text:
    SLOMAN v. NATIONAL EXPRESS CO.
    1. Express Companies — Shipping Receipts — Conditions.
    Internal revenue stamps placed on that portion of a shipping receipt containing the conditions of the contract do not amount to an erasure of any of the conditions.

      2. Same — Verbal Agreement.
    Where plaintiff shipped goods by express, taking a receipt for thQ same, signed by the company’s agent, containing the conditions upon which the shipment was made, parol testimony was inadmissible to show a verbal agreement that the goods should reach their destination at a certain time.
    Error to Wayne; Rohnert, J.
    Submitted February 5, 1903.
    (Docket No. 74.)
    Decided July 8, 1903.

      Assumpsit by Mark Sloman, Whiting A. Tillotson, and Milton M. Sloman, copartners as M. Sloman & Company, against the National Express Company, for delay in the transportation of goods. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Adolph Sloman, for appellants.

      Russel & Campbell (Henry M. Campbell, of counsel), for appellee.
   Hooker, C. J.

The plaintiffs shipped from Detroit, Mich., 14 bales of furs, consisting of coons, skunks, mink, and rats, to themselves, at Leipsic, Germany, in March, 1900, by the defendant company, prepaying the charges. At the time of shipment they received from the defendant the following receipt:

“No. 78. March 31st, 1900.
“ Mr. M. Sloman, to National Express Company, for transportation, 14 bales from-, weight 3,940 pounds. Our charges 1135.75. Received payment for the company',
“George Morrow.
[Underneath] ' “M. Sloman, Leipsic, Germany.”

On the back of the receipt was printed the following:

“ This company transacts a general express and freight forwarding business to and from Europe by fast mail and passenger steamers, having offices in Liverpool, Berlin, and Bremen, and agents at the principal cities abi’oad.”

The plaintiffs sought to show that the goods were shipped under an oral contract whereby the defendant undertook that said goods should be delivered in Leipsic by the time that one of the plaintiffs’ firm should arrive there, and upon the representation that the defendant had express transportation to, and an agent at, Leipsic. The court held that the shipping receipt hereinafter siiown constituted the contract between the parties, and refused to permit plaintiffs to show an agreement to deliver in Leipsic at or before Mr. Sloman’s arrival. It appeared in the case that there was no express transportation in Germany, as understood by us, but that there were three methods of transportation of freight, of varying expedition, — one which compares with our way freight; a second, where bulk is not broken, and which is more expeditious than the former; and a third, which is more prompt than either of the others. These goods went by the second.

It is the claim of the plaintiffs that these furs crossed the ocean on the same steamer with their representative, and he landed at Bremen, 150 miles from Leipsic, on Thursday, April 12th. The Fur Fair at Leipsic opened on Sunday, the 22d of April. Sloman reached Leipsic on the 17th, and the furs arrived on Monday afternoon, too late to do anything with them on that day. This action was brought to recover damage for the shrinkage in the value of these furs in that market between the opening of the fair on Sunday, and the time when they arrived. A verdict was directed for the defendant, the court instructing the jury that the receipt constituted the contract; that the express company was the initial carrier, and was not liable for loss occasioned by the default of the carrier in Germany to deliver promptly; and, further, that the delay was one of only 24 hours, which delay was not shown to have been negligent. Plaintiffs have brought error.

The record shows that the plaintiffs are furriers in Detroit, and previous to this occasion had been in the habit of doing business with the defendant. They had in their possession a blank shipping receipt book furnished by the defendant, which was in frequent use by them, the practice being to use one line for each shipment; the blanks being filled in the following order by plaintiffs, except the last, which was for the signature of defendant’s agent who should receive the goods, viz.: ‘ ‘ Date. Description. "Value or Amount. Addressed to. Destination. Receipted by.” This line was filled by Mark Sloman, one of the plaintiffs. The leaf on which this receipt was written contained the following heading:

“Not Negotiable.
“National Express Company.
“ Received of-----:--:--
“The property hereinafter described, to be forwarded .subject to the terms and conditions of the company’s regular form of receipt, printed on inside front cover of this book. * * *
“This company issues travelers’ cheques and money orders available everywhere; also forwards shipments to and from Europe by the fastest steamships.”

Upon the back was the following:

“National Express Company.
“Notice to Shippers.
“(Not Negotiable.)
“All properties which may be receipted for on this company’s blank receipts No. 53 we undertake to forward to the nearest point to destination reached by this company, subject to the following conditions, namely:
“1. This company is not to be held liable for any loss or damage except as forwarders only, nor for any loss, damage, or delay by fire, by the dangers of navigation, by the act of God or of the enemies of the government, by the restraints of government, mobs, riots, insurrections, pirates, or from or by reason of any of the hazards or dangers incident to a state of war.
%. Nor shall this company be liable for any default or negligence of any person, corporation, or association to whom the described property shall or may be delivered by this company, for the performance of any act or duty in respect thereto, at any place or point off the established routes or lines run by this company; and any such person, corporation, or association is not to be regarded, deemed, or taken to. be the agent of this company for any such purpose, but, on the contrary, such person, corporation, or association shall be deemed and taken to be the agent of the person, corporation, or association from whom this company received the property above described. It being understood that this company relies upon the various railroad and steamboat lines of the country for its means of forwarding property delivered to it to be forwarded, it is agreed that it shall not be liable for any damage to said property caused by the detention of any train of cars or of any steamboat or other vehicle upon which such property shall be placed for transportation; nor by the neglect or-refusal of any railroad company, steamboat, or other transportation line to receive and forward the said property.
“3. It is further agreed that this company is not to be held liable or responsible for any loss of or damage to said property, or any part thereof, from any cause whatever, unless in every case the said loss or damage be proved to have occurred from the fraud or gross negligence of said company or its servants; nór in any event shall this company be held liable or responsible, nor shall any demand be made upon it, beyond the sum of fifty dollars, at which sum said property is hereby valued, unless the just and true value thereof is stated herein; nor upon any property or thing unless properly packed and secured for transportation ; nor upon any fragile fabrics, or any fabrics consisting of, or contained in, glass.”
“9. The party accepting this receipt hereby agrees to the conditions herein contained.”

Upon this page there was one entry under date of March 13th, one March 23d, two March 28th, three March 31st, two April 7th, one April 18th, and one May 2d, each receipted by defendant’s agent. The proof shows that the line covering the shipment in question was signed on the afternoon of that day, defendant’s agent going to plaintiffs’ place of business for the purpose. The top of said page, when offered in evidence, was covered by internal revenue stamps, 10 in all; 9 being 1 cent, and 1 being 2 cents, in denomination; 11 cents, in all, for the 11 entries. Plaintiffs’ testimony shows that they were furnished and put on by them. A claim was made that this should prevent the printing beneath them from being treated as a part of the writing. This was the fifth entry on the page, and the fourth stamp applied to this, presumably, .so that at that time only about half of it was covered.

The plaintiffs sought to show that it was the intention of Sloman to attend this fair with furs for sale, and that the defendant was notified of it, and represented to the plaintiffs that it had an express through to Leipsic, and an express agent there, and would ship them by express over its own line, and get them there before Mark Sloman should arrive, and that, relying on these representations, they delivered the furs to the defendant for transportation on the morning of March 31st, and in the afternoon the defendant’s agent receipted for the same. The court refused to admit the testimony on the ground that the contract was in writing, and could not be varied by parol. He held that the stamps should not be treated as an erasure of any portion of the heading, and that testimony tending to show that the parties agreed to give the writing a meaning and effect contrary to its terms was not admissible. There was no error in this.

On directing a verdict, the court held that the shipping receipt was given and accepted as the contract; that the shipment was by express methods in the respective countries; that the defendant was not liable for the negligence of connecting carriers; that, until the goods reached Bremen, they were shown to have gone by the fastest transportation; that they might have been transported from there to Leipsic by a,faster train, but that, even if the defendant were responsible for such delay, there was no proof that the goods suffered depreciation during that period.

The declaration counts upon the alleged breach of contract to transport said furs to Leipsic by express, and deliver them there by the time that Mark Sloman should arrive. If it be true that Sloman had assurances that the furs would reach Leipsic before he did, there is nothing to indicate any deceit, and the inference is strong that it was intended and understood as an opinion, and not a warranty. The matter was not left to rest on the oral arrangement, however. In accordance with the interview, Sloman packed and sent the goods, filled out the shipping receipt as usual, and later in the day secured the signature of defendant’s agent to it; thereby putting in writing the agreement. .There is no chance to claim that he should not be bound, as in some cases cited, where, owing to-fraud, it was held that the writing was not the contract. It has been repeatedly held that such a receipt constitutes the contract, and that it cannot be varied by parol. See McMillan v. Railroad Co., 16 Mich. 80 (93 Am. Dec. 208); Smith v. Express Co., 108 Mich. 577 (66 N. W. 479); Hengstler v. Railroad Co., 125 Mich. 530 (84 N. W. 1067); Stange v. Wilson, 17 Mich. 342; Ferguson v. Arthur, 128 Mich. 297 (87 N. W. 259); McCray Refrigerator, etc., Co. v. Woods, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599); and other cases cited.

Under the proofs, the court could not have avoided directing a verdict for the defendant.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    STERLING v. CITY OF DETROIT.

    1. Evidence — Conclusions—Condition of Health.
    The testimony of a physician that plaintiff was a physical and mental wreck, that his health was such that there was no enjoyment of life and could be none, and that there was evidence of constant pain and plenty of it, being general conclusions, is incompetent.
    2. Same — Error—Reasons for Striking out Testimony.
    A party cannot complain of a correct ruling of the court in striking out testimony, because the opposite party did not state the reasons for asking the ruling.

      3. Same — Photographs.
    In an action against a city for injuries on a defective highway, photographs of the place of the accident are admissible, when there is sufficient evidence of their accuracy.
    4. Same — Police Reports — Personal Knowledge.
    The report of a patrolman, showing the time of an accident, is inadmissible, where it appears that he had no personal knowledge.
    5. Personal Injuries — Requests to Charge — Ordinances.
    In an action against a city for injuries received from driving into an excavation, it is not error to refuse a request by plaintiff to charge that, as a matter of law, an ordinance of the city obligated the city to guard the excavation by barriers and to mark it by lights. •
    6. Same — Damages—Instructions—Harmless Error.
    Where the jury in an action for personal injuries, under the charge of the court, must have found that defendant was not guilty of negligence or that plaintiff was guilty of contributory negligence, an error in the charge relating to the measure of damages is not prejudicial.

      7. Trial — Improper Arguments oe Counsel.
    Where counsel goes outside the record and makes unwarrantable statements favorable to the character of a witness, he cannot complain if opposing counsel, in answer thereto, makes unfavorable statements not warranted by the record.
    Error to Wayne; Frazer, J.
    Submitted February 17, 1903.
    (Docket No. 79.)
    Decided July 8, 1903.
    Case by Jennie Sterling, administratrix of the estate of Henry C. Sterling, deceased, against the city of Detroit, for personal injuries to her intestate, caused by a defective street. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      B. T. Prentis, for appellant.

      John W. McGrath (Timothy E. Tarsney, of counsel), for appellee.

       Rehearing denied January 5, 1904.

   Carpenter, J.

Shortly before 8 p. m., between daylight and dark, June 30, 1898, plaintiff’s intestate, Henry C. Sterling, drove from an alley, between Twenty-Second and Twenty-Third streets, onto Howard street, in the city of Detroit. At that time the city was repaving Howard street, and for that purpose had removed the former pavement. Neither barricades nor lights were placed to guard or mark the excavation at the outlet of the alley in which plaintiff’s intestate was driving. As he drove onto Howard street, the wagon dropped down about two feet into the new excavation, and he was thrown therefrom and injured.

Plaintiff’s intestate brought this suit to recover damages. It was his claim that the defendant was negligent in having neither barricades nor lights to guard or mark the excavation, and that he himself was free from contributory negligence, and that, as a result of his injuries, he lost his mind. Defendant claimed that it was not negligent, that plaintiff’s intestate was guilty of contributory negligence, and that his mind was affected before his injury. The issue was submitted to a jury, who found a verdict for the defendant. Since the trial in the court below, plaintiff’s intestate died, and plaintiff, as his personal representative, brings the case to this court. We are asked to reverse the judgment because the court erred in admitting and excluding evidence, and in charging the jury, and because of improper remarks of counsel.

We cannot agree with plaintiff’s counsel that the court erred in striking out the answers of his physician witness. This is a sample of the answers stricken out:

“He is a physical wreck, as well as a mental wreck.”
‘ ‘ He is in that condition of health in which there is absolutely no enjoyment of life to him, and can be none.”
“There is evidence of constant pain, — plenty of it.”

In striking out these answers because they were simply general conclusions, and informing counsel that he could and should prove the facts, we think the court acted properly, Runnells v. Village of Pentwater, 109 Mich. 512 (67 N. W. 558), relied upon by plaintiff’s counsel, has no application. There the trial court denied a motion to strike out testimony. No reason was given for the motion, and for that reason this court refused to determine the correctness of his ruling. That case would have been applicable if the trial courb had denied the motion under consideration. It is applicable in this case to complaints that the trial court did not strike out certain answers of defendant’s witnesses on motion of plaintiff’s counsel. Defendant’s counsel, by failing to state a reason for striking out this testimony, was in no position to assign error if the court had denied his motion. That circumstance, however, has no tendency to prove that the court erred in granting the motion. While the court was not, under the authority above cited, legally bound to grant this motion, it was, as we have already stated, proper, and therefore not error, to grant it. In determining whether we will reverse a case because of an erroneous ruling, *this court looks at the grievance of the party cofnplaining, and not at that of the party who is not complaining. Plaintiff cannot complain of a correct ruling, though defendant did not state the reasons for asking for such ruling.

Nor did the court err in admitting in evidence certain photographs of the place of the disaster. There was sufficient evidence of their accuracy to justify their admission.

We agree with the trial judge that the report made by patrolman Knox, showing the time of the disaster, of which it appears from his testimony he had no personal knowledge, was inadmissible.

Charge of the Court:

The court refused to charge, as requested by plaintiff, that, as a matter of law, an ordinance of the city obligated the city to guard the excavation by barriers and to mark it by lights. This request was properly denied, as the ordinance at most afforded only evidence of negligence. Cook v. Johnston, 58 Mich. 439 (25 N. W. 388, 55 Am. Rep. 703).

The court also refused to charge, as requested by plaintiff, that, if defendant was guilty of gross negligence, plaintiff might recover, notwithstanding his contributory negligence. The testimony warranted no such charge.

In charging the jury, the court said:

“There is no great physical injury proved here to this man at all. There is no evidence produced here before you as to any serious results that are apparent to your observation, or to the observation of the physicians who have testified. It is claimed that his skull may or may not have been fractured; but there is no claim that there is any evidence now to determine that the skull was fractured, but that there were such results apparent from-the conduct and behavior of the man that it might have been done, and that, if it was done, certain results would have followed. It is claimed by the defendant that this man was peculiar before; that he was really not a man of what is called perfectly sound mind before the accident; and I suppose the inference is claimed from that that this degeneracy that exists now naturally followed, and was not caused by the injury.
“You have this case to determine. Here is a man that was strong upon that day. There is at present no physical evidence that he ever suffered a severe injury. * * * You are at liberty to give this plaintiff damages for what you shall find to be the result and consequences of this injury. * * * But you are not at liberty to give damages for anything that you are not satisfied has been proved by a preponderance of evidence to be the result of this injury. So to you is confided the important and delicate duty of determining just exactly what was the result of this injury, and how much of this man’s condition, as it appears to be now, was produced by this injury. I say this is an important and responsible duty for you. It is not confided to the court. I have no opinion about it, and have no right to have any opinion about it; but it is my duty so to present this matter to you that, when you get into the jury room, you will clearly know and understand your duty in this regard. ”

It is earnestly contended by plaintiff’s counsel that the court invaded the province of the jury when he said, “There is no great physical injury proved here to this man at all.” I think it very clear from the whole charge that, in using this language, the judge referred to the external evidence of injury. I think the jury would so understand the charge, and I think the trial judge was justified by the evidence in using it. In any event, we are bound to presume that plaintiff was not prej udiced by that portion of the charge which simply told the jury how to measure damages. Under the charge of the court, the jury were directed to render a verdict for the plaintiff if he had acted as a man of ordinary and common prudence, and the city was guilty of negligence. The jury, by their verdict, have found either that the plaintiff was guilty of negligence or that the defendant was not negligent. We are bound to presume, therefore, that they had no occasion to consider that part of the charge of the court which directed them how to measure plaintiff’s damages. Scheel v. City of Detroit, 130 Mich. 51 (89 N. W. 554).

Improper Remarks of Counsel:

The plaintiff, administratrix, in this suit, was an important witness in the court below. It appeared from her testimony that she kept a lying-in hospital. She testified:

“Women who come to my place are in a delicate condition when they come, and they expect to be sick. I advertise that my place is pleasant and private, because the ladies that come want privacy. They come to hide themselves. I don’t care whether the man sends them, or whether the women come to me, so long as a woman pays me for my services. Married women come there. I take women without being paid for it, if they are not able to pay.”

In his argument to the jury, defendant’s counsel said:

‘ ‘ Something has been said here that I think was sacrilegious. You know the kind of place this woman keeps. I have no objections to places of this kind under public authority, where there is no chance to commit the crime of abortion. I have no objections to places of that kind; they are proper; and when it is stated here by counsel that this woman was engaged in the same business that our Protestant and Catholic churches are engaged in, in the city of Detroit, I say, although not a church member, that it was vile and sacrilegious. * * * You have had experience in this world, and you know just as well as if a hundred witnesses had sat in that chair what the character of this place is. You know that people go there— Some of you remember the history that has been written here in the city of Detroit in past years. You have read of the poor girls who disappeared, and subsequently have been found dead, floating in the Detroit river. Where did they come from ? Do you remember poor Martha Whitla, who came out of a place like this, * * * and never again was seen until she was seen floating in the Detroit river ? What becomes of the hundreds of new souls that come into the world in that place ? Where do they go to ? Ask the Detroit river.”

The evidence in the case did not warrant defendant’s counsel in saying what he did about the place kept by plaintiff; but, in determining whether this improper language constitutes reversible error, we are bound to consider the circumstances under which it was uséd. Plaintiff’s counsel does not claim that he himself did not use the language attributed to him by defendant’s counsel. We are bound to infer, therefore, that plaintiff’s counsel had told the jury that the present plaintiff “was engaged in the same business that our Protestant and Catholic churches are engaged in, in the city of Detroit.” Sweet v. Railroad Co., 87 Mich., at p. 572 (49 N. W. 882). There was no evidence which justified this statement. It would certainly shock the ordinary fair-minded person as much to be told that one who kept a private lying-in hospital, where privacy was insured, was engaged in the same business that our Protestant and Catholic churches are, as to be told that the women who went there, and the children who were born there, met their death by drowning in the Detroit river. When plaintiff’s counsel went outside the record, and made this statement in favor of the character of his witness, it would have better accorded with the proprieties of the court-room had defendant’s counsel brought the matter to the attention of the learned judge presiding at the trial, who, it is to be presumed, would at once have rebuked the offending counsel, or taken some other step which would have prevented any damage resulting from the improper remark. But plaintiff cannot complain because this course was not taken. If her counsel has the right to go outside the record, and make unwarranted statements favorable to her character, opposing counsel has the right to follow him, and make statements unfavorable to her character. Plaintiff has no right to complain that an assault committed with weapons of this character is repelled by the use of similar weapons. See Sweet v. Railroad Co., 87 Mich. 559 (49 N. W. 882). It is difficult to understand why the learned judge presiding at the trial did not interfere at the very beginning, and prevent either counsel from using objectionable language. It must be presumed that some other duty prevented his giving the argument his usual careful attention.

We discover no error' in the record, and the judgment of the court below must be affirmed.

Hookee, C. J., Geant and Montgomeey, JJ., concurred. Mooee, J., took no part in the decision.


author: Moore, J.

text:
    NEWMAN v. CITY OF ANN ARBOR.
    1. Municipal Corporations — Defective Sidewalks — Evidence.
    Testimony that a sidewalk contained a hole, described as being between two planks, a foot long, three inches wide for half the length, wider at the bottom than the top, tapering at the ends, one of the boards having rotted out full depth, more at the bottom than the top, — justifies a verdict that the walk was not reasonably safe and fit for travel.
    2. Same — Instructions.
    The charge of the circuit judge, relating to the liability of a city for injuries received from a defective sidewalk, approved.
    Error to Washtenaw; Kinne, J.
    Submitted April 9, 1903.
    (Docket No. 17.)
    Decided July 8, 1903.

      Case by Mattie R. Newman against the city of Ann Arbor for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Frank A. Stivers, for appellant.

      Mary C. Whiting (Frank E. Jones, of counsel), for appellee.
   Moore, J.

Plaintiff claims to have received severe injuries by stepping into a hole in a defective sidewalk. She recovered a judgment for $500. The defendant brings the case here by writ of error.

We shall not attempt to discuss all the assignments of error, but only those which seem to be important. It is the claim of the" city that, giving the testimony the most favorable construction possible for the plaintiff, it discloses that the walk was reasonably safe and fit for travel, within Jackson v. City of Lansing, 121 Mich. 279 (80 N. W. 8), and other cases, and that the circuit judge should have directed a verdict in favor of the city. We cannot agree with this contention. The injury occurred upon a plank walk. The plaintiff offered testimony tending to show it had been out of repair a long time, and that plaintiff stepped into a hole of a dangerous character, which one of the witnesses described as being ‘ ‘ between two planks, where the boy told me she had fallen. It was perhaps a foot long, but not full width all of that length. Perhaps half of the length there was a space about three inches wide, and a little wider at the bottom of the space than at the top, tapering at the ends. The boards were rotted out, or one of the boards, at least, was rotted out, full depth, and a little more at the bottom than it was at the top. That is where he said her foot went in.” Such a place in a plank walk would present a very different situation from that disclosed in the cases cited. On the part of the city it was denied that any such hole existed, and testimony was given tending to show the walk was reasonably safe. This raised a question of fact, which was proper for the jury.

Complaint is made of the refusal of the court to give certain written requests on the part of defendant. The circuit judge, among other things, said to the jury:

“In this case, in order for the plaintiff to recover, at least four things must appear by a fair preponderance of the evidence, and the burden is upon the plaintiff to establish these four things by a fair preponderance of the evidence:
“(1) That the. sidewalk, at the place where the injury was received, was not in reasonable repair and reasonably safe and fit for public travel, and that the defect was the very one complained of in the declaration. Of course, it would be of no importance what the condition of the walk was except at the point where she met with her injury.
‘! (2) That the city, by or through its public officers whose duties are to inspect and repair the sidewalks, had notice or knowledge, either actual or constructive, of the defect complained of, and that the city, through its proper officers, had reasonable time and opportunity, after such knowledge or notice, to repair the defect, and that the city did not use reasonable diligence therein after such knowledge or notice.
“(3) That the plaintiff was injured by reason of the defect complained of, and that by reason thereof plaintiff has sustained damage.
“(4) That the plaintiff was free from negligence herself, and that she was guilty of no contributory negligence whatever which in any way contributed to the injury received.
“That is, it is incumbent upon the plaintiff to satisfy you of these four propositions by a fair preponderance of the' evidence.
‘ ‘ On the subject of notice, I may say, further, that the plaintiff must establish, by a fair preponderance of the evidence, that the city had knowledge, either actual or constructive, of the identical hole into which the plaintiff stepped, and that, after such knowledge, they had sufficient time and opportunity to have repaired the place before the accident; and I further instruct you that the existence of other holes in this walk, of whatsoever kind or character they may appear by the testimony in the case, is no proof whatever of the existence of this particular defect where she claimed to have met with her accident. Before the plaintiff can recover, it must be established, by a fair preponderance of the evidence, that this identical hole was itself in existence prior to the 3d day of September, 1900, and this must appear from the proof in the case.
“In order for the plaintiff to recover in this case, she must satisfy you, by a fair preponderance of the evidence, that she herself was entirely free from neglect, and did not, by reason of her conduct, carelessness, or heedlessness, contribute to the accident. Of course, if she had any previous knowledge of the poor condition of this walk, it created a further and higher obligation upon her to give it due care and attention in crossing it.
“ The legislature of this State has made it a duty of the city to keep in reasonable repair, so that they will be reasonably safe and fit for public travel, all sidewalks within its jurisdiction. The law does not require that the sidewalks shall be kept absolutely safe, but only reasonably so. It is the duty of the defendant to exercise, through its officers and agents, a reasonable and supervisory care over its sidewalks, and, within reasonable limits, to be watchful of their condition and safety. The defendant is not bound to extraordinary diligence, but only to ordinary and reasonable care and diligence. It is not an insurer of safety, and does not undertake to warrant against accidents and injuries. Nor will the city be liable for a defect that is practically unavoidable, or for injuries that are clearly accidental. It is not obliged to make and keep its walks in perfect condition. The place where the walk is should also be considered. It is a sufficient defense for the city in this case if the sidewalk in question, at the place in question, was in a condition reasonably safe and fit for travel at the time the plaintiff claims to have been injured. It cannot be held liable unless the walk at that point was not reasonably safe and fit for public travel, considering its location and the travel likely to pass over it. The plaintiff must also have been injured by reason of the particular defect in the sidewalk.”

There was testimony tending to support the claim of plaintiff. The case was submitted to the jury under a very clear statement of the law.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    BURGESS v. STRIBLING.
    1. Findings of Fact — Appeal.
    Where there is testimony tending to support the findings of fact made by the circuit court, they will not be set aside on writ of error.
    2. Guardian and Ward — Married Women.
    In a proceeding for the appointment of a guardian for an incompetent woman, under 3 Comp. Laws, §§ 8711, 8736, it is necessary to determine whether she is married.
    3. Evidence — Admission oe Record.
    Where objections to the admission of a record in evidence were overruled, and, after the denial of a motion for judgment on the ground that the record showed that the question was res judieata, counsel asked the court if he held that the record was not evidence of the fact of marriage, his answer, “No, I think it is a matter to be considered,” could not be construed to mean that the admission of the record as evidence was to be considered later.
    4. Probate Courts — Degrees and Orders — Conolusiveness.
    Decrees and orders of the probate court, made in the exercise of a jurisdiction conferred by law, are final and conclusive.
    5. Judgments — Res Judioata.
    An adjudication is conclusive in respect to the subject-matter of the litigation, and the point of fact or law necessarily decided in determining the issue.
    6. Same — Marriage—Appointment of Guardian and' Administrator.
    A determination by the probate court, upon a petition for the appointment of a guardian for an incompetent woman, that she was married, will be considered res judieata upon the hearing of an application by her husband for the appointment of an administrator, where the same parties are before the court.
    Error to Chippewa; Shepherd, J., presiding.
    Submitted April 9, 1903.
    (Docket No. 18.)
    Decided July 8, 1903.
    Petition by John W. Burgess for the appointment of an administrator of the estate of Augusta W. Brown-Burgess, deceased. From an order appointing petitioner administrator, Hannah Stribling, Minnie Reidy, and Emilie Metzger bring error.
    Affirmed.

      Henry F. Metzger and Warner & Sullivan, for appellants.

      Oren, Webster & More, for appellee.
   Montgomery, J.

This case brings before us for review an order appointing the petitioner administrator of the estate of Augusta W. Brown-Burgess, deceased. The question of- fact upon which the case turned in the court below was the question of whether the petitioner was in fact the husband of decedent, and this turned upon two questions: First, as to whether there was a marriage ceremony between the two parties; and,' second, as to whether, at the time of the alleged ceremony, decedent was competent to contract the relation. The circuit judge found the affirmative of both questions, and the case is brought here for a review of this finding.

The testimony is elaborately • argued in the briefs of counsel, with a view to convincing us that the conclusion of the circuit judge upon the evidence was erroneous. It is enough to say of this feature of the case that, as there was testimony tending to support the claim of petitioner, it is not for this court to review the finding of facts, and substitute its judgment upon a question of fact for that of the circuit judge.

There are offered, however, certain objections to the admission of testimony, which are deserving of consideration, unless they are rendered immaterial by a feature of the case which is brought to our attention by a supplemental record, and which is this: In 1899, and in the lifetime of Augusta W. Brown-Burgess, Emilie Metzger, one of the present contestants, filed in the probate court of Chippewa county a petition for the appointment of a guardian for Mrs. Burgess, setting out in the petition the following:

“Your petitioner further represents that one John W. Burgess, a resident of said city and county, claims to be the husband of said Augusta W. Brown, and claims and represents that he was married to her in the State of Wisconsin on or about the 19th day of October, 1898; and your petitioner alleges that, at the time of said alleged marriage, said Augusta W. Brpwn was mentally incompetent and unable, in fact and in law, to contract marriage, and that, if any marriage ceremony was performed, it was under duress, and by reason thereof, and of the said incompetency, which was well known to said Burgess, said alleged marriage was and is entirely illegal, null, and void. Petitioner further says that said Augusta W. Brown, by reason of her said mental incompetency, is unable to inform your petitioner whether or not she has been married to said John W. Burgess, and so your petitioner is unable to state whether or not the legal name of her sister is Augusta W. Brown or Augusta W. Burgess. ”

The petition contained the following prayer:

“And, after a full hearing in the premises, that Otto Fowle, of the city of Sault Ste. Marie, in said county, whom your petitioner alleges to be a suitable and competent person, or some other suitable and competent person, may be appointed guardian of the person and estate of said Augusta W. Brown, or, if it shall appear that the said Augusta W. Brown is a legally married woman, then that said Otto Fowle, or some other suitable person, may be appointed guardian of the estate of said Augusta W. Brown, and of her person, except as against the rights of her husband, according to the provisions.of the statute in such case made and provided.”

On this petition being filed, due notice was given to all parties concerned, and each of the other contestants, viz., Hannah Stribling and Minnie Reidy, entered formal appearance in the proceeding. A hearing was had before Circuit Judge Steere, acting as probate judge, and an order made, which contained the following:

“After a full hearing and examination upon the said petition, it appearing satisfactorily to the court, and the court hereby adjudging, that the said Augusta W. Brown-Burgess is now mentally incompetent to have the charge and management of her person and property; that she is a married woman; that John W. Burgess is her husband, and that she is a resident of said county; that it is necessary that a guardian should be appointed of the person and estate of said Augusta W. Brown-Burgess, subject to the rights of John W. Burgess, her husband, for the reason that she is mentally incompetent to have the charge and management of her person and estate. ”

The two sections of the statute under which these proceedings were had are: Section 8711, 3 Comp. Laws, which is as follows:

“Every guardian so appointed as provided in the preceding ' section shall have the care and custody of the person of his ward, and the management of all his estate, until such guardian shall be legally discharged; and he shall give bond to the j udge of probate in like manner, and with the like condition; as is before prescribed with respect to the guardian of a minor. ”

Supplemented by the provisions of section 8736, 3 Comp. Laws, viz.:

“Whenever any married woman residing in any county of this State, and owning real or personal estate, shall be insane, or mentally incompetent to have the charge of her property, the judge of probate of the same county, when it shall appear to him necessary, may appoint a guardian for such incompetent or insane person, to have the care, custody, and management of her property, and may also, for the same purpose, appoint guardians for such married women, being insane or mentally incompetent as aforesaid, as shall reside without this State and have any estate within the same: Provided, that, as against the rights of the husband, such guardian shall not be entitled to have the care and custody of the person of the ward. ”

It will be seen by these provisions that, on this hearing, it was a material inquiry as to whether the alleged incompetent was a married woman. It is the contention of the petitioner that as this is so, and as all the parties now concerned in this litigation were before the court at the determination of that question, that adjudication is final. Before considering this question, a contention made by contestants that this record was not in fact received in ■evidence should be considered.

We notice by the record that, when these proceedings were offered in evidence, objections were stated to their ■admission by counsel, and the record then proceeded: “Which objection was by the court then and there overruled, and to which ruling the counsel for said appellants then and there took exception.” Counsel for petitioner then moved the court that judgment be entered on the ground that this adjudication was res adjudicata, and binding upon the parties in interest. This motion was denied. Counsel then asked:

“Now, I would ask your honor at this juncture, while .you have held that this proceeding is not res adjudicata of the matter, do you hold that it is not evidence of the fact of marriage ?
“The Court: No; I think it is a matter to be considered.”

It is ingeniously suggested that the court meant by this language that the question of the admission of the testimony was to be later considered. We find it impossible to put this construction upon the language, particularly in view of the fact that the testimony had before that been received, and contestants given the benefit of an exception. 'The record is therefore before us.

Is it res adjudicata of the ’fact of marriage ? There is no doubt that decrees and orders of the probate court, made in the exercise of a jurisdiction conferred by law, are as final and conclusive as the judgments and decrees ■of any other court. 1 Freem. Judg. § 319b. In the present case, on the petition in the probate court, alleging mental incompetency, there were involved in the litigation two matters: One was whether Mrs. Burgess was in fact incompetent; and the second, for the purpose of determining the character of the order, whether she was at that time a married woman. Under the statute, it was proper to present this question, for the reason that, if she were unmarried, the extent of authority to be conferred by the order upon the guardian to be appointed would be other and different than it would or could be if she were a married woman. That question was therefore distinctly involved in the issue, and the record shows it was as distinctly determined.

As was said in Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013), there are two matters in respect of which an adjudication once made may be conclusive: 'First, the-subject-matter directly involved in the litigation; second, the point of fact or of law, or of both, which was necessarily adjudicated in determining the issue upon the subject-matter in litigation.

It was said by Mr. Justice Hooker in Bond v. Markstrum, 102 Mich. 11 (60 N. W. 282):

“The estoppel extends to all steps involved in the judgment as necessary steps, or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis upon which it stands, upon the obvious principle that where a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.”

An instructive case upon this question is Garwood v. Garwood, 29 Cal. 514. In that case Henrietta M. Gar-wood, as administratrix of the estate of her husband, filed her account. Joseph Garwood, the father of decedent, appeared to contest this account. The administratrix objected to his appearance on the ground that he had no interest in the case, and, in support of this, showed that upon the death of her husband, Joseph S. Garwood, she-was pregnant with child; that, after the death of her husband, a child was born; and that she had petitioned the probate court for administration upon the estate of the child so born after the death of her husband. In that proceeding the contestant in the present case appeared, and claimed that the child was not born alive. The issue was determined in favor of the widow’s contention, and administration granted her. It was held that this deter-ruination was res adjudicatet, and determined the rights of the father, Joseph Garwood.

The case is not easily distinguishable from the present. In this case all parties who are now concerned in this litigation were before the court in the proceedings instituted for the appointment of a guardian. The precise question now sought to be litigated was there involved and determined, and we are unable to see why that determination should not be held conclusive. See, also, Caujolle v. Ferrie, 5 Blatchf. 225 (Fed. Cas. No. 2,525); Id., 13 Wall, 465; Wells, Res Adj. § 426.

As, in our opinion, this judgment should have been treated as conclusive of the fact of marriage, it becomes unnecessary to consider the other questions presented in the record.

The order will be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    ZIMMERMAN v. WHITELEY.
    1. Husband and Wife — Alienation of Affections — Evidence.
    In an action by a man against his mother-in-lawfor alienating his wife’s affections, evidence showing the amount of property left by defendant’s husband, and that it has never been divided between her and his wife, is inadmissible, as the wife is under no obligation to support her husband.
    2. Same — Motive for Marrying.
    In such action, testimony that plaintiff, before his marriage, made inquiries concerning his wife’s and her mother’s property, and that, after his marriage, he attempted to obtain money from his mother-in-law, is admissible, since it tends to show that his purpose in marrying was mercenary, and not for love.
    3. Same — Wife as Witness.
    Where plaintiff had testified to what his wife had said in various interviews between bis wife, himself, and defendant in such action, it was not error for defendant to offer the wife as a witness.
    4. Malice — What Constitutes.
    Malice, in a legal sense, means a wrongful act done intentionally, and without just cause or excuse.
    5. Same — Alienation op Wife’s Affections — Action Against Parent,
    A husband cannot recover damages from his mother-in-law for alienating his wife’s affections, unless she was actuated by-malice or bad motives towards the plaintiff in advising her daughter to live with her instead of her husband.
    6. Trial — Instructions—Preponderance op Evidence.
    An instruction that plaintiff must satisfy the jury by a “clear preponderance” of evidence is not prejudicial error, where the instructions as a whole are calculated to impress the jury with the view that only a preponderance is required.
    Error to Ingham; Wiest, J.
    Submitted April 24, 1903.
    (Docket No. 23.)
    Decided July 8, 1903.
    Case by William F. Zimmerman against Elizabeth Whiteley for the alienation of his wife’s affections. ■ From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Q. A. Smith and O. J. Hood (L. B. Gardner, of counsel ), for appellant.

      Charles F. Hammond (S. L. Kilbourne, of counsel), for appellee.
   Grant, J.

Plaintiff brought this suit against the defendant, his mother-in-law, to recover damages for the alienation of his wife’s affections. His wife is the defendant’s only child. Defendant’s husband died several years ago, and his daughter and she had lived together since his death. They were members of the Episcopal Church. Plaintiff and his wife were married October 28,1896. He concedes that it was understood before their marriage that they were to live with the defendant, in her house and home, — an arrangement which the defendant very much desired. They lived there until September, 1897, when plaintiff claims that he provided another residence and home for himself and wife, and requested his wife to occupy it with him. She did not go, and plaintiff left defendant’s house and his wife.

The conduct of the trial and the plaintiff’s ground for recovery are anomalous. According to the plaintiff’s own evidence, his wife’s affections have not been alienated, but, at the time he left her at her mother’s house, she maintained for him a wife’s love and affection, and only remained at the home of the defendant through the influence of her mother. He testified that, for two weeks after he left defendant’s house, he called every day, and ‘ everything was quiet and nice., Nellie talked with me, and we were in a room by ourselves when we chose, and no interference from Mrs. Whiteley. Everything with Nellie and myself was pleasant.” He testified that, when he asked his wife to accompany him to the house he had prepared, “Nellie bade me an affectionate good-bye. I kissed her. She returned it, and I went away.” He called at defendant’s house after that, and she called his wife to see him, and they had a private interview. He further testified :

“I lived in the house in accordance with the understanding before marriage. It was a very good place to live, — good table, good rooms. We had the front room, 18 feet square, upstairs, dressing room, plenty of furniture. The house was convenient to my work in the Donsereaux Block. Have no further complaints than those stated. [These complaints were that his wife had not always occupied the same bed with him.] * * * Was welcomed by my wife up to the time I came from my father’s farm. Don’t think I was welcomed by Mrs. Whiteley. She shook hands, and offered to kiss me; but I would not. She made me presents, — -a watch, an overcoat. She and Nellie gave me a diamond ring and stud, and some money. Mrs. Whiteley gave me a full-length painted portrait of myself. Talked with my wife about redeeming my father’s farm in January or February, 1897. Don’t think I talked with Mrs. Whiteley then; did afterwards. I did .not get angry about it. I occupied studio rooms of Mrs. Whiteley’s before and after marriage, rent free.”

Stated in the language of plaintiff’s counsel, his claim is that—

“The defendant, by her influence and control over Nellie, kept her from occupying the plaintiff’s bed, and that her interference in that respect continued and increased, until she had been kept and remained away from the plaintiff, and from occupying his room at night; that he then undertook to, and did, procure, furnish, and fit up a suitable residence and home for himself and wife, and used his best efforts to persuade and induce her to come and live with him; that defendant, by her influence and control over Nellie, wrongfully persuaded and induced her to refuse to go and live with her husband.”

Plaintiff called as his first witness the defendant herself, and interrogated her fully as to his relations with her, and the alleged acts of interference by her between him and his wife. Her evidence showed that she treated him with the utmost consideration; that the only occasions on which the wife had left her husband’s bed, and spent the nights with her mother, were when she was ill; on one occasion, for two nights in Chicago, when she slept with her mother at plaintiff’s suggestion, because her' room was better heated, and his wife was ill with a cold; and on another occasion, for two nights, when they were on a visit to his father’s, when she slept with her mother at the plaintiff’s suggestion, because his l’oom was small 'and hot. Plaintiff then took the stand, and contradicted her in many of the acts and conversations to which the defendant had testified. He was not compelled to call her, and by calling her he made her his own witness. How far he is bound by her testimony, and how far he could be permitted, under these circumstances, to impeach her by contradicting her, are questions not argued by counsel, and are, perhaps, not necessary to a determination of the case. See Craig v. Grant, 6 Mich. 447. Neither need we discuss the question whether a husband can maintain this action when, according to his own testimony, his wife still maintains for him the “love which defies locksmiths.” According to defendant’s testimony, and other evidence produced in her behalf, plaintiff left the home which defendant had provided for him and his wife without cause, and for the reason that she would not furnish him money as he desired. He wanted her to pay a mortgage upon his father’s farm, spend $5,000 for him to buy a place for a conservatory of music, and deposit in the bank $20,000 for his benefit. Under the arguments and methods pursued by counsel for both parties in the court below and in this court, we must dispose of the errors assigned as though the record showed a proper case by a husband for the alienation of his wife’s affections, as no request was made to direct a verdict for the defendant.

Plaintiff sought to show by the defendant the amount of property, real and personal, left by her husband, and that it had never been divided between her and her daughter. This was properly excluded. Counsel cite no authority to support the proposition. Reason and common sense condemn it. The wife’s property is her own. She is under no legal or moral obligation to spend a dollar to support her husband. It is his duty to support her. The ruling was correct upon another ground. If plaintiff sought to recover damages on account of his wife’s wealth, he should have declared specially therefor. The law implies no damages in this action on account of the benefit the husband might derive from her property. They should, therefore, have been specially alleged. Shadock v. Plank-Road Co., 79 Mich. 7 (44 N. W. 158); Bateman v. Blake, 81 Mich. 227 (45 N. W. 831).

Defendant was permitted to show by disinterested witnesses conversations with plaintiff, prior to his marriage, in which he made inquiries as to the wealth of Miss Whiteley and her mother. This testimony was entirely competent, for it tended to show that his purpose in marrying was mercenary, and not for love. Derham v. Derham, 125 Mich. 109, 116 (83 N. W. 1005). For the same reason, testimony in regard to his attempts to obtain money from Mrs. Whiteley after marriage was competent.

Defendant offered plaintiff’s wife as a witness. To this plaintiff objected. Plaintiff- in his testimony had repeatedly stated what his wife had said in the various interviews between plaintiff and his wife and the defendant. Defendant’s counsel argued that he had waived the privilege by himself testifying to what his wife had said. The court, however, sustained the objection, and the witness did not testify. The offer of this witness is assigned as error. This contention cannot be maintained upon any theory. The defendant’s daughter was a competent witness. He might have waived the privilege. He chose not to. Defendant was not under obligation to ask plaintiff or his counsel privately whether he would consent that his wife might be a witness. Defendant was entitled to make the offer in open court. It was also entirely competent for the jury to know that the plaintiff refused to let his wife testify in regard to ,the words he had himself placed in her mouth. In Rice v. Rice, 104 Mich. 371 (62 N. W. 833), the same offer was made in open court, and the same ruling had.

Error is assigned upon the instruction, given at the request of the defendant, that the jury must be satisfied, by a preponderance of the evidence, that defendant wrongfully, willfully, and maliciously alienated the affections of her daughter, and upon that portion of the general charge reading as follows:

“The question, therefore, is, Was the mother moved by malice towards plaintiff in what the evidence discloses she did, or was she moved by proper parental motives for the welfare and happiness of her child ? In her advice and in her action she may have erred as to the wisest and best course to be taken in dealing with a question so delicate and difficult, but she is entitled to your verdict unless you can say, from the evidence, that she, by her advice, acts, or persuasion, was actuated by malice or bad motives towards plaintiff.”

The precise objection made by counsel is that it is apparent that the court used the word “ malice ” as synonymous with enmity of heart, malevolence, ill-will, a spirit desiring harm or misfortune to another, a disposition to injure others, unprovoked malignity or spite.

“Malice, in a legal sense, means a wrongful act done intentionally, and without just cause or excuse.” Bell v. Fernald, 71 Mich. 267 (38 N. W. 910); Highway Com'rs of Eagle Township v. Ely, 54 Mich. 173 (19 N. W. 940); Long v. Tribune Printing Co., 107 Mich. 207 (65 N. W. 108). From the oral charge of the court, which is clear upon all points, it is apparent that the jury could not have been misled. On the contrary, they were fully informed as to what conduct on the part of the defendant would entitle the plaintiff to a verdict. At the very close of the instructions the court said:

“ If the defendant separated the plaintiff from his wife, did so wrongfully and from bad motives, then the plaintiff is entitled to a verdict at your hands. * * ** The burden is upon plaintiff to show that the mother did act from bad motives and with wrongful intent, and that the mother did thereby separate him from his wife; and, if the evidence does not satisfy you of that fact, then your verdict should be for the defendant.”

In an action brought by a husband against his father-in-law for enticing his wife away, decided by the supreme court of New York in 1809, in which some of the opinions rendered state that no case of the kind is to be found in the books, Chief Justice Kent said:

“A father’s house is always open to his children; and, whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves; and, according to Lord Coke, it is ‘nature’s profession to assist, maintain, and console the child.’ I should require, therefore, more proof to sustain the action against the father than against a stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband from improper motives. Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed. This principle appears to me to preserve, in due dependence upon each other, and to maintain in harmony, the equally strong and sacred interests of the parent and the husband. The quo animo ought, then, in this case, to have been made the test of inquiry and the rule of decision.” Hutcheson v. Peck, 5 Johns. 196.

I think there is no reason for holding that the jury did not fully understand what the words “ malice ” and “ maliciously,” as used by the judge in his instructions, meant. I find no error in the instruction on this point.

Error is assigned upon defendant’s request No. 4, which was given by the court, in which the court said that the plaintiff must satisfy the jury by a clear preponderance of the evidence. It has been repeatedly held by this court that the law in civil cases does not require a clear preponderance, but only a preponderance. The learned circuit judge evidently understood the law, as is shown by his subsequent general charge. It would be a reflection upon the knowledge of the learned counsel for the defendant to hold that they did- not know what the decisions of this court are. The use of the word “clear ” was evidently an inexcusable case of carelessness on their part. In request No. 3, immediately preceding this, and which was also given, the law was correctly stated by the use of the word “preponderance.” These two requests were, therefore, inconsistent upon this point. We are justified in saying that the inconsistency escaped the attention of the judge. In his general charge he stated positively and unequivocally the correct rule of law. Almost at the very beginning of his general charge he instructed the jury that the plaintiff must satisfy them by a preponderance of evidence. Again:

“If the defendant caused plaintiff’s wife to refuse to live with him, and she was actuated by bad motives, then she is to be held liable for the result of such acts.”

Again:

“You have the right to consider the acts and conduct of the parties as disclosed by the evidence, and determine the probabilities from the same as to the truth of the issue herein.” ' •

Again:

“ If the defendant separated the plaintiff from his wife, did so wrongfully and from bad motives, then the plaintiff is entitled to a verdict at your hands.”

Again:

‘ ‘ The burden is upon the plaintiff to make out a case as he alleges.”

And he closes the charge as above stated, which clearly left the jury to determine the case from the preponderance of the eyidence.

It is not only the policy, but the duty, of courts to put an end to expensive litigation, and not to grant new trials where it is evident that an inconsistency in the judge’s charge, or even an erroneous charge, has worked no prejudice (Sloman v. Mercantile Credit Guarantee Co., 112 Mich. 258 [70 N. W. 886]), or where it is evident that the inconsistency or the error has been corrected in subsequent parts of the instructions (Maier v. Benefit Ass’n, 107 Mich. 687, 695 [65 N. W. 552]; O’Donnell v. Insurance Co., 73 Mich. 1 [41 N. W. 95]). It was clearly intimated in Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231), that the use by the court of the term “ clear preponderance ” might not be held to be'reversible error, without regard to other portions of the charge. We there said that, taking the instructions as a whole, we thought they were calculated to impress the jury with a view that something more than a preponderance was requisite. Where it appears that, taking the instructions as a whole, they are calculated to impress the jury with a view that only a preponderance is requisite, the judgment should be sustained.

In an action brought by a wife against her father-in-law for alienating the affections of her husband, the judge said:

“The extent of the injury generally depends upon the previous relations of the parties, and, if these relations were cordial and affectionate, the wrong of one who succeeds in withdrawing the husband’s affections from the wife it is impossible almost to adequately measure. ” Rath v. Rath, (Neb.) 89 N. W. 612.

The use of this language was condemned by the appellate court, but was held not reversible error, because of the reasonableness of the verdict. Í think the language of the court in that case is entirely applicable to this case.

Several other errors are assigned upon the refusals to give plaintiff’s requests and upon the oral charge of the court. It is not profitable to discuss them. They are not of importance either to the litigants in this case or to the profession. The instructions of the court fully and carefully covered the law governing the case, and the requests, in so far as they correctly stated the law, were given in the oral charge.

Judgment affirmed.

The other Justices concurred.


text:
    CHADDOCK v. CHADDOCK.
    1. Witnesses — Husband and Wife — Matters Within Knowledge of Decedent.
    The wife of the complainant in a bill against the heirs of a deceased person to restore a destroyed deed, and for the specific performance of a land contract, is an incompetent witness as to conversations with the deceased grantor.

      2. Gift Inter Vivos — Delivery.
    To constitute a gift inter vivos, there must be an unconditional delivery, and the right of disposition must be wholly beyond the power of the donor.

      Appeal from Ingham; Wiest, J.
    Submitted May 13, 1903.
    (Docket No. 41.)
    Decided July 8, 1903.
    Bill by John D. Chaddock against Maria Chaddock and others to restore a destroyed deed. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Complainant and the defendants are the heirs of Leverett Chaddock, deceased, who died November 20, 1900. Some time after his death, complainant filed this bill for the purpose of restoring a destroyed deed conveying 180 acres of land, or, failing in this, to enforce specific performance of a land contract claimed to have been made with the deceased for the land covered by the deed. A deed was made out, was retained by the deceased in his possession and control, and was destroyed by him. The case was heard upon pleadings and proofs taken in open court, and the bill dismissed.

      L. B. & H. M. Gardner (Rollin H. Person, of counsel), for complainant.

      Russell G. Ostrander, for defendants.
   Grant, J.

(after stating the facts). The claim of complainant is that some time prior to the making of this deed, or the agreement to convey these lands, his father had given him $6,000 worth of notes and mortgages, and that in consideration that he should surrender and give back to his father said notes and mortgages, and agree to care for, maintain, and support two children of complainant’s sister, who had died, until they could take care of themselves, his father agreed to give, grant, and convey these lands to him. Complainant and his wife were then living in Chicago, and he claims that, pursuant to that agreement, they went upon this farm, and have continued in possession of it since.

The testimony of complainant’s wife as to the conversations with her father-in-law was properly excluded. Laird v. Laird, 115 Mich. 352 (73 N. W. 382).

Whether the testimony of the mother of complainant as to conversations which took place with her husband in regard to the transaction is admissible, we do not find it necessary to determine. The case, however, is different from Hagerman v. Wigent, 108 Mich. 192 (65 N. W. 756). In that case the husband was held competent to testify to instructions given him by his wife as to the disposition of a mortgage. In this case, under Mrs. Chaddock’s own testimony, none of these papers were intrusted to her, nor were the conversations she testified to made by her husband with any view to intrusting her with any duty in relation thereto. On the contrary, secrecy was enjoined upon her, and her husband desired the making of these papers, which were all kept wholly within the control of Mr. Chaddock, from being known to his children.

But, admitting her testimony to be competent, it has but little probative force.. The title to the notes and mortgages can only be maintained upon the theory of a gift inter vivos. Mr. Chaddock, the father, never parted with the possession of the mortgages and notes, or the assignment, which it is claimed he made and kept in his possession with the other papers. He kept them in his safe, over which he had exclusive control. Complainant never saw the securities, or any assignment of them, and no one was able to state what securities constituted $2,000 of the $6,000. To effectuate a gift inter vivos, there must be an unconditional delivery, either to the donee direct or to some one for him, and the right of disposition must be wholly beyond the power of the donor. Holmes v. McDonald, 119 Mich. 563 (78 N. W. 647, 75 Am. St. Rep. 430); Burns v. Burns, 132 Mich. 441 (93 N. W. 1077); Snyder v. Snyder, 131 Mich. 658 (92 N. W. 353); 14 Am. & Eng. Enc. Law (2d Ed.), 1014. The evidence in this case entirely fails to show such a gift.

It is unnecessary to enter into the details of the facts. We think it entirely manifest that there was no delivery of the deed, and no contract for the sale of the land.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, C. J.

text:
    PAGE v. BEACH.
    1. Wills — Evidence—Opinions—Mental Capacity.
    The opinion of a witness as to whether a person had sufficient mental capacity to make a will is inadmissible, where such opinion involves a determination of the legal question of what constitutes mental capacity.

      % Same.
    A- question calling for the opinion of a witness as to the mental capacity of a testator to make a will is not improper by reason of its failure to limit the opinion to the particular will in controversy.
    3. Same.
    On the trial of the probate of a will, a witness testified that, as commissioner on claims of an estate, he went to the residence of the testatrix to take her testimony, and that, when he asked her how old she was, she cried, and wanted to know why they came there; that she was sittting up, in apparent good health, but fleshy and old, and most of the^time half crying. The witness was there half an hour, and never saw her before or afterwards. Held, error to admit the opinion of the witness that she was incompetent to make a will.
    4. Same — Undue Influence.
    Where a will is contested on the ground of undue influence, it is proper to investigate fully all the relations between the testatrix and her children.
    Error to Calhoun; Smith, J.
    Submitted May 14, 1903.
    (Docket No. 74.)
    Decided July 8, 1903.
    Petition by Mary E. Page for the probate of the will of Lurena Beach, deceased. The will was disallowed in both the probate and circuit courts, on a contest made by Lyman P. Beach and others, and proponent brings error.
    Be versed.

      It. J. Kelley {Herbert E. Wmsor, of counsel), for appellant.

      F. W. Clapp, for appellees.
   Hooker, C. J.

The testatrix was about 90 years of age when she made the will in question, and the mother of several adult children. Mrs. Page, a daughter, petitioned for the probate of the will, and the same was contested by several, if not all, of her brothers and sisters. Probate was denied in the probate court, and in the circuit court upon appeal, and the case is before us on writ of error taken by the proponent. The questions submitted to the jury were incompetency of, and undue influence upon, the testatrix.

The testimony shows that Mrs. Beach and her husband resided upon the premises which seem to constitute the chief object of contention, viz., a house and lot. They both made wills some years before this will was made, and they were kept in the house, which was thought by some of the sons and daughters to be imprudent. Upon one occasion, when their son Lyman Beach, of Bay City, and their daughter Mary Page, and perhaps other children, were present, it was agreed that Lyman should take these and other papers of his parents, and deposit them in the Review & Herald Company’s vault, in Battle Creek, which he did. Subsequently Mary Page became dissatisfied about this, and complained to her parents that Lyman had gotten all of the property in his control, and would swindle them out of it; and so much was said that on Lyman’s next visit he procured the papers, and returned them.

After the death of Mr. Beach, which occurred a year or two before the will in question was made, there was considerable controversy between the children; Mary Page being especially outspoken. She lived with and cared for the testatrix, and was unwilling to have her sisters in the house. She made very harsh charges against her brothers and sisters to the mother, and conducted herself in a way which gives some color to the charge that she was endeavoring to influence her mother in her favor as to the disposition of the property. At some stage of the proceedings a guardian was appointed for the mother by the probate court, and, while the property remained in the custody of Lyman, as executor of his father’s estate, the allowance of $16 a month made by the guardian was paid. The quarrel as to who should be allowed to live with the testatrix became so violent that the guardian attempted to ¡have some other person take charge of her, to the exclusion ■of both Mrs. Page and her sisters; but Mrs. Page seems to have succeeded in retaining her hold, and, about a ■month before the testatrix’s death, arranged with a lawyer to go and see her mother, and draw a will for her, which was done. This will provided that Mary Page should receive the house and lot, and that the remainder of the property should be equally divided.

Several nonprofessional witnesses were permitted to give their opinions against the competency of the testatrix to make a will, and it is contended that this was error, for two reasons, viz.: (1) They'had not stated circumstances inconsistent with competency., before being asked for ■opinions; and (2) the questions should have referred to the particular will in question, and not to any and all wills.

The object of these inquiries was to enable the jury to . judge of the competency of the testatrix. While necessity has led the courts to admit the opinions of nonexpert witnesses as evidence upon the question of competency, they do not recognize the propriety of taking the witnesses’ opinions upon a question of law. The inquiry is ■■directed toward the condition of mind; and if a witness is .asked whether, in his opinion, the person had capacity to make a given contract or will, or a contract or will, the witness must first determine in his own mind the degree ■of intelligence or capacity that the law requires, and, next, whether the person was possessed of the requisite understanding, memory, self-control, etc. This was pointed ■out in the early cases of White v. Bailey, 10 Mich. 159; Beaubien v. Cicotte, 12 Mich. 501; Kempsey v. McGinniss, 21 Mich. 144. In White v. Bailey a witness was asked, “From what you saw, what was his [testator’s] mental capacity ? ” The witness was a physician well acquainted with the testator. It was held that an answer was properly excluded, for the reason that the question asked for the doctor’s opinion of the mental capacity of the testator to make a will, “for that was the issue,” which Mr. Justice Manning said was “a question of law, and not of medical science.” He added:

“It is for the jury, under the instruction of the court as to what is sufficient mental capacity to make a will, to decide on its existence or nonexistence when the will was executed, from the facts testified to by the witness, and not from the witness’ opinion regarding such facts. The jury, and not the witness, are to draw the conclusion from the facts stated by the witness. The opinion of a physician as to the existence of disease or a particular malady, and its effect upon the mind, would be evidence. But a physician’s opinion regarding mental capacity generally, or the mental capacity necessary to make a will, is, in the eye of the law, no better than that of any other person.”

The case of Beaubien v. Cicotte, 12 Mich. 459, contains an exhaustive discussion of the propriety of taking the opinions of witnesses regarding the mental condition of a testator, written by the late Mr. Justice Campbell, and fully vindicates the rule that “all who have had means of observation may testify concerning the existence and measure of capacity. ” But, as foreshadowed by his opinion in the case of White v. Bailey, in which Mr. Justice Christiancy concurred, he held that the witnesses might be asked for their opinions of the testator’s capacity with reference to the matter in controversy, from which it may have been inferred that, in his view, it was proper to ask if, in the opinion of the witness, the testator was mentally competent to make a given will or contract. But it is doubtful if that was intended, for no such question was involved in that case; and, in a case decided a short time afterward, the subject of questions involving legal conclusions was elaborately discussed by Mr. Justice Christiancy, and the Beaubien Case was referred to. Kempsey v. McGinniss, 21 Mich. 143. He there said:

“I am aware there are many cases in which, upon similar questions, interrogatories have been allowed to be put to witnesses for their opinion, involving as well their opinion upon the question of law (legal capacity) as upon the question of fact (what the capacity was). In most of them, however, the point I am discussing was not directly raised. And, upon principle, I can see no ground upon which such a course can be justified when the nature of the case does not render it necessary, and it can, as in the present case, be just as well avoided. I think the principle stated by my Brother Manning in White v. Bailey, 10 Mich. 159, is entirely correct, though I did not think the question to the witness in that case called upon him to give an opinion upon testamentary capacity, and for this and other reasons apparent in the case I did not concur in my Brother Manning’s opinion, but in that of my Brother Campbell.
‘ ‘ It would have been much fairer, more in accordance with principle, and much less in the nature of leading questions, to have put the questions in such a manner as to call only for an opinion of what the real state of the testator’s mind was, how much intelligence he possessed, how far he was capable of understanding the nature and situation of his property, his relations to others, and the reasons for giving or withholding his bounty as to any of them, etc., than to ask them whether he had a disposing mind and memory, or whether he was capable of making a will. The course I have suggested as the true one was adopted by the propounders in their examination of professional witnesses, and by the contestants, also, in some of their questions which were not objected to by the proponents of the will. The form of the questions put to the witnesses for their opinion in Beaubien v. Cicotte, 12 Mich. 459, and approved by this court, is correct in principle, and avoids the objection now under consideration, though some of the cases there cited I do hot think sound in principle upon this point. These questions were whether, from the conversation then had with him, and from what he then saw of him, he was capable of understanding a document of any considerable length, if it had been read to him; also what capacity the testator had, and whether, in the opinion of the witness, the testator was at the time capable of holding a conversation like the one testified to by another witness. It is obvious that, so far as the point we are now discussing is involved, there is no distinction to be made between questions put to witnesses giving their opinions from personal observation, and those who give theirs upon a hypothetical state of facts.”

The following questions were asked, viz.: “What is your opinion as to the testator’s being of sound and disposing mind and memory, so as to be able to transact business, from 9 until 11 o’clock of the day in question ?” And, “ In your opinion, was the testator in a physical and mental condition to make a will ?'” These questions— especially the last, but both — were said to be objectionable, as “calling upon the witness for his opinion upon the legal standard of a disposing mind and memory, or the legal capacity to make a will.”

We have seen that Mr. Justice Campbell was not inclined to stickle over the form of the question. See White v. Bailey, 10 Mich. 161, where he said, “The mere form of the question is not, to my mind, very conclusive.” Mr. Justice Christiancy was clearly of the opinion that the two questions stated were improper, but he also thought the error unimportant, if their exclusion by the trial court was error, for the reason that other questions calling for the same testimony were put and answered. He said:

“But, even if these questions might have been admissible without error, still I do not think the judgment should be reversed for their exclusion, since questions assuming all the same facts, and calling for the opinions of the same witnesses upon all the same matters of fact, were allowed and put to both witnesses, when asked, assuming these facts, what, in their opinion, was the effect of that disease Upon the physical and mental faculties of the testator, in answer to which they detailed their opinions in full.” Kempsey v. McGinniss, 21 Mich. 145.

The learned jurist then discussed some questions which he thought were proper, under the rule laid down in Beaubien v. Cicotte, showing that his views were not at variance with that case. He said:

“Two questions, however, were put by the contestants to Dr. Pratt, upon the assumption of the same facts, and •overruled by the court, which I think did not properly fall within the objection I have been discussing: First, ‘Was the testator, in your opinion, at the time,’ etc., ■‘capable of planning and executing such a paper as is here offered as his will ?’ and, second, ‘ Was he in a mental and physical condition to transact any business requiring an exercise of the judgment, the reasoning faculties, and a consecutive continuation of thought ?’
‘ ‘ The first of these questions was, I think, admissible, under the decision of this court in Beaubien v. Cicotte, 12. Mich. 505; and I concur entirely with my Brother Campbell in that case, that it is proper to put such questions to the witness as call for his opinion upon the capacity of the party to understand the very act or kind of act in dispute. I am unable to see the soundness of the principle in which five of the judges concurred in the Parish Will Case [25 N. Y. 9], that the question in every case is, ‘ Had the testator, as compos mentis, capacity to make a will ? ’ not, ‘ Had he the capacity to make the will produced ? ’ Men do not make wills in the abstract, but some particular will; and the question should, I think, always relate to the capacity to understand and make the will in controversy. Some wills are short, plain, and easy to be understood; others are long and exceedingly complicated in their provisions. If the testator sufficiently understands the short and simple will which he has made, it should not-be set aside because he had not the capacity to understand the long and complicated one which he did not make.
“But both the questions above mentioned put to Di\ Pratt, when fairly construed, call, I think, only for the witness’ opinion as to the degree of intelligence actually possessed by the testator, without any opinion of his on the legal question of testamentary capacity; and this either party had a right to show, whether it should be greater or less than the law requires to constitute testamentary capacity in reference to the will in question. The rejection of these questions was therefore, in my opinion, erroneous.”

This opinion was concurred in by the full bench, including Mr. Justice Campbell, and it seems to us to dispose of the claim that Beaubien v. Cicotte and White v. Bailey justify the inference that a question clearly calling for an opinion involving a determination of what constitutes legal capacity is proper.

From a comparison of the questions ruled upon, it seems easy to see the distinction. A witness may say the testator'had not sufficient intelligence to comprehend a given instrument: that he had not memory sufficient to remember the natural objects of his bounty, or his desires regarding the disposition of his property; and that he was without the mental power or will to carry out his intentions. In saying this, he deals with questions of fact, and has no occasion to determine a legal question. But when asked if a person is competent to make a will, or a particular will, that cannot be said. Perhaps some of these questions might be understood by the jurors as calling merely for the degree of intelligence, as bearing upon the understanding, recollection, and will power. In such case no harm would be likely to follow. But the case of Kempsey v. McGinniss has set at rest, what never ought to have been in doubt, viz., that, where the question of law is involved in the interrogatory, it is improper. Doubtless the practice of asking the objectionable question has prevailed. Mr. Justice Christiancy said that it had, and that usually this point had not been raised. Many of us know that the practice is common, and, unless questioned, it is not fatal to a judgment.

In Porter v. Throop, 47 Mich. 324 (11 N. W. 174), an objection was made to questions stated, upon the ground that they called for the opinion of the witness upon the decedent’s testamentary-capacity generally. It is apparent from the questions that the ability of the testator to understand the will was inquired for; but the important fact is that Mr. Justice Cooley unqualifiedly indorsed the opinion in Kempsey v. McGinniss, 21 Mich. 123, and interpreted the later decision of the same case as fully approving it.

In Rice v. Rice, 50 Mich. 453 (15 N. W. 545), it is said that the early cases had been misunderstood, and it again cites with approval Kempsey v. McGinniss, 21 Mich. 123; and it was said that it was “very evident that some of the witnesses had no just conception of what was meant by ‘insanity’ or by ‘testamentary capacity,’ * * and expressed opinions * * * formed by' standards altogether incorrect and misleading.”

Kempsey v. McGinniss is again approved in Spratt v. Spratt, 76 Mich. 393, 397 (43 N. W. 627), and in Prentis v. Bates, 93 Mich. 245 (53 N. W. 153, 17 L. R. A. 494). In the latter case the questions put did not include the legal question; e. g.: “ Witness was then shown the will, and asked his opinion upon her mental capacity to make it, and he replied that he thought it ‘would be a very difficult matter for her mind to master it.’” And, “ This witness then testified that he thought her mentally incapable of comprehending the will.” And, “Witness then gave his opinion that Mrs. King did not possess sufficient mental capacity to understand the will, and sufficient active memory to retain it in her mind without prompting.” And, “Because she could not comprehend; that is, I considered that she could not comprehend it. I am speaking more particularly in connection with this work that I had in hand there.” And, “Witness was then asked his opinion of her mental capacity to understand this will, to which he replied: ‘I doubt it. I doubt whether she would understand the last part of it.’” See Prentis v. Bates, 88 Mich. 577-580 (50 N. W. 637); Id., 93 Mich. 240 (53 N. W. 153, 17 L. R. A. 494). See, also, O'Connor v. Madison, 98 Mich. 189 (57 N. W. 105); In re Hogmire’s Appeal, 108 Mich. 413 (66 N. W. 327); Rivard v. Rivard, 109 Mich. 115 (66 N. W. 681, 63 Am. St. Rep. 566); People v. Casey, 124 Mich. 283 (82 N. W. 883).

We have discussed this question at length for two reasons: First. Because there must be a new trial, and •it seems to us that there is a growing tendency to leave the question of legal capacity to witnesses, rather than to juries, which aids materially the practice of setting aside wills for insufficient reasons (attention to which has been repeatedly directed in former cases), which it facilitates, and which an adherence to the correct rule might retard. Secon.d. In connection with proponent’s claim that the opinions should have been confined to the capacity of the testatrix to made the will in question.

The question which the jury were to pass upon in this case was whether the testatrix had capacity to make this will. Anything tending to show that she had not was proper evidence to go before them. It might be that facts and circumstances within the knowledge of the witness would justify the conclusion that there was a degree of insanity or mental incompetency which made her incapable of comprehending any will or of doing any kind of business, or that she was an idiot, without any apparent intelligence ; and in such a case we cannot say that a witness should not be permitted to express an opinion to that effect, or that he might not say that she had not sufficient intelligence to comprehend the particular will or any will. We understand that no case in this State has held to the contrary, and think the questions put were not improper by reason of the failui'e to limit them to the will in question. It might be different if^ the witness were expected to determine the legal question, for then he would have to apply his facts and opinions to that, whereas he might otherwise express his opinion as to the impairment of her faculties in regard and as related to many things, leaving to the jury the duty of determining whether she had capacity to make the particular will. The confusion on this subject, if there is any, may be traced to the improper practice hereinbefore discussed.

Opinions of incompetency were expressed by several witnesses, and it is claimed that in some instances there was an absence of that foundation for the inquiry which the law requires. Judge Hopkins testified that in 1899 he, as commissioner on claims' in her husband’s estate,. went to her house to see whether she would be a competent witness tobe sworn. When asked her age, she began to cry, and witness said that he thought she said, “ I don’t know; ask Mary. ” She asked what the people were there for. When asked about her physical appearance, he said:

“Why, she was sitting in a chair. She was a large womanj and seemed to be fleshy. She seemed to be in a good state of health, as far as I could judge, for a woman of her age.
The Court: Just describe her, but do not say what she seemed to be.
“A. She was an old lady. During all the, time I was there she remained seated in a chair. She was more than» an ordinarily fleshy woman. She had the appearance of being a very old woman. She was, most of the time that I was there, kind of half crying.
Q. From what you saw of her there, and her talk, did you form an opinion as to her mental capacity ?
“A. I did.
“Mr. Kelley: I object to his stating his opinion, as incompetent and irrelevant.
The Court: He may answer.
“Mr. Kelley: An exception.
“A. My opinion was that she was wholly incompetent.”

Cross-examination:

“Mr. Kelley: Now, may it please your honor, for the • purpose of making the record in this case, I ask your honor to strike out all of the testimony of this witness as to the conversation and the appeai’ance of the testatrix, and also as to his opinion as to her competency to make a will.
“The Court: I will deny the motion. (An exception taken for proponent.)
Q. Mr. Hopkins, had you ever seen Lurena Beach before ?
“A. I never had.
Q. Did you ever see her afterwards ?
“A. I never did.
“ Q. So this occasion, which must have been within 30 days prior to the 14th day of July, 1899, was the only time that you ever saw her ?
“A. It was.
“ (Witness continuing.) We were there about half an hour. It might have been longer. There were Mr. Clapp, Mains, Green, Whipple, and myself. There were no other persons in the room. The five of us went into the room, closed the door, and Mr. Clapp asked the old lady how old she was, and she said, ‘ I don’t know; ask Mary.’ I cannot tell what was the next conversation. I know I talked with her and asked her some questions, but X do not know what was the conversation.
Q. When you five men went into the room and closed the door, did that old woman turn her face around in her chair and say, ‘What are you here to trouble me for?’ or question to that effect ?
“A. Well, I think she said that before we went in there. ^Before the other people went out of the room I think she said something like that.
Q. What other people ?
“A. Mrs. Macomber, Mrs. Bloomfield, Mr. Beach, and Mrs. Page.
Q. Three of the contestants in this case were present, and Mrs. Page ?
“A. I would not say they were all in the room, but my recollection is that she said that before we went in there by ourselves and closed the door.
Q. Didn’t she say, ‘Why do you men come hereto bother me ?’ Didn’t she make use of that expression ?
‘ ‘A. She might have; I don’t remember.
Q. Don’t you remember that you, or some member, of the party, after the door was closed, asked who had taken care of her and nursed her ?
“A. She might have been, asked. I do not remember. I don’t remember of such a remark.
Q. Didn’t you go there as a commissioner to see about the merits of a claim against Artemus Beach’s estate ?
“A. We went there to see if Mrs. Beach was in a competent state of mind to make an intelligent answer.
“ (Witness continuing.) I know she was a mental wreck. * * :]:
Q. Have you stated to this court and jury every act and word, as near as you can remember, that you heard from Lurena Beach on the occasion in question ?
“A. Well, as near as I can remember. I don’t remember now any other definite question, although there was quite a little more said. •
‘ ‘ Q. Did she say a good deal ?
“A. No.”

This testimony is easily reduced to the following: Soon after the death of her husband, the commissioner on claims in his estate went to take her testimony on a pending claim of her daughter Mary Page, and, when asked how old she was, she cried, and wanted to know why they came up there. She was sitting up, and in apparent good health, but fleshy and old, and, most of the time that witness was there, was half crying. The witness was there half an hour, and never saw her before or afterwards. It does not appear whether her testimony was taken or not. It was error to take the opinion of the witness, under the circumstances, though it was proper to prove the circumstances, leaving the jurors to draw their own inferences. The opinion of Howard Green had but little better foundation. If Mrs. Beach was in the semi-idiotic condition that counsel claims, there ought to be many facts and circumstances within the reach of contestants to show it. The practice of proving by a witness two or three instances of tears, forgetfulness, anger, or some other emotion or idiosyncrasy, of doubtful significance, as a ground, and then taking the opinion of the witness (frequently biased) that the person is insane or incompetent or without sufficient understánding or intelligence to do the act in question, is contrary to the rule, as we have often said.

We discover no error in the rulings in relation to the testimony upon the subject of undue influonce, except the exclusion of proof of the relations between Mrs. Page and her mother. It was proper to investigate fully the relations of the testatrix and all of the children.

There were many requests to charge, and many assignments of error relating to them. The charge was a fair and impartial one, and seems to fairly cover the questions raised,, and we think it unprofitable-to discuss it, inasmuch as the case must be reversed on other grounds.

The order is reversed, and a new trial directed.

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