text:
    JOHNSON v. CITY OF ESCANABA.
    1. Taxation — Special Assessments — Paving — Municipal Corporations — Common Council as Board op Review.
    The revision of a special assessment roll for paving a street or the making of a new roll must be done by the board of assessors, not by the common council in reviewing the assessment. 1 Comp. Laws, § 3205.
    2. Same — Statutes—Revision—Corrections.
    The power of the common council to correct the roll as to any assessment or description does not authorize the council to adopt a new basis of distributing the tax; its authority is limited to corrections of mathematical errors in computing amounts or mistakes in descriptions of property assessed. 1 Comp. Laws, §§ 3193-3205.
    Appeal from Delta: Cooper, J., presiding.
    Submitted November 13, 1911.
    (Docket No. 92.)
    Decided January 23, 1912.

      Bill by Carl A. Johnson and others against the city of Escanaba to set aside a special assessment. From a decree for defendant, complainants appeal.
    Reversed.

      Arthur H. Byall, for complainants.

      I. G. Jennings, for defendant.
   Blair, J.

This suit was instituted by various taxpayers in the city of Escanaba to set aside a certain paving tax assessed against them for the improvement of Langley street in that city. None of the property of complainants fronts upon, or is adjacent to, Langley street, but all of their lots front upon streets intersecting that street at right angles. Langley street runs east and west, and the special assessment district determined upon by the council comprised one-half block north and one-half block south of said street between the east line of Stephenson avenue and the west line of Charlotte street. There were 4 lots north and lots south of Langley street.

In April, 1907, the street committee made a report to the council and recommended a plan of apportioning special assessments. This report was accepted and ordered placed on file. This method provided, in short, for the division into two equal parts of the total amount to be assessed in any particular district. One of these amounts was to be distributed among the various lots fronting upon the particular street to be improved, according to the frontage of the several lots so assessed. In other words, one-half of the cost of the improvement was to be assessed according to frontage; the other half was to be spread over the entire district according to the area of the several lots. This, however, was not to be spread equally according to area, but, as between the lots upon which this portion was computed, the amount to be assessed upon each lot varied with the distance from the corner. To illustrate: If the total area of four lots extending from the street improved down a side street amounted to 1,000 square yards, and the total amount to be assessed against these lots on account of the half to be assessed according to area amounted to $1,000, that sum would not be distributed equally over these four lots so as to assess each of them $250, but the corner lot would be assessed 50 per cent., or $500, and the second, 25 per cent., or $250, the third, 15 per cent., or $150, and the fourth, 10 per cent., or $100; or where these exact proportions were not used, other percentages were adopted for the distribution among the several lots, varying with the distance of the lots from the corner. The assessments complained of, as well as all other assessments made thereafter, were made in accordance with this plan, although the city engineer, who was ex officio a member of the board of special assessors, testified that the plan was merely used as a guide in aid of their discretion and not as binding their judgment.

Complainants contend (1) that the assessments were void because made according to a fixed and arbitrary plan and not according to benefits as directed by the council;

“ Second. The action of the council in fixing this district was without jurisdiction and void for the reason that when this question was properly before the council in May, 1907, the whole matter was dropped and nothing further was done until July 20, 1909, at which time the district was fixed without a new notice being given.
“Third. The action of the council on September 7, 1909, was illegal in that it made (1) an entirely new assessment roll so far as amounts were concerned while its rights in this respect were limited to correcting the roll as to assessment or description of property, or (2) referring it back to the board for revision, or (3) annulling or ordering a new roll.”

We consider the third point first. 1 Oomp. Laws, §§ 3193, 3198, 3200, provide:

“ There shall be a board of special assessors in every city, consisting of the city surveyor, and two other members, who shall be freeholders and electors in the city, to be appointed by the mayor, by and with the consent of the council. Their compensation shall be prescribed by the council. Special assessments authorized by this act shall be made by such board. * * *
“ When any special assessment is to be made pro rata upon the lots and premises in any special district, according to frontage or benefits, the council shall, by resolution, direct the same to be made by the board of assessors; and shall state therein the amount to be assessed and whether according to frontage or benefits; and describe or designate the lots and premises or locality constituting the district to be assessed.
“ * * * If the assessment is directed to be according to benefits, they shall assess upon each lot such relative portion of the whole sum to be levied as shall be proportionate to the estimated benefit resulting to such lot from the improvement. When the board shall have completed the assessment they shall report the same to the council; such report to be signed by at least two of the assessors, may be in the form of a certificate, indorsed on the assessment roll, as follows: ”

Section 3204 requires notice of the filing of the special assessment roll to be given and of the meeting of the council to consider objections thereto.

Section 3205 provides:

“At the time and place appointed for the purpose, as aforesaid, the council and board of assessors shall meet and there, or at some adjourned meeting, review the assessment and shall hear any objections to any assessment which may be made by any person deeming himself aggrieved thereby, and the council may correct said roll as to any assessment, or description of premises, appearing therein, and may confirm it as reported, or as corrected; or they may refer the assessment back to the board for revision; or annul it and direct a new assessment; in which case the same proceedings shall be had as in respect to the previous assessment. When a special assessment shall be confirmed, the city clerk shall make an indorsement upon the roll showing the date of confirmation.”

In the instant case, Mr. Moe, a member of the board of special assessors, prepared the assessment roll, and under the heading “Amount Assessed ” stated the amount to be assessed against each lot, according to his judgment of the benefit to such lot, and left it with the city clerk for consideration by the other assessors. On August 3, 1909, a motion was made and adopted that “the special assessment rolls for Langley and Sinclair streets be referred back to the board of special assessors for corrections, as only one of the special assessors had signed said roll.” After the roll was referred back to the board of assessors, it was signed by Mr. Moe and Mr. Folio and filed. Later, Mr. Brotherton, the city engineer, signed it. Mr. Moe and Mr. Brotherton disagreed as to the method to be pursued in assessing the benefits, and after the roll was referred back to the board Mr. Moe put down in pencil under the heading “ Remarks ” the amounts according to Mr. Brotherton’s method of arriving at the benefits. Mr. Moe testified that he made these figures “ to help the council out, if they wanted it; but X understood in the first place it was referred back to me on account of it wasn’t signed by more than one. Of course X didn’t want to change my figures. X thought it was right, the first one I had.”

At the meeting of the council on September 7, 1909, the following proceedings were taken:

“On motion of Aid. Valentine supported by Aid. St. Jacques a recess of ten minutes was taken in which the assessment rolls of Langley St. and Sinclair St. were reviewed. After the adjournment Mayor Greenhoot called the meeting to order. Aid. St. Jacques supported by Aid. McOoll moved the adoption of the following resolution : Resolved, That the special assessment roll for the grading, paving, curbing, and draining of Langley St. from the east line of Stephenson Ave. to the west line of Charlotte St. be reviewed and revised by this council by changing the assessment of each piece and parcel of land described on said roll in accordance with the amounts set opposite each description on said roll in pencil in column headed ‘ Remarks,’ and the city clerk is hereby instructed forthwith to enter said amounts in column headed ‘ The amounts assessed as confirmed by council.’ The resolution was adopted by the following vote.”

The city clerk having complied with the instructions, the assessment roll was confirmed “as corrected.” When the council took up the consideration of the assessment roll as signed by the entire board of assessors it is clear that the amounts assessed therein were those set down by Mr. Moe in the first instance, and it is equally clear that the council changed the assessment of every parcel of land to correspond with the pencil memoranda. In doing this we think the council exceeded its powers. The only power granted to the council to itself alter the roll in anywise is by way of correcting it “ as to any assessment or description of premises appearing therein.” A revision of the roll or a new roll must be made by the board of assessors. The provisions as to the revision and annullment of the roll imply that the corrections to be made by the common council are less extensive and relate to corrections of mathematical errors in computing amounts or errors in the description of property. In view of our conclusion, it becomes unnecessary to consider the other interesting questions discussed in the briefs of counsel.

The decree is reversed, and a decree may be entered quashing the proceedings as to complainants, with costs to complainants.

McAlvay, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
      In re DOUGHERTY’S ESTATE.
    1. Wills — Attestation—Witnesses.
    It is a sufficient attestation of a holographic will, that the witnesses signed the instrument at the request of testator in his presence, after his declaration that it was his will, though without seeing his signature.
    2. Same — Evidence—Presumptions—Execution.
    Erom the fact that the will was written by testator, was signed when found, was in testator’s desk in an envelope addressed in his writing, from the fact that he requested the witnesses to sign it and acknowledged it as his will, being in his right mind, etc., a presumption arose that he had signed the testament before the witnesses subscribed their names.
    3. Same — Directing Verdict — Execution.
    The court properly submitted to the jury the question whether the will was signed by testator at the time he asked the witnesses to attest it.
    Error to Ionia; Sessions, J., presiding.
    Submitted November 15,1911.
    (Docket No. 121.)
    Decided January 23, 1912.
    Lois J. Dougherty presented for probate an instrument purporting to be the will of John R. Dougherty, deceased. It was admitted to probate by the probate court, and Hiram Crandall and other contestants appealed to the circuit court. Judgment for proponent, and contestants bring error.
    Affirmed.

      Locke & Sheldon and E. A. Hawley, for appellants.

      Scully & Davis, for appellees.
   Stone, J.

This case originated in the probate court of Ionia county, in the matter of the probate of the last will and testament of John R. Dougherty, deceased.

John R. Dougherty died June 1, 1910, at the age of 67 years. On June 6, 1910, his widow, Lois J. Dougherty, petitioned for the admission to probate of a paper in writing as his last will and testament. This paper writing consisted of two similar sheets of ruled paper, one side only of which sheets was written on. With the exception of the names' of the witnesses, all of the writing upon the paper was in the handwriting of John R. Dougherty. This writing was found by Mrs. Dougherty on the Monday following his death in a drawer in what had been his desk. The drawer in which it was found was not locked. It was inclosed in an unsealed envelope, worn upon the edges, and addressed: “Mrs. Lois J. Dougherty, Lyons, Michigan. Not to be opened until my death. John R. Dougherty.” Mr. Dougherty had never told his wife that he had made a will, and she had never seen the envelope or its contents until after his death. The handwriting of the directions upon the envelope was that of John R. Dougherty.

The probate court admitted the paper to probate as the last will and testament of John R. Dougherty. An appeal was taken by contestants to the circuit court, resulting in a verdict of the jury that the instrument in question was the last will and testament of John R. Dougherty. In this paper, the attestation clause followed the substance of the will, without signature or space for signature between. The signature of John R. Dougherty appeared near the bottom of the last sheet of the paper, after the attestation clause, and to the right and slightly above the signatures of the witnesses. The contestants are the nephews and nieces and one sister of the deceased.

Objection was made to the probate of the will, on the ground that the will was not properly executed, and in accordance with the statute. At the trial the witnesses to the will, Howard A. Ranger and Walter H. Ranger, were sworn, and also Mrs. Dougherty. The contestants offered no proof, and, when proponents closed their evidence, moved the court to direct a verdict in favor of contestants, on the ground that the evidence did not show the will to have been properly executed in accordance with the terms of the statute. This motion was overruled, and the court submitted to the jury the question whether Mr. Dougherty had signed the paper purporting to be his last will and testament at the time he requested the witnesses to sign as such.

There is no material difference in the testimony of the two subscribing witnesses as to what was said and done at the time they wrote their names upon the paper. The witnesses were old acquaintances of Mr. Dougherty. They testify, in substance, that on March 18, 1902, Mr. Dougherty came into their store (they being together in the back part of the store), and said:

“ I have made my will. I have drawn it myself. I want you to witness it, and [with an oath] I want you to see I am in my right mind.”

No other words were spoken by Mr. Dougherty while he was there. He placed the paper upon the desk, either rolled or folded, so that no writing whatever was seen, and he showed them where to sign their names. The witnesses were examined and cross-examined at great length as to the appearance of the paper, and as to other writing being in view when they signed as witnesses.

The substance of their testimony is that they saw no signature or writing. They describe the way in which the paper was folded or rolled, and testify that, had there been any writing in sight, it was their judgment that they would have seen it. When the paper was produced and offered in evidence, the word “ witnesses ” appeared below the signatures of the witnesses, and near the bottom edge of the paper. The witnesses were unable to testify whether or not that word was there when they signed, they both testify that they did not see or notice it, but that it might have been covered by their hands in signing; and the same is true as to a bracket at the right of the signatures of the witnesses. Counsel in their statement of facts have set forth many other things that were not said and done, but the foregoing is the substance of what was said and done as testified to by the subscribing witnesses, both of whom are positive as to the genuineness of their own signatures, and that the entire remainder of the paper as produced was in the handwriting of John R. Dougherty, deceased. It does distinctly appear that the attestation clause was not read or shown to either of the witnesses.

The charge of the court is sufficiently set forth in the' assignments of error. The first two assignments of error are to the effect that the court erred in overruling contestants’ motion to direct a verdict that said instrument was not the last will and testament of John R. Dougherty, deceased, and in not directing such verdict. The third assignment of error is that the court erred in instructing the jury as follows:

‘ ‘ It is sufficient to say to you that the requirements of the law in this instance have been complied with and have been satisfied, if John R. Dougherty had signed this instrument at the time he presented it to the witnesses, the Rangers, and requested them to sign it as witnesses.”

The fourth assignment of error is to the effect that the court erred in instructing the jury as follows:

“So that is a question for you to determine. At the time that John R. Dougherty presented this instrument in question to Howard and Walter Ranger, and requested them to witness it, had he [John R. Dougherty] then signed it? Was his signature affixed to the instrument at the time? If it was, this is a valid will.”

The fifth assignment of error is to the effect that the court erred in instructing the jury as follows:

“ It does not make any difference whether the witnesses Ranger saw the signature or not. If, in fact, the signature, at the time they signed the will, was affixed to the instrument, it is a valid will, and it is the last will and testament of John R. Dougherty. If the signature of John R. Dougherty was not affixed to the instrument at that time, it is not a valid will, and it is not the last will and testament of John R. Dougherty.”

The sixth assignment of error is that the court erred in instructing the jury as follows:

“ The fact that this instrument is in the handwriting of John R. Dougherty, and that his signature is affixed thereto, and the further fact that he presented these papers to the witnesses Ranger, and informed them that he had drawn his will, made his will, and requested them to witness it, raises a presumption that his signature was affixed to that instrument before the witnesses signed their names to the instrument. That presumption is not conclusive, and it may be rebutted, may be overcome, by other proof in the case. In determining that question, it will be your duty to take into consideration that presumption, which is a presumption of law, and also to take into consideration the other facts that have been testified to as occurring upon that occasion.”

Error is claimed in the seventh assignment that the court erred in instructing the jury as follows:

“If you find from the evidence in the case that John R. Dougherty’s signature was affixed to this instrument before the instrument was presented by him to the witnesses Ranger for their signature, it will be your duty to find for the proponents.”

Considering the first and second assignments of error together, contestants claim that the proof did not establish the execution of the paper as a will, and reference is made to our statute. It is urged that the evidence did not show any execution of the paper, as the witnesses did not see Mr. Dougherty’s signature; that he did not say he had signed it, and he did not sign it in their presence. It is claimed that he did not in any manner indicate that he had signed the paper, and, this being true, these witnesses did not attest the execution of the paper. Counsel upon both sides agree that the paper could not be a valid will unless it was in fact signed by the testator at the time it was presented to the witnesses for their signatures.

Is the fact that this was a holographic will or paper of any importance here ? We cannot undertake to review the numerous authorities cited by counsel in their exhaustive briefs.

In the recent case of In re Horn’s Estate, 161 Mich. 20, our statute and the English statutes, relating to wills, are referred to and commented upon. In Schouler on Wills (3d Ed.), § 319, that author, after referring to the' English statutes, being the modern wills act (1 Vict. chap. 36, § 9), and the statute of frauds (29 Car. II, chap. 3), says:

“A comparison of the language used in these two great enactments will show various important points of difference between them. * * * In the several American States will be found local statutes with corresponding differences of detail, so that no single principle can be laid down to embrace the entire doctrine. * * * In some States, as under the old statute of frauds, they are to ‘ attest and subscribe ’ the will, and nothing is said about requiring a testator to ‘make or acknowledge’ the will in their presence; nor do all States insist that all the witnesses shall attest and subscribe in the presence of one another, but merely in the presence of the testator, another feature copied from the earlier English enactment. In fact, our American wills acts appear based in expression less upon the act of Victoria than that of Charles II; yet they vary quite as widely in details as do these English enactments, and the latest tendency conforms more to the statute of Victoria, or that of the New York code, which is somewhat similar.”

Section 380:

“ Statutes which relate to the duty of subscribing wills couple usually the words ‘attest’ and * subscribe;’and these words should be distinguished. ‘ To attest the publication of a paper as a last will,’ observed Robertson, C. J., of Kentucky, in 1840, ‘and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. Attestation is the act of the senses; subscription is the act of the hand; the one is mental, the other mechanical; and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will, is only to write on the same paper the names of the witnesses for the sole purpose of identification. There may be a perfect attestation in fact without subscription.’ We have seen that a legal publication is now usually dispensed with, except that the testator must either sign in the presence of the subscribing witnesses, or make due acknowledgment instead; but in knowing and certifying whatever is thus made requisite consists still the attestation of the witness as distinguished from the manual act of putting his name to the paper. By attestation we signify the act of witnessing in its full legal import; by subscription, the signing of one’s name, which implies that this act has been performed.”

Section 321:

“ Next, we consider the signing or acknowledging of the will before the witnesses. Upon this point is found a difference of statute expression, and hence of statute construction, which is of especial consequence where the testator signs his will, and then seeks out witnesses after-wards. The old statute of frauds required witnesses to attest and subscribe the will; which was interpreted to mean that the testator was not obliged to sign in the presence of the witnesses, provided he made before them a due acknowledgment of the instrument; and, furthermore, that a due acknowledgment in fact did not necessitate the acknowledging in words that the instrument was his will, nor apprising the witnesses in any way of the nature or contents of the instrument they were called upon to attest. A testator’s declaration before three witnesses that the instrument produced and already signed by him was his will, was equivalent to signing it before them. And more than this, though he merely asked the witnesses to sign, as such, the paper he produced which bore his signature, and they did so, neither seeing his signature nor knowing what was the nature of the instrument thus attested, the statute nevertheless was satisfied; supposing, of course, that this whole transaction imparted consistently the full testamentary intent on his part.”

Section 822:

“ It is possible that the testator’s signature was on the will, where the witnesses might have seen it, but inadvertently did not; it is possible, too, that the precise circumstances of attestation may have faded from the recollection of a witness by the time the will is presented for probate. Where all appears regular on the face of the will, a due attestation should be presumed; and direct evidence that the name of the testator was visible on the face of the will when it was produced for witnesses to sign is certainly not necessary. The result of the cases under the statute of Victoria, where acknowledging and not signing in person is relied upon, or, in other words, that the testator’s signature was already upon the will when it was produced to the witnesses for their attestation, appears to be this: That, in the absence of direct evidence on the point one way or the other, the court may, independently of any positive evidence, investigate the circumstances of the case, and may form its own opinion from these circumstances, and from the appearance of the document itself, whether the name of the testator was or was not upon it (or rather might not have been seen), at the time of the attestation.”

In 1 Jarman on Wills (5th Ed.), p. 212, that author, referring to the case of Gryle v. Gryle, 2 Atk. 176, says:

“ Lord Hardwicke doubted whether it was enough for the testator to say before the witness, ‘This is my will,’ without a resealing, or unless the testator had declared it to be his handwriting; but the doubt appears to have vanished in Ellis v. Smith, 1 Ves. Jr. 11, where the question is stated in general terms to be, whether a testator’s declaration before three witnesses, that it is his will, was equivalent to signing; and the conclusion, therefore, of the judges who decided that case in favor of the validity of the will, amounted to an affirmation of the sufficiency of such a declaration.
“Later adjudications placed the point beyond all doubt by going much farther; these cases having decided that where a testator, who had previously signed his will, merely requested the witnesses to subscribe the memorandum of attestation, though they neither saw his signature, nor were made acquainted with the nature of the instrument they attested, the will, nevertheless, was duly executed according to the statute. ‘When we find,’ said Tindal, C. J., in British Museum v. White, 3 M. & Payne, 689, 6 Bing. 310, ‘ the testator knew this instrument to be his will; that he produced it to the three persons, and asked them to sign the same; that he intended them to sign it as witnesses; that they subscribed their names in his presence, and returned the same identical instrument to him, we think the testator did acknowledge in fact, though not in words, to the three witnesses that the will was his ’ ” — citing Roberts v. Welch, 46 Vt. 164.

An examination of White v. British Museum, supra, will show that the witnesses did not see the signature of the testator upon the paper, and did not know whether it was there at the time they signed it.

Following these authorities, the Supreme Judicial Court of Massachusetts, in Ela v. Edwards, 16 Gray (Mass.), 91, decided in 1860, passed upon a state of facts somewhat similar to the instant case. The following proof was offered of the execution of a will entirely in the handwriting of the testatrix and signed by her, to which three other persons had signed their names in the usual place for the signatures of witnesses, but without any attestation clause. The person whose name came first testified as follows:

“ She passed me a package of papers; asked me to sign my name as a witness; told me where to sign, on the left side.”

The person whose name was last testified:

She said she wanted me to witness a document; that she had been making a little disposition of her effects, and would like to have me sign it as a witness. She put her finger to the line where she wished me to sign.”

It appeared that the person whose name was signed between the names of those two was out of the jurisdiction of the court, but had resided in the immediate neighborhood of the testatrix at the time when the will purported to have been executed, and it was also proved that the signature was genuine. Held, that this was sufficient proof, in the- absence of any evidence of fraud, of an execution of the will in conformity with the requirements of the statute.

Justice Dewey, at page 93 of 16 Gray (Mass.), says:

“ But the case of Hogan v. Qrosvenor, 10 Mete. 56 [43 Am. Dec. 414], in reference to one of the attesting witnesses to that will, is so exceedingly like the present in regard to the question of attestation by two of the witnesses to the present will, that it is proper to refer to it more particularly. In that, as in the present case, the will was in the handwriting of the testator. The testator there took the paper from his desk, asked the witness to sign it, and pointed out the place where he wished him to put his name. The witness did so, not knowing what the paper was, and not noticing the signature of the testator on the paper. This was held a good attestation of the will. * * . * As was said by the court, in Dewey v. Dewey, 1 Metc. 354 [35 Am. Dec. 367]:
“ ‘It can hardly be supposed that the testator, who was by his own active agency procuring the authentication of the instrument by the requisite witnesses, would have omitted the first steps necessary to its due execution, viz., the signature by himself.’”

We cannot, without prolixity, further quote from this leading case.

In Rood on Wills, at section 272, that author says, after referring to the statute of frauds:

“Remembering that nothing is necessary beyond what the statutes require, except testamentary capacity and intention, it is pertinent to ask what is necessary, by reason of the requirement that the will be attested. Evidently ‘ attest ’ and ‘ subscribe ’ were used by the lawmakers to indicate different things. Both are required of witnesses. ‘ Attest’ ordinarily means to bear witness; to take notice. * * * To attest as a witness to a will is therefore to obsérve, perceive, discern, and take notice of what is done in executing the will. The witness subscribes with his hand; he attests with his eyes and ears.”

Section 280:

“Lastly, it was settled that attestation under the statute of frauds did not require the witnesses to see the testator’s signature on the will, nor know that it had been signed by him. [Referring to the English cases already cited.] Wherever the statute does not require witnesses to attest the signature, but only to attest the will, their attention need not be called to the signature. [Citing cases.] It is no objection that the testator so concealed the signature that the witnesses could not see it. [Citing Gould v. Theological Seminary, 189 Ill. 282 (59 N. E. 536.)] But if it was not in fact signed, there was no will to attest.”

The author cites in a note the case holding the contrary doctrine — Tobin v. Haack, 72 Minn. 101 (81 N. W. 758), referred to and quoted from by contestants.

At section 282, the same author says:

“It may be admitted that if witnesses subscribe as such at the request of the testator, express or implied, there is a sufficient attestation without anything more; but this is only because the express or implied request by the testator to them to so subscribe necessarily includes in itself an admission to them that the instrument is his, and accepted and approved. Therefore, attesting a will under the statute of frauds, and under the statutes of most of the States, consists of learning from the testator in some way that the particular writing witnessed is finally approved by him” — citing In re Claflin, 75 Vt. 19 (52 Atl. 1053, 58 L. R. A. 261); In re Kohley, 200 Ill. 189 (65 N. E. 699).

See, also, section 283, and cases cited. We refer to, as supporting this doctrine, Gould v. Theological Seminary, supra; Hobart v. Hobart, 154 Ill. 618, 619 (39 N. E. 581, 45 Am. St. Rep. 151). We cannot quote from these cases at length.

Counsel for contestants cite the case of Luper v. Werts, 19 Or. 122 (23 Pac. 850), in support of their position. A careful reading of this opinion will disclose that in its facts it is not controlling of the instant case. In the opinion, this language is used:

“If it appeared from the evidence bearing upon the point involved that the decedent acknowledged or adopted the signature to the instrument as his own, in the presence of the witness Peyser, either from the testimony of the latter or from that of any other witness, or that, by any sign, motion, conduct, or attending circumstance, he gave said witness to understand that he had already subscribed the instrument, I should not hesitate to hold, as I am at present advised, that it was a sufficient acknowledgment; but I fail to discover any evidence which would warrant such a conclusion. The evidence shows that the decedent, while the said witness was subscribing his name to the instrument, maintained ‘mere silence,’ which is not enough. Haynes v. Haynes, supra [83 Ohio St. 598, 31 Am. Rep. 579]. If the decedent had said to the witness Peyser, ‘ This is my will,’ or if the witness Beard had said, in the presence of the decedent and Peyser: ‘ This is the will of Mr. Werts; he has signed it, and®wants you to subscribe you name to it as a witness’ — or used any language of that import, the contention of the proponent’s counsel might have been tenable.”

In our opinion, the trial judge did not err in declining to direct a verdict for the' contestants.

The remaining assignments of error are argued together by contestants, and they claim that from the testimony there was no presumption that decedent had signed the will; that if such presumption could be said to have arisen it was rebutted; and that the attestation clause raised no presumption, for the will was not signed when it was written. If contestants mean by this last claim that the will was not signed on the occasion of the writing of the attestation clause, we would say that the claim is mere assumption. We think that the fact that this was a holographic will is of some importance. The presumption that it was signed when written is, we think, greater than would have been the case, had the will been prepared by another person, as a mere unfinished paper. The jury saw the paper. It is claimed by proponents that it bore intrinsic evidence of having been written and signed with the same pen and ink, and at the same time. These were matters for the jury. In aid of the presumption that the will was signed when presented to the witnesses, are the following facts: It was signed when found. It was found in the drawer of testator’s desk, in an envelope bearing directions in the handwriting of testator. The entire will is in his handwriting, including the attestation clause. His own declaration that he had made his will. He had drawn it himself. He wanted the witnesses to witness it. He was in his right mind. He produced it from his own custody; He would not be presumed to perform an idle act. He was unattended and competent and rational. He was at the time giving his business matters attention. The paper was folded. The space he pointed out where he asked the witnesses to sign was' small. The manner of folding the paper was such that one sheet covered the other, except the space where the witnesses signed, so that no signature of testator was seen upon the paper. The witnesses could not swear that the signature was not upon the paper. There was no fraud claimed in the transaction.

Will the facts that the witnesses did not see the testator sign his name, and did not see his name on the paper, and that he did not expressly say to them that he had signed it, as matter of law, overcome the presumption that it was signed when presented to the witnesses, under the circumstances? We think not.

We find no error in the charge of the court. We find nothing in the decisions of this court, cited by counsel, which is in conflict with the conclusion we have reached.

The judgment of the circuit court is affirmed.

McAlvay, Blair, Ostrander, and Bird, JJ., concurred.


text:
    RILEY v. ROACH.
    1. Master and Servant — Automobiles — Personal Injuries — Negligence.
    For negligent injuries caused by defendants chauffeur, who was directed by his employer not to take the automobile out while he was away from home unless directed by his wife, but who disobeyed instructions and took the car out with several guests that were staying at the house, defendant was not liable, under a declaration charging that the chauffeur acted with the knowledge and consent of defendant.

    2. Evidence — Hearsay—Res Gest^j — Master and Servant.
    Statements made by defendant’s chauffeur, while he was disobeying defendant’s instructions, and was not engaged in the business of his employer, were hearsay and inadmissible.

      Error to Oceana; Sessions, J.
    Submitted November 15, 1911.
    (Docket No. 127.)
    Decided January 23, 1912.
    Case by Luke Riley against William Roach for per» sonal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Gross, Vanderwerp, Foote & Boss and V. V. Barnes, for appellant.

      Bufus F. Sheets, Fred J. Bussell, G. O. Smedley, and F. E. Wetmore, for appellee.

       It will be noted that the injury complained of occurred before the “motor vehicle law” (Act No. 318, Pub. Acts 1909) went into effect. — Reporter.
      Liability of owner of automobile for injuries caused thereby while being used by a servant or a third person for his business or pleasure, see notes in 9 L. R. A. (N. S.) 1033; 14 L. R. A. (N. S.) 216; 21 L. R. A. (N. S.) 93; 26 L. R. A. (N. S.) 382.

   Stone, J.

This is an action on the case to recover damages for an injury received by the plaintiff on July 28, 1909, by reason of an alleged collision of defendant’s automobile with the plaintiff’s buggy, in which he was riding on a highway.

The declaration consists of two counts. In the first count the plaintiff alleges as follows:

“And which automobile of said defendant was then and there under the care, direction, and supervision of a certain then servant, to wit, one Hall, a chauffeur, of the said defendant, who was then and there driving the same in and along the highways in said county and State by the. order, direction and knowledge of said defendant, and in the prosecution of his business aforesaid

In the second count it is alleged :

“And which automobile of said defendant was then and there under the care, direction, and supervision of a certain then servant, to wit, one Hall, a chauffeur, of the said defendant, who was then and there driving the same along the highways in said county of Oceana with the consbnt of said defendant.”

Upon the trial the following undisputed facts were shown: The defendant was the owner of a valuable automobile, which he bought the season before the accident. The defendant was called by the plaintiff for cross-examination under the statute. After testifying that the chauffeur, Hall, had been in his employ nine days when the accident occurred, the following was his testimony:

“Q. Did you engage Mr. Hall to do any work, other than to operate your automobile ?
“A. No, sir; I did not. Operate and keep it clean, keep it in repair, you understand — the general work of a chauffeur. He came to me well recommended. I was in the Upper Peninsula of Michigan on July 28, 1909. I left Hart the night of Sunday, July 25, 1909. I know a Mrs. Blake who resides in Albion. I don’t know her given name. She is in no way related to me or to my wife. She was not in Hart when I left for the Upper Peninsula. I understood that she was at my place while I was gone.
“Q. As a guest?
“A. Well, she was there, and my wife was away from home, Mrs. Roach and I was away from home, and she was gone when I got back, and I understand she came to visit Mrs Nntt
“Q. Who is Mrs. Nott?
“A. Mrs. Nott is my brother-in-law’s wife, Mr. Nott, who was an Albion lady before her marriage.
“Q. Where was she living at that time ?
“A. She was living in the village of Hart.
“Q. Occupying your residence ?
“A. Oh, no.
“Q. Did your wife accompany you on your trip to the Upper Peninsula?
“A. No, sir.
“Q. Did you leave anybody in charge of your house while you were gone ?
“A. We did.
“Q. Who?
“A. Miss Harriett Nott.
“Q. That is not the Mrs. Nott that you speak of ?
“A. No, no. This is a ‘ Miss;’ I didn’t say Mrs.’
“Q. Who is Miss Harriett Nott ?
“A. My wife’s sister.
”Q. She was given general charge of the house, was she, while you were gone ?
“A. She was; yes, sir.
“Q. When did your wife leave Hart ?
“A. Some two or three weeks before.
“Q. That is before you left ?
“A. Before I left; yes, sir. I can’t just tell you the exact date, some two or three weeks.
“Q. I am not particular about that. But you were both gone ?
“A. Yes, sir.
“Q. And you left your residence in charge of Miss Harriett Nott, and were there any guests at your house at the time you left ?
“A. I think my wife’s sister was visiting between Mr. B. C. Nott’s and my wife’s_house, our home.
“Q. What is your wife’s sister’s name ?
“A. Mrs. Royce.
“Q. Is that Mrs. Carrie Ad'elle, or Adellia, do you pronounce it, Roycé ?
“A. That is the lady.
“Q. Any other guests there ?
“Jr. Not that I remember of. We had guests coming and going all the time; men coming to see me on business that I always entertained at my home.
“Q. Your wife’s sister was not there in the same capacity as men who drop in to see you on business, and that you entertain, was she ?
“A. No, sir. She was there spending her summer. She came to Hart to spend her summer vacation. She was spending it between our home and Mr. Nott’s home.
“Q. I suppose you did the best you could to entertain her, didn’t you ?
“A. Why, we didn’t — she entertained herself.
“Q. You furnished an automobile for her use, if she desired it, didn’t you ?
“A. No, sir.
“Q. Never?
“A. No, sir.
“ Q. Up to the time you left, hadn’t she ridden in your automobile ?
“A. No, sir.
“Q. Why was that?
“A. Well, one reason was that we hadn’t a chauffeur for some considerable time; hadn’t had anybody to drive the car. I don’t know how to drive a car myself, and the time she come to visit us, up to the time that Mr. Hall came, we hadn’t had anybody to drive the car.
“Q. You made quick use of him when you got him, didn’t you ?
"A. Why, no. I didn’t make particularly quick use of him.
“Q. What use did you make of that automobile after Mr. Leslie Hall came there ?
“A. My instructions to Mr. Hall—
“ Q. (Interrupting) I am not asking you about your instructions. Read the question.
“A. I think I had it out twice.
“Q. Who had it?
“A. Leslie Hall and I.
“Q. Now, your purpose in getting Leslie Hall there as chauffeur just before your departure was for the purpose of having somebody to operate that automobile for the benefit of anybody that might want to use it there at the house, didn’t you ?
“A. Oh, no; I beg your pardon.
“Q. Nothing of that sort?
“A. Nothing of that sort.
“Q. For what purpose then?
“A. Please state your question again.
“Q. The stenographer will read it. (Last question read.)
“A. No, sir. My purpose of employing Leslie Hall was for the purpose of operating my automobile at such times as myself and my wife might want it.
“Q. You mean by that, that you didn’t expect he would take one of your guests in your automobile — your wife’s sister ?
“A. I me,ant by that I do not take my automobile out without myself or Mrs. Roach goes with it.
“Q. Has that always been true ?
“A. Up to that time; yes, sir.
“Q. How has it been since that time ?
Mr. Smedley: I object to that as incompetent.
“Mr. Wetmore: And immaterial.
The Court: I think you may answer.
“A. Practically the same.
“Q. What did you use your automobile for?
“A. I use my automobile for the pleasure of myself and wife and invited friends, when we take them to ride with us.
“Q. For any purpose connected with the factory ?
“A. I have used my automobile when I wanted to for my own individual use, whether it was fot the factory, or whether it was my personal use. If I was going — it became necessary for me to go to Shelby or Muskegon, the automobile is my individual property; and if I chose to ride in the automobile, rather than to go in the train, I did as I thought best about the matter.
”Q. In whose charge did you leave this automobile when you left for the North ?
‘'A. I left it in Leslie Hall’s charge, if anybody’s.
“Q. There isn’t any question about it, is there, but what you left it in his charge.
“A. I left it in his charge to do certain things with it. His instructions were complete.
“Q. How soon did you return after July 28th ?
“A. I got back to Hart some time after 5 o’clock on the following Thursday. That would be the day following the accident.
“Q. To what use did Mr. Hall put your automobile while you were away, other than taking, the trip on the occasion that Mr. Biley was injured.
“A. I wired — I called up by telephone — to have Leslie Hall take my automobile and come to Ludington, and meet me at Ludington. ,
“Q. When did you do that ?
“A. On the morning of the 29th. I was gone from home Monday, Tuesday, Wednesday, and almost all Thursday. I left Sunday night on the evening train for Chicago.
“Q. What was done with that automobile on Monday and Tuesday, or either of those days F
“A. To my best knowledge, there wasn’t anything done with it.
“Q. You happen to know about the use on Wednesday because of this accident, do you ?
“A. Yes, sir. I first learned of what had occurred after the Hart plant had shut down on Thursday; it was 8 or 9 or 10 o’clock, or possibly 11 o’clock. I got the word when I was driving between here and Pentwater with Mr. Daggett, who is one of our stockholders, associated with me in business and an officer of the company at the present time; he told me about it. He wasn’t an officer in the company at that time.
“Q. How were you paying Mr. Leslie Hall?
“A. Paying him by the week.
“Q. Did you pay him for the week that this accident occurred ?
“A. Yes, sir.
“Q. Continued him in your employ ?
“A. Yes, sir.
“Q. He is now in your employ ?
“A. Yes, sir.
“Q. In the same capacity ?
“A. Yes, sir.”

Examination by Mr. Smedley:

“ Just before I employed Leslie Hall as my chauffeur, my machine was out of commission.
“Q. And what did you have to do in order to fix it so that it would run ?
“A. Well, now, I am not very familiar with automobile terms; I don’t run a car myself, because I am too busy a man. There was two little bearings in the hind axle, or in the hind mechanism, that we needed to get before we could run the car, because the bearings in that were worn out, or become deficient. I ordered those bearings, and they came, but they were the wrong size. I ordered them again, and they came, and they were the wrong size again, and I ordered them again, and they were the wrong size, and then I gathered up the old bearings and sent them down to Chicopee Falls, Mass., and got the right bearings. The correspondence in my office will show that it was their fault and not mine.
“Q. Was this after you employed Mr. Hail P
“A. This was previous to my employing Mr. Hall.
“Q. What, if any, work did he do in the machine ?
“A. He put those bearings in, and went over the car in a general way; went over it all through, took the rear axle down — I am not familiar with automobile terms.
“Q. After he got it fixed, did you use it before you went to the Upper Peninsula ?
“A. I did, I think, twice; Leslie Hall was with me. Those trips were to test the machine and see if it was in running order. Before I went away, I gave him some instructions. My instructions to him were to go all over the car, be as careful as he could with it, see that the machinery was all in working order, scour up the brass, brush out the top, clean it all up in good shape, and not take it out until my return, unless Mrs. Roach or I called for it. Mrs. Roach at that time was ill over to Mr. White’s cottage on the beach, under a doctor’s care. I think that beach is called Oceana Beach. It is eight miles from Hart by road. Mrs. Roach had been there probably three weeks before I employed Mr. Hall. She was still out there in the cottage when I got back. She was very nervous, and I think the doctor called it nervous prostration.
“Q. Did she use the automobile during that time that you were away ?
“A. Oh, no; the automobile was out of commission.
“Q. It was in commission before you went away ?
“A. In commission before I went away; yes, sir.
“Q. While you were gone to the Upper Peninsula, did your wife use that ?
“A. No, sir.
“Q. Who was staying with her out there to the beach ?
“A. Mrs. Daggett at that time, and a girl.
“Q. Were those two women alone ?
“A. With the exception of one young girl.
“Q. Who, if anybody, went out there nights to stay?
“A. Well, during her sojourn there, I either went out, or Mr. Daggett, or sometimes my brother-in-law, Mr. Nott, went out, if I had to be away from home.
“Q. How did they go and come.
“A. Sometimes we took Mr. Daggett’s car; sometimes we drove with a horse.
“Q. And when you went to the Upper Peninsula at this particular time, who went out there nights to stay ?
“A. Well, either Mr. Daggett or Mr. Nott was to go out there; they promised me faithfully when I went away that one of them would go every night, and I think it was Mr. Daggett went.
“Q. Do you know who was out there Tuesday night ?
“A. No, sir.
“Q. Do you know what business this man Hall was on at the time he took out your car ?
“A. Yes, sir.
“Q. Did you or your wife give him any orders to take that machine out ?
“A. We did not.
“Q. When he took it out, was it without your knowledge and without your consent ?
“A. It was.
“Q. And contrary to your instructions?
“A. Yes, sir.
“Q. How long had he been in your employ when ycru gave him these instructions not to take the car out — clean it up, but not to take it out until you got back, unless your wife instructed him to ?
“A. Well, he came Monday on the train, and I think we got there — well, I can’t say just when it did get here; it got here some time in the forenoon, and that was the following Saturday night.
“ Q. And he had worked for you only five days ?
“Ü. That is the time; yes, sir.
Q. Now, why was it that you told him to clean it up, but not to take the car out until you got back unless your wife told him to ?
“A. Well, sir, from the fact that I had just gotten the young man, and from the fact that the car had been needing some repairs, and from the fact that it was good business, as any other good business man would do.
“ Q. How expensive a machine was that ?
“A. Thirty-five hundred dollars, besides about $300 of extra repairs, fixtures, extra fixtures that always go to the car — appurtenances that goes onto the car.
“Q. What was the total cost of the machine to you ?
“A. About $3,800. The car was a first-class equipped car.”

Recross-examination by Mr. Cross:

“Q. Yo.ur wife was stopping where, you say, at this time ?
“A. She was living over to Mr. White’s cottage on the beach.
“Q. How far from Hart?
“A. Why, it is eight miles; it is considered eight miles to Pentwater, and I guess, perhaps, it is a half or three-quarters of a mile over to the cottages. I couldn’t say just exactly; possibly more, possibly not so much.
“Q. Telephone communication between that cottage and your home ?
“A. No, sir; no telephone.”

Pursuant to the promise which had been made to defendant, Mr. Daggett, on the evening of July 27, 1909, in company with defendant’s sister-in-law, Miss Nott, who had charge of the Roach house, and one Carl Flood, went in Mr. Daggett’s automobile to the cottage at Oceana Beach, occupied by Mrs. Roach and' Mrs. Daggett. While making the return trip to Hart, the following morning, their supply of gasoline became exhausted, and left them stranded or stalled ” 3& miles north of Hart. Mr. Flood and Miss Nott were with Mr. Daggett. Mr. Flood was not a witness. As to what was done at this point appears by the testimony of Mr. Daggett, as follows:

“Q. Now, when you exhausted your supply of gasoline, what did you do to replenish it ?
“A. Why, we were right by Mr. Cox’s barn, and Mr. Flood was with me, and I says, ‘ Well ? ’ He says, ‘ We will see whether Mr. Cox has any or not.’ We met Mr. Cox at the barn; asked him if he had any gasoline. He said: ‘No; but Mike might have some at the Corner.’ And Mr. Flood said: ‘Well, we can get gasoline from Hart about as quick as we could get it from the Corner, a little over a half a mile away.’ ‘Well,’I says, ‘all right, then; you go and call Dikemanand have him bring us out some.’
“Q. Where was Miss Nott during this time P
“A. She was way back in the road, in the car.
“Q. Who is Dikeman ?
“A. Why, he is the man that does repairing here; he repaired my car several times.
“ Q. Who telephoned in ?
“A. Mr. Flood.
“Q. Do-you know to whom he telephoned ?
“A. I don’t, sir; I was not in the house.
“Q. Who came with the gasoline ?
“A. Why, Mr. Hall, Mr. Roach’s chauffeur.
“Q. Whose automobile did he have ?
“A. Mr. Roach’s automobile.
“Q. And who accompanied him on this trip out?
“A. The two ladies and a gentleman, Mrs. Royce, and the other two parties I had never seen before.
“Q. There was Mr. Hall and Mrs. Royce ?
“A. Mrs. Royce and the other two parties I had never seen before.
“Q. Mrs. Royce is a sister of Mrs. Roach ?
“A. Mrs. Roach’s sister; yes.
“Q. Was visiting there at the time ?
“A. Yes.
“Q. And there was another lady and gentleman ?
“A. Yes.
“ Q. That you were not acquainted with ?
“A. Not acquainted with at the time.
“Q. Did you make their acquaintance, so that you can tell us who they were ?
“A. Yes; I was introduced to them.
“Q. Who were they ?
“A. Mrs. Blake and her son.
“O. Do you know where they were visiting in Hart ?
“A. No; I don’t.”

Mr. Blake, whose deposition was taken, testified that he and his mother, in company with Mrs. Royce, with H.all as chauffeur, in response to a telephone message, left Hart with defendant’s automobile to take a can of gasoline to Mr. Daggett. The gasoline was furnished in this manner, and after replenishing his car Mr. Daggett, with Miss Nott and Mr. Flood, proceeded on their way to Hart. The chauffeur continued on in the opposite direction until he found a suitable place in which to turn around, which he did, and it was while returning to Hart that the collision occurred which is the subject-matter of this suit.

At the conclusion of plaintiff’s evidence, the trial court directed a verdict for the defendant, on the ground that the plaintiff had not made a case. In other words, the court held that at the time of the accident the chauffeur was not acting within the scope of his employment by defendant, but contrary to his directions, and was in fact performing a service for Mr. Daggett, and that the evidence did not warrant a submission of the case to the jury.

Verdict and judgment were entered for the defendant, and, after a motion for a new trial was denied, the plaintiff brought the case here upon writ of error, assigning as error that the trial court erred in directing a verdict for the defendant, and in refusing a new trial.

It is urged by appellant that it was not for the court to say, under all the evidence, that defendant’s chauffeur was not acting within the scope of his employment; and that the presumption arising from the attendant facts and circumstances was not so completely overcome by the testimony of the defendant as to warrant the court in determining this question.

The appellant relies largely upon the case of Moon v. Matthews, 227 Pa. 488 (76 Atl. 219, 29 L. R. A. [N S.] 856, 136 Am. St. Rep. 902). Counsel quote at length from this case, and claim that it is in its facts almost identical with the instant case. The headnote of that case is to the effect that the mere fact that a chauffeur, in taking -out his master’s automobile in obedience to a command of the master’s family, for the entertainment of friends and guests of the family, disobeys the master’s command not to take out the car, unless the master accompanies it, does not show that he is acting outside the scope of his employment, so as to relieve the master from liability for injury done by the negligent handling of the car.

That case also holds that the facts and circumstances at the time of an accident may raise a presumption that the regular chauffeur employed by the owner, and in charge, was acting within the scope of his employment. In that ■case it appeared that the owner had forbidden the chauffeur to take out the car, unless he (the owner) was with it, and that upon the night of the accident the car was taken out by the chauffeur, under the direction of the sister of the owner and defendant, who made her home with the defendant, and was regarded as a member of the family.

We think that case is readily distinguished from the instant case. Here, when the chauffeur, Hall, took the automobile out on the trip when the accident occurred, he had no orders to do so from defendant, defendant’s wife, or Miss Nott, who had been left in general charge of the house. No member of the family had given any orders to take it out. It was taken out without defendant’s knowledge or consent, either express or implied, and was contrary to his express instructions. From this record, we think that it appears uncontradicted that the chauffeur acted in direct violation of his instructions, and outside the scope of his employment. He was acting either upon his own motion, or was obeying the instructions of Mr. Flood, Mr. Daggett, or some one else, who had no authority to bind the defendant.

Counsel for appellant also cite and quote from Steffen v. McNaughton, 142 Wis. 49 (124 N. W. 1016, 26 L. R. A. [N. S.] 382). In that case it was held that a chauffeur, employed by the owner of an automobile to care for the machine and operate it at the request and direction of the owner, or any member of his family, and who is to go to his home for his midday meal, is not, when using the automobile to go to such meal, without the permission or knowledge of the owner, acting within the scope of his employment, so as to render the owner liable for his negligent act in injuring a pedestrian with the machine.. Counsel quote the following language from the opinion:

“The law governing the liability.of a master for the' acts of the servant in this class of cases is embodied in the following comprehensive statement:
“ ‘For all acts done by a servant in obedience to the express orders or direction of the master, or in the execution of the master’s, business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon, him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done,, the master is responsible.’ Ritchie v. Waller, 63 Conn. 160 [28 Atl. 29], 27 L. R. A. 161 [38 Am. St. Rep. 361].
“While the rule of such liability may readily be comprehended, its application to the varying facts in cases of this class is often attended with difficulty. The ultimate inquiry usually resolves itself into one of fact, under the particular evidential facts and circumstances of the case.”

We have examined .with care the authorities cited by appellant’s counsel, but are unable to agree with counsel as to their applicability. In order to render the cited cases applicable, counsel are forced to the position that the testimony shows conclusively that the chauffeur, Hall, on the day and at the time of the accident, was using the machine for the benefit of Mrs. Roach, as well as for the defendant, and that the machine was used for the guests of the family and those in charge of the household.

We think that this position is not warranted by the undisputed evidence in the case. We have already quoted from and called attention to the evidence, which shows conclusively, in so far as this record is concerned, that the chauffeur was not acting by authority of defendant, his wife, Miss Nott, or any member of the family, but against the positive and explicit instructions of the defendant. If it can be said that there is any presumption in such a case that the chauffeur was acting within the scope of his general employment, we think that in this case that presumption is completely overthrown by the uncontradicted evidence in the case. Upon the facts, it cannot be said that there is any conflict in the case. For that reason, the numerous Michigan cases cited by appellant’s counsel are not in point.

In the recent case of Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81), we discussed somewhat at length the rules of law applicable in cases of this kind, in this State, prior to the going into effect of Act No. 318 of the Public Acts of 1909. We there said that the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time, and in respect to the very transaction out of which the injury arose; and that the cases are controlled by the general rules of law governing the relation of master and servant, or principal and agent.

In addition to the authorities cited in Hartley v. Miller, supra, we call attention to the discussion of this subject in Berry on Law of Automobiles, §§ 135 to 145, and the many cases there cited; Huddy on Automobiles (2d Ed.), pp. 245 to 251, and cases cited.

The test of the liability of the master for his servant’s acts is whether the latter was at the time acting within the scope of his employment. The phrase “in the course or scope of his employment or authority,” when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business. It is not synonymous with “during the period covered by his employment.” We are of opinion that the trial judge did not err in directing a verdict for the defendant.

Error is also assigned because the court excluded evidence of the statements of the chauffeur, made on the occasion of the accident. The statements not being made by the chauffeur while engaged in the business of the defendant, but while he was violating the defendant’s express orders, he could not bind defendant by any of his acts or statements, and it was no part of the res gestee. Patterson v. Railway Co., 54 Mich. 91 (19 N. W. 761); Hall v. Murdock, 119 Mich. 389 (78 N. W. 329).

We find no error in the record, and the judgment of the circuit court is affirmed.

McAlvay, Blair, Ostrander, and Bird, JJ., concurred.


author: Blair, J.

text:
    PEOPLE v. SARTORI.
    1. Homicide — Evidence of Similar Acts — Res Gesta: — Murder.
    In a prosecution for murder, evidence showing that the son of the deceased victim was killed at the same time by having his throat cut was admissible.
    8. Same — Materiality.
    Whether or not the evidence was material, the admission of testimony concerning an arrangement for a meeting between the deceased and one who was jointly accused with respondent was not prejudicial error.

      3. Evidence — Admissions—Criminal Law — Presumptions—Confession.
    The mere fact that a respondent under arrest and in jail made a statement of the alleged facts concerning the crime to the prosecutor in the presence of an interpreter does not give rise to a presumption that his statement was involuntary.
    4. Same — Leading Questions — Trial.
    The permitting of leading questions is very largely discretionary with the trial judge.
    6. Same — Witnesses—Physical Condition.
    Testimony relating to the physical condition of one of the principal witnesses for the prosecution, and to. her alleged paralyzed condition, was not improperly received.
    6. Same — Declarations Against Interest — Hearsay.
    Nor was it improper to reject testimony of a witness that a third person had admitted that he committed the murder: evidence of such conversation was hearsay, as would also be a statement that another killed decedent.
    7. Appeal and Error — Argument of Prosecutor — Saving Questions for Review — Exception.
    Exceptions to argument of the prosecutor taken without any request for a ruling by the court were insufficient to warrant a reversal.
    8. Same.
    Where the court is asked to rule, and neglects or omits to do so, the effect is the same as an adverse ruling upon the objection.
    9. Same — Trial—Conduct of Prosecutor.
    Reference of a general sort by the prosecuting attorney to the fact that respondent and his witnesses were foreigners was not reversible error.
    10. Criminal Law — Examination—Waiver.
    The objection that respondent had no preliminary examination was presented too late, on motion for a new trial; and the respondent waived the right by declining to take the stand when asked if he desired to do so by the court.
    11. Same — Appeal and Error.
    The court will not consider piecemeal a request to charge which was refused, and which is not claimed to have been, as a whole, erroneously refused.
    12. Same — New Trial.

      Held, on a consideration of the entire record, that the verdict was not against the weight of the evidence.

      Error to Kent; Perkins, J.
    Submitted November 17, 1911.
    (Docket No. 192.)
    Decided January 23, 1912.
    Bartolomeo Sartori was convicted of murder.
    Affirmed.

      George Glapperton and C. G. Turner, for appellant.

      Franz G. Kuhn, Attorney General, and William B. Brown, Prosecuting Attorney, for the people.
   Blair, J.

The respondent was tried and convicted of murder under an information charging that:

“Bartolomeo Sartori, Gustavo lacovoni, and Ulderico lacovoni, late of the township of Walker of the county of Kent, on, to wit, the 5th day of Septémber, 1909, at the township of Walker, Kent county, aforesaid, did feloniously, wilfully, and the said Bartolomeo Sartori of his malice aforethought, and the said Gustavo lacovoni of his malice aforethought, and the said Ulderico lacovoni of his malice aforethought, then and there did kill and murder one Mario Pavoni.”

The Iacovonis demanded separate trials, and respondent Sartori was tried first. Some nine months later, the respondent Ulderico lacovoni, son of the respondent Gustavo lacovoni, was tried and acquitted, whereupon a nolle prosequi was entered against Gustavo.

Mario Pavoni lived upon a rough, very hilly piece of land, upon which was an old run-down peach orchard. His house stood upon the north side of an east and west highway near the foot of a hill. The hill began at the highway and extended upward at an angle of 35 degrees 250 to 300 feet, then down on the other side across a narrow valley, and then up another hill not so high or steep as the first. The top of this second hill was about 750 feet from the house in which Pavoni lived, and north of the house. East of this peach orchard was a strip of woods, at Pavoni’s east line. North of Pavoni’s land, about one-third of a mile, was another peach orchard, which, extended to a little lake further north, and which lake was about a mile from Pavoni’s house. The second hill above referred to sloped to a deep valley, beyond which was a third hill.

Mrs. Pavoni testified: That she and her husband got up ■at about 6:30 o’clock on Sunday morning, September 5th, and their son Alfredo, 12 years old, got up four or five minutes later. That her husband went out “ saying that he would go right over the hill and look over the peach orchard.” That Alfredo went after the cow. That after her husband started up the hill Gustavo lacovoni came to the house, and, 30 or 40 feet behind the house, and towards the woods, she saw Sartori and Ulderico lacovoni ■going up the hill. At this time, her husband, who had got about halfway up the hill, turned and came back and joined in the conversation. That her husband went back up the hill with Gustavo, and she saw them as' far as the top of the hill. That the Iacovonis and Sartori had guns, but her husband did not. That near the top of the hill her husband tried, as appeared by his motions, to get Gustavo’s gun, but did not succeed. That some four or five minutes after her husband went over the hill Alfredo followed him. That four or five minutes after her son passed the hill she heard two shots, and then screams of her husband, followed by screams from her son. That thereupon she fell off the steps in a hysterical fit.

Vincennes De Petris, a boarder at Pavoni’s, testified that he saw Alfredo go over the hill, and six or seven minutes after he went over the first hill he heard two shots with hardly any interval between them, maybe a second, and then he heard the cry.

“As soon as the shots were heard, Pavoni’s wife began to holler and cry that they killed both, and of course he put attention to Pavoni’s wife.”

In a short time he went over the hill, finding Hugo Imperi there at the top of the hill. Hugo had no gun. That they then went on and found the bodies of Pavoni and his son near the top of the second hill. The body of Pavoni lay some 80 or 90 feet west of the woods on his east line and from 10 to 15 feet further south than the body of his son. A trail of blood showed that he had dragged himself some 25 or 30 feet down the hill. There were shots on the east side of a peach tree near where Pavoni was killed, showing that the charges came from the east. There were numerous shot in Pavoni’s body, his wrist was shattered, there were powder marks and bruises on his neck, and his face was scratched up. There were two knife wounds penetrating his lungs, which the coroner said were the direct cause of his death. The boy had been killed by three separate cuts across and around his throat with a knife.

No witness testified that he saw the murder committed, but Sartori testified to what occurred upon his being overtaken by Pavoni; and, upon the trial of Ulderico lacovoni, he and his father testified upon the same subject. According to Sartori:

“ He hadn’t seen Pavoni until when he saw him right in his back on the third hill.”

That prior to that day Pavoni, “He say, ‘Don’t come near my land nor in my house.’” That after Pavoni ordered him off his land, Pavoni tried to get Gustavo’s gun, and, failing, became enraged and jumped towards him, whereupon he, backing up, threw down his cap in front of Pavoni and told him that if he passed the cap he would “ do away with ” him. That thereupon Pavoni backed away and started for home, saying, as he went away:

“ Saturday I will have my own gun, and then we will see one another.”

That then Sartori and the lacovonis went away towards the lake. That he did not see Alfredo that morning and did not again see Mario Pavoni. On the way to the lake he heard two shots at an interval of about a second apart back towards Pavoni. That “ they had then walked about 200 meters probably, or more.” That he never thought to look back to see where the shots came from, but continued on his way to the lake. That he intended to shoot Pavoni in the leg if he passed the cap.

There was testimony tending to show enmity between Pavoni and Sartori growing out of Sartori’s alleged advice to Mrs. Pavoni to run away with a young man by the name of Guarino De Bartolomeo, and that each had threatened the life of the other. Pavoni had forbidden Sartori to come near his land or in his house.

Respondent’s assignments of error, upon which he relies for a reversal, are as follows:

(1) That the said trial court erred in admitting testimony in relation to the killing of the boy Alfredo Pavoni.
(2) There was an error in admitting the following questions and answers:
“Q. Do you know whether or not Iacovoni had arranged with Pavoni to have Pavoni come over to Iacovoni’s that night ?
“A. Yes, sir.
“Q. What was the arrangement about ? Why did Pavoni agree to come over to Iacovoni’s ? What was it that Pavoni was coming over there to see about ? ”
(3) That the court erred in refusing to strike out the testimony of Guiliani, who acted as an interpreter in quizzing the respondent in the jail immediately after their arrest.
(4) The court erred in admitting the answers to leading questions found on pages 143 and 189 of the record.
(5) The court erred in admitting the witness Innocence Pavoni to testify in relation to her own physical condition.
(6) The court erred in excluding the testimony of Joseph Martini in relation to what Sacciucci told him the morning after the murder about the killing of Pavoni.
(?) The court erred in permitting the remarks of counsel for the people in his opening and closing argument to the jury, to which objection was made by counsel for respondent, and which appear in the record.
(8) That the court erred in proceeding with the trial of this case without previous examination of the respondent or waiver of examination by him.
(9) That the court erred in denying to give the respondent’s request to charge.
(10) The court erred in denying the motions for a new trial made on behalf of the respondent Sartori.

The court did not err in permitting evidence of the boy’s wounds. People v. Marble, 38 Mich. 117; People v. Foley, 64 Mich. 148 (31 N. W. 94); People v. Wright, 89 Mich. 70 (50 N. W. 792).

These questions related to an arrangement between Pavoni and lacovoni to go to Grand Rapids and get a bicycle previously loaned to Pavoni by lacovoni and which Pavoni had left at a shop for repairs. We do not perceive how the admission of this testimony, if erroneous, was in any wise prejudicial to respondent.

The witness Guiliani was called to the jail after the arrest of the respondent to act as an interpreter of the questions put by the prosecuting attorney and the answers of Sartori. He was called and examined on the trial by the prosecution without objection and cross-examined at length by respondent’s counsel. After the next witness had been sworn and a few preliminary questions answered, the following occurred:

“Mr. Turner: Just a minute. I want to make a motion for the purpose of getting it on the record there, your honor. I -move that all this testimony by the witness just sworn before this one, John Guiliani, or something like that, be stricken out from the record on the ground that Sartori at that time was arrested and in the hands of the law, so to speak, and subjected to a cross-examination by the prosecutor down there with no one to represent him, and whatever he said, if he did say anything, was an involuntary statement, brought out by that kind of a process; in other words, it was making him testify against himself. I ask to have that testimony stricken out on that ground.
“ The Court: I will think that over.
“Mr. Turner: And the same in relation to this witness, your honor.
“The Court: I will reserve the determination of the question until later. We will let it stand.
“Q. Herman, do you remember the day you were down in the jail talking with Sartori and Iacovonis ?
“A. Yes.
“Q. You were down there ?
“A. Yes, sir.
“Q. What day of the week was that ?
“A. Tuesday.
“Mr. Turner: Just a minute, Brother Brown. May the same objection, your honor, apply to this witness ?
“The Court: It may.
“Mr. Turner: And an exception.”

The court .did not overrule the motion of respondent’s counsel, but let the testimony already taken stand and reserved the question of its competency until later. The only exception taken appears to apply to the testimony then being given by the witness Mancheralli. The matter does not appear to have been again brought to the attention of the court, and there is no basis for the assignment of error. People v. Van Driesche, 154 Mich. 158 (117 N. W. 578).

Furthermore, there is no testimony as to whether the statements were voluntary or involuntary, and we do not think that the mere fact that the respondent was in the jail under arrest raises a presumption that the statements were involuntary.

The objection is not to the answers given, but to the leading form of the questions. The questions to Mrs. Pavoni and the answers were as follows:

“Q. What did he say to you that he would do in reference to killing your husband ?”

And the interpreter replied:

“A. She say that if he would see that her husband would show act of doing him harm, he would kill him.
“Q. What did he say about being willing to kill your husband, if you would go away with him ? * * *
“Q. And what did she know about Sartori — what did you know about Sartori that made you think that there was going to be trouble f
“Mr. Turner: Objected to as leading, and an exception.
“The Court: Go ahead; ask the question.
“A. Because she knew that they had a quarrel before.
“Q. Then when you asked Vincennes De Petris to go up with your husband, you thought he was in danger from Sartori, didn’t you ?
“Mr. Turner: That is objected to as leading and an exception.
“The Court: Go ahead.
“A. Yes.”

The permitting of leading questions is very largely within the discretion of the circuit judge, and counsel on both sides were given wide latitude in this regard. We do not think there was such an abuse of discretion as to warrant a reversal of the case.

As stated in respondent’s brief:

“This witness, Mrs. Pavoni, was repeatedly interrogated in relation to her physical condition. On one occasion she was led to testify that she had been sick all the previous night. On another, that she walked only with assistance; her side being paralyzed. Again, it was announced that the doctor was coming to see her, and he desired to ask her a few more questions, if that could be done. This could only furnish a basis for comment to the jury, and tend to work upon their sympathy, to the prejudice of respondent.”

We think it was proper to show to the jury the physical condition of this most important witness in order that they might intelligently weigh her testimony.

Respondent’s witness Joseph Martini testified that he had a talk with Antonio Sacciucci the day after the tragedy. It was the theory of respondent that Sacciucci was the man who committed the murder, and several suspicious acts and circumstances were testified to against him. Martini was asked:

“Q. Did you have any talk with him there about who did the killing ?
“A. Yes, sir.”

He was then asked for the conversation, which was objected to as hearsay, and the objection was sustained. The ruling was correct. Whether Sacciucci would have answered that he saw some one else commit the murder, or whether, as the record indicates was expected, he would say that Sacciucci told him that he himself committed the murder, would be alike hearsay. The acts of Sacciucci having some relation to the crime and tending to show that he committed it instead of Sartori were competent and were admitted; his declarations, statements, and admissions not part of the res gestae were not competent. People v. Stevens, 47 Mich. 411 (11 N. W. 220); Commonwealth v. Chabbock, 1 Mass. 144; State v. Hack, 118 Mo. 92 (28 S. W. 1089); Rhea v. State, 10 Yerg. (Tenn.) 258; People v. Hall, 94 Cal. 595 (30 Pac. 7); Robison v. State, 114 Ga. 445 (40 S. E. 253); Hauk v. State, 148 Ind. 238 (46 N. E. 127, 47 N. E. 465); State v. Sale, 119 Iowa, 1 (92 N. W. 680, 95 N. W. 193); State v. West, 45 La. Ann. 928 (13 South. 173); Munshower v. State, 55 Md. 11, 18 (39 Am. Rep. 414); Commonwealth v. Densmore, 12 Allen (Mass.), 535; State v. Fletcher, 24 Or. 295, 300 (33 Pac. 575).

Except in one instance counsel for respondent contented himself with taking an exception to particular portions of the argument of the prosecuting attorney without asking for, or obtaining, a ruling thereon by the court. Under repeated rulings of this court, such exceptions cannot be considered. Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815, 18 N. W. 209); Miller v. Lachman, 117 Mich. 68 (75 N. W. 284); Mayo v. Wright, 63 Mich, 32 (29 N. W. 832); Pierson v. Railroad Co., 149 Mich. 167 (112 N. W. 923); Formiller v. Railway, 164 Mich. 653 (130 N. W. 347); Meade v. Railway, 165 Mich. 489 (130 N. W. 1114). The one instance where a ruling was asked was as follows:

“ And I want to say to you now that that one case of Martini shows you that the people of a country, not born in this country, who do not speak our language, these people are more inclined on general principles, some little time after a murder has been committed, to side with the live man than they are with the dead man.
“ Mr. Turner: Give me an exception to that.
“Mr. Brown: On general principles, a man, other things being equal, after the acrimony and shock of the immediate event has passed away—
“Mr. Turner: I call the court’s attention to that statement.
“Mr. Brown: The—
“Mr. Turner: Wait just a moment, Mr. Brown. I call the court’s attention to the statement Brother Brown makes that people of a foreign country coming here are more apt to . side with the live man than they are with the dead—
“Mr. Brown: And in evidence of that fact—
“Mr. Turner: And I ask the court to tell the jury not to pay any attention to that statement.
“Mr. Brown: As I was saying, this man Martini, after he talked to me—
“Mr. Turner: Give me an exception.”

Where, as in this instance, the attention of the court is called to the objection, a ruling requested, and no ruling made, we think the effect of the refusal or failure to rule should be held to be the same as an adverse ruling.

The witness Adolph Martini, although his name was on the information, was called by the defendant and testified:

“Q. Did you know Pavoni ?
“A. Yes.
“Q. Did you ever hear him say anything about Sacciucci ?
“A. He says that he heard several times Pavoni say that he want to drink the blood of Bartolomeo Sartori, of Bartolomeo Guarino, of Piero, and Tony Sacciucci.
“Q. Wanted to drink the blood, is that it ?
“A. Yes, sir.
“ Q. Where did you hear him say that ?
“A. In the month while his wife was away. * * *
“Q. Did he say why he wanted to drink their blood ?
“A. Because they had ruined his home.
“Q. Did he say what Sacciucci had done towards him ?
“A. He said that he gave some kind of medicine to his wife.”

On cross-examination the witness admitted that he came to the prosecuting attorney of his own accord and told him what he knew about the case in the presence of an officer by the name of Sargeant, but denied that he said to him that he had heard Sartori say three or four times that he would kill Pavoni. Mr. Sargeant testified that he heard the conversation referred to, and that Martini did say to the prosecuting attorney that he heard Sartori say three or four different times that he would shoot Pavoni. So far as Martini was concerned, the prosecuting attorney was justified by the record in his statement. While it would have been better if he had omitted foreigners generally from his statement, we do not think it could be justly held that his general reference could have prejudiced the respondent. People v. Sharp, 163 Mich. 79 (127 N. W. 758).

This point was not made until the motion for a new trial, and was then too late. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073).

We are also of the opinion that the examination was waived. Several witnesses were examined on behalf of the people and cross-examined by counsel for the Iacovonis; Sartori not being represented by counsel. At the conclusion of the testimony the following questions were put to Sartori through the interpreter:

“Q. Mr. Sartori, do you want to examine any of the witnesses in this case, in your defense, or in your behalf ?
The Court: At this time ?
“A. He says the testimony has been introduced, and he is satisfied with that.
“Q. Do you want to go on the stand yourself here ?
“A. He says he wants to be examined.
“Q. Here? Now?
“A. He leaves it entirely with the court.
“Q. It’s up to him.
“A. He says let him be examined now.
“Q. Who?
“A. This man here (meaning Mr. Magini).
The Court: Himself ?
“Q. Does Sartori want to be examined now ?
“A. He wants to be examined now.
The Court: Tell him the Iacovonis are not going to be examined now.
“A. He says he will do like the others.
“Q. Ask him if he wants to go on the stand here or not. He can go on the stand and tell his story if he desires ?
“A. He says he does like the others. He agrees with the others.
“Q. Then you don’t want to be examined now ?
“A. No.”

Under this assignment, counsel argue that:

“The court should have given to the jury that portion of respondent’s request to charge which reads as follows:
‘“I charge you that the mere fact of Sartori being in the vicinity of the crime when it was committed is no evidence that he committed the crime, and the mere fact of his being in the vicinity where the crime was committed, and the further fact that Pavoni had made threats against him, and the mere fact that some months before Sartori said that he would protect himself by using a gun, if necessary, would not in itself be any evidence of murder.’”

The portion of the request constitutes about half of the request as presented. We cannot consider requests to charge piecemeal, and, since it is not contended that the court erred in refusing the request as a whole, we decline to further consider the question.

This assignment raises the question most relied upon by counsel for respondent in their printed brief and in the oral argument before this court. The verdict of guilty was rendered October 11, 1909, and was followed by sentence for life at the Marquette prison on October 12, 1909. Some time in June of 1910, a motion was made on behalf of respondent for a new trial. The motion itself has not been returned, and the only means we have of ascertaining its grounds is from the reasons filed by the circuit judge in denying it July 20, 1910, wherein it is said:

“ It is urged in support of the motion: (1) That Sartori and the two Iacovonis having been jointly charged with these murders, and separate trials having been demanded, Sartori, being first tried, was therefore deprived of the testimony of the Iacovonis in his behalf; (2) that the subsequent trial of the younger Iacovoni resulted in his acquittal, and afterwards a nolle prosequi was entered as to the elder Iacovoni, and these facts should be considered as indicating at least the probable innocence of Sartori; (3) that on the trial of her son, the younger Iacovoni, Mrs. Iacovoni testified that her brother Sacciucci confessed to her before leaving the country that he was guilty of these murders.”

The reasons which influenced the circuit judge to deny the motion are substantially stated in the first paragraph thereof, as follows:

“I am still convinced, as I was at the conclusion of the trial, that no mistake was made by the jury in its verdict of guilty in this case. A horrible double murder was committed, and all of the facts and circumstances showed with unerring certainty that Sartori, either alone or in company with others, is responsible for the crime. He had debauched Pavoni’s household, had been forbidden by Pavoni to set foot upon his land, and the deepest feelings of hatred existed between them.”

After a statement of the facts influencing his judgment, at some length, the trial judge concluded:

“ I do not think that justice requires a new trial of this case. The respondent was ably defended. Many witnesses were called and testified in his behalf at the county’s expense, and every effort possible was made to give him a fair trial. The overwhelming weight of the circumstances, in connection with his own testimony, led the jury to believe that he was guilty as charged; and it seems to me, under the undisputed testimony in the case, they were justified in reaching that conclusion.”

On the 15th day of September, 1910, a second motion for a new trial was filed by respondent’s counsel, based upon the following grounds:

(1) The records and files in said cause.
(2) The records and files in the case of People v. Uldexico Iacovoni in this court.
(3) Newly and after discovered evidence consisting of testimony of Gustavo Iacovoni, Ulderico Iacovoni, Angelina Sacciucci and Philomena Iacovoni taken in the said trial of Ulderico Iacovoni.
(4) The affidavits of respondents, Gustavo Iacovoni, Ulderico Iacovoni, Herman Mancheralli, and George Clapperton attached hereto and made a part of this motion, setting forth new and after discovered evidence.

October 5, 1910, the circuit judge filed an order denying the second motion, saying:

“I am unable to find any new or additional reasons advanced on this motion which should lead me to change the opinion already expressed and on file on the first motion.”

On the 24th day of August, 1910, the bill of exceptions, including the assignments of error, was settled and signed by the circuit judge. On April 6, 1911, by the order of this court, the respondent was permitted to review the case upon the typewritten record; the printing of the record under the rule being dispensed with. The index to the typewritten record does not comply with Rule 36 in stating “the page of the record where any exception relied on may be found.” This failure has greatly increased our labor in the examination of this voluminous typewritten record.

The reading of the entire bill of exceptions and the records and files returned to this court, however, fails to disclose any exceptions claimed or filed to the reasons for the order or the order itself denying the motions for a new trial. Under such circumstances, we have repeatedly held that we cannot consider the motions. Comstock v. Taggart, 156 Mich. 47 (120 N. W. 29), and cases cited; U. S. Graphite Co. v. Saginaw Circuit Judge, 158 Mich. 598 (123 N. W. 27). Our examination of the record, however, has satisfied us that we would not have been warranted in overruling the order denying a new trial on the ground that justice required it, if exceptions had been properly filed.

It is apparent that the trial judge was as earnest in his conviction of the guilt of the respondent as his counsel are of his innocence. The circuit judge, also, who saw these witnesses upon the stand, and the jury, to whom their testimony was addressed, and who were taken to view the premises, had an advantage over any one merely, reading the record of their testimony in determining the credibility of the witnesses; and, the trial judge having set the seal of his approval upon the verdict of the jury, the case must be strong indeed to authorize this court to overturn his decision.-

“The verdict must be clearly against the great weight of the evidence, to require this court to overrule the decision of the circuit judge refusing a new trial.” Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and numerous cases cited.

See, also, People v. Francis, 52 Mich. 575 (18 N. W. 364); People v. Moore, 52 Mich. 563 (18 N. W. 359); People v. Girdler, 65 Mich. 68 (31 N. W. 624).

We agree with the circuit judge that the verdict was in accordance with, and not against, the weight of the evidence.

The judgment is affirmed.

MoAlvay, Stone, Ostrander, and Bird, JJ., concurred.