text:
    SWACZYK v. DETROIT EDISON CO.
    1. Death — Action—Death Act — Survival Act — Test.
    The recognized test in this State distinguishing between the two causes of action, survival and instantaneous death, is whether the active cause of death continued to operate directly upon the injured person until life was extinct; that he did not regain consciousness is not a test of instantaneous death.
    2. Same — Electricity—instantaneous Death — Evidence— Question for Jury.
    Testimony by a disinterested witness that deceased lived about an hour after he found him lying on the ground in contact with a' “live wire,” which was supplemented by the testimony of two boys, companions of deceased, to the same effect, held, to present a question of fact for the jury as to whether death was instantaneous.

      3. Same — Electricity—Inspection—Negligence—Trial.
    In an action for the death of a boy caused by his coming in contact with a live wire which defendant had left attached to a lunch wagon standing in front of a vacant lot after service was discontinued, and which fell to the ground after said wagon was moved by a third party without defendant’s knowledge or consent, the trial court was not in error in submitting the case to the jury on the issue as to whether such time had elapsed since the wires fell upon the ground and became a public menace that defendant should have observed their dangerous condition and remedied it, in the exercise of reasonable care and vigilance in the conduct of its business under the circumstances shown, and in view of the dangers connected with the business in which it was engaged.

    4. Same — Pleading—Declaration—Inspection.
    Although the declaration did not contain the words “inspect” or “inspection,” the conclusion of the trial court that there, was enough in the declaration to warrant the submission to the jury on that issue, held, justified.
    5. Same — New Trial — Weight oe Evidence.

      Held, that the verdict for plaintiff was not so against the weight of the evidence as to require a reversal.
    6. Damages — Death—Survival Act — Excessive Verdict.
    In an action under the survival act for the death of a boy 13 years old, by electrocution, where the evidence shows that he lived only about an hour after the injury, and the distinction between the “survival act” and the “death act” in this case is largely technical, there being no long period of suffering of mental and physical distress warranting a large verdict to the actual survivor, the verdict for $6,500 held, to a degree excessive, and reduced to $5,000, for which amount judgment is affirmed conditional on acceptance.

    Error to Wayne; Hosmer, J.
    Submitted June 3, 1919.
    (Docket No. 10.)
    Decided October 6, 1919.
    Case by Stanislaus Swaczyk, administrator of the estate of Stanley Swaczyk, deceased, against the Detroit Edison Company for the negligent killing of plaintiffs decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      Oxtoby & Wilkinson (McKee Robinson, of counsel), for appellant.

      Clarence P. Milligan, for appellee.

       On the general riile relating to duty of electric company to prevent contact of wires carrying electric current, see note in 52 L R. A. (N. S.) 587.

       0n exeessiveness of damages for personal injuries resulting in death, see comprehensive note in L. R. A. 1916C, 820.

   Steere, J.

Defendant appeals from a judgment for $6,500 rendered against it in this action of tort for the death on March 21, 1917, of plaintiff’s son, Stanley Swaczyk, a boy 13 years of age, caused by his coming in contact with a live service wire of defendant lying on the ground in a vacant lot on the west side of Russell street between Medbury and Palmer avenues, in the city of Detroit. The wire extended from an electric light pole in an alley at the back of the lot to an idle lunch wagon which had stood when in use at the sidewalk line on Russell street but at the time of the accident had been moved back on the lot some distance, causing a slack in the wires.

Prior to March, 1917, this vacant lot was resorted to as a playground by children of the vicinity at their pleasure and frequently crossed for a short cut in travel by any one finding it convenient so to do. At one time it was temporarily occupied for a carnival. Later this lunch wagon was moved upon the lot and placed for business purposes on the sidewalk line of Russell street. A Mrs. Parsons had a permit to use it for a restaurant from November 1, 1916, to November 1, 1917. She applied to defendant for electric service at the wagon, which was furnished her with the customary connection and meter from December 21, 1916, to January 25, 1917, when it was discontinued and the meter removed. The unoccupied wagon was left on the lot and the service wires to it from the pole in the alley were left connected by defendant in anticipation that some one might thereafter use the wagon at that point and require electric service, it being customary in such cases, as defendant’s evidence showed, to leave such wires connected when removing the meter, in readiness to give prompt electric service to the next occupant. As the wagon then stood and the wires were left no question is raised but that they were put up in a proper manner and left in' a reasonably safe condition. It was said to be a frequent occurrence for defendant to furnish electric service in the city of Detroit for a longer or shorter time to portable or temporary structures, such as lunch wagons, fruit stands, small real estate offices, election booths, etc., leaving the wires connected in case of vacancy as was done in this case.

About March 1, 1917, a contractor and builder named Robert Keyes took possession of the lot and commenced the erection thereon of a steel and concrete building for the Central Boiler Works. No basement was contemplated and he began work by excavating a trench for the foundation along the north side of the lot. About a week after work began he found the lunch wagon in his way and moved it back on the lot towards the alley. It was a heavy wagon and he moved it with a crew of men and team, about 40 feet back from Russell street. As this was done he had the slack in the electric wires from the pole in the alley wound up and hung over the glass insulators of the wagon, leaving them extending from the pole to the wagon sufficiently high that men and teams could pass and work under them as before. Building material, such as lumber, steel, brick, etc., was scattered over the lot and Keyes had erected a work shed on the west side of it for storage of cement, tools and other things requiring shelter. Some time before this accident the coiled slack in the wires which he had hung on the insulators at the wagon had in some way gotten off and for a portion of the distance between the pole and the wagon lay on the ground, to which no attention was paid by Keyes or his employees, as the wires did not happen to be in their way and they did not know they were electrically charged. Keyes testified that he saw them lying on the ground for at least a week before the boy was killed, and there was testimony by two of deceased’s playmates that these wires had lain upon the ground much longer; that after the wagon was moved back and the wires partly fallen to the ground some of the boys used to swing on them near the wagon.

At the time of the accident plaintiff’s decedent, Stanley Swaczyk, was playing tag on this lot with two other boys and ran in between the work shed Keyes had built and a closeby building on the adjoining lot, belonging to the Grand Rapids Blower Pipe Company. The slacked electric wires lay along the ground at this place with what is called a “coil”; in behind the building. The boy was first seen to be in trouble by a watchman of the nearby American Car & Foundry Co., named Sackett, who had just quit for the day and was going from his work diagonally across the vacant lot. His first impression was that the boy had fallen from the building, as he saw him lying in there on some brick and cement blocks with his head back, apparently making efforts to get away. Sackett called the other boys, at the same time going around some mud and water to get nearer. He said the boy at that time “laid different ways — kind of rolled down the block,” and the other boys who had come at his call dragged this boy out to him. Asked as to how the boy acted, he replied, “He looked at me and I could see he wanted to say something. I felt very sorry for him.” Asked if he was then alive, he replied, “Oh, yes,” because he moved his hands, and was breathing, and spit something out of his mouth and moved his tongue. Sackett carried him to a lumber pile about 50 feet away, observed he was “in pretty bad shape” and told one of his playmates to run over to the nearby Foundry Co.’s office for help and sent the other to tell the injured boy’s parents. Help not coming promptly, he himself ran to the Foundry Co.’s office and telephoned for medical aid which arrived about the time he got back to the injured boy who was yet alive, as he testified. Unsuccessful efforts were made by and under directions of the doctor to resuscitate him, in which Sackett assisted, remaining while the doctors were working over him and until he was pronounced dead, about an hour' later.

At commencement of the trial counsel for defendant interposed objection to the introduction of any testimony under plaintiff’s declaration on the ground that it combined two distinct causes of action in one count — under the survival act and under the death act — insisting on such objection “until counsel amends to make it one or the other.” Counsel for plaintiff then amended, or elected to claim under the survival act, and the trial proceeded upon that alleged cause of action.

Recovery under the death act having thus been eliminated, counsel for defendant then contended by objection, motion and request to charge, that recovery could only be had, if at all, under the death act, asking a directed verdict for that reason, which was refused.

Defendant’s most strenuous contention is that the evidence shows the boy was instantaneously killed, any subsequent manifestations of life witnesses testified to being “but spasmodic muscular movements” after life was extinct, and, viewed most favorably, the verdict was against the great weight of evidence. In his reasons for denying defendant’s motion for a new trial on that and other grounds the learned circuit judge who heard the case said:

“The evidence shows that the deceased lived something like an hour, I believe, after he had been moved from contact with the wire. If he had lived for 24 hours, no one would have dreamed of saying the cause of death was continuous, or have compared the injury in question with a death by drowning. I cannot differentiate between an hour and a day.”

What testimony there is upon the subject of survival is undisputed. Defendant called no witnesses to that issue. The only medical testimony offered was that of Dr. Dick, called by plaintiff to show the cause of death. He examined the boy’s body after it was taken to the morgue and held an autopsy. He merely testified that in his opinion the boy died of an electrical shock, which operated to cause death by “overstimulating.” No one saw deceased when he first came in contact with the live wire, which carried 110 volts, or knew how long it operated directly upon him. The three witnesses who saw him in contact with it testify that he was then alive, making efforts to escape; that he remained alive after he was released and the admitted cause of his death had ceased to operate directly upon him, and was yet alive after he had been carried to the lumber pile and medical aid arrived. Their testimony is positive that he was not dead when released from the wire, that he sat up, endeavored to get upon his feet, looked at them and tried to talk in a manner indicating he wanted to say something, though unable to do so; the boy sent for his parents testified he was yet alive and breathing, after he returned. The testimony of the two boys while positive is perhaps least satisfactory, owing to their youth, inexperience and friendship for deceased, but Sackett had never seen the boy before, was apparently a disinterested witness, an intelligent man 43 years of age who had actual experience and training in dealing with and observing the physical manifestation of injured persons, acquired when a non-commissioned officer in the regular army. He frankly stated that he could not say the boy ever regained consciousness, or just when he died, but was positive as to his being alive for some time after he was released from the wire, and described the various manifestations of it; said he knew he was alive after he placed him on the lumber pile because he breathed and “moved his eyes and his tongue, and moved his legs” and moved after the doctor who pronounced him yet alive got there. Asked how many times the boy tried to get on his feet or get up, he replied:

“I could not say how many times he did try. I know he was in distress and struggled as a person would in that case.
“Q. And that went on how long?
“A. It was fully an hour. It began to get dark when they pronounced him dead.”

While there is some evidence from which it might be contended the boy was conscious after his release from the wires, yet conceding to- the contrary, the fact that he did not regain consciousness is not a test of instantaneous death.

“There is no occasion for saying that one dies instantly because such survival is accompanied by a comatose condition, or unconsciousness, or insanity, or idiocy.” Olivier v. Railway Co., 134 Mich. 367 (3 Ann. Cas. 53).

The recognized test in this State distinguishing between the two causes of action, survival and instantaneous death, is whether the active cause of death continued to operate directly upon the injured person until life was extinct. Ely v. Railway, 162 Mich. 287. Concededly death from an electric shock is not necessarily instantaneous. Persons may and do suffer injuries from that source in all degrees from a temporary nervous disturbance or slight bum to permanent injury or sudden death, contingent on many conditions and particularly on the voltage or electromotive force of the current received, as reckoned in volts. In this case those service wires are stated to have carried 110 volts. In Brabon v. Power Co., 201 Mich. 697, cited by defendant, deceased was found dead on a rainy morning yet standing in contact with the metal siding of an elevator building claimed to have become charged through faulty wiring from a primary line carrying 2,300 volts. It was evident that the cause of death continued to operate upon him until life was extinct, and until he was found dead. It was under such a state of facts this court said:

“The man was killed by a current of electricity received when he leaned against or touched the metal wall, and whether one or more minutes elapsed before life was extinct is not material.”

In the more recent case of Paperno v. Engineering Co., 202 Mich. 257, where deceased was killed while working on the track of an interurban electric line by the high tension current from a “third rail” carrying 2,400 volts and there was some evidence of his continuing to breathe for 17 or 18 minutes after being released from the current, this court held there was sufficient testimony to carry the question of survival to the jury. To a greater degree the undisputed facts disclosed by this record make a case for the jury under the survival act.

It is further contended for defendant that it was guilty of no negligence because it left the wires when the meter was removed in a safe condition and their subsequent unsafe condition with the resulting accident is attributable solely to the conduct of Keyes in moving the wagon and slacking the wires, of which defendant had no knowledge or notice and for which it is not responsible. As the court left the case to the jury the questions involved in that proposition are in effect eliminated by the charge, which confined the issue of defendant’s negligence to the one question of proper care and inspection of the wires after Keyes moved the wagon, telling the jury that there was no evidence the service wires were left by defendant in an unsafe condition, and that defendant was not bound to remove its electrical service wires from the lunch wagon when the service was discontinued to Mrs. Parsons, saying further:

“The defendant was not bound to anticipate that a third party might so move the lunch wagon as to make the service wires leading to it dangerous to the public, nor was it bound to anticipate that the lunch wagon might be moved without notice to it. * * What the defendant was required to do in this case was, after the removal of the meter, to exercise a reasonable inspection with reference to the condition of the wires. * * _ * If the current is left upon them they must exercise a certain care — reasonable care! in the inspection of their property to see that by the: action of the elements or otherwise those wires are not broken or removed from the building, and so become a danger to the public in general. * * * The question for your determination, gentlemen of the jury, is whether these wires which had been removed by the contractor and wound in loops around the bracket had come down to the ground and remained upon the ground such a length of time that the defendant company, considering the dangerous character of such wires, ought by a reasonable degree of care to have known of its condition and remedied it. * * * If anybody is furnishing electricity as furnished by the defendant company in this case, a very high degree of care is enjoined, and I may say, gentlemen of the jury, it is perhaps the highest degree of care which is reasonably practical; not if by the expenditure of a sum which perhaps would be prohibitive a higher degree of care might be maintained, but it is perhaps as high a degree of care as is reasonably practicable under the circumstances of the case.”

To the portions of the charge quoted defendant assigns error on the ground that failure to inspect is not charged in plaintiff’s declaration, and a too high degree of care is imposed upon defendant by the language used. Although in alleging and arguing the duties and failures of defendant in connection with this accident, plaintiff’s declaration makes a heavy draught on the vocabulary of negligence, it must be admitted that the words “inspect,” or “inspection” esscaped the pleader, and in the particulars pointed out the declaration is technically defective. But under the assumption that the greater includes the less we see no reason to disturb the conclusion of the trial court in denying defendant’s motion for a new trial that:

“There is enough in the declaration to warrant the submission to the jury on that issue. Certainly the counsel could in no wise have been surprised by the submission to the jury on this phase of the case.”

Plaintiff alleged and claimed other grounds of negligence, including leaving the electrically charged wires attached to the wagon after service was discontinued, which the court rejected, confining the inquiry to failure of defendant to properly look after and care for its wires between the time they became in an unsafe and dangerous condition and the accident. To inspect simply meant, as applied to the issue here, to looik after, pay attention to and reasonably care for these live wires running to an unused wagon on a vacant lot and see that they remained in as safe condition as when left. In Sumner v. Edison Co., 187 Mich. 169, where failure to inspect was not technically charged, defendant assigned error on the charge of the court that “defendant would be liable, unless the defendant had duly inspected the rope and found it sound,” of which this court said:

“In other words, that a recent inspection of the rope and finding it sound, if shown by defendant, would relieve it from liability in this case. The court was not in error in so charging the jury as to inspection.”

Under the declaration and facts in this case we find no reversible error in the court’s charge as to inspection, which in substance narrowed the issue for the jury to the question of whether such time had elapsed since these wires fell upon the ground and became a public menace that defendant should have observed their dangerous condition and remedied it in the exercise of reasonable care and -vigilance, in the conduct of its business under the circumstances shown and' in view of the dangers connected with the business in which it was engaged.

Neither do we think the language of the charge imposed too high a degree of care as to the public upon those engaged in the business of handling electric currents. Counsel for defendant contends that it imposed a greater duty than the settled rule in this State by which every one in the conduct of his business, whether hazardous or otherwise, is only bound to the exercise of reasonable care under all the circumstances. Reasonable care is to be determined by, and must be commensurate with, the risk involved, within the limits of reasonable practicability under the circumstances, which is the substance of the test stated by the trial court. In Warren v. Railway Co., 141 Mich. 298, numerous cases are cited from other States showing the trend of decisions upon this subject, and it was there said in that connection:

“We find it unnecessary to say, as some courts have said, that the use of electricity imposes the duty of the greatest possible care.”

Several of the cases cited in the Warren Case, and others which may be found, appear to put no limit on the superlative but impose without qualification “utmost care,” “greatest care,” “constant oversight,” “utmost degree of care,” “highest degree of care,” etc. Such is not the unlimited requirement in the language complained of, which expressly excludes an impractical, or prohibitive “utmost,” or “highest degree” of care. The court said that of those engaged in the business of furnishing electricity to the public was demanded only “as high a degree of care as is reasonably practicable,” or, in other words, as is consistent with the practical conduct of their business according to best known methods and usage. This court has twice said that a “very high degree of care for the protection of life” is imposed upon those engaged in that business. Huber v. Electric Co., 168 Mich. 531; Paperno v. Engineering Co., supra.

It is further urged that the case should be reversed because the verdict was against the great weight of evidence and excessive. That the case is by the evidence put on the border line between the survival act and the death act is true, and what the verdict would have been had both been submitted to the jury is highly problematical, but we cannot conclude as a matter of law that the verdict was so against the overwhelming weight of evidence as to demand invasion by this court of the province of the jury in that particular. Had recovery, however, been restricted to the death act the verdict would have been clearly excessive. In its practical aspect it may be conceded the distinction ‘is largely technical. Conscious pain and lingering suffering of the survivor, with attendant mental and physical distress, perhaps for many years, or the balance of a probably protracted life, for which large verdicts to the actually surviving injured party have sometimes been sustained, are not involved here, and that class of cases is not applicable. There is force in the contention that under the facts and-circumstances here shown the verdict is beyond the commonly recognized fair measure of damages and to an extent excessive.

If plaintiff concedes by remission a reduction of the verdict to $5,000 the judgment will stand affirmed with costs to defendant, otherwise the same will be reversed with costs to defendant and a new trial awarded.

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

The late Justice Ostrander took no part in this decision.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SIMMONS v. PETERSEN.
    1. Negligence — Contributory Negligence — Personal Injuries— Question for Jury.
    In an action for personal injuries caused by a collision between defendant’s automobile and plaintiff’s buggy, where there were controverted questions of fact, the questions of defendant’s negligence and plaintiff’s contributory negligence were properly for the' jury.
    2. Appeal and Error — Evidence—Weight of Evidence.
    This court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence.
    3. Evidence — Exclamations of Pain and Suffering — Hearsay.
    In an action for personal injuries, testimony by plaintiff’s daughter as to exclamations of pain and suffering by plaintiff in her presence, held, admissible.
    Per Stone, Moore, Steere, and Brooke, JJ.
    4. Trial — Instructions—Negligence—Degree of Care Required.
    In an action for personal injuries, caused by defendant's automobile colliding with plaintiff’s buggy at a street intersection, an instruction by the trial court that the jury were to determine whether, under all of the circumstances, the driver of the automobile did “everything possible after he had discovered the danger to prevent an accident,” held, erroneous, as it held him to a higher degree of care than the law demands, and may have misled the jury.
    5. Witnesses — Credibility—Driving Away from Place of Accident — Trial—Instructions.
    In an action for personal injuries caused by defendant’s automobile, driven by his son, colliding with plaintiff’s buggy, where it appeared that the’conduct of the son at the time of the collision, and immediately thereafter, was not in violation of 1 Comp. Laws 1915, § 4816, it was error for the court to instruct the jury that his driving away from the place of the accident might be considered as bearing on his credibility as a witness, he having testified to very material matters. Per Stone, Moore, Steere, and Brooke, JJ.
    Error to Montcalm; Snow, J., presiding.
    Submitted June 4, 1919.
    (Docket No. 39.)
    Decided November 5, 1919.

      Case by Sanford Simmons against Frank Petersen for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Ra/rden & Ra/rden (S. H. Person and Dean W. Kelley, of counsel), for appellant.

      Nichols & Nichols (A. R. Loche, of counsel), for appellee.
   Stone, J.

This case was brought here by the defendant to review a judgment for the plaintiff obtained in the circuit court for the county of Montcalm. This suit was begun on October 6, 1917. The declaration alleged that on September 6, 1917, the defendant was the owner of a Dodge touring automobile, which, at the time of the injury complained of, was being driven and operated by one Ralph Petersen, a son of defendant, who was at the time driving the same with the express knowledge and consent of the defendant; that on the evening of said day, while in the exercise of due care and caution, the plaintiff was lawfully proceeding with a team of horses and buggy up Williams street, a public street in the city of Green-ville, and had reached a point directly past the center of Lafayette street, a public street in said city, which the said Williams street intersected at right angles; that the plaintiff was, at the time of the injury complained of, turning his horses at said intersection of said streets, for the purpose of proceeding northward on Lafayette street; that the plaintiff was, at the time of the injury, at the extreme right of Williams street and his buggy was located directly south of the center of said Lafayette street at the intersection of said streets, and the horses on said buggy were facing, or had started to face in a northerly direction upon Lafayette street, upon the intersection, when the said automobile of said defendant was so carelessly managed and driven that it ran upon and crashed into said buggy of the plaintiff, throwing him to the ground, and causing him great injury, pain, and suffering, and greatly damaging said buggy; that there was at the time of said injury six to eight feet or upwards between the rear of said buggy and the westerly curb of Lafayette street, and sufficient room between the said curb and buggy for said automobile to have been driven safely between said rear end of said buggy and the said westerly curb of Lafayette street, had any degree of care been used in the operation of the same.

It is alleged that the negligence complained of consisted in said automobile striking the plaintiff’s buggy; in running said automobile at an excessive and unlawful rate of speed, and in failing to sound a warning as said Ralph Petersen was approaching said intersection; and failing to go through the space between the rear end of plaintiff’s buggy and the westerly curb of Lafayette street; in failing to slow down and come to a stop before striking said plaintiff’s buggy; and in failing to take heed or notice that plaintiff’s buggy was in the process of crossing, and making the turn to proceed in a northerly direction up Lafayette street. The plaintiff’s bodily injuries consisted of a broken right hip, and shock to his nervous system by being thrown to the pavement, mental and physical suffering, and claimed permanent injury to said limb. A map of the place where the collision occurred, and of the vicinity, found on page 14 of the record, is appended here for convenience of reference. Some points testified to, and not in dispute, are as follows:

The pavement on Williams street only extends a short distance west of Lafayette street; Lafayette street is 40 feet wide from curb to curb; at Williams street the pavement begins to narrow, and north of there it is 36 feet wide. The house of Dr. Savage is 40 feet from the north curb of Williams street. A person on the curb on Williams street, directly south of the southeast corner of the Dr. Savage house, can see up Lafayette street to the railroad track. Charles street is 26 rods and 4 feet north of the north curb of Williams street.

Upon the night of the injury, an exhibition of fireworks had taken place at the fair grounds in the western part of the city, and a large crowd had gathered there with teams and automobiles. The plaintiff attended the fireworks with his wife and daughter and another woman. After the fireworks, and about 10 o’clock p. m., they started to go to their home north of the city in a two-seated buggy drawn by a span of old horses. He turned onto Franklin street and drove north across the river to Williams street, where Franklin street ends; and then east on Williams street to Lafayette street, and while attempting to turn north into said street, his buggy and defendant’s automobile came in collision. On the same night the defendant’s son, Ralph, 18 years old, accompanied by Mary Frantzen, of the same age, was also at the fireworks. Ralph was driving the defendant’s automobile, with his permission, and had started to go to his home north of the city, going out Lafayette street. When these young people had got out of the city, they “discovered that they were hungry, and turned around and started back down town to get something to eat.” After turning around there is no dispute that Ralph was driving south on the west side of Lafayette street. The automobile and plaintiff’s buggy came in collision at the intersection of Lafayette and Williams streets, the left fender of the car coming in contact with the left hind wheel and the left step- of the buggy, and the step was bent inward and backward, and one spoke of the buggy wheel was broken, and the print or impression of the outer face of the buggy tire was made on the front end of the left fender of the car. There were some other slight marks on the end of the fender, and a slight bruise on the grease cup on the end of the left front spring of the car. There was evidence that at the collision the horses sprang forward, breaking the evener and thus becoming detached from the buggy, ran up Lafayette street, dragging the plaintiff out over the dashboard by the lines to which he was holding, and breaking down the dashboard. He fell upon the pavement and was bruised and shocked by the fall, and the femur bone of his right leg was obliquely fractured. He was confined to his bed for about three months and suffered much pain from the injury. He testified that after he got out of bed he was not able to do hard manual labor and that he had done nothing but chores around up to the time of the trial, which took place in March, 1918, and that by reason of the injury he had been compelled to expend in doctor’s bills, help on his farm, etc., the sum of about $350.

When the collision occurred Ralph got out of the car and went in front of it and examined it. He testified that he was excited and frightened, and soon a lot of people gathered there; that he saw the plaintiff go out of the buggy, but saw nothing of him after that; that he got back into his car, and turned west on Williams street, north to Charles street, then east to Lafayette street, and then home. The next morning he told his father of the accident, and the latter went to Greenville and saw the plaintiff. Lafayette street was, at the time in question, well lighted with arc lights, one of which was directly over the center of the intersection of said streets.

The questions in controversy at the trial related to the manner in which the automobile was driven, its speed, and what, if anything, the driver did to avoid the collision; the conduct of the plaintiff, and what care, if any, he exercised in going upon Lafayette street at the time; and the condition of the street as to traffic, when he went upon it. There is upon these vital questions an irreconcilable conflict in the testimony. F. R. Hicklin, a witness for the plaintiff, testified that he was walking south on the west side of Lafayette street at the time, and north of Williams street. He testified:

“Later I noticed a rig, looked to me like a two-seated carriage with a team of horses hitched to it. I thought there were three people in it at the time. I found out afterwards that there were four. The team was on a light jog, I should say. They were going east on Williams street. The automobile was coming from the north going south. I noticed the automobile as it was approaching the corner. At the time the rig reached a point parallel with the curb on the west side of Lafayette street, the automobile was about 25 or 30 feet away, I would think. I mean 25 or 30 feet to the north. It was on a line with me. I figured I was about that far from the crossing.
“Q. How far had the team proceeded out into Lafayette street when the automobile hit it?
“A. They were about 10 feet from the curb. The automobile hit them right amidship, right between the two wheels.
“Q. Would you say the team had reached a point parallel with the center of the intersection of Lafayette and Williams streets at the time it was struck?
“A. Yes, sir.
“Q. Had it reached a point the other side of that towards the east?
“A. No, I wouldn’t think so. They were just about in the middle of the street, I judge. The driver had started to turn his horses towards the north, at the time of the accident. The collision made a loud crash. The driver of the rig was. thrown from the rig on the pavement, I should judge about 12 feet in a sort of northeast direction.”

On cross-examination he was asked and answered as follows:

“Q. Just before dinner you testified that when you —just after seeing the team, you looked towards the automobile, and it was 10 or 12 feet from the buggy. Now I want to know in what shape the buggy was at that time?
“A. The buggy was about 8 feet I should judge from the curb, the curb on the west side of Lafayette street. The buggy was going in a semicircle going northeast, he was making the regular turn you would naturally do with a team of horses.
“Q. Turning at that point on the west side of Williams (Lafayette) street?
“A. Yes, sir.
“Q. To go north?
“A. Yes, sir. * * * I should judge it was about 25 or 30 feet south of the north curb of Williams street that these vehicles came together. I should say the Petersen car stopped pretty near in the middle of Williams street, the hind end of it was past the curb on Williams street.”

This witness also testified that when the car reached the intersection line of Williams street and Lafayette street, it was going about 18 miles an hour, between that and 20, and was going 18 miles an hour when the collision occurred. And that the driver of the car was driving with one hand, and had one arm around the girl.

Asked on cross-examination:

“Q. Do you state as a matter of fact he did have his arm around the girl?
“A. I would say yes; that he had his' arm around the girl, yes.
“Q. That he was driving the car with one hand? .
“A. I think so, yes.”

Mabel Simmons, the daughter of the plaintiff, testified that she was riding on the front seat with her father at the time of the collision. Asked how he was driving, she said:

“Well, just as we got to the corner he took out the whip, and tried to drive them faster around the corner. * * * They were old horses.
“Q. When you drove on Lafayette street did you see any cars?
“A. Yes, sir. I saw one coming from the north just before we drove on. I looked to the south and saw one coming from the south.
“Q. How far was the one coming from the north from you when you drove on Lafayette street?
“A. About two-thirds of a block, I should think it was — going south.
“Q. I wish you would tell me how far you drove on Lafayette street before the accident occurred?
“A. Well, we got about the center, I should think, of the street, when we were hit, back of the buggy.”

Asked to tell just what occurred, she said:

“Well, when we came to Lafayette street I looked up one way and saw Mr. Petersen’s car first coming, then they were two-thirds of a block down north; I looked the other way, and saw the other car coming just off from the bridge. I thought we would have just time to make it before he came up that way; then we started out to the corner to turn a square corner, and just as we got started to turn, horses started to turn, Petersen he came up there quite close. I looked to see how far he was coming; I saw he was going to hit; I thought he would not then, we would have plenty of time to turn and go in the other direction, and go down Lafayette street; the first thing I knew he hit us, and I went over the front of the buggy, and went down, kind of my head under the car.”

After testifying that plaintiff was eight weeks in bed with a weight on his leg, she was asked if she was able to discover whether plaintiff suffered pain or not. She said she was from the way he screamed and took on about it. This, being objected to, was at first stricken out. Later in her examination the following occurred:

“The Court: Q. What was it you said your father said to indicate to you he was in pain?
“A. Screamed, exclamations, pained him awful.
“The Court: Screamed, you said?
“A. Yes, sir.
“The Court: I think I will allow it to come in.
“Mr. Barden: When was that?
“The Court: After the accident, I understand.
“Q. During the time he was in bed?
“A. Yes, sir.
“The Court: Was the physician there?
“A. He did it all the time, whether the physician was there or not.
“Mr. Rarden: Move to strike it out.
“The Court: I think the rule is, statements of parties as to pain and suffering would be hearsay, but present exclamations of pain—
“Mr. Rarden: Take an exception.”

On cross-examination this witness; testified that the defendant’s automobile was about two-thirds of the way up the block, when plaintiff commenced to go on the street. She said:

“I first saw the automobile just about as the horses’ heads started to come on the road, a couple of feet or so before the horses started to go on the road, I looked. I don’t know whether Dr. Savage’s house is about 35 feet back from the street. After you get by Dr. Savage’s house you can see up Lafayette street, clear up to Kipp’s store, and beyond. * * *
“Q. So that he whipped up his horses and tried to beat the automobile out, but it was going so fast it caught him?
“A. Yes, sir, it must have.”

Mrs. Rose Simmons, plaintiff’s wife, was a witness. She testified that he was 65 years old on May 20, 1917; his business that of a farmer; that Williams street west of Lafayette street is a well lighted street. Asked where the rig was when she first saw the automobile coming from the north, she answered:

“Just turning a square corner.
“Q. How far away when you first noticed it, when you were turning the square comer?
“A. About half a block away. * * * I saw the automobile, but I didn’t think that the auto would hit us, I didn’t judge it would. I couldn’t tell how far we were south of the north curb of Williams street, when the automobile came in contact with the buggy, but we were just turning north, the horses were just turning. We came down on the south side of Williams street. We were on the south side of the road; we have to make a good big turn with that old buggy, it is almost a lumber wagon.” * * *

On cross-examination she testified:

“We drove from Williams street on Lafayette street and drove from, the south side of the street, just the same as anyone would, and turned a square corner on the east side of Lafayette street.
“Q. Do you know whether you had got by the center before you started to turn north?
“A. I think so, because the horses’ heads were that way, they sure must have been.
“Q. Do you know?
“A. Yes, sir. I think the horses were east of the center of the street. The buggy was in the center of the street.”

The plaintiff testified that when he got to the intersection of the streets he looked to the south and saw an automobile coming over the bridge, and from the north he saw .a car coming about 4 rods south of the other side of the block.

“Q. What, if anything, did you do to get out of the way of the approaching car?
“A. I picked up my whip and hit the horses to hustle them, and get across the street, and get on to the right hand side of Lafayette street. I was finally hit by the car. I got to the center of the street, and was making the turn north, when I was hit by the car. * * * I should think my wagon was about 12 feet from the west curb of Lafayette street when it was struck.”

On cross-examination:

“Q. Where were you with reference to the center of the street, where was your buggy standing at the time the automobile struck your buggy?
“A. My buggy, horses and front wheels were across the center of the street.
“Q. On the east side of the center?
“A. The east side.
“Q. Of the center of the street?
“A. Of the center of the street. The whole buggy was not across, the horses were. The hind wheels of the buggy were west of the center, just west; it was turning, the buggy was cramped then. * * *
“The Court: Why did you try to get ahead of this automobile, why didn’t you stop?
“A. I didn’t want to stop there on the street and let the automobile run right into me, did I, when 1 saw it coming?
“Q. I understand you whipped up your horses just as you were entering into Lafayette street?
“A. I whipped up my horses just as I was entering Lafayette street, so as to make that turn ahead, get ahead of the automobile coming from the south. 1 wanted to be on the east side of that automobile, and miss the automobile cóming from the north.”

Question by plaintiff’s counsel:

“At the time you were struck by the automobile, how far was the rear end of your wagon from the west curb of Lafayette street?
“A. I should think it was 10 or 12 feet. * * *
“The Court: Understand me, when you saw the car coming from the north, you had already whipped up your horses to avoid the car coming from the south, is that correct?
“A. Yes, sir.
“Q. Where were your horses when you first saw this car from the north?
“A. Just coming out on the street, was just coming out.
“Q. Were they going faster than they had before?
“A. Yes, sir, I just touched them up.
“Q. Then you saw the car coming from the north?
“A. Then I saw the car coming from the north. Went right on making the turn, to get ahead of the one coming from the south.”

By defendant’s counsel:

“Q. You hadn’t got out on Lafayette street at the time you saw this car coming from the north; why didn’t you stop your buggy and let the car go by?
“A. I thought I had time to get across the street on my own side of the road, before it got there.”

At the close of the plaintiff’s evidence, defendant’s counsel moved for a directed verdict in his favor, for the reasons that the plaintiff was negligent in whipping his team and trying to get across ahead of the automobile he saw coming; also in not stopping and keeping put of danger when he saw the automobile six rods away; and in driving rapidly down to, and upon this street, knowing it was congested with traffic. The court reserved its opinion until defendant put in his testimony.

On behalf of defendant, Sephas Hansen testified that he was present, and that he should judge that the automobile was going between 8 and 10 miles per hour, and the team just about as fast.

“The buggy was headed east at the time it was struck, and the horses northeast. The horses were on the east side of the center of the street, and a little bit to the north. The buggy when it came out there did not go around the center of the street intersection, before it was struck.”

Earl Despelder, a witness for defendant, testified that he was present at the collision, and being asked how far the rig was from the west curb of Lafayette street when hit, he answered:

“I should judge about 3 or 4 feet.
“Q. Where were the horses at that time?
“A. They were further near the center of the street. They were turning northeast. They were north past the center post. They were just coming out of Williams street and past the corner inside of the post and curb corner, going northeast, just making that swing. (Consulting map.) They were just swinging right in here, inside of the stake. Northwest of the stake. When the automobile struck the buggy, it was pushed to the south about 5 or 6 feet.”

On cross-examination witness repeated that the plaintiff turned inside of the post.

Ralph Petersen, son of defendant and the driver of the car, testified that when traveling south on Lafayette street he was close to the west curb, going about 10 miles an hour, that there was much traffic going north and the lights were bright and bothered him some, that he kept a sharp lookout and that he was right on the buggy, within 6 feet of it, before he saw it, going north “at an angle towards the northeast.” He described how he tried to stop the car. He denied that he had his arm around the girl and said he had both hands on the steering wheel. That he could stop the car, running at the rate of 10 miles an hour in about 8 feet. And that the reason why he did not turn to the west behind the buggy was that there wasn’t room. Miss Frantzen, the young woman who accompanied Ralph, corroborated his testimony in every respect. At the close of the testimony, the motion to direct a verdict for the defendant was renewed, but the court reserved its decision, and directed that the case be submitted to the jury.

The court, among other things, charged the jury as follows:

(12) “It has been suggested and claimed on the part of the plaintiff that he (Ralph Petersen) should have turned to the right and gone west on Williams street. This is a question of fact for you to determine under all of the circumstances, gentlemen of the j ury, having in mind the situation as it appeared .to him at the time, take into consideration the traffic upon the road, and all other things being considered, as to whether or not the defendant did do, or the defendant’s son did do, everything possible, after he had discovered the danger, to prevent an accident.”

Also as follows:

(14) “You have heard the testimony in this case, as to what defendant’s son did after the accident; that he got out of his automobile and looked at the front of it, and later got in the car and drove away, drove west on Williams street, then north to Charles street, and over to Lafayette street. That was admitted simply to prove the transaction that existed there. There is n'o negligence attributable to the defendant in this case, because he didn’t stay there, or because he didn’t render aid. You may take that into consideration, however, as bearing upon the testimony of the defendant in this case, and if it has any weight with you at all, you may make application of it and consider it in determining what weight you will give his testimony in the case; in other words, you may consider it, if you think it worthy of consideration, as affecting the credibility of the witness in the case, but the act itself is not relied upon or claimed in the case to be an act of negligence; the mere fact he ran away is not an act of negligence of itself.”

The jury returned a verdict for the plaintiff in the sum of $1,500 damages. Later a motion for a judgment for the defendant, notwithstanding the verdict, was duly entered and submitted upon the ground of contributory negligence for the reasons stated in the motions for a directed verdict, the reasons being elaborated. The learned circuit judge denied this application, and upon the question reserved held that there was a question of fact for the jury as to the contributory negligence of the plaintiff, and that the court was unable to say from all the evidence in the case that the plaintiff was guilty of such contributory negligence as would preclude recovery, and judgment upon the verdict was entered accordingly. Thereupon a motion for a new trial was duly entered and submitted, the main grounds of the motion being that by the overwhelming weight of the evidence the defendant, or the driver of his car, was not guilty of negligence; that by such weight of evidence the plaintiff was guilty of contributory negligence; and that the verdict was against the weight of all the evidence in the case. This motion was denied and exceptions duly entered.

In this court defendant’s assignments of error raise the questions above indicated, and others, some of which will not be specifically referred to, but all of which have been considered. Both upon the oral argument and in their briefs counsel for appellant were so persistent in their claim that, as matter of law, the plaintiff was guilty of contributory negligence; that the defendant was not guilty of any negligence; and that the verdict was against the weight of all the evidence, that we have examined the record with great care. While we have set forth so much of the evidence as leads to tediousness, yet in fact we have inserted only a small part thereof. Enough appears, we think, to show that controverted questions of fact are involved. Upon the oral argument we were of the impression that the case was a proper one for the consideration of a jury, upon the main features involved. That impression has been strengthened by an examination of the record. If some of the defendant’s witnesses were to be believed, the plaintiff was guilty of contributory negligence; but the questions were such, in view of the plaintiff’s evidence, that it was proper to submit them to the jury.

We are unable to say that the plaintiff should be held to be guilty of contributory negligence, as matter of law. As we said in Beach v. City of St. Joseph, 192 Mich., at p. 301:

“Before such a conclusion can be arrived at, all reasonable minds must reach the same decision, that under the undisputed testimony, there was such contributory negligence as would bar recovery.” See cases cited.

Whether the plaintiff “cut the corner,” or whether he observed the ordinance and law, depends upon the facts, which were in dispute. Upon the subject of the weight of evidence we do not think that it can be justly said that the verdict was against the overwhelming weight of the evidence. What we said in Druck v. Antrim Lime Co., 177 Mich. 364, is applicable here:

“The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence to require this court to overrule the decision of the circuit judge in refusing a new trial.”

See Walsh v. Railway Co., 185 Mich. 177, 184.

Did the court err in receiving the testimony of Mabel Simmons as to exclamations of pain by the plaintiff? It is to be noted that this case was commenced one month after the injury. Whether pending or not at the time of the exclamations does not appear. After an examination of the following cases, we conclude that the court did not err in its ruling. Hyatt v. Adams, 16 Mich. 200; Johnson v. McKee, 27 Mich. 473; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 543 (31 Am. Rep. 321); Strudgeon, v. Village of Sand Beach, 107 Mich. 496; Will v. Village of Mendon, 108 Mich. 251; Marshall v. Railroad Co., 171 Mich. 180; Loose v. Township of Deerfield, 187 Mich. 206.

In Marshall v. Railroad Co., supra, stress was laid upon the point that it was one of the principal contentions of the defendant that plaintiff suffered no such injury as he alleged. Here there is no such claim. The evidence received only tended to enhance the damages, and there is no claim here that the verdict was excessive.

We are constrained to hold, however, that the court erred in that part of the charge covered by the 12th assignment of error, as to whether the son of defendant did “everything possible after he had discovered the danger to prevent an accident.”

As this court said in Pearl v. Railway, 188 Mich. 84, 88, in dealing with a similar question:

“We think it held him to a higher degree of care than the law demands, and may have misled the jury.”

The part of the charge referred to practically said to the jury that under the law the driver of the car was required to do everything possible to avoid the accident. He was only required to use such care, and take such course as an ordinarily prudent person would under like circumstances. There should also be taken into consideration the conditions as they appeared to the driver of the car in the emergency of the moment.

We are also of the opinion that there was prejudicial error in that part of the charge set forth in the 14th assignment of error. It appearing by the undisputed evidence that the conduct of Ralph Petersen, the driver of the automobile, at the time of the collision, and immediately thereafter, was not in violation of the provisions of section 4816, 1 Comp. Laws 1915, it is difficult to understand from this record how the fact of his driving away, after the collision, should affect the weight of his testimony, or his credibility as a witness.

He had testified to matters very material in the case — upon questions vital to the issue. The jury were told that bearing on his credibility as a witness, they might consider that he drove away from the place of the accident. In our opinion this was prejudicial error. We are impressed with the view that the case was a close one, and that possibly these two errors in the charge may have led to a miscarriage of justice in the verdict.

For the errors pointed out the judgment is reversed and a new trial granted, with costs to appellant. We find no other error in the record.

Moore, Steere, and Brooke, JJ., concurred with Stone, J.

Fellows, J. I concur in reversal on the first ground stated in the opinion.

Bird, C. J., and Kuhn, J., concurred with Fellows, J.

The late Justice Ostrander took no part in this decision.


author: Steere, J.

text:
    PEOPLE v. MATHEWS.
    1. Criminal Law — Return of Examining magistrate — “Judicial Determination” — Two Offenses.
    Where defendant was charged in the complaint and warrant with felonious assault “with intent to ravish and carnally know,” followed by a statutory charge of assault, at the same time and place, with a dangerous weapon, without a specified intent, an offense springing out of the same transaction and covered by the same testimony, and the examining magistrate, after an examination of the whole matter, including taking testimony, came to the opinion that an offense not triable by a justice had been committed, and there was probable cause to believe the accused guilty thereof as charged, and so certified to the circuit court, he made a “judicial determination” adequate to confer jurisdiction and afford the basis for filing an information in said court, although his said return did not specify the offense committed.
    2. Same — Information—Joinder of Counts — Duplicity — Election of Counts.
    An information containing two counts, charging two distinct crimes, where they were committed by the same acts, at the same time, and the same testimony must be relied on for conviction, held, not defective for duplicity, and election could not be required.
    3. Same.
    The trial court was not in error in allowing the prosecutor to dismiss the second count and proceed upon the first.
    4. Same — Evidence of Good Character — Instructions.
    Refusal by the trial court to give a requested instruction to the jury that defendant was “entitled to the benefit of good character even if they should find positive evidence tending to show commission of the crime,” that it was “admissible not only in case where doubt exists, but may be offered for the purpose of creating a doubt,” held, not error, where the charge as given was favorable to defendant, and in essentials fairly complied with the general rule upon good character testimony.

      6. Same.

      Held, that the charge as a whole properly submitted to the jury the principles of law applicable to the questions of fact submitted for their determination.
    Exceptions before judgment from Muskegon; Vanderwerp, J.
    Submitted June 12, 1919.
    (Docket No. 94.)
    Decided November 5, 1919.
    Clifford Mathews was convicted of an assault with intent to commit rape.
    Affirmed.

      Willard G. Turner, Jr., for appellant.

      Alex. J. Groesbeck, Attorney General, CKristian A. Broek, Prosecuting Attorney, and Harry W. Jackson, Assistant Prosecuting Attorney, for the people.
   Steere, J.

Respondent was arrested upon a complaint and warrant which charged him with the commission, on April 13, 1918, at the city of Muskegon, Michigan, of the crime of feloniously assaulting one Lena Christian, a female of the age of 31 years, with intent to ravish and carnally know her, and also with the crime of feloniously assaulting one Lena Christian on the day and year aforesaid, being armed with a dangerous weapon, to wit, a revolver, but without intending to inflict great bodily harm less than the crime of murder. An examination was demanded and certain witnesses were sworn and examined, when further examination was waived by the respondent. The foregoing is shown by the return of the justice, which contains also the following:

“And, whereas, it was made to appear to me, the said justice of the peace, that said offense was committed as charged in said complaint and warrant, and that there was probable cause to believe said accused person to have been guilty thereof,” etc.

Respondent was ordered to recognize and, failing to do so, was committed to the county jail to answer such information as might be filed against him for said offense. The information charges both offenses as in the complaint and warrant. The cause came on for trial at the April, 1918, term of the circuit court, whereupon counsel for respondent asked that he be permitted to withdraw his plea and stand mute and, this having been granted, moved to quash the information on two grounds, first, that it lacked “the required basis in the return of the justice,” and, second, that the information is faulty because of duplicity. In reply the prosecuting attorney moved to dismiss the second count — the one charging an assault with a dangerous weapon — and elected to try the respondent upon the first count. The motion of respondent was overruled and the motion of the prosecuting attorney granted, and the cause proceeded to trial upon the first count of the information — the one charging assault with intent to commit the crime of rape. Respondent was convicted by the verdict of the jury, and a motion in arrest of judgment, based upon the ground that the information was void and was faulty because of duplicity, was denied. Respondent reviews the conviction on exceptions before sentence, and discusses errors assigned under the heads:

“First. Errors in refusing to quash the information on the ground that it was void for two reasons, lacking the required basis in the return of the justice, and being faulty because of duplicity.
“Second. Error in allowing the prosecution to elect upon which one of two separate and distinct charges respondent should be tried, after respondent had been bound over upon his examination for trial upon both crimes, without any specification as to what particular offense he was held for.
“Third. Errors in the instructions of the court to the jury, both in the charge made and in refusing to give requests to charge made by counsel for respondent, and
“Fourth. Error in overruling the motion of respondent’s counsel in arrest of judgment.”

The testimony of Lena Christian tends to prove that, after having been at her home in the evening of April 13th, respondent, in company with her husband, left the house and went away, returning again alone between 11 and 12 o’clock, when he assaulted her while she was in bed in her night clothing and had been asleep. The door was not locked and there was a light in the house. He said nothing to her and she got out of bed, but he pushed her back on the bed. He threw down the bed clothes and tried to get into bed with her. “He acted as though he was trying to have intercourse with me.” During the assault he secured her husband’s revolver, which was in a cupboard near the bed, and when she “fought back” he struck her on the head with it several times, inflicting wounds and cuts which bled freely. Of the assault she testified in part:

“He didn’t say anything. He just came right over to me. And I rolled out of bed. And then he hit me. He reached for the revolver before he hit me on the side of the head. And I fell over onto the bed. He got into bed after me. It bled all over the pillows, as I showed you. And he hit me again with the revolver on the other side of my head. He didn’t have any intercourse with me. He did not get on top of me. He did get into the bed with me. He hit me again. He did not put the revolver back. He went away.”

This is a part of the cross-examination of Mrs. Christian. She further testified he did not stagger, but did seem to be drunk. After he left, the witness went with a towel around her head and blood running over her face to the club managed by her husband and made complaint. He took her home and at once sent for a physician, Dr. Foss, who testified that when called to attend her he found she had received serious cuts and bruises on her head, a scalp wound just above the forehead over two inches long penetrating to the skull and another upon the side of the head almost penetrating her ear, and there were also other bruises upon her hands and limbs.

Ought the motion to quash to have been granted because the return of the justice did not specify the offense committed, there being two charged in the wárrant? In People v. Evans, 72 Mich. 367, cited in respondent’s brief, it appeared that the examining magistrate had not, at the time respondent pleaded in abatement to the information, made and certified a determination that any offense had been committed or that there was probable cause to believe the respondent guilty, but on the contrary had returned he did not believe the offense charged had been committed, or that the respondent was guilty, and he had bound him over for trial because of the intense public feeling against him on the subject. It was there said (p. 387):

“The statute requires the justice, after ‘an examination of the whole matter,’ to come to an opinion as to whether or not an offense has been committed; and, if of opinion there has been, then as to whether there is probable cause to believe the accused guilty thereof, and thereupon to discharge or hold him to answer according to the conclusion reached; and it is only when the conclusion reached by the justice, after an examination of the whole matter, is that an offense has been committed, and that there is probable cause to believe the accused guilty thereof, and so certified to the circuit court, that an information may be filed. This conclusion or opinion of the justice is a judicial determination, and the basis of the right to proceed in the circuit court by filing information. People v. Annis, 13 Mich. 511; People v. Turner, 33 Mich. 363; People v. Yaner, 34 Mich. 286.
“In the present case, it appears at the time the information was filed in the circuit court, upon which the respondent was put upon his trial, no determination had been made by the justice, either that any offense had been committed, or that there was probable cause to believe the respondent guilty, and the prosecuting attorney had no authority to proceed in the circuit court by filing such information. * * * The information was filed upon the return of the justice, as it then appeared. We are not called upon to determine whether a new information might have been filed after the justice’s further return was filed in the circuit court. The court refused to quash the information then filed,- and the case proceeded to trial thereunder. The circuit court having no jurisdiction at the time of filing the information, it follows that a conviction thereunder cannot be sustained.”

Neither is the case of People v. Yaner, 34 Mich. 286, cited and quoted in defendant’s brief, of controlling application to the situation presented here. In that case the respondent was arrested, examined and held for trial upon a complaint charging him with the crime of murder. A motion was made to quash the information because the committing magistrate on application therefor refused to determine whether the facts proven on the examination “amounted to murder or ’manslaughter,” the latter being a bailable offense of which respondent was subsequently convicted, holding that was “a question for a petit jury, and not one for the examining magistrate.” This court held such a return deprived respondent of a substantial right defined as follows:

“The magistrate in his special return affirmatively shows that he refused to determine ‘whether the proof would amount to murder or manslaughter.’ Clearly, then, he did not determine from the evidence adduced upon the examination that the offense was murder, or that there was probable cause to believe the accused guilty of such an offense. It thereupon became his duty to fix the amount of bail, as the offense, if any, was a bailable one, and admit the accused to bail, if sufficient bail was offered, and if no sufficient bail was offered, to specify upon the mittimus the amount for which bail should be required.”

The scope of this decision is indicated in People v. Brownell, 38 Mich. 732, where it was held in a murder case that “there seems to be no defect in a commitment which describes the offense as it is charged,” adding, however, that upon a question of bail “the real character of the charge and the degree must in some way appear, inasmuch as murder in the second degree is bailable by a justice.” No such question of bail arose in the instant case. The charge did not involve a non-bailable offense. The magistrate found that it appeared to him “said offense was committed as charged in said complaint and warrant, and that there was probable cause to believe” respondent was guilty thereof, required him to enter into a recognizance to appear at the ensuing term of the circuit court to which he bound him over for trial, specified the amount of bail required, and made full return of said proceedings to the court in which he was held for trial in compliance with statutory requirements. The only claimed irregularity is use of the singular in finding “said offense was committed as charged.” The major and first stated charge in the complaint and warrant is that of felonious assault “with intent to ravish and carnally know,” followed by a statutory charge of assault, at the same time and place, with a dangerous weapon, without a specified intent — an assault minor in degree springing out of the same transaction and covered by the same testimony. When the magistrate, after “an examination of the whole matter,” including taking of testimony, came to the opinion an offense not triable by a justice had been committed, and there was probable cause to believe the accused guilty thereof as charged in the complaint and warrant, with determination of bail required, and so certified to the circuit court, with the testimony taken before him, he had made and certified an opinion or “judicial determination” adequate to confer jurisdiction and afford a basis for filing an information in that court.

Respondent certainly was not put upon trial for another or different offense than the one upon which he was arrested and examined before the committing magistrate. It was competent for the prosecuting attorney to put his information in such form as he thought might best enable him to try the offense charged on its merits, provided he did not proceed against respondent for a different transaction than that to which the preliminary examination related, jPeople v. Annis, 13 Mich. 511. Of the testimony taken at such an examination this court said, by Justice Graves, in People v. Turner, 33 Mich. 363:

“It is to such evidence the prosecuting attorney is plainly referred in order to shape his information, and the same evidence which is to govern the court when directing a ‘proper’ information to be filed. All the regulations point to it as the evidence to discriminate the criminal act to be laid, and to disclose its class and character. Indeed, on this subject the law appears clear when the various provisions are examined and compared.”

In People v. Burwell, 106 Mich. 28, respondent was charged in the complaint and warrant with both rape and incest. The magistrate in his return stated that it appeared the offense as charged had been committed and he found probable cause to believe respondent guilty thereof, without specifying either offense. The evidence taken upon the examination contained sufficient to warrant binding respondent over for trial upon a charge of rape. The information filed against him contained two counts separately charging each offense laid in the complaint and warrant. Respondent when arraigned in the circuit court refused to plead and by his counsel moved to quash the information because it contained inconsistent counts, which was overruled and the prosecutor required to elect, which he did and the trial proceeded under the count for rape. In sustaining the ruling this court said:

“The transaction for which respondent was tried is identical with the transaction for which he was examined. The offense for which he was tried and convicted was set forth in the complaint and warrant. We think the case is ruled by People v. Annis, 13 Mich. 515, and People v. Aikin, 66 Mich. 460, and that no error was committed in refusing to quash the information.”

In People v. Warner, 201 Mich. 547, where error was assigned on denial of defendant’s motion to compel the prosecutor to elect between counts in his information, the reasons of the trial court on denial of a motion for retrial with cited authorities is quoted with approval and the following excerpt from People v. Sweeney, 55 Mich. 586, stated to have “been the rule in this State for many years”:

“Election between counts cannot be required on the ground that distinct offenses are charged, where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction.”

In the early case of People v. McKinney, 10 Mich. 54, it is stated there is “nothing technical” in the rule of election, and in its application the controlling consideration is not necessarily whether several different offenses in point of law are charged, but—

“whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant cannot be prejudiced in his defense by the joinder, and the court will neither quash nor compel an election. Such would seem to be the principle of the general rule to be deduced from the cases. See cases cited; 1 Chitty Crim. Law, pp. 253 and 254, and notes; Roscoe’s Crim. Ev. pp. 231, 232, 233.”

In the instant case the court did not quash the information and had no occasion to compel election, but permitted the prosecutor to elect, which in any event answered the rule so far as duplicity is concerned.

Prejudicial error is also urged upon refusal of the court to give defendant’s following request:

“You are further instructed, as a matter of law, that the respondent is entitled to the benefit of proof of good character, even if the jury should find positive evidence tending to show commission of the crime. Evidence of good character is admissible not only in case where doubt exists, but may be offered for the purpose of creating a doubt.”

In support of this contention counsel cite People v. Jassino, 100 Mich. 536, from which the last sentence in the above request is taken. The language was used in discussing the concluding and restricting statement upon the subject in a charge that “when there is positive proof of the commission of an offense, then good character cannot avail to overthrow that proof.” Illustrative or argumentative language by the appellate court in discussing a question is not necessarily the language which should be adopted by the trial court in its charge to the jury. No such restriction as that criticized in the Jassino Case is found in the court’s charge as to character in the instant case, which in its details was favorable to the accused and in essentials fairly complied with the general rule upon that subject. Not only was the charge replete with instructions that the jury should carefully and impartially take into consideration all circumstances and conditions shown by the evidence to have surrounded the occurrence and the parties themselves, but, more directly, the court said in part:

“There have been witnesses placed upon the stand here in behalf of the respondent to prove his good character. It is your duty, gentlemen, carefully to consider that testimony. A good character, a good reputation is one of the more valuable possessions that any person can have, and testimony concerning a good character may, in itself, be sufficient to raise a reasonable doubt in the minds of jurors as to guilt of the respondent of the specific act and offense which is charged against him and for which he is upon trial, so that you will give this testimony concerning his character careful consideration; you will weigh it and you will give it such weight and credit as you think it is entitled to and as you believe it ought to receive, and consider it in connection with the other testimony and the other evidence in the case.”

The charge as a whole is noticeably full upon the duties of the jury and principles of law applicable to the questions of fact submitted for their determination. Plain and impartial instruction is given upon the presumption of innocence, burden of proof, reasonable doubt, the essential elements of the offense charged, and intent as applied to that offense, the minor offenses of assault and assault and battery as included in- the greater charge, also submitted to the jury, etc.

We have examined the questions raised by various other assignments of error and are of opinion they do not demand discussion or serious consideration.

Finding no reversible error in the record, the conviction will stand affirmed and the case remanded for judgment.

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

The late Justice Ostrander took no part in this decision.


text:
    BISHOP v. JUDGE OF RECORDER’S COURT OF DETROIT
    1. Appeal and Error — Statutory Right oe Appeal — Jurisdiction,
    The right of appeal is a statutory one, and unless the mandatory provisions of the statute are complied with, the court has no jurisdiction to entertain the appeal.
    2. Same — Police Court oe Detroit — Justices oe the Peace.
    Under Act No. 118, § 23, Pub. Acts 1891, appeals from the police court of the city of Detroit are controlled by the general laws of this State applicable to appeals from convictions by justices of the peace to the circuit court in criminal cases.
    3. Same — Recorder’s Court oe Detroit — Special Appeal — Extension oe Time.
    In the absence of any provision in the general laws of the State or in the charter of the city of Detroit authorizing the recorder’s court of said city to extend the time for appeal from the police court to said recorder’s court beyond the limit of 10 days fixed in the statute (3 Comp. Laws 1915, § 15786), said court has no authority to grant leave for a special appeal after the expiration of said 10 days.
    4. Same — Dismissal—Mandamus.
    Mandamus will lie to compel the judge of the recorder’s. court of the city of Detroit to vacate an order granting special leave to appeal from a conviction in the police court of said city to said recorder’s court after the expiration of the 10 days fixed in the statute; there being no showing that said appeal was prevented by any action or nonaction on the part of the court or its officers beyond the control of appellant.
    Mandamus by Matthew H. Bishop, prosecuting attorney of Wayne county, to compel Charles T. Wilkins, recorder of the city of Detroit, to vacate an order granting a motion for an appeal.
    Submitted October 7, 1919.
    (Calendar No. 28,858.)
    Writ granted November 5, 1919.

      Matthew H. Bishop, in pro. per., and Joseph A. Popiel, Assistant Prosecuting Attorney, for plaintiff.

      Stewart Hanley, for defendant.
   Steere, J.

This proceeding was instituted by the prosecuting attorney of Wayne county, to test the jurisdiction of the recorder’s court of the city of Detroit to entertain and grant a motion for special leave to appeal from a judgment in the police court of that city after the statutory limit for appeal had expired.

On May 3, 1919, one Robert West was complained against in the police court of the city of Detroit for a misdemeanor, arrested on a warrant duly ‘issued, convicted and sentenced to the Detroit house of correction for a period of 90 days. After the expiration of the statutory period for appeal he made application by his attorney to the recorder’s court of Detroit for special leave to appeal his case to that court, which was granted on May 17, 1919, and he set at liberty under a recognizance in the sum of $200 for his appearance at the ensuing term of said court. A motion by the prosecuting attorney requesting that court to vacate the order was denied, and on application to this court for a writ of mandamus an order was issued to show cause why the same should not be granted.

Defendant’s answer to such order admits the proceedings as alleged in plaintiff’s petition, and further returns that defendant found said Robert West was “prevented by reasons and circumstances not under his control from consulting with an attorney and from taking steps to appeal within the 10 days allowed by statute,” for which reason the discretion of the court was exercised in his favor. So far as the record discloses the showing made before the recorder’s court for leave to appeal after the expiration of the statutory period consisted of two affidavits, one by West himself stating that he had only been in Detroit a few days when arrested, that the charge preferred against him was not true, that he was tried, convicted and sentenced to the Detroit house of correction, without opportunity to consult an attorney and make arrangements to appeal his case until May 14, 1919. The other affidavit is made by his attorney who states that he has investigated the case, believes “that the conviction aforesaid is a travesty and unjust,” and that the respondent is able to prove he is not guilty of the charges made against him.

Plaintiff contends that the recorder’s court of Detroit is given no authority by. public act or charter to entertain a motion for special leave to appeal, and is therefore without jurisdiction to enlarge the time therefor beyond that fixed by statute. Counsel for defendant, appointed by an order of the recorder’s court as amicus curias, urged that the right of appeal, having been given by statute a liberal but permissible construction to effect its just administration, implies a degree of discretionary jurisdiction vested in the appellate court to extend the specified time therefor in exceptional cases, on a proper showing of circumstances which rendered it impossible for the applicant to act within the statutory time given.

Of the police and recorder’s courts in the city of Detroit it is sufficient to state that they are relatively analogous to the justice and circuit courts of the State. With reference to appeals from the Detroit police court, Act No. 118, Pub. Acts 1891 (amending section 23 of Act No. 161, Pub. Acts 1885 establishing said police court), provides:

“Sec. 23. In all cases determined in said police court an appeal may be taken to the recorder’s court of the city of Detroit in the same time and manner and with same effect as prescribed by the general laws of this State for appeals from convictions by justices of the peace within this State to the circuit court in criminal cases.”

So far as material to the question involved, the general laws of the State relative to appeals from convictions by justices of the peace in criminal cases provide:

“Sec. 18. The person so charged with, and convicted by any such justice of the peace of any such offense may appeal from the judgment of such justice of the peace to the circuit court: Provided, Said person shall enter into a recognizance to the people of the State of Michigan in a sum not less than fifty nor more than five hundred dollars, within ten days after the rendition of the judgment, with one or more sufficient sureties, conditioned,” etc. 3 Comp. Laws 1915, § 15786.

No provision is found either in the general laws of this State or the charter of the city which authorizes the recorder’s court of Detroit to extend the time for appeal beyond the limit of 10 days definitely fixed by this statute, or to at any time entertain a motion for special leave for appeal. Nor is there in the first instance any constitutional or inherent right of appeal from a judgment in an inferior to an appellate court for review, or to a court of superior jurisdiction for the purpose of securing a retrial on the merits of a case; neither has the judicial department of government any power to grant that right, or privilege, except as authorized by the legislative department. The legislature may delegate discretionary control of appeals to the courts and can take it from them when previously granted, an unquestioned power recently demonstrated in this State. The right to appeal is and always has been purely statutory and does not exist at common law. Acting upon its own views of expediency the legislature can decide and dictate by statute to what extent and under what restrictions the right to appeal shall exist. It may deny that right, or grant it with limitations and conditions as to amount involved, time for taking, bonds required, and such other statutory regulations as it deems desirable.. That it is a jurisdictional necessity for the courts to comply with the procedure and time limit prescribed by statute is generally recognized:

“The procedure necessary to perfect an appeal is usually the subject of statutory regulation, and there must be at least a substantial compliance with the requirements, otherwise no jurisdiction is secured by the appellate court, and the court cannot dispense with any of the prescribed requirements.” 2 R. C. L. p. 100.
“The legislature has general power to prescribe the time within which writs of error may be sued out or appeals taken, and it is essential to the jurisdiction of the appellate court that the proceeding be taken within the time limited, and the trial court has no inherent power to extend the time, either directly or indirectly. Thus, where an appeal has not been taken within the required time, the court has no power indirectly to extend the time for appealing by vacating, for such purpose, the judgment, order or decree, and entering it as of later date. The power to extend the time to appeal may, of course, be given by statute.” 2 R. C. L. p. 104.

Along the same line it was said in Sullivan v. Haug, 82 Mich. 548 (10 L. R. A. 263):

“Acting upon its own views of expediency, the legislature organized and established the police court of the city of Detroit, and gave it jurisdiction over certain offenses, including the one for which relator was convicted. The legislature deemed it expedient to provide for an appeal to the recorder’s court in certain cases, and not in certain others when the punishment inflicted was small. * * * The right to an appeal is and always has been statutory, and does not exist at common law. It is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in. what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken. (Citing numerous decisions.)
“The decisions of this court with reference to appeals in chancery and other cases are in point.”

It is urged for defendant that the Sullivan Case, Renaud v. State Court of Mediation, 124 Mich. 648 (51 L. R. A. 458), Van Leuven v. Ingham Circuit Judge, 166 Mich. 115, and other cases of similar import are not applicable here as in those cases no right of appeal had been conferred, and they merely decide that, in the absence of express statutory authority, no constitutional right to appeal exists; while in the instant case a statutory right of appeal had been conferred, which decisions of this court have in effect construed as giving to the appellate court a discretion to permit appeal after expiration of the statutory limitation of time, in cases similar to the present where the applicant has been precluded by circumstances beyond his control from acting within the prescribed time. In support of this contention counsel cite Dickinson v. Simondson, 25 Mich. 113; Cameron v. Calkins, 43 Mich. 191; Gram v. Wasey, 45 Mich. 223; Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5; City of Kalamazoo v. Power Co., 122 Mich. 489, and Duell v. Oakland Circuit Judge, 206 Mich. 680.

That the scope of Sullivan v. Haug, supra, is. not limited to those cases where no right of appeal exists is manifest from preceding cases cited in it and subsequent decisions in which it is cited. Of the numerous authorities cited in the Sullivan Case to sustain what is there stated as a rule of general application, the earliest Michigan case is Weed v. Lyon, Walk. Ch. 77, in which there was a statutory right of appeal, and it was held that where a party failed to comply with, the statutory requirements within the prescribed time the court could not reinstate his lost right by a re-entry of the decree to enable him to appeal.

In Waterman v. Bailey, 111 Mich. 571, which cites the Sullivan Case with approval, it is held that this court has no jurisdiction to entertain an appeal where settlement of the case has been delayed until expiration of the statutory limitations therefor, including discretionary extensions permitted by the statute, when the delay is not the fault of the circuit court or any of its officers, and that jurisdiction to take cognizance could not even be conferred by waiver or express consent of the parties. The following quotation from 2 Enc. Pl. & Prac. p. 16, is there said to be “the doctrine of this court”:

“It follows, therefore, that all the requirements of the statute for taking and perfecting an appeal are deemed jurisdictional, and must be strictly complied with.”

The case is illuminating, not only in its generally concise and distinct discussion of this question with citation of authorities but from the fact counsel there urged, as here, that Cameron v. Calkins, Gram v. Wasey, Lake Shore, etc., R. Co. v. Chambers, supra, were inconsistent with the proposition that statutory requisites are necessary to confer jurisdiction, and it is said of them:

“These were cases in which the court refused to dismiss proceedings, where, owing to some default of the court or its officers, parties were prevented from taking appeals seasonably; and the opinions seem to make such cases exceptional.”

In Perkins v. Perkins, 173 Mich. 690, is again noted as an exception to the general rule a class of cases in which this court has refused to dismiss appeals because the parties without fault on their part were prevented from perfecting the same by some action or nonaction of the court or its officers; but the general rule is reiterated and it is held that even though the delays were by consent of both parties and for mutual benefit, neither the trial court nor the consenting parties can confer jurisdiction on the appellate court after expiration of the maximum statutory time limit, it being said in part:

“Having the power to permit or refuse appeals to be taken, the legislature has the power to prescribe the conditions which shall attend and control the taking such appeals. The legislature has not qualified or limited an existing right, but has created a right, to be exercised within a prescribed period of time, in a prescribed manner. Whether an appeal should be allowed in this cause is not a question of discretion of the court, but one of compliance with the conditions which the legislature has prescribed for taking such appeals. * * * We hold, in conformity with repeated decisions of the court, that the statute fixes a time within which appeals in chancery must be perfected, and that a party desiring to appeal must within that time perfect his appeal; for the failure to do which, the right to appeal is. lost and cannot be restored by the court.”

In Munroe, Boyce & Co. v. Ward, ante, 378, it is again said, with citation of recent decisions:

. “The right of appeal is. a statutory one, and unless the mandatory provisions of the statute are complied with the court has no jurisdiction to entertain the appeal.”

The cases cited for defendant in support of the contention that the appellate court may, and this court does, in its discretion assume jurisdiction on a meritorious application to appeal after expiration of the statutory time therefor, do not imply or purport to be authorized by any inherent discretionary power to that end. Those decisions are based upon the not unusual nor unreasonable legal proposition that the ,prescribed time in which a litigant is authorized to act does not in contemplation of law run against the party without fault or want of diligence on his part during such time as his power to act is suspended, or his efforts to do that which the law authorizes and requires him to do are blocked, by some act or non-action of the court itself or its officers entirely beyond his control.

It is not shown by this record or claimed that West made known to the court in which he was convicted a desire to appeal, asked for or was refused permission to consult counsel, or was denied any right to which a party in custody accused of a criminal offense is entitled. In proposing and arguing from a suppositious case counsel for respondent frankly states, “We do not, of course, mean that in this record there is any showing that either the police department of the city of Detroit or the officials of the house of correction deliberately planned to deprive defendant of his right to appeal,” and the record is barren of any showing that he was prevented from so doing through any default of the court or its officers.

Under the authorities cited and others to which they lead, we are of opinion that the recorder’s court was without jurisdiction to entertain or grant the motion for special leave to take a belated appeal.

The writ asked by plaintiff may issue.

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