text:
    SNELLING v. BROWN.
    1. Variance — Bill of Particulars — Contracts.
    It was not a fatal variance from the bill of particulars furnished by plaintiff claiming the balance of the price of 1,000 Christmas trees, the size of TOO trees being stated in the bill, and no size mentioned as to the remainder, which, according to the evidence, were to be of a size different to those mentioned in the bill.
    2. Assumpsit — Sales—Damages.
    In an action for Christmas trees delivered to the defendant, who claimed they were not in accordance with his contract, plaintiff could recover under the common counts the value of the trees delivered.
    3. Trial — Special Verdict — Questions.
    Special questions presented to the jury are properly refused if they are not controlling of some one of the issues.
    4. Same — Evidence.
    As to a contract made between plaintiff and a third person the court properly instructed the jury that it made no difference.

      -5. Same — Evidence.
    Conversation between the parties to the sale as to the condition of the subject-matter at the time of delivery, and plaintiff’s statement that if they were of inferior quality a proper allowance would be made,' was admissible in evidence.
    ■6. Cross-Examination.
    It was proper to permit cross-examination of defendant relative to negotiations with plaintiff for a settlement.
    Error to Kent; McDonald, J.
    Submitted June 20, 1911.
    (Docket No. 109.)
    Decided October 2, 1911.
    Assumpsit in justice’s court by William Snelling against Alfred J. Brown for goods sold and delivered. Plaintiff removed the cause to the circuit court from an insufficient judgment and recovered a larger amount on the 'trial. Defendant brings error.
    Affirmed.

      Oleland & Heald, for appellant.

      Martin H. Carmody, for appellee.
   Moore, J.

Plaintiff resides in the city of Grand Rapids, and has been engaged a little each year for about six years in buying and selling Christmas trees. Defendant is in the seed business, and handles Christmas trees. Plaintiff sold to defendant a quantity of trees. There was a dispute in relation thereto. On December 23, 1909, plaintiff commenced this action in justice’s court. The return of the justice shows:

“The plaintiff declares orally, upon all the common counts in assumpsit, especially for goods sold and delivered, for work and labor, and material furnished, and money loaned and furnished by plaintiff. Damages, $500 or under. The defendant pleads orally general issue, and gives notice of recoupment, and asks for security for costs.”

A bill of particulars was furnished. Omitting the formal parts, it reads as follows:

“ On or about December 4, 1909, an arrangement was entered into by plaintiff and defendant, by which plaintiff was to furnish defendant with 1,000 Christmas trees, of sizes as follows: 300 trees 6 by 8 feet high. 200 trees 9 by 11 feet high. 100 extra large bushy trees. 100 small table trees. "Which trees were delivered by plaintiff and received by defendant, for which there is due plaintiff $215.”

The case was appealed to the circuit court, where it was tried before a jury. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

Counsel say the questions raised are:

(1) There was a fatal variance between the contract set out in the plaintiff’s bill of particulars and the contract-proved.

(2) The plaintiff did not deliver the trees he contracted to deliver, and should not have been permitted to recover.

(3) Defendant’s request for the submission of the following special question to the jury should have been granted:

“ Did the plaintiff load the oar intended for the defendant with; the number of Christmas trees of the sizes and quality specified in the contract ?

(4) It was error to instruct the jury that it made no difference what kind of a contract plaintiff made with. Risk.

(5) Plaintiff should not have been permitted to state to the jury what he said to defendant as to the condition of the trees after their arrival.

(6) The plaintiff should not have been permitted to testify as to his intention in cutting the trees.

(7) Plaintiff should not have been permitted to testify that in making his measurements the trees had to run over length.

(8) Defendant should not have been required to testify as to his negotiations for settlement with plaintiff.

(9) It was error not to grant defendant’s motion for a new trial.

We will consider these assignments in the order in which they are presented.

1. A reference to the bill of particulars shows that of the 1,000 trees sold no statement is made in the bill of particulars in relation to the size of 300 of them. Another answer is that no objection was made to the testimony on the ground that it was not covered by the bill of particulars until counsel commenced to argue the case. The margin of 300 trees about which nothing is said as to the sizes thereof is quité sufficient to take care of any supposed variance as to proofs.

2. There was a sharp conflict in the testimony as to whether plaintiff had delivered the trees according to contract. It may be suggested, also, that under the common counts in assumpsit he could recover for the goods sold Wd delivered.

3. The special question was not controlling.

4. The controversy was not between the plaintiff and Mr. Risk, but was between the plaintiff and defendant. As to that controversy the jury were properly instructed.

5. It was the claim of plaintiff that, after defendant received the trees, he complained about the quality of some of them, and that it was agreed that, if they were not of proper quality, a proper allowance would be made. We think the evidence was competent.

6. If any error was committed under this head, it was error without prejudice.

7. It was proper for the plaintiff to testify as to the condition of the trees and their measurements, in view of the claim of defendant that some of them were not of sufficient length.

8. This was proper cross-examination.

9. We agree with the trial judge that the case was carefully tried, and that there was testimony fairly justifying the verdict.

Judgment is affirmed.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    LOUD v. O’BRIEN.
    1. Taxation — Assessment Rolls — Presumptions.
    In determining, the validity of a tax deed, attacked on the-ground that the assessment rolls were improperly prepared because property owned by complainant was grouped with other descriptions, the court will presume, unless the evidence shows the contrary, that the assessors performed their duty correctly by assessing the lands to the true owners.
    2. Same — Judgment—Res Judicata — Collateral Attack.
    There being no jurisdictional defect, the decree of the oirouit court in chancery for the sale of the lands for taxes is not open to collateral attack.
    3. Same — Descriptions—Dividing Tax Title.
    An owner of land which is subject to a tax title covering other descriptions all assessed as one parcel, cannot compel the holder thereof to accept less than the entire tax and penalty provided by statute, in redemption.
    Appeal from Alcona; Connine, J.
    Submitted June 20, 1911.
    (Docket No. 110.)
    Decided October 2, 1911.
    Bill by Henry N. Loud against Michael O’Brien and James Francis, copartners as O’Brien & Francis, to redeem from the purchase of certain State tax lands. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Charles E. Henry and Guy D. Henry, for complainant.

      O’Brien & Francis, for defendants.
   Blair, J.

In 1905, Henry N. Loud, of Au Sable, Mich., became and was the owner in fee simple of the N. W. i of the N. E. ¿ of section 8, town 27 N., range 6 E., Alcona county, State of Michigan. The lands are wild lands. In July, 1907, the defendants Michael O’Brien and James Francis obtained from the State of Michigan tax deeds for the N. W. £ of the N. E. £ and the S. £ of the N. E. £ of section 8, town 27 N., range 6 E., for the taxes of 1883 to 1905, inclusive.. On August 26, 1908, the defendants served upon complainant what purported to be a notice by purchaser under tax sale. This notice was not addressed to the complainant by name, but “to the owner or owners ” of any interest in the land described therein. Under description of land in the notice is set out the N. W. £ of the N. E. £, the S. £ of the N. E. £, of section 8, town 27 N., range 6 E., Alcona county, State of Michigan. The amount paid is $300.40, and the amount necessary to redeem is $605.80, plus fees of the sheriff.

Shortly after the receipt of this notice, complainant sought to- redeem the N. W. £ of the N. E. £, the one forty of the three contained in the description in the notice which he owned, or in which he had any interest. He offered to pay the defendants all that was justly and proportionately due for this one forty, and all that was fair and equitable, including the 100 per cent, and incidental fees, for the redemption of his own land. Defendants, however, refused to accept any sum less than the amount set out against the three forties in the notice. Complainant later filed his bill, claiming a right to redeem this N. W. £ of the N. E. £, and upon the dismissal of the bill in the circuit court for the county of Alcona, in chancery, appeals to this court.

Complainant urges the reversal of judgment rendered in the lower court upon the following grounds:

“ (1) The tax deeds involved are void, because the assessment rolls for the several years were wrongfully and illegally made up, and because certain descriptions were wrongfully grouped together on the rolls.
“ (2) The notice served by the defendants on the complainant was void.
“ (3) The complainant can, in equity and law, under the existing conditions, redeem the N. W. £ of the N. E. £, section 8, town 27 N., range 6 E.”

In support of this contention, complainant instances the following facts: During the years 1888 and 1884, the said N. W. i of the N. E. i is included in the W. £ of the N. E. i, and no town or range is set forth. The tax roll for 1886 contains, in the proper place therefor, at the top of the page, neither county, township, nor year. The forty in question was never assessed to complainant, and how he acquired his title in 1905, or from whom he purchased it, does not appear. No complaint is made of the decrees of sale or subsequent proceedings based thereon. In the tax rolls for 1886 to 1900, both inclusive, the taxes on the said N. W. i, and S i of the N. E. £, are assessed separately to “A. & G. Pack.” In the year 1896, however, the assessment roll also contained an assessment of the W. of the N. E. i of section 8 to S. J. Bennett. In the tax rolls for the years 1901, 1903, 1904, and 1905, the taxes are assessed to L. K. Parkhurst. There is nothing in this record to indicate that the persons named were not the owners, and, in the absence of evidence to the contrary, we must assume that the assessing officers did their duty and assessed the lands to the owners thereof.

It therefore appears that from 1886 to 1905, when complainant acquired his title to the 40 acres, it and the 80 acres, as separate descriptions, had been owned by, and assessed to, the Packs, and afterwards to Parkhurst. The fact that the forty was also assessed to Bennett in 1896, evidently by mistake, does not affect the status of the property. So far as this record discloses, the question whether the assessment and sale of one man’s property with that of another avoids the sale is not presented, if that would change the result. There is nothing in the circumstances of this case affecting the jurisdiction of the circuit court to make the decrees for the sale of the property. We, therefore, agree with the circuit judge that such decrees are not open to collateral attack. Kennedy v. Auditor General, 134 Mich. 534 (96 N. W. 928); Flint Land Co. v. Godkin, 136 Mich. 668 (99 N. W. 1058); Smith v. Auditor General, 138 Mich. 582 (101 N. W. 807).

Upon this point, the court sustained the appellant, and it is therefore unnecessary to consider it.

Upon this point, we adopt the opinion of the circuit court as follows:

The complainants insist that defendant should permit them to repurchase this one forty, and accept therefor one-third of the amount defendants paid, and 100 per cent., and they ask the court to make such a division of the price, and enforce a reconveyance on payment of that sum. The defendants are unwilling to do this, and say they cannot be made to do it. Complainants have no equitable rights in this land; the only right they have to it is the bare legal right to buy it back, and that is the way laid down in the statute, and no other. These three forties were so assessed and sold that defendants were compelled to buy them all together, as one description, for all the years the State held them; defendants could not buy, nor the State sell, in any other way than was done. There is in the statute no way or authority, either express or implied, for a division of the amount defendants paid; and for the court to force a reconveyance here would be to enlarge the statute, and add to it conditions which the legislature did not see fit to insert. The Supreme Court has refused to enlarge the same statute by allowing one tax to be paid and another litigated. Haney v. Miller, 154 Mich. 337 (117 N. W. 71, 745). Complainants and their grantors had several legal opportunities to protect themselves; they could have had their land separately assessed; they could have released their land by paying its share of the taxes to the town treasurer, and again to the county treasurer, and still again to the auditor general; and they could have appeared each year before the chancery court, and there had their land and its taxes separated. All these things they could have done, because the statute gives them the right; but without such statutes they could not do those things. So, without statutory authority, the court cannot arbitrarily divide this tax between these parties, and force defendants to reoonvey part of their purchase.”

The decree is affirmed.

Moore, McAlvay, Brooke, and Stone, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. CISMADIJA.
    1. Criminal Law — Assault With Intent to Murder — Trial-Instructions to Jury — Selp-Deeense.
    In a prosecution for an assault with intent to commit murder, it was error to charge the jury that respondent, who in a dispute with oomplaining witness, on being attacked by him, shot complaining witness in the scuffle, would have been guilty of murder if the victim had died and if the other elements of the crime were present; because the record contained no evidence justifying a higher charge than manslaughter.

      2. Same — Intent.
    Nor was there sufficient evidence to support a conviction of assault with intent to commit murder.
    3. Same — Malice—Homicide.
    A charge that discharging a gun amongst a multitude of people would warrant a conviction of murder, and that the law would imply malice if a person poison another though jio particular enmity can be proved, or if he kill another suddenly without any or a considerable provocation, was erroneous and prejudicial, to respondent who was charged with having shot and injured a person in a room where several were congregated.
    4. Same — Confession—Admissions.
    While respondent admitted to the police officers that he participated in the affray, but claimed that he struck the injured party with his revolver in self-defense, and the revolver was accidentally discharged, it was not a confession and should not have been so treated in charging the jury.
    5. Same — Plight—Evidence.
    Respondent’s flight from the scene of the shooting, and his absence for several weeks, was not substantive evidence of his guilt.
    6. Same — Charge—Burden of Proof — Doubt.
    The trial court erred in instructing the jury that in order to find respondent guilty of murder it must be shown “that he shot the complaining witness with malice aforethought and with intent to kill the complaining witness and the people would also have to show that the killing was premeditated by the defendant, and you could not find the defendant guilty if there was evidence to convince you beyond a reasonable doubt that he did not premeditate the crime or that he did not intend to kill when the shots were fired;” although the charge was requested by respondent’s attorney the error in putting the burden on the accused was not thereby cured.
    Error to Kalamazoo; Knappen, J.
    Submitted June 23, 1911.
    (Docket No. 117.)
    Decided October 2, 1911.
    Joseph Cismadija was convicted of assault with intent to commit the crime of murder.
    Reversed.

      Harry G. Howard, for appellant.

      Franz G. Kuhn, Attorney General, George V. Weimer, Prosecuting Attorney, and Stephen H. Wattles, Assistant Prosecuting Attorney, for the people.
    Respondent was convicted of the crime of assault with intent to commit murder, and sentenced to imprisonment for a term of from eight to twenty years. He has now served upwards of one year of that term. Both the respondent, and the complaining witness, Sam Goller, are Hungarians. It seems that a considerable number of this nationality reside in the city of Kalamazoo, being employed in the various manufacturing institutions there located. It is customary for the young or unmarried Hungarians to board at houses usually kept by one of their married countrymen. Goller and respondent each maintained such a boarding house, and the alleged crime was committed in the home of the former.
    Respondent, upon the night in question, visited Goller’s house at about 10 o’clock in the evening, in company with another man and his wife. Upon his arrival he was admitted to the living room, in which there were gathered at the time some eight or ten of Goller’s boarders. Respondent was given a seat at the table and a bottle of beer. Goller was not in the room at the time, but entered it shortly after, and demanded that those present should make less noise, saying, “ If you don’t keep still, you will get a licking.” Respondent apparently believed the remark addressed to him, for he said to Goller, “ You are mad at me.” Goller denied this, whereupon respondent asked Goller for some beer. Goller refused, and a dispute arose between the two men as to whether respondent had paid for the beer he had already had. Finally Goller ordered respondent to leave his house. The witnesses for the people do not agree as to the answer respondent made to this command. One witness says he replied: “Don’t be so crazy; I will go when I want to.” Another says his answer was, “I will go out myself.” All the witnesses for the people, however, agree that thereupon Goller assaulted the respondent, pushing him off the chair onto the floor, and thence into Goller’s bedroom, which was separated from the living room by curtains only; that Goller seized the chair and pursued respondent, striking or pushing him with it. Respondent then drew a revolver, and in the mélée which followed, the two men being within arm’s length of each other and fighting, the weapon was discharged three times. One shot only took effect in Goller’s elbow; the other two went wide. Respondent then left the house, gave his revolver to a friend upon the street, and left the city.
    The shooting occurred on the night of April 24th, and respondent absented himself from Kalamazoo until May 17th, when he returned and voluntarily surrendered himself to the sheriff. Here he was examined in the presence of the sheriff, the prosecutor, and others, and admitted his implication in the row, but claimed that he had acted only in self-defense, and had used his revolver as a club only; the discharges being accidental. He further claimed that after Goller had knocked him off the chair into the bedroom his (Goller’s) wife joined Goller in the assault.
   Brooke, J.

(after stating the facts). Error is assigned upon rulings as to the admissibility of evidence and upon the charge and refusals to charge. We will consider those only relating to the charge.

The learned trial judge premised his charge by a lengthy and correct definition of the major offense with which the respondent stood charged. He then added:

“ I read this for the purpose of showing you that, under the particular charge in the information, that if death had ensued, if this man had died from the effect of the shots, and all the other ingredients of the crime were there, that the death of that man would have been murder and not manslaughter, as I will call your attention to later on.”

It is, of course, true that, if the evidence in the case was such as to supply the necessary “ingredients” of murder, then, in the event of the death of the person assaulted, a murder has been committed. The difficulty with .this instruction is that the record is, in our opinion, absolutely barren of evidence which would have supported a verdict of murder, in case Goller had died from the effects of his wound. Here was a wordy dispute over a trivial matter, followed by a sudden affray in which respondent was first violently assaulted by the complaining witness. Had death ensued under the circumstances disclosed by the record in this case, the greatest crime of which respondent could have been convicted would have been manslaughter. He was clearly entitled to defend himself against assault of Goller, who, after ordering him to leave, threw him to the floor and into his bedroom, instead of towards the outside exit, and attacked him with a chair. The only question in the case is whether respondent in defending himself used unnecessary and unlawful force. That he did so might be inferred from his use of a deadly weapon, but if this inference could properly be drawn by the jury there is still lacking in the case evidence of the necessary elements of the crime of which he stands convicted.

Again the court charged:

“ Malice is either express or implied. Express malice is when one, with a sedate and deliberate mind and formed design, doth kill another, which formed design is evidenced by external circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. Neither shall he be guilty of a less crime who kills another in consequence of such a wilful act as shows him to be an enemy to mankind in general, as, going deliberately with a horse used to strike, or discharging a gun amongst a multitude of people. So, if a man resolve to kill the next person he meets, and do kill him, it is murder, although he knew him not, for it is universal malice. And it may be necessary here to observe that no provocation, however great, will extenuate or justify a homicide, where there is evidence of express malice. And in many cases where no malice is expressed or openly indicated the law will imply it. Thus, where a man wilfully poisons another, though no particular enmity can be proved. So if a man kill another suddenly, without any or without a considerable provocation, or if he kill an officer in the legal execution of his duty, or if, intending to do another felony, he undesignedly kill a man, in all these cases the law implies malice, and the offense is murder.”

This is no doubt a correct exposition of the law in a case in which it could properly be applied, but its pertinence in the case at bar is not apprehended. It may be, too, as claimed by respondent’s counsel, that the instruction that, “discharging a gun amongst a multitude of people” would afford the necessary implication of malice, misled the jury into believing that, merely because the gun was discharged in a room containing eight or ten people, the respondent must be convicted of the crime charged.

Error is assigned upon that part of the charge referring to the alleged confession of the respondent, made to the officers at the time of his voluntary surrender. We think the court erred in characterizing the statements there made as a confession. It is true respondent then admitted his participation in the affray, but he claimed to have acted in self-defense, and that the weapon was accidentally discharged. If true, and believed by the jury, he should have been acquitted. In any view we may take of it, it was not a confession of guilt.

The court further charged:

There has been evidence introduced to show that immediately after the trouble the respondent fled from the scene, and some time during the night departed and concealed himself for two weeks or more, and until such time as'the evidence shows he voluntarily appeared at the jail and gave himself up. The court instructs you that you have a right to consider such flight and subsequent concealment of respondent as evidence of his guilt.”

This was an erroneous instruction. Plight from the scene of a tragedy may be quite as consistent with innocence as with guilt. One, who in self-defense kills or maims another, may through ignorance of the law or through panic flee from the scene of his act, and yet be perfectly innocent. We think it would be a dangerous rule which would permit the jury to consider flight as substantive evidence of guilt.

The court charged further:

The question is, If Sam Goller had been killed at the time of the alleged assault, would Joe Oismadija, the defendant, have been guilty of murder ? In order to find him guilty of murder, the people would have to prove that he shot the complaining witness with malice aforethought, and with intent to kill the complaining witness, and the people would also have to show that the killing was premeditated by the defendant, and you could not find the defendant guilty if there was evidence to convince you beyond a reasonable doubt that he did not premeditate the crime, or that he did not intend to kill when the shots were fired by him.”

This was an obvious error, as it placed the burden of proof upon the respondent to convince the jury beyond a reasonable doubt that he did not premeditate the crime. The language of the court was taken from a request prepared by respondent’s counsel, but that fact does not cure the error. Respondent should not suffer for "the legal mistakes of his counsel. The reprehensible habit of carrying deadly weapons, which is too common with a certain class of our citizens, particularly those of foreign birth, is a fecund cause of trouble. To this habit respondent doubtless owes the plight in which he finds himself. Had he been unarmed, the affair would probably never have assumed a more serious aspect than simple assault and battery upon either side.

For the errors pointed out, the judgment is reversed, the respondent remanded to the custody of the sheriff of Kalamazoo county, and a new trial ordered.

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


text:
    PEOPLE v. HYMEN.
    Appeal and Error — Exceptions Before Sentence — Municipal Corporations — Criminal Law.
    The statute permitting criminal cases to be reviewed on exceptions before sentence (3 Comp. Laws, § 11964), does not apply to convictions under village ordinances.
    Exceptions before sentence from Genesee; Wisner, J.
    Submitted June 23, 1911.
    (Docket No. 119.)
    Decided October 2, 1911.
    Edward Hymen was convicted of violating a village ordinance.
    Exceptions dismissed.

      Bundell & Stockton, for appellant.

      Farley & Selby, for the people.
   Blair, J.

The respondent lives in the village of Olio, Genesee county, Mich., which is incorporated under Act No. 3 of the Public Acts of 1895 (1 Comp. Laws, §§ 27, 69 et seq.), and which has not, since the new Constitution of 1909, come under the home rule act (Act No. 278, Pub. Acts 1909). The village council passed an ordinance, section 1 of which provides that it shall be unlawful for any one owning a dog tp permit it to run at large in the streets or public places of the village of Clio, without first having obtained a license therefor, signed by the village president and issued by the village clerk. Sections 2, 3, and 4 provide the manner of procuring the license, the time for which it shall be valid, fees to be paid, tag to be used, etc.

The respondent owned a dog, on which he had paid the dog tax to the township treasurer, which, at the date set forth in the complaint, was running at large in the streets of the village of Clio, and for which the respondent had not procured the license required by the ordinance. He was arrested under the ordinance, tried, and convicted in justice’s court, appealed to the circuit court, where a trial, without a jury, on stipulation of facts, was had, found guilty by the judge of the circuit court, and the case is brought here on exceptions alleged before sentence.

The statute permitting criminal cases to be reviewed upon exceptions before sentence does not apply to convictions under ordinances. People v. Smith, 146 Mich. 193 (109 N. W. 411).

The proceeding is dismissed, and the court below is advised to proceed to judgment. ’

Moore, MoAlvay, Brooke, and Stone, JJ., concurred.


author: Stone, J.

text:
    PIOWATY v. SHELDON.
    1. Sales — Damages — Breach oe Contract — Expenses oe Resale — Recoupment.
    In an action for breach of a contract to sell plaintiff apples of agreed sizes and quality, in which action defendant claimed damages for the purchaser’s refusal to accept apples tendered in accordance with the agreement, it was competent to receive in evidence the expenses and charges of insurance, storage, and of a resale by defendant’s agent at the nearest available market.
    2. Same.
    Where the property is in the possession of the seller, he may, without committing a breach of the contract, resell the goods if the original buyer refuses, without justifiable cause, to receive and pay for them, and may recover the difference between the contract price and net proceeds of such sale after deducting the expenses, interest, and charges of resale.
    3. Same — Diligence.
    The vendor is bound to exercise good faith and reasonable diligence to effect a resale at the highest price.
    4 Same.
    The cost of insurance is a proper expense thereof.
    5. Same — Market—Resale.
    The seller may hold the goods for a market or seek a market within a reasonable time, if there was none at the time and place of breach.
    6. Evidence — Books—Secondary Evidence.
    No error was committed in receiving in evidence a statement made out by the defendant’s agent who resold the goods, showing the items of charge and expense, which the witness had sworn to and stated were taken from his books, the statement having been used by the parties as part of the res gestee, and the contents of the statement having been brought out on cross-examination by appellant’s attorney.
    7. Sales — Contracts—Acceptance—Instructions to Jury.
    The trial court did not err in refusing to charge the jury that, unless defendant furnished and packed apples of a particular grade and quality, as required by the contraot, he broke his contraot, since it was defendant’s claim that plaintiff sent on an inspector who examined and-, accepted the goods as packed by plaintiff; this claim not being covered by the request so refused.
    8. Same — Damages.
    There was evidence supporting the charge of the court as to the damages defendant was entitled to reoover; and the verdiot was not so excessive as to require the granting of a new trial.
    Error to Sanilac; Beach, J.
    Submitted June 26, 1911.
    (Docket No. 48.)
    Decided October 2, 1911.
    Assumpsit by Max Piowaty against Watson H. Sheldon for breach of contract. Defendant gave notice of recoupment. Judgment for defendant of $2,961.20. Plaintiff brings error.
    Affirmed.

      Moore & Wilson (Maurice W. Seitz, of counsel), for appellant.

      William H. Aitkin and W. H. Burgess, for appellee.
   Stone, J.

The plaintiff, a jobber of fruits and vegetables, residing in the city of Chicago, brought this suit against the defendant, a buyer and jobber of produce, residing at Lexington, in the county of Sanilac, in this State, to recover damages for the alleged breach of and a claimed penalty withheld by the defendant, under a contract in the words and figures following:

“Lexington, Sept. 13, 1907.
“W. Sheldon, of Lexington, Michigan, sold to M. Piowaty, of Chicago, 111., the whole output of all winter and fall apples for this season.
“The No. 1 apples should be packed free from worms and smooth stock, packed down to 2J inches. The No. 2 apples packed down to two inches with blow worms and not any small scabby apples. Should be put in uniform barrels.
“M. Piowaty paid on this contract $500.00 and pays for each car by presentation of B. of L. and bill to Lexington State Bank where the bank pay to Sheldon. The $500.00 stays for deposit until the last car shipped and Mr. Sheldon stands to this agreement.
“If we cannot get through rates in ten to 25 days this contract is void.
“M. Plow AT Y.
“W. H. Sheldon.”

It is undisputed that the price of the apples was $3 per barrel.

Shortly after the date of the contract the defendant began shipment to plaintiff of certain apples, which were shipped to customers of the plaintiff in St. Paul, Kansas City, and Minneapolis. Immediately upon the arrival of these apples at the various points of destination, complaints were made by the purchasers to the plaintiff touching the character of the apples, and refusing to accept them. Plaintiff claims that he investigated these various complaints, and, finding them to be well founded, notified defendant immediately, and refused to accept further apples. Plaintiff claims that he had no opportunity of inspecting these apples prior to the shipment by the defendant until their arrival at destination.

This is denied by the defendant, who claims that the apples were to be inspected and paid for at Lexington, and that plaintiff had an inspector on the ground who had every opportunity to inspect, and, in fact, did so. The plaintiff also claims that the apples were improperly packed in the barrels, being loose and not pressed down, and that it became necessary to repack all of the apples that were sent to Chicago on account of this condition. This was also denied by the defendant, who claims that the apples were properly packed. The plaintiff claims that in repacking he discovered that the No. 1 apples included apples with side worms, were full of undersized apples with lots of decay, and that the so-called No. 2 apples were really cull or cider apples. This claim was also denied by defendant, and there was considerable testimony pro and con as to the quality of the apples. The plaintiff received from defendant, before refusing to take further apples, about 1,400 barrels, which he claims he sold at a loss of $915.

It is undisputed that the plaintiff, at the time of making the contract, paid to defendant, Sheldon, in accordance with the terms thereof, the sum of $500, no portion of which was ever received back by him. At the time the plaintiff made the contract with defendant, he claims he had made arrangements for the sale of the entire season’s apples contracted for from defendant at an advance of 35 cents per barrel, net. The apples which were packed by defendant under this contract were purchased by the defendant from various farmers in Sanilac county, covering a territory of a number of miles on either side of the village of Lexington; and the apples were being packed in the various orchards at the same time by different packers in defendant’s employ. The plaintiff claims that to assist the defendant in packing the apples he sent an employe, a Mr. Moore, from Chicago, to see that the apples were packed properly in the orchards, and he claims that Moore was not there in the capacity of an inspector, and had nothing to do with inspection; while the defendant gave testimony tending to show that the plaintiff had promised to send an inspector, and that Moore came and acted in that capacity, with the knowledge and under the instruction of the plaintiff. There is shown in the record a good deal of testimony as to the conduct of Moore, as to the complaints he made to the packers and to the defendant, and that some apples were rejected by Moore.

The plaintiff offered evidence tending to show the breach of the contract in the particulars named, and the damage which he had sustained. The defendant,, under a notice attached to his plea claiming damages by way of recoupment, offered evidence tending to show that the contract had been kept and performed by him, and that the plaintiff was to accept and pay for these apples at Lexington; and that the plaintiff himself was guilty of a breach of the contract in refusing to accept the remainder of the apples.

It appears that after the refusal on the part of the plaintiff to receive any more apples under the contract, because of the defective quality, the defendant notified the plaintiff that the remainder of the apples were ready for shipment, and that he should hold the plaintiff for any loss-which he sustained by reason of the plaintiff’s failure to accept the apples, and that he would go ahead and do the best he could with them. And thereupon the defendant, shipped to one Jacob Smith, of Detroit, who was a commission broker, 1,466 barrels of apples, which he claimed, were the balance under the contract with plaintiff; and, in. addition, he also shipped to said Smith 81 barrels of cull apples, which had been frozen.

The defendant gave testimony tending to show that there was a panic in the late fall of 1907, and what is termed a “slump in the apple market;” that there was: no market for apples at Lexington, and that the nearest market was the city of Detroit; that when he shipped the apples to Smith he instructed him to dispose of them as soon as he could, and for the best price obtainable. He offered evidence tending to show that it was impossible to sell the apples in the fall of 1907, in the city of Detroit, but that the said Smith was able to dispose of the 81 barrels of cull apples. The 1,466 barrels of apples were stored by the witness Smith in the basement of the Biddle House in Detroit, where they were kept until about the 1st of April, when they were taken out and sold to various persons.

The man Smith was a witness for the defendant. He testified that he kept no record, showing the amount realized for the sale of one car load of the apples. At the time of his settlement with the defendant, he produced what he represented to be a statement of his account of the sale, which, upon his re-examination by the defendant, was offered in evidence, and marked “Exhibit 24.” This exhibit was as follows:

Watson Sheldon,

In Account with Jacob Smith.

Dr. Cr.

By 1,466 barrels of apples............. $1,575 33

To Storage at $20.00 per month________ $100 00

Insurance................■......... 35 40

Cartage.......................... 57 20

Labor............................. 22 75

Freight paid...................... 187 65

Commissions...................... 157 53

Check to balance..................1,014 80

Total..........................$1,575 33 $1,575 33

Upon the direct examination of the witness Smith, he testified to the facts appearing upon the face of the statement, and the only reference he made to this statement was in the following words:

" I made a statement to Mr. Sheldon in writing of the apples and their disposition.”

He then testified as to the quantity, and as to his conduct in connection therewith. He testified to the expense of storage, the insurance, and the expense of getting the apples to the warehouse from the dock, the cartage, labor charge, freight, and his own charge in handling the apples. Upon his cross-examination, he was interrogated more minutely as to the statement. He testified that the same was taken from his sales book, which sales book consisted of a blotter. His attention was called to his books, and he testified generally as to the efforts which he made to sell the apples. He testified that at the time he settled with Mr. Sheldon they both had access to the books and freight bills, and the manner in which the statement was made; that it was made from the actual sales of the apples as they showed on the book, and he swore to the correctness of this statement. The defendant, on re-examination, offered the statement in evidence. It was objected to by plaintiff’s counsel, on the ground that it appeared to be a transcript of the record of a book which was not produced in evidence, not made at the time the sale was made, but a summary made long after. It was received in evidence over and against the objection and exception of plaintiff’s counsel.

The trial resulted in a verdict and judgment for the defendant in the sum of $2,961.20. There was a motion for a new trial upon the grounds that the verdict was against the law and evidence; that there was no testimony to support the verdict; that the verdict was excessive; that the court erred in receiving the testimony of the witness Smith touching the sale of the apples; and upon the ground of newly discovered evidence. The motion was denied by the circuit judge, and reasons filed therefor, which were duly excepted to by the plaintiff. The plaintiff has brought the case here upon writ of error. There are ten assignments of error.

(1) The first assignment of error is to the effect that the court erred in overruling the objection of - plaintiff’s counsel to the introduction of testimony relative to the claimed charges and expenses that defendant alleges he was put to in the storage and insurance of the apples in question.

(2) That the court erred in overruling plaintiff’s objection to the introduction of .the testimony of the witness Smith, relative to the statement used by defendant and Smith, upon which statement the said Smith fixed the claimed amount that had been received by him for the apples sold; the original books of entry not having been produced, and the statement having been made long after the transaction.

(3) The third, fourth, fifth, sixth, seventh, and eighth assignments of error are based upon the refusal to give plaintiff’s requests to charge.

(4) The ninth assignment of error complains of the charge relative to the amount of damage that might be awarded to defendant because of the fact that there was no competent testimony in said cause to warrant such charge.

(5) The tenth assignment alleges error in refusing to grant plaintiff’s motion for a new trial in said cause, for the reasons: (a) That the evidence on the part of the defendant was insufficient to go to the jury. (6) That there was no testimony whatsoever to support the verdict as to defendant’s damages, (c) Because the verdict was excessive.

Plaintiff’s requests to charge were as follows:

“(1) The jury are instructed that if the defendant did not ship the grade and quality of apples provided for in the contract, plaintiff would have the right to dispose of the apples so received by him (the said plaintiff), and maintain an action against the defendant for the loss suffered upon said apples, growing out of said sale, because it became and was the duty of the plaintiff to do everything in his power to reduce the damages to the defendant growing out of said breach of contract by the defendant.
“(2) The jury are instructed that if you should find that the defendant did not furnish and ship to plaintiff apples of the grade and quality provided for by the terms of the contract this would constitute a breach of the contract on the part of the defendant, and plaintiff would have the right to cancel the contract, refuse the balance of the apples, and recover the damages which the evidence shows that the plaintiff has sustained.
“(3) The jury are instructed that the defendant, under the terms of the contract, was required to furnish and pack apples of a particular grade and quality called for by the contract, and before the defendant is entitled to recover from the plaintiff the defendant must show that he did furnish and pack apples of the kind and quality called for by the contract, and in all other respects complied with the contract, and should you find that he (the defendant) did not pack and furnish apples called for by the terms of the contract then the defendant was guilty of a breach of the contract and the plaintiff (Mr. Piowaty) is entitled to recover.
“ (4) The jury are instructed that the plaintiff (Mr. Piowaty) cannot be bound by the actions, conversations, or doings of Mr. Moore, unless it is shown by the evidence that Mr. Moore was acting strictly within the scope of authority given him by Mr. Piowaty, and Mr. Moore had no authority to accept or reject apples not in accordance with the contract, unless you find from the weight of evidence that Mr. Piowaty gave him such authority.
‘'(5) Should you find the evidence that the defendant or his packer placed apples in barrels that were not called for or permitted by the terms of the contract between the plaintiff and the defendant, then such act or acts on the part of the defendant or his packers constitutes a breach of contract upon the part of the defendant, and the plaintiff (Mr. Piowaty) was justified and had the right to rescind the contract and refuse to take any more apples, and is entitled to recover the balance of the deposit money and the damage he has sustained.
“(6) The jury are instructed that the plaintiff had the right to rely upon the express terms of the contract, so far as the grade and quality of the apples therein described were concerned, and a right to insist that the defendant would carry out the contract and furnish the grade and quality of apples called for by the contract, and it became and was the duty of the defendant' (Mr. Sheldon) to furnish the grade and quality of apples called for by the contract, irrespective of any inspection.”

We will consider the assignments of error in their order, prefacing such consideration with the remark that a careful examination of the record discloses that the case presented mainly a question of fact; that the same seems to have been carefully tried, and submitted to the jury upon a full and well-considered charge.

1. Taking up the first assignment of error, we are unable to agree with counsel for the plaintiff that the defendant was not entitled to charge the plaintiff with the expenses in connection with the storage and insurance of the apples in question, if entitled to recover at all. The case was fully submitted to the jury on the facts relating to the breach of this contract, in the particulars claimed by the plaintiff, and on the theory that unless plaintiff had broken the contract the defendant could recover nothing under his claim for recoupment in damages, and that in such case, if plaintiff showed a breach of the contract on the part of the defendant, the plaintiff was entitled to recover his damages under the evidence in the case. We find no error in this portion of the charge, but think that the same finds support in the following authorities: In 35 Cyc., at pages 520, 521, and 522, the rule in this country is stated as follows:

“ In the United States the rule is well settled that where the goods are in his possession the seller may, without committing a breach of the contract, resell the goods, if the original buyer refuses without justifiable cause to receive and pay for them, and may recover the loss sustained in the difference between the contract price and the price received on resale, and the expenses of making the sale, and, in addition, the cost of storage, interest, and an allowance for his time as agent in reselling. In making such resale, the seller acts as agent of the buyer, but not in such a literal sense as to confer on the buyer any title or interest in the property.”

Many cases are cited, including Doty v. Nixon, 109 Mich. 266 (67 N. W. 116); Van Den Bosch v. Bouwman, 138 Mich. 624 (101 N. W. 832, 110 Am. St. Rep. 336); Kellogg v. Frohlich, 139 Mich. 612 (102 N. W. 1057). The vendor is bound to the exercise of good faith and reasonable diligence to effect a sale at the best price. Smith v. Pettee, 70 N. Y. 13; Rosenbaum v. Weeden, Johnson & Co., 18 Grat. (Va.) 785 (98 Am. Dec. 737); Hill v. McKay, 94 Cal. 5 (29 Pac. 406); North Georgia Milling Co. v. Elevator Co., 130 Ga. 113 (60 S. E. 258, 24 L. R. A. [N. S.] 235). As to right to insure, see Lewis v. Greider, 51 N. Y. 231. We do not understand that the rule laid down in Tustin Fruit Ass’n v. Fruit Co., 53 Pac. 693, cited by plaintiff, differs from the general trend of the authorities on the subject.

If there was no market value at the time and place of breach, then the vendor might hold for or seek a market within a reasonable time. Williams v. Robb, 104 Mich. 242 (62 N. W. 352); 2 Mechem on Sales, § 1690; Henry v. Hobbs, 165 Mich. 183 (130 N. W. 616); 3 Sutherland on Damages, pp. 1855, 1858.

Did the court err in admitting in evidence the statement made by the witness Smith under the circumstances of the case ? In this connection, it is important to note the sequence in which the statement in question was offered and received in evidence. An examination of the record discloses that Mr. Smith testified in his direct examination to the facts appearing upon the face of the statement, and independent of it. When he was cross-examined, he was asked about the contents of the statement, and he said:

“ The statement which I rendered to Mr. Sheldon was taken from the sales — from my books. This shows I received for the 1,466 barrels $1,575.”

Then counsel for the plaintiff proceeded to examine the witness at length with reference to the contents of the sales books then in court, from which this statement was made. And he testified that he believed the statement to be correct. On redirect examination he testified more fully as to how and when the statement was made up, and the same was offered in evidence by the defendant. It .is apparent, therefore, that the contents of this statement were called out in detail by appellant in his cross-examination. We think there was no error in receiving the same in evidence, but that the ruling finds support in numerous decisions of this court. Pierce v. Rehfuss, 35 Mich. 53; Smith v. Jackson, 113 Mich. 511 (71 N. W. 843); Blitz v. Roach, 121 Mich. 135 (79 N. W. 1095).

The statement appears to have been prepared at the time of the close of the dealing between the witness Smith and the defendant. It was a contemporaneous statement used by them on that occasion, and we think it was admissible in connection with the testimony of both Smith and the defendant, as a part of the res gestee of the transaction. Raynor v. Norton, 31 Mich. 210; Fish v. Adams, 37 Mich. 598; Hudnutt v. Comstock, 50 Mich. 596-601 (16 N. W. 157); Smith v. Pickands, 148 Mich. 558 (112 N. W. 122).

We have examined the plaintiff’s requests to charge. The first and second were in substance given in the general charge of the court. The third request should not have been given, because it ignores the claim of the defendant, which was supported by testimony, that the man Moore was an inspector for the plaintiff, who accepted the apples at Lexington, when they were paid for. The fourth request was in substance covered by the charge of the court. The fifth request was properly refused for the same reason that the third request was refused, and the sixth was properly refused for the same reason.

The ninth assignment of error complains of the charge of the court relative to the amount of damages that might be awarded to the defendant, and claims that there was no competent testimony in the case to warrant such charge. We cannot agree with plaintiff’s counsel in this contention. We think that the defendant’s evidence tended to show at least that he acted in good faith in the sale and disposition of the apples which the plaintiff refused to take, and that if the jury found that the plaintiff had broken the contract himself, and had refused to receive the 1,466 barrels of apples, that the defendant had the right to dispose of the same, and to make the charges which were made, as shown in Exhibit 24. The law upon the subject of the right and duty of the party under such circumstances is, we think, well settled, and we cannot agree with the plaintiff’s counsel that there was no evidence in the case to warrant the charge of the court. The court said upon that subject:

“You may consider the evidence of sales made by Mr. Sheldon of the apples remaining, in regard to the market price, provided he used due diligence to market the same and to obtain the market value, or used his best endeavors to obtain the market value. It was his duty to save as much loss as possible. In determining the question of diligence, the season of the year, the facilities for shipment, so far as disclosed by the evidence, and the condition of the market may be taken into consideration by you. It is for you to determine the market value of the apples refused from all the testimony as to the markets in the case.”

See the authorities cited upon the first point.

The tenth assignment of error complains of the refusal of the court to grant a new trial for the reasons above stated. Upon this subject it is sufficient to say we think that there was evidence to go to the jury, and that there was testimony to support the verdict, if believed by the jury. That the verdict was not excessive, in view of the evidence on behalf of the defendant, is demonstrated by an examination of the record.

We find no reversible error in the case, and the judgment below is affirmed.

Ostrander, C. J., and Bird, Moore, and McAlvay, JJ., concurred.


author: Stóne, J.

text:
    McCAULEY v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Contributory Negligence — Railroads — Dangerous Place.
    A car repairer who went between the locomotive and coach of a passenger train while the defendant’s locomotives were switching and moving the cars about, and making up the train, could not recover for injuries sustained by him while trying to adjust the coupler when it appeared that he knew of the danger and unnecessarily went into the dangerous situation.

    2. Same — Discovered Negligence — Fellow-Servant.
    If there was any negligence on the part of defendant’s servants in not preventing further movement of the train after discovering ^plaintiff’s danger, and after he had been caught between the buffers, it was negligence of a fellow-servant.
    3. Same.
    The act of giving notice to an oncoming engine not to run against the cars between which plaintiff was caught was not one of the nondelegable duties of the master.

      Error to Wayne; Murfin, J.
    Submitted June 36,1911.
    (Docket No. 50.)
    Decided October 3, 1911.
    Case by John Howell McCauley against the Michigan Central Railroad Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of’error.
    Affirmed.

      Thomas L. Dalton (James S. Doyle, of counsel), for appellant.

      J. W. Dohany {Henry Russel and Frank E. Robson, of counsel), for appellee.

       Assumption of obvious risks of hazardous employment, see note in 1 L. R. A. (N. S.) 272.

   Stóne, J.

This is an action on the case to recover damages for a personal injury sustained by the plaintiff, resulting in the amputation of his left arm, while in the employ of the defendant at its passenger station in the city of Detroit. The plaintiff was employed as a car repairer in the month of June, 1907. He was first assigned to do car repairing work on what is known as the “repair track,” at the passenger station of defendant. After plaintiff had been working on the repair track for some months, he was sent by the assistant foreman of the repairers to help the air man on track No. 5. This track was one of the main tracks running into the station, and was used by arriving and departing trains. Trains were broken up and made up on this track, coaches examined for defects, and slight repairs were made there. The plaintiff assisted in uncoupling the air hose and engine, coupling the safety chains, and such work. He was injured while working on this track, on December 18, 1907. There was a sleeping car on this track next to the deadwood at the time. A train had arrived on this track, and the engine had pulled in close to the sleeping car. This train was to be broken up, and another train was to be made up there. This train was a regular scheduled train of the defendant, known as the “Wolverine.” Some of the coaches of the train that had arrived were to be used, some taken off, and others added to makeup the “Wolverine.” The breaking and making up of these two trains required about 15 minutes. Several engines were used in doing the work, and considerable expedition was required.

Just prior to the time the plaintiff was injured, he had gone up to the head of the train to cut off the engine, as he had been directed to do. He testified that he pulled up the lever at the side of the coach to raise the coupling pin, so that when the train pulled out of the station the incoming engine would be uncoupled; that he found, however, as soon as he let go the lever the pin would drop down, and the result would be that the coupler would lock; that he then asked the engineer to pull up while he had the lever raised, but that the engine couldn’t go any further on account of the sleeping car; that he then stepped back and looked down the track, as far as the curve, which was about 200 to 250 feet west, and saw no engine coming; that he then stepped in between the coach and the engine to close the coupler with his hand, so that the jaw would be out of position to couple. While he was attempting to do this, an engine on the other or west end of the train pushed the train forward; that he felt the train sliding up on him, and attempted to jerk out, but his left forearm and the fingers of his right hand were caught and held between the buffers of the coach and engine, and he could not release himself; that he was not seriously injured, and was perfectly conscious, and would not have suffered more than a bruise, if further motion of the train had been prevented. The testimony of the plaintiff was that he remained caught in that position for about five minutes. Other testimony of plaintiff’s witnesses was to the effect that he remained there from one to three minutes. The plaintiff testified that he made an outcry for help, and that as soon as he was heard a crowd of employés and passengers gathered there, and that he told them not to let the other engine come in, referring to the second engine, and not the one that had pinned him in that position. Attempts were made to release him by driving up the coupler pin, but were not successful, and while he was held there, and unable to extricate himself, the second engine backed the train onto his arm, breaking it; the lever was raised, the strain released, and the plaintiff dropped out. The plaintiff’s evidence showed that it was the second movement of the train which caused the injury to the plaintiff’s arm and made it necessary to amputate it. The plaintiff testified that one Williams had charge of the operating of the trains in and out of the station, and gave the orders as to the making up of the trains, and had power to discharge men in the yard; that Williams was present when plaintiff was fastened between the engine and car, and that plaintiff called to Williams, saying: “Don’t let that engine come in again; stop that engine coming in; don’t let the engine come in ” (referring to the switch engine) ; and that Williams did not do anything but keep the crowd back, and no steps were taken to stop the engine which caused the injury. It appeared that the plaintiff had worked for the Duluth, South Shore & Atlantic Railroad for about five years coach cleaning and making slight repairs, at L’Anse and Michigamme, and came from there direct to the defendant. He had also worked previously in a planing mill at Sault Ste. Marie. At the time of the injury complained of, the plaintiff was 49 years of age. That the plaintiff fully understood and appreciated the danger of going between the engine and the car is made clear by his own testimony, as follows:

“ I knew of this switching being done every day on the end of the train. It was done every day just the same. I knew of this; they always do it as fast as they can. The train generally is remade and gets out again in 10 to 15 minutes after it gets in. From the time the train arrives until it departs, there is something being done, but not steady on that track, either by pulling the coaches out or shoving others in all the time in reference to making up that train. They are coming in and out all the time in that intervening 10 or 15 minutes. They are working steady on the one train, and all the coaches are pulled in or out on this one track. The train is entirely broken up, from the time it arrives at Detroit until it leaves. They used automatic couplers on the D. S. S. & A. R. when I worked there. These would be worked by an operation at the side of the car. The knuckle of the coupler swings around on a bolt. I may have uncoupled an engine before going with the Michigan Central, but I didn’t make a habit of it; it was very seldom. I was around the ends of the cars and saw the couplers; they seemed to me to be all the same. * * * I had noticed these trains come in and out and the making up of these trains, and the engine coming in on track 5 from the time I first went down there; and I knew from the time that train arrived until it left there was always switching being done on it. * * *
“Q. Had you in the time you worked there previous to December, 1907, ever passed in between the buffet car and the engine after it was separated ?
“A. Yes, sir; I had.
“Q. And you had done that a number of times ?
“A. Yes; but there is a wide space between them.
“Q. The question is, had you done it a number of times ?
“A. I don’t know as I ever done it, but I assume I did; working around cars you are doing lots of things you don’t remember.
“Q. Do you know whether every time you went through there there was a wide space ?
“A. I could not say.
“ Q. Well, if there was only a narrow space, you would not attempt to go through ?
“A. No; I would not.
“Q. And if there was only a narrow space you would not attempt to get in between the buffer, would you ?
“A. I would not.
C‘Q. Why would you not ?
“A. On account of the danger.
*‘Q. And that danger is because you knew there was switching being done on the other end of the train?
“A. Yes, sir. * * *
“Q. When you were reaching in there or started to go in there to close the knuckles with your left hand, you were not looking at anything else only that knuckle?
“A. That is all.
“Q. And at the time you were doing that, from the previous experience which you had around that train, did you not think or know that there might be switching on the west end of that train going on at the same time?
“A. I looked to see before I went in if there was, and there was no engine there. Before I went in, I stepped out on the platform, and looked down towards the west end of the train. * * *
“Q. When you went out to look, what did you expect was coming back onto that train ?
“A. I expected the engine.
**Q. Just the engine alone?
“A. Yes, sir.
“Q. You expected that engine was coming in?
“A. I did.
“Q. You went out to look to see whether it was coming in or not ?
“A. Yes, sir.
“Q. You knew it would shortly come in ?
“A. I did.
“Q. It wasn’t in on the end of the train when you looked ?
“A. No.”

At the close of the plaintiff’s case, counsel for defendant moved the court to direct a verdict for the defendant for the reasons following:

First. That there was no showing of any negligence on the part of the defendant which caused the injury.

Second. That the plaintiff assumed the risk.

Third. That plaintiff was guilty of contributory negligence.

The motion was granted, and a judgment for the defendant was entered; the trial judge having charged that if there was* any negligence, after the plaintiff was found in a place of danger, it was the negligence of fellow-servants, and that Williams was, under the evidence, a fellow-servant. The plaintiff has brought the case here, and error is assigned upon the charge, and also upon certain rulings relating to the introduction of evidence.

After a perusal of this record, it seems very clear to us that the plaintiff was familiar with the situation; it appearing that for three months he had been employed about the same line of work; that he voluntarily and unnecessarily went into a dangerous place where he was caught; and that he was guilty of contributory negligence in so doing. It is incredible that he did not know that he would be in peril in thus exposing himself to danger.

But it is urged by the plaintiff that, though we should, find that the plaintiff was guilty of contributory negligence in placing himself where he was caught between the engine and car, this would not bar a recovery, and that the doctrine of last clear chance or discovered negligence should be applied. The difficulty in the application of this doctrine is that, if there was any negligence after the plaintiff was discovered in a place of peril, it was the negligence of fellow-servants, under the repeated decisions of this court. While it may seem almost inexplicable that the second engine was not stopped, and the serious injury of the plaintiff prevented, yet we cannot say that everybody present did not do what he believed to be the most effective thing to extricate the plaintiff from his perilous situation.

But if there was any negligence it was not the negligence of the defendant. All of the persons working about the train, as shown by the evidence, were fellow-servants of the plaintiff; and if there was any negligence on the part of any of them, resulting in the injury of the plaintiff, he could not recover therefor against the defendant. The general rule in this State, as repeatedly held by us, is that—

“All who serve the same master, work under the same control, derive authority and compensation from the same common source and are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants.” Adams v. Iron Cliffs Co., 78 Mich. 271-288 (44 N. W. 270, 276 [18 Am. St. Rep. 441]).

See, also, Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Schroeder v. Rail road Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354); Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097); Morch v. Railway Co., 113 Mich. 154 (71 N. W. 464); Erickson v. Mining Co., 130 Mich. 476 (90 N. W. 291); Page v. Pure Food Co., 142 Mich. 17 (105 N. W. 72); Amoe v. Engineering Works, 151 Mich. 212 (114 N. W. 1010); Corey v. Iron Co., 151 Mich. 558 (115 N. W. 737); Ferry v. Gas Producer Co., 153 Mich. 266 (116 N. W. 1073); Stever v. Railroad Co., 160 Mich. 207 (125 N. W. 47); Peters v. Railroad Co., 165 Mich. 217 (130 N. W. 602). The act which it is claimed that Williams neglected to perform — that of giving notice to the oncoming engine — was delegable, and such a one as might be, and generally is, entrusted to subordinates. In other words, the duty, if any, was a delegable duty.

We have examined the assignments of error relating to the rulings upon the introduction of testimony, and we find no reversible error in the rulings of the trial court.

We are of opinion that the circuit judge reached the correct conclusion in the case, and the judgment below is affirmed.

Ostrander, O. J., and Bird, Moore, and MoAlvay, JJ., concurred.


author: Moore, J.

text:
    FREY v. COMMON COUNCIL OF THE CITY OF JACKSON.
    Intoxicating Liquors — Mandamus—License—Ordinances.
    Whether an ordinance of the city of Jackson limiting the number of saloons to one for every thousand inhabitants was valid need not be determined where a larger number of applications than could be granted under the general liquor law (Act No. 291, Pub. Acts 1909) was filed with the clerk of the city of Jackson, for the common council was entitled to determine which application should be rejected, and one of the applicants could not compel the council by proceedings in mandamus to approve his application, which was rejected because of the character of the relator’s business and of his customers.
    Certiorari to Jackson; Parkinson, J.
    Submitted June 27, 1911.
    (Calendar No. 24,654.)
    Decided October 2, 1911.
    Mandamus by Edward Prey against the common council of the city of Jackson to compel respondent to grant relator’s application for a license to engage in the retail liquor trade. An order denying the writ is reviewed by relator on certiorari.
    Affirmed.

      Frank L. Blackman, for relator.

      John F. Henigan, for respondent.
   Moore, J.

The relator applied to respondent for a license to keep a saloon, and his application was refused. The relator then asked the circuit court of Jackson county to issue a writ of mandamus to the common council of the city of Jackson, “requiring said common council to meet within a reasonable time for the purpose of considering and acting upon said application, and, if the same is in due form, to approve said application.” The mandamus was denied. The case,is brought to this court by certiorari.

The record discloses that Jackson was a local-option county from the spring of 1909 until the spring of 1911. The relator’s petition shows that on April 5, 1911, he filed an application for a license to carry on the saloon business at Jackson, selling intoxicating liquors at retail; that there were 65 applicants; that on the 6th of April an ordinance was passed, taking effect April 36th,' limiting the number of saloons in Jackson to 31.

“Your petitioner further shows that he is informed and believes that his application for a retail liquor dealer’s license was rejected solely because of the passage of the said ordinance.”

The petitioner claims the ordinance is invalid.

In the return of the respondent, it is claimed the ordinance is valid, but it is denied that the sole reason for rejecting relator’s petition was because of the passage of the ordinance. It is returned:

“ In answer to paragraph 13, this respondent denies that relator’s application for a retail dealer’s license was rejected solely because of the passage of the said ordinance, and this respondent says in this connection that the fact with reference to the rejection by it of relator’s application is as follows: That prior to April 15, 1911 — that is to say, on or before April 15, 1911 — there had been filed with the city recorder of the city of Jackson 65 applications for retail liquor licenses in the city of Jackson.”

That Jackson had a population at the last census of 31,433, and that the maximum number of saloons for which licenses could be issued was 63; that respondent consulted with the chief of police, and—

“ Did this in good faith, with a desire to be fair with each of the applicants, and that it was informed at the time,’ which information it believes to be true, and advised by the police commissioners and chief of police, that the place of business theretofore conducted by relator for two years previous was a place of assemblage for disreputable and intoxicated people; that there had been fighting in his place, and that it was a place of resort for bums and toughs, and people who are in the habit of getting intoxicated; and that to some extent this information and these facts swayed this respondent in refusing the application.”

Upon this record we think it unnecessary to decide whether the ordinance is valid. If it is valid, relator has no standing in court. If the general liquor law was in force, so that relator was entitled to file his application for a license and have it passed upon, then the respondent had the right, as the number of applicants exceeded the maximum number to whom licenses might be issued, to determine which of the applications should be granted. Section 39, Act No. 291, Pub. Acts 1909.

The order of the circuit court, denying the writ of mandamus, is affirmed, with costs.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    GRIMME v. GENERAL COUNCIL OF THE FRATERNAL AID ASSOCIATION.
    1. Evidence — Hearsay—Insurance—Defense of Suicide.
    In an action on an insurance policy, in which the defense was suicide, and it was claimed that deceased had been short in accounts with his principal, who had discovered the discrepancy, testimony as to facts and amounts learned by a witness from persons who had paid money to deceased was hearsay and correctly excluded.
    2. Same — Execution of Written Instruments — Policy of Life Insurance — Statutes.
    The policy of life insurance issued by the Fraternal Aid Association was admissible in evidence without proof of its execution, in an action against the General Council of the Fraternal Aid Association, which appeared as party defendant, and did not deny the execution of the certificate under oath, as required by Circuit Court Rule 8, where a copy of the policy was annexed to plaintiff’s declaration, and no plea in abatement setting up the correct name of defendant was filed. 3 Comp. Laws, § 10473.
    3. Trial — Special Questions — Jury—Insurance.
    It was not error to refuse to submit to the jury, as not controlling, three special questions; whether deceased had certain checks protested, whether he had collected moneys for his principal and was unable to pay them, and whether he wrote a letter to his son, as certain witnesses testified, relating to his death: the jury having found, in answer to another question, that the insured did not commit suicide.
    4. Same — Witnesses—Remarks oe Counsel.
    Prejudicial error was not committed by plaintiff’s attorneys charging a witness with making false statements during the progress of cross-examination, in view of the prompt interference and correction by the court of counsel.
    5. Same — Saving Questions eor Review. ,
    The court, on appeal, will not pass upon alleged improper argument which the attorney denied making, which the court did not hear, and which was not taken down by the stenographer.
    6. Same.
    Nor will it reverse the judgment because plaintiff’s attorney, in arguing the case, said, “Your verdict will be mine; but I believe as I stand here today and the man that cannot raise his voice himself, but sleeps over in the little churchyard yonder, has a right by his weeping wife, his widow, to ask you, to ask you, gentlemen, to render under your oath a righteous verdict and give us,” etc.
    Error to Berrien; Ooolidge, J.
    Submitted June 27, 1911.
    (Docket No. 106.)
    Decided October 2, 1911.
    Assumpsit by Ella L. Grimme against the General Council of the Fraternal Aid Association on a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cady & Andrews, for appellant.

      John J. Sterling, for appellee.
   Moore, J.

The plaintiff is the widow of Gustav C. Grimme. There was issued to him, January 28,1909, an insurance policy. Mrs. Grimme was named as the beneficiary therein. Mr. Grimme died November 2, 1909. The insurance company declined to pay the policy. Plaintiff commenced suit by declaration upon the policy, and attached thereto a copy of the policy, with notice to appear and plead. The defendant pleaded the general issue, and gave notice thereunder that deceased committed suicide, thus relieving the insurance company of any liability. The case was tried before a jury, which returned a verdict in favor of the plaintiff. This verdict was set aside by the trial judge. A new trial was had, and the jury again returned a verdict in favor of the plaintiff. A motion was again made for a new trial, which motion was overruled. The case is brought here by writ of error.

Five requests to charge were offered on the part of counsel for defendant; four of them asked for a directed verdict. The last one reads as follows:

“You are instructed that it has not been sufficiently established that the contents of the bottle analyzed by Dr. Tutton are a part of the contents of the bottle found by Dr. Mitchell in the room of the deceased, and that you should disregard any testimony in regard to the contents of the bottle produced in court.”

Each of these requests was refused, and the court charged the jury as follows:

‘ ‘ Gentlemen of the Jury: The contract of insurance in this case, between Mr. Grimme and the Fraternal Aid Association, provides that if Mr. Grimme should commit suicide within two years from the time he became a member there could be no recovery on the policy of insurance. Mr. Grimme’s death occurred less than two years subsequent to his becoming a member. The company claim that he committed suicide. If he did, the plaintiff cannot recover. It devolves upon the defendant in this case, by a preponderance of the evidence, to show this fact. If the defendant has established this fact, it becomes your duty under the law to render a verdict for the defendant. You should examine the testimony upon this point carefully, and not allow any sympathy for the plaintiff or any prejudice against the defendant to override your calm judgment. The defendant is entitled to have a fair trial.
> “By suicide is meant the intentional killing of one by himself. If the killing was accidental, the plaintiff is entitled to recover. If Grimme was insane and killed himself intentionally, the plaintiff cannot recover, although Grimme did not comprehend the moral consequence of his act. By the terms of the policy, it is immaterial whether Grimme was sane or insane, if suicide was actually committed. The policy contemplates any suicide, whether done by a sane or insane person. Many people think that any person who commits suicide is insane, and that in these cases mutual benefit associations should be so organized as to pay an insurance policy, even where the principal committed suicide when insane.
“Now, this question does not enter into this case, whether Mr. Grimme was insane or not, because the application and policy and the constitution and by-laws provide that if suicide shall be committed within two years by the principal, whether sane or insane, there can be no recovery. I speak of this because you should keep in mind the rights of the defendant in this contract. So far as the real issue is concerned, whether Mr. Grimme committed suicide, I express no opinion whatever. That is purely a question of fact for you to determine under the evidence in the case. The defendant in this case, in order to establish their theory of suicide, present four lines of testimony: First. The company claims that a motive existed on the part of Grimme for committing suicide. Second. That Grimme committed suicide by taking poison. ' Third. That the circumstances surrounding the death of Grimme tend to support the theory of suicide. Fourth. That letters and declarations on the part of Grimme indicated an intent and design to take his own life. The whole case hinges around these claims of the defendant.
“The defendant seeks to establish a motive for committing suicide. In all cases where an offense or wrong is alleged to have been committed, the question of motive is important. The claim of the defendant is that the fear of exposure, disgrace, and punishment growing out of the discovery of his shortage and transactions with the Singer Sewing Machine Company was the motive which prompted Grimme to commit suicide. These questions arise in this connection: First. Was there a shortage? Second. What did Grimme say about it ? Third. Did he indicate by what he said that there was a shortage, and that he feared the disgrace or punishment which might follow an exposure ? The plaintiff claims that there is no sufficient evidence of these facts. The defendant claims that there is. If the defendant has established a sufficient motive for suicide, it has established an important fact; not necessarily conclusive, however. If other established facts tend to support the theory of suicide, the proof of motive would be a very strong fact. If no motive is established, an important element of the defense would be lacking. The theory set up by the defense is that Mr. Grimme killed himself by taking poison, and that the poison was strychnine. The plaintiff’s counsel say that it is not established that strychnine was taken by Grimme. Whether strychnine or not was taken is an important question for you to determine. Whether Dr. Mitchell made a true analysis and ascertained correctly that the bottle contained strychnine is an important question. If, however, from all the facts and circumstances, you find that Grimme committed suicide by taking poison, you can find for the defendant, although you may not be able to decide that the specific poison was strychnine. Under the evidence in this case, however, it is a very important and critical question whether Grimme took strychnine or not, because it is claimed here by the defense in this case that the particular poison which Mr. Grimme took was strychnine, and nothing else. That, therefore, the question as to whether Mr. Grimme actually took strychnine under the evidence in this case, and under the theory and claims of the defendant, is a very important question.
“The defendant claims that he has established the fact that Grimme did not die from natural causes, but from self-destruction. The plaintiff claims that he died from disease or natural causes, and that there is no sufficient evidence of death from any other cause.
“The testimony as to the contents of the bottle is important. Dr. Mitchell testifies that he was summoned to the Grimme home the morning of his death, and that he arrived shortly after the death of Grimme; that some member of the family handed him a bottle labeled ‘strychnine;’ that he tested the contents by diluting them and tasting, and found they were strychnine. The plaintiff claims this bottle was handed to Mr. Cunningham; that Cunningham handed the bottle to Dr. Tutton, and that Dr. Tutton analyzed the contents and ascertained there was no strychnine therein. Dr. Tutton does not say what the article was, but he says it was not strychnine. There is no controversy over the analysis of Dr. Tutton; the real question in this connection is whether the article analyzed is the same, by Dr. Tutton, the same article tested by Dr. Mitchell. Dr. Mitchell testifies that the bottle produced in court contains a larger quantity of liquid than the one he analyzed. If his analysis was correct, the bottle or the contents have been changed, either by accident or design, if the doctor be correct. The circumstances surrounding the case and the analysis by the doctor are important facts for you to take into consideration as bearing upon the question whether Grimme took strychnine. If Dr. Mitchell was wrong in his analysis, then the evidence that strychnine was used falls to the ground.
“The defendant claims that the declarations made to the agent of the sewing machine company, and the circumstances surrounding his death, the acts and conduct of Grimme the night of his death, the appearance of his body, indicated a design to commit suicide, and that he followed it up by suicide through the taking of poison.
“ It is claimed by the plaintiff that Dr. Mitchell’s testimony is not credible; that Grimme’s body after death was natural in appearance, and that the evidence is insufficient to show that Grimme’s declarations actually meant that he intended to take his life. You should carefully scrutinize the evidence on this point. If the defendant has established the fact that Grimme made declarations showing a design to take life, that fact is an important fact to take into consideration. The strength of the defense depends upon whether a chain of circumstances has been established from which you can reasonably infer by a preponderance of the evidence that Grimme committed suicide. Plaintiff’s counsel claim that no such chain of circumstances has been established by a preponderance of the evidence. The defendant’s counsel claim that it has. The defendant also claims that certain letters were written by Grimme, one of which was addressed to Clarence Grimme, and read by two witnesses, and that the letter to Clarence indicated a design to take life, and the reasons for it. The plaintiff claims that the testimony — that is, the language in those letters — is doubtful and weak; that the witnesses cannot recollect the exact language contained in the letters, and that there is no sufficient proof that the letters were actually written by Grimme. If the letters were written by Grimme, if they contain the language testified to by the witnesses for defendant, then those facts are important for your consideration, as bearing upon the question as to whether Grimme intended to commit suicide. If you do not find the language contained in those letters (providing they were written) indicated a design to commit suicide, then those letters should be rejected, as having no weight whatever in the case.
“ It has been said here that it devolves upon the defendant to prove the defense by a preponderance of the evidence. By preponderance is simply meant a little more evidence in weight in character and credibility than that of the other side. Now this case is a very important one, and you should scrutinize the testimony carefully, and not be affected by any sympathy or by any prejudice one way ■or the other, and endeavor to arrive at a just result from the evidence in the case.
“All my design has been simply to point out to you the law which should govern your deliberations, and to point out the claims made by the respective parties; that is, by counsel for plaintiff and by counsel for defendant. In case you find for the plaintiff in this case, your verdict will be for $700, with interest at 5 per cent, for nine months. I figured that up; $26.25 that would be; so if you find for the plaintiff your verdict will be for $726.25. Of course, if'you find that Mr. Grimme committed suicide as claimed by the defendant, you will find a verdict for the defendant, or no cause of action.”

Four special questions were prepared by counsel to be submitted to the jury:

(1) Did the deceased, Gustav C. Grimme, commit suicide ?

(2) At the time of the death of Gustav 0. Grimme, did he have one or more of his checks protested for nonpayment?

(3) At the time of his death, had Gustav C. Grimme collected moneys due the Singer Sewing Machine Company which he was unable to pay ?

(4) Did Gustav C. Grimme, just prior to his death, write and sign the letter addressed to his son, Clarence, as shown by defendant’s witnesses ?

The first and third were submitted to the jury, but the third one was later withdrawn by the court. The second and fourth the court declined to submit to the jury. The first one, “ Did the deceased, Gustav 0. Grimme, commit suicide?” was answered by the jury, “No.”

Counsel first argue a group of alleged errors growing out of the rejection of certain testimony of Mr. Johnson, the managing salesman of the Singer Sewing Machine Company, for which company the deceased was an agent. Mr. Johnson was allowed to give a telephone conversation with the deceased, in which he claims deceased admitted a shortage in his accounts and expressed the hope that the company would not have him arrested.

“ He said: * Now, you are not going to be — to push this thing against me; you are not going to have me arrested or make me any serious trouble on this ? ’ He said: ‘ I wouldn’t stand for the disgrace of it.’ He said: ‘You know my family, and I wouldn’t disgrace them; if I thought you were going to be harsh with me, I would make way with myself; I never would stand for it.’ I answered him I thought we could fix it up some way if I could talk with him, and I would come and talk matters over.”

The witness testified that in this conversation neither of them mentioned the amount of the shortage. It was attempted to show orally what the witness afterwards found out as to the shortage by interviewing customers of the deceased, and other investigations he made. The record shows the following:

‘ ‘ The Court: This man can’t tell the amount, only what somebody else told him. He had to go and see the parties who paid Mr. Grimme, and it is hearsay. All he can testify is what they told him.
The Court: Why do you not produce your books ?
“Mr. Andrews: Because there are no books to produce on that. This man went to those people, and found them and talked and ascertained and investigated the amount, and there is absolutely no book and no item and no history of that affair, except what he gained from that investigation himself. And this jury should know.
The Court: I never heard of such testimony offered before. It is hearsay. The only way is to get the men who paid Mr. Grimme. He has no personal knowledge of the thing himself. You can bring in the books, and if you have no books you have got to produce the men who paid the money to Mr. Grimme. That is the testimony going to show shortage; but this witness cannot know anything about that only by hearsay. I never heard such a proposition before.”

We think all this line of testimony was clearly incompetent. We have noticed what is said about the exclusion of a question put to Myrtle Grimme, and content ourselves with saying it was not error.

We now quote from brief of counsel:

“The court was in error in allowing plaintiff to introduce in evidence policy of insurance issued by General Council of the Fraternal Aid Association to Gustav C. Grimme, and denying the motion to strike the same from the record; also to the introduction of certain letters written to the Fraternal Aid Association, in that they were not addressed to the defendant named in the declaration. Also to the refusal to grant defendant’s request No. 4.”

As before stated, a copy of the certificate of insurance was attached to the declaration. No plea of abatement was interposed. The plea of the general issue was entered, with notice that the defense would be the suicide of the insured. See section 10473, 3 Comp. Laws. No affidavit was filed and served at the time defendant pleaded, or any other time, denying the execution of the policy attached to plaintiff’s declaration. Under this situation, no proof of its execution was required, and its execution as alleged was admitted. Circuit Court Rule 8; Clay, etc., Ins. Co. v. Manufacturing Co., 31 Mich. 346; Simon v. Insurance Co., 58 Mich. 278 (25 N. W. 190); Lorscher v. Knights of Honor, 72 Mich. 316 (40 N. W. 545, 2 L. R. A. 206); Miller v. Insurance Co., 158 Mich. 402 (122 N. W. 1093).

Was the action of the court in relation to the special questions error ? The provisions of the statute are found in section 10237, 3 Comp. Laws. No one of the questions proposed, except the first one, was controlling. If the insured committed suicide, that made a complete defense. If he did not commit suicide, the insurer ■ was liable. These results could not be changed by any answer that might be given to the other questions. See Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14), and the cases there cited.

Error is assigned in relation to the examination of the witness Dr. Mitchell. The record shows the following:

“Recross-examination by Mr. Sterling:
"Q. You knew that there would be a contest over this insurance, did you not ?
"A. I didn’t ever dream of any such thing. I didn’t suppose there was a lawyer would ever take it up.
"Q. You didn’t.
"A. No, sir; not at all.
“Q. Didn’t think a lawyer would ever take it up ?
"A. No, sir.
"Mr. Sterling: I never thought there was a physician would falsify about a material fact, either.
"Mr. Andrews: I take exception to that, and I say—
"The Court (interrupting): In the first place, the witness ought not to have made that remark; but the attorney knows the usages of courts and ought not to have made that remark. Both of you are to blame. The witness should not make any remark about lawyers in that sense.
"Q. You have not any interest in this case at all, have you?
"A. None whatever.”

The witness invited what occurred, and while counsel ought not to have responded as he did we think the court took care of the occurrence.

Error is assigned upon the argument of counsel. He at once disclaimed having made the argument with which counsel charged him. The judge said he did not hear him make it, and the stenographer did not take the argument. Under such a situation, we cannot pass upon the question.

Error is assigned because of the following:

“I thank you for so patiently listening tome tonight; it is a late hour. I know you feel perhaps I have indulged longer than I should. I would like you to take these things as you find them. Your verdict will be mine; but I believe as I stand here today, and the man that cannot raise his voice himself, but sleeps over in the little churchyard yonder, has a right by his weeping wife, his widow, to ask you, to ask you, gentlemen, to render under your oath a righteous verdict, and give us $700, with proper interest.
“Mr. Andrews: I take exception to the last remarks of counsel, appealing to the sympathy and prejudice of the jury.”

Some latitude must be left to the zeal of counsel, and, while we do not commend this language, we are not prepared to say that because of this peroration the case should be reversed.

Error is assigned because a new trial was denied. It is said the verdict is against the weight of evidence, and for that reason a new trial should have been granted. The important question in the case was whether the insured committed suicide. The evidence bearing upon that issue was conflicting and presented a question for the jury under proper instructions, which were given.

The other assignments of error have been examined, but we deem it unnecessary to discuss them. No one can read this record without reaching the conclusion that counsel on both sides, and some of the witnesses, were very zealous. As to the counsel, the honors were about even in that respect. As to the witnesses, there was a sharp conflict in their testimony. The trial court had a very difficult task to so direct the trial as to avoid reversible error. We think he accomplished that result.

Judgment is affirmed.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.