text:
    MISSAUKEE FARM & INVESTMENT CO. v. FERRIS.
    Partnerships — Banks—Name—Certificate of Membership.
    Where a banking partnership was organized under the name of the Missaukee County Bank, under the provisions of Act No. 160, Pub. Acts 1859, and the defendants, who executed their note and mortgage to the bank, knew with whom they were, in fact, dealing, and were not misled by want of knowledge of the persons who constituted the firm, the failure of the partners to file a certificate of membership under Act No. 101, Pub. Acts’1907, or to show such changes in the membership of the firm as occurred after its original articles were filed, showing the names of the copartners, was no defense to the foreclosure of a regularly .executed mortgage in equity; substantial compliance with the law of organization of the firm, by filing articles of partnership that contained the names of the then members of the bank, sufficiently authorized them to continue in business, and there was no ground in equity to defeat the mortgage.

      Appeal from Missaukee; Lamb, J.
    Submitted April 11, 1916.
    (Docket No. 71.)
    Decided September 27, 1916.
    Bill by the Missaukee Farm & Investment Company against Elbert C. Ferris and another for the foreclosure of a mortgage. Defendants filed an answer in the nature of a cross-bill to have said mortgage declared void. From the decree rendered, defendants appeal.
    Affirmed.

      Gaffney, Miltner & Millington, for complainant.

      Broomfield & Worcester, for defendants.
   Moore, J.

This case was commenced in December, 1914. The trial judge stated the questions involved so clearly in a written opinion that we quote from it :

“The bill of complaint is filed to foreclose a certain real estate mortgage given by defendants Elbert C. Ferris and Marjorie Ferris, his wife, to Missaukee County Bank, to secure the repayment of the sum of $1,500, represented by a promissory note of even date for the sum of $1,500 and any renewal thereof, which said mortgage is dated on the 26th day of November, 1909, and covers,” etc.
“Defendants Elbert C. Ferris and Marjorie Ferris by answer deny the essential allegations of the complainants bill, and claim as a matter of law that neither the mortgage nor the note mentioned in the bill is now, or ever was, a valid and subsisting obligation against them, for the reason that the said Missaukee County Bank, the mortgagee in the said mortgage and payee in the note secured thereby, was, at the time the mortgage and note were given, doing business under an assumed name, and had not filed, or caused to be filed, with the county clerk of Missaukee county the certificate required by sections 5271 to 5276, inclusive, of the Compiled Laws (2 Comp. Laws 1915, §§ 6715-6721), or the certificate required by Act No. 101 of the public Acts of 1907 (2 Comp. Laws 1915,- §§ 6349-6353), * * * and for the same reasons deny the validity of the assignment.
“By way of- cross-bill defendants Elbert C. Ferris and Marjorie Ferris claim affirmative relief upon the following grounds: (a) That the note is void and illegal for the reason that the Missaukee County Bank was a copartnership doing business under an assumed and fictitious name and had not, up to June, 1913, or at any other time, filed, or caused to be filed, with the county clerk of Missaukee county the certificate required by Act No. 101 of the Public Acts of 1907, or by sections 5271 to 5276, inclusive, of the Compiled Laws of 1897; (6) that the said mortgage is void and illegal for the reasons set forth in item (a); * * * (d) that the note and mortgage are usurious. * * *
“The Missaukee County Bank was organized as a copartnership in 1886, under Act No. 160 of the Laws of 1859 (2 Comp. Laws 1915, §§ 6715-6721), and has continued to do business with some changes in membership up to and since February 16, 1914, with its place of business at Lake City, Missaukee county, Mich. On the 22d day of June, 1902, articles of association with affidavit attached were filed with the county clerk of Missaukee county, showing that on the 14th day of June, 1902, Thomas Kelly, James Cavanaugh, Francis O. Gaffney, and Miles E. Stitt associated themselves together as copartners for the transaction of a general brokerage, exchange, and banking business under and by virtue of the provisions of sections 5271 to 5276 of the Compiled Laws of 1897. These articles, among other things, show the name of the copartnership, place of business, full name and residence of each and every member, the terms of the copartnership, the length of time it is to continue. So far as the record shows this certificate was the only attempt to comply with the provisions of sections 5271 to 5276 of the Compiled Laws up to November 26, 1909, and from thence to December 26, 1911. * H: Hi
“Some time between 1902 and 1906 Miles E. Stitt died. No new certificate was filed, but the business was conducted as before. In 1906 James Cavanaugh transferred his interest to Francis O. Gaffney and Thomas Kelly, but no new certificate was filed; the business was conducted as before. On November 26, 1909, when the instruments in question were executed, the Missaukee County Bank was run and owned by Francis O. Gaffney and Thomas Kelly, and they were continuing the business under and by virtue of the articles and certificate filed in 1902. On December 26, 1911, new articles of copartnership were filed with the county clerk of Missaukee county, showing that said copartnership, doing business as Missaukee County Bank, was then composed of Thomas Kelly, Francis O. Gaffney, Henry Miltner, and Christopher C. Lerg. * * * These articles show the name and address of each and every member of the copartnership, the name of the firm, the place of business, the character of the business, the term of its existence as five years, and may be continued for a longer time by mutual consent of all the parties interested. All four copartners signed the articles December 31, 1910. No other articles or certificates were filed until February, 1913, when John F. Doudna was taken in as a member of the copartnership. New articles of copartnership were then filed. They were signed by all members of the copartnership and sworn to by all the members thereof, on the 31st day of January, 1913. These articles show the character of the business, name of the firm, names and addresses of the members, place of business, time of its duration, and that the firm succeeds to the business formerly conducted by the old copartnership of Missaukee County Bank, and that the new firm assumes the old liabilities.
“From the time of its organization to the present time the Missaukee County Bank has done, and still is doing, a general exchange, brokerage, and banking business, with its principal place of business, Lake City, Missaukee county, Mich. For some time prior to the 26th day of November, 1909, defendant Elbert C. Ferris had been dealing with the Missaukee County Bank, and on that date was owing said bank three notes, in the aggregate, interest and all, the sum of $1,128.75, also was owing for an indorsement on another note the sum of $9.56, a check on a Cadillac bank for the sum of $55.50, and also a personal, account due F. O. Gaffney of $106.10. The note and mortgage in question were given by defendant Ferris and wife to settle for the foregoing indebtedness. So far as the proofs show, no part of such indebtedness was in any way tainted with usury.
“On the 26th day of November, 1909, the defendant Elbert C. Ferris executed and delivered to the Missaukee County Bank a promissory note for $1,500, due 60 days after date, with 7 per cent, interest after maturity. To secure this note the defendants Elbert C. Ferris and Marjorie Ferris executed and delivered to the Missaukee County Bank, on the 26th day of November, 1909, a real estate mortgage, in which the mortgagee was stated and designated as Thomas Kelly and Francis O. Gaffney, copartners, doing business as Missaukee County Bank, at Lake City, Mich. The payee in the said note is the Missaukee County Bank. The mortgage covers the lands mentioned in the bill of complaint, and the condition is the ‘repayment of the sum of fifteen hundred dollars • with interest at the rate of seven per cent, per annum, payable annually, said principal to be repaid February 7th, 1910, after date hereof, in accordance with one certain promissory note of even date herewith and collateral hereto. This mortgage being given to secure said note or any renewal thereof until the same is paid in full.’
“At the time the aforesaid note and mortgage were executed and delivered the bank took out $25 as discount, and gave defendant Elbert C. Ferris credit for $1,475. With that amount he paid up his indebtedness aforesaid, and had a credit of $175.59. This note has never been paid, but was renewed from time to time, at intervals of 30, 60, or 90 days as the case might be, up to August 29, 1913, when the last renewal note, the one in question here, became due and payable. The defendant neither paid nor renewed said note at that time, nor has he paid the same, or any part thereof, since, or offered to. At every interval when the note was renewed the Missaukee County Bank was either paid in cash, or by another note discounted at the rate of 10 per cent, for the time the renewal note was to run. No interest as per the terms of the mortgage has been charged or collected. Whatever has been paid for the use of said money has been by the way of what the eoriiplainant terms ‘discount’ on the original note and all subsequent renewals. From the testimony in the case I find the amount of such so-called discount paid by the defendant or reserved by the Missaukee County Bank from November 26, 1909, to August 29, 1913, to be $572.08. Since August 29, 1913, nothing has been paid either on principal or on interest, nor has any part of said principal sum been tendered by defendant to this complainant or to the Missaukee County Bank.
“The complainant herein is a corporation, organized on or about the 16th day of February, 1914, under and by virtue of Act No. 232 of the Public Acts of 1903 (2 Comp. Laws 1915, § 9017 et seq.), with Francis O. Gaffney, Thomas Kelly, Henry Miltner, John F. Doudna, and Christopher C. Lerg as the stockholders and incorporators. The principal place of business of complainant is now,, and ever has been, Lake City, Mich. On the 16th day of February, 1914, the aforesaid mortgage and note were assigned to this complainant for a consideration of $1,700 by Francis O. Gaffney, Thomas Kelly, Henry Miltner, John F. Doudna, and Christopher C. Lerg, copartners as Missaukee County Bank, by Christopher C. Lerg, attorney in fact. Said complainant still holds said note and mortgage, and the same is due and unpaid. At the time of said assignment the said note was several months past due. * * *
“1. It is claimed by the defendants that at the time the mortgage and note in question were executed the Missaukee County Bank was without legal capacity to contract for two reasons: (a) That it had not complied with the provisions of Act No. 160 of the Laws of 1859; (b) that it had not filed the certificate required by Act No. 101 of the Public Acts of 1907.
“Upon careful consideration of the provisions of Act No. 160 of the Laws of. 1859 and the purpose for which it was passed, and having in mind the articles of copartnership and affidavit attached thereto, filed June 22, 1902, I am satisfied that there was, at that time, a substantial compliance with the law, and that the Missaukee County Bank, so far as that branch of the question is concerned, was authorized to enter upon the business for which it was organized.
“Assuming, then, that the Missaukee County Bank had authority to do business by virtue of the papers filed in 1902, did it lose that authority by reason of the fact that no other certificate or articles of copartnership were filed either after the death of Miles E. Stitt or after the transfer of the stock of James Cavanaugh in 1908?
“Section 5272 of the Compiled Laws of 1897, being section 2 of Act No. 160 of the Laws of 1859, provides as follows:
“ ‘In case there shall be, at any time after (the) making and filing of said certificate, any change in the name or style of said firm, or in the terms of their partnership, then a new certificate verified as before specified, shall in like manner be filed, as required by section one of this act, before such change shall take effect; and until such new certificate shall have been made and filed, as above specified, the individual member or members of the’firm, as set forth in the certificate on file, shall be held to be the actual members of the firm, and in all respects holden and liable for any obligation, debt or liability, incurred by the said company, as brokers or. exchange dealers.’
: “In absence of any authority to the contrary I do not believe it was the intention of the legislature, in passing Act No. 160 of the Laws of 1859, to have, or intend the failure on the part of any copartnership, organized thereunder, to file a new certificate in case of the death of one of the copartners, or in case of the sale of stock by one of the copartners to the remaining copartners, ipso facto, work or operate as a dissolution of the copartnership, the articles of copartnership being themselves silent upon that subject. * * *
“Defendant Elbert C. Ferris had on numerous occasions recognized the capacity of the Missaukee County Bank to contract by actually entering into contracts with it, voluntarily and without question. Oh November 26, 1909, he entered into the written contracts in question with said Missaukee County Bank, which said contract the bank has fulfilled on its part, and which the defendant has not wholly, at least, fulfilled, or offered to fulfill. Under such a state of facts, if the Missaukee County Bank were a corporation, and the defendant had dealt with it as such, without question or objection he would be held to be estopped from raising that question, and I can see no valid reason why the defendant should not be so estopped in this case in so far as the completeness of its compliance with the provisions of said Act No. 160 is concerned.
“It is also claimed by defendant Elbert C. Ferris that it was necessary for the Missaukee County Bank to file a certificate in accordance with Act No. 101 of the Public Acts of 1907, and, not having done so, it was therefore incapacitated from entering into the contract in question. The complainant claims that the bank, having been organized under and by virtue of the terms of a general law, and having substantially complied with its provisions, comes within the exception provided for in section 4 of Act No. 101 of the Public Acts of 1907, which reads as follows:
“ ‘This act shall in no way affect or apply to any corporation, partnership association, limited or special partnership duly organized under the laws of the State, or to any corporation organized under the laws of any other State and lawfully doing business in this State.’
“The language of this section of the statute is general in its scope, and, in my judgment, includes a co-partnership organized under Act No. 160 of the Laws of 1859. I conclude, therefore, that it was unnecessary for the Missaukee County Bank to comply with Act No. 101 of the Public Acts of 1907. * * *
“2. It is the contention of the defendants that, at the time of the assignment of the mortgage and note by the Missaukee County Bank to the complainant, said bank had no legal capacity to make the contract for the reasons discussed under the preceding head. * *
“From a careful consideration of the papers filed with the county clerk of Missaukee relative to the reorganization of the Missaukee County Bank, in February, 1913, I am satisfied that there was a substantial compliance with the provisions of Act No. 160 of the Laws of 1859. For the reasons before given I am inclined to hold that it was unnecessary for the said Missaukee County Bank to comply with the provisions of Act No. 101 of the Public Acts of 1907.”

The court found the contract was usurious, and concludes the opinion as follows:

“Having considered the case from all angles and in all its phases, I am impressed with the conclusion that the complainant should recover in the sum of $927.92, being the balance after deducting the usurious interest payments of $572.08 from the principal sum of $1,500.”

A decree was entered accordingly. The complainant did not appeal. The defendants appealed.

Stated tersely, the claim is that the note and mortgage and the assignments thereof are void for the reason that the bank had not complied with Act No. 160 of the Laws of 1859; also that said Missaukee County Bank, on November 26, 1909, was doing business under an assumed and fictitious name, and had not complied with Act No. 101 of the Public Acts of 1907, citing Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697), and other cases found in the brief. In disposing of the case it must be remembered that an attempt was made by the bank when this partnership was formed to comply with the statute. The mortgage ran to Thomas Kelly and Francis O. Gaffney, copartners doing business, etc. They were two members of the original copartnership. The mortgage was given to secure the payment of a note “or any renewal thereof.” The renewal note, which is unpaid, read:

“I promise to pay to the order of Missaukee County Bank $1,500.00, at the Missaukee County Bank, Lake City, Michigan, of Gaffney, Kelly, Miltner & Lerg.”

So it is clear defendants knew when they made the mortgage, as well as when they made the notes, with whom they were dealing.

There are later cases than Cashin v. Pliter, supra, involving a construction of Act No. 101 of the Public Acts of 1907. Some of them are Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418); Sauer v. Construction Co., 179 Mich. 624 (146 N. W. 422); Cross v. Leonard, 181 Mich. 24 (147 N. W. 540); Zemon v. Trim, 181 Mich. 130 (147 N. W. 540). In Sauer v. Construction Co., supra, Justice' Steere, speaking for the court, said the manifest object of Act No. 101 is to protect the public against imposition and fraud. In the instant case the defendants were not deceived; they knew with whom they were dealing. In our opinion, the provisions of Act No. 101, Pub. Acts 1907, do not apply-

This is a proceeding in equity. The defendants seek affirmative relief through the agency of a cross-bill, in which it is averred:

"For as much, therefore, as these defendants and cross-complainants are without remedy in the premises, except in a court of equity, they therefore respectfully pray: (1) That the note mentioned and described in the first paragraph of said bill of complaint may be decreed to be null and void and of no effect,” etc.

The defendants had the use of the complainant’s money, and under the decree as made they get the use of it without the payment of any interest. By invoking the provision of the statute they now seek to avoid paying any of the money which they got from the complainant. We are not inclined to aid them in accomplishing such a palpable wrong.

The decree is affirmed, with costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    AUSTIN v. CROWELL.
    1. Ejectment — Tenants as Parties.
    In an action of ejectment affecting a parcel of land, part of which was located in the rear or back yards of certain tenant houses, rented and occupied by lessees of defendant, who claimed no interest in the property except as tenants of the defendant, the persons in occupancy were not necessary parties.
    2. Same — Adverse Possession — Parties—Landlord and Tenant.
    A defendant in ejectment cannot, for the purpose of defeating the action, rely upon the nonjoinder as defendant of any person occupying the premises with him under a claim of right subordinate to, or inseparable from, his own possession.
    3. Adverse Possession — Pence—Boundary Lines.
    Adverse possession of a strip of ground lying adjacent to plaintiff’s lot was not established by testimony showing the construction of a crooked fence, claimed to be nearly on the line, and that disappeared in less than the fifteen-year period.
    4. Same — Appeal and Error — Instructions.
    . Where the trial judge instructed the jury, in a somewhat lengthy charge, that the defense of adverse possession had not been sufficiently proved, and did not leave the question to them, but thereafter again discussed the question, while the instruction may have been somewhat misleading, the court could not say the charge was so erroneous as to require a reversal of a judgment for plaintiff.
    Error to Kalamazoo; Stewart, J.
    Submitted April 10, 1916.
    (Docket No. 55.)
    Decided September 27, 1916.
    Ejectment by Minnie Austin against Mary J. Crow-ell. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harry C. Howard, for appellant.

      Alfred S. Frost, for appellee.
   Moore, J.

This is ejectment brought by the plaintiff to recover possession of a strip of land eight feet in width on a city lot located near the northeast corner of Grant street and Asylum avenue (new Oakland drive), in the city of Kalamazoo. Grant street runs east and west. Oakland drive runs nearly north and south. The defendant owned three tenement houses facing on Oakland drive. She did not live in any of them. They were occupied by tenants.

In 1890 the land on Grant street was surveyed by Mr. Balch, and a plat made showing six lots fronting on Grant street. The parties to this suit trace title to the person who had this survey made. When he sold the land, instead of selling it as lots shown by the plat, his deeds described the lands by metes and bounds, and the record seems to indicate that he conveyed two feet of land fronting on Grant street more than there was. The plaintiff owned one of the lots fronting on Grant street. The defendant at the time this suit was brought was the owner of the northerly portion of the lot which was bounded on the west by Asylum avenue (now Oakland drive) and on the south by Grant street. Her lots fronted on Oakland drive and ran back so that the rear of them abutted against the west side lines of the rear portion of the plaintiff’s lot.

In 1904, shortly after plaintiff obtained title to her lot, she caused a survey to be made of the lots conveyed by the common grantor. This survey showed that the lines were not where, up to that time, it was supposed they were located. The record indicates that all the parties affected by the survey except the defendant accepted it. It is the claim of plaintiff that until shortly before this suit was brought no one disputed the accuracy of the survey. Two surveys by other surveyors were subsequently made which agreed substantially with the survey of 1904.

July 4, 1911, plaintiff built a fence on the line between the rear of her lot and the rear of the lots of the defendant as shown by the survey of 1904, which line she claims is the true line. July 12, 1911, the defendant, assisted by her daughter removed this fence, claiming it had been placed on her land. The land involved is eight feet one way and about eighty feet the other way. This suit in ejectment was brought August 22, 1911. On September 7, 1911, the defendant pleaded the general issue. The case was tried before a jury. From a verdict and judgment in favor of the plaintiff the case is brought here by writ of error. Reversal of this judgment is sought for four reasons:

(1) The actual occupants of the premises described in the plaintiff’s declaration were not made parties defendant.

(2) Because the boundary lines included within the lines occupied by the defendant and her tenants were boundary lines established by long practical acquiescence of plaintiff’s predecessors in title.

(3) Because the defendant and her tenants had occupied the property without dispute from 1890 to 1911, and had acquired title thereto by adverse possession.

(4) The court’s charge. *

We will consider these reasons in the above order.

1. The defendant had three houses on her lots, each of which was occupied by a tenant each of whom used the yard back of the house. Immediately and for some years previous to the erection of the fence by the plaintiff there was no fence between. Counsel for defendant insist that each of the tenants should have been made a party defendant, citing sections 13150, 13159, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, §§ 13171, 13180, and Lockwood v. Drake, 1 Mich. 14; Crane v. Seitz, 30 Mich. 453; Hoyt v. Southard, 58 Mich. 432 (25 N. W. 385); Haddy v. Tobias, 85 Mich. 326 (48 N. W. 499); Farrand v. Kavanaugh, 132 Mich. 436 (93 N. W. 1083). A reference to this statute and the cases cited will show they are not controlling. In the instant case the defendant pleaded the general issue. She testified that no one but herself had an interest in the disputed strip. None of the tenants were claiming any interest except what came to them as tenants of defendant. No one-of them is complaining that he or she was not made a party. This ejectment proceeding does not affect the occupants of defendant’s houses or of the yard that properly goes with them.

In Bunce v. Bidwell, 43 Mich. 542 (5 N. W. 1023), Justice Cooley speaking for the court, it was held the wife was not a necessary party- where the land in dispute was a strip of land adjoining the 40 acres where they lived. In Hendricks v. Rasson, 49 Mich. 83 (13 N. W. 367), it was held the defendant in ejectment cannot for the purpose of defeating the action rely upon the nonjoinder as defendant of any person occupying the premises with him under a claim of right that is subordinate to and inseparable from his own possession. See, also, Arnold v. Brechtel, 174 Mich. 147 (140 N. W. 610). Upon this record the case should not fail because the tenants were not made defendants.

2. We now come to the question of the boundary lines which it is claimed were established by acquiescence. The judge gave the following request:

“In an' ejectment suit the plaintiff must rely upon the sufficiency of her own title, and cannot question defendant’s title before making a prima facie case of actionable right in herself, and the plaintiff must recover on the strength of her own title where the defendant is in possession, and in applying this law you are to consider and determine from the evidence in the case whether or not the plaintiff has established her right to recover, and to that end you should consider not only the evidence offered by the plaintiff, but the evidence offered by the defendant as well. If you should find that the only question in dispute was where the west line of the Brown land was located, then you should determine from all the evidence in the case where that line actually is, and if you find as contended for by defendant, then your verdict should be in favor of the defendant, no cause of action.”

In his general charge he stated:

“If you should find that this land had been surveyed by Balch and Mershon in 1890, and that thereafter Mershon had sold for the E. B. Crowell lots along Grant street and pointed out to the purchasers' the location of the premises, and the purchasers went into possession thereof upon the agreed and established boundaries as pointed out by Mershon, and they and their grantees so continued to occupy said lots up to the time that the plaintiff acquired title to her property on Austin street, and that she caused a new survey to be made according to the descriptions contained in the deeds, and induced people owning lands upon Grant street to change their old lines of occupation as established by them and Mr. Mershon, I charge you that in law it was not possible for the plaintiff to make the lot owners on Grant street or this defendant give up the established and agreed marks and accept another, even though you should find that the several surveys made under the direction of Mrs. Austin were in exact accord with the descriptions contained in the deeds of the respective owners, because the law wisely says that, where a line is established by consent, it shall not again be changed except by consent, and the fact that the lot owners on Grant street may have consented to change their lines to meet the terms of Mrs. Austin’s survey would not compel this defendant to accept that survey.”

It is true the judge said a good deal more upon this subject, but he put the disputed question squarely before the jury, which decided in favor of the plaintiff.

2 and 3 may be considered together.

Severe criticism is made of the charge, particularly of that part reading:

“(1) I say to you in the beginning, gentlemen of the jury, as a proposition of law, that there is no adverse possession here, steady and undisputed for 15 years. That the court charges you as a matter of law is out of the case. And it must be determined by the deed, and what has taken place since. * * *
“The defendant contends that she and her grantors have been in exclusive, open, and adverse possession of this land for the full period of 15 years prior to the commencement of this suit, and if you find this to be a fact, it would make no difference what the surveys might show, for the reason that under the law, after the lapse of 15 years of adverse possession, peaceable, open, and notorious, the occupant of the land cannot be disturbed, and in figuring the 15 years you figure not only the number of years that the defendant herself has occupied it, but also the number of years that those owning the land prior to her ownership occupied it, and should you find that she had been in possession of it for full 15 years, then your verdict must be in her favor, no cause of action. But you must find that the possession was peaceable, open, notorious, and adverse. As the court before said, the question of adverse possession cannot enter under the testimony in this case before you.
“The fourteenth is given as modified: If you find that the defendant and her grantors had been in peaceable, open, and notorious possession of the land described in the plaintiff’s declaration for the period of 15 years before the plaintiff commenced her suit, your verdict should be for the defendant, no cause of action. The court again says that the question of adverse possession cannot enter into this case”

—and similar language.

The charge is very long. It indicates an attempt to cover every phase of the case presented by counsel. The language quoted was not well calculated to be helpful to the jury. An examination of the record, however, convinces us that defendant did not give testimony of facts which, if believed, constituted adverse possession. It is true that there is testimony that her husband built a fence which she says was on the line to inclose pasture for the horse and cow. The evidence is that the fence was very crooked and disappeared after a time much less than 15 years.

There was testimony about one of the tenants having a garden. It was in dispute as to where it was put. It was maintained but a year or two. There was testimony that in the season of 1911 one of the tenants mowed a portion of the disputed strip which was in lawn, but, giving all this testimony the most favorable construction possible in favor of defendant, it fails to show continued visible and adverse possession for a sufficient length of time to ripen into a title. It would have been well for the court, after he stated the defense of adverse possession was not open to defendant, to have dropped the subject, but we do not think what he said was reversible error.

Judgment is affirmed, with costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


text:
    COLLINS v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Interstate Commerce — Electricity — Master and Servant.
    Defendant was an interstate carrier engaged in business between tbe States. Plaintiff was employed by the railroad company, at repairing lines of telegraph and telephone and was a lineman of experience. At the time he was hurt he was one of a gang which repaired lines and was employed at new construction work. While erecting new wires at the yard in Michigan City, Indiana, to connect with another route or line, he received a severe shock and was burned by reason of a contact between the telegraph wire of defendant and a trolley wire. Held, that plaintiff was employed in interstate service and was included wfthin the provisions of the employers’ liability act, 35 IX. S. Stat. 65, and that there was evidence in plaintiff’s behalf which presented a question for the jury.
    2. Same — Negligence—Evidence.
    And though plaintiff’s fellow servant denied that he allowed the wire to slacken and strike the power wire, the question remained one of fact, under evidence tending to show the slackening of the wire.
    3. Same — Apportioning .Negligence — Damages.
    Instructions of the court to the jury, in substance, that plaintiff was entitled to such sum as would make him good, reducing the amount found due in proportion to the degree of neglect of which he might be found guilty, correctly stated the measure of damages and the rule of apportionment.
    Error to Arenac; Sharpe, J.
    Submitted June 16, 1916.
    (Docket No. 50.)
    Decided September 27, 1916.
    Case by Irvin Q. Collins, an infant, by his next friend, against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cooley & Hewitt (Humphrey, Grant & Humphrey, of counsel), for appellant.

      S. E. Hayes & Son (Coumans & Gaffney, of counsel) , for appellee.
   Moore, J.

This is a suit to recover damages for a personal injury sustained by the plaintiff while working as a lineman in Michigan City, Ind. The accident occurred June 3, 1914. Suit was brought under the Federal employers’ liability act of 1908. The result was a verdict of $6,000 in favor of the plaintiff. A motion was made for a new trial, in denying which the circuit judge filed an elaborate statement of his reasons for doing so. The case is brought here by writ of error.

There are 37 assignments of error which are grouped and discussed by counsel as follows:

(1) Is this case properly maintainable under the Federal act?

(2) Absence of proof of defendant’s negligence and speculation and conjecture.

(3) Plaintiff’s assumption of the risk.

(4) Plaintiff’s contributory negligence.

(5) Improper measure of damages.

The first, and one of the most vital questions in the case, is the allowing a recovery under the Federal employers’ liability act of 1908. It was conceded by counsel on both sides that the applicability of the statute was a question of law, and the court charged the jury:

“It is conceded by counsel that it is a question of law, under the evidence submitted here, for me to determine whether or not the plaintiff was, at the time of his injuries, engaged in what is spoken of under this Federal law as ‘interstate commerce.’ * * * I say to you as a matter of law that the plaintiff at that time was engaged in interstate commerce, and that consequently the Federal statute is the one under which his rights are based.”

It was and is conceded that the Michigan Central is an interstate carrier engaged in an interstate business, but it is stoutly denied that plaintiff was engaged in interstate commerce when he was hurt. This claim makes it necessary to refer briefly to the facts. Plaintiff was about 18 years of age, of average intelligence. His home was at Sterling, Mich. When hurt, he had been at work for defendant about a year, and was regarded as an expert lineman. He was one of a gang of seven to ten men engaged in repairing the telegraph and telephone lines of defendant. During the,year of Mr. Collins’ employment he had worked in various cities along the line of the Michigan Central in three States, and had done various kinds of work, and on various wires and branches of the telephone and telegraph service which is maintained throughout the system.

At the time of the accident the Michigan Central Railroad Company maintained along its right of way over each of its divisions a telegraph, a telephone, and a signal system, maintaining for that purpose, on poles of the Western Union, along the right of way, two through telephone wires for the dispatcher’s use, two through telephone wires for the message phone, and two signal wires. Within the yard and city limits of Michigan City, State of Indiana, for 20 years prior to the time of the accident, the Michigan Central Railroad Company also maintained an intercommunicating system, which was known as a yard telephone service. Starting at the depot, these wires ran first to the east end of the yard, to the yardmaster’s office, where the first phone was maintained; then to the assistant yardmaster’s office, where the second phone was maintained ; then to the car repairer’s shop, where the third phone was maintained; thence to the switch tender’s shanty at the east end of the yard, where the fourth phone was maintained; thence to the interlocker on the bridge where the fifth phone was maintained; thence to the old yard, where the sixth phone was maintained; thence to the roundhouse, where the seventh phone was maintained; and back to the depot, where the eighth and last phone was located. Prior to the time of the accident this entire system extended from the depot into the yard to the east of the depot. For three or four months prior to the time of the accident the plaintiff, together with the other members of his gang, had been engaged in work in the city of Michigan City, on this yard telephone system, but they had completed this work, and in the morning of the day of the accident they commenced to string two new wires from the first pole west of the depot to a box car used as an office at the transfer point between the defendant and the Monon Route 8,000 feet west of the depot.

The usual method of stringing two wires was to use a bridle, which consisted of a round stick from 2 to 3 feet long, with a short wire fastened at each end of the stick on the side opposite the loop, an end of each of the wires that were to be strung was fastened, a rope was then fastened in the center of the wire loop, and then by pulling on the rope the two wires were held apart by the stick and drawn along together, a rope being used because it is a nonconductor of electricity. At the first pole the rope would be passed over a cross-arm of the pole, and pulled by one of the men on the ground until the bridle reached the pole. Sometimes the wire was placed over a cross-arm, and sometimes the man who went up the pole would fasten a bracket on each side of the pole and pass the wire over the bracket instead of the cross-arm. On the morning of the accident they started stringing the wire for about half a mile to the west near Tenth street, along which the South Shore Electric Road ran at right angles to the wires. At that point the wires were made fast to the pole and cut off. The reel was then taken west to the Monon transfer track, and the wires were again taken up a pole and strung in the same manner back to the east; the purpose being to haul half of the wire each way. The accident occurred about 2 o’clock in the afternoon. The wire had been strung back to the east from the Monon transfer, so that they were crossing Tenth ■street with the wire when the accident happened.

Alexander McEachern, a member of the gang, had gone up the pole on the west side of Tenth street, and the wire had been pulled up to him. The plaintiff took the rope and threw it over the trolley wire, which carried 6,600 volts of electricity, and then took the rope and climbed up the first pole on the east side of the street. The plaintiff, having carried the rope up the pole, dropped it over the cross-arm down to a fellow workman on the ground, who took the rope and pulled the bridle and the wires attached to it from McEachern across the street to the plaintiff. One of the wires in some way came in contact with the trolley wire, and plaintiff was severely burned and rendered unconscious. He remained lodged among the wires strung on the pole until rescued by men from the fire department, after the current had been turned off the trolley wire.

The language of the Federal statute involved here ' is:

“That every common carrier by railroad while engaged in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.” 35 U. S. Stat. 65.

It is the claim of defendant — we quote from the brief:

“The particular service at the time of the injury, therefore, being the criterion for applicability of the act, and as it is well known that the service of many employees alternates between first intra and then inter state commerce indiscriminately, the Supreme Court of the United States was soon required to determine the precise degree of nicety to which the distinction between the two employments in such a case would be drawn.”

It is contended that new construction work is never interstate commerce, and that, as the wires at the depot end were not attached to any wires there, and as there had never been a phone at the Monon box office, and as this new wire was being strung to be attached to a phone at the Monon box office, where there had never been one, it was new construction, and therefore intrastate commerce and not interstate commerce, counsel citing Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 (34 Sup. Ct. 646, Am. & Eng. Ann. Cas. 1914C, 163); Mondou v. Railway Co., 223 U. S. 1 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44); Van Brimmer v. Railway Co., 190 Fed. 394; Shanks v. Railroad Co., 239 U. S. 556 (36 Sup. Ct. 188, L. R. A. 1916C, 797), and other cases to be found in the brief.

It must be conceded that the authorities are not uniform. A reading of the cases cited by counsel will show them distinguishable from the case before us. In Doherty on Liability of Railroads to Interstate Employees, p. 89, it is said:

“The act may fairly be interpreted to include all mechanics who are engaged at the time of injury upon instrumentalities which are generally and indiscriminately used for all the purposes of an interstate railroad, as, for instance, linemen, track repairers, and laborers engaged in the general maintenance of the interstate highway or its signal wires or apparatus and those whose duties relate to the construction, maintenance, and repair of those .instrumentalities which are used in the business conducted by the interstate railroad without discrimination between the local or interstate character of its traffic. Snead v. Rail way Co., 151 Fed. 608. These general terms include the vast majority of the employees of an interstate railroad who may be affected by peril of accident; for, as railroads are practically conducted, there are few employees whose duty is so purely local that they have no relation to interstate traffic. This interpretation of the act is sustained in the case of Johnson v. Railway Co., 178 Fed. 643 (102 C. C. A. 89), in the circuit court of appeals for the eighth circuit. District Judge William H. Munger in the majority opinion said:
“ ‘It is argued that • the employers’ liability act can have no application to the case, as plaintiff was not an employee engaged in interstate commerce. A part of his employment was to see the coupling of cars and the air hose upon the cars which were placed upon the transfer tracks. Some of those cars, among them the one in question, were engaged in interstate commerce.’
“It is difficult to see why he was not an employee engaged in the movement of interstate commerce to as full an extent as a switchman engaged in the making up of trains in the railroad yards, as in the case of Chicago Junction R. Co. v. King, 169 Fed. 372 (94 C. C. A. 652).”

In Coke & Coal R. Co. v. Deal, 231 Fed. 604, the following language is used:

“The Supreme Court having declared that one who is injured while carrying spikes to be used in repairing a bridge over which interstate commerce is transported is deemed to be engaged in interstate commerce within the meaning of the act, it necessarily follows that, as in this instance, where one is injured while attempting to erect a telegraph pole to be used for the purpose of supporting wires over which messages are to be sent in directing the operation of trains in order that a company engaged in interstate commerce may safely operate its trains, such person is engaged in interstate commerce within the meaning of the act. It is strenuously contended that this construction would violate the rule announced by the Supreme Court in declaring the first employers’ liability act unconstitutional, and lead to absurdities; in other words that there would be no place where a line could be properly drawn. The answer to this contention is, we think, that whenever it appears that a party injured. is engaged in employment that is necessary to the maintenance of any of the instrumentalities essential to the successful operation of a road by a carrier engaged in interstate commerce, such party is deemed to be engaged in interstate commerce, and in case of injury, while thus engaged, is entitled to any benefits accruing under the Federal employers’ liability act.”

See other cases cited in the brief of- counsel.

In the instant case the plaintiff had been in the employ of defendant road, which has tracks in three .States, at a monthly wage for nearly a year. He was nearly all the time stringing or repairing telegraph and telephone wires used for conveying messages necessary to the expeditious and safe movement, not only of local trains, but of trains passing in and out of the State. At the time of his injury he was stringing a wire on poles carrying wires which were used in interstate commerce. The primary purpose of stringing the wires he was handling was to enable the employee at the Monon box office to move cars coming in and going out of the State more safely and expeditiously. We think the plaintiff was engaged in interstate commerce.

2. Was there proof of defendant’s negligence? We quote the testimony of plaintiff:

“Q. Mr. Collins, state whether or not there was any place or position that you could get in and do the work you were sent up on that pole to do than where you were.
“A. No; not under the circumstances I was on that pole in.
“Q. Now, the pole that you was oh — Mr. Cressen was on the ground, the other side of that pole, was he ?
“A. On the east side. There was nothing that Mr. Cressen could do, or he did not do anything that would cause any slack to slack back between the pole that I was on and the 'pole that McEachern was on, not that I know of.
“Q. Now, was there anything that you did there that slackened that wire so that it dropped down?
“A. No, sir; there was not.
“Q. And in reaching over, if you say you did reach over, to reach one of the wires, state whether or not in any manner that was displaced, or did displace the bridle so as to slacken the wire in any manner from what you fastened it over the pin.
“A. Well, I had fastened it over the pin. and had my hand onto it, holding it right against that other cross-arm, against the pin, so that it could not get back anyway. There was just two people who had control of that wire in any manner there from that end; that was myself and Mr. Cressen, and Mr. Cressen did not in any manner, or could not slacken the wire.
“Q. And you say, also, that you did not, in any manner, permit that wire to slacken, and that it did not slacken from that end?
“A. Yes, sir.”

It is true Mr. McEachern testified he did not slacken the wire, but this presented a fair question for the jury.

The next question calling for consideration is, Was there an improper measure of damages submitted to the jury? In answering this question, we can do no-better than to quote from the opinion of the trial judge in denying the motion for a new trial:

“Was the verdict excessive? The plaintiff’s injuries were surely very serious, and his suffering must necessarily have been intense. His own testimony and that of the members of his family indicate that he still suffers, and is likely to do so. His body is badly scarred, and considerable of the tissues have been destroyed. Very much larger sums have been paid for injuries, in my opinion, much less severe. This would seem to dispose of this particular reason assigned were it not for the fact that counsel, in their brief, insist that the court erroneously instructed the jury as to the measure of damages in case they found the plaintiff himself to have been negligent as well as defendant. The matter of apportioning the damages in cases of such a finding by the jury was discussed informally between the court and counsel at considerable length, and all were agreed as to the rule to be applied. And in order that this rule as understood by defendant’s counsel might be clearly stated to the jury, the court gave an additional request, prepared in pencil, and handed up by counsel, and which was the last word on the question to the jury. It reads:
‘“Plaintiff is entitled to such, sum as will make Rim good, only provided you find that McEacliern was at fault, and Re was not Rimself, in any way, at fault. But if you find tRat Re was Rimself at fault you must reduce tRe amount wRicR you Relieve would make Rim good in direct proportion to tRe amount of Ris fault.’
“This, I apprehend, is substantially as before stated in the charge. While not in the language suggested as appropriate in the case of Norfolk & Western R. Co. v. Earnest, 229 U. S. 114 (33 Sup. Ct. 656, Am. & Eng. Ann. Cas. 1914C, 172), it would seem that it could lead the jury to adopt no other course in apportioning such damages than is therein stated as the proper one. At all events, the court having instructed the jury on this matter just as requested by defendant, it would seem that it should be estopped from questioning the correctness of the instructions given.”

The other questions raised by counsel have been considered. We do not think it necessary to discuss them.

Judgment is affirmed, with costs to appellee.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


text:
    BROWN v. PENDERGAST.
    Sams — Guaranty or Warranty — Breach.
    Where defendant, after the installation of a refrigerating machine guaranteed to have a certain capacity by the seller, gave to the engineer who put it in a statement that it conformed to specifications and was in operation, etc., the release did not bar a recovery for failure to conform to the warranty of capacity.
    Error to Wayne; Mandell, J.
    Submitted June 6, 1916.
    (Docket No. 3.)
    Decided September 27, 1916.
    Assumpsit by Roy W. Brown against Charles D. Pendergast on a promissory note. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Douglas, Eaman & Barbour, for appellant.

      F. J. Riggs, for appellee.
   Moore, J.

This is a suit on a promissory note given by defendant to Wolf, Sayer & Heller, as part payment for a refrigerating machine purchased by defendant of Wolf, Sayer & Heller. Mr. Pendergast was a furrier and desired the machine to refrigerate a room to be used by him for the cold storage of furs. With his plea of the general issue defendant gave notice of failure of consideration in that the machine would not do the work it was guaranteed to do, and also gave notice of recoupment for expenditures incurred and profits lost by reason of the failure of the machine to work properly. At the trial the defendant gave evidence tending to show that the machine would not work properly, and that he had suffered damages for that reason. The plaintiff gave evidence tending to show that the machine, if properly managed, would do the work.

The plaintiff asked at the conclusion of the evidence for a directed verdict for the amount of the note and interest. The court charged the jury in part as follows:

“The real issue in the case is: Did the firm of Wolf, Sayer & Heller furnish to the defendant the kind of a plant that is specified in the contract that the firm had with Mr. Pendergast? If it did Pendergast must pay this note and interest. If it did not, then Pendergast should be released from such an amount of that note as you find the damage was that he suffered by reason of imperfect or improper machine under the terms of the contract, because that is to be the test. * * *
“The plaintiff claims that after the plant was installed and had been in operation a short time a certain release was given by the defendant to this firm stating that the machine did operate properly and under the terms of the contract that no claim could be made except for defects in workmanship and material. With regard to that I charge and instruct you that that would not relieve the firm from liability in the nature of a set-off because when one purchases something, if the party selling it undertakes or by way of guarantee or assurance represents that it will do the work that is called for in the contract, that, gentlemen of the jury, is sufficient assurance to form the basis of a claim against the party furnishing the goods. I do charge, though, with regard to that paper writing, as follows: ‘That any defects or imperfections in the installation of the machine were waived by the acceptance of the machine by the defendant.’ That refers to any defects or imperfections with regard to the installation merely. The question whether or not the machine was proper and suitable for the business that was required under the terms of the contract that existed between the plaintiff firm and the defendant remains an open question, and that question must be determined as a disputed question of fact by you.
“The defendant claims that he has not used_ this machine because it will not work, and the plaintiff answers that by saying if it was properly operated it would work. These claims are supported in a degree by certain testimony, and from that testimony you will have to determine. The defendant coming in and urging a cross-claim by way of set-off and recoupment has to carry the burden of proof with regard to his claim. He must establish his claim by a fair preponderance of evidence.”

The material parts of the contract read:

“C. D. Pendergast,
“1090 Third Ave.,
“Detroit, Mich.
“Gentlemen:
“We propose to furnish you a refrigerating plant as hereinafter described, according to the following specifications and subject to the following conditions, and for the sum hereinafter named. One compressor of three ton refrigerating capacity, fitted with our improved ammonia valves, stuffing boxes of the ammonia compressor will be packed with special ammonia packing and bearings, fitted with automatic oilers, where practicable. The compressor is to be driven by belt (or direct connected motor if so ordered). * * * We will furnish compartment with brine storage tanks and coils of sufficient capacity to assist in maintaining the temperature in the rooms for a period of twelve hours, when the machine is not running; contents of room to be thoroughly chilled before discontinuing the operation of machine and doors not to be opened during the time the machine is not running. * * * It being understood and agreed that we will furnish an erecting engineer who will take charge of and direct the installation of the plant. The board and traveling expenses of the engineer, necessitated for the completion of the work, to be paid for by us. All other labor necessary to assist the engineer in installing the plant is to be provided and paid for by the purchaser. * * * That upon the completion of the installation our engineer will operate the plant for two days, during which time the necessary power, light, water and other incidentais, together with the necessary assistance to our engineer, will be furnished by the purchaser. If at the end of this time the plant meets the requirements, of this proposal it shall be accepted by the purchaser in full discharge of all agreements herein contained on our part, except the guarantee as to workmanship and material. It being understood and agreed * * * that we guarantee the ammonia compressor to have a refrigerating capacity equal to the melting of three tons of ice each twenty-four hours, and that when properly and regularly operated not more than twelve hours each day will do the work hereinbefore specified, providing a sufficient quantity of condensing water at not over 60 degrees to 75 degrees Fahr. is furnished by the purchaser, and all other obligations herein contained fulfilled. That we guarantee all workmanship and material, and will replace any part in which original defects of workmanship or material are found within one year. Repairs and adjustments not due to workmanship or materials are to be at the purchaser’s expense. * * * That this agreement shall be binding, upon the parties hereto, after being duly signed by the purchaser and approved and accepted by an executive officer of this company. All previous communications, provisions, agreements or contracts, verbal or written, not contained herein, are mutually abrogated and withdrawn and no modification of this agreement shall be binding upon the parties or either of them unless such modification be in writing duly accepted by the purchaser and approved by an executive officer of the company. * * * Refrigerating Plant at Detroit, Michigan. Date Commenced June 1-12. Date Released June 12-12.
“Wolf, Sayer & Heller,
“Chicago, 111.
“Your engineer, H. F. Schubel, has this day completed the installation of our refrigerating machine, which conforms to the specifications and is now in successful operation. The same being satisfactory and accepted, I therefore release your engineer.
“C. D. Pendergast.”

The entire question centers about what effect shall be given to the paper given to the engineer by the defendant. We cannot present appellant’s claim better than to quote from the brief of his counsel:

“These contracts contained certain guarantees as to the capacity of the machines sold and as to the workmanship and material entering into their construction. But another clause in the contracts provided that after installation the machines should be run for two days, and if at the end of that time they fulfilled the requirements of the contract, they should be accepted by the purchaser in full discharge of all the contract agreements except the guarantee of workmanship and material. * * * It was to guard against such contingencies as these that this provision was inserted. By force of it, if any machine so sold worked satisfactorily for two days under the erecting engineer’s care, it was to be accepted by the purchaser in full satisfaction of all agreements in the contract of sale, except the guarantee of workmanship and material. The purchaser was given ample time to observe its type, capacity, and how it worked. If it did not do the guaranteed amount of refrigerating he was not required to accept it, but if it did and he accepted it, he was then forever foreclosed from objecting to the capacity, type or design of the machine. All that he could require under his contract was that Wolf, Sayer & Heller should during one year replace parts in which original defects in workmanship or material appeared.”

The record makes it clear that defendant wanted a refrigerating machine in aid of his business, the payee in the note undertook to furnish a machine having a compressor of three-ton refrigerating capacity, with brine tanks and coils of certain capacity, and provided :

“5. That we guarantee the ammonia compressor to have a refrigerating capacity equal to the melting of three tons of ice each twenty-four hours, and that when properly and regularly operated not more than twelve hours each day will do the work hereinbefore specified, providing a sufficient quantity of condensing water at not over 60 degrees to 75 degrees Fahr. is furnished by the purchaser, and all other obligations herein contained fulfilled.
“6. That we guarantee all workmanship and material, and will replace any part in which original de-. fects of workmanship or material are found within one year. Repairs and adjustments not due to workmanship or materials are to be at the purchaser’s expense.”

The machine having the guaranteed capacity described was to be the result of a combination of material and workmanship. We think it an unfair construction of the effect of the paper given to the engineer to say that it did away with the agreement as to the guaranteed capacity of the machine.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


text:
    JOZEFIAK v. DETROIT UNITED RAILWAY.
    Damages — Triad—Requests—Verdict.
    Where plaintiff secured a judgment for $1,000, which was not an unreasonable amount for personal injuries that she suffered in alighting from one of the cars of a street railway corporation, and, except in her pleading, there was no apparent claim of damages for permanent injuries, the court would not say, as a matter of law, that it was reversible error to refuse defendant’s request to charge • that there was no evidence of any injury for which damages could be awarded as for permanent injuries.
    Error to Wayne; Van Zile, J.
    Submitted June 26, 1916.
    (Docket No. 134.)
    Decided September 27, 1916.

      Case by Hedwig Jozefiak against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellant.
    ■ Barbour, Field & Martin (Henry C. L. Forler, of counsel), for appellee.
   Moore, J.

The plaintiff was a passenger on one of defendant’s cars, and was injured in alighting therefrom. It is her claim that when the car stopped she stepped from the car step to the pavement, and while so doing the car was started causing her to fall. Defendant claimed that plaintiff stepped from the car just before it came to a stop and while there was still enough motion to throw her off her balance. There was testimony to support each of these claims. The case was tried by a jury, and a verdict and judgment for $1,000 was obtained by the plaintiff. The case is brought here by writ of error.

The defendant preferred 15 written requests. Nearly all of them were given in the general charge. The fourteenth request read:

“There is no evidence in this case of any permanent injury. This suit is brought by the plaintiff for the injuries which she alone suffered, and if you should find for the plaintiff you shall allow only such damages as will compensate her for same, and you must not take into consideration any expenditures which may have been made by her husband in her behalf since the accident nor the time which it is testified the plaintiff’s daughter has spent at home engaged in housework since the time of the alleged accident.”

The court did not give this request as written, but charged the jury:

“Should you find for the plaintiff in this case, you are to assess the damages— The woman, the plaintiff herself, is a married woman. She could not recover for the amount paid out for her sickness, or doctor’s bills. All those things the husband is liable for, and the reason of that is that he may bring suit for that amount. If she were allowed to recover for those things, there might be a double recovery. She is entitled to recover for the pain and suffering that she may have endured, if you find that her injuries resulted from the negligence of the defendant in starting the car, in a case where she herself was not guilty of contributory negligence. She. is entitled to recover for the pain and suffering that she may have endured because of the injuries that she received. Now, you are to get at that. There is not any particular rule that I can lay down except that rule that it is to be determined by your good, common sense. You cannot sit down and figure it out with a pencil exactly. You have got to look over the case and see what the proofs are, remember what the injuries are, remember what she has suffered, what she, in your judgment will suffer, and determine how much this plaintiff ought to recover, not what you would undertake to bear this pain and suffering for, or any other person, but what should this plaintiff recover, this individual plaintiff recover; that is the amount of your verdict if you find for the plaintiff.”

There are several assignments of error. Only one of them needs discussion, and that is did the court err in leaving out the first sentence of the request to charge: “There is no evidence of any permanent injury.” Counsel insist the court erred, citing Butler v. Railway, 131 Mich. 617 (92 N. W. 101), Kethledge v. City of Petoskey, 179 Mich. 301 (146 N. W. 164), and Matthews v. Lamberton, 184 Mich. 493 (151 N. W. 563). The instant case is distinguishable from those cases, as will appear by reading the opinions.

One of the doctors testified in part:

“She suffers a great deal of pain upon pressure and shows a degree of spasm upon motion of the leg, especially abduction. Besides that, she has a condition that upon pressure of the knee or pressing upon the knee or tapping upon the heel, when the leg is extended, she suffers a great deal of pain, showing evidence at every movement of the leg, and walking giving rise to pain. She has also here-hypostatis joints, extremely sensitive to pain or touch. There are some markedly objective symptoms. * * *
“Q. What can you say about the continuation of this condition in your opinion?
“A. I think the condition— The continuation of traumatic neurosis always is very indefinite. It is hard to say how long it will last, when it will get well. I don’t think it is possible to make any definite statement in regard to traumatic neurosis. The condition may last one year; it may last ten years. In view of the fact that this accident happened in June, 1914, the condition that she is now in, I would say it would be a long lasting condition. Any nervous condition, any shock to the nervous system, is always detrimental £o the condition unless it improves in six months, usually tends downward. I think it can be said that traumatic neurosis that does not recover in six months is a long tedious one. I think the condition of her health will be delicate until she overcomes that. At the present time she is in a very irritable condition; the nervous system is in an irritáble condition; she tires easily; she has a great deal of reflex pain, headache in the back of her head, also around her hgart; the pains radiate like to the seat of an injury; the mental condition is also one that is easily exhausted, showing shock that she evidently sustained.”

Another doctor gave similar testimony.

The important question litigated was as to how the accident happened. The jury evidently accepted plaintiff’s version. The charge was clear, and, with the exception of the omission of the sentence quoted, was unobjectionable. It would have been well, as it was requested, to have told the jury that there was no evidence of permanent injury, but there is nothing in the record outside of the declaration to indicate that plaintiff was claiming for a permanent injury. There was evidence that plaintiff’s suffering was not at the time of the trial ended.

The plaintiff was 40 years old. The verdict was for $1,000. An examination of the record convinces us it would not have been less if the omitted sentence had been given.

Judgment is affirmed, with costs to plaintiff.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


text:
    BUTLER v. WATSON.
    1. Negligence — Landlord and Tenant — Personal Injuries — Landlord’s Obligation to Third Persons.
    Where defendants leased premises reserving a back porch for common convenience and use of all the tenants, and it extended across the rear of the entire building, they were liable to a minor child who was struck by a post that fell because insufficiently or insecurely nailed at the top, when it appeared that the infant was a guest of one of the tenants and was on the rear porch at the instance of a tenant, since the lessor was not governed by the general rule, in that he retained use of or control of the porch for the benefit of the several co-lessees.
    2. Same — Common Use — Duty to Repair.
    The lessors were liable to any guest or person rightfully on the property that was reserved fpr the common use of the occupants, and, not having let the reserved portion to any of the tenants, might be said to- be in control of the same, and it became their duty to exercise ordinary care for the safety of the persons about it.
    3. Same — Persons to Whom Liable.
    Though it was claimed by defendants that they had objected to the presence of children on the porch, and dedined to lease the property to any person with children, it could not he said that a child one year of age, who was left with the lessee by his grandparents, was wrongfully there.
    4. Same — Contributory Negligence — Charge.
    And the trial court was correct in charging the jury that the infant was too young to be guilty of contributory negligence; also, that any negligence of the grandparents would not preclude recovery.
    5. Same — Conjecture.
    The manner of plaintiff’s injury could not be said to have been conjectural when the only doubtful question was whether the post struck it directly, or knocked against the child the person w'ho accompanied it, or struck the two in falling.
    Error to Kent; McDonald, J.
    Submitted June 12, 1916.
    (Docket No. 37.)
    Decided September 27, 1916.
    Case by Ethel Butler, an infant, by next friend, against Frank F. Watson and another for personal injuries. Judgment for plaintiff. Defendant Watson brings error.
    Affirmed.

      J. T. Preston, for appellant.

      Rodgers & Rodgers, for appellee.
   Moore, J.

The plaintiff, who was at the time of the injury about one year old, sued defendants as the owners of the building and the lessors of Warren Wainwright, the grandfather of the plaintiff. It is her claim that she was injured by a falling post upon the rear porch of the building which was not properly nailed at the top. The building stands upon the north, side of Lyon street in Grand Rapids. The front of' the building is close to the sidewalk on Lyon street, and runs back, including the rear porches, a distance of 100 feet, with an alley in the rear running east and west. The rear porches run the entire width of the building 65 feet, and are about 14 feet wide north and south. Through the center of the porch defendants had placed a row of posts about 12 feet long and 6 inches square. The porch was used by such of the tenants as had occasion to use it. The building which is two stories high was occupied by some six or seven families, and on the west end of the first floor by a store.

On the day of the accident Frank Mitchell, one of the tenants, with the consent of the grandmother, in the' afternoon took the plaintiff by the hand and led it through the rear hall door on to the back porch. When he got as far as the center post near the foot of the stairway he saw the post opposite the store window starting to fall; he stepped forward to catch the post and he was knocked over, and the child was also knocked over, her leg was broken, and it is claimed was severely hurt otherwise. Her leg remained in a case for more than six weeks. Suit was brought. At the conclusion of the plaintiff’s case a motion was made on behalf of the defendant to direct a verdict for the defendant, which motion was denied.

Among other defenses it was claimed that the post did not fall because it was defectively nailed, but that it had been loosened by the piling by some of the tenants of heavy logs against it. The trial judge charged the jury at considerable length. He stated to them fairly the claims of the parties. We make brief extracts from his charge:

“As to the law applicable in this case, I might say that as a general rule there is no obligation on the part of a man or landlord who rents a house to keep it in repair, and that he is not liable for injury resulting from such want of repair. I mean by that, that ordinarily there is no obligation on the part of a landlord to keep a rented house in repair. The owner can rent a house in any condition and the tenant takes it as he finds it, unless there is a special agreement that the owner will put it in repair and keep it in repair, that is the general rule. * * *
“In the absence of a special agreement the tenant takes the premises just as he finds them, but when a man leases a separate portion of a tenement building to different tenants, and as is claimed in this case, reserves control of the porch which is used in common by the tenants, it becomes his duty to keep the porch in a reasonably safe condition of repair, so that it may be reasonably safe for the uses to which it is put by the various tenants, but that is an exception to the general rule. * * *
“Applying that rule of law to the case before us, I instruct you that if you find that the defendants leased the premises in question and reserved control of the rear porch to be used in common by all the tenants, then it became the duty of the defendants to keep the porch in a reasonably safe condition of repair so that it would be reasonably safe for the customary and ordinary uses of the tenants; in this case for Mr. Wainwright and his family. But if the defendants failed to perform that duty and because of such failure injuries resulted, the defendants would be liable. * * *
“In most cases there is another element of the plaintiff’s case, and that is that the plaintiff must show that she was not guilty of any negligence which contributed in any degree to the injury, but in his case the plaintiff at the time, as the proofs show, was a child of about one year of age and incapable of negligence which would contribute to her injury, and the negligence of any member of her family, her father or mother, or her grandparents, cannot be imputed to her, so that because of the tender age of the plaintiff, that element which is usually found in personal injury cases is not present in this case, and therefore it is not necessary for you to determine whether there was any contributory negligence. * * *
“I instruct you that one tenant cannot recover for damages against the landlord for injuries occasioned by the acts or neglect of another tenant occupying the same or a portion of same premises, and I instruct you that if the post which fell was caused to fall by the neglect or careless act of Frank Mitchell, in the ■use of said porch, then I instruct you the plaintiff cannot recover.”

The jury rendered a verdict for $500. A motion for a new trial was made and denied. The case is brought here by a writ of error.

It is claimed by the defense:

(1) The plaintiff was not rightfully on the premises.

(2) That the 'Wainwrights were guilty of contributory negligence.

(3) That the manner of the plaintiff’s injury is conjectural.

(4) That error was committed in relation to the admission of testimony that defendant Watson paid the doctor’s bill.

(5) Wainwright and Mitchell had warning of the danger of piling the logs on the porch.

(6) The verdict is'against the overwhelming weight of the evidence.

(7) Permanent injuries.

It is also claimed the charge of the court was argumentative and did not properly state the law of negligence.

1. Was the plaintiff rightfully on the premises? The claim that she was not is predicated upon the contention that in response to inquiries Mr. Wainwright, the grandfather of the child, stated when he rented the premises that the youngest member of his family was .ten years or more old, and was told that defendants did not want to rent to parties having small children. Mr. Wainwright says he answered truly the question put to him as to the members of his family. The record shows that the mother of the child was separated from her husband and frequently made her home with her parents, Mr. and Mrs. Wainwright, and when she was at work the grandmother had charge of the infant.

A case in point is Herdt v. Koenig, 137 Mo. App. 589 (119 S. W. 56), where the plaintiff was but ten years of age. We quote:

“It appears that the plaintiff was an invited guest of the Burgher family, and at the time of his injury was at play with the Burgher children in the yard, which was common to all of the tenants. Although it is true that the landlord is not bound to keep leased, premises in repair in the absence of a covenant to do so, and is therefore not responsible in damages for injury to the person of the tenant or his guest resulting from the failure to repair (Ward v. Fagin, 101 Mo. 669 [14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650]), the rule is otherwise touching the matter of a common yard or court which is not let entirely to the use of one, but is reserved by the landlord for the common use of several tenants. Where several portions of a building or property are let to different tenants, with a part in common for the use of all, there is an implied obligation imposed by the law upon the landlord to exercise reasonable diligence to keep such common portions of the property in reasonably safe condition for such purpose as may reasonably be anticipated to be a proper use of the property for which it is let. The rule proceeds upon the theory that in such circumstances the landlord not having let the common portion of the property to any one tenant, he has reserved the control thereof to himself. Having thus reserved control, it is his duty to exercise ordinary care for the safety of those about the same, other than trespassers, or mere licensees. That is, for the safety of all persons who are rightfully upon the premises. McGinley v. Trust Co., 168 Mo. 257 (66 S. W. 153, 56 L. R. A. 334); O’Connor v. Andrews, 81 Tex. 28 (16 S. W. 628); Dollard v. Roberts, 130 N. Y. 269 (29 N. E. 104, 14 L. R. A. 238); Nash v. Mill Co., 24 Minn. 501 (31 Am. Rep. 349); 18 Am. & Eng. Enc. Law (2d Ed.), p. 220. The principle extends as well to a common yard occupied by several tenants of the same property as it does to a common passageway, hall, or stairway. Udden v. O’Reilly, 180 Mo. 650 (79 S. W. 691). That this yard was common to all the tenants, is established beyond question. * * * Plaintiff having been an invited guest of the Burgher family, was neither a trespasser nor a mere licensee in contemplation of law, but on the contrary, he was rightfully upon the premises by an express invitation of the defendant’s tenants and was therefore within the scope of defendant’s obligation to exercise ordinary care for his safety. Curtis v. Kiley, 153 Mass. 123 (26 N. E. 421); Roche v. Sawyer, 176 Mass. 71 (57 N. E. 216). And where the property is let to a tenant for residence purposes, it is said such letting essentially contemplates that friends of the tenant’s family will call upon and visit them, as is usual, without express invitation. Therefore the obligation of the landlord to exercise reasonable care, to the end of keeping the common portions of the property in repair, extends as well, on the doctrine of implied invitation, to friends of the tenant’s family not expressly invited, who call or visit at their home. Henkel v. Murr, 31 Hun (N. Y.), 28.”

In the case at bar the duty of the landlord did not rest upon any covenant to repair. It was a duty he owed by reason of the defective premises being in that portion of the premises over which the landlord retained control and which he did not rent to any tenant. Under these circumstances the landlord owed a duty to keep these premises in a safe condition,' to every one who was rightfully there, including the tenants, their family, their guests, servants, and all those who were approaching or leaving their premises for legitimate purposes.

Whatever may be said as to what occurred between the older Wainwright and his landlord, it would be a harsh rule to say that a grandchild not a year old, left by its mother with its grandparents, was not rightfully on the premises.

2. The court told the jury that this infant child could not be guilty of contributory negligence, and that the conduct of the grandparents, if shown to be negligent, could not be held against it. The law applicable to this feature of the case is so fully discussed in Battishill v. Humphreys, 64 Mich. 494 (31 N. W. 894), Shippy v. Village of Au Sable, 85 Mich. 280 (48 N. W. 584), Boehm v. City of Detroit, 141 Mich. 277 (10 N. W. 626), and Slack v. Curry, 177 Mich. 437 (143 N. W. 602), especially in the first-named case, that we content ourselves with simply calling attention to them.

3. Is the manner of the injury to the plaintiff conjectural? The only conjecture is whether the post struck both Mr. Mitchell and the child, or whether it hit the child first, or whether it knocked Mr. Mitchell down and he in turn, knocked the child down. The record is clear that the proximate cause of the injury was the falling of the post, which it was claimed was improperly nailed by Mr. Watson.

4. An examination of the record will show that because of the manner of drawing out the testimony about the payment of the doctor bill there was no reversible error.

5. This assignment of error is fully met by the charge of the court that if the injury was caused by Mr. Mitchell’s piling logs against the post there could be no recovery. The other assignments of error have been examined and are without merit.

Judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


author: Bird, J.

text:
    PEOPLE v. KIMBROUGH.
    1. Criminal Law — Homicide—Corpus Delicti — Order of Proof— Trial.
    Where respondent, a colored man, was convicted of the murder of an eight-year-old girl, whose body he cremated in the furnace of a manufacturing plant, of which he was in charge as a porter or caretaker, and at the trial his attorney objected to the order of proof because the corpus delicti should be first established, the conviction was not subject to reversal for the reason that some of the testimony given by various witnesses might have been presented in different order, involving the recalling of some of them at a later time, in the absence of prejudice to the accused.
    2. Same — Conduct of Court — Prejudicial Remarks.
    During a controversy between counsel and the court relative to the admission of certain testimony in the order in .which it was offered, the court did not commit reversible error by réstrieting the remarks of respondent’s attorney or criticizing him for exceeding the limitations of propriety, etc.
    3. Same — Evidence—Competency.
    Although the trial court could exercise his discretion by allowing a cross-examination out of order of a witness who testified that he was a professor of anatomy in a reputable university, and allow an investigation into the qualifications of witness, it was not a matter of right and the refusal of permission to examine him concerning his qualifications was not error.
    4. Same — Cross-Examination—Witnesses.
    The objection that respondent was asked about other felonies concerning which he insisted upon giving numerous details, and the results of the prosecution, was not well taken; respondent having offered himself as a witness, thereby subjecting himself to the same cross-examination as any other witness.
    5. Same — Trial—Presence of Judge — New Trial.
    The absence of the circuit judge from the bench during the arguments of the respective attorneys for the State and for respondent was not a reason for awarding a new trial when the court was in his room leading into .the court room and was able to and did hear the arguments and re-entered the court room immediately if any objection or controversy arose, unless some showing of prejudice or harmful result was made.
    6. Same — Trial—Cross-Examination.
    Nor was the fact that several physicians were invited by the sheriff to attend the examination of a medical expert, and were invited to take chairs within the railing, an adequate ground for reversal, the court returning that at various times during the trial chairs were brought inside the rail for the use of the spectators: the management of this feature of the trial was within the discretion of the trial court.
    Error to Saginaw; Gage, J.
    Submitted April 13, 1916.
    (Docket No. 126.)
    Decided September 27, 1916.
    Charles.Kimbrough was convicted of murder in the first degree and sentenced to life imprisonment at hard labor at Marquette.
    Affirmed.

      Grant Fellows, Attorney General, and Bird J. Vincent, Prosecuting Attorney, for the people.

      Robert J. Curry, for respondent.
   Bird, J.

Respondent was convicted on a charge of murder in the Saginaw circuit court, and sentenced to life imprisonment. The evidence was circumstantial. It was the claim of the people that respondent murdered Rose Fernier, an eight-year-old girl, and after-wards burned her body in the furnace of the manufacturing plant of the Valley Sweets Company, where he was employed as a porter, when the girl disappeared. Rose Fernier lived with her grandmother on Hamilton street in the city of Saginaw. On Sunday evening, January 3, 1915, Rose was sent by her grandmother to a nearby restaurant on Hamilton street for some .articles of food. She went to the restaurant as directed, but not finding what she was ordered to get, started to return to her home. In doing so her way led her past the plant of the Valley Sweets Company. Just before she reached the plant she was observed by an acquaintance going in the direction of her home. Nothing was afterwards seen of her, although a thorough search was made. The following day pieces of human bones were found in the furnace of the Valley Sweets Company, which were shown to be the bones of a child between the ages of seven and nine years. It was claimed that respondent was at the plant at the time the little girl disappeared. Respondent reviews the proceedings of the trial court by writ of error, claiming that serious errors were committed on the trial.

1. Counsel objected seriously to the order of proof which prevailed at the trial. The basis of the objection was the rule that evidence of the corpus delicti shall be first introduced, and he asserts that nearly all of the evidence which tended to connect defendant with the crime was admitted in evidence before the testimony of Dr. McCotter was received, showing that the bones were human bones, and were the bones of a child between the ages of seven and nine years. There appears to be very little, if any, contention between counsel as to the rule in cases of homicide that all the evidence tending to prove the corpus delicti must be first introduced. Neither is there any contention over the rule that where iteiris of evidence tend not only to prove the corpus delicti, but tend to connect the defendant with the commission of the crime, they are admissible at any time, but respondent insists that the trial court abused his discretion in allowing the respondent to be connected with the offense before it was established.

Had the body been found and been susceptible of identification, the order of proof which was pursued undoubtedly would have been objectionable. The prosecutor was driven to establish the corpus delicti by circumstances, and the circumstances by which he established it were so interwoven with the testimony tending to establish the respondent’s guilt that it was difficult to show one without incidentally showing the other. It is true there were some items of testimony that might have been segregated from the mass and introduced independently, and the witnesses after-wards recalled to testify to the facts which tended to connect respondent with the crime, but those cases were not numerous, and do not appear to have been harmful to respondent. No error in this regard is apparent.

2. The controversy over the order of proof engendered more or less heat between court and counsel. At one stage of the discussion the court remarked:

“If I could see the least reason for holding it would injure the defendant to introduce expert testimony at this time, instead of waiting until they completed their other evidence, I would hold with you. I cannot see any injury he could possibly suffer. It looks to me like a little attempt to prevent— I will withhold that.
“Mr. Curry: I take an exception to the remark of the judge.”

The controversy ran on for a time when the following occurred:

“Mr. Curry: I took an exception when he went on the stand.
“The Court: Yes, you have your exception.
“Mr. Curry: It is not a-matter of discretion; it is the absolute right this defendant has in this case.
“The Court: There is a Supreme Court at Lansing.
“Mr. Curry: This man hasn’t any money. You are all aware of that fact.
“Mr. Vincent: I submit that this statement that this man has no money is improper after What this man is having done for him.
“Mr. Curry: They don’t pay for an appeal.
“Mr. Vincent: I take an exception to that kind of a remark.
“The Court: Yes; I won’t tolerate any more of this.
“Mr. Curry: I want a fair trial for the defendant.
“The Court: You will’have a fair trial. I propose to see that.you don’t take advantage of matters that you don’t have any right to.
' “Mr. Curry: I take an exception.”

Respondent’s counsel urges'that the remarks of the court were improper and prejudicial to the respondent, and tended to discredit counsel in the eyes of the jury. If any harm resulted to respondent from this controversy, it was due to counsel’s persistence in urging his objections after he had the view of the court and his intimation that the court was not fair in his ruling. It could hardly be expected that the court would allow such an intimation to pass without resenting it. But I am of the opinion that it resulted in no harm to the respondent. Such colloquies between court and counsel are not unusual in the trial of causes, and especially in criminal cases, and the average juror knows it and understands it. He does not charge up against the client all the unpleasant things that may be said to counsel. We cannot assume that this disagreement between court and counsel over the rules of evidence would prejudice the jury against the respondent.

3. Dr. Rollo E. McCotter was sworn on behalf of the people and testified that he was professor of anatomy at the medical school at the University of Michigan, and that the particular branch of anatomy to which he gave attention was comparative anatomy. The prosecutor then began his examination, whereupon counsel interrupted and the following took place:

“Mr. Curry: I would like to ask a question as to his competency.
“Mr. Vincent: He will have an opportunity to cross-examine.
“The Court: I think we will take judicial notice of the fact that this gentleman, employed in that way, in Ann Arbor, that he is competent to testify on that subject.
“Mr. Curry: I take an exception.
“The Court: You may have your cross-examination”—after which the prosecutor proceeded with his examination.

Counsel assigns the refusal of the court to permit him to examine the witness as error.

The rule is stated in 5 Enc. of Evidence, p. 547, as follows:

“Though the court may in its discretion allow the opposing party to cross-examine an expert witness as to his qualifications before permitting him to give his opinion, such preliminary cross-examination is not a matter of right” — and cites the following cases in support of it: Finch v. Railway Co., 46 Minn. 250 (48 N. W. 915); Sarle v. Arnold, 7 R. I. 582; City of Ft. Wayne v. Coombs, 107 Ind. 75 (7 N. E. 743).

While it is the usual practice for such a privilege to be granted to opposing counsel before the witness expresses his opinion, we are not prepared to hold that it is error to refuse it. It lies within the discretion of the trial court to determine finally whether the witness is qualified to give an opinion upon the particular subject. If he be satisfied of his competency to testify before the examination closes, we think he should be permitted to announce it and proceed to take his .testimony. The cases in which the question has arisen are not numerous and appear to be somewhat in conflict, but we are inclined to accept the holding in the foregoing cases as the better rule.

4. The respondent was a witness in his own behalf, and admitted upon cross-examination that he had been convicted of five distinct felonies, and in response to the prosecutor’s questions he went into the details of each one of them. Complaint is made that the prosecutor had no right to demand the details of the several felonies. A review of the cross-examination of the respondent convinces us that respondent was more responsible for the details being given than was the prosecutor. In answer to the prosecutor’s question of what offense he was convicted, he insisted upon giving the details of the offense charged and the outcome. He offered himself as a witness and in doing so he subjected himself to the same inquiries upon cross-examination as other witnesses. The extent to which the prosecutor pursued the inquiry was permissible under the authority of People v. Howard, 73 Mich. 10 (40 N. W. 789); People v. Gray, 135 Mich. 542 (98 N. W. 261); People v. Parmelee, 112 Mich. 296 (70 N. W. 577); People v. Ecarius, 124 Mich. 623 (83 N. W. 628); People v. Higgins, 127 Mich. 291 (86 N. W. 812); People v. Bryan, 170 Mich. 683 (136 N. W. 1120); People v. Danenberg, 176 Mich. 339 (142 N. W. 347).

5. A motion was entered for a new trial, and the reasons assigned therefor were the same as those upon which error was afterwards assigned. Two additional reasons are assigned which perhaps need some attention. A showing was made that the judge who presided at the trial was absent from the courtroom during the argument of counsel to the jury. The judge in reply shows that he was absent some of the time in his room, but that the door was open leading into the courtroom, and that he was able to and did hear the arguments, and that whenever any controversy arose and. objection was made he immediately went into the courtroom. There is no showing that the absence of the judge resulted in any prejudice to the respondent. In the absence of such a showing we cannot say it was reversible error. Spencer v. Johnson, 176 Mich. 278 (142 N. W. 582).

6. By another showing it was made to appear that when Dr. McCotter testified, a large number of doctors were invited by the sheriff to attend the examination, and that they occupied seats reserved for them within the bar, and that at no other time during the trial were chairs brought in and placed within the railing for the use of the public. Counsel says that the effect of this was to stage the testimony of Dr. McCotter and to give undue prominence to it, to the injury of respondent. It was admitted by the sheriff that certain doctors requested him to call them on the phone when Dr. McCotter was about to testify, and that in pursuance of this request, he notified several of them and they attended. That some of them sat within the bar and some outside, but he denies that seats were reserved for them, and denies that at no other time were chairs brought in and placed within the railing and occupied by the public. The judge returns that at many other times during the trial chairs were brought within the bar for the use of the public. Questions of this character pertain to the management of trials. Much is necessarily confided to the good judgment and discretion of the trial judge in the conduct of trials. He should prevent, so far as he reasonably can, all scenes and improprieties which would have a tendency to unduly injure the cause of either party to the controversy. Under the showing made we think there was nothing in the affair which calls upon us to review the conduct of the trial in this regard.

Error is assigned upon the argument of the prosecutor to the jury, but we find no ruling upon the objections. Therefore, under the rule, we shall not discuss them. People v. Mulvaney, 171 Mich. 272 (137 N. W. 155); People v. Frontera, 186 Mich. 343 (152 N. W. 1019).

So far as we are able to discern from the record, the respondent had a fair and impartial trial, and the judgment of conviction is affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.