text:
    McDUFFEE v. McDUFFEE.
    1. Divorce — Cruelty—Condonation of Adultery.
    In reminding his wife, in the presence of her children, of an act of adultery that the husband, with knowledge, had condoned, in falsely accusing her of further misconduct, and attempting to influence her minor children against her, defendant was guilty of extreme cruelty.

    2. Same — Condonation.
    The husband condoned her offense by subsequently living with the wife after obtaining full information thereof.
    3. Same — Alimony.
    An award of permanent alimony, consisting of 50 acres of land owned by husband and wife by the entirety, and 20 acres of defendant’s property which included an estate of remainder in 95 acres worth about $10,000, 70 acres worth $4,200, held by entireties, and personal property worth $3,000, and a further award of $16 per month for the support of the children, was justified by the testimony.
    Appeal from Ottawa; Padgham, J.
    Submitted January 12, 1912.
    (Docket No. 58.)
    Decided March 29, 1912.
    Bill by Susie McDuffee against Daniel McDuffee, Junior, for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Lillie & Osterhous, for appellant.

      Corie C. Coburn, for appellee.

       Charge of adultery as ground for divorce, see note in 34 D R. A. (N. S.) 860.

   Moore, C. J.

The questions involved in this divorce proceeding are so clearly stated by the trial j udge that we cannot do better than quote from his opinion, as follows ;

‘ ‘ The complainant files her bill in this cause for a divorce from defendant, charging and alleging cruelty by personal violence, and also by calling her vile and obscene names. The defendant filed his answer to said bill, denying specifically the charges of cruelty toward her, as by her alleged, and in said answer filed his cross-bill, asking affirmative relief, and stating that he was married to complainant on the 15th day of December, A. D. 1900, and lived with her until the 31st day of December, 190.9, and part of that time she refused to cohabit with him as husband and wife; that there were four children from said marriage, to wit: Herschel, aged 8 years; Harris, aged 7 years; Hilda, 4 years;-and Daniel, aged 2 years. He further charges in said cross-bill that complainant, disregarding her marriage vows, committed adultery with one Leo L. Brown, a hired man, on, to wit, the 14th day of March, 1909, at their home in said county; that said Leo L. Brown pleaded guilty to the said charge of adultery at the March term of said circuit court for Ottawa county, and also that complainant, at the same term of said court, pleaded guilty to the said charge of adultery with said Brown. He further alleges in his cross-bill that said Brown was sentenced to imprisonment in State prison, and that complainant was let off on suspended sentence, upon his (defendant’s) filing a bond for her release. Defendant claims he obtained her release, because he did not want his children disgraced by having it said of their mother that she was imprisoned for such a crime, etc.; that he took her home to keep peace in the family, and in the hope that the lesson thus taught would be sufficiently severe to make said complainant see the error of her ways, etc., and become a true wife and mother, but that the reverse has been the result. He also, in said cross-bill, charges her with cruelty in divers ways, and that his health has become impaired from such treatment. Issue being joined on the original bill, answer, and cross-bill, the cause came on to be heard on pleadings and proofs taken in open court. A number of witnesses were sworn and gave testimony on the part of both the parties, as also the said complainant and defendant were each sworn and testified in their own behalf. After a careful examination of all the proof offered in the case, I am of the opinion that the defendant, in various ways, has been guilty of extreme cruelty toward complainant substantially as alleged in her bill, and is entitled to the relief prayed for therein.
“As to the defendant’s cross-bill, the main claim by defendant, for which he claims to be entitled to a divorce from complainant, is the fact of the adultery with Brown. Proofs were offered upon this branch of the defense, and from such proof there seems to be no doubt that she was guilty as charged. Brown also was shown to be guilty, and was sent to prison. Defendant was persistent in saving his wife from a prison sentence, and entered into a bond for her good behavior and for her return to his home and family, conditional for her appearance at court, from time to time, to receive sentence, if her conduct should deserve it. On the application of defendant, she was finally discharged and released without sentence. I am satisfied from the proof in the case that since her said discharge and release the complainant has been true to her husband and an exemplary mother to her children; that defendant has falsely accused her of running after Brown since his discharge from prison, and has continually thrown up to her the false step she took with Brown, when she fell into the sin of incontinence toward her husband. It was inconsistent with the professed regard he had for her, and his seeming great desire he had to shield her name when he gave the said bond, that his children might not be disgraced by her false step. The proofs, however, show conclusively that he lost no time in spread- ' ing it before his children (young as they were), and persisted in attempting to instill into their minds what a wicked woman their mother was and had been in her conduct with Brown. These children were too young to comprehend anything about the sin of their mother, and when their father brought her home to care for them as their mother, it certainly was the last thing for him to do to blazon her offense before them publicly and bring her into deeper disgrace, and weaken her influence for good over them, which she was striving to do. The offense of adultery, by his own testimony, had been condoned, and was no defense proper in his said cross-bill. He had cohabited with her as husband and wife with full knowledge of her former adultery. Believing, as I do, from the proofs in this case, that the complainant was trying to lead a pure life, and living true to her husband, and from the fact that her offense had been condoned by him, to make public to his children, too innocent to look upon her only as their mother, was and is extreme cruelty, and his cross-bill should be dismissed. At the time of taking proofs in the main case, testimony as to the value of the defendant’s property WRs also gone into, and from which, it appears, that he had personalty to the amount of nearly $3,000; that he had a deed from his father and mother of a farm of about 95 acres, worth at a conservative estimate $10,000. This, however, is subject to a life lease to the parents, with whom the defendant lives, and has lived since the suit. Defendant pays the taxes and $240 per year for rent of this farm. There is a mortgage of $1,000 on this farm to his mother, which, in all probability, will never have to be paid. The old people are along in years, the father about the age of 80 years, and the mother about 70 years. At their decease, this property becomes the defendant’s. Defendant also owns, besides this farm, 70 acres, upon which he lived while living with his wife, and which 70 acres are near the old farm, above mentioned. This 70 acres consists of two parcels, the first of 20 acres, which the defendant bought the same year he was married, paying $700 for it, $200 down, and subject to a mortgage of $500. This was all the defendant had. at the time of. his marriage. The second piece is parcel of 50 acres, which is held by the parties in entireties; the 50 acres costing them something like $2,500. There is still a mortgage on the two pieces together, viz., the 70 acres. The testimony as to the value of this 70 acres put it at about $4,200, being $60 per acre. The complainant has always worked with defendant in accumulating this property. Her interest in the 50 acres would be, at the rate of $60 per acre, $1,500; his interest is the same. The defendant has a permanent home with his people (a favorite son), and the control and management of a good farm, worth at least, as before stated, $10,000, and well stocked with cattle, horses, tools, and machinery, some debts, which are not pressing, and which he is able to meet. The complainant has three children to take care of, feed, clothe, and educate. She is entitled to their custody until they, respectively, arrive at the age of 14 years.
“As permanent alimony to complainant, she will be allowed the full unincumbered title to the 50 acres mentioned, which is now owned by the parties in the entire-ties. She will also be allowed the unencumbered title to the 20 acres spoken of in the proofs in this case, making the 70 acres in all, which she will be allowed as her permanent alimony in full, and in full of all dower in defendant’s other property. The defendant will also pay to the complainant as alimony, and for partial support (with the mother) of the three children now living, the sum of $16 per month, payable monthly in advance, the first payment to be made on the 1st day of July, 1911, to be reckoned from that date, and payable on the first day of each succeeding month from thence on until said children shall arrived at the age of 14 years, respectively, or until further order of this court.”

The case was argued at length orally by zealous counsel. The printed record of about 150 pages has been examined with^care. It would profit no one to refer in detail to the testimony. We shall content ourselves with saying that we think the findings of fact as made by the judge are established by a clear preponderance of the testimony. The only question about which we hesitate is whether it would not be better to decree complainant a sum of money for alimony and a monthly payment to her for the support of the children. The trial judge had the great advantage of seeing and hearing the parties to the litigation and their witnesses. After full consideration, we have decided to allow the decree to stand as made.

The decree is affirmed, with costs.

Steere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    McCRACKEN v. MacNEAL.
    Waters and Watercourses — Prescription — Drains and Ditches — Notice.
    Where defendant testified that she did not know of a tile drain across her lands, which was not open to view and was laid with the alleged consent of her father when he occupied the premises as a tenant, but without defendant’s permission, the user was not so open and adverse as to create a prescriptive right.

      Appeal from Oakland; Lamb, J., presiding.
    Submitted January 10, 1912.
    (Docket No. 36.)
    Decided March 29, 1912.
    Bill by Olive E. McCracken against Edward MacNeal and Jáne MacNeal for an injunction and other relief. From a decree for complainant defendants appeal.
    Reversed.

      Clarence Tinker, for complainant.

      George F. MacNeal and Rockwell & Zimmermann, for defendants.
   Moore, C. J.

This is a bill filed to enjoin defendants from interfering with the flow of water through a tile drain from the lands of the complainant to defendant’s land through the land of defendants, and to recover damages for such interference. From a decree in favor of the complainant, the case is brought here by appeal.

A reference to the accompanying sketch will aid in understanding the situation.

It is claimed that complainant has a right to drain the land of complainant across the land of defendant, first, because it is a natural way for the water to run, and, second, because of a right to an easement gained by prescription. The trial judge found against the first contention, but in favor of the second one. That a right to an easement, like a drain, can be gained by prescription is no longer open to question. See Covell v. Bright, 157 Mich. 419 (122 N. W. 101); Menter v. First Baptist Church, 159 Mich. 21 (123 N. W. 585), and Dummer v. Gypsum Co., 153 Mich. 622 (117 N. W. 317), where there is a very full collation of the authorities.

The important question is one of fact. The case established by the proofs introduced upon the part of the complainant is that when Mr. Pratt, the father of the defendant Mrs. MacNeal, was in possession, as a tenant, of the lands belonging to defendant, about the year 1880, an arrangement was made between the father of complainant, then •owner of the lands now owned by her, and Mr. Swartout, who owned the farm east of complainant, and Mr. Pratt, by which it was agreed that a tile drain might be constructed as shown by the plat, and that it was laid and

Used until a few Years this bill was Filed. The record shows that this was a covered drain, over which crops were grown; and we have searched in vain for anything in the record which will show that the ground presented any such appearance as to indicate where the drain was laid, or that a drain was in existence, to any one who had not seen it laid. The most favorable testimony to which diligent counsel for complainant is able to call our attention will be mentioned later.

We quote from the brief;

“ The testimony of Jane MacNeal shows that at the time the drain was constructed, her father, G. K. Pratt, had full charge of the place; her language being: ‘ Father looked after the place as though it were his own.’ These facts constituted Mr. Pratt her agent, and when he gave his authority to Benjamin McCracken to construct the drain, it was practically the authorization of the defendant in this case.”

Turning to the record, to which reference is made by counsel, we find the following:

“No, sir; I never gave any one any authority to put a drain through my land, and I never heard there was one put in there. Since 1903, there had been a great deal of talk about it, and I have heard about it; but previous to that time I knew nothing about it.”

Cross-examination by Mr. Tinker:

“ My father’s name was G. K. Pratt. At the time of his death, he lived on the Russell place; he sold it in March before he died the 9th of May. He was still in possession. No, sir; I did not reside with my father at that time. I lived downtown. I was up there as frequently as I could be; for he was poorly. He died May 9, 1881. That was after he sold to Russell; father hadn’t given up possession. I don’t know the date of the deed. We were quite a while settling up his affairs. Occasionally I would be out to father’s while I was living downtown. I was building my house and looking after that. We came to Fenton in 1880, and moved into the houseán the fall of 1881, and went West in 1882; we were there from 1880 to 1882. Yes; when we were absent in ’7?-’79, father looked after the place as he would his own. There was no agreement made what we were going to have, or anything about it; we simply wanted him to care for the farm until such time — ”

Redirect examination by Mr. MacNeal:

“ He didn’t have any contract, or anything of the kind; he took care of it, took charge of it — just the land. He raised the crops until we could get— He was practically my tenant, like any other man. He had no authority whatever. He never told me anything that was going on around there; it was too far away. I mean that, as far as looking after the crops and things, he was attending to them.”

We think the testimony does not sustain the contention of counsel. Both defendants swear positively that they had no knowledge of the existence of the drain until about 1903, when it got out of repair at the highway upon the north of their premises and flooded their barnyard.

It is their further contention that they then supposed that the water which came boiling up was a spring, and that, when they learned it was a blind drain coming from the land of complainant, they sent word to complainant to repair it; that, she failing to do so, they were compelled to do just what they did do to prevent their land from becoming worthless. We think complainant has failed .to show such knowledge on the part of defendants, either actual or because of open and adverse user, presumptive, as would entitle her to relief.

The decree is reversed, and the bill of complaint dismissed, with costs of both courts.

Steere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    MANN v. IONIA CIRCUIT JUDGE.
    Mandamus — Equity—Appeal and Error — Adequacy op Appeal —Foreclosure op Mortgage.
    An order of sale of mortgaged premises, made after a decree of foreclosure and after assignment of the mortgagee’s interest, on application of the assignee, without notice to the defendants, is reviewable by appeal and will not be vacated by mandamus.
    Mandamus by Marion Mann and others to compel Frank D. M. Davis, circuit judge of Ionia county, to vacate an order of sale of premises involved in a foreclosure suit.
    Submitted January 16, 1912.
    (Calendar No. 24,878.)
    Decided March 29, 1912.

      Laurence W. Smith, for relators.

      Locke & Sheldon (George E. Nichols, of counsel), for respondent.
   Moore, C. J.

In 1901 Ann M. Read filed her bill of complaint to foreclose a mortgage given by Laura Place, then deceased. The relators, two of her heirs, were made defendants. Decree of foreclosure was taken in September, 1903, on default of all defendants, who appeared but did not answer. Before sale was made, the decree was assigned to John K. Jackson, who by arrangement with W. D. Place, one of the other defendants, now deceased, extended the time for payment. Defendant W. D. Place having died, the said Jackson, as assignee of the decree, petitioned the court on March 29, 1911, for a sale under the decree in the name of the complainant, stating the amount then claimed to be due on the decree. The court, after a hearing, ordered the sale made. The sale was made and confirmed. Relators asked to have it set aside because the order of sale was made without notice. The court denied this petition, and, upon further denial of a petition to set aside the last order, the cause is brought here on mandamus.

Relators contend that:

(1) The failure to give notice of the hearing on the petition of March 29, 1911, was jurisdictional.
(2) That, being jurisdictional, the remedy is not a matter of discretion, but of right.

This claim is based upon the requirements of Chancery Rule 84.

There is no claim of any irregularity except a failure to give notice to relators of the application of leave to make the sale in the name of the complainant in the original foreclosure suit. The assignment to Mr. Jackson provided in part as follows:

“And she (Ann M. Read) does hereby authorize the said party of the second part (John K. Jackson), her true and lawful attorney, irrevocably in her name or otherwise, but at his own proper costs and charges, to have, use and take all lawful means for the recovery of the sum or sums of money now due and owing, or hereafter to become due and owing upon the said decree of foreclosure.”

This assignment was filed and recorded January 2, 1904. By its terms, the complainant authorized all subsequent proceedings to be taken in her name. At the time of the taking of the assignment of the decree, the purchaser, John K. Jackson, executed and delivered to the defendants an agreement which was filed in the foreclosure proceedings. This agreement extended the time for the payment of the amount due upon said decree for three years on condition that the interest be paid annually. It also provided as follows:

“ Should any breach of the conditions of the terms set forth in said mortgage be made by said defendants, or should the interest due under said decree be not paid annually when due, then it is hereby agreed that the said John K. Jackson may enforce said decree independent of said extension of time.”

William D. Place died in August, 1910. On March 29, 1911, John K. Jackson, the assignee of the decree, filed his petition. This petition described the proceedings to the taking of the decree and its assignment, and the said agreement of extension of time for the payment. It set up the fact of the payment of interest due under said decree up to July 1, 1908, and also the amount of interest due and the total amount due on the decree for principal and interest. The petitioner prayed for the sale of the premises in pursuance of the decree, and for an order determining the amount due for principal and interest.

Upon filing this petition, and upon a hearing of the same, the order of March 29,1911, was made. As to this hearing, the circuit court returned as follows:

“That on the 29th day of March, 1911, the said John K. Jackson filed a petition in said court and cause, that upon the hearing upon said petition the facts therein set forth were made fully to appear, and that the interest upon the amount specified in said decree at 8 per cent, had been paid up to July 1, 1908; that there was due at said time as interest upon said amount specified in said decree the sum of $5?1.40, and that there was due upon said decree for principal and interest the sum of $3,181.02 on the said 29th day of March, 1911; that this respondent thereupon made an order determining the amount due upon said decree and order of sale of the premises described in said decree in the name of Ann M. Read as complainant.”

The files, the decree, and order were then duly enrolled. The sale of the premises in accordance with said decree and order of March 29th was made on May 20, 1911, which sale was confirmed June 14, 1911.

We do not find it necessary to discuss all the questions raised by counsel in the briefs. We are of the opinion the remedy, if relators have any, is by appeal and not by mandamus.

The application for the writ of mandamus is denied, with costs.

Steere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    BOUMA v. DUBOIS.
    1. Automobiles — Negligence—Personal Injuries —Highways and Streets.
    Where plaintiff and her daughter in crossing a public street in the evening looked either way for a street oar and on crossing the traok looked again in both directions, seeing no vehicle approaching, and were struck by defendant’s automobile which was running at a high rate of speed, with two lights lighted, but obscured, as plaintiff claimed, by rain, the evidence being in conflict, the court properly submitted to the jury the questions of negligence and of contributory negligence.

    2. Same.
    Where the court in his charge correctly stated under what conditions plaintiff would be held guilty of contributory negligence, and then instructed them that she would not perhaps be entitled to recover in that event, the use of the word “perhaps” was not reversible error when considered with the remainder of the charge which was full and correct.
    3. Same — Instructions to Jury.
    And it was not error to instruct the jury that defendant would be chargeable with negligence if he violated any of the statutory requirements, the jury being advised in a different part of the charge that such negligence must be the proximate cause of the injury to warrant a verdict for plaintiff.
    4. Same.
    The verdict being reasonable in amount and the court finding that the jury was not misled, an error in the charge permitting the jury to And damages for permanent loss of taste and smell, although such injury was not shown to be permanent, was not reversible.
    5. Same — Trial—Cross-Examination.
    The discretion lodged in the trial court to permit the examination of witnesses is not reviewable except in cases of its abuse.

      Error to Superior Court of the city of Grand Rapids; Stuart, J.
    Submitted January 19, 1912.
    (Docket No. 135.)
    Decided March 29, 1912.
    Case by Gesina Bouma against William J. Dubois for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Dunham & Phelps, for appellant.

      Smedley, Linsey & Lillie, for appellee.

       Duty of operator of automobile to stop in order to avoid collision with pedestrian, see note in 24 L. R. A. (N. S.) 557.
      Duty and liability of person operating automobile on public street or highway, see note in 4 L. R. A. (N. S.) 1130.

   Moore, C. J.

This is an action for personal injuries growing out of an automobile accident. The case was tried before a jury, which rendered a verdict in favor of the plaintiff for $600. A motion was made for a new trial, which motion was overruled.

The errors assigned and the discussion thereof make a liberal quotation from the charge of the court essential. We quote as follows:

“The plaintiff claims that on the night in question, in October last, she started out with her daughter, about a quarter to 7 o’clock, for church. . They came to Grand-ville avenue, and proceeded south on Grandville avenue to very nearly the intersection of B street with Grand-ville avenue, and then attempted to cross Grandville avenue to reach the church; * * * that they started a little before they came to the intersection of the two streets, and proceeded in a southeasterly direction to the corner of B street on the east side of Grandville avenue; that when they entered upon the street she claims there was nothing coming or visible that was dangerous, and that they proceeded to cross the street until they got to the middle of the street; that at the center, between the two tracks of the street railway company, they stopped and looked in both directions to determine whether there was any danger ahead of them in continuing to cross the street; * * * that she saw nothing that would interfere with their proceeding, and that she attempted to go on, and on reaching the east rail of the east track, after crossing that, immediately something struck her and knocked her down and injured her, and carried her some distance on the street, and it is claimed on her behalf that the defendant came very suddenly upon them, driving at a great rate of speed, and struck her with his automobile, and with such force that she was knocked down on the pavement and carried something like 50 feet, pushed on the brick pavement; that then the machine skidded and turned towards the curb, and was stopped. The plaintiff claims that she was proceeding with due care in getting across the street, and was not negligent in any respect. It is claimed that she was seriously injured by a cut on the head and some cuts on her limbs and hip, and black and blue bruises on her body; that she was confined to her bed for a week and suffered pain, and after getting out of bed that she was around the house, unable to get out or do anything of any account, for something like six weeks, so that she was confined to the house seven weeks; and that then she was not fully recovered, but has suffered to some extent since, and has lost, by reason of the injury, her sense of smell and taste. The plaintiff claims that the defendant was negligent, inasmuch as he had not the proper lights that could be seen; that he didn’t blow a horn or ring a bell; and that he didn’t slow down sufficiently at the crossing to have his machine under control, so as to prevent coming in contact with pedestrians who were crossing.
“On the other hand, the defendant claims that, before coming to this crossing, the two lights on his machine in front were lighted, and the light behind, in compliance with the law; that he had stopped a short distance above the street for the purpose of lighting a cigar, and that he started up on what they call slow speed, and was running at a slow rate of speed when he discovered these parties in the roadway, near the middle of the street, and between the railroad tracks; that he came near them and stopped the machine, and that these parties stopped, and he understood from their stopping that they had stopped to let him go by, and that he started up his machine to go by them, thinking they had stopped for the purpose of letting him pass, and that immediately on starting up his machine, and when he came right up to the plaintiff, she started at once to go across the street, and stepped in front of the machine at such a time that he had no opportunity to stop it before striking her, and that she was struck by the machine and knocked down, and that he stopped it within a very short distance, within five or six feet, and unloosened her, and got her up and took her home, and took care of her as well as he could, and he claims that he did comply with the requirements of the law in regard to everything that the act provides for in relation to running automobiles; that he had the lights lighted, that he sounded the whistle or blew the horn before coming to them, and that, on blowing the horn, they stopped, so that he supposed they were going to let him go by; and that it was only by reason of the plaintiff having suddenly stepped in front of the machine when it was too late for him to stop it that the accident happened. * * *
“In entering upon the consideration of this case, you must bear in mind that it is not every case of damage or an accident that a legal liability follows, and for which the person causing it or responsible for it in a way is liable. * * * It is only in those cases where the defendant has been negligent, has omitted to do some duty that he ought to have performed, that he owes to the public or to the other party, that a legal liability arises. And in a case of this kind, where the statute or law of the State imposes upon the person exercising a specific trade or calling, or running a machine, or anything of that kind, where it imposes certain duties upon him, it is incumbent upon him to comply with those provisions; and, if he does not comply with them as the law provides, then his noncompliance is construed in law to be negligence — an omission of duty that makes him liable by the mere act of neglecting to comply with the provisions that have been made in such cases. * * *
‘ ‘ So, as I say, the plaintiff in this case must make out, by a preponderance of the evidence, first, that the defendant has been negligent in this case, and that his negligence has caused or brought about the injury that is complained of; and, second, she must show by a preponderance of the evidence that she herself has not been negligent in any way to contribute to this result. Then, before we come to consider the matter of damages at all, it is necessary for the jury to find, and find by a preponderance of the evidence in behalf of the plaintiff, that those two things concur, that the defendant did not do his duty on that night in question by complying with the regulations that ought to have been complied with, and that he negligently ran his machine in such a way that it caused this injury; and, second, that she did all that was incumbent upon her to do, and did not in any way exercise or use any negligence on her part which contributed to this unfortunate accident. * * ' *
“If there were two lights lighted in front, and those lights correspond to the requirements of the statute, it would not make any difference whether the other two were lighted or not. The law provides simply that two lights shall be lighted, and describes (which I will give you later on) the character of the light and when those two lights are lighted, whether they are the upper or the lower ones. If they are of the character that is designated or mentioned in the statute, then it does not make any difference whether the other two are lighted or not, and the one tail light is lighted, so that there were two lights there; and whether they were of the character that the law requires you will have to determine from the circumstances in the case, and from the testimony that you have heard in regard to the matter. Several of the witnesses have testified in regard to these lights, and some of the defendant’s witnesses in regard to seeing them several blocks, when they were coming from the other direction. It is claimed by the plaintiff that no horn was blown or bell rung at the crossing. It is claimed by the defendant, and some witnesses have testified with regard to it, that the horn was blown, and that when it was blown that the parties noticed it and stopped. Now, I am mentioning these things in particular, because they are requirements that the law makes which shall be taken care of; and, if you should find that any of them, as the law provides, were violated, that fact alone would make him liable. * *
“The next point for you to consider is whether the plaintiff is negligent, because it is a rule of law of this State, in suits of this character, that, although the defendant may be negligent, yet, if the plaintiff, the party bringing the suit, is also negligent in any manner, so as to contribute to the injury, there can be no recovery. * * * And if she crossed the street without any reference to the automobiles, or anything else, coming upon her, and without looking at them or trying to protect herself against them, or was going across with an umbrella pulled down over her head in such a way that she could not see them, or if she, on this whistle being sounded, stopped and gave the defendant the idea that she was going to let him pass, and then stepped in front of the machine, when it came upon her, carelessly, she would not be, perhaps, entitled to recover. But if she was exercising due care, looked, when she got to the middle of the street, as she claims, in both directions, and saw nothing and heard nothing, and was in a position where she could see, then she undoubtedly would not be negligent. A person, under such circumstances, must always exercise caution themselves, and do all that is within their power to avoid coming in collision with vehicles passing up and down the street. * * *
“ The owner of an automobile has the right to use the highways of this State, provided in using them he uses reasonable care and caution for the safety of others, and does not violate the law of the State. If the defendant operated his automobile on a public highway at such a high rate of speed as to prevent him from maintaining the control of it, the rate of speed is unreasonable, and he would be deemed to be negligent. In making use of a vehicle which is propelled at a high rate of speed largely in excess of the ordinary vehicles of travel, which is powerful and of great weight, the operator must enlarge to a commensurate extent the degree of vigilance and care necessary to avoid injuries which the use of his vehicle has made more imminent. And this is particularly the language of the statute in regard to the law. It is unlawful for any person to drive a motor vehicle upon the public highways of this State, during a period from one hour after sunset to one hour before sunrise, without displaying at least two lighted lamps on the front of such motor vehicle, the light of said front lamps to be visible at least 200 feet in the direction in which the motor vehicle is proceeding; and, if you find that the light of the front lamps on the motor vehicle operated by the defendant in this case on the night in question was not visible at least 200 feet in the direction in which said defendant was proceeding in said vehicle, defendant would be guilty of negligence.
“When approaching a person walking in the roadway of a public highway, the person operating a motor vehicle Shall slow down to a speed not exceeding 10 miles an hour, and give reasonable warning of his approach, and use every reasonable precaution to insure the safety of such person. It was the duty of defendant, upon approaching the plaintiff in this case on the night in question, to slow down to a speed not exceeding 10 miles an hour; and if you find he didn’t do so, but that his machine was running in excess of 10 miles an hour, said defendant was violating the law of the State, and he was guilty of negligence towards the plaintiff.
“I charge you that it is the duty of the person operating a motor vehicle, on approaching an intersecting highway, and also in traversing an intersecting highway, to have said motor vehicle under control and operated at such speed as is reasonable and proper, having regard to the traffic then on the highway and the safety of the public. If you find that defendant, upon the night in question, while proceeding along Grandville avenue in his motor vehicle and approaching B street, didn’t have his motor vehicle under control, and didn’t operate it at such speed as was reasonable and proper, having regard to the traffic then on the highway and the safety of the public, then said defendant violated the law of the State and would, in law, be deemed to be negligent. Those are some of the elements that would make the defendant negligent on his part.
“And yet, if the jury find that there was negligence on the part of the defendant in the manner in which he drove and operated his automobile, and that the plaintiff was injured, still the defendant is not liable if, by using ordinary care, the plaintiff might have avoided the automobile and the collision and the injury. If you find that on the occasion in question the plaintiff didn’t use ordinary care, or was herself guilty of negligence, which negligence contributed to the injury, then plaintiff cannot, recover in this case. That, to entitle the plaintiff to recover damages for the injuries sustained by reason of the accident in question, she must show the injuries to have been attributable to the misconduct of the defendant, and under such circumstances as to exonerate herself from all negligence on her part.
“The burden of proof is on the plaintiff, not only to show the negligence and misconduct on the part of the defendant, but also to show ordinary care and diligence on her part. And if you find upon the occasion in question she was not exercising ordinary care and diligence, either in crossing the street in the manner in which she did, or in not discovering the automobile, or in not wearing her glasses, or in holding her umbrella in such position that she could not see the automobile, then she cannot recover. * * *
“ If you find from the evidence in this case that the collision, the injury, was caused by the negligence of both parties, or that the plaintiff’s negligence concurred or contributed in producing the injury, the plaintiff cannot recover. I have told you several times that the plaintiff in cases of this kind must make out her case by a preponderance of the evidence, so that the evidence weighs down on her side, so as to make it preponderate in her favor. If it is evenly balanced, and you are unable to decide, by a preponderance of the evidence, any of these points that it is necessary for her to make out, she could not recover.
í{í 5}í
“As I have said, then, gentlemen, the first thing for you to determine is, in regard to these two points, whether the defendant is negligent to such an extent as to make him liable, and then as to whether the plaintiff herself was entirely free from negligence. If you find that she was not free from negligence, or that he was not negligent, then that would end the case, and you should render a verdict of no cause of action; but if you find the other way on these two points, then you are next to consider the question of damages, what damages you shall give as resulting to the plaintiff in this case.
“ In determining the question of damages in cases of this kind, where the plaintiff is a married woman, there are damages of two classes. The law still gives the husband a common-law privilege that he is entitled to her wages and her labor and such things, and she cannot recover for those. In other words, the husband can bring a separate action. He can, in this case, tomorrow, if he wishes to, for the loss of her time and the medical attendance, and many of those things that I might mention, and she cannot recover for those things. All that she is entitled to recover for in this case that I can think of — if I am wrong, I would thank you to correct me — is such sum as you may award her, if she is entitled to anything, for her pain and suffering; and, second, such sum as you may think she is entitled to for her loss of her taste and smell, if you find that that has occurred. Because loss of taste and smell is something that does not belong to the husband ; that is a privilege belonging to the person themselves. So that, in submitting this to you, you would only find damages, if I understand the law correctly, in regard to those two matters. * * * You must simply give her what, in your judgment, is adequate and reasonable compensation, under all the circumstances, for what she has suffered, pain and suffering, and what she is liable to in the future, if any, and also, in the same way, what would be reasonable compensation to her for the pleasure or practical use that her two senses of smell and taste might be to her during the rest of her life. * * * Simply determine what the facts are, and then measure those facts and weigh them, and award such damages as are proper and just and right under all the circumstances.”

There are 30 assignments of error; but counsel group and discuss them as follows:

(1) The court should have directed a verdict for the defendant.
■ (2) The court should have set aside the verdict and granted a new trial, on the ground that it was against the weight of the evidence.
(3) The charge of the court.
(4) The court’s refusal to give defendant’s requests.
(5) The reception of evidence over defendant’s objections.
(6) Remarks of plaintiff’s counsel.

The first two groups may be considered together. It was argued that there is no evidence that defendant was negligent in any way. It is stated that the automobile was going but seven miles an hour. It is insisted that if the plaintiff had stopped and looked she would have seen the automobile, because the view in the street was unobstructed, and therefore plaintiff is clearly guilty of contributory negligence. This argument overlooks or ignores the testimony offered on the part of the plaintiff, to the effect that no horn or other signal was given of the approach of the automobile; that the large lamps in front were not lighted; that, while the two oil lamps were burnning, the glass in front of them was covered with rain, so that they could be seen but a little ways. The daughter describes the accident as follows:

“ Before we attempted to cross the road, we looked and saw nothing coming either way. We had proceeded across the road just over the second track when the accident happened, and in going that distance we looked again to see if anything was coming, and saw nothing and heard nothing. We were just over the second track when the automobile struck my mother; I was a little behind her. The first thing I saw was the red automobile; it was right on top of us. I just had time to jump back, and it took my mother right along.
“Q. Did you see your mother fall down ?
“A. Yes, sir; I seen it strike her. It happened just like a streak of lightning. I cannot tell. I next saw the automobile at the curb, and my mother was between the curb and the automobile. I stood there a while, and saw them back up the automobile and pull her out.”

There was testimony to the effect that the plaintiff, who weighed upwards of 200 pounds, was pushed forward on the pavement 60 feet after she was struck and thrown to the pavement, and that her clothing upon the lower part of her person was nearly all torn off.

In Hennessey v. Gaylor, 189 Mass. 583 (76 N. E. 224, 3 L. R. A. [N. S. ] 345, 4 Am. & Eng. Ann. Cas. 396), it was said, among other things:

“It cannot be said that there was a balancing of probabilities by the plaintiff, with a willingness to take the risk of safely getting over before the defendant came up, as might have been the fact in Whitman v. Railway, 181 Mass. 138 [63 N. E. 334], or where, in a spirit of apparent indifference, plaintiffs voluntarily have exposed themselves to the chance of serious injury.
“ If she had seen the defendant’s machine approaching, and decided it was sufficiently distant to enable her safely to pass, she might have been found by the jury to have exercised due care, though the accident proved that her judgment was erroneous. Coleman v. Railway, 181 Mass. 591 [64 N. E. 402].
“The defendant puts much emphasis on her language that ‘ she did not see any automobile coming ’ contending that she had seen it arrive and come to a stop before she attempted to cross. But it was for the jury to interpret her meaning, and also to determine how far any failure by her to more fully and carefully observe the amount or kind of travel in the street was indicative of such want of care as ought to bar her recovery. Wrinn v. Jones, 111 Mass. 360; Williams v. Grealy, 112 Mass. 79; Sehienfeldt v. Norris, 115 Mass. 17; Carland v. Young, 119 Mass. 150; Bowser v. Wellington, 126 Mass. 391; Shapleigh v. Wyman, 134 Mass. 118; Benjamin v. Railway, 160 Mass. 3 [35 N. E. 95, 39 Am. St. Rep. 446]; Murphy v. Transfer Co., 167 Mass. 199 [45 N. E. 93]; McCrohan v. Davison, 187 Mass. 466 [73 N. E. 553].
“There is no imperative rule of law which has been called to our attention generally requiring a pedestrian, when lawfully using the public ways, to be continuously looking or listening to ascertain if auto cars are approaching, under the penalty that, upon failure to do so, if he is injured, his negligence must be conclusively presumed. See Robbins v. Railway, 165 Mass. 30 [42 N. E. 334], It has, indeed, been held that a traveler upon a highway, knowing that it is crossed by a railroad at grade, who passes onto the crossing without looking to ascertain if a train is coming, and is thereby injured, is guilty of such contributory negligence as to preclude his recovery. Butterfield v. Railroad, 10 Allen (Mass.), 532 [87 Am. Dec. 678].
“The reason for this rule was stated by Mr. Justice Morton, in Allyn v. Railroad, 105 Mass. 77, to be that—
“ ‘A railroad orossing is a place of danger, and common prudence requires that a traveler on the highway, as he approaches one, should use the precaution of looking to see if a train is approaching. If he fails to do so, the general knowledge and experience of men at once condemn his conduct as careless.’
“ Outside, however, of such excepted portions as may be crossed at grade by a railroad, this requirement has not been applied to travelers in their daily and common use of our highways.
“The usual rule of ordinary care does not impose upon them the burden of being constantly on the lookout to see if their path is free from dangerous defects, or in a state of apprehension of personal injuries from other travelers. The traveler not only has a right to presume that the way is reasonably fitted for his use, but also that those who may be lawfully using it with himself will exercise a proper degree of care. McGuinness v. Worcester, 160 Mass. 272, 273, 274 [35 N. E. 1068], and cases cited; Kerr v. Railway, 188 Mass. 434 [74 N. E. 669]. See Doyle v. Railway, 161 Mass. 533, 542 [37 N. E. 741].”

In the case of Gerhard v. Ford Motor Co., 155 Mich. 618 (119 N. W. 904, 20 L. R. A. [N. S.] 232), there is a discussion of the relative rights of the automobilist and the person in the highway. It will not be necessary to repeat here what was said there. The testimony was very conflicting. It was properly submitted to the jury, both upon the question of the negligence of defendant and the contributory negligence of the plaintiff.

Counsel call special attention to the following excerpts from the charge:

“ It is claimed by the plaintiff that no horn was blown or bell rung at the crossing. * * * Now, I am mentioning these things in particular, because they are requirements that the law makes which shall be taken care of; and, if you find that any of them, as the law provides, were violated, that fact alone would make him liable.”

The court also said to the jury:

“The law provides that the running of automobiles, I believe, may, in cities, except in the business streets downtown, crowded streets, may be run at the rate of 15 miles an hour, except when, especially at night, they are approaching some one that is crossing the street, in which case they must slow down to 10 miles an hour. That would be the requirement that would be enforced at this crossing. Whether he violated this provision, or the provision as to the lights, or the provision as to the horn, is for you to determine. If you find that the defendant did violate any of these, omitted to comply with them, it would be deemed negligence on his part.”

Counsel say:

“From this language, the jury couldn’t help but get the impression that if he did anything that the law said he shouldn’t do, they must find for the plaintiff, regardless of whether it had anything to do with the accident, or whether the plaintiff herself was guilty of contributory negligence.”

We again quote from the brief of counsel:

“ The court also said:
“‘And if she crossed the street without any reference to the automobiles, or anything else, coming upon her, and without looking at them or trying to protect herself against them, or was going across with an umbrella pulled down over her head in such a way that she could not see them, or if she, on this whistle being sounded, stopped and gave the defendant the idea that she was going to let him pass, and then stepped in front of the machine, when it came upon her, carelessly, she would not be, perhaps, entitled to recover.’

“There wouldn’t be any ‘perhaps’ about it, and the court should not have qualified that statement by such a term. The way he used it the jury couldn’t escape the impression that, under such circumstances, the plaintiff might or might not be guilty of contributory negligence.”

These portions of the charge should be read in connection with the rest of it. If this is done, the charge is not misleading, because the jury was repeatedly told that, unless the negligence was the proximate cause of the accident, and the plaintiff free from contributory negligence, there could be no recovery. A reference to the charge from which we have so fully quoted will show that in this same connection the jury was told, over and over again, correctly, what the rule of law is. While the use of the word “perhaps’’was unfortunate, we do not think the jury was misled. It has been said:

“Where the charge of the court, taken as a whole, correctly states the law as applicable to the particular case, and clearly defines the issue, the fact that sentences are objectionable, when considered independent of the context, does not constitute reversible error.” Provose v. Brueck, 110 Mich. 136 (67 N. W. 1114).

See, also, Smalley v. Railway Co., 131 Mich. 560 (91 N. W. 1027); Beattie v. City of Detroit, 137 Mich. 319 (100 N. W. 574); Whelpley v. Stoughton, 119 Mich. 314 (78 N. W. 328).

We again quote from the brief of counsel:

“In that regard, the court said, ‘what would be reasonable compensation to her for the pleasure or practical use that her two senses of smell and taste might be to her during the rest of her life.’ Thus the plaintiff was permitted to recover damages for the loss of the senses of smell and taste for the rest of her lifetime, however long that might be, when there was absolutely no evidence that such a condition, even if it did exist at the time of the trial, would last her entire lifetime, or a year or a week.”

Another reference to the charge will show that the court told the jury:

“All that she is entitled to recover for in this case that I can think of — if I am wrong I would thank you to correct me — is such sum as you may award her, if she is entitled to anything, for her pain and suffering; and, second such sum as you may think she is entitled to for her loss of her taste and smell, if you find that has occurred.”

The plaintiff testified that as the result of the accident she had lost her sense of taste and smell, and that this loss continued at the time of the trial, which was nine months after the accident. There was testimony bearing upon the probable duration of this loss of taste and smell.

The attention of the judge was called to this portion of the charge in the motion for a new trial. ■ In overruling the motion, he said:

“I have been very undecided and uncertain as to whether the court did not err in charging the jury as set forth in said ninth reason, especially in the use of the words ‘during the rest of her natural life.’ I dislike, as a rule, to compel parties to go through frequent trials, unless an error has been committed that seems not only reasonably plain to the court, but has also caused injury to one or the other of the parties. Under all the circumstances of this case, and considering the amount of the verdict, I do not feel the verdict was affected by the use of the language above quoted, or that there was any error committed that caused damage to the defendant.”

There was testimony to the effect that plaintiff was a large woman, weighing 225 pounds; that she was dragged for a distance of about 60 feet; that the accident occurred about 6:30 p. m.; that plaintiff was rendered unconscious, and some of the testimony shows that she did not regain consciousness until 10 a. m. the next day; that she received a wound in the back of her head, about three inches long; that her right hip was hurt and black and blue, her left limb was bruised at the knee, and it was open, and was black and blue, the whole leg; that she was confined to the house seven weeks, and the first time she went any distance from home was on the eighth Sunday; that there was pain in her head four or five months. The injury happened October 10, 1909, and the case was tried July 5, 1910. At the time of the trial, she testified that she was still suffering from dizzy spells; that she lost a great deal of strength, and was not half as strong as she was before; that her sense of taste and smell were gone. The amount of the verdict has already been stated.

In the case of Buxton v. Ainsworth, 153 Mich. 315 (116 N. W. 1094), which was similar to the one before us, Mr. Justice Montgomery, speaking for the court, said:

5‘ It is claimed by the defendant that the jury would understand these instructions as permitting recovery for the loss of capacity to earn money. In view of the fact that the court had distinctly charged the jury that the plaintiff could not recover for loss of time or for diminished earning capacity on account of such injuries, we do not think the jury could have been misled by this instruction. If the verdict had given evidence by the amount of it that there was reasonable ground to believe that the jury had misapprehended the instruction, and that defendant had suffered by reason thereof, we should consider this question more serious. But the verdict in this case was $500, an amount which in itself indicates that the jury could not have misunderstood the instruction as warranting an award of damáges for decreased capacity of earning money in the future.”

See, also, Farrand v. Aldrich, 85 Mich. 593 (48 N. W. 628); Chapman v. Strong, 162 Mich. 623 (127 N. W. 741).

When the extent of the injury and the amount of verdict is considered, we are satisfied the jury was not misled.

Complaint is made because the judge declined to give some of defendant’s requests to charge. So far as these requests were proper statements of the law, the general charge fully covered them.

The remaining assignments of error discussed by counsel grow out of the examination of a witness and the comments made by the attorney examining him. The record shows an apparent lack of frankness in the witness and a continual succession of objections by counsel to the questions which were put. It is evident the trial of the case was pursued with great zeal by counsel on both sides. A good deal of discretion must be lodged with the trial judge as to the extent and manner of the examination of witnesses. We are not satisfied the trial judge abused this discretion.

Judgment is affirmed.

Stbere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Ostrander, J.

text:
    WILKINS v. DETROIT UNITED RAILWAY.
    1. Evidence — Expert and Opinion Testimony — Physicians and Surgeons — New Trial.
    In reviewing a verdict of $8,000 in favor of a practicing attorney who was injured by defendant street railway company, and claimed to have sustained permanent injuries, held, that the evidence of plaintiff’s medical witnesses, al- ■ though not in complete harmony, was for the jury and supported the verdict.
    2. Damages — Personal Injuries — Street Railways.
    Verdict of $8,000 for permanent injuries to spine and muscles of shoulder, including hardening of muscles and neuritis, affecting earning capacity of practicing attorney who earned upwards of $6,000 a year, held, not excessive.
    3. Evidence — Trial—Cross-Examination.
    Nor was it error to refuse to permit defendant to cross-examine plaintiff as to the details of certain litigation in which he had been employed since his injuries.
    4. Same.
    The court rightly ruled out an interrogatory of defendant’s counsel whether plaintiff wanted it to go out to the people of the oounty that his earning capacity had decreased by reason of the accident.
    5. Same — Pleading—Declaration—Special Damages — Effect of Injury.
    Where plaintiff’s declaration alleged atrophy of the muscles of plaintiff’s shoulder, it was competent to show that the effect thereof had been to cause curvature of his spine, though no allegations in the declaration presented such claim.
    6. Same — Leading Questions — Trial.
    It is within the discretion of the trial court to permit leading questions.
    7. New Trial — Physicians and Surgeons — Privileged Communications.
    Where affidavits presented by both parties on motion for a new trial raised questions of fact, and defendant’s affidavits included one by plaintiff’s physician, who stated matters which could not be received in evidence, because privileged, the court did not err in holding that the motion for a new trial should be denied.
    Error to Wayne; Rohnert, J.
    Submitted January 10, 1912.
    (Docket No. 43.)
    Decided March 29, 1912.
    Case by Charles T. Wilkins against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn (A. B. Hall, of counsel), for appellant.

      Dohany & Dohany, for appellee.
   Ostrander, J.

Plaintiff alleged, and his testimony tended to prove, that he was injured by the negligence of defendant’s servants while he was alighting from a car. Some assignments of error relied upon are based upon exceptions to rulings admitting and rejecting testimony, but the argument of appellant is addressed principally to the point that a new trial, which the court below refused, should have been granted because the verdict was exeessive and was against the weight of the evidence. What is claimed to be newly discovered evidence was presented upon the motion for a new trial and was and is urged as ground for a new trial. We have examined the record, and, as requested to do, have compared the testimony given by the medical men called in behalf of plaintiff and those called in behalf of defendant. It is said in argument that much of the medical testimony produced for plaintiff is loose, contradictory, indefinite, problematical, and unsatisfactory, while that offered for defendant is clear, scientific, and accurate. Plaintiff’s version of the time and manner of his injury is not directly disputed. The extent of the injuries received and the immediate and continuing effect of them, and whether and, if at all, how much, the earning capacity of the plaintiff has been diminished thereby, are the principal matters in dispute. There are apparent discrepancies in the testimony for plaintiff, especially when that of the plaintiff himself and that of some of his medical witnesses is compared. There is perhaps a lack of entire agreement on the part of his medical witnesses as to the exact nature and extent of his injuries. The motion for a new trial was not decided by the trial judge but by his successor in office. Therefore we have not before us the opinion of the judge who had superior opportunity to determine the credibility of witnesses.

But we find no want of testimony supporting the theory of the plaintiff, and are not inclined to interpose the judgment of this court for that of the jury, whose particular duty it was to weigh and value the testimony of the medical, as well as that of other, witnesses. There is no such demonstrable, scientific infirmity in the views expressed by the physicians that this court may assume a knowledge with respect thereto superior to that possessed by the jury. The jury was warranted in finding that plaintiff was injured in the manner aad with some of the consequences alleged in the declaration, and that he Was entitled to recover substantial damages.

Nor do we think we should interfere upon the ground that an excessive award for damages was made. A verdict of $8,000 was returned. Plaintiff is a practicing lawyer in the city of Detroit. When the cause was tried, he was a candidate for the office of circuit judge of Wayne county. The annual salary of that office is $7,000. He professed himself to be of opinion that if elected to the office he was physically and mentally able and competent to discharge the official duties. The alleged injury was received in February, 1909. The cause was tried in February, 1911. Plaintiff testified that in the year 1910 he earned more than $6,000, and that for certain work done in June, July, and August of the year 1909 he received $1,500, earned by 63 days of work of 7 hours a day

It may be noticed here that error is assigned, based upon the alleged refusal of the court to permit proper cross-examination of plaintiff upon the subject of his earning capacity and the amount of work he did after receiving his injury. The ruling excepted to was ’one refusing counsel the right to go further into the details of certain litigation conducted by plaintiff. Plaintiff had testified concerning a certain cause that it took considerable time in court, involved about $18,000 upon the papers, involved about $700 in the end. We cannot say that cross-examination was unduly restricted. Plaintiff testified:

“I can perform my duties as a lawyer now. I do perform duties as a lawyer at a greater strain, that is all.”

But there is also testimony of pain endured, and probably to be endured, and of permanent physical injury affecting the nervous system; of neuritis, and of a gradual hardening of muscles. Upon the testimony submitted to the jury, the award of damages was not clearly excessive.

As has been stated, appellant contends that the testimony which was submitted to the jury is not the testimony which should have been submitted to them, and we notice the further assignments of error, based upon exceptions to rulings admitting or rejecting testimony.

Plaintiff was asked upon cross-examination the following question, which was objected to and the answer excluded:

“ Do you want it to go out to the people of this county that your earning capacity is lessened by reason of the accident ?”

It is well enough, perhaps, to show what occurred previous to the asking of this question, and for this purpose we insert the testimony immediately preceding it:

“Q. You are asking this jury for some damages. Will you eliminate from consideration any question of your lessened earning capacity ?
“A. No, sir; because I consider that a practicing attorney, as a practicing attorney in the active practice work, that I am not as capable as before, that my earning capacity is permanently decreased.
liQ. But not as a judge ?
“A. I do not think I can get around as well as I could get at all hours of the day and night and attend to the work of a practicing attorney, the work that a practicing attorney has to attend to. As an attorney I would have to jump away any hour of the night to see some client or some witness; particularly in personal injury cases. I would not feel that I could do it. I used to be able to do it but it would be a drain upon my reserved force now. But I think I can work as a judge. I think that I could do better work than ever before because I am older and have heard more.
“Q, Then you want the people of this county—
Mr. Dohany: I object to it because the people of this county have nothing to do with this case.
“<9. You are a candidate for judge ?
“A. I am a candidate for nomination.
“Q. You have gone through one primary and have been through the law association and have been a candidate before your fellow members of the bar and they have recommended you to the people of this county ?
“A. Yes, sir.”

The witness had given his testimony publicly. Whether he wanted it to go out to the people that his earning capacity had been lessened was not material to any issue which the jury was called upon to determine. On redirect examination he stated that he considered the work of an attorney as distinct and different in character from the work of a judge in that it required more physical effort and was of an entirely different’ kind. He was then asked:

‘c State whether or not your physical condition now is one of the things that has held up your final determination to be a candidate for the office of circuit judge. (This was objected to as leading.)
“The Court: He may answer it. Note an exception.
“A. Yes; that is advanced tome as an argument by different lawyers.
“The Court: I will exclude the last part of that answer.
“Mr. Hall: I move that it all be stricken out.
“The Court: It may be stricken out. Note an exception.”

It is probable that counsel overlooked the fact that the testimony was stricken out on his motion.

The following question was asked of one of plaintiff’s medical witnesses:

“What, if anything, has been the effect upon the spinal column from the shrinking of the muscle ? ”

The objection was that:

“ There is nothing in the declaration about any spinal column.
“Mr. Dohany: We have a right to prove the condition resulting from the atrophy of muscle of the shoulder.
The Court: I think any condition which exists, which follows from the injuries complained of, that is not the direct injury but consequent upon a direct injury, may be shown. In other words, what effect upon the other conditions may be shown which are due to conditions caused by the accident ? ”

The ruling was excepted to, and the witness answered:

“There is a curvature to the right, which in my opinion is due to the muscular condition of the left side.”

It is quite possible that the record as printed does not correctly state the reason for the ruling which was given by the court. We do not understand that plaintiff was seeking to recover damages for an item of injury which might be termed curvature of the spine, but that counsel was seeking to show that one of the results of a condition described in the declaration and caused by the original injury was a curvature of the spine. It is alleged in the declaration that, as a result of the injury to his shoulder, his left shoulder joint became dislocated and the ligaments, muscles, and tendons of his left shoulder were cut, torn, stretched, lacerated, and permanently injured. It is claimed that one of the effects from the injury to the muscles alleged in the declaration was the curvature of the spine and that the testimony was proper as showing the nature and extent of the injury to the muscles. In this view of the testimony, there was no error in receiving it.

A witness sworn for plaintiff exhibited certain plates, known as X-ray pictures, of portions of plaintiff’s body. On cross-examination he was asked whether or not the pictures demonstrated anything abnormal, and he answered, I would not be positive about that.” On redirect examination he said that he noted in the pictures the deposit of a foreign substance in the muscle and that it was quite marked; that it indicated a deposit of lime in the muscle which would result in hardening or ossification of the muscle. On recross-examination he was asked whether the condition he referred to was abnormal, and he said, “Yes.”

“Q. Then why did you tell me in answer to my question that you found nothing abnormal in these plates ?
“A. I should like to have the court stenographer refer back to my testimony so that I would be precise in what I said.”

It appears in the record that the stenographer read his testimony, but it does not appear that he was asked any further questions. Now, the only objection to his testimony at any time appears to have been the one that a certain question asked on redirect examination was leading. The question was:

“ Now, doctor, do you note in these pictures the deposit of any foreign substance in the muscles ? ”

We have so many times discussed the subject of the discretion of the trial court to permit leading questions, that a reference to the decided cases is uncalled for. It is often proper, and frequently necessary, to ask leading questions to develop the facts, and it was entirely competent in this case, after the doctor had answered that he was not positive that the plates disclosed anything abnormal, to ask him directly whether, as he read the plates, or the pictures, there was indicated the deposit of any foreign substance in the muscles.

The grounds for the motion for a new trial were those which have already been discussed, and, further, that if the affidavit of Dr. Polglase, filed with the motion, was true, plaintiff had been guilty of wilful perjury and the verdict should not be permitted to stand, and that the defendant is deprived of the testimony of Dr. Polglase, who treated the plaintiff, prior to his alleged accident, for alcoholism, and that, theplaintiff having deniedsuch treatment, the defendant was prevented from framing a necessary hypothetical question to the medical witness and from properly cross-examining the medical witnesses produced on behalf of the plaintiff. One of the affidavits attached to the motion, upon which the motion is based, is made by one of the attorneys for defendant, who states that he cross-examined the plaintiff with a view of establishing from the testimony of the plaintiff that he had been treated for alcoholism prior to 1909, and especially by Dr. Polglase. The testimony of the plaintiff in that behalf is set out at large, and the affidavit concludes with the statements that, before and at the time plaintiff gave his testimony, the deponent made a diligent search for Dr. Polglase, was informed that he was somewhere on the Pacific Coast, and could not discover his exact address; that after the trial he learned that Dr. Polglase was a resident of the city of New York, and went immediately to the city of New York, and secured an affidavit from the doctor, which affidavit is attached to the motion. Deponent further sets out that he was informed by physicians that neuritis is very often the result of excessive alcoholism, and that he was prevented from examining the plaintiff’s medical witnesses and of putting hypothetical questions to them, based upon the history of excessive alcoholism. The affidavit of Dr. Polglase is to the effect that in December, 1894, he was requested to prescribe for plaintiff, who had been brought from the Detroit Sanitarium, where deponent was informed he had been sent for alcoholism; that he found plaintiff in a condition bordering on delirium tremens, and prescribed for him, and, after he recovered from his acute condition, at the request of plaintiff, he treated him for the cure of the liquor habit and for the alleviation of the effects of acute alcoholism; that during this treatment injections were administered by the deponent several times a week, and that plaintiff came to the office of deponent for the purpose of receiving such injections; that at the conclusion of this treatment the plaintiff declared himself cured, and, so far as deponent knows, presumably he continued cured of the liquor habit. He further states that in the year 1907 plaintiff retained him as an expert in a lawsuit involving the effects of epilepsy upon the legal capacity to bequeath property. A third affidavit, made by a physician who assisted the defense in an advisory capacity during the trial, is attached to the motion, and is to the effect that, on the evening on which the verdict for plaintiff was rendered, deponent met Dr. Polozker, a witness for the plaintiff at the trial, and had a conversation with him, during which Polozker told deponent that in his opinion plaintiff was suffering from neuritis as a result of alcoholism; that he asked the said Polozker why he had not so stated on his examination, and received the reply that he had not been paid for that purpose.

The affidavit of Dr. Polozker, presented in opposition, is to the effect that he did meet Dr. Sanderson on the street and had a conversation with him. He denies that he told him that in his opinion the plaintiff was suffering from neuritis as a result of alcoholism. He denies that he made the stateménts recited in the affidavit of said Sanderson, and says that Sanderson said to deponent that he thought the neuritis from which plaintiff was suffering was due to alcoholism. It appears that during the cross* examination of plaintiff he was asked whether he remembered Dr. Polglase, and he said that he did; denied that he treated him for nervousness before 1909, and said he had no recollection of Dr. Polglase ever treating him for anything or of his ever going to Dr. Polglase for treatment. He was asked if Dr. Polglase ever treated him for alcoholism, and answered “Never.” This examination having been continued by a few questions and answers, the witness answered, “I had an idea you said Dr. Polozker.” He was then asked, “Do you know Dr. Polglase?” and answered, “Yes,” and he denied that Dr. Polglase ever treated him for alcoholism. He was asked, “Will you say that Dr. Polglase ever treated you for nervousness ?” and answered that he did not. He was then asked, “ What did he treat you for ?” and the result of his answer to this and other questions appears to be that Dr. Polglase gave him some prescription, but he could not remember what the trouble was, but rather thought it was some stomach trouble; he could not recollect that he had been to the doctor’s office; said that the prescription which he gave him was given some time within the last 12 or 15 years; could not remember the character or form of the medicine, thought that his treatment took place while plaintiff was holding his first term as assistant United States attorney; denied that the doctor ever used any hypodermic treatment for him.

The court was not in error in ruling that the affidavits presented no ground for granting a new trial, and we need state but one reason for our holding, which is that if Dr. Polglase had been present in court as a witness for the defendant he could not have been permitted to testify to the facts set up in his affidavit. That he had treated plaintiff might perhaps have been shown, and this plaintiff admitted.

Careful consideration of appellant’s contentions and argument has not led us to the conclusion that reversible error is made out.

The judgment is affirmed.

Moore, C. J., and Steere, MoAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


text:
    HILLIARD v. HILLIARD.
    Contracts — Implied Contract — Conversion.
    Where plaintiff left money lying about in the house of one of the defendants, in which the other, to whom plaintiff was affianced, was staying, and said first named defendant picking it up in jest, in plaintiff’s presence, gave it to the other with some joking remark, he was not jointly liable with her after she had broken off with plaintiff and had married defendant’s brother, in the absence of a conspiracy or intent to convert the funds.
    Error to Eaton; Smith, J.
    Submitted January 16, 1912.
    (Docket No. 86.)
    Decided March 29, 1912.
    Assumpsit in justice’s court by Johnson Hilliard against Robert Hilliard and Kate Hilliard for money had and received. From a judgment for plaintiff, defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Joseph B, Sendee, for appellants.

      G-. Elmer McArthur, for appellee.
   Ostrander, J.

The action originated in jus.tice’s court, where plaintiff declared orally in assumpsit and filed the following bill of particulars:

“The plaintiff’s bill of particulars is for moneys taken from him by the said Robert Hilliard, and by the said Robert Hilliard delivered over to the said Kate Hilliard (then Kate Brandon). The said act of depriving the said plaintiff of the said moneys took place at the residence of the said Robert Hilliard; and the said plaintiff claims that the said moneys were so taken, and he so deprived thereof, against his will and consent, that the same was without consideration. The amount of moneys plaintiff was thus deprived of by defendants was, to wit, the sum of $50.”

With the plea the defendants gave notice that, if any of plaintiff’s money came into the hands of either defendant, it was the voluntary gift of plaintiff to defendant Kate Hilliard, formerly Brandon, and was used by her in a manner directed by plaintiff, with his knowledge and approval. In the circuit court the plaintiff gave testimony tending to prove that he came to America in 1905, had known defendant Kate in Ireland, had corresponded with her, and through correspondence became engaged to marry her. He sent her £10 to pay her expenses from Ireland to America. Upon her arrival he went with her to the home of defendant Robert, where Kate remained. A day or so after her arrival, plaintiff had some money which he was counting in the presence of Kate and Delia, the wife of Robert. For some reason he left it on a chair, Robert came into the room, picked it up, and handed it to Kate, saying, in substance, she may as well have it now, or may as well take care of it, or commence taking care of it, now. Kate took the money; plaintiff supposing and treating it as a joke. There was $60. Next morning plaintiff asked Kate for the money, and she refused to give it to him, but did give him $10. Plaintiff went away and was gone two weeks. On his return he asked Kate what she did with the money, and she replied that she gave it to defendant Robert’s wife. Plaintiff told her he expected it would be returned to him the next morning. He did not ask for it, however, and left in the morning for his work in Lansing. Later he received a letter from Kate, stating that she had married one Tom Hilliard, a brother of defendant Robert. The money was never returned to plaintiff.

“Q. Now, was the money, if there was any promise made by you later, was that in consideration of her marriage ?
“A. Yes, sir.
“Q. Did you make any further promise after that, by letter or otherwise; that is. after the time they took this money ?
“_á. Did I make any promise? No. I wrote her a letter after I first went to Lansing, when they first took the money. I had no knowledge that she intended to break off her marriage promise with me at the time I wrote that letter.”

This upon his direct examination. On cross-examination he said there was some talk after Kate arrived here about their getting married, taking place after plaintiff had made his first visit to Lansing and after the disposition of the money heretofore stated. He wrote a letter to Kate, from Lansing, after she had so taken his money, in which he said, among other things:

Did you get your hat yet, be sure and get you a new dress and don’t get a cheap rag, do not look to the money have all you want of it.”

Interrogated concerning this letter, he said he did not know what money he referred to.

“Q. You referred to the money, did you not, that you gave to Kate Brandon ?
“A. I guess so.
Q. There at Robert’s ?
“A. Yes, sir; that is the money I referred to.”

On the part of defendants, testimony was introduced, tending to prove that defendant Robert Hilliard, seeing the money in the chair, picked it up with a light remark, asking whom he should give it to, and was told by plaintiff to give it to Kate; that plaintiff then took more money from his pocket and gave it to Kate; that the money was used by Kate to repay a sum of money borrowed by her to pay for the passage to America — the plaintiff not having sent her a sufficient amount — and for clothing for herself. There is no testimony tending to prove that defendant Robert ever again saw or had the money or any benefit or advantage therefrom, and none tending to prove any arrangement or conspiracy or effort on his part to bring about the marriage of Kate and his brother Tom, or to prevent or interfere with a marriage between plaintiff and Kate. The court was requested to charge the jury that, upon the undisputed testimony, Robert Hilliard was not liable to plaintiff in this action, and a verdict in his favor should be returned.

The court charged the jury, in part, as follows:

“ The plaintiff claims that it was secured of him by a plan on the part of the Hilliards to deprive him of the money and unlawfully, that is, without any consideration, to take it; it was a plan on the part of Robert Hilliard to pick up that money, and so manipulate the situation there that he could pass it over to Kate Brandon. I instruct you, as a matter of law, that if you believe from the evidence produced in this cause that the defendants deprived the plaintiff of his money unlawfully, and have not returned said money to the plaintiff, your verdict should be in favor of the plaintiff and against the defendants. By the defendants, I mean Robert Hilliard and Kate Hilliard now, formerly Kate Brandon. If you believe from the evidence produced that a plan was formed by the defendants to deprive the plaintiff of his money unlawfully, and the defendants did so deprive the plaintiff of his money, your verdict should be in favor of the plaintiff, and against the defendants, to the amount found to be due plaintiff, not exceeding the amount claimed, with interest, which is $50, with interest thereon. Gentlemen, if you believe from the evidence that the plaintiff and Miss Brandon were engaged to be married, and this $50 was given her in consideration of such engagement and her promise to marry him, if you find there was such a promise, and you further believe from the evidence that such promise thus made was not fulfilled by her, and she was responsible for its not being fulfilled, then plaintiff should recover this money.”

Later on the court said:

“Now, gentlemen, as to Mr. Robert Hilliard, he is not here in court, and his deposition was taken. I think he is ill; that is my remembrance of it. But now as to his rights in the case, I charge you that before you can hold the defendant Robert Hilliard liable for money had and received in this action, it will be incumbent upon the plaintiff to establish, by a preponderance of the evidence, that at the time said Robert Hilliard picked up the money from the floor, as testified to by him, and handed the same over to Kate Brandon, now Kate Hilliard, it was with the intention and purpose on his part of converting the same to his own use, or for the purpose and intention of enabling the defendant Kate Brandon, now Elate Hilliard, to convert it to her own use, and that such action on the part of said Robert Hilliard was contrary to the orders and directions of said plaintiff. I charge you that if you find from the evidence in this case that the defendant Robert Hilliard, as testified to by him, passed the money in question over to Kate Brandon, now Kate Hilliard, and that such action on the part of the said Robert Hilliard was in accordance with the request and direction of the plaintiff, Johnson Hilliard, so to do, then the defendant Robert Hilliard would in no way be liable to the plaintiff in this action, and as to the defendant and Robert Hilliard, should you so find, your verdict would be no cause of action.”

A verdict was returned against both defendants. A motion for a new trial was denied. There is testimony, if it is believed, to support a verdict and judgment for some amount against defendant Kate Hilliard, but, as stated above, we find none which tends to prove the liability of defendant Robert Hilliard. The request to charge preferred should have been given. The other errors assigned are not considered.

The judgment is reversed, and a new trial granted.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.