author: McAlvay, J.

text:
    MARTIN v. FISHER.
    1. Trial — 'Verdict—Special Findings — Consistency.
    Plaintiff sued defendant for selling liquor to her husband who, while under its influence, attempted an assault on another and was killed. The jury rendered a general verdict for plaintiff and specially found (1) that the husband was not so far under the influence of liquor as to be incapable of forming an intent; (2) that he went to the scene of the killing for the purpose of committing a crime which he had previously planned; (3) that he came to his death on account of his own wrongful act. Held, that a further special finding that the fact that he procured the liquor was the cause of his death, was in direct harmony with the general verdict and nothing in the other findings was inconsistent therewith, it not appearing that his intent was formed before procuring the liquor.
    2. Stipulations — Agreement to Avoid Continuance — Violation.
    After the institution of plaintiff’s action, criminal prosecution was begun against one defendant and a witness for conspiring to get the witness out of the jurisdiction, whereon defendants in the civil case sought a continuance, to avoid which, plaintiff’s attorney agreed in open court that if the case proceeded he would not inquire into the arrest or try to prejudice the case thereby, and the continuance was refused. Held, that plaintiff’s attorney, by asking the witness questions concerning his receiving money from said defendant and leaving the county, and referring in argument to the moral turpitude of defendant for such act, violated the agreement to the prejudice of defendants.
    :3. Intoxicating Liquors — Druggist’s Bond — Action—Evidence.
    In an action on a druggist’s bond for selling liquor to plaintiff’s husband, who, while under its influence, was killed in assaulting another, the situation and condition of the plaintiff, and her dependence on her husband are proper matters for the consideration of the jury.
    4. Same — Action Against Surety — Evidence.
    As against the sureties on such bond, it is error to permit evidence of great excitement at the time of such killing, and of the feeling against the principal on the bond.
    5. Same — Evidence.
    It is error to allow plaintiff to cross-examine defendant sureties as to how many such bonds they were on, and whether the wholesale dealers were not back of them, and giving them security.
    <6. Trial — Argument op Counsel — Prejudice.
    It is error to permit counsel in argument to present to the jury as facts matters wholly outside the record, and not reprimand counsel or strike the prejudicial argument from their consideration.
    Error to Van Burén; Carr, J.
    Submitted October 18, 1905.
    (Docket No. 71.)
    Decided March 27, 1906.
    Case by Bertha Martin against George W. Fisher, ;a druggist, and. Judson J. Moses and Andrew A. Baxter, his bondsmen, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Thomas J. Cavanaugh and A. Lynn Free, for appellants.

      Barnard & Lewis and Benjamin F. Heckert, for appellee.
   McAlvay, J.

Defendant Fisher, a druggist in the village of Lawrence, Van Burén county, was principal and his codefendants were sureties on a druggist’s bond. Van. Burén county is a local option county. Plaintiff sued defendants on this bond, averring that defendant Fisher unlawfully sold intoxicating liquor to her husband, and that as a result she lost her means of support, and suffered shame and disgrace. The alleged sales occurred October 31, 1903. On the evening of this day, after drinking the beer procured during the afternoon and evening, plaintiff’s husband, with others, went to the house of a man named Smith, with whom Martin had previously had difficulty, intending, as the testimony states, to “do him up.” Smith was away from home at the time, and Smith’s wife and her son were there.- Martin threatened violence and a serious assault upon these parties, and was shot and killed by the young man in defense of himself and mother. The issue was submitted to the jury, who rendered a verdict in plaintiff’s favor. We are asked to reverse the judgment of the circuit court for several reasons.

The principal defendant, Fisher, was not served with process. The sureties were duly served, and defended the suit. A motion for a new trial was made upon the ground that the general verdict of the jury was contrary to the special findings. These special findings were:

“1. Was Martin, on the night or at the time he came to his death, so far under the influence of liquor as to be incapable of forming an intent ?
- “ Answer. No.
“ 2. Did Martin go to the place where he met his death for the purpose of committing a crime which he had previously planned ?
“Answer. Yes.
“4. Did Martin come to his death on account of his own wrongful act and when he was about to commit a crime previously planned ?
“ Answer. Yes.”

There was also another special finding, which is material:

“ 5. Was the fact that Martin procured the intoxicating liquor the cause of his death either directly or indirectly ?
“Answer. Yes.”

The trial judge in denying the motion held that the affirmative answer to the fifth .question was in direct harmony with the general verdict, and that nothing appeared in the first, second, or fourth questions and answers inconsistent with such verdict.

We agree with the trial judge. There is nothing in these questions to indicate that the intent was formed by Martin before this afternoon and evening in question, after he had begun drinking beer procured from the drug store, and the findings of the jury, in answer to these questions, are not inconsistent with the general verdict. The case of Dennison v. Van Wormer, 107 Mich. 461, relied on by appellants is distinguishable from this case. In that case this court said:

“Plaintiff’s husband was not injured or killed by an intoxicated person, nor did the act done by him cut off her support.”

In the case at bar the jury found that the fact that Martin procured intoxicating liquor was the cause of his death.

During the October term of court, November 4th was the day this case was set for trial. After this date was fixed, and on October 29th, Mr. Barnard, plaintiff’s attorney, made a criminal complaint against defendant Baxter and one Bert. Lawton, jointly charging them with conspiracy by the use of money to deprive plaintiff of the testimony of Lawton, a material witness for her in this case, by getting him out of the jurisdiction. Baxter was arrested November 2d, Lawton was found in Newaygo county, and was arrested and brought back, and was in custody at the time of the trial. A motion for continuance was made by defendants on the ground that said criminal charge against defendant Baxter, then pending, to which he had a full and complete defense, would greatly prejudice and injure defendants if forced to trial at that term, and that the criminal charge would be disposed of before the next term of court. This motion came on to be heard and during the argument attorney Barnard—

Agreed in open court that if the case came on for trial lie would not inquire into the arrest of Mr. Baxter, nor 4ry to prejudice the case on account thereof.
“ Whereupon the court denied the motion for a continuance, stating that he would accept Mr. Barnard’s statement, and that the question of arrest should not be gone into.”

During the trial which proceeded on November 4th, the-witness Lawton was produced for plaintiff, and examined by Mr. Barnard relative to conversations with defendant Baxter, as to money received from Baxter, and as to where he went after receiving it; claiming the right to show that he did not appear, and was not there in answer to a subpoena. Defendants objected to each of these questions on .the ground that they were incompetent and immaterial ■and contrary to the agreement counsel made in open court when the motion for continuance was denied. The •court overruled these objections, and exceptions were taken. In closing the case to the jury, Mr. Barnard reviewed all this testimony, and referred to the arrest of Lawton and the turpitude of Baxter in hiring him to leave the country. All of this testimony was certainly most prejudicial to defendants. The attorney had made a solemn promise in open court that he would not do this. The court relying on this pledge had denied the continuance. In view of the agreement made the court erred in allowing this testimony to be introduced.

There are in this case many assignments of error. It will only be necessary for us to say of some of them that they are not of sufficient importance to be considered, in view of the fact that in all probability they will not recur on a new trial.

As to the question of the ownership of the drug store at the time of the sales, it is enough to say that it was one ■of the material facts in dispute in the case and was properly submitted to the jury. The situation and condition of plaintiff and her dependence upon her husband for support was also a proper matter to submit to the jury. Weiser v. Welch, 112 Mich. 134.

On cross-examination of defendants’ witness Sweet, the witness, under objection and exception by defendants, was allowed to testify that there was great excitement over the shooting; that defendant Fisher was under condemnation of the whole community; that people were condemning and criticising him for selling liquor illegally. The court erred in allowing such testimony. There was nothing in the direct examination warranting it. It was immaterial and irrelevant to the issue. Its admission could have no other effect than to prejudice Baxter and Moses, sureties on the bond of Fisher, who was not before the court.

Error is assigned because plaintiff was allowed to ask defendant Moses, on cross-examination, subject to exception, on how many druggists’ bonds he was surety; if Fisher had sold liquor between October 24th and 29th, he would have been guilty of keeping a place, not being a •druggist under the local option law; also if it was not a' fact that, on all the drug bonds he had signed, the wholesale dealers were back of him, and had given him security. This was immaterial, not proper cross-examination, and was prejudicial error.

Other exceptions were taken to the argument of plaintiff’s attorney to the jury. There are 24 assignments of error on this branch of the case. It is claimed by plaintiff that at the time no exceptions were taken to these objectionable paragraphs set forth in the bill of exceptions. If there had been we do not hesitate at all in saying that they would all of them have been sustained by this court. The record does show affirmatively that exceptions are taken to some of them. Matters wholly outside of the record were presented to the jury as facts. The court did not reprimand counsel, or strike the prejudicial argument from their consideration. It was error to permit such conduct. Arguments of this character have no place in the orderly conduct of trials in courts of justice, and will not be permitted by this court.

The judgment is reversed, and, a new trial ordered.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    VALLEY CITY DESK CO. v. TRAVELERS’ INSURANCE CO. OF HARTFORD.
    1. Judgment — Equitable Reliee.
    A court of equity will not assume jurisdiction to set aside a judgment of a court at law of competent jurisdiction, on the ground that it is contrary to equity, unless the judgment defendant was ignorant of the fact in question pending the suit, or it could not be received as a defense at law, or unless, without any neglect or default on his part, he was prevented by fraud or accident or the act of the opposite party from availing himself of the defense.
    2. Same — Conolusiveness.
    After a mandamus to compel the circuit court to set aside a default judgment was denied by the Supreme Court, on the ground that the remedy was by writ of error, defendant filed his bill to set the judgment aside. The bill showed that no fraud was practiced on complainant, and that neither by accident nor act of the opposite party was complainant prevented from making defense, nor did it charge that the return of service in the law case was fraudulent, in that service was not in fact made, but merely alleged that complainant had no knowledge, and that its secretary had no recollection. Held, that, no writ of error having been applied for nor motion for new trial made, the determination of the circuit court was conclusive and that the bill could not be maintained.

      Appeal from Kent; Wolcott, J.
    Submitted December 7, 1905.
    (Docket No. 161.)
    Decided March 27, 1906.
    Bill by the Valley City Desk Company against the Travelers’ Insurance Company of Hartford to vacate and set aside a judgment. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed, and hill dismissed.

      Carroll & Nichols, for complainant.

      Drew & Heald, for defendant. .
   McAlvay, J.

A bill was filed in the circuit court for Kent county in chancery by complainant, a Michigan corporation, against defendant insurance company, to vacate and set aside a certain judgment of the circuit court for Kent county obtained against it in a cause in said court, wherein said insurance company was plaintiff and this complainant was garnishee defendant. Defendant demurred to said bill of complaint on the ground of want of equity and adequate remedy at law and because all the questions involved were passed upon in the suit at law. The case is before us on appeal from an order overruling the demurrer.

It appears from the bill of complaint and the files and records in the principal and garnishee cases which are referred to in said bill and made part of it, the material facts and allegationsof which are admitted to be true, that the judgment which is complained of was entered November 21, 1904; that on the following day, November 22d, complainant first had knowledge of the pending of said suit or any proceedings against it, or that it was claimed that a writ of garnishment in said suit had been served upon it, and immediately caused a motion to be made and filed with affidavits on which it was based in said cause November 25, 1904, and after the filing of said motion a judgment was entered against the defendants nunc pro tunc; that the affidavit upon which the judgment in garnishment is based did not show whether complainant was a domestic or foreign corporation organized and lawfully doing business in this State; that the secretary and treasurer of complainant company, upon whom the writ purports to have been served, had no knowledge or recollection that such writ had been served, and no officer or agent of said company had any notice or knowledge of the service of the writ or pending proceedings; that, had complainant had such knowledge, disclosure would have been made of the truth and fact of the matter; that at the time of the issuance of said writ and ever since complainant was not indebted to the principal defendant in the case in any sums either due or to become due, nor did it have any property or effects in its hands or under its control belonging to them, as complainant had done in two other cases of garnishment against the same principal defendant before this suit was commenced.

It is contended that all of the facts upon which complainant relies for equitable relief were before the Kent circuit upon the motion to set aside the judgment, and were decided against complainant, that the decision of that motion is res ad judicata and not revie wable by a court in chancery, and that its remedy was by writ of error. After the motion referred to was denied, complainant made application to this court for a mandamus requiring the circuit judge to vacate the order denying the same. The writ was denied on fhe ground that the questions raised could be determined on writ of error. Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194. The bill of complaint in this case was at once filed.

The questions presented are the same which were considered in the Kent circuit court upon said motion and afterwards here upon the application for. mandamus. It has been held repeatedly by this court, supported by authority both Federal and State, that a court of equity will not assume jurisdiction to set aside a judgment of a court at law of competent jurisdiction on the ground that it is contrary to equity, unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not be received as a defense at _ law, or unless,, without any neglect or default on his part, he was prevented by fraud or accident or the act of the opposite-party from availing himself of the defense. Mack & Davis v. Doty, Har. Ch. (Mich.) 366; Miller v. Morse, 23 Mich. 365; Kelleher v. Boden, 55 Mich. 295, and cases cited. An examination of the bill of complaint shows that no fraud has been practiced upon complainant, nor by accident or act of the opposite party has it been prevented from making defense to the suit at law. These questions here raised were all before the circuit court and passed upon.

No writ of error has been applied for, nor was any motion for a new trial made. The determination of that court is conclusive and res adjudicata. Gray v. Barton, 62 Mich. 186.

The bill of complaint does not charge that the return of service in the law case is fraudulent, nor that the service was not in fact made. The allegations upon this subject are general that it had no knowledge, and the secretary had no recollection. We do not find in the bill of complaint any new matter of equity not arising in the former case, although a most careful examination has been given with that end in view. And all the more care has been taken because the learned trial judge before whom the law case was heard overruled the demurrer in this case.

The order overruling the demurrer is reversed, and a decree will be entered dismissing the bill of complaint, with costs of both courts.

Grant, Blair, Hooker, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    TUCKER v. TUCKER.
    Specific Performance — Evidence—Decree.
    On a bill for specific performance of a contract, by which complainant was to have a farm for supporting its owner, defendants’ ancestor, evidence examined, and held, that a decree dismissing the bill but securing to complainant the benefit of defendants’ offer in open court to give him a life lease of the premises was proper.
    Appeal, from Van Burén; Carr, J.
    Submitted January 31, 1906.
    (Docket No. 75.)
    Decided March 27, 1906.
    Bill by Luther W. Tucker against Daniel R. Tucker and others for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Thomas J. Cavanaugh, for complainant.

      Barnard & Lewis, for defendants.
   Ostrander, J.

Complainant claims to have moved upon the farm of Daniel H. Reynolds in the year 1880, under a parol agreement that he should have the farm for taking care of said Reynolds and his wife during their lives. Daniel H. Reynolds was at the time of making the alleged agreement 78, and his wife was 76, years of age, and complainant’s wife was their only child and heir at law. Daniel H. Reynolds lived for about 2 years, and his wife for about 6 years, thereafter. Complainant’s wife died in 1898 intestate. Defendants are children of complainant and his said wife. They in open court offered to give to complainant a life lease of the premises, and the decree dismissing the bill secures to complainant such, estate.

It will not be profitable to review the testimony. Giving proper weight to the fact that the wife of the complainant was only child and heir at law of the owners of the land, we are satisfied that the decree is right, and it is affirmed.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.


text:
    THORN v. SCOFIELD.
    Wills — Construction—Estates Conveyed — Life Estate.
    By the first clause of a will testator gave and bequeathed to his wife his homestead, consisting of 30 acres in the southeast corner of section 5, while by the last clause all of his land on sections 2 and 4 was bequeathed to one of his sons, “reserving the right of my widow to occupy the homestead during her natural life.” Testator had no homestead and no 30 acres of land on section 5; his homestead being on section 2. Held, that the widow took only a life estate in the land devised to her; the remainder going to the son.
    Appeal from Jackson; Smith (Clement), J., presiding.
    Submitted February 1, 1906.
    (Docket No. 91.)
    Decided March 27, 1906.
    Bill by Thomas D. Thorn against Alvina M. Scofield and another for a construction of the last will and testament of James L. Thorn, deceased. From a decree for complainant, defendants appeal.
    Affirmed.

      J. A. Parkinson, for complainant.

      Albert O. Reece (Gtrove H. Wolcott, of counsel), for defendants.
   Ostrander, J.

The complainant is the son and one of the devisees of James L. Thorn, deceased, and he filed the bill in this cause asking for a construction of the last will and testament of his father, for a decree determining the estate which was devised to the widow by said will,, and for other relief.

The principal question involved is whether or not the. widow, now Alvina M. Scofield, was by the will given a. life estate or an estate in fee in a portion of testator’s, farm. The disposing part of the will reads as follows:

“First. I give and bequeath to my wife, Alvina M. Thorn, my homestead, consisting of thirty acres on the southeast corner of Section 5, the Township of Hanover, County of Jackson, State of Michigan, and also one-half my personal property, to be accepted by her in lieu of dower.
“ To my daughter, Angeline M. Hatch, my small armed chair, known as the Aunt Jamson chair, and to her husband, John A. Hatch, my large bookcase and such books as he chooses to take with it, and to my son, Thomas D. Thorn, my chest of carpenter tools, also the large picture, of his mother, my first wife.
‘£ Secondly. I give and bequeath to my son, R. A. Thorn,, my account book of the firm of Jas. L. Thorn & Son, and. also my Blaine’s ‘ Twenty Years in Congress,’ two volumes. The remainder of my library to be divided among-my children, share and share alike, my wife to have an equal share with them.
“Lastly. I give and bequeath to my son, Thomas D. Thorn, all my lands on Sections 2 and 4 in said Township of Hanover, reserving the right of my widow to occupy the homestead during her natural life on condition that he pay to my daughter, Angeline M. Hatch, $300.00; also to my daughter, Caroline L. Stone, $300.00; also to my daughter, Mary S. Gildersleeve, $300.00, amounting: to nine hundred dollars in all.”

The testator had no homestead and no 30 acres of land on section 5. His homestead was on section 2. The. widow conveyed said 30 acres to her daughter, the defendant Matie E. Whitmore, who, it is claimed by defendants,, paid her $500 and gave back a mortgage for $2,000 to secure the remainder of the purchase money. The estate has been settled.

We agree with the circuit judge that it is clear that the intention of the testator was to devise to his widow a life estate in said parcel of land, with remainder in fee to complainant. It is contended by counsel for appellants that the beneficiaries under the will have themselves given it a contrary construction, relying upon which construction defendant Scofield released her dower, did not claim it within the statute period, and accepted the devise in lieu thereof; that the claim of the complainant has become stale, for the reason that he has rested upon his construction of the will for eight years without proceeding to secure judicial construction, and that the rights of a third party have intervened. Considerable testimony was taken. Upon the whole record (and it would be unprofitable to set out the testimony) we reach the conclusion which is reached by the learned circuit judge, who in his opinion states:

“There is not the least proof that complainant has done a thing that he hadn’t a right to do, or that would not be the natural and proper thing for him to do, consistent with his claim of the fee in this homestead subject to the life estate of the widow.
“ She has the right under this will to use this land as long as she lives. He has not interfered with that right in any way, and probably would not have done so had it not been for the sale of the premises to another and the claim of title in fee.
“After such a sale and claim, did he remain silent, he might be charged with laches, which in time would ripen into an estoppel. If his claim is a valid one, he has taken the proper course in having this will construed at once. If it is not a valid one, he cannot be criticised for asking a construction of the will.
“ I am of the opinion that the contention and claim of the complainant is the true one, and that the defendant Alvina M. Scofield was vested with no more than an estate for life in the homestead described in the first clause of the will, and that the complainant is vested with the title to the same in fee simple,‘subject to the life estate of said Alvina M. Scofield, and that the defendant Whitmore, by her conveyance from Mrs. Scofield, takes only the life estate that her grantor had in the land, and that said defendant Whitmore is the owner of said land and premises only during the lifetime of her grantor, Alvina M. Scofield.”

The decree is affirmed.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.


text:
    SCHNEIDER v. VOSBURGH.
    1. Wills — Testamentary Capacity.
    In determining testamentary capacity, the law requires, not so much any particular character of intellect, as the ability to make the effort of mind and memory necessary to remember what property testator has, to consider who have claims upon it, and to know what disposition he is making of it.
    2. Same — Mental Weakness — Eeeeot.
    Although mere weakness of mind does not generally incapacitate a person from making testamentary disposition of his property, yet he cannot dispose of property, the possession of which he but barely appreciates, among parties whose relations to him he knows, but does not understand, but, if he has the requisite mental capacity, he may make either a will or a deed as eccentric, injudicious, or unjust as caprice, frivolity, or revenge can dictate.
    3. Same — Undue Influence — Eppect.
    The question of mental capacity to execute a testamentary instrument depends largely on the question of undue influence, and, if no such influence is shown, a degree of capacity will be regarded as adequate which would not be so regarded if it were unduly acted upon.

      4. Same — Extent op Influence.
    In order to sustain a deed or a will as against a charge of undue influence, it is not necessary that an absolute freedom from influence be shown, but the question is whether the testator’s or grantor’s mind has been overcome.
    5. Same — Ability to Exert Mind.
    Weakness of mind and forgetfulness are not sufficient to invalidate a will or deed, if it appears that the testator’s or grantor’s mind was capable of attention and exertion when aroused and was not imposed upon.
    Appeal from Kent; Perkins, J.
    Submitted February 28, 1906.
    (Docket No. 209.)
    Decided March 27, 1906.
    Bill by Hugo A. Schneider, special administrator of the estate of William Livingston, deceased, against Charles F. Yosburgh and Jennie Yosburgh to set aside a deed. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      L. E. Carroll (GeorgeE, Nichols and M. A. Nichols of counsel), for complainant.

      E. C. Watkins (E. J. Doyle, of counsel), for defendants.
   Ostrander, J.

We agree that this case was rightly disposed of below, and adopt, for a statement of facts and of conclusions, the following opinion of the trial judge:

“ In this case a bill was filed by the special administrator to set aside a certain deed executed by William Livingston, since deceased, conveying to the- defendants a certain house and lot in this city, valued at about $3,600, on the ground of undue influence and mental incompetency.
“The defendant Charles F. Yosburgh is a nephew of the deceased, and with whom the deceased lived during the last two years or thereabouts of his life. The contestant in the case is a brother of the deceased, who lives in New York State, and whom the deceased had not seen for at least 40 years before his death.
“ The deceased was about 70 years of age at the time he executed the deed in controversy, and was in very feeble health. For some years prior to his death he had heen addicted to the use of intoxicating liquors, and at one time had suffered an attack of delirium tremens. The immediate cause of his last sickness was a stroke of paralysis or apoplexy, which interfered materially with the use of his vocal organs. He had two strokes; the first taking place on or about the 17th day of March, 1904, and the last one during the latter part of the month of April following. He died May 11, 1904.
“ The deed in controversy was executed April 6, 1904, while the deceased was ill and confined to his bed. On March 19,1904, a few days after his first attack, he had made and executed his last will and testament. On the 6 th of April following he sent for an attorney for the purpose of making a deed which would dispose of his entire property, and it is this deed, executed on that day and under the circumstances shown, which is claimed by the complainant to be void as the result of mental incompetency, and because of the undue influence exercised upon the deceased, at and before the time the deed was so executed, by the defendants Vosburgh. There is no doubt about the precarious condition of the deceased’s health at the time this deed was executed. There is no doubt, also, under the proofs, that his mind was in a somewhat enfeebled condition.
“ The rule applicable to cases of this kind is well established by the great preponderance of authority. The rule may be stated to be that the law requires, in determining mental capacity, not so much any particular of character of intellect as the ability to make certain efforts of the mind and memory. These are stated variously, but the cases concur in the same general results, namely, that the party must be able to remember what property he has, to consider who have claims upon it, and to know what disposition he is making of it. Delusions affecting any one of these subjects will destroy capacity, and when delusions are shown this is said to be the best test; but in the case at bar there are no delusions shown which would affect the conveyance by the deceased of his property. Although mere weakness of mind does not generally incapacitate, yet one cannot dispose of his property the possession of which he but barely appreciates among the parties whose relations to him he may know, but does not understand. On the other hand, if he has the capacity indicated, nothing can prevent him from making either a will or a deed as eccentric, as injudicious, or as unjust as •caprice, frivolity, revenge can dictate.
“As in the case of contracts, issues such as are formed in the case at bar largely depend on the question of undue influence by others. If no such undue influence is shown to have been exercised, a degree of capacity will be regarded as adequate to make a deed or a will when the .same degree of capacity would be regarded as inadequate were it unduly acted upon by force or fraud of others. The question is: Was the document in question the grantor’s deed, or, in the case of wills, the testator’s will ? If he had a disposing mind, no matter how feeble, and this disposing mind was allowed freedom in its play, then, the will is to be sustained, and the same is true if the instrument is a deed, as in the case at bar. But, if he was defrauded or coerced by those about him, then the deed or the will is to be set aside, no matter how high may have been the standard of his capacity. The lower the degree of intellect, the less the amount of proof of fraud or of •coercion is required to set the deed or the will aside.
“Again, it is not necessary in order to sustain either a deed or a will that there should be an absolute freedom from influence shown. There is no testator or grantor under the circumstances shown in this case absolutely free from influence. The test is: Were such influences applied as to take away his freedom of disposition ? If so, if his will was overcome by force, either physical or moral, •or perverted by fraud, then a testamentary disposition of the property or a deed so made cannot stand.
“Weakness of mind and forgetfulness, therefore, are not sufficient to invalidate a will or deed, if it appears that the testator’s or the grantor’s mind was capable of. attention and exertion when aroused, and was not imposed upon. It has been truly said that the weak have the same right with the prudent and strong-minded to dispose of their property. In general, so that capacity exists, courts will not undertake to measure the degree of that capacity, ■ and they will protect those deficient in strong natural ability in the exercise of the powers they possess. Eccentricity, unless it take the form of monomania, will not incapacitate a man from making a will or a conveyance of his •property.
“Under these well-recognized rules, which are summarized from the various cases on this subject, I am satis.fied:
“ 1. That there is no proof which would authorize the court to find that the grantees in this deed, or either of them, exercised, or sought to exercise, any undue influence upon the deceased in relation to his execution of this deed.
“ 2. While the deceased was in a feeble condition of health and his mental powers not as active as in former years, the proof satisfies me that he had sufficient mental capacity to understand the nature of the act he was about to undertake, the nature and extent of the property he was about to dispose of, as well as the names and identity of the persons who were the objects of his bounty, and his relations toward them. During his declining years he had found a home with the defendants, and, while he had paid a small amount for his board, yet the proofs show that, notwithstanding the great care required to attend to his various wants, the best of feeling existed between the defendants and the deceased the whole time he was with, them and down to the time of his death. There is no particular reason that the deceased should have wished his property to have gone to his brother, whom he had not seen for 40 years, but there is every reason to believe that the only rational desire he could have had must have been to bestow that property upon those who had been kind to him in his last years and had taken care of him during his last sickness.
“ The conclusion is that the bill of complaint in this cause should be dismissed, with costs.”

The decree is affirmed, with costs.

Carpenter, C. J., and McAlvay, Blair, and Moore, JJ., concurred.


author: Carpenter, C. J.

text:
    CHADWICK v. PHŒNIX ACCIDENT & SICK BENEFIT ASS’N.
    1. Evidence — Admissibility—Cause of Death.
    A physician may testify to the cause of a person’s death, though he was not present when the death occurred; it appearing that he was the attending physician, and had called on the patient every day for several days preceding the death.
    2. Appeal and Error — Review — Findings of Fact — Sufficiency of Evidence.
    Findings of fact which are justified by the evidence will not be disturbed on error.
    3. Insurance — Action on Policy — Conditions Precedent — Arbitration.
    Arbitration is not a condition precedent to action on a life-insurance policy which provides that the validity of any claim thereunder shall be submitted to arbitration, and also provides that no action shall be prosecuted within 90 days after receipt of final proof of death or after six months after death.
    Error to Kent; Wolcott, J.
    Submitted February 27, 1906.
    (Docket No. 196.)
    Decided March 27, 1906.
    Assumpsit by Charles Chadwick, administrator of the estate of Chester Blineberry, deceased, against the Phcenix Accident & Sick Benefit Association on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Adams & Eyan, for appellant.

      Holmes & Holmes, for appellee.
   Carpenter, C. J.

Defendant insured the life of plaintiff’s intestate. After the death of said intestate plaintiff brought this action to recover the amount of said insurance. The case was tried before the court without a jury, and judgment rendered in favor of plaintiff.

Defendant asks us to reverse the judgment on three .grounds, which we will discuss separately:

First. It is insisted that the trial court erred in permitting a witness for plaintiff, one Dr. Evarts, to testify to the cause of the death of plaintiff’s intestate. Defendant insists that this testimony was inadmissible because the doctor was not present when the death occurred. It does appear, however, that the doctor was the attending physician, and had called upon his patient once each day for several days preceding his death.. We think the testimony was admissible.

Second. It is urged that, if the evidence shows anything, it shows that the death resulted from an acute aggravation of a chronic disease, and was, therefore, not covered by the contract. This complaint challenges the correctness of the findings of fact of the lower court. It is sufficient to say that there was evidence to justify those findings, and that we have, therefore, no right to disregard them. Allen v. Field's Estate, 124 Mich. 466; Fuller v. Ehle, 116 Mich. 13; Hanish v. Kennedy, 106 Mich. 455.

Third. Defendant contends that this suit at law cannot be maintained because the contract provides for submitting the dispute to arbitration. There was an agreement in the contract that the validity of any claim thereunder should be submitted to arbitration. The policy also provided :

“That no suit or legal proceeding * * * shall be brought or prosecuted within 90 days after receipt of final proofs * * * and no action shall be maintained or recovery had unless such proceedings be commenced within six months from and after death. ”

Did these agreements prevent plaintiff maintaining this suit ?

A mere agreement to arbitrate does not prevent a suit at law. McGunn v. Hanlin, 29 Mich. 476. To have that effect, it must be accompanied by another and further agreement which either in express terms or by proper construction makes the award a condition precedent to the right of action. Hamilton v. Insurance Co., 137 U. S. 385; Lesure Lumber Co. v. Insurance Co., 101 Iowa, 514; Birmingham Fire-Ins. Co. v. Pulver, 126 Ill. 329; Canfield v. Insurance Co., 55 Wis. 422; Reed v. Insurance Co., 138 Mass. 576; Seward v. City of Rochester, 109 N. Y. 164. This doctrine is supported by the decision ■of this court in Me Gunn v. Hanlin, supra, where it was said:

“There is no authority for holding that parties who have agreed to arbitrate have by their agreement precluded themselves from resorting to a court of justice.”

As the award was not made a condition precedent in the case at bar, we are bound to say that the agreement to submit to arbitration does not prevent plaintiff maintaining this suit.

The judgment is affirmed.

McAlvay, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    SIEGEL v. UNITED ELECTRIC HEATING CO.

    1. Master and Servant — Personal Injury — Negligence—Dangerous Instrumentalities — Duty to Warn.
    In an action against a roaster for injuries to a servant arising from the explosion of varnish containing amyl acetate, evidence examined, and held, insufficient to go to the jury on the is'sue of whether the master was negligent in failing to-warn the servant of the explosive character of the varnish.
    2. Same — Care Required.
    A master using varnishes in his business is not required to warn his servants of dangers attending their use that are within the knowledge only of persons having the knowledge of skilled chemists; to require more than the knowledge possessed by the ordinarily well-informed user of varnishes would require more than ordinary care.
    Error to Wayne; Rohnert, J.
    Submitted March 1, 1906.
    .(Docket No. 25.)

    Decided March 27, 1906.
    Case by Frederick W. Siegel, by next friend, against the United Electric Heating Company for personal injuries. There was judgment for defendant notwithstanding -a verdict for plaintiff,' and plaintiff brings error.
    Affirmed.

      Charles T. Wilkins, for appellant.

      Louis C. Wurzer and May, Denby & O'Brien (Clarence A. Lightner, of counsel), for appellee.

       Rehearing denied June 4, 1906.

   Carpenter, C. J.

,.Plaintiff, an intelligent boy 15 years old, was injured while an employe of defendant. He brought this suit to recover compensation, charging that his injury was caused by defendant’s negligence. The case was submitted to a jury under a stipulation—

“ That if, upon a motion for a new trial, the court concludes that it should have taken the case from the jury, he may enter an order at that time to that effect, and enter judgment for the defendant.”

The jury rendered a verdict for the plaintiff. Upon a motion subsequently made the trial court, acting in pursuance of the above stipulation, entered judgment for the •defendant. From that judgment plaintiff appeals.

The question for our consideration is whether he made a case which the trial court was bound to submit to a jury. Upon behalf of plaintiff only two witnesses, viz., plaintiff himself and Dr. John M. Francis, gave testimony bearing upon the cause of action. It appeared from plaintiff’s testimony that the business of defendant was the making of all kinds of electric heating machines. In the basement of the building occupied by defendant was a room which may be called the paint room. Upon a bench in this room stood the various paints, oils, and varnishes used by defendant in painting and varnishing the machinery it manufactured. Standing among these was a two-gallon can containing less than a gallon of a variety of varnish called bronzine. This bronzine, as plaintiff testified, looked like varnish and smelled like banana. It had formerly been used by defendant for gilding radiators, but had been laid aside because it was not suitable for that purpose, and for some time prior to the accident had been used only for polishing shoes. In the same room, and about eight feet distant, stood a stove. The door of this stove opened at right angles to a line drawn from the stove to the can of varnish above described. On the day of the accident a fire was burning in this stove. One Frank Oarr, a co-employé of plaintiff, desiring to polish his shoes, plaintiff was directed by his immediate superior to accompany Oarr to the paint room and point out this can. Plaintiff did as directed. Oarr took the can, took off its cover, poured some of its contents on a piece of waste and set it back on the bench; thereupon a flame came from the can and an explosion occurred which seriously injured plaintiff. Plaintiff also testified, that he was not warned of this danger, and did not know that the service he was called upon to perform was dangerous.

It is not claimed that this testimony warrants the inference of negligence, but it is claimed that this testimony, considered in connection with that of plaintiff’s other witness, Dr. Francis, does warrant such inference. Dr. Francis testified that the only liquid which looks like varnish and smells like banana is amyl acetate or essence of banana; that this acetate is sometimes used in.the manufacture of varnish; that it is used sometimes as a solvent and sometimes as a deodorizer; that it is volatile at the temperature of an ordinary living room; that its vapor is explosive ; that he can account for the explosion which injured plaintiff upon the assumption that this amyl acetate was present in large proportion in the varnish in said can; that if so present, sufficient of that essence might have volatilized to fill that part of the can unoccupied by its liquid contents; that the can, being covered and undisturbed, would retain this vapor, and when Carr moved it the vapor would come out, roll toward the direction of the fire, there be ignited and explode. He also testifies: “ Without knowing anything of the possible quantity of amyl acetate, I cannot say positively that it would be dangerous;” and later “not knowing the amount of amyl acetate in that can, I could not swear that it would be dangerous. ” If this testimony does not affirmatively prove that the use of a small quantity of amyl acetate in manufacturing varnish is not dangerous, it certainly fails to prove that the use of such small quantity is dangerous. Neither does it appear from the testimony of Dr. Francis that there is a similar danger of explosions in the use of ordinary varnish. (And it does affirmatively appear by the testimony of defendant’s witnesses that there is not.) It appears by his testimony that, although all varnishes, contain inflammable ingredients, “ they differ in their volatile character considerably,” and “the manufacture of varnishes used on radiators does not necessitate the use of a highly volatile solvent.” This testimony made no case for a jury, unless it warrants the inference that defendant negligently sent plaintiff into a place of danger without warning him of that danger. Defendant was not negligent, unless it either knew or should have known the danger to which plaintiff’s employment exposed him. This testimony clearly .does not warrant the inference that defendant knew it. Does it warrant the inference that defendant should have known it? In determining this question, it should be borne in mind that defendant did. not manufacture this varnish. Defendant purchased the varnish for the purpose of using it to guild radiators. This record does not establish a single circumstance calculated to arouse defendant’s apprehension.

As defendant was bound to exercise the care and only the care that an ordinarily prudent person situated like itself would exercise, it was bound to know what and only what such ordinarily prudent person should know. Pollock on Torts, p. 26. For the purpose of fixing a basis for determining diligence, we cannot say that defendant must know more than the ordinarily well-informed user of varnishes. Is it to be presumed that such user would suspect that the can of bronzine contained this dangerous and explosive vapor ? I think this question.must receive a negative answer. To answer it in the affirmative we must hold that one who purchases varnish (an article not like dynamite, supposed to be intrinsically dangerous) for use in his business must ascertain at his peril the ingredients used in its preparation, their proportion and their properties. To know this he must possess more knowledge than is possessed by the ordinarily well-informed user of varnishes. Indeed, he must possess the extraordinary knowledge of a skilled chemist. To hold an employer liable for injuries to his employe upon the assumption that he has such knowledge would require him to exercise extraordinary care. He does his duty when he exercises ordinary care. See Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Michigan Cent. R. Co. v. Dolan, 32 Mich, 510; Grand Rapids, etc., R. Co.v. Huntley, 38 Mich. 546; and Lindstrand v. Lumber Co., 65 Mich. 254.

Plaintiff contends that defendant did know that paints and varnishes brought in contact with fire were liable to explode, and that it is liable, because it failed to warn plaintiff of this danger. We are justified by this record in saying that defendant’s knowledge of the danger from bringing paints and varnishes in contact with fire did not warrant the belief that they would emit vapors which would take fire from a stove several feet distant. In other words, that knowledge did not warrant defendant’s apprehension of the accident which happened to plaintiff. It did not warrant the belief that the service upon which plaintiff was sent was a dangerous one. Had plaintiff been warned of the danger known to defendant, it would not have saved him from the disaster which occurred. This record justifies our saying that defendant did not know and had no reason to believe that the service which plaintiff was sent to perform was a dangerous one. There is therefore no ground for charging that defendant was negligent in directing plaintiff to perform that service, or in failing to warn him that it was dangerous. See Sjogren v. Hall, 53 Mich. 274.

The learned trial judge was right in entering judgment for defendant, and that judgment should be affirmed.

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


text:
    MOINET v. BURNHAM, STOEPEL & CO.
    1. Certiorari — Questions Considered — Objections — Sufficiency.
    On certiorari to review the overruling of a motion to set aside the return of service of a declaration filed as commencement of suit, an objection that the question cannot be considered under Act No. 310, Pub. Acts 1905, because defendant’s motion was not a motion to quash the declaration, is an objection merely to the form in which defendant elected to bring the question into this court, and having been first raised by plaintiff’s brief, and defendant having been entitled to raise the question by dilatory plea and secure review of an adverse decision in the same manner, the objection will not be considered.
    2. Courts — Decisions—Stare Decisis.
    Decisions are not binding authorities as precedents upon propositions which should have been, but were not, considered.
    S. Corporations — Service of Process — Statutes.
    Section 30, Act No. 232, Pub. Acts 1903, providing for service of process upon “the agent in charge of any business office of such corporation,” is not the only authority for the service of process upon a mercantile corporation, but service may be had upon any agent, whether in charge of a business office or not, under section 10468, 3 Comp. Laws. Goodrich v. Hackley-Phelps-Bonell Co., 141 Mich. 343, affirmed.
    4. Same — Agents—Service of Process.
    A traveling salesman is an agent of a domestic mercantile corporation, upon whom service of process may be had under section 10468, 3 Comp. Laws.
    Certiorari to Clinton; Stone, J.
    Submitted March 1, 1906.
    (Docket No. 222.)
    Decided March 27, 1906.
    Assumpsit by Edward J. Moinet, trustee, against Burn-ham, Stoepel & Company for money had and received. There was an order overruling a motion to set aside a return for want of proper service, and defendant brings certiorari.
    Affirmed.

      Geer, Williams & Halpin, for appellant.

      Edwin H. Lyon and J. Earle Brown, for appellee.
   Carpenter, C. J.

Plaintiff is a resident of the county of Clinton. Defendant is a mercantile corporation, organized under the laws of this State, whose home office is in. the city of Detroit. This suit was commenced by declaration in the circuit court for the county of Clinton. Service was effected, as shown by the return, by delivering a copy of said declaration, together with a true copy of the-notice to appear and plead, “to Albert D. Chamberlain, who was then and there a traveling salesman and agent of said defendant.” Defendant moved to set aside this, return, upon the ground that it did not comply with the-law. The trial court made an order overruling this motion. We are asked to review and vacate said order; the proceedings having been brought to this court by writ of certiorari.

The first question for our determination is raised by plaintiff’s objection (this objection was made for the first-time in plaintiff’s brief) that defendant had no right to-have this question determined by a writ of certiorari. The validity of this objection depends upon the proper construction of Act No. 310 of the Public Acts of 1905.. That act reads:

“Whenever in any action at law in a circuit court, a motion to quash the writ or declaration upon jurisdictional grounds, or the issues raised on a demurrer, plea to-the jurisdiction or other dilatory plea shall be decided adversely to the party filing such motion, demurrer or plea,, the decision may be reviewed by writ of certiorari forthwith.”

If it be true that defendant’s motion to vacate the return of service is not a motion to quash the declaration, and therefore not reviewable under the foregoing act, it is also true that, had defendant raised the same question (as-it might) by a dilatory plea, the act gave it a right to have an adverse decision reviewed. In other words, plaintiff’s. objection relates, only to the form in which defendant elected to bring this question in this court. This objection should have been brought to our attention by a motion to dismiss the writ before defendant went to the expense of preparing for the hearing of the cause, and, not having been so made, we will disregard it. See Tweddle v. Judge of Superior Court of Grand Rapids, 134 Mich. 237.

Defendant contends that the service made in this case was unauthorized, on the ground that the only provision for service of process on a corporation like defendant, that is, manufacturing and mercantile corporations, organized under Act No. 232 of the Public Acts of 1885, and the acts amendatory thereof, is to be found in section 30 of Act No. 232 of the Public Acts of 1903, and that the only agent upon whom such process can be served is “the agent in charge of any business office of such corporation,” as provided in said section. In Goodrich v. Hackley-Phelps-Bonell Co., 141 Mich. 343, this court decided that, notwithstanding said provision, process might be served in conformity with section 10468 of the Compiled Laws of 1897, “upon the agent of such corporation,” viz., agents who are not, as well as those who are, in charge of the business office of the corporation. Defendant asks us to overrule that decision. It insists that our decision in that case is directly opposed to our decision in Toledo Ice Co. v. Hunger, 124 Mich. 4, and that we must overrule one or the other of these two opposing decisions. The most that can be said of our decision in Toledo Ice Co. v. Hunger is this: That, if this court had there considered and affirmed the proposition decided in the Hackley Case, it would have reached a different conclusion. That proposition was not, however, considered. It was not even presented, and decisions are not binding authorities as precedents, upon propositions which should have been, but which were not, considered. Atwood v. Hayor, etc., of Sault Ste. Marie, 141 Mich. 295; Duff v. Fisher, 15 Cal. 375. The Hackley Case did not therefore overrule Toledo Ice Co. v. Munger, and, by reaffirming that decision, we do not overrule it.

The other arguments of defendant in support of its contention do not raise any question not considered by the court in deciding Goodrich v. Hackley-Phelps-Bonell Co., supra. We decline to overrule our decision in that case.

It is also urged that the agent upon whom the declaration in this case was served, being only a traveling salesman, is not an agent of the character contemplated by the statute. Section 10468, 3 Comp. Laws. In Ryerson v. Wayne Circuit Judge, 114 Mich. 352, this court held that a traveling salesman was “an agent of the corporation,” within the meaning of Act No. 61 of the Public Acts of 1895, an act providing for service of process on foreign corporations. The only distinction between that case and the case at bar is this: That the statute there involved related to a foreign corporation, while the statute involved here relates to a domestic corporation. We think this distinction of no consequence. The Ryerson Case is in point, and is decisive against defendant’s contention now under consideration.

We think that service was properly made, and the order overruling the motion to set aside the return is affirmed.

McAlvay, Blair, Ostrander, and Moore, JJ., concurred. ■


author: Blair, J. Grant, J.

text:
    DANIELS v. BAY CITY TRACTION & ELECTRIC CO.
    1. Receivers — Street Railroads — Liabilities for Injuries— Purchasers at Sale.
    A decree for a receiver’s sale of a railroad provided that the purchaser should take subject to the payment of all claims for damages against' the receivers, and should discharge all claims filed previously or within four months after entry of the decree, but only when and as the court should allow the claims. Held, that the limitation as to the filing of claims within four months did not refer to undetermined claims against the railroad for damages pending or arising within the period limited.
    2. Street Railroads — Operation—Rights in Street.
    A street railroad has the right of way, and under ordinary circumstances it is the duty of other travelers using the tracks to yield them to the cars upon their approach.
    3. Same — Injuries to Person on Track — Contributory Negligence.
    One who drove upon a street-railroad track ahead of a car at a time when, if he had looked, he would have seen that he could not get across in time to escape the car, and who knew that the car was behind him and traveling at a high rate of speed, was guilty of contributory negligence.
    4. Same — Discovered Peril — Question for Jury.
    In an action for injuries to plaintiff in a collision between his vehicle and a street car, evidence examined,- and held, that the question whether the motorman could have avoided the collision by the exercise of reasonable care after discovering plaintiff’s negligence was for the jury. Grant and Hooker, JJ., dissenting in part.
    Error to Bay, Shepard, J.
    Submitted December 8, 1905.
    (Docket No. 180.)
    Decided March 27, 1906.
    Case by William D. Daniels against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      T. A. E. & J. O. Weadock, for appellant.

      John Brigham {De Vere Hall, of counsel), for appellee.
   Blair, J.

The Philadelphia Securities Company, trustee, filed its bill in the circuit court of the United States for the eastern district of Michigan, northern division, to foreclose certain mortgages made by the Bay Cities Consolidated Railway Company, and receivers were appointed, who were authorized to operate the railway. On July 90, 1903, a decree was made in said cause, directing the sale of the property subject to the payment of current costs and expenses of operating the property, and subject also to the payment of any and all claims for damages and taxes against the receivers, and providing that the purchaser or purchasers of said property shall assume all contracts and obligations of the receivers, excepting only such as are to be paid out of the purchase price, and shall pay and discharge all receivers’ indebtedness and liabilities and any and all claims heretofore filed in this cause or that may hereafter be filed, within four months from the date of entering this decree, but only when and as the court shall allow such claims, and allow the same to be liens prior to the mortgages foreclosed.

“It is further ordered, adjudged, and decreed that as soon as the special master shall have reported upon the sale of said property, and such report shall have been confirmed by this court, the said special master shall make, execute, and deliver to the purchaser or purchasers a conveyance thereof, and the said Bay Cities Consolidated Railway Company, at the time of the execution of such conveyance by said special master, as a further assurance to the purchaser or purchasers, shall execute proper conveyances in like manner aforesaid, or join with the special master in the execution of the deeds or conveyance made by him, and shall thereby convey and release to the purchaser or purchasers all its right, title, and interest in and' to all said railroad, franchises, and other property conveyed by said special master to such purchaser or purchasers ; and the said Michael P. Heraty and John C. Weadock, receivers, shall make and deliver a good and sufficient conveyance to said purchaser or purchasers of all their Tight, title, and interest in and to any and all property vested in or standing in their names to which they have acquired title as such receivers in the management or operation of ■said property; and, further, that they pay over to the said purchaser or purchasers, or to their successors or assigns, any and all surplus eárnings and income of said railroad that may be in their possession as such receivers .after having fully paid and discharged all debts and liabilities incurred by them as receivers, and all money obligations that may be imposed on them by order of this court or otherwise.”

On September 29, 1903, the special master sold the railway, reported the sale on the same day, and it was approved on the following day, and the special master was •directed, upon receipt of the purchase money bid for the property, viz., $500,000, to make, execute, and deliver to the United Traction Company which was the purchaser, a proper deed of conveyance. The special master was also required to publish, at least once a week for a period of six weeks, a notice requiring the holder of any claims against the Bay Cities Consolidated Railway Company or said receivers to present the same for allowance on or before the 20th day of November, 1903, and any claims presented and allowed by the court to be liens prior to the mortgage were required to be paid by the purchaser as provided in the decree, and all claims not presented within the time above limited should be absolutely barred. No notice requiring presentation of claims was published as ordered. Attached to the order was the form of the ■deed which he was required to execute, and this deed was •executed and delivered on the 1st day of December, 1903, up to which date the receivers continued to operate the property, making reports to the court, the first being made •on the 14th day of October and the last on the 1st day of December. This report covered receipts and disbursements from the 30th day of September, 1903, to the 1st day of December, 1903, showing a total of receipts during such months, including $2,507.90 on hand on said 1st day of October, 1903, of $16,775.43, and a total of disbursements during such two months of $12,503.75, and a net cash balance on hand on the 1st day of December, 1903, of $4,271.68. Upoii receipt of the final report on the 1st day of December, it was referred to the special master, and, on the 3d day of December, the report was approved and the .receivers discharged. In the final report of the receivers, mention was made of the several actions then pending against them on account of claims for damages, and these claims were assumed by the purchaser, but ne mention was made of the claim of the plaintiff herein. The United Traction Company was consolidated with the Traction & Power Company under Act No. 197 of the Public Acts of 1891 under the name of ££ Bay City Traction & Electric Company.”

On October 29, 1903, during the time when the railway was being operated by the receivers, after it had been sold to the United Traction Company and before the United Traction Company had paid the purchase price, the plaintiff in this case was injured by colliding with one of the cars so operated by the said receivers. The injury was occasioned by reason of a collision between a delivery wagon, in which the plaintiff was driving, and a street car, which occurred on the westerly approach of the Third Street Bridge in West Bay City. The approach to the bridge is 36.39 feet in width, and for a distance of 158 feet there is, on either side, a stone coping, which rises to a height of 3 feet above the brick pavement. The railway has a track on either side of the approach. Some 38 feet east of the west end of the south retaining wall, the tracks begin to curve gradually towards the retaining walls, continuing the curve to point about 20 feet from the bridge, when they run directly east onto the bridge on either side near to the structural steel work. At the beginning of the curve the south rail of the south track is 10.79 feet from the retaining wall, while at the end of the curve the distance is narrowed to 7.5 feet. Just beyond the terminus of the curve the coping angles sharply towards the structural steel work of the bridge until it is only some 2 feet and 4 inches from the south rail. At the beginning of the curve the two tracks are 6.72 feet apart, while at the end of the curve they are 12.63 feet apart. The plaintiff was driving from the west towards the east, having been in West Bay city for the purpose of making delivery of certain tinwork. The plaintiff is 76 years of age. He claims that-when he came onto Midland street, which is the street leading to the bridge, at a point about 1,000 feet west of the bridge, he stopped and looked up the hill, which would be towards the west; did not see any car, and followed two big wagons that were driving easterly across the bridge on the south side. That after he crossed the Michigan Central Railroad Company’s tracks a distance of about 100 feet, when he would be about 800 feet from the bridge, he heard the car coming across the Michigan Central tracks. He then urged his horse to a faster gait and kept on going until he got on that part of the approach between the retaining walls where the stone coping is, when he turned onto the track and the car hit the hind end of his wagon, sending the plaintiff ahead and throwing him onto the bridge. He was accustomed to driving horses all of his life. His hearing was slightly affected. He said, upon cross-examination, that he was in a hurry to get back. He knew the car behind him was going in the same direction as himself and at a faster rate of speed; that he kept as far away from the south rail of the track as he could until he came almost to the bridge, being clear of the track all of the time until he undertook to cross it and was hit. He knew the car was coming behind him when he turned, and knew that he could have stopped. He did not try to stop, but drove to get across as fast as he could.

“It was all done in a second. I knew the car was behind me, but I thought I had plenty of chance to get behind this other car because I hadn’t room between the track and the stone, and I thought if the motorman slowed down the least mite, I could get in the road.”

The plaintiff’s witness Clute saw him pass the window of his office, about 150 feet from the bridge, going very-fast. The car was some 30 feet behind plaintiff at this point and going faster than plaintiff was.

“ When I saw him, he was clear of the track, in a position where he was perfectly safe, if he stayed there. If he had slacked down or stopped, he was perfectly safe when I saw him.”

Plaintiff testified:

“ I heard the car coming over the cuts on the railroad, and I looked back and the car was coming pretty fast. Then I clicked up my horse and I caught up with two big wagons, right tight to them. I looked back once and saw the car. It was on the south track. I was driving for the bridge. I was on the pavement until I got up into where that big high stone coping is, and. there wasn’t room, and I thought then I was a little ahead of the car, may be as far as across this room, and I thought I would cut across, and there was a car going west on the bridge, on the north track, meeting these teams. As quick as the car got along so as I could get in behind them, I undertook to cut across. I turned the horse — I just got the horse turned like this, and he struck me in the hind end of my wagon and sent me way ahead of the horse. When I heard and saw the car coming behind and saw it coming fast, I didn’t drive across on the other side of the street, for two reasons. One of the reasons, I met a farmer after I crossed the Michigan Central, and I met a number of farmers going west. That gave me the right of the road. Then I looked up and there was a car on north track afyout on the draw of the bridge going west. I dasn’t drive across. The car was behind me; it was following me, about as far as across this room when I undertook to turn to get in the road. The two cars could not have met much from where the wagon laid. The wagon smashed right down. I didn’t dare to stop on account there was no post to hitch to, and I didn’t know but my horse might tear away from me. If he had tore away, he would have tore a good deal of other things to pieces. I should think he was 7 or 8 or 9 years old.”

And again:

Q. You were clear of the track, all the time, wasn’t you ?
“A. I was until I crossed or undertook to cross up there "by the approach.
“ Q. Then you were clear of the track all the time until just when you got hit ?
“A. That is the nearest I was to the track.
Q. You were away from the track so that you were safe all the time until just when you started to cross over and got hit — is that right ?
“A. I don’t know, I think I was.”

Plaintiff’s witness Schmidz testified:

“ I was sweeping and cleaning up the bridge from Clute’s office to where it turns into the pickle factory. On the day of the accident, at the time of the accident, I was not on the bridge at all; that is, the part between the two retaining walls. I must have been west between four and five hundred feet, west of the retaining walls. Mr. Daniels was about up to that high curbing when the car passed me, Mr. Daniels was on the south side of the track, clear of the track, and clear of a car running along the track. He was safe as far as I seen him. I could see him until the car took him out of my sight. All I seen then was the horse. That is the last I seen. There was, I think, two wagons immediately ahead of him. He must have been 10 or 12 feet behind them before he turned, before he swung in the track. The way it looked to me, I could see the old gentleman would get hurt. I was under the impression that the wagons that were ahead of him kept on and went on ahead of him and on the bridge before the accident. I had an idea that the old man was going to be crushed or struck, I thought. I got that idea when I was watching him; when that rig went ahead of the car; the way he went ahead of the car. He was driving at a slow trot. There was nothing I saw to prevent him from stopping the horse. The other rigs kept clear. I think the car was going 11 miles an hour when it went by me, and it was going 11 miles an hour when the collision occurred.”

Defendant’s motorman testified:

“ As I crossed the Michigan Central tracks on Midland street and from that time on until I came toward the bridge approach, I should judge I was going about 6 or 7 miles an hour. When I got a little more tnan midway from the bridge to the Michigan Central tracks, I saw Mr. Daniels — I should think about 100 or 150 feet ahead of me. I rang my rotary gong and continued on ringing it until I got to the bridge. It sounded loud. As I got near the bridge approach Mr. Daniels was in pretty close to- the track, and I rang my gong and the rig swung out a little bit; then I turned my current on and increased the speed of the car. When I slowed down I guess I was going two or three miles an, hour. I had the car under control. When he pulled over away from the track, he was near the west end of the stone coping. The horse was going along at a slow trot, not very fast, and as I came up, the horse slowed down. I don’t know whether — he pulled him down, I guess. I was running slow, and I increased the speed of my car and started up on the bridge approach. I thought he was perfectly safe. As I approached the bridge, I got nearly up to the horse, right alongside, nearly passed within 20 feet of the corner of the coping when I saw the horse going by me. I then reversed the car and come to a stop, just as quick as I could bring the car to a stop. The front hub of the wagon struck the back of the corner post of the car, back of the post, and the right wheel struck the curbing of the bridge where it runs to make a grade- to go up on the bridge. The old gentleman was thrown out on the road in front of the rig' between the two south rails. He hung onto the lines. When the rig struck he was going só fast that the rig struck and stuck right in there solid and he went out on his head. I noticed him having hold of the lines as it struck. He went somewhere near the end of the shafts. The shafts remained attached to the •Wagon. * * * From the time I entered this coping I had the car under such control that I could stop it at any time within 25 feet.
Q. About how far would you say it is from the south rail of the south track to the coping, at the point where you say the car passed Mr. Daniels ?
“A. About seven feet and a half or eight feet.
Q. And how far would you say it is right up where the angle is in the coping ?
“A. About seven feet and a half.
Q. Is that from the rail or from the car ?
“A. From the rail.
Q. How far would it be from the side of the car to the coping ?
“A. It would be seven feet.
Q. You think the car projects over half a foot ?
“A. Eight inches.”

At the close of plaintiff’s case, counsel for defendant demurred to the evidence offered by plaintiff, and asked the court to direct a verdict in favor of the defendant, for the reasons:

‘ ‘ First. The defendant company was not operating the road at the time of the accident, and neither of the two companies, the consolidation of which resulted in the formation of the defendant company, were operating the property at the time of the accident.
Second. For the reason that it had not been made to appear upon the part of the plaintiff that the defendant is in any way liable on account of anything that may have been done by the employés of the receivers of the Bay Cities Consolidated Railway Company.
Third. For the reason that, under the testimony of the plaintiff and his witnesses, he turned in front of a moving car, which was in plain sight and within his hearing, and of the approach of which he had been warned and was aware, and the accident was the result of his own carelessness and negligence in that regard, and was contributed to by him.”

Which motion was overruled, and exceptions taken. This is made the subject of the third assignment of error.

At the close of the case, defendant’s counsel requested the court to charge the jury as follows:

“ The plaintiff in this case has failed to prove that the' defendant company, or either of the constituent companies, the consolidation of which resulted in the organization of the defendant company, was operating the road at the time of the accident, and it appears without dispute that the defendant company was not operating the road at the time and had nothing to do with the operation of the property until the 1st day of December, 1903. Therefore, your verdict must be for the defendant.”

This is made the subject of defendant’s fourth assignment of error.

The court was requested to charge the jury, among other things, as follows :

“The plaintiff in this case, under the testimony given by him and introduced upon his part, undertook to cross the track when, to his knowledge, a car was approaching from the west and within a few feet from him. That was negligence upon the part of the plaintiff, and, being guilty of negligence contributing to the accident, he cannot recover.”

This is made the subject of defendant’s fifth assignment of error.

We think the suit was maintainable against the defendant. The decree clearly requires that the purchaser shall take the property subject to the payment of “ any and all claims for damages and taxes against the receivers.” The provision for paying “any and all claims heretofore filed in this cause or that may hereafter be filed within, four months from the date of entering this decree, but only when and as the court shall allow such claims and allow the same to be liens prior to the mortgages foreclosed in this consolidated cause,” could not have been intended to refer to claims for damages pending or arising within the period limited and undetermined. The provision by its very terms relates to claims which were in such, condition that they might be finally allowed by the court. It is manifest that if the plaintiff had presented his claim, prior to November 20th, the court could not have allowed it. The amount of the claim, and whether there was any claim at all, was to be determined in the proper courts of the State. The order of September 30th must receive the same construction as the decree, and is limited by its terms-to “any claims so presented and allowed by this court,” etc. The final report of the receivers of December 2d mentions—

“ Certain actions pending in the State courts on account of personal injury claimed to have been received by the plaintiffs in said actions or the plaintiffs’ intestate therein, which, so far as the same are undetermined, are as follows [specifying five cases]. That the said United Traction Company, as a part of said purchase, has assumed the defense of said actions and all liability oh account thereof.”

No reference is made in this report to any allowance of these undetermined claims by the court as liens prior to the mortgage, but, on the contrary, their assumption is referred to as part of the purchase. price. We deem it certain that the filing of such claims was not required by the decree, and .that the purchaser was thereby required to assume their defense.

The declaration contains two counts. The first count charges ordinary negligence on the part of defendant, and the second count charges gross negligence, as follows:

“And plaintiff avers that said United Traction Company then and there wantonly, recklessly, and willfully, violated its duty in that regard, and on, to wit, the day and year last aforesaid, and as plaintiff was traveling easterly on said Midland street at and near the approach to the bridge therein crossing the Saginaw river, seated in a vehicle drawn by a horse or horses, the said company and its said employés and agents in charge of one of its cars moving easterly on the southerly of its tracks, wantonly, recklessly, and willfully did run into and collide with plaintiff, thereby occasioning him serious injury, to his great damage as hereinafter set forth.”

The court apparently submitted the case to the jury upon both theories, and defendant’s seventh assignment of error challenges the accuracy of the court’s charge to the jury, amongst other things, as follows:

“This is a peculiar andan exceptional case, and it is a case which presents a question of law as to the equal right of a traveler upon the highway and upon the tracks of a street railroad, in a strong light. The man had a right to approach the bridge in a careful and prudent way and go on. He is not obliged to stop and wait for someone behind him to go by, even though it be a street car. He has as good a right to drive up onto the bridge and onto the street car track to go onto the bridge as a street car behind him has to go on the same point for the same purpose, and if he does it in a careful and prudent way, such as an ordinary careful and prudent man would drive under such circumstances in carrying on his business, and the street car comes up in a careless and reckless way, without controlling his car and not having it under control, and runs into him and injures him, the company is liable. I charge you further, if the plaintiff, driving up •as he did into the coping in that narrow place, and the car approaching him behind, and the motorman saw that he was up in that narrow place within the coping, it was the duty of the motorman equally to put his car under control, and equally to guard lest an accident would happen in that narrow place and under those conditions, and he must exercise care, and the man driving the horse and wagon must exercise care to see that no accident happens. If the man was up in that place so far that it was dangerous and unsafe, and an accident might occur to him, it might be a question of judgment with him, whether or not he had best stay there or best attempt to get out by getting across ahead of the car. If he acted in the safest way that appeared to him that he ought to act in getting out of the dilemma, or the situation, and in so doing he . went ahead of the car — if he acted in what he believed to be the best and most prudent way for him to act, and he was hurt, the defendant would be liable, because he had a right to act, under the circumstances, if he was in a dangerous place, considering his horse and his knowledge of it and his knowledge of the conditions, and the fear of being thrown into the coping or retaining wall or the horse going over it, or his rig going over it with him, he must act on the circumstances as they appear to him, and the motorman, in operating his car, must know, as a careful, prudent man, and considering those same things that are liable to happen. If he was up in there so far that there was danger of an accident, and the motorman coming up behind and seeing the situation, and seeing it involved a danger of injury to him, it was the duty of the motorman to stop the car, tell him to get out of there, drive on, get out of that place, if there was danger of an accident.”

We think this charge was not justified by the circumstances of the case. While it is true that the street railway companies do not have an exclusive right to that portion of the highway covered by their tracks, they do have the right of way, and, under ordinary circumstances, it is the .duty of. other travelers using the tracks to yield them to the cars upon their approach. Furthermore, the plaintiff was not driving upon the track ahead of the car; he was driving alongside of the track, and, for the greater portion of the time, in a place of safety, until he suddenly turned onto the track immediately ahead of the car. His right to use the track- in such a case affords no greater protection than would be afforded in case of an attempt to cross at a highway crossing ahead of an approaching car. Neither did the fact that he was in a place of danger relieve him from the charge of negligence. He had negligently placed himself in a dangerous position, and, in such case, the danger cannot excuse negligence. He knew that the car. was behind him for a considerable distance 'and “was coming pretty fast.” It was only 30 feet behind him when he came to the coping. He knew the space between the coping and the track as well as the motorman did, and it was as much his duty to keep track of the car as it was of the carmen to keep track of him. If he had looked before he turned onto the track, he would have seen that he could not get across in time to escape the car.

He was clearly guilty of contributory negligence, and was not entitled to recover, unless defendant could have avoided the collision by the exercise of reasonable care after discovering his negligence. The plaintiff should have stopped his horse where there was room for the car to pass, but he did not stop, and it was a question for the jury whether, under all the circumstances, it was not apparent to the motorman that he did not intend to stop. The whole scene was spread out before the motorman; the approaching west-bound car; the two large wagons ahead of plaintiff; the narrowing space between the track and the coping finally diminishing to a little over two feet at the bridge; the overhang of his car; the necessity for plaintiff to avoid striking the coping and whether he was not evidently striving to beat the car to the bridge. If the motorman’s version of the occurrence was correct, the plaintiff was not entitled to recover; but this presented a question of fact for the jury, and we cannot say, as a matter of law, that there was no evidence to justify a conclusion that the subsequent negligence of the motorman was. the proximate cause of the injury. Montgomery v. Railway Co., 103 Mich. 46 (29 L. R. A. 287).

The judgment is reversed, and a new trial ordered.

McAlvay and Moore, JJ., concurred with Blair, J..

Grant, J.

I concur in the opinion of my brother Blair, except upon one point. I do not think the case* is one for the application of the doctrine of discovered negligence ; i. e., negligence on the part of the motorman after discovering that the plaintiff was in a dangerous position on account of his own negligence. Plaintiff, under his own testimony, was in no position of danger until he suddenly turned across the track, when the car was but a, ' few feet behind him. The whole thing happened almost instantly. I do not think there is any evidence to show that the motorman did not do all withinjhis power to avoid the accident when he saw the plaintiff turn his horse directly across the track. If there is any room for the application of the doctrine of discovered negligence, it must be because-it was the duty of the motorman to anticipate that, because the plaintiff had driven into a narrow space, he (the-motorman) must anticipate that he was liable to turn across the track. I regard it as settled by the decisions-of this court that it was plaintiff’s duty, knowing the-proximity of the car, that it was approaching, and that it. could not turn out, to stop before putting himself in a, place of danger, and let the car pass. This court said, in Rascher v. Railway Co., 90 Mich. 413, speaking through. Chief Justice Morse: “Street cars have precedence, necessarily, in the portion of the way designated for their use.” It was there also said that “this superior right must be exercised with proper caution and due regard for the rights of others.”

Plaintiff could not deliberately place himself in the narrow space between the track and the curb, knowing that the car was coming close behind him, and then invoke the doctrine that he was in a place of danger and had the right to act upon the spur of the moment as it seemed to him best to secure his safety. We held, in Redson v. Railroad Co., 120 Mich. 671, that, where plaintiff was guilty of gross negligence in leaving his team upon the track in front of an approaching train, he could not be permitted to recover upon the theory that the engineer, knowing the danger, willfully ran them down, where there was no proof to contradict the engineer’s testimony that he acted with proper caution as soon as the situation became apparent to him. Although that was a case of a steam railroad, I think the rule there established is equally applicable to this case. If, however, the question was one for the jury, I think the court should have given the following request:

The drivers of wagons have the same right upon the approach as has the railroad company. Each must go and come with due regard to the rights of others. It is well known that a street car cannot turn out; that it cannot stop readily and quickly; and persons in going on or across a street railway track must make sure that no car is approaching within such a distance that the person operating the car will be unable to stop it so as to avoid an accident. And if you find from the evidence in this case that, at the time the plaintiff undertook to cross the street railway track, if he did undertake to do so, a car was so close to him that the operatives of the car could not, with the use of the means at their command, stop the car in. time to prevent an accident, then your verdict must be for the defendant.”

Hooker, J., concurred with Grant, J.