.
‘ ‘ The Court: What he thought may be stricken out; the statement of what he saw may remain.
“A. And the driver turned his horse to the west just about the time that it struck this lady, and she fell to the northeast, which would be in that direction, and struck on her right side; and the driver pulled his horse in as soon as he could, but he had gone about 15 feet beyond before he got the horse brought to a standstill. I ran there as soon as I could get there, and helped to pick her up. The driver got down off the wagon, and I think he was the one that assisted in picking her up. When I got to her she was on the pavement.”

The testimony of this witness disputes that of the driver in another respect. The testimony of the latter is to the effect that the horse came to a stop at the instant of the collision, which is inconsistent with that of Mr. Rice'above quoted.

From this testimony it was competent for the jury to deduce that plaintiff, seeing no vehicle near, started to cross the street in plain view of the driver; that the vehicle driven by defendant’s servant, traveling in substantially the same direction, approached her from behind; and that, after she had pursued her course for about 20 feet, she was struck and injured. It seems too plain to call for extended remark that the jury might infer from these facts that the driver was in fault either in not seeing the plaintiff in this position, or in failing to either stop the horse or veer away from plaintiff’s course. If these facts do not present a case for the jury, it must be held that a public thoroughfare is, under all circumstances, indeed a place of danger. The cases of Boick v. Bissell, 80 Mich. 260 (45 N. W. 55), and Lazell v. Kapp, 83 Mich. 36 (46 N. W. 1028), are in point.

Defendant’s counsel cite Denman v. Johnston, 85 Mich. 387 (48 N. W. 565), as sustaining their contention. The case cited bears some analogy in its facts to the present, but we find no question of law there determined which concludes the present plaintiff. The decisive holding in that case was that the plaintiff’s claim of gross negligence was not competent under the pleadings as they stood. The court held that it was not error to refuse to direct a verdict at the close of the plaintiff’s proofs, for the reason that the defendant had not rested when the motion was made; and in the course of the opinion stated:

“ The [trial] court, in his charge .to the jury, instructed them correctly upon the rights and duties of travelers in a publie highway, and also upon the respective theories of the parties as presented in the case by their testimony, and left the questions of fact to the jury as they should find they were established by the testimony.”

In discussing the question of gross negligence, Champ-LIN, C. J., said:

“No witness testifies that defendant saw plaintiff in a place of danger, and that he knew, or had good reason to believe, that plaintiff was not aware of the danger, or that defendant saw plaintiff in time to avoid injuring him by the exercise of ordinary care. * * * The neglect of defendant to see the plaintiff was no greater than that of the plaintiff to see the team approaching. In my opinion, neither of them was guilty of such a degree of negligence as to excuse the negligence of the other. ”

This language was very evidently employed in answer to the plaintiff’s contention that the defendant would be liable even though the jury might find plaintiff guilty of negligence in attempting to cross the street ahead of defendant’s team, for the reason that defendant discovered plaintiff’s negligence in time to avoid the injury. It could not have been intended to.hold that there was no evidence of care on plaintiff’s part under circumstances similar to the present. That question was not under discussion at that point in the opinion.

The question of defendant’s negligence was properly submitted to the jury.

Defendant’s counsel also contended in the court below, and contend here, that, as plaintiff did not look in the direction from which defendant’s vehicle approached after leaving the curb, the jury should have been instructed that she was guilty of contributory negligence as matter of law. This is not the.case of a traveler being injured by a street or steam railway, but a traveler in the public street is overtaken, run down, and injured. We are cited to no case, and know of none, which casts upon a pedestrian traveling the street the duty of keeping a constant lookout to the rear as matter of law. The question of what constitutes due care in such a case is for the jury. See cases cited above, and also an instructive discussion of this subject by Folger, J., in Adolph v. Railroad Co., 76 N. Y. 530; Elliott, Roads & S. §§ 833, 834; Moebus v. Herrmann, 108 N. Y. 349 (15 N. E. 415, 2 Am. St. Rep. 440); Williams v. Grealy, 112 Mass. 79; Shapleigh v. Wyman, 134 Mass. 118; Stringer v. Frost, 116 Ind. 477 (19 N. E. 331, 3 L. R. A. 614, 9 Am. St. Rep. 875).

It is contended that it was error to refuse five requests which are grouped in the brief of defendant’s counsel, the sole statement being: “ These requests should have been given. If they had been, it would have left nothing relating to the negligence of the driver to be submitted to the j ury. ” The discussion above shows that this but furnishes a good reason for the refusal of the requests, for we have attempted to demonstrate that the question of the driver’s negligence was properly submitted to the jury. The instructions of the circuit judge were in accordance with the views herein expressed.

The judgment is affirmed.

Moore, Carpenter, and Grant, JJ., concurred. Hooker, C. J., took no part in the decision.


text:
    LOWRY v. LOWRY.
    Deeds — Reformation—Name of Grantee — Evidence.
    Where, in a suit to have complainant’s name substituted for that of his deceased wife as grantee in a deed, under a claim that he furnished the purchase money, and directed that the title be taken in their joint names, it appeared that, while he learned of the condition of the deed soon after its execution, he lived happily with his wife until her death, 11 years thereafter, and during such time permitted her to deal with the property as her own, frequently spoke of it as hers, and denied the right of his creditors to take it in payment for his debts, he was not entitled to relief.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 8, 1903.
    (Docket No. 15.)
    Decided January 5, 1904.
    Bill by John Lowry against Durward Lowry, Eva F. Lowry, and John D. Lowry to reform a deed. From a decree for complainant, defendants appeal.
    Reversed.

      Seth C. Randall, for complainant.

      Lawrence & Butterfield (M. J. Cavanaugh, of counsel), for defendants.
   Carpenter, J.

Defendant Durward is the son of complainant, defendant Eva is the wife of Durward, and the other defendant, John D., is their infant son. The bill is filed to obtain a decree changing the name of the grantee in a deed bearing date December 26, 1889. By this deed one Catherine E. Jones conveyed a certain lot in the city of Ann Arbor to Helen M. Lowry, the wife of complainant and the mother of defendant Durward. Shortly after the deed was made, a house was erected upon the lot, and it was used as the homestead of complainant and said Helen until the death of the latter, October 31, 1900. During this time said Helen executed three different mortgages, bearing date, respectively, December 23, 1890, February 21, 1895, and September 20," 1900. Complainant furnished the money paid for this lot, and it is his claim that, in taking the title in her own name, his wife disregarded his instructions to take the title in the joint names of her and himself, and that she subsequently refused to repair the wrong done. The trial judge, after listening to the testimony, taken in open court, granted complainant relief.

There is just one question raised on this appeal, and that is whether the lower court correctly disposed of the issue of fact. Though the testimony in the case is conflicting, we are convinced that complainant knew, soon after this deed was executed, that his wife was the sole grantee named therein; that he lived happily with her from that time until she died; that during this time he not only permitted her to deal with the property and mortgage it as her own, but he often, if not habitually, spoke of it as hers, and denied the right of his creditors to take it in payment of his debts. We cannot avoid concluding from this testimony that complainant consented to the action of which he now complains, and that he was not, therefore, entitled to the decree appealed from.

Defendants’ counsel does not ask that the hill of complaint be dismissed. Speaking for his clients, the adult defendants, who alone are interested in the property, he expresses their willingness that the decree should be so modified as to secure to complainant a life estate in the property, and the reversion to the defendant Durward. Under these circumstances, such a decree will be made. Defendants will recover costs of both courts, which, however, will not be enforced against the life estate of complainant.

The other Justices concurred.