author: Bird, J. Brooke, C. J. Moore, J.

text:
    RATHBONE v. DETROIT UNITED RAILWAY.
    1. Trial — Verdict—Surplusage—Judgment.
    If the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the unnecessary matter.
    2. Same — Joint and Several Verdict — Judgment.
    Where the jury returned a verdict for $10,000 against joint defendants and apportioned $6,000 of the amount against appellant, and $4,000 against the other defendant, and the court rejected the apportionment as surplusage and entered judgment for $10,000 against both defendants, the effect was to enter judgment against appellant for a larger amount than authorized by the verdict, and will be set aside by this court. Bird, J., dissenting.
    3. Carriers — Instructions—Degree of Care.
    In an action for personal injuries by a passenger against a street railway company, an instruction by the trial court that plaintiff “was entitled to such transportation to Port Huron, and to the use of the highest possible known care by the carrier,” followed later by the words, “the same character or degree of the highest possible degree of care is due to him,” is erroneous as requiring a higher degree of care than the law requires.
    4. Appeal and Error — Instructions—Presumptions—Harmless Error.
    Where variant intructions are given to the jury, some of which are proper and some improper, it must be presumed that the jury followed the erroneous instruction.
    6. Witnesses — Evidence—Adverse Witness — Statutes—Instructions — Appeal and Error.
    Where plaintiff called the officers of defendant railway as • witnesses to prove that defendant was operating the interurban line on which defendant’s car was running at the time of the accident, under Act No. 307, Pub. Acts 1909, permitting the calling of hostile witnesses for cross-examination, it was error for the court to refuse to instruct the jury, as requested by defendant, that plaintiff was bound by tbe testimony of sucb witnesses unless controverted. Jones v. Railroad Co., 168 Mich. 1.
    6. Same — Appeal and Erreor.
    And tbe fact that tbe issue raised by tbe question was not raised on appeal does not render tbe refusal of the court to properly instruct tbe jury error without prejudice, where plaintiff’s counsel, in bis argument to tbe jury, attacked tbe veracity of sucb witnesses although be bad offered no evidence to contradict them. Bird, J., dissenting.
    7. Damages — Excessive Verdict — New Trial.
    In an action for personal injuries by a passenger against a street railway company, where tbe evidence showed that plaintiff was in bis 77th year, and bad an expectancy of about 5 y2 years, that be was receiving an annual salary of $900, with tbe privilege of earning what be could outside, that tbe injuries consisted of a comminuted fracture of both bones of tbe right leg below tbe knee and tbe fracture of two ribs, that be made a good recovery, and at tbe time of tbe trial be was active and earning to some extent, tbe award of $6,000 damages by tbe jury was excessive, and defendant’s motion for a new trial should have been granted. Bird, J., dissenting.
    Error to Wayne; Codd, J.
    Submitted January 27, 1914.
    (Docket No. 31.)
    Decided September 28, 1915.
    Case by William Rathbone against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      William G. Fitzpatrick and Corliss, Leete & Joslyn, for appellant.

      James H. Pound, for appellee.

       For excessive verdicts in suits for damages for personal injuries see note in 14 L. R. A. 677.

   Bird, J.

(dissenting). While plaintiff was a passenger on one of defendant’s interurban cars operating between Detroit and Port- Huron, it collided with a good roads construction train, at a highway crossing near Marysville, and in consequence thereof he was seriously injured. When the collision occurred, the car was behind its schedule time, and was going at a high rate of speed. After discovering the good roads construction train at the crossing, little or no effort was made by the motorman to stop the car or to slacken its speed. The trial resulted in a verdict for the plaintiff. Defendant railway, which alone has appealed, insists that several reversible errors occurred in the trial court.

The verdict as rendered by the jury was:

“Verdict for plaintiff, $10,000 — against the Detroit United Railway, $6,000; against Good Roads Construction Company, $4,000.”

Later a judgment was rendered thereon. After the formal parts of the judgment, it recited that:

“They assess the plaintiff’s damages on occasion of the premises, over and above his costs and charges by him about his suit in this behalf expended, at the sum of $10,000, and they apportion said amount of $10,000 as follows: $6,000 against the Detroit United Railway, and $4,000 against the defendant the Good Roads Construction Company.”

The point is made against the verdict that it is “indefinite, uncertain, and incomplete,” and it is insisted that no valid judgment could be rendered thereon.

By this verdict the jury have determined that plaintiff was entitled to damages, and have assessed them at $10,000. They have also found both defendants guilty. This is as far as they had a right to go. But they did go farther, and apportion the judgment between the defendants. In this they exceeded their authority. After they found the amount of the damages and both defendants guilty, the law steps in and applies the rule of liability, and consequently their apportionment was without force. If we accept their conclusions while acting within their province, and reject them while acting outside of their authority, we have left a good verdict. There is no sound reason in declaring invalid what they have lawfully done, simply because they attempted to do something which the law would not permit, and especially is this so since what they properly did in no wise depends on what they improperly attempted to do. We must assume that both defendants were found guilty, and plaintiff’s damages fixed without regard to the relative guilt of the defendants. The rule generally applied in such cases is stated as follows:

“Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them. Thus, if the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered in-, dependently of the unnecessary matter; there being nothing to show that the jury reasoned falsely.” 38 Cyc. p. 1890.

This rule is recognized and followed in Burble v. Circuit Judge, 42 Mich. 513 (4 N. W. 192), and in Rawson v. McElvaine, 49 Mich. 194 (13 N. W. 513). Both of these cases are applicable, since the jury in eaqh found not only a proper verdict, but something in addition. The additions were disregarded as surplusage, and the judgments were approved.

Much reliance is placed upon the following cases as being opposed to the validity of the judgment under consideration: Everroad v. Gabbert, 83 Ind. 489; Crawford v. Morris, 5 Grat. (Va.) 90; Foy v. Barry, 159 App. Div. 749 (144 N. Y. Supp. 971). These cases are not in point. An examination of them will disclose that in each of them a several verdict only was returned on a joint count. That fact furnished the reason for declaring the verdicts invalid. In the case at bar a joint verdict was first found, and this was followed by a several verdict. The declaration counted upon a joint tort. The joint verdict for $10,000 was responsive to this count, and the balance of the verdict was immaterial, and should be adjudged surplusage under the Michigan cases.

An issue which received much attention in the trial court was whether the defendant railway was operating the interurban line. To prove that it was, plaintiff called the president, general manager, and treasurer of the Detroit United Railway for cross-examination under the statute (Act No. 307, Pub. Acts 1909). At the conclusion of the charge the attention of the court was called to the following matter:

“Mr. Fitzpatrick: Only one matter that you did not say anything about, and that is under the statute which permits parties to call adverse parties as witnesses. They go bound by the testimony of such witnesses unless the testimony is controverted by the other testimony. They make them their witnesses under the statute for every purpose that their testimony is uncontradicted in evidence.
“The Court: I do not understand it that way.
“Mr. Pound: That is not the law at all.
“The Court: I will not give that. I do not 'think that is the purpose of the statute.”

The testimony elicited from these witnesses by plaintiff’s cross-examination stood in no different position in the case than it would had defendant itself put the witnesses on the stand. What they testified to in either event would be testimony which might have been controverted by plaintiff, and in either event would be testimony for the consideration of the jury. The obvious purpose of this statute is to give to the parties the same benefit of each other’s testimony as though they had become witnesses in their own behalf. For a construction of this act see Jones v. Railroad Co., 168 Mich. 1 (133 N. W. 993). While we think the trial court was in error upon this question, we are not persuaded that under the statement of counsel for defendant railway the case should be reversed for this reason. The testimony of these witnesses was directed solely to the issue whether defendant the Detroit United Railway was operating the interurban railway. Defendant’s counsel says in his brief:

“One of the important questions in the court below, though not raised here, was whether the Detroit United Railway was a proper party defendant.”

We must assume from this statement that the defendant is content with the finding of the jury upon that question, and if such is the case, any errors that might have been made in reaching that conclusion are not now very important. We think the same thing can be said concerning the complaint which is made of the improper argument of plaintiffs counsel to the jury. This argument was all directed to the question as to whether the Detroit United Railway was operating the interurban line at the time of the accident.

Defendant complains because its tenth request was refused. It follows:

“The business of the country demands of these railways rapid transit, both for persons and property. And it cannot be said that the speed of even 60 miles an hour is negligence when running through the country outside of villages and cities, or through sparsely settled community.”

Counsel states that this request is taken almost verbatim from the case of Robinson v. Railroad Co., 79 Mich. 323, 328 (44 N. W. 779, 19 Am. St. Rep. 174), wherein it was said:

“It is well known that trains are now being run in many parts of the country at the rate of 50 to 60 miles per hour.”

The trial court did not give the request in the language suggested, but did instruct them that:

“Now, in that connection I will say to you that the question of the defendant the carrier’s liability is to be determined by the rules .that govern the operation of steam railways in the open country, rather than by rules governing the operation of cars in cities and villages or thickly populated communities. What might be negligence in one place may not be negligence in another. * * *
“The railroad had a right to operate its cars at a high rate of speed, and the rate of speed alone is not evidence of negligence,- but must be considered under all of the circumstances at the time. * * * So in the operation of this car over a certain stretch of track, which is clear, or is their own right of way, the speed of a certain number of miles an hour will not be negligence, whereas that same speed under different circumstances and under different surroundings might be the greatest kind of. negligence.”

The foregoing instructions fairly covered the request, save as to the precise speed the car was entitled to go in the country. The rate of speed at which- it was proper for the car to go at some other place, where the conditions were favorable, was of no particular importance in this case. The rate of speed at which it was entitled to go at the place in question where there were curves and foliage to obscure the highway from the view of the motorman was a question for the jury.

Exception is taken to the rule laid down by the trial court defining the care defendant was chargeable with as a common carrier of passengers. The court instructed the jury that the plaintiff, while being transported,

“was entitled to such transportation to Port Huron, and to the use of the highest possible known care by the carrier in bringing him to Port Huron in safety. And there is no distinction in the care due from the common carrier of a passenger for hire as between a passenger upon a limited car or a passenger upon any other car. The same character or degree of the highest possible care is due to him.”

Counsel’s criticism of this instruction is that it makes an insurer of the carrier. It may be that this language, standing alone, is open to that criticism, but, when considered in connection with other portions of the charge which limit and explain it, the criticism loses its force. In the course of his charge the trial court instructed the jury that:

“The defendant carrier is not an insurer of the safety of its passengers, and it can only be adjudged liable for injuries caused by its negligence.”

Later, in referring to the duty which might be expected .of the defendant in the operation of its car, the court said:

“That the railroad company would regulate the speed of its cars so that it would be consistent with the degree of care and prudence required by good railroad management or by the laws which I have laid down.”

The jury were also instructed that:

“The railroad had a right to operate its cars at a high rate of speed, and the rate of speed alone is not evidence of negligence, but must be considered under all the circumstances at the time. Interurban cars are not limited in the rate of speed that they may run across highways, provided proper care is taken in approaching them.”

We do not think it is fair to assume that the jury got the impression that defendant was an insurer of the safety of its passengers, when the court instructed them in direct language that the defendant was not such insurer, and when the instruction complained of is followed by other instructions which explain in detail what its duty was as applied to the facts in the case. When the court instructed the jury that plaintiff was entitled “to the highest possible known care,” had he added “consistent with the degree of care and prudence required by good railroad management,” the duty stated would not have been objectionable. Michigan Central R. Co. v. Coleman, 28 Mich. 440; Marshall v. Railroad Co., 184 Mich. 593 (151 N. W. 696).

What the trial court did afterwards instruct the jury was, in my opinion, equivalent to so stating it at the time. This is in accord with the reasoning in Marshall v. Railroad Co., supra.

Finding no errors which call for a reversal of the case, the judgment of the trial court should be affirmed.

Brooke, C. J.

In this case the verdict rendered by the jury was:

“Verdict for plaintiff, $10,000 — against the Detroit United Railway, $6,000; against Good Roads Construction Company, $4,000.”

The verdict as rendered was entered in the short book. Later it was re-entered in the journal in the following language:

“They assess the plaintiff’s damages on occasion of the premises, over and above his costs and charges by him about his suit in this behalf expended, at the sum of $10,000; and they apportion said amount of $10,000 as follows: $6,000 against the defendant Detroit United Railway and $4,000 against the defendant the Good Roads Construction Company.”

A judgment was entered upon this verdict in the following terms:

“The jury by whom the issue joined in this cause was tried_ having rendered a verdict therein in favor of the plaintiff and against the defendants, and having assessed the damage of the said plaintiff against the said defendants on occasion of the premises at the sum of $10,000, over and above his costs and charges by him about his suits in that behalf expended to be taxed, and more than five days in term time having elapsed, therefore it is considered that the said plaintiff, William Rathbone, do recover against the said defendants his damages by jurors aforesaid assessed, amounting to the sum of $10,000, together with his costs and charges aforesaid to be taxed.”

My Brother BlED is of opinion that the verdict is a good one, and that the judgment against both defendants in the sum of $10,000 was properly entered. He treats the attempted apportionment of the damages between the two defendants as mere surplusage, and says:

“There is no sound reason in declaring invalid what they have lawfully done, simply because they attempted to do something which the law would not permit, and especially is this so since what they properly did in no wise depends on what they improperly attempted to do. We must assume that both defendants were found guilty, and plaintiff’s damages fixed without regard to the relative guilt of the defendants.”

I am entirely unable to agree with my Brother Bied when he says that what the jury properly did in no wise depended upon what they improperly attempted to do, nor with his last assumption that the plaintiff's damages were fixed without regard to the relative guilt of the defendants. I am of opinion that both statements áre conclusively negatived by the language of the verdict itself as rendered. The judgment entered upon the verdict fixes upon the appealing defendant a liability for $10,000. The jury by the express terms of their verdict limited that liability tó $6,000. Had they supposed that by the verdict they rendered a further liability to the extent of $4,000 would be placed upon the appealing defendant, it cannot be supposed that the verdict would have taken the form that it did. They were careful to limit the extent of the liability of each defendant. The assumption that the plaintiff’s damages were fixed without regard to the relative guilt of the defendants is just as certainly refuted by the language of the verdict itself. The jury determined the relative guilt, and punished each, defendant in accordance with their view of the comparative negligence of which each defendant was guilty.

The general statement from Cyc., quoted by my Brother Bird, that mere surplusage may be disregarded, cannot be questioned.

A further quotation from the same compilation holds:

“If the suit is against joint tort-feasors, the assessment of damages must be for a lump sum against those found guilty, and cannot, in the absence of statute, be severally apportioned between them.” 13 Cyc. p. 250, and cases cited in note 92.

The cases cited by my Brother Bird from Michigan have no bearing upon the question. The first, Burkle v. Circuit Judge, 42 Mich. 513 (4 N. W. 192), was a statutory proceeding in ejectment, and it was held that the fixing by the jury of the value of the land and the value of the improvements were mere surplusage under the statute, after the plaintiff, a life tenant, had recovered a verdict for possession of the land. The other case, Rawson v. McElvaine, 49 Mich. 194 (13 N. W. 513), was a case in assumpsit for the value of a bonnet sold to the wife of the defendant, but remaining in possession of the plaintiff. The verdict was in favor of the plaintiff for the value, “and that the plaintiff deliver to the defendant the bonnet.” This court held that the. quoted language was surplusage and merely a statement of what would legally follow from the verdict. Neither case is authority for the action taken in the case at bar.

The case of Everroad v. Gabbert, 83 Ind. 489, is much like the case at bar. There, in an action for conversion, the verdict was as follows:

“We, the jury, find for the plaintiff, and assess his damages at nine hundred and eighty and 47/100 dollars, as against John Cook and William F. Everroad, and, also, against Samuel C. Daugherty and William F. Everroad the sum of six hundred and seventy and 95/100 dollars.”

The defendants moved the court for a venire de novo because of the defectiveness of the verdict. They then separately moved the court for a new trial. Their motions were overruled, and final judgment rendered against the appellants Cook and Everroad for the sum found by the jury against them, and against Daugherty and Everroad for the sum found by the jury against them. The court said:

“The words, ‘We, the jury, find for the plaintiff,’ are equivalent to a finding that the appellee was the owner, and entitled to the immediate possession, of the property described in the complaint, and that the appellants had, as therein charged, wrongfully and unlawfully converted the same to their own use. There is but one finding for the appellee, and but one conversion found. The finding is against all the appellants, and finds them all jointly guilty. It is not, nor can it be construed to be, a finding of two conversions, one by Cook and Everroad of a part of the property, the other by Daugherty and Everroad of another part. After this general finding for the appellee and against the appellants, the jury assess the damages as follows: ‘And assess his damages at $980.47, as' against John Cook and William F. Everroad, and, also, against Samual C. Daugherty and William F. Everroad the sum of $670.95.’
“These separate assessments of damages were made on account of the joint guilt of all the appellants as previously found by the jury, not for or on account of separate and distinct conversions, in which two only of the appellants were concerned.
“The question raised by the motion for a venire de novo is, where the jury has found that all the defendants are guilty jointly of a wrongful and unlawful conversion of property, can they assess several damages? We think they cannot.”

In Crawford v. Morris, 5 Grat. (Va.) 90, it is held that in a joint action of trespass against several, if the jury found them guilty, they should assess the damages jointly against all. It is further held in that case that, if by mistake the jury assess several damages, the plaintiff may cure the defect by entering a nolle prosequi against several and taking judgment against one.

In the case of Foy v. Barry, 159 App. Div. 749 (144 N. Y. Supp. 971), the action was in tort. A verdict was rendered in favor of the plaintiff against Soper for $250, and against Barry for $1,000. Upon the verdict thus rendered judgment was entered against Soper for $697.85, and against Barry for $1,447.85, being the amount of the verdict, plus a full bill of costs in each instance. Soper paid the amount of the judgment against him, and Barry thereupon moved to have his judgment satisfied of record. The court said:

“The jury, therefore, could not legally apportion, as between Barry and Soper, the amount which each should pay. The verdict should have been for such an amount as would compensate the plaintiff for the wrong inflicted by both defendants, upon which judgment could then have been entered against both. The verdict here rendered was improper in form, and the jury should have been so told and sent back with proper instructions for one amount against both defendants. Plaintiff, however, was satisfied with the form of the verdict, and entered a judgment against each defendant, as above stated, and is not now in a position to complain that the satisfaction of one judgment has satisfied the other.”

A number of cases are cited in support of this ease.

It will be noted that the judgment followed the verdict in this case; whereas the judgment in the case at bar does not even purport to follow the verdict. See, also, Lynch v. City of Chicago, 152 Ill. App. 160.

Had plaintiff chosen to have the judgment entered in accordance with the terms of the verdict rendered (and the entry of any other judgment was wholly unwarranted), a different question would be presented, and under the authorities cited it might be held that the appellant had no cause of complaint, because in any event the jury had found it guilty and assessed the damages against it at the sum of $6,000. That, however, was not done, and we are now dealing with a judgment against the appellant for $10,000, when the verdict of the jury as to it was that it should be condemned in the sum of $6,000. It seems to me that common sense, as well as law, forbids such a result.

In defining the duty of the defendant railroad company to the plaintiff the learned trial judge said that plaintiff “was entitled to such transportation to Port Huron, and to the use of the highest possible known care by the carrier.” Again he said: “The same character or degree of the highest possible degree of care is due to him.” This is a direct, simple, and positive statement of the law. My Brother Bird is of the opinion that some of the qualifying language later contained in the charge served to cure the vice of this erroneous instruction. With this view I am unable to agree. We have frequently held that, where variant instructions are given to the jury, some of which are proper, and some of which are improper, it must be presumed that the jury followed the erroneous instruction. That the instruction of which complaint is made is erroneous is clear. In the early case of Michigan Central R. Co. v. Coleman, 28 Mich. 440, this court said; in construing an instruction practically the same as the one in the case at bar:

“The language used would fairly permit the jury to find anything to be negligence which could by any possibility be avoided. But negligence is neither more nor less than a failure of duty. All railroad companies are held to the duty of being prudent railroad companies, and bound to conduct their business with such precautions as prudence has usually found necessary. As compared with the care needed in business involving no possible human risk, the care to be used may be properly enough called extraordinary, but, as compared with each other, all such companies have the same duty. * * * Any instructions which leave out of sight the fact that railroads must be conformed to system, and cannot be likened to those means of transit in which the business of a single vehicle cannot endanger any other, or which compels a departure from the common rules of good railroad management, is directly calculated to mislead.”

Again, in Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321), it is said:

“These [railroads] are liable only when there has been actual negligence of themselves or their servants. If they exercise their functions in the same way with prudent railway companies generally, and furnish their road .and run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them.”

In Beattie v. Railway, 158 Mich. 243 (122 N. W. 557), we said:

“The degree of care required to be exercised by carriers of passengers upon steam railways in securing the safety of passengers entering or alighting is ‘the highest care, or the care which a very prudent person would have used under the circumstances.’ This rule is also applicable to street cars.”

■ The vice of the instruction lies in the use of the words “highest possible known” and “highest possible,” and in connection therewith failing to make the application of the rule announced dependent upon the circumstances surrounding the case. It must be clear to the dullest mind that it is possible for a common carrier to , so run its trains as to absolutely prevent accident or injury to its passengers. That such a course is “known” is equally clear. But no one would contend that common carriers were bound to exercise such a degree of care. To hold them liable for a failure to exercise such care would, in effect, be to destroy their usefulness. The rule as laid down in Michigan is supported by the weight of authority in other States. 5 Am. & Eng. Enc. Law (2d Ed.), p. 558, note 6, p. 559, note 1.

The failure of the court to properly instruct the jury as to the testimony elicited from the officers of defendant called under the statute in accordance with our holding in Jones v. Railroad Co., 168 Mich. 1 (133 N. W. 993), is held by my Brother to be error without prejudice, because the question upon which such testimony was elicited was not raised in this court. Under ordinary circumstances this might be true. The point of the exception, however, is directed to the fact that the instruction should have been given in the court below, where the question was in issue, because of the attack made by plaintiff’s counsel upon the officers of the defendant, whose testimony he had secured under the statute. He said:

'T would not believe one of them anyway, from the top to the bottom. There is no disputing the fraud of the Detroit United Railway; that is not disputed. I would not believe one of them, as I say, from the top to the bottom.”

In view of the fact that plaintiff offered no evidence tending to contradict that elicited from these officers, I think the language of counsel was unwarranted and prejudicial. By giving the proper instruction the court, to some extent at least, could have cured the error.

A motion for a new trial was made based upon various grounds, one of which was that the verdict was excessive. The plaintiff was in his seventy-seventh year at the time of the accident, and had an expectancy of about 5% years. He was receiving an annual salary of $900, with the privilege of earning what he could outside. The testimony as to his outside earnings is indefinite and unsatisfactory. The injuries consisted of a comminuted fracture of both, bones of the right leg below the knee, and the fracture of two ribs. ■ He made a very good recovery, and at the time of the trial, when in his seventy-ninth year, was active and earning to some extent. Under these circumstances, I am of opinion that the award, under all the authorities in this State, was excessive. If this were the only error, it might be cured in this court by the entry of an order granting the defendant a new trial, unless plaintiff remitted a portion of the verdict. But, because of the other errors pointed out, the judgment should be reversed, and a new trial granted.

Stone, Ostrander, and Steere, JJ., concurred with Brooke, C. J.

Moore, J.

I think the charge as to the degree of care required was harmful error, and for that reason think the case should be reversed.

Kuhn, J., did not sit.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PRUNER v. DETROIT UNITED RAILWAY.
    1. Appeal and Error — Argument of Counsel — Evidence.
    In an action for damages to plaintiff arising out of his wife’s injury, it was error for defendant’s counsel, in his argument, to use matter not in evidence, after all opportunity to explain it had passed.

      2. Same — Instructions — Requests to Charge — Contributory Negiigence.
    Where there was no evidence to show that plaintiff’s wife was guilty of contributory negligence, it was error for the court to refuse plaintiff’s request to charge the jury that she “was free from all negligence,” and instead instruct them that plaintiff was bound to satisfy them that the wife did not contribute to her injuries by any negligence on her part.
    3. Same — Exceptions—Saving Questions*nor Review.
    Where two errors were committed, only one of which was excepted to, and it is impossible to say that the error excepted to was harmless, the judgment will be reversed.
    Error to Wayne; Hosmer, J.
    Submitted October 14, 1914.
    (Docket No. 97.)
    Decided September 28, 1915.
    Case by Oscar A. Pruner against the Detroit United Railway for damages caused by injuries to plaintiff’s wife. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Merriam, Yerkes & Simons, for appellant.

      Corliss, Leete & Joslyn (William G. Fitzpatrick, of counsel), for appellee.
   Ostrander, J.

Nancy Pruner, wife of the plaintiff, recovered a judgment against defendant for her personal injuries, and the record made in her case was reviewed by this court. Pruner v. Railway, 173 Mich. 146 (139 N. W. 48). The plaintiff has sued to recover his damages arising out of her injury, including the expenses incurred by him on account thereof. The record before us contains, as the certificate of the trial judge indicates, the substance of all the testimony and substantially all of the proceedings taken upon the trial. The result was a verdict for defendant, which the plaintiff sought, not successfully, to have set aside and a new trial granted.

Of the conduct of the trial plaintiff makes two principal complaints. He requested the court to instruct the jury that it appeared, without contradiction, that his wife, Nancy, at the time her injuries were received, “was free from all negligence.” This the court declined, and, on the contrary, advised the jury that plaintiff was bound to satisfy them that the wife did not contribute to her injuries by any negligence upon her part. This is .complained about.

Counsel for defendant, using for the purpose memoranda prepared by plaintiff, called the attention of the jury in his argument to various items of loss set down therein, about which no testimony had been introduced beyond this: That the plaintiff testified he kept a list of items in a memorandum book (not produced), from which list he made up certain exhibits, which were produced, but do not appear to have been offered in evidence, although referred to by the witness. He testified further:

“Q. As I understand it, Exhibits 1, 2, and 3, are the list of the items that you seek to recover in this case, or that you sought to recover in this case?
“Mr. Yerbes: That is objected to, as not according to the facts. They are a part of what we seek to recover in this case.
“Mr. Fitzpatrick: I want the question as it stands.
“The Court: Answer the question.
“A. Well; could I see them?
“Q. Certainly; you have seen them; you prepared them?
“A. Certainly; but I don’t know what 1, 2, and 3 is now from what I happened to look at yesterday.
“Q. All right; look at 1, 2, and 3 now.
“A. Yes, sir.
“Q. As I understand it, your idea was that you were entitled to recover for all the items mentioned in Exhibits 1, 2, and 3 as damages in this case?
“A. I supposed I was.”

No testimony was introduced concerning the particular items referred to by counsel for defendant in his argument. In denying the motion for a new trial, the court said upon this subject:

“Great stress has been laid in the argument of the motion upon remarks of the counsel for defendant and reading from papers which were not offered in evidence in the case. In his opening to the jury, counsel for plaintiff had in his hands a number of pieces of paper, which constituted substantially a bill of particulars of the plaintiff’s claim, and from which he afterwards examined the witness. In his address he said he expected to show that the plaintiff in this case had suffered damages in excess of $5,000, and I think to make this sum all of the items on the sheet of paper which he had in his hand were included. It was impossible for the court to say, at the time exception was taken to the argument of counsel as embodying claims not submitted to the jury, from what the counsel for defendant was reading, or whether the papers had been offered in evidence. It would be manifestly unfair to stop the counsel when he was urging a point which it seemed to the court was well founded in the evidence which was submitted, and thus break the thread of his argument, and if the court failed to stop proceedings at that particular time it was only for this reason. Whether the particular sheets were offered in evidence, or were not offered in evidence, I myself was impressed by the fact that in any event the plaintiff and the plaintiff’s wife had made the very most of their case, and the argument of counsel for defendant in the main was a very legitimate and proper criticism of these witnesses.”

The argument of counsel for defendant was interrupted by counsel for plaintiff, and the record shows what here follows:

“Mr. Yerbes: I wish to object to the reference to Exhibits 1, 2, and 3, for the reason that many of the items on those bills were withdrawn, and not put before the jury at all, and no evidence whatever was given in regard to them; for the further reason that it appears that this statement was made up from the little memorandum book, and as I remember these were simply used as exhibits for him to refresh his recollection, and were not offered in evidence and I submit, if your honor please—
“Mr, Fitzpatrick: My recollection is that there were offered in evidence the Exhibits 1 and- 2 anyway.
“Mr. Yerkes: They were offered — they were identified.
“The Court: You may go on at your peril.
“Mr. Fitzpatrick: The next item he sought to recover was for a $25 feather bed; why I don’t know; there was not any proof of it, but that was too raw; some of them were, for even the counsel to try to go through with it, and that is why we have nothing but his intention.
“Mr. Y erkes: It is my intention that this objection covers all his comments on Exhibits 1, 2, and 8, which we did not offer any proof on.
“Mr. Fitzpatrick: I do not know why all these feather pillows were required, because his wife was thrown on a sidewalk and was injured in July, 1909 — • twelve embroidered pillow slips, twelve embroidered sheets, thirty-two sheets — that they were going to throw in here to swell the total for damages. The next was twelve bath towels; the next two dozen bath towels, two more bath towels, two dozen of another kind of towels, and two dozen linen towels, aggregating in value about $80, was some more of the items he had in his mind to ask you to allow for damages, and three yards of pattern tablecloth, cost $11. I did not hear any evidence of anything being done to tablecloths, gentlemen of the jury, or hear that there-were tablecloths which were in any way injured. But this is only a circumstance. One dozen napkins to match the tablecloth, $8.00 asked for that; and four night dresses, three night dresses, three more, another night dress, and one doily for 50 cents was another item that was asked for damages in this case; and two dresser scarfs, $2, and a table tray or table scarf, at $2 more, were claimed. Now, we come to something awfully illuminating, and it seems to me awfully, awfully clever upon the part of this man to make a claim for in this case. I do not see what he could have been thinking of when he made this item. This happened on the 19th of July, the hot summer time, and the woman did not have a hat on; she was carrying a sunshade; that is the undisputed evidence in this case; and we are asked to respond here to one tailored suit destroyed, $22.50; one black silk dress, $50; one green silk dress, $12; one green silk waist, $10; one fur coat, $60; one black ostrich feather, $8; and another black ostrich tip, $5— was some more of the items of damages that was in his mind to ask you men to allow him in this case. Oh, he was going to have it good and big, so there would not be any question of the amount of the award. And then it seems that Oscar himself was hurt in some way, or at least there was some injury done to Oscar’s personal apparel, for which he was going to ask you men to make an allowance in your verdict; and what was it was injured so far as Oscar alone was concerned— Oscar — underwear, hosiery, two wool suits, $10. I did not know there was any claim, for Oscar alone; not a word in this case, or anything connected with it, that would justify him when he made up his claim — what he said to you he was going to swear to as his damages in this case — that would justify him, if he was honest and fair about it, in making a claim for his underwear to the amount of $10, fifteen pair of woolen hose from November 1, 1909, to March 1, 1910; some hose I tell you in that space of time, but he was asking $3.75 for it. He had fifteen more pair of wool hose from November 19 to April 19,1911, at the same amount. Then George Pruner got in on the show. He had two wool suits of underwear, I suppose at $10 for the two suits, that he was going to ask damages for, and fifteen pair of woolen stockings at 50 cents a pair, $7.50; fifteen pair wool stockings again at $7.50; and O. A. Pruner’s cotton hose, thrown away for lack of repair, $6.37; that was another item that he was asking recovery for when he came in, and had in his mind, and he was going to ask you gentlemen to allow him for in this case; and George Pruner, poor little fellow, 26 years of age — 22 years of age at the time this accident happened — the father was coming in before a jury in the Wayne circuit court, and was going to ask you to allow damages to him because Mamma was not able to darn George’s socks; that is all it amounts to in round, plain, everyday language; that is what we have so far as George was concerned — seventy-five pairs of cotton hose, seventy-five pairs thrown away because Mamma was not able to darn them. Now he wanted you to award damages in the sum of $9.32, and then there was fifteen pair of silk hose, fifteen pair of silk hose that George had that he wanted you — his father wanted you — to allow him damages for because he had to throw them away before they were worn out, because his mother was not able to darn them.
“Well, gentlemen of the jury, there are more things here, but it would only be wearisome — it would be more or less repetition — to go through with them. I have told you enough. I have shown you enough to convince any fair-minded men that it was the intention of this man, when he came into court, to make his claim for damages just as big as he could, and if he would sin in these respects he would sin in others, and if he would claim for a fur coat and two silk dresses, although the woman never had them on her back at the time, could not possibly have had, he would make a claim for $1,700 for hire for a girl and for $1,150 doctor bills; it would be an easy matter for him, going about this thing in that way, to put the damages so high that there could not be any question that there never would be any want so far as Oscar alone, personally, was concerned, if he would get the damages which he was claiming in this case at your hands; but I do not think you men, with your experience of the affairs of life, would stand for things of that kind. And I want you to remember, too, that a man who would put up a claim of that kind would be the man who would insist on every member of the family, wife, and son, and daughter, and everybody else, making it good for him, and that may be the reason why we have today this claim here presented at this time by Mr. Pruner, and it may explain Dr. Huson’s testimony that Mrs. Pruner will get well as soon as she is through with these lawsuits.”

The conduct of counsel in making the argument is complained about. This is a case in which a special verdict would have been of value. If it was clear that the jury found that defendant’s negligence was not the cause of the injuries to plaintiff’s wife, and so the cause of such damages as plaintiff suffered, the argument of defendant’s counsel which has been referred to need not be characterized. If there was testimony tending to prove that the conduct of plaintiff’s wife contributed to her injuries, we might assume that the verdict was unaffected by that portion of the argument to which attention has been called.

It is the theory of plaintiff that defendant’s single truck car, ascending an incline to a bridge over a railroad track, at a high rate of speed, seesawing, struck the planking of the sidewalk, and moved or tore up some of the planks upon which his wife was walking, so that she was thrown down and injured. It is the theory of defendant, in so far as it is indicated in the testimony, that the woman fell down as the car was passing, she being upon and traveling over the sidewalk, and that the car and its movements had nothing to do with her falling. But we find no testimony tending to prove that, if defendant was negligent as alleged, plaintiff’s wife was guilty of any conduct contributing to her injury. In giving reasons for denying a new trial, the court does not mention the charge upon the subject of contributory negligence, although it is made a ground of the motion. There was no issue made by the testimony upon the subject, and it was error to refuse plaintiff’s request for su'ch an instruction.

It may be argued that, if there was no testimony tending to prove the contributory negligence of plaintiff’s wife, the instruction was harmless, and, inasmuch as plaintiff was clearly put to some expense on account of the injury, the jury, in returning a verdict for defendant, must have found the defendant free from negligence. Counsel for the defendant, however, defending the instruction, argues that it would have been error to refuse it. He says:

“Mrs. Pruner could and should have seen what these people saw, if they are telling the truth. She was perfectly familiar with the way the tracks lay, and how close they were to the sidewalk at the lower end of the incline; also that they were away clear of the track further up towards the crest, the direction from which she was approaching. If it was likely that, owing to the speed at which the car was being operated, the teetering would continue to the point of bringing the fender or running board in contact with the walk, obviously the walk was not a place of safety, but was a place of great danger. Into this place of danger she might not prudently venture. To have looked and observed the situation when she left the top of the hill was the work of the briefest moment; to have observed again as she came further down, and before she got to the place where the track was so close to the sidewalk that .the car overhung, was likewise a slight task. Did she do it? If she did, should she have continued on, meeting this rapidly approaching car, that must pass her where the danger was greatest? Or should she have stopped and waited for the car to go by before proceeding?
“She might not be inattentive to her surroundings. Abstraction and absent-mindedness do not excuse. If she saw and understood the possibility, and took a chance that nothing would happen, then she was not diligent.
“Some or all of these matters were necessarily in the case. They could not be decided by the court as a matter of law. They were for the jury, and the jury evidently believed, either that there was no negligence on the part of the defendant shown, or that Mrs. Pruner was herself careless and inattentive to her safety.”

The plaintiff and every other pedestrian using the sidewalk had the right to assume, and the court might well have so declared, that sidewalks and street car tracks, in. continuous use, are presumably not so laid with reference to each other that a passing car, even if it is carelessly operated, is a menace to persons using the sidewalk. In the absence of knowledge that a street car fender may overhang, or strike, a sidewalk, the public, using the walk, has no occasion to expect, or suspect, danger from a passing car. There is no testimony tending to prove that plaintiff had such knowledge. The jury may have adopted reasoning similar to that of counsel for defendant, in the absence of any but the most general of instructions from the court that they must find plaintiff free from contributory negligence.

Two palpable errors were committed — one the submission to the jury of the question of contributory negligence of plaintiff’s wife, the other the argument of counsel in which he used matter not in evidence, after all opportunity to explain it had passed, in which he proceeded by leave of the court, at his peril, after objection.

It is urged in a supplemental brief for defendant that counsel for plaintiff did not except to the ruling which permitted counsel for defendant to continue the argument, and therefore the point is not available. No> exception was taken, and consequently, if no other error was made out, we should not reverse the judgment. But the fact that such an argument was made is persuasive of the conclusion that it is impossible to say that the other error was harmless — makes it more than doubtful that the jury found the defendant free from negligence, or plaintiff’s wife guilty of contributory negligence.

We' are constrained to reverse the judgment and order a new trial.

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

The late Justice McAlvay heard the arguments in this cause, but took no part in this decision.


author: Bird, J.

text:
    JUDD v. JUDD.
    1. Married Women — Biles and Notes — Prima Facie Case — Consideration — Burden of Proof.
    In an action by an administrator on a promissory note executed by a married woman, plaintiff did not make out a prima facie case by introducing the note, proving the signature, and showing the amount due thereon; plaintiff has the burden of proving that the consideration of the note passed to defendant.
    2. Same.
    In so far as Bank v. Miller, 131 Mich. 564, is inconsistent with 'the rule laid down in Fechheimer v. Pierce, 70 Mich. 440, it is overruled.
    3. Witnesses — Testimony as to Matters Equally within Knowledge of Deceased — Waiver.
    By calling defendant under Act No. .307, Pub. Acts' 1909, for cross-examination as to the transaction between herself and deceased, plaintiff administrator waived the benefit of Act No. 30, Pub. Acts 1903, prohibiting the opposite party testifying as to matters equally within knowledge of deceased.
    Error to Kent; Perkins, J.
    Submitted October 16, 1914.
    (Docket No. 122.)
    Decided September 28, 1915.
    Assumpsit by Edwin E. Judd, administrator de bonis non of the- estate of George E. Judd, deceased, against Peternella Judd to recover the amount due on a promissory note. -Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Fred P. Geib and Richard C. Goodspeed, for appellant.

      Dunham & Dunham, for appellee.
   Bird, J.

Plaintiff sued defendant in assumpsit to recover the amount due on a $1,000 note, dated February 2, 1897, and payable 10 years thereafter. Defendant pleaded the general issue and gave notice of set-off. Subsequently several amendments were made to the plea and notice, but the final one was an affidavit denying that the defendant knowingly executed the note. The matter came on for trial before a jury, and plaintiff produced the note, gave evidence that the signature was the plaintiff’s and showed the amount due upon the note. Plaintiff’s proofs disclosed that the defendant was a married woman when the note was executed. Plaintiff then rested, claiming that he had made a prima facie case, which entitled him to recover. This was disputed, and a directed verdict was requested by the defendant. It was insisted by the defendant that the plaintiff must go further, and show that the consideration for the note had connection with her separate property. There being some doubt in the minds of the court and counsel as to the true rule, it was agreed that the jury might be discharged and the case tried before the court. Successive adjournments of the case then followed, which permitted counsel to examine the law and introduce testimony. When the testimony was finally concluded, the trial court was requested to direct a verdict for plaintiff on the prima facie case he had originally made. This was refused. The court found for the defendant, on the ground that no consideration passed to her for the giving of the note. Findings of fact and law were found by the court and filed.

The first and principal question to be considered is whether plaintiff made a prima facie case by her proofs. The rule was very clearly laid down by Mr. Justice Campbell in Fechheimer v. Pierce, 70 Mich. 440 (38 N. W. 325). In that case a married woman was sued on her promissory note for $1,200 which was indorsed by her husband. It appeared that the plaintiff knew the consideration was to pass to the husband. In holding that no oase was made for the jury, among other things, it was said:

“We think there was nothing to go to the jury against defendant. It is the law of this State that a married woman can make no obligation except on account of her own property, and that any one seeking to hold her must make out an affirmative case.”

It was further said in the opinion :

“The signing of a note by a married woman creates no presumption of consideration, but it must be proved.”

This rule was approved in Fisk v. Mills, 104 Mich. 433 (62 N. W. 559), where Mr. Justice MONTGOMERY observed that:

“The fact appearing that defendant was a married woman, the burden rested upon the plaintiff of showing that the consideration of the note passed to her.”

These holdings are in harmony with all the former holdings of the court on the question, and they were followed by the later decisions up to the time the case of National Lumberman’s Bank v. Miller, 131 Mich. 564 (91 N. W. 1024, 100 Am. St. Rep. 623), was decided. The same question arose in that case and it was there said:

“Plaintiff made its prima facie case by introducing the note in evidence. Defendants thereupon moved the court to direct a verdict for the defendants on the ground that the plea and notice showed that the defendants were husband and wife, and the duty rested upon the plaintiff to prove such a consideration as would bind her. Upon its face the note was hers, and it imported a consideration paid to her. It was indorsed by her husband. There was no presumption against the legality of such a note. The burden rested upon the defendant to prove facts which would relieve her from liability.”

This language appears to reverse the former rule, which had been followed up to that time. While the opinion appears to be a unanimous one, there are several reasons which indicate that it was not the deliberate purpose of the court to reverse the rule. They are :

(a) A married woman’s contract, except with reference to her separate property, is void, and not voidable. This undoubtedly furnishes the reason for the rule which places the burden on one who seeks to bind her to show that the transaction is one that is within the scope of her powers to contract.

(b) Had it been the intention of the court in the Bank Case to reverse this well known and understood rule, some reference doubtless would have been made to it by the writer of the opinion, and the former cases referred to and discussed.

(c) Since the Bank Case was written, the old rule has been followed, and Fechheimer v. Pierce approved. In the late case of Detroit Lumber Co. v. Cleff, 164 Mich. 276 (128 N. W. 281), the plaintiff in the trial court recovered a judgment by direction of the court. The defendant introduced no testimony. This court reversed it, and held that the case made by the plaintiff did not warrant the direction of a verdict by the court in its favor, because it had failed to connect the consideration with the separate property of the defendant.

Our conclusion is that, in so far as the case of Bank v. Miller is inconsistent with the rule laid down in Fechheimer v. Pierce, it must be overruled.

Did plaintiff waive the statute? Plaintiff called defendant for cross-examination under the statute of 1909, and went into the facts surrounding the giving of the note. Her counsel then developed the facts upon which the court principally bases his finding that the note was without consideration. Counsel claims this was error; that his examination did not proceed far enough to justify the examination made by the defendant. In view of counsel’s several positions, this question does not appear to be very important. His first claim is that he was entitled to a directed verdict at the first session of the case. That claim-is disposed of herein adversely to his contention, on the ground that he had failed to make a prima facie case. Now, if we should agree with him in his second contention, that by his examination he had not waived the statute, and that therefore the testimony developed by defendant’s counsel was inadmissible, the record would then contain no explanation of the consideration of the note, nor would it show any connection between it and her separate property, and plaintiff would still be without a prima facie case. It would seem unnecessary to go further, but possibly, in view of the somewhat peculiar way in which the matter was proceeded with, it is but fair to say that we have examined the testimony of defendant which plaintiff developed, and we are satisfied that he thereby waived the inhibition of the statute. We are further persuaded from all the testimony that there was proof to justify the finding of the trial court that there was no consideration passed to defendant for the execution of the note.

The judgment of the trial court will be affirmed.

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

The late Justice McAlvay took no part in this decision.


text:
    SALO v. MARTIN.
    1. Master and Servant — Safe Place — Railroads—Negligence.
    In an action for injuries resulting in the death of plaintiff’s decedent, caused by a collision between a “dinky” engine and a car he was moving on defendant’s track, the claim of plaintiff that defendant neglected to furnish a reasonably safe place in which to work is not sustained, where the evidence shows that the danger arose by reason of the operation of the train.
    2. Same — Fellow Servants.
    Where defendant was engaged in operating a stone crusher, and in connection with it maintained railway tracks and operated a “dinky” engine, decedent, who was employed to load cars, was a fellow servant of the engineer.
    3. Same — Warning and Instructing Servant.
    Where decedent had been instructed “that he must look out for himself when the train was coming,” defendant was not negligent, the situation not being such that decedent was entitled to special warning.
    4. Evidence — Master and Servant — Incompetent Servant — Trial.
    In an action for injuries resulting in the death of plaintiff’s decedent, caused by a collision between a “dinky” engine and a car he was moving on defendant’s track, where plaintiff alleged negligence in the employment of an incompetent engineer, it was error for the court to exclude evidence of specific acts of incompetency.
    Error to Chippewa; Fead, J.
    Submitted November 16, 1914.
    (Docket No. 38.)
    Decided September 28, 1915.
    Case by Jacob Salo, administrator of the estate of Toivo Kaupinnen, deceased, against Samuel B. Martin for injuries resulting in the death of plaintiff’s decedent. Judgment for defendant on a directed' verdict. Plaintiff brings error.
    Reversed.

      Albert E. Sharpe, for appellant.

      Warner & Sullivan, for appellee.
   Bird, J.

Defendant in 1910 operated a stone crusher in Chippewa county. In connection with it there weré maintained railway tracks which were connected with the “Soo” Railway. A “Soo” line freight train came once a day to set in empty cars and take out loaded ones. At other times a “dinky” engine owned and operated by defendant did the switching. It was the practice in setting in empty cars to run them beyond the crusher and then pinch them down to the crusher one by one as they were needed. While decedent was engaged in pinching down a car, the “dinky” engine pushed some other cars against the opposite end of it with such force that the car started backwards, and threw decedent upon the track, and the wheels passed over him and severed one of his legs.

The negligence counted upon for a recovery was:

(1) The failure of defendant to furnish decedent with a reasonably safe place in which to work.
(2) The employment and retention of an incompetent engineer.

At the conclusion of the proofs, the trial court directed a verdict for defendant, upon both grounds. Plaintiff claims that the trial court was in error in so doing.

The position of the trial court was that the engineer of the “dinky” and the decedent were fellow-servants, and that decedent, in accepting the work, assumed the risk. We find nothing in the testimony which shows that the place itself was unsafe. It was as safe as any place of like character could be where such operations are carried on. The place was not unsafe by reason of the failure of defendant to make it so in the first instance, but it became unsafe by reason of the operation of the business. The injury was not the result of any defect in the track, cars, or surroundings, but was due to the carelessness of the engineer in backing the train against the car at the rate of 8 miles per hour. This was operation. It is true that the defendant could not delegate the duty of making and keeping the place safe to another in such a way as to relieve himself from liability; but the operation of the business he may intrust to others, so as to relieve himself of liability for the negligent acts of his servants. The trial court was in no error in holding that the decedent and the engineer were fellow servants. 26 Cyc. p. 1321. McLaine v. Head & Dowst Co., 71 N. H. 294 (52 Atl. 545, 58 L. R. A. 462, 93 Am. St. Rep. 522); McBroom v. B. Siegel Co., 175 Mich. 186 (141 N. W. 551).

The further point is made in this connection that the decedent should have been warned that switching was to be done upon that track. From the record it appears that the decedent was advised in the morning of the day of his injury, “to load the rock, whatever there was to load, and then let the balance of the cars down, that they would bring the cars up again just a little before the freight engine came in; that generally was between 4 and 5 o’clock.” The claimed inference from this is that the cars would not be moved until just before the freight engine came in. But it appears also that, at the time decedent accepted the service, he was instructed how to do the work, and “that he must look out for himself when the train was coming; that if ■the whistle blew or the bell rang he had to look out for himself.” The situation does not appear to have been such that he was entitled to any special warning with reference to the movement of the switch engine.

Two employees at the crusher were produced by plaintiff, and testified that the engineer’s general reputation among the employees was that “he was not fit to run an engine.” No direct proof of his incompetency was admitted. The trial court held that evidence of reputation was available only on the question of notice to the defendant, but was not available upon the fact of incompetency. There was proof that the engineer was competent. As the proofs then stood, we think the trial court was right in directing a verdict upon this ground; but we think it was error to reject the proffered testimony of specific acts of incompetency which were offered by the plaintiff and rej ected. The plaintiff offered to show specific instances of the engineer’s incompetency in running the engine. .If it were competent to show that the engineer was incompetent, as it was, it could only be done in two ways: By the opinion of others who were qualified to testify, and by showing specific instances of his incompetency. It was held in Lewis v. Emery, 108 Mich. 641 (66 N. W. 569), that the former method of establishing incompetency was proper, and the latter method is supported by the holding in Vicksburg, etc., R. Co. v. Patton, 31 Miss. 156 (66 Am. Dec. 552), where the competency of the engineer was questioned. It was there said:

“Upon a question involving his character and fitness for his trust, and the consequent responsibility of the company for his delinquency in these respects, it is not only competent, but necessary, to inquire into his previous habits and conduct, in order to show that the alleged misconduct at the time of the injury was in keeping with his general character. Frequently it may be out of the power of the party to show positively the reasons of the particular delinquency of such an agent; and in such cases it is proper and necessary to show his general character in order to explain his conduct at the time.”

The cases of Pittsburgh, etc., R. Co. v. Ruby, 38 Ind. 294 (10 Am. Rep. 111), and City of Delphi v. Lowery, 74 Ind. 520, 525 (39 Am. Rep. 98), are authorities sustaining the admission of evidence of specific acts of carelessness, unskillfulness, and incompetency.

We are of the opinion that the rejected testimony was competent. When all the testimony is in upon that question, it is the duty of the trial court to determine whether it is sufficient in quality and quantity to raise an issue for the jury. For the failure of the trial court to receive this testimony, the case must be reversed, and a new trial ordered.

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

The late Justice McAlvay took no part in this decision.


text:
    BALEN v. BURGESON.
    1. Vendor and Purchaser — Land Contracts — Foreclosure — Evidence.
    On proceedings to foreclose a land contract, the execution of which defendant denied, evidence examined, and held, to sustain a decree for complainants.
    2. Deeds — Fraud—Evidence.
    Where defendant claimed fraud in the execution of a deed, hut admitted that he discovered the alleged fraud before leaving complainant’s office, and never took any steps to have it canceled, and continued on friendly terms with complainant, the defense is too improbable to overcome the record evidence of the validity of the deed, and the decree of the lower court sustaining its validity will he affirmed.

      Appeal from Bay; Collins, J.
    Submitted November 11, 1914.
    (Docket No. 3.)
    Decided September 28, 1915.
    Bill by James D. Balen and another against Andrew S. Burgeson for the foreclosure of a land contract. From a decree for complainants, defendant appeals.
    Affirmed.

      Cooley & Hewitt, for complainants.

      Joslyn & Houghton, for defendant.
   Bird, J.

The purpose of beginning this proceeding was the foreclosure of a land contract against certain premises in the possession of defendant. The chancellor granted the relief prayed for, and defendant has appealed.

The case made by complainant was that in 1890, and for some time prior thereto, defendant had title to 100 acres of land in Bay county; that he gave to complainant three mortgages thereon, two in 1890 and one in 1892, for an aggregate amount of $1,025; that in May, 1895, the amount due on said mortgages was somewhat in excess of $1,200; that for some reason, which does not clearly appear, at that time the defendant and his wife conveyed the title of the premises to complainant; that complainant gave defendant permission to remain thereon, and further he agreed to give to defendant all he could realize on a sale of the premises over and above the indebtedness; that in 1901 defendant represented to complainant that he had a prospect of selling the premises, and that he could deal with them better if he had a contract of purchase. Accordingly one was executed. In this condition, matters drifted along from year to year, with no payments thereon, save two small items of interest. Complainant appears to have relied on defendant’s promises, made from time to time, that he would make payments thereon, and that he would make a sale of the premises.

Defendant admits that he had title to said premises, and that he gave the three mortgages thereon to complainant, but insists that the aggregate amount thereof was only $800; that in 1895, he agreed to convey the 60 acres only in payment of the mortgage indebtedness; that he did so, and it is his claim that, after he had examined the deed and gone after his wife, the description of the 40 acres was inserted in the deed. He denies executing the land contract, but admits that he signed it. He explains that he was passing complainant’s office, and was invited in to witness a paper, and supposed he was signing as a witness. He concedes that he has never paid the $800, or any part thereof, but claims title to the entire 100 acres.

Aside from the record evidence of the deed and land contract, the case must turn upon the testimony of the parties. Defendant’s testimony is in such serious collision with the record and oral evidence, and in some respects is so inherently weak, that we find difficulty in giving it sufficient credence to meet the case made by complainant. Defendant concedes that he borrowed $800 of complainant, and that he has never repaid it, or any part thereof. He says that, soon after he and his wife executed the deed, while still in complainant’s office, he discovered that it contained the 40 acres, and that he protested to complainant that that was not the agreement, and was not to be included therein, and that complainant snatched the deed out of his hands and kept it. Notwithstanding this great injustice, he has never taken any steps to have it canceled, but afterwards became more or less friendly with complainant, and on many occasions visited his office. True, he says that the object of some of his visits was a release of the 40 acres; but it seems incredible that he should have been patient enough to wait nearly 20 years to have the outrage righted, when it involved all or nearly all he possessed. If the incident regarding the deed were true, it would have made them bad friends, and it seems to me improbable that the complainant would have invited him in, or that he would have gone into complainant’s office as he was passing, to witness a land contract involving the very premises, a part of which had been taken from him by force and fraud. The payment of the taxes also tends to show in which direction the truth lies. After the deed was made, complainant paid the taxes until 1901, when the contract was made, providing that defendant should pay them. After that, defendant paid the taxes. Defendant also impeaches the official integrity of the notary public who took the acknowledgment of the deed. He testifies that the notary was not present at the time, and never took the acknowledgment of the deed. These and other positions of defendant make it very difficult to accept his version of the affair.

The fact that complainant allowed defendant to remain on the premises so long without payments, and without enforcing his rights in the contract, casts something of a shadow over his testimony; but it is somewhat relieved by his explanations. We think, upon the whole record, complainants have established their case, and are entitled to the relief which the trial court granted.

Some point is made concerning the description of the premises in the deed. The deed described 80 acres, instead of 100 acres. Complainant claims that it was intended to convey the entire farm. No effort, however, was made to correct the description. Inasmuch as the decree is effective only as against the 80 acres, no harm appears to have resulted.

Complainant Fannie Balen, the wife of James D., was made a party complainant for the sole purpose of ratifying certain acts of James D. in connection with the premises.

The decree will be affirmed, with costs of both courts to complainants.

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

The late Justice McAlvay took no part in this decision.


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    LYON v. CREGO
    1. Descent and Distribution — Next of Kin — Kindred of Half Blood — Statutes.
    In a contest between paternal cousins on the one side, and a maternal half-uncle and cousins on the other, for the estate of an intestate, who left no issue, widow, father, mother, brother, sister, nor child of brother or sister, his estate, consisting of real property inherited from his father, descended to his half uncle, who was his next of Lin, according to the provisions of Act No. 286, Pub. Acts 1909; he being one degree nearer to intestate than are the paternal and maternal cousins, and not being excluded by the exception in section 9068, 3 Comp. Laws, hy reason of being a half blood, because there are no other persons of the same class as he who are of the full blood.
    2. Same — Rules of Civil Law.
    And the contention of appellants that the half-uncle is excluded, because only brothers and sisters of the half blood are included by the statute, cannot be sustained, as section 9068, 3 Comp. Laws, provides that the degrees shall be computed according to the rules of the civil law, which recognize the ascending as well as the descending line.

      Error to Cass; Des Voignes, J.
    Submitted October 8, 1914.
    (Docket No. 29.)
    Decided September 28, 1915.
    Ejectment by Clara Abigail Lyon and others against Henry A. Crego and another. Judgment for defendants. Plaintiffs bring error.
    Affirmed.

      John B. Carr, for appellants.

      Chester E. Cone, for appellees.
   Bird, J.

Theodore Stetler inherited a farm of 200 acres, situate in the township of Newberg, Cass county, from his father, who died in the year 1880. In May, 1918, Theodore died intestate. On his father’s side the nearest surviving kindred are 23 first cousins, who claim the estate by the laws of descent, and they are the plaintiffs herein. On his mother’s side the nearest kindred are 3 maternal first cousins and a half-uncle, Henry A. Crego. • The uncle has possession of and claims the estate, and he, together with the tenant on the farm, are the defendants. The case is ejectment, and the sole question involved is: Upon which of

these parties do our laws cast the estate?

The sections of the statute which affect the question are:

“If the intestate shall leave no issue, husband, widow, father, mother, brother, sister, nor child of brother or sister, his estate shall descend to his next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.” Act No. 286, § 1, subd. 3, Pub. Acts 1909.
“The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors, in which case, all those who are not of the blood of such ancestor shall be excluded from such inheritance.” 3 Comp. Laws, § 9068.

Neither the paternal first cousins on the one side, nor the half-uncle and maternal cousins on the other side, come within the preferred class particularly designated by the statute. If they, or any of them, take the estate, it must be by reason of their falling within the class designated by the statute as “next of kin.” It is obvious that the half-uncle is nearest of kin to the intestate, because he is one degree nearer to him than are the paternal and maternal cousins. Thus far there seems to be little difficulty; but at this point it is argued that the half-uncle is excluded by the exception contained in section 9068 by reason of being a half blood. This provision as heretofore quoted provides that:

“Unless the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors, in which case, all those who are not of the blood of such ancestor shall be excluded from such inheritance.”

The foregoing exception has been construed by this court in Ryan v. Andrews, 21 Mich. 229, and in Rowley v. Stray, 32 Mich. 70. It was held in these cases that the exclusion was to be effective only in the event that there were more than one in the same class, one or more of whom were not of the full blood. For example, in the present case, if the half-uncle were dead, and the contest was between the paternal and maternal cousins, all being in the same class, the maternal cousins or those of the half blood would be excluded. In Ryan v. Andrews, supra, the contest was between the paternal uncles and aunts on one side and the maternal grandmother on the other, and it was held that the maternal grandmother was entitled to the estate. Mr. Justice Campbell, in so holding, said in part:

“We think, therefore, that under the statute the estate can under this section never go to any one else but the nearest of kin, according to the degrees of the civil law. If there is but a single next relative, he or she will take the whole estate, without reference to whether the kindred is on the side of the one parent or the other. If there are several next of kin, and they are not all related on the same side, then only such of them will take as are of the blood of the ancestor from whom the estate was derived. In the present case, as there is no one else of the same degree of kindred with the maternal grandmother, and she is nearest of kin, the estate devolved solely upon her, and the remoter kindred are excluded.”

The same section was again before the court in Rowley v. Stray, supra. The paternal grandmother of the intestate was contesting with the half brothers and sisters of the intestate. It was adjudged that the half brothers and sisters should succeed to. the estate, and Mr. Justice Campbell said, in the closing paragraph of the opinion, that:

“Nothing seems plainer to us than that, under this statute, the half blood afe only excluded when there are others in the same statutory class who are to be preferred by reason of being of the blood of the ancestor from whom the estate came to the intestate. This was the view taken by us when Ryan v. Andrews, 21 Mich. 229, was before us, and further reflection has confirmed us in it.”

In the instant case, the maternal half-uncle is the next of kin, and as there are no other persons in his class the exception as to the half blood does not exclude him from taking the estate.

Counsel for appellant has this further to say on the question of the half blood:.

“We contend that by subsection 5, above quoted, the half bloods mentioned in this section mean the half-brothers and half-sisters of the brothers and sisters of the intestate; and hence we are bound to contend that no other half bloods are or can be interested in this, estate as half bloods — only the half-brothers and half-sisters of the brothers and sisters of the intestate, Theodore Stetler. The defendant Henry A. Crego, belongs to another class of half bloods, or line of half bloods, in the ascending line.”

If the “next of kin” mentioned in the statute were to be computed according to the canons adopted by the common law, this contention would be sound, because by the common law the half bloods were never permitted to inherit, and because in computing the next of kin the descending line was recognized, but the ascending line was not. It was different with the civil law, and our statute commands that the degrees shall be “computed according to the rules of the civil law.” By the rules of the civil law the half-uncle is the next of kin, and therefore under the statute he will take the estate.

This is in keeping with the holding of the trial court, and its judgment will be affirmed.

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

The late Justice McAlvay took no part in this decision.


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    FOSTER v. KRAUSE.
    1. Appeal and Error — Exceptions—Sating Questions por Review.
    ■Where no exception was taken to the ruling of the court below in the admission of evidence, this court will refuse to consider it, on appeal.
    2. Witnesses — Cross-Examination—Impeachment.
    In an action for personal injuries caused by assault and battery, evidence of statements made by one of three defendants that a codefendant had offered to pay his fine if he would help lick the plaintiff was admissible for the purpose of impeachment, and, also, to show the interest of the witness and a common purpose on the part of the defendants to- do him injury.
    3. Evidence — Opinion Evidence — Damages—Statement op Fact.
    In an action for personal injuries, testimony by a witness, who had known plaintiff for four years and had worked with him both before and after his injury, as to his ability to work after the injury, based on his own observations, was admissible, and was not objectionable as opinion evidence.
    4. Trial — Instructions—Admissions.
    Where defendants admitted that they had been found guilty of assault and battery on a criminal charge before the justice, and there was no evidence of any other assault and battery charge against them, an instruction by the trial judge, in an action for damages growing out of the assault and battery, that the jury might take into consideration the proven facts, including their former conviction, was not erroneous.
    5. Same — Requests to Charge.
    A requested instruction in favor of one of three defendants, on the ground that the evidence showed that plaintiff voluntarily engaged in the encounter, and that there was no evidence that defendant unreasonably or excessively beat the plaintiff, was properly refused where the evidence showed a common understanding among themselves that said defendant should go ahead and assault plaintiff, and if lie needed assistance the other two would aid him, which they did, using excessive and unreasonable force.
    Error to Ottawa; Cross, J.
    Submitted October 9, 1914.
    (Docket No. 47.)
    Decided September 28, 1915.
    Case by William Foster against William Krause and others for personal injuries caused by assault and battery. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Farr,.Kolyn & Farr (Walter I. Lillie, of counsel), for appellants.

      Coburn & Misner, for appellee.
   Bird, J.

Defendant Arthur Brems took umbrage at a tart letter addressed to him by the plaintiff, requesting him to keep his hogs out of plaintiff’s cornfield. He answered the letter in person, and an altercation ensued. At the moment when plaintiff had the better of the fight, Arthur’s brother and brother-in-law, the other defendants, came to his assistance, and as a result plaintiff lost the fight, and was severely kicked and beaten by them. This suit for assault and battery followed, and the jury awarded plaintiff as compensation for his injuries the sum of $900.

Defendants’ first assignment of error complains of the admission of certain testimony, on the ground that it was incompetent. Under the rule we must refuse to consider this assignment, for the want of an exception to the ruling of the trial court. Hotchkiss v. Weinmann-Matthews Co., 175 Mich. 652 (141 N. W. 568).

Defendant Krause was asked, upon cross-examination, if he did not state on a certain occasion that defendant Arthur Brems offered to pay his fine if he would “help lick the plaintiff.” His recollection was somewhat uncertain as to whether he had made the statement, and the trial court permitted plaintiff to show by an impeaching witness that he had made such statement. This is said to be error, because the question was a collateral one. We think the ruling was proper. The testimony bore on the interest of the witness, and was admissible for that purpose (Smith v. Hockenberry, 146 Mich. 7 [109 N. W. 23, 117 Am. St. Rep. 615, 10 Am. & Eng. Ann. Cas. 60]); and, furthermore, it had a tendency to support plaintiff’s contention that there was a common purpose on the part of the defendants to do him injury.

A lay witness for the plaintiff, after testifying that he had known plaintiff for a period of four years, that he had seen him work, and had worked with him before and after the altercation, was permitted to answer the following question:

“Q. How about his ability to work compared with other times?
“A. He had to give up his shovel last week, and we had to load his load. He would water his horses, and we would load the load.
“Mr. Farr: I ask to have that stricken out.
“Mr. Coburn: I think it is incompetent.
“The Court: It may stand.”

Error is predicatéd upon the court’s refusal to strike out the answer, on the ground that it was a mere matter of opinion as to plaintiff’s ability to work. It was said in Elliott v. Van Buren, 33 Mich. 49, 53 (20 Am. Rep. 668):

“We think there is no rule which can prevent ordinary witnesses from describing what they see, or from testifying concerning the kind of injury or sickness of others whom they have had occasion to consort with, unless it is something out of the common course of general information and experience, or unless the question presented involves medical knowledge beyond that of ordinary unprofessional persons.”

In Harris v. Railway Co., 76 Mich. 227 (42 N. W. 1111), a lay witness was asked:

“Q. Can you state whether she was able to work during this time?”
“Q. Now, from what you have seen of her, can you-state whether she has the full use of her left arm?”

It was held that these questions were proper, and that they—

“Did not call for opinions, but for facts which fell under the observation of the witnesses.”

In Rogers v. Ferris, 107 Mich. 126 (64 N. W. 1048), lay witnesses were permitted to give their opinions as to the disease which caused the death of another, and they were held competent under this rule.

In view of these holdings, the trial court was justified in refusing to strike out the answer of the witness.

The trial court instructed the jury that:

“In considering whether the defendants assaulted the plaintiff in this case or not, you' can take into consideration all the proven facts, and circumstances in this case, including the plea of guilty by the defendants and their former conviction.”

Counsel say that this instruction was erroneous because :

“There was no evidence before the jury that defendants’ plea of guilty- and their former conviction was for the same offense or upon the same facts as those in evidence in this case.”

Arthur Brems admitted upon cross-examination that he pleaded guilty to the criminal complaint for assault and battery before the justice of the peace. William Brems admitted that he was convicted of assault and battery,' and William Krause made a like admission, and that his father-in-law paid his fine. In view of this^ testimony, we think it will hardly do to say that it did not have reference to the assault and battery which was involved in this suit. There was no evidence of any other instance of assault and battery, and this testimony must necessarily have had reference to the one in suit.

Error is assigned upon the refusal of the trial court to charge the jury in accordance with the following request:

“I further instruct you that the evidence herein is uncontroverted; in fact, it is admitted by the plaintiff that he and Arthur Brems voluntarily engaged in a physical encounter, and that there is no evidence in this case that the defendant Arthur Brems unreasonably or excessively beat or injured the plaintiff. Your verdict as to the defendant Arthur Brems should be ‘No cause of action.’ ”

This request was properly refused. The testimony was very persuasive that the three defendants had a common understanding and agreement between themselves that Arthur should go ahead and assault plaintiff, and, if he needed assistance, the other two defendants would aid him, which they subsequently did. If the jury reached the conclusion that there was such an understanding between them, the foregoing instruction was entirely out of place, as the testimony tended to show that the force used by the other defendants was excessive and unreasonable.

An examination of the other errors assigned does not disclose any reversible error.

The judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


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    ATKIN v. VAN SICKLE.
    1. Witnesses — Matters Equally within Knowledge of Deceased — Hostile Witness — Waiver.
    Where, in an action by an administratrix for an accounting of the proceeds of certain life insurance policies, claimed by defendant to have been absolute sales and by complainant < to have been assigned as security only for advances to deceased, complainant called defendant for cross-examination under the opposite party statute (Act No. 307, Pub. Acts 1909), and questioned him as to matters equally within the knowledge of the deceased, 'although such testimony was clearly incompetent under Act No. 30, Pub. Acts 1903, complainant is held to have waived the benefit of the latter act.

      2. Same — Appeal and Error — Exception—Saving Questions for Review.
    And where no proper objection was made by complainant to the action of defendant’s counsel in later continuing the examination in reference to the same matter, she cannot now successfully urge the inhibition of the statute.
    3. Evidence — Assignments—Life Insurance — Burden of Proof.
    Where, in an action by complainant - administratrix for an accounting of the proceeds of certain life insurance policies, the assignments to defendant were absolute in form, the burden of proof is upon complainant to establish her claim that they were made as security only.
    4. Same.
    Evidence examined, and held, to establish the fact that the policiés in question were assigned as security only.
    Appeal from Wayne; Mandell, J.
    Submitted November 20, 1914.
    (Docket No. 145.)
    Decided September 28, 1915.
    Bill by Katherine C. Atkin, administratrix of the estate of William L. Atkin, deceased, against William Van Sickle and another for an accounting of the proceeds of certain life insurance policies alleged to have been assigned to defendants as security. From a decree for complainant, defendant Van Sickle appeals.
    Affirmed.

      William J. Weakley, for complainant.

      Matthew B. Whittlesey and Irvin Long, for defendant Van Sickle.
   Bird, J.

The question in this case is whether certain assignments of life insurance policies were absolute sales, or whether they were made merely for the purpose of securing the repayment of certain loans negotiated by the insured. William L. Atkin was the insured, and was the husband of complainant. For several years prior to his death he was a life insurance agent. His health commenced to fail in 1908, and after that he was obliged to negotiate loans to meet his necessities from time to time up to his death in August, 1912. Some time in 1909, he obtained certain loans from defendant Whittlesey, aggregating, with interest, $1,785.74, and assigned to him as security two policies. Later, and in September, 1910, he was advised to go to California for his health, and he applied to Whittlesey to increase the loan. Whittlesey not being able at that time to make a further loan, defendant Van Sickle, Atkin’s former employer and friend, offered to advance the money for the California trip. Whittlesey then assigned the two policies to Van Sickle. Van Sickle continued to loan Atkin funds for his expenses in California, and also for the purpose of paying the premiums on his policies, and received an assignment of other policies. In the summer of 1912, Van Sickle made a trip to California, and while there saw Atkin and promised to stand by him to the end, and after his death to pay his funeral expenses and his debts, and subsequently he was furnished a list of his credictors and the amount owing to each. Van Sickle claims that a full settlement was had between them at that time. Van Sickle faithfully carried out his promise to his friend, and when everything was paid he found that he had advanced $7,080.27. The amount received from the insurance policies exceeded this sum by $1,785.74, and it is this sum which the chancellor, after the hearing, ordered paid to the estate, holding that the assignments were made as security for the loans. Defendant Van Sickle has* appealed, and his claim is that the testimony does not sustain the conclusion of the chancellor.

The administratrix and complainant called defendant Van Sickle as a witness under the opposite party statute of 1909, and during the examination the following occurred, touching his conversation or agreement with Atkin in California in the summer of 1912:

“After returning to Detroit I called up Mrs. Atkin, made an appointment at my office, waited for an hour, and she did not keep it. I met her later on the street with Mr. Leonard. I told her how well Will looked at that time, and it was she who discussed about the divorce. She asked if Atkin had made any insurance over to her. I told her, ‘No.’
“Q. She asked you if you had gotten fixed up, and you said, ‘He has fixed me up for a time’?
“A. I don’t know as I said ‘fixed me up for a time,’ I said, ‘Fixed me up,’ which he did.
“Q. Didn’t you say, ‘When that is gone, and I want some more, he promised he would?’
“A. Yes, sir; and he would, too. .1 promised to look after Mr. Atkin as long as he lived, and furnish nurses, etc.' (Objected to by complainant). And that is the reason he gave the policy. Yes; he would look after me all right.”

Later, upon examination by his own counsel, the witness went into detail with reference to the conversation and understanding with Atkin in California, and no protest nor objection was made to its reception by complainant. The chancellor expressed the opinion that this testimony was incompetent under the statute, and refused to consider it in reaching his conclusion. Appellant claims that the statute was waived by complainant, and that the chancellor should have given the testimony due weight. The testimony was clearly incompetent, because it related to an oral conversation with the deceased with reference to the assignment of the insurance; but we think the statute was waived by the complainant. A part of the conversation was developed by complainant’s counsel. True, a naked objection was interposed; but no reason was assigned therefor, and no objection was interposed to the recital of the additional conversation, when examined by his own counsel. Where an administratrix and her counsel sit by without making the proper objection, or any objection, to the admission of incompetent evidence, they should not be permitted afterward to successfully urge the inhibition of the statute. Barbier v. Young, 115 Mich. 100 (72 N. W. 1096); Fox v. Barrett’s Estate, 117 Mich. 162 (75 N. W. 440).

The inference is, from the chancellor’s opinion, that but for the exclusion of this incompetent testimony his conclusion might have been different; but we find difficulty in reaching a different conclusion than he did, even by considering the alleged incompetent testimony. It cannot be questioned that the policies assigned to Whittlesey were merely for security. He so testifies. Whittlesey assigned them to Van Sickle. The status of the policies must have been the same in the hands of the assignee as in the hands of Whittlesey, unless later changed to an absolute sale. We find nothing in the testimony which convinces us that such a change was made. The other policies assigned directly to Van Sickle are absolute in form, and of course the burden was on complainant to show, that the assignments were made as security. We are led to the conclusion that the policies were assigned merely for security from the fact that :

(a,) Notes were executed and delivered to Van Sickle with each advancement or loan made. While this is not conclusive, it is very persuasive in reaching the conclusion.

(b) The interest on the several notes was computed, and, when due, new obligations were given to cover them, and this practice was true of the premiums upon the policies that were paid by Van Sickle.

(c) Van Sickle says that, if he advanced more money, he expected Atkin would assign other policies. This is rather inconsistent, if the engagement was an absolute one.

(d) Neither Atkin’s letters nor his conversation with Van Sickle in California indicate that he regarded the assignments as absolute.

It is urged as against this view that the assignments upon their face are absolute. The assignments show this, but this fact is not as convincing as it would have been had not the assignments to Whittlesey as collateral security been made in the same form. It is also argued that the deceased expressed a determination that his wife should not share in his property. This is to be found in one of his own letters. It is quite likely that Atkin’s feelings at the last were in accordance with this expression; but the force of this point is lessened by the fact that this bitterness arose only after she refused to go to' him in California, and at that time at least three of the assignments had been made. And then there is the further consideration in this -connection that, if he cared nothing for his wife, he did for his aged mother and his boy, and consequently must have had a desire to protect them.

Defendant Van Sickle’s own testimony on this question is far from being conclusive. He does not say in so many words that the assignments were absolute sales. He details no conversation with Atkin while in California which is conclusive on that point. The conversation which he does detail is not altogether inconsistent with the theory that the assignments were regarded by both as security. True, he testifies that he claims the assignments are absolute, and he also says he had a full settlement with Atkin while in California; but he might have had a full settlement and retained the policies as security.

Complaint is made by the appellant because certain memoranda made by Atkin, giving a history of the policies, were admitted and considered by the court. It is claimed this testimony was self-serving and incompetent. This testimony has not been considered by us in reaching a conclusion, so it will be unnecessary to consider it.

We are of the opinion that the chancellor reached the right conclusion, and the decree of the trial court will be affirmed, with costs of both courts to the complainant.

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

The late Justice McAlvay took no part in this decision.