author: Moore, J. Hooker, J.

text:
    MERRILL v. LEISENRING.
    1. Practice — Amendments—Discretion.
    It is not reversible error, upon a second trial ordered by the Supreme Court, to refuse the plaintiff permission to amend his declaration by adding a count similar to one which he expressly abandoned on the first trial.
    2. Husband and Wife — Alienation of Affections — Adultery.
    The fact that adultery might be inferred from acts which appeared in evidence, would not preclude a recovery for the alienation of the affections of the plaintiff’s wife by other means.
    Error to Van. Burén; Des Voignes, J.
    Submitted November 11, 1908.
    (Docket No. 100.)
    Decided June 7, 1909.
    Case by James A. Merrill against David C. Leisenring for alienating tbe affections of plaintiff’s wife. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Thomas J. Cavanaugh and H. T. Cook, for appellant.

      W. W. Holmes and Harry C. Howard, for appellee.
   Moore, J.

This case has been here before. It is reported in 149 Mich. 423 (112 N. W. 1072). A reading of the opinion will aid in understanding the questions involved in the case now before us.

After the opinion was handed down, plaintiff moved the court for leave to file an amended declaration, by adding a count alleging alienation of affections by means of adultery. After considering this motion from October 15th until the following March, the judge denied the motion, without indicating why he denied it. The case was tried later before a jury. At the close of the testimony for plaintiff, the defendant requested a verdict in his favor. The jury were excused while the motion was argued. At the close of the argument, the judge stated that he thought there was no case to go to the jury, that he did not think it necessary to call the jury in, and that the case might be dismissed. No objection was made by plaintiff’s counsel, who was present in open court, to the fact that the jury were not recalled to give a directed verdict, and no exception was filed to such rulings, and in due time judgment was entered thereon, and thereafter counsel for plaintiff duly excepted to the entering of an order on the records of the clerk of the court dismissing said cause. Later a motion was made to vacate the order dismissing the case, for various reasons. Nothing was said in that motion about a new trial. The motion was based upon the files and records in the cause, and upon the stenographer’s minutes. The court overruled this motion, and gave his reasons at length, from which we quote all we deem necessary for the disposition of the case:

“At the outset of the case plaintiff announced the abandonment of the count charging adultery in the following language:
‘Mr. Cavanaugh: Before the jury is called, if your honor please, I desire to state to the court at this time that we wish to withdraw the first count of our declaration, and elect to proceed upon the second count, and the second count alone; the first count toeing a count in which adultery is charged, and the second one in which alienation by enticing away is charged.
‘Mr. Howard: You abandon the adultery charge, then ?
“‘Mr Cavanaugh: Yes.’
t£ Plaintiff then proceeded to trial upon the other count securing a verdict and judgment. Defendant appealed to the Supreme Court. In determining the case the court upon that branch of it expresses the following opinion:
“ ‘ Plaintiff urges that this is not a case instituted in consequence of adultery. In form, as the case was tried, this may be true, but in fact the testimony of plaintiff tended to show the adultery of his wife. The first count of the declaration in this case was evidently abandoned for the sole purpose of qualifying the plaintiff as a witness.’
“As this court construes the opinion, after a careful • reading, the only occasion for the granting of a new trial was to give the plaintiff an opportunity, if possible, to introduce more evidence upon the count under which they went to trial. It seems to me that the course followed by the plaintiff on the trial was a complete abandonment, a deliberate action by which he should be bound. * * *
“ Therefore, in determining and denying plaintiff’s offer to amend, the court took the view that the question was not one wherein he could exercise any discretionary power at all. * * *
“ Second. Upon a denial of the motion to reinstate the abandoned count the plaintiff proceeded to the second trial under the second count in the declaration. The evidence showed that he and his wife had ceased to cohabit as man and wife in January, after moving on defendant’s farm in November before, and no evidence of any kind wás offered to prove that between November and January there was any acquaintance between plaintiff’s wife and defendant. * * *
“(a) Because had he not wished to have the case dismissed he might have submitted to a nonsuit which he did not do.
“(b) Because the plaintiff did not submit evidence in the second trial that supported his declaration.
“(c) Because under the pleadings and proof the plaintiff failed to make a case, and for the reasons stated the motion is denied.”

The case as presented is somewhat anomalous. It is brought here by writ of error, and is presented by counsel as though a motion for a new trial had been made, when in fact none was made, unless it can be said that the motion to vacate the order dismissing the case is in effect a motion for a new trial.

One of the reasons assigned why the order dismissing the case should have been vacated by the circuit judge, is that the court erred in refusing the plaintiff to amend his declaration by adding the new count. The counsel argue that as the court took the view, in denying his motion to vacate the order, that the question of amendment was not one wherein he could exercise any discretionary power at all, and, as the judge had the right to exercise his discretion, that it was error not to permit the amendment. Section 10268, 3 Comp. Laws, provides:

“ The court in which any action shall be pending shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just at any time before judgment rendered therein.”

It is apparent that under this statute counsel were not entitled to the amendment as of course. When the application was made, counsel recognized by making it that, as to that feature of the case, plaintiff was out of court. The application was not accompanied by any showing that plaintiff or counsel had labored under any mistake of fact, or that any new facts had been discovered since the plaintiff in open court abandoned the count. There is nothing in what was said by the judge, in refusing to vacate the order dismissing the case, to indicate that, had he been of the opinion he had the discretion to permit an amendment, he would have done so. On the contrary, it appears clearly that he was of the opinion that the plaintiff had deliberately completely abandoned the first count, and had subjected the defendant to the expense of a trial with the count out of the case, and that by his conduct he should be estopped from adding a count which was in effect the same as the one he had deliberately abandoned. We do not think it was reversible error for the judge to refuse the amendment of the declaration, nor to refuse a new trial because he had refused the amendment.

The second reason of the trial judge demands attention. The declaration charges the various acts of the defendant with the wife of plaintiff to have been heretofore, to wit, on the 30th day of March, 1902, and on divers other days and times between that day and the commencement of the suit. The reason referred to was as follows:

“Second. Upon a denial of the motion to reinstate the abandoned count the plaintiff proceeded to the second trial under the second count in the declaration. The evidence showed that he and his wife had ceased to cohabit as man and wife in January, after moving on defendant’s farm in November before, and no evidence of any kind was offered to prove that between November and January there was any acquaintance between plaintiff’s wife and defendant.”

The testimony showed many acts from which the inference of an alienation of the affections might be drawn; and, while taken collectively they might also justify an inference of adultery, that inference did not necessarily follow from what was shown, and it is not certain the jury would have drawn said inference. This phase of the case presented a question for the jury, and because of the directed verdict, the case must be reversed.

The judgment is reversed, and a new trial ordered.

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

Hooker, J.

Three questions are involved in this case:

(1) Did the court err in refusing to permit the filing of an amended, count ?
{%) Did the court err in directing the dismissal of the case and the entry of judgment for defendant ?
(3) Did the court err in denying a motion for new trial ?

Amendment. We are of the opinion that it was within the discretion of the court to grant the motion to amend, and, for that matter, that it was the right of plaintiff to go to trial upon the declaration as originally filed. It may be said that his statement that he abandoned one count on commencing the first trial was equivalent to a consent order that it be stricken from the declaration, but in the absence of such an order, and there being nothing amounting to an estoppel, we are of the opinion that it amounted to no more than an election for that trial, and that after reversal the cause was at issue on the same declaration. The counts are not inconsistent within the rule of election of remedies. Counsel did not make the latter claim or offer to so try the case. He did except to the refusal to allow an amendment, but this was a discretionary matter with the judge; and, as no reason for denying the motion to amend was given, we cannot say that there was an error of law in such refusal, unless what occurred on the motion filed later shall justify it, which we do not discuss in this connection, but will later.

Dismissal of the case: The cause was tried a second time upon the same count as before. The action was case for alienating a wife’s affections by various means set up in the count, which made no charge of adultery: The learned circuit judge was of the opinion that all of the testimony tended to prove adultery, and therefore that it did not justify a verdict upon a count not charging adultery. The testimony showed many acts tending to show an alienation of affections; and, while possibly they might collectively justify an inference of adultery, it was by no means a necessary one, and it was not certain that the jury would draw such an inference. Moreover, if they had done so, or if some witness had, on cross-examination, testified unqualifiedly to such a fact, it would not deprive the plaintiff of a right to a verdict on other grounds, if the proof tended to establish such grounds, merely because they culminated in criminal relations. It was therefore erroneous to take the case from the jury upon such a ground. It is claimed, however, that the ruling was right for another reason. It is urged that the testimony showed that the parties ceased to cohabit in January, after moving on defendant’s farm in November before, and no evidence of any kind was offered to prove that between November and January there was any acquaintance between plaintiff’s wife and defendant. The evidence of plaintiff on cross-examination shows that the parties had not cohabited as man and wife after around about January, 1902, but on his direct he testified that they lived on the defendant’s farm until the last of February or first of March, 1904, when they moved to South Haven, and his wife moved away toward fall. This testimony is not so clear and conclusive proof of an alienation of affections before defendant’s acquaintance with plaintiff’s wife as to justify the direction of a verdict or the dismissal of the case, which amounted to the same thing, and was so considered, as the judgment shows.

Did the court err in denying the motion for new trial ? This motion is said not to have been a motion for new trial. The motion was filed April 7,1908, and was a motion to reinstate the case, to vacate, set aside, and hold for naught an order entered in said cause at the end of plaintiff’s case, dismissing and thereby denying plaintiff’s right to have the facts in said cause submitted to the j ary. Several grounds were alleged, including the refusal to permit the amended declaration to be filed, and the holding that plaintiff had not made out a case, and ordering the dismissal of the case. A number of interesting questions grow out of the proceedings upon this motion. In view of a possible new trial we will discuss some of them.. We have seen that the two important questions which were excepted to in the prior proceedings were made grounds for this motion and the right to include such in a bill of exceptions, under the statute (3 Comp. Laws, § 10504), arises. Ordinarily this fact would give rise to no complications, unless a motion for new trial should be used, to get before the Supreme Court rulings and errors in refusal to charge not excepted to, or, as in this case, a claim of right to review a discretionary order because of a statement in the denial of the motion that, c £ in determining and denying the offer to amend, the court took the view that the question was not one wherein he could exercise any discretionary power at all,” which fact was not stated at the time the ruling was made. As already indicated, it was within the power of the judge to permit the amendment. Whether he should have done so we cannot say, upon this record; but, had he given the above reason at the time of the denial, we should feel constrained to reverse the cause on the original exception. In the absence of a full discussion of the subject we hesitate to decide so important a matter of practice, especially as we cannot be certain that the amendment should have been allowed. We, therefore, suggest that the plaintiff may yet move in the trial court to file an amended declaration, if he shall care to do so, when we have no doubt that the court will recognize his authority, and will pass upon the merits of the question. This sufficiently deals with the third question for the purposes of this case.

The judgment should be reversed, and a new trial ordered.

Ostrander, J., concurred with Hooker, J.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    EMBURY v. GOODENOUGH.
    1. Equity — Bill to Quiet Title — Taxation.
    The owner of land which has been sold to the State at tax sales has, after the expiration of the period for redemption, no title which will sustain a bill to remove a cloud.
    2. Taxation — State Bid — Statutes.
    Under 1 Comp. Laws, § 3984, a sale of land to the State for delinquent taxes vests the title in the State.
    3. Same.
    A purchase by a claimant of the title to real property from the State, upon a false affidavit of ownership, does not inure to the benefit of the former owner as a redemption.
    Appeal from Mackinac; Shepherd, J.
    Submitted January 7, 1909.
    (Docket No. 27.)
    Decided June 7, 1909.
    Bill by S. Harris Embury against Lodema O. Good-enough and Emery D. Weimer for the cancellation of a tax deed. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Beilley & McPhee (Humphrey & Grant, of counsel), for complainant.

      Smurthwaite & Alway (M. B. Danaher, of counsel), . for defendants.
   Hooker, J.

Wilcox, a resident of Connecticut, acquired the government title to the W. \ of section 10, town 42 N., range 1E., in 1882. It was subsequently bid in to the State for delinquent taxes for the years 1883, 1885, 1886, 1887, 1890, 1895, 1896, 1897, 1898, and 1899. The auditor general made a deed of the S. W. J of said section to the defendants, dated September 28, 1903, receiving therefor a proportionate share of the taxes assessed upon the entire W. \ of section 10, and the required interest, penalties, and charges. He was induced to do this by the filing of an affidavit made by Weimer stating that he was the owner of said S. W. J. This affidavit was dated July 30, 1903. It was false, for Wilcox remained such owner until November 7, 1905. Weimer caused the statutory notice to be sent to Wilcox at his home in Connecticut on March 25, 1904, by registered letter, which was receipted for by Wilcox April 1, 1904. Wilcox made no attempt to repurchase under the provisions of the statute, and on November 7, 1905, quitclaimed to Fultz, who before his purchase learned the facts relating to the purchase by Weimer and Goodenough, who are said to have been in copartnership in the lumber business. Fultz applied to the auditor general for a cancellation of the deed to the defendants, and to be allowed to redeem the land on the ground that the deed had been obtained fraudulently by means of a false affidavit. The auditor general dismissed the application upon the ground that, the application and affidavit of Weimer being regular on their faces, he had not authority to cancel the deed. He returned the money deposited by Fultz. This was in the fall of 1905. In April, 1906, Fultz conveyed his title to the land by quitclaim deed to Charles H. Horton, who quitclaimed the same to complainant on April 17, 1906. This bill was filed on March 6, 1907, after complainant had on February 19, 1906, offered to pay defendants the amount paid by them to the auditor general, which was refused. The bill prays the cancellation of the auditor general’s deed as a cloud on complainant’s title, and general relief.

Complainant maintains that:

(1) The auditor general’s deed was absolutely void because it was obtained by fraud, under circumstances which forbade the sale of the southwest quarter alone.
(2) Defendants’ transaction was, at most, a redemption, and not a purchase from the State, as the statute does not authorize a purchase, and consequently defendants did not obtain a title from the State, and the redemption inured to the benefit of the real owner, and the payment, being voluntary, could not be recovered from State or owner.

Other questions are raised, but we think it unnecessary to mention them, as they cannot affect the case, as we look at it.

At the time that defendants procured their deed from the State, the latter was owner of the absolute title; Wilcox’s title having been divested by the sale to the State and the expiration of the period within which he might have redeemed it. Horton v. Helmholtz, 149 Mich. 229 (112 N. W. 930); Haney v. Miller, 154 Mich. 337 (117 N. W. 71, 745). If, as complainant alleges and claims, the sale by, and deed from, the auditor general were absolutely void for the reason alleged, viz., that, defendant Weimer not being the owner of the south quarter section, he could not buy, and the auditor general could not sell, it under the provisions of section 3984,1 Comp. Laws, it follows that Wilcox had no title to the premises, and that his quitclaim deed conveyed none (see Horton v. Helmholtz, supra)’, and complainant, having no title, cannot complain of defendant’s alleged cloud. If there is any cloud, it is upon the title of the State, and in this the complainant has no interest. A similar bill was filed in the case of Horton v. Helmholtz, supra, and we said:

“ If, as contended, the deed (tax) first issued was void; and the complainant +ook steps which entitled him to a deed, we think it must follow under the cases cited that he acquired some sort of an equitable title, and that he might have it quieted in such a proceeding as this.”

If this is more than a dictum, the complainant’s bill does not bring him within the rule thus stated, for he is not alleged to have taken steps to entitle him to a deed. On the contrary, he is here asserting that defendants’ purchase was a redemption of which he should have the benefit, a position which we consider untenable. After the period of redemption expires, the State’s title can only be divested, under existing laws, by a sale to, and purchase by, somebody, and, until there is such purchase or application to purchase by someone, no equitable right which will sustain a bill to remove a cloud exists in anyone.

The decree of the circuit court is reversed, and a decree will be entered dismissing complainant’s bill, with costs of both courts.

Blair, O. J., and Grant, Moore, and McAlvay, JJ., concurred.


author: Grant, J.

text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO. PEOPLE v. SAME.
    1. Judgments — Conclusiveness—Constitutional' Law.
    The validity of the charter of the Detroit, Grand Haven & Milwaukee Railway Company is foreclosed by Cook v. Bail-way Co., 43 Mich. 349; Attorney General v. Joy, 55 Mich. 94; and Powers v. Bailway Co., 201 U. S. 543; and may not be questioned in quo warranto proceedings or by a bill in equity to collect taxes levied in disregard of the special charter.
    2. Same.
    All questions of law which might or should have been raised in the complainant’s favor upon the prior proceeding are concluded in a subsequent cause based on the same claims.
    3. Same — Parties—Public Officers.
    The State is concluded by judgments in proceedings to which its attorney general and auditor general were parties, under 1 Comp. Laws, § 105, providing that the attorney general shall represent the several State departments in the prosecution and defense of suits relating thereto, and under Act 173, Pub. Acts 1901, § 13, authorizing the auditor general to enforce tax liens by an appropriate action.
    Appeal from Ingham; Wiest, J.
    Submitted March 2, 1909.
    (Docket No. 144.)
    Decided June 7, 1909.
    Bill by the people of the State of Michigan against the Detroit, Grand Haven Sc Milwaukee Railway Company and others for the collection of certain taxes. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Quo warranto proceedings by the people of the State of Michigan, on the relation of John E. Bird, attorney general, to determine the validity of the franchise of the Detroit, Grand Haven & Milwaukee Railway Company.
    Submitted March 2, 1909.
    (Docket No. 143.)
    Order of dismissal entered June 7, 1909.

      John JE. Bird, Attorney General (Timothy JE. Tarsney, De Vere Hall, and Roger I. Wykes, of counsel), for complainant and petitioner.

      H. Geer and L. G. Stanley, for defendants and re- ' spondent.
   Grant, J.

By these two suits the State of Michigan, through its legal department, for the third time attacks in the courts the validity of the special charter under which the respondent was organized, and under which it has conducted its business for more than half a century. The first suit was brought in the circuit court for the county of Ingham to collect taxes assessed against the respondent under section 49, Act No. 123, and Act No. 133, Pub. Acts 1891, which sought to place all railroads, whether organized under a general or a special law or by means of mortgage foreclosure and sale and reorganization, upon an ad valorem basis of taxation. The second suit, quo warranto, is brought in this court for the purpose of declaring the special charter of the respondent void, and to bring it under the general taxation law of the State. In the former suit the learned circuit judge sustained the validity of defendant’s charter, and dismissed the bill. The issue is the same in both cases. In this opinion we shall therefore treat them as one case.

The history of the respondent’s organization, the authorized issue of bonds by it, the foreclosures of its several mortgages, the sales thereunder, the purchases and transfers by the purchasers to the respondent are sufficiently set forth in Cook v. Railway Co., 43 Mich. 349 (5 N. W. 390); Attorney General v. Joy, 55 Mich. 94 (20 N. W. 806); Detroit, etc., R. Co. v. Powers, 138 Fed. 264; Powers v. Railway Co., 201 U. S. 543 (26 Sup. Ct. 556). We deem it unnecessary to restate here in detail this history. The acceptance of the charter made a contract with the State, by which the company agreed to pay annually a tax of 1 per cent, on its capital stock, to be in lieu of all other taxes. The Constitution of 1850 recognized the existence and validity of corporations existing by special charter, for it provided that—

“The legislature shall pass no law altering or amending any act of incorporation heretofore granted, without the assent of two-thirds of the members elected to each house; nor shall any such act be renewed.” Section 8, art. 15.

The legislature recognized the existence of respondent’s special charter by Act No. 5, Laws Ex. Sess. 1800, by which it was provided:

“ That an act of the territorial legislative council of Michigan, of eighteen hundred thirty-four, entitled ‘An act to incorporate the Detroit & Pontiac Railroad Company,’approved March seventh, eighteen hundred and thirty-four, and act number one hundred forty of the session laws of eighteen hundred and fifty-five, entitled ‘ An act to authorize the consolidation of the Detroit & Pontiac and the Oakland & Ottawa Railroad Companies, so as to form a continuous line from Detroit to Lake Michigan, under the name of the Detroit & Milwaukee Railway Company,’ and all acts amendatory or supplementary thereto, the same constituting the special charter under which the Detroit & Milwaukee Railway Company, now known as the Detroit, Grand Haven & Milwaukee Railroad Company, was created, be and the same are hereby repealed, said repeal to take effect, and be in force from and after the thirty-first day of December, nineteen hundred one.”

Have the former decisions of this court and of the Federal courts adjudicated the issue now presented so that the question is res judicata ? If this question be answered in the affirmative, it forecloses discussion and determination of the reasons now urged again in behalf of the State against the validity of respondent’s charter. In Cook v. Railway Co., supra, ths validity of defendant’s charter was not attacked. Its existence, however, was distinctly recognized, as is held in the other cases above cited. That case distinctly held that the physical property of- the corporation and also its franchise, to wit, its right to do business under the original charter, passed by the foreclosure sale. The law provided for its sale for that purpose. Obviously its physical property without its franchise would have been of little value to a purchaser. It was sold and purchased with a view to a continuation of its business. As was said in that case:

“A sale to a purchaser who could not exercise the corporate privileges could have been of no use.”

Its mortgages covered its franchise, and the sale conveyed the franchise. It was no new franchise, but the old one continued. In the other cases the validity of the charter was vigorously and directly attacked for various reasons. In Attorney General v. Joy, supra, the opinion charged the respondent “with claiming and usurping the corporate right, liberty, privilege and franchise known and called the Detroit, Grand Haven & Milwaukee Railway Company.” Able and well-known counsel were employed, both on behalf of the State and the respondents. Presumably counsel for the State attacked the validity of the charter from every direction they conceived attack possible. If, however (and this is wholly improbable), the learned counsel for the State failed to produce some argument or raise some point which they might have raised, it is too elementary to require the citation of authorities that the State cannot now raise questions which it might have raised in that case. That case established unequivocally the existence and validity of defendant’s charter, and that it was a continuation of the same company, under the same charter, that existed before the execution, and the foreclosure of the mortgages which it gave pursuant to law. When a party attacks the validity of a contract in a suit, he must in that suit show and maintain all the objections as to its validity. He cannot split up his cause of action. Harrington v. Huff & Mitchell Co., 155 Mich. 139 (118 N. W. 924). We there said:

“It would be a reproach to the law to permit the defendant to rely in one suit for the rent upon the claim that the tenancy had been changed by agreement from a yearly rental into one from month to month, and in a suit upon the next month’s rent to interpose another defense, that of surrender and release, and, when sued for a third month’s rent, to interpose, perhaps, the defense of a violation of the contract on the part of the lessor.”

In order that there may be no misunderstanding as to the effect of the Joy Case and the issue involved, we quote from the opinion of Chief Justice Cooley, which was concurred in by the other Justices:

“The act of 1855 [Act No. 140, Laws 1855] was not promoted exclusively in the interest of the railroad companies named in it, but the State itself was largely concerned, and expected to accomplish important public purposes by means of it. Twenty years before that time the State had planned for the construction of several parallel lines of railroad across the State from east to west, one of which was to be north of the line of the Michigan Central Railroad, and was expected to be of very high value, not only to all that part of the State through which it would run, but to the whole State. Much disappointment had come from the road not being constructed; and, when the Detroit & Pontiac Railroad Company, which already had near 30 miles of road in successful operation, and could command means for the construction of more, proposed, on certain terms which were expressed in the act of 1855, to purchase the rights and franchises of the Oakland & Ottawa Company, and to extend their own road to Lake Michigan, there is no reason for doubting that the people of the State at large looked upon this as a favorable opportunity for accomplishing a desire which 20 years before had found expression in the legislation of the State, and which ever since had been kept constantly in view. * * *
“ It has already been seen that the important public purpose which the State had in view in assenting to the act of 1855 has been accomplished. The railroad from Pontiac to Lake Michigan has been constructed, and for many years operated, and the State has reaped the benefits. But in order to accomplish this public purpose it seems to have become necessary to put the bonds and shares of the Detroit & Milwaukee Railway Company upon the market as well in Europe as in this country. The State recognized the necessity, and by its legislation provided for facilitating sales. The bonds and shares were sold to the amount of very many millions, and every purchaser of one of them made the purchase in reliance upon legislation of this State which appeared to sanction if not to invite it. * * *
“But another objection is made to the act of 1855, which goes to its substance. The act, it is said, is in conflict with that provision of the Constitution which declares that the legislature shall pass no act renewing or extending a special act of incorporation. Article 15, § 8. The act of 1855, it is said, undertook to do this; and, as the legislature could not do it originally, neither could it after-wards confirm and validate the void attempt. We think the relator misconceives the act. It does not purport or attempt to renew or extend any special act of incorporation. The general purpose is to enable the Detroi t & Pontiac Railroad Company to take a new name, and under such new name to extend its road from Pontiac to Lake Michigan. There was nothing in this opposed to the Constitution, either in letter or spirit. And this answers a further objection, that the act of 1855 created a new corporation in violation of article 15, § 1, of the Constitution. We do not so understand it.
“It is further contended that an act approved February 10, 1859 [Act No. 96, Laws 1859], under which the railroad company is supposed to have been reorganized after the sales on foreclosure, was without validity for that purpose for the two reasons: First, that it was without validity when passed; and, second, that it has since, by implication, been repealed. The act is entitled ‘ An act in relation to mortgages against preferred stock in, and the delivery of goods by, railway companies.’ Here it is said are two or more objects expressed,» and therefore the act is invalid under the Constitution. Article 4, § 20. This is a somewhat technical objection, and we are not disposed to consider it after this great lapse of time. But it may be proper to remark that the act did not bring together subjects totally foreign to each other. The whole act concerned railways; and, if it can be considered a technical disregard of the Constitution, it was probably inadvertent. The repeal of the act is supposed to have been accomplished either by the amendment of the general railroad law by an act passed in 1872 (Act No. 53, Laws 1872), or by the general revision of that law in 1873 (Act No. 198, Laws 1873), both of which covered the same general subject. But we do not agree in this. Those acts must be understood to refer to companies organized under the general railroad law, while the act of 1859 evidently had other companies in view. It speaks of railway companies — a term not made use of in the general law, but which the company succeeding the Detroit & Pontiac had taken as a part of its new name. It is suggested, rather than urged, that the legislature had no constitutional power to pass the act of .February 10, 1859, as applicable to chartered corporations, because the effect was to create new corporations with the old chartered powers. But the purpose of the act was to permit the creditors of chartered corporations to enforce their demands by a sale and transfer of the franchises; and this would be impossible if the sale were of itself to operate as a destruction of the franchises. The act merely gave a remedy for the enforcement of debts; and, as franchises were to be sold for the satisfaction of debts, it provided a method whereby they might be kept alive.
“We have now considered the questions raised, so far as seems necessary to a determination of the main question whether the defendants are guilty of the usurpation charged upon them, and are clearly of the opinion that they are not. It may be proper to refer to the case of Cook v. Bailway Co., 43 Mich. 349 (5 N. W. 390), in which the validity of that corporation was indirectly recognized, though importance is not attached to it except as a part of the public history of the company.”

The parties in this case are the same as they were in that. On the one side, in both suits, is the State, attacking the validity of the respondent’s charter; on the other side, in both suits, is the railroad company, maintaining its special charter. The subject-matter of both suits is the same. The issue is the same. There were no two issues in the former suit, one of which the court decided, and one of which it did not.

This court said, speaking through the same learned Justice as in the Joy Case:

“Legal controversies are not to be suffered to be tried over and over, to the annoyance of parties, the disturbance of the community, the unnecessary absorption of the time of the court, and at an expense not less to the public than to the litigants. The general principles which must govern the case are familiar. There are two matters in respect to which an adjudication once made may be conclusive: First, the subject-matter involved in the litigation ; second, the point of fact or of law, or of both, which was necessarily adjudicated in determining the issue upon the subject-matter in litigation. The subject-matter involved in a litigation is the right which one party claims as against the other, and demands the judgment of the court upon, as, for example, the right in ejectment to have possession of the lands; in assumpsit to recover a demand; in equity to have a mortgage foreclosed for an amount claimed to be due upon it, or to have specific performance of a contract, and so on. As respects this, if an adjudication is once had, and any question respecting it arises afterwards in a collateral suit, the adjudication will be held conclusive. It will also be conclusive in any new suit in which either party by his pleadings endeavors to put in issue and thus retry the subject-matter of the former adjudication, or any portion thereof.” Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013).

Again, this court said in Hall v. City of Kalamazoo, 141 Mich. 503 (104 N. W. 689):

“ It is no uncommon practice for courts, where several points are raised for determination, to affirm the case upon one point, and to say that, as to the other points, the decision of the court below was correct. All such questions, whether of fact or law, are then res adjudicaba, and in another suit, brought for the same cause of action, it is of no importance whether the conclusions, either of fact or law, are right or wrong.”

Many other cases from this court cited in the briefs of counsel are to the same effect. The rule is tersely stated by the United States Supreme Court:

“ The very essence of judicial power is that, when a matter is once ascertained and determined, it is forever concluded when it arises again under the same circumstances and conditions between parties or their privies.” New Orleans v. Citizens’ Bank, 167 U. S. 371 (17 Sup. Ct. 905).

So, where the controversy was over the force or effect of law as a contract and it was held to constitute a contract, the decision foreclosed the right to collect any taxes thereunder in the future. Deposit Bank v. Frankfort, 191 U. S. 499 (24 Sup. Ct. 154).

“The general rule of the extent of the bar is not only what was pleaded or litigated, but what could have been pleaded or litigated.” Northern Pacific R. Co. v. Slaght, 205 U. S. 122 (27 Sup. Ct. 442).

A case very similar to this is United States v. Land Co., 192 U. S. 355 (24 Sup. Ct. 266), wherein a second suit was brought to establish the title of the United States to certain lands, alleging a new ground not raised in the first suit for the same purpose. The court, in deciding the case, said:

“The best that can be said, apart from the act just quoted, to distinguish the two suits, is that now the United States puts forward a new ground for its prayer. Formerly it sought to avoid the patents by way of forfeiture. Now it seeks the same conclusion by a different means; that is to say, by evidence that the lands originally were excepted from the grant. But in this, as in the former suit, it seeks to establish its own title to the fee.”

And further:

“But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim [citing cases]; and, a fortiori, he cannot divide the grounds of recovery.”

An examination of the plea to the information in the Joy Case discloses that the respondent set up all the acts of the legislature upon which it relied, all its mortgages and foreclosure proceedings, and the declarations of the purchasers thereunder made and filed for the purpose of securing a continuation of the charter rights of the company. After setting forth at great length this history of the corporation, the plea alleges that respondents, having become the purchasers,

“Were desirous of continuing to perform the duties and enjoying the franchises and immunities of said rail-' way corporation, and in accordance with the provisions of the statutes of the State of Michigan applicable'to said-corporation; and they did state in said declaration under oath that they had provided the means for continuing the same, and for performing said duties and enjoying said franchises and immunities, that they had provided suitable equipments for running and operating said road, and for performing in all respects the duties to the public by law incumbent upon such corporation.”

A long demurrer was interposed to this plea, assigning 31 grounds of demurrer, attacking the allegations of the plea, and the constitutionality of the various acts of the legislature affecting the respondent’s corporate existence. A stipulation of facts was made to be used upon the hearing, and consisting of 34 paragraphs, admitting the facts set up in the plea, and also certain other facts shown by the proceedings of the legislature in passing the act of 1855. The purpose of that stipulation evidently was to place the entire controversy as to the validity of the defendant’s charter before the court, and to obtain a decision which should be final. A decision was rendered which stood unchallenged for 20 years. It is pertinent here to inquire the purpose the State had in view in instituting and prosecuting that suit. The State had no intention or desire to destroy the railroad corporation. It had become a great artery of commerce, and its destruction would have resulted in incalculable injury, both to the stockholders of the company and to the people of the State. The State had recognized its existence under some State authority, and had received taxes from it for more than 30 years. The sole purpose of the suit clearly was to destroy the immunity of the corporation from liability for taxes other than that provided in its contract with the State by a judicial determination which would compel a reorganization under the general railroad law. It had no other immunity of value. No other purpose is conceivable or is suggested in either of the suits. That purpose further appears from the brief filed in behalf of the State, in which it was said:

“ This claim of respondents to special charter rights to avoid general law taxation leaves annually a large amount of specific taxes for the people to pay, which the alleged corporation ought to pay. The published reports of State officers leave no doubt as to the damage to the people. A certified statement from the railroad commissioner’s office is hereto annexed, marked ‘A,’ and is relevant to show the interest of the State in the proceedings now here.”

We therefore hold the Joy Case is conclusive of the validity of the defendant’s special charter and its rights thereunder. The Federal courts so held in Detroit, etc., M. Co. v. Powers, supra. If the State considered that decision erroneous, or if it subsequently believed that it had other grounds for attacking its validity, or discovered other evidence which it considered material, its sole remedy was by.an application for a rehearing. It cannot now be heard 30 years afterwards to attack the soundness of that decision. To hold otherwise would be an abrogation of the wisé rule of res judicata. It would unsettle the rights of parties after their rights have been determined and settled by a judicial decision, and they have for many years acted and incurred obligations based upon it.

Effect of the decision of the Federal court. After the attempted repeal of respondent’s special charter by Act No. 5, Laws Ex. Sess. 1900, and the passage of Act No. 173, Pub. Acts 1901, placing all railroads upon the same basis of taxation, the auditor general, as required by the law, levied taxes upon the respondent under these acts. He threatened a levy upon the property of the company to enforce payment. Thereupon the respondent brought suit in equity in the Federal court for the western district of Michigan, southern division. Respondent again set forth its existence under its special charter, again insisted that the act of 1855 and its acceptance constituted a contract between it and the State, and exempted it from taxation, except as therein provided, alleged the invalidity of the acts providing for its repeal and taxation under the general law, and prayed for a permanent injunction against the auditor general to restrain the collection of the taxes. The answer traversed the allegations in the bill fully, asserting the invalidity of the .respondent’s charter and the validity of the acts providing for its repeal and taxation under the general law. Judge Wanty held that “the whole matter has been disposed of by the Supreme Court of Michigan in the case of Attorney General v. Joy.” The same arguments were made there that were made in the Joy Case. Of them the learned judge said:

“ The reasoning contained in the brief of the defendant and the numerous cases cited might have been very convincing before the judgment in the case of Attorney General v. Joy was rendered, but whatever conclusion we might have come to, if we were allowed to exercise an independent judgment, is forestalled by that decision.”

Not content with that decision, the State through its proper officers, the auditor general and the attorney general, took an appeal to the Supreme Court of the United States. The decision of Judge Wanty was affirmed (201 U. S. 543, 26 Sup. Ct. 556); the court at the outset of its opinion saying:

“Many questions which might otherwise be perplexing are settled by the decision of the Supreme Court of Michigan.”

The same attacks were again made upon the respondent’s charter in that court that were made in the Joy Case. After stating what that case decided, the court proceeded to determine whether the act of 1901 did, as to the respondent, impair the obligation of a contract. Upon that point the court say:

“Surely no clearer case of contract can be presented
than one in which the legislature passes an act in respect to a particular corporation making special provision concerning taxation, and does so with a view of inducing large expenditures by the corporation and the completion of an unfinished road, whose completion is deemed of great public importance, and where the special provision is, as required, formally accepted, the expenditures made and the road completed.”

That case was decided in October, 1905. Again the State ignored the decision of that court, and proceeded to levy taxes under the act of 1901, and in these cases is again attempting to enforce the collection of the tax, and again attacks the validity of respondent’s charter, once settled in the Joy Case, and again in the Powers Case. The same questions and arguments are now presented without even a new dress to conceal their identity.

It is, however, insisted that the State was not a party to that suit, and that neither the attorney general nor the auditor general was clothed with power to represent the State in the suit so as to bind it. The taxes under Act No. 173, Pub. Acts 1901, were made “a debt due from each of said companies to the State.” Section 13. By the same section the only means provided for collecting the tax, if payment is refused, is a command to the auditor general by warrant to levy the same by distress and sale, or to bring an action in the name of the people of the State of Michigan in any court of competent jurisdiction for the enforcement of the lien, etc. Section 105, 1 Comp. Laws, reads as follows:

It shall be the duty of the attorney general, at the request of the governor, the secretary of State, the treasurer, or the auditor general, to prosecute and defend all suits relating to matters connected with their departments.”

The State was the sole party interested in the suit. Powers as an individual had no interest in it. He was not, and could not have been, brought before the court as an individual. He was before it representing the State as its agent duly authorized by the express provision of the statute. The same is true of the attorney general. The State, by these enactments, not only authorized these officers to appear and defend, but made it their duty to do so. No discretion was lodged in them. If either refused, mandamus would lie to compel him to act in behalf of the State. It seems to be a rule of common sense and sound reason that the principal is responsible for the acts of his agent whom he has not only expressly authorized, but has commanded, to act for him. The statute provided no other way for the State to get into court than through these two officers as agents of the State. Who appealed from the decision of the district court to the United States Supreme Court ? Not the individual Powers. He had no personal interest in such appeal. He and the attorney general appealed for, and on behalf of, the State. The State was not content to rest the decision of the United States district court upon the theory that the State was not a party and was not bound by it, but took an appeal. After that decision the State became-the moving party, and took the respondent to the United States Supreme Court to review that decision. It there stood in the position of plaintiff in error, asking the decision of the court of last resort upon the issues involved. After reaching that court, the attorney general of the State applied to have the case advanced upon the docket for the reason that it was a State case, that the State alone was interested, and its revenues impaired. In the application by the attorney general “as Attorney General of Michigan, solicitor for appellant,” to advance the case, he stated:

“ That said cause is instituted in the circuit court of the United States for the western district of Michigan, is in effect a suit against the State, its duly authorized officers being enjoined from enforcing a certain revenue law of the State for the collection of taxes assessed against railroad corporations.”

He also urged the special importance to the State of Michigan of an early decision of the questions at issue in the cause. Upon the representation that it was in fact a State case, and that the revenues of the State were involved, the case was advanced. The statutes above cited constitute an express consent on the part of the State to appear and be represented in such suits by the officers named. In bringing suit under the statute and against the auditor general, the respondent brought suit against the State, and the attorney general, acting under the mandate of the law, appeared to defend the State in the suit, and not a party who had no interest in it. The statutes constitute a waiver of the rights of the State not to be sued without its consent. Furthermore, the acts and conduct of the State after suit was brought, as above stated, constitute a waiver of its immunity. The recent case (1905) of Gunter v. Railroad Co., 200 U. S. 273 (26 Sup. Ct. 252), is decisive of this case. That case, like this, involved the revenue of the State. The language of the statute is very similar, but not as mandatory in character as that of our own. It reads:

“And, if the State be interested in the revenue in said action, the county auditor shall immediately upon its commencement inform the auditor of State of its commencement and of the alleged cause thereof, and the auditor of State shall submit the same to the attorney general, who shall defend said action for and on behalf of the State.”

The facts and circumstances of that case are substantially the same as in this. The court held that the statute constituted a waiver of the State’s immunity from suit. The county treasurer was made the tax collector, and was held to be the agent for the State, and in the suit represented the State. In a former decision (Humphrey v. Pegues, 16 Wall. [U. S.] 244) the court held that a contract existed between the State and the corporation, the assignor of the Atlantic Coast Line Railroad Company, by which it was exempt from taxation. The State of South Carolina attempted to raise the question again by a subsequent tax upon the corporation. The court held that the Pegues Case was res judieaia not only of the taxes for the year involved in the Pegues Case, but of the right of taxation. for all subsequent years. The assignments of error in the Powers Case, 19 in number, cover all the questions raised-in the Joy Case. The records and briefs in that case were before the United States Supreme Court. The same questions were argued in both courts. That court had jurisdiction to decide all the questions raised in the case. One, and the first one to be decided, was the effect of the decision in the Joy Case. That court held that it was res judicata of the validity of respondent’s special charter. This court will not review the decision of the United States Supreme Court upon that question any more than it will upon any other. It is binding upon this court.

The decree of the circuit court in the tas case is affirmed, with costs of both courts, and the quo warranto case is dismissed out of this court, with costs.

Montgomery, Ostrander, Hooker, Moore, Mc-Alvay, and Brooke, JJ., concurred.


text:
    FOLKMIRE v. MICHIGAN UNITED RAILWAYS CO.
    1. Trial — Directing Verdict — Negligence.
    On a review of the testimony, it is held that there was no evidence that deceased was killed because of the failure of defendant’s motorman to blow the whistle.
    2. Negligence — Street and Interurban Railways — Rate op Speed.
    A rate of 40 or 50 miles an hour in running an interurban car is not, as a matter of law, negligence.
    3. Same — Highway Crossings — Sapety Devices.
    Failure to maintain safety devices at a dangerous crossing is actionable negligence only when common prudence requires such precautions.
    4. Same — Order of Railroad Commissioner.
    That the railroad commissioner has not required a bell or flagman at a crossing is not conclusive of due care.
    5. Contributory Negligence — Personal Injuries.
    Where the undisputed evidence shows that the deceased drove upon the track without looking for a car, the presumption that she was exercising due care is rebutted, and a verdict should be directed for the defendant.
    Error to Calhoun; North, J.
    Submitted February 17, 1909.
    (Docket No. 64.)
    Decided June 7, 1909.
    Case by John F. Folkmire, administrator of the estate of Minnie W. Folkmire, deceased, against the Michigan United Railways Company for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Sanford W. Ladd, for appellant.

      Jesse M. Hatch and Duane G. Salisbury, for appellee.
   Hooker, J.

The plaintiff’s wife was instantly killed by a suburban car at a highway crossing. He has sued as administrator, alleging negligence on the part of the defendant. The negligence alleged consisted of—

(1) Failure to give a signal or warning on approaching the highway.
(2) Running the car at a high and dangerous rate of speed.
(3) Maintaining a dangerous crossing at the point where the accident occurred.
(4) Maintaining a crossing without safety devices, such as watchman, gates, and a system of signals other than the whistle on the car.

Plaintiff was given a verdict and judgment for $6,000, and defendant has brought the case to this court by writ of error.

Should the court have directed a verdict for defendant upon the ground that defendant was not shown to have been negligent?

Failure to give signal. In our opinion there was no evidence that the whistle was not blown for the crossing at the regular whistling post, and there was much testimony that it was blown. Shufelt v. Railroad Co., 96 Mich. 334 (55 N. W. 1013).

High rate of speed. The evidence is undisputed that the car was running at a speed of 40 or 50 miles an hour. This was not per se negligence, but it does not follow that it was not negligent. That must depend on other considerations that will be discussed later.

Maintaining a dangerous crossing. 4. Maintaining a dangerous crossing without safety devices. The last two claims of negligence may be considered together. The crossing was made at a long curve of the railroad and in a cut. We judge from the photographs that the excavation was little, if any, wider than was necessary to accommodate the road and its cars. The highway which crossed at grade was not at right angles with the railroad, and the deceased was driving toward the approaching car, but there was no place from which the car could be seen until she reached a point but a few feet from the rail. The distance that it might then be seen, as it came into sight around the curve, was a matter in dispute, but 450 feet is the maximum distance shown. According to plaintiff’s theory that the car was 300 or 350 feet from the crossing when it rounded the curve and became visible, running 50 miles an hour, there would be but six seconds before it would reach the crossing if not slowed down; while at 2 miles an hour — the rate that deceased is said to have been driving — it would have taken her more than twice as long to cover the 40 or more feet which the jury might have found it necessary for her to drive to get far enough across to be out of danger.

Counsel say that we have decided that it is not negligence to drive a car at a high rate of speed in the country, citing the cases of Robinson v. Railroad Co., 79 Mich. 328 (44 N. W. 779, 19 Am. St. Rep. 174); Shufelt v. Railroad Co., 96 Mich. 329 (55 N. W. 1013); Tobias v. Railroad Co., 103 Mich. 339 (61 N. W. 514). These cases do hold that the exigencies of modern travel require rapid transit, and sustain the statement hereinbefore made that a steam car is not necessarily negligently run when a high rate of speed is attained, and that speed alone is not per se negligence. It does not follow that a rate of speed making it impossible to get off from a track in safety after it is possible to discover a car is not a negligent rate of speed, nor that it is not negligent to maintain a highway crossing, exceptionally dangerous, without some provision for preventing such accidents. It is true that the whistle and incessant ringing of the bell, together with the noise accompanying a heavy train on a steam road, has generally been deemed sufficient care without placing flagmen or electric bells on the crossings, but there are cases where the contrary has been held. Thus in the case of Guggenheim v. Railway Co., 66 Mich. 159 (33 N. W. 166), it was said of an exceptionally dangerous crossing that,

“ While there was at the time of the accident no statute limiting the speed of the train over this crossing, yet the speed of such train must nevertheless be consistent with the degree of care and prudence required in good railroad management, and that such crossing must be approached and passed over with the care and prudence commensurate with the rate of speed attained, and the train managed and controlled with that degree of care and prudence required for the safety of the lives and property of the persons rightfully approaching and traveling over such crossing.”

In Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 873, 3 L. R. A. 594), this claim was made that there could be no negligence in having no flagman where none had been ordered by the railroad commissioner, but we held that this was not conclusive, and sustained a charge that, “when common prudence required a flagman or his equivalent,” such provision should be made, i£ the danger at the crossing was altogether exceptional, because of a situation which rendered ordinary prudence on the part of a driver insufficient protection against injury. Again in Willet v. Railroad Co., 114 Mich. 411 (72 N. W. 260), it was said that the jury should have been allowed to find negligence in not providing some method of giving notice of a train’s approach, where view was wholly cut off by a string of freight cars standing upon a city siding. See, also, Grand Trunk R. Co. v. Ives, 144 U. S. 408 (12 Sup. Ct. 679). An elaborate note upon this subject, with a multitude of cases, will be found in the case of Cowen v. Dietrick, 4 Am. & Eng. Ann. Cas. 294 (101 Md. 46, 60 Atl. 282).

The facts of this case are such as to subject it to the test of this line of cases without invoking any distinctions that might perhaps be based upon the differences between steam and electric roads and the laws pertaining to them. We think that the refusal of this request was justified by the proof. In thus holding we dov not imply that the jury should have found negligence. It would depend upon what they found the evidence to be.

Contributory negligence. The undisputed evidence shows that the deceased had a docile horse, that she was familiar with the crossing and the method of running the cars, also that she was driving nearly west, while the cars came from a little north of west, directly toward and in front of her. She was facing it as it came around the curve. It is self-evident that the car must have been visible from her wagon as soon as she was visible to the witnesses on the car, whose testimony is the only evidence of what took place. The plaintiff called two of the six witnesses upon the car. One was a Mr. Nichols, who sat in the fourth seat from the front end, on the left-hand side of the car. He saw the buggy before it was struck. The first that attracted his attention to the woman or buggy was when he saw the horse going onto the track. He was asked:

“ Could you see the woman at that time ?
“A. Yes, sir; but I saw the horse first — or right at the same time. * * * The first I saw that called my attention was seeing the horse on the track and as I saw the horse I heard the whistle.”

James Elliott, a deputy sheriff, sat in the smoking room at the rear end of the car. His attention was called to the sudden shock of the car, caused by the sudden application of the brakes, and this was followed in four or five seconds by the crash, lie did not see the buggy before the accident. The defendant produced four witnesses who were on the car. One Raub, a passenger, sat in the third seat in the observation section on the left or north side of the car, and had a view of the track. The whistle was sounded for the crossing as the car rounded the curve, and he looked out, and saw the rig coming, saw the horse’s head in the road coming up on the track. He thought his head was two rods from the north rail at the crossing point, and at the same time he saw the deceased apparently looking down.

“She drove on till she got right on the track. Then she looked up till she seen it. Then she slapped the lines on the horse and tried to get across.”

The horse was walking. The whistle was blown again “pretty quick’’after he saw the rig, “about the same time ” as near as he could remember. This was as they rounded the curve, and he placed the distance at 300 feet. He said that he would not swear positively that she was looking down, and could not tell which way she was looking, but it looked as though she was looking down, and that she first looked in the direction of the car almost at the time the car struck the buggy, when she looked up and slapped the lines on the horse. Ered Barker, the motorman, said he whistled for the crossing at the “board” about 900 feet distant. After this, and about 400 feet from the crossing, he saw the horse walking, and he saw the woman after seeing the horse. He saw her when she first looked up and saw the car. She was then almost square across the track.

“Q. And previous to that, had you seen her looking toward the coming car; and to the west ?
UA. Yes, sir.
“Q. Then what did she do ?
(tA. She struck the horse once or twice, then raised up and screamed, raised up as if intending to jump out of the rig.
“Q. Previous to that time when she did this, as you say, after she had gotten square onto the track, had she done anything out of the ordinary except to sit in the buggy and drive along in the ordinary way ?
“A. No, sir.”

On cross-examination he said:

“I was 400 feet away when I saw the horse, according to my best judgment. And the horse was about fifteen feet from where she [the woman] was hit. I could not see her when I first saw the horse.”

Floyd Thompson was in the second observation seat. He saw the horse first, just as the car was rounding the bend. He judged him to be 10 or 15 feet from the track, and right afterwards he saw deceased. Signals were previously given. The horse continued to walk until they were on the track. The lady saw the car when she was on the track. She looked up just as she got on the middle of the track, and tried to urge her horse forward. Did not see her look up before that. Frank Thompson was on the car. He saw the whole rig as the car went around the curve. The lady came on not looking to see that the car was coming, as it seemed to him, drove right onto the track, or the horse on the track — he could not say which — before she showed any signs of noticing the car. Then she slapped the horse with the reins, and then the car struck the buggy. This is all of the testimony given by eyewitnesses, and it is all consistent only with the theory that deceased was inattentive, and omitted to look for a car, which was in plain sight before her horse reached a place of danger, and when she could easily have avoided the accident. The case falls so plainly within the rule laid down in several of our own cases that we are compelled to say that the court erred in not directing a verdict for the defendant upon the ground of contributory negligence. The following cases are in point :

In the early case of Lake Shore, etc., R. Co. v. Miller, 25 Mich. 290, this question is elaborately discussed, holding that a railroad is a warning of danger, that, if either of the senses of hearing and seeing cannot be rendered available, the obligation to use the other is the stronger, and if one neglects to do this, and ventures blindly upon the track without any effort to ascertain whether a train is approaching, such conduct is of itself negligence, and should be so pronounced by courts, as matter of law. See note to this case in which many other cases are cited. Haas v. Railroad Co., 47 Mich. 401 (11 N. W. 216), followed the case last cited; Mynning v. Railroad Co., 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Richfield v. Railroad Co., 110 Mich. 406 (68 N. W. 218); Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594); Guta v. Railway Co., 81 Mich. 291 (45 N. W. 821); Graf v. Railway Co., 94 Mich. 579 (54 N. W. 388); Gardner v. Railroad Co., 97 Mich. 240 (56 N. W. 603); Houghton v. Railway Co., 99 Mich. 308 (58 N. W. 314); Braudy v. Railway Co., 107 Mich. 100 (64 N. W. 1056); Bannister v. Railway Co., 113 Mich. 530 (71 N. W. 861); Tucker v. Railway Co., 122 Mich. 149 (80 N. W. 984); Proper v. Railway Co., 136 Mich. 352 (99 N. W. 283), and cases cited; Kwiotkowski v. Railway Co., 70 Mich. 551 (38 N. W. 463).

Plaintiff’s counsel urge the rule that we must presume that this woman was not negligent under the rule stated in the following cases: Mynning v. Railroad Co., supra; Kwiotkowski v. Railwuy Co., supra; Adams v. Iron Cliffs Co., 78 Mich. 277 (44 N. W. 270, 18 Am. St. Rep. 441); Grostick v. Railroad Co., 90 Mich. 608 (51 N. W. 667); Underhill v. Railway Co., 81 Mich. 45 (45 N. W. 508). See Chesapeake, etc., R. Co. v. Steele, 84 Fed. 93, 29 C. C. A. 81, and note. The difficulty is that overwhelming and undisputed evidence shows that she did not stop or even look after reaching a point where either would have done any good, but drove heedlessly upon the track, with the car in plain sight, but a short distance away.

We deem it unnecessary to discuss other questions as they may not arise, should the cause be tried again.

The judgment is reversed, and a new trial ordered.

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


author: Blair, 0. J.

text:
    MAILHOT v. TURNER.
    1. Contracts — Lease—Executory Agreement.
    A proposition to lease, accepted by the signature of the lessor, upon which the lessee was placed in possession for the purpose of estimating values,'where no intention appears to execute further instruments, constituted a present, executed lease, — not an agreement to lease.
    2. Homestead-Constitutional Law.
    A lease of the homestead and other real property, of such a nature as to exclude the wife from possession of the homestead, is void without her signature. Constitution, Art. 16, §2.
    3. Same — Actions—Construction —Severable Provisions.
    Damages are not recoverable on any portion of the lease, although it includes a provision for the sale of personal property, where the intention was to execute an inseparable contract.
    Error to Cheboygan; Shepherd, J.
    Submitted January 13, 1909.
    (Docket No. 80.)
    Decided June 7, 1909.

      Assumpsit by Joseph H. Mailhot against George H. Turner for breach of a contract for the sale of certain real estate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Benjamin & Quay, for appellant.

      Frost & Sprague, for appellee.
   Blair, 0. J.

For some time previous to January 20, 1906, plaintiff and defendant were the only merchants engaged in business — grocery and general store — in the village of Topinabee, a summer resort on Mulletts Lake. There were only three store buildings, one of which was owned and occupied by the plaintiff, and the others owned and occupied by the defendant. Plaintiff presented to defendant a written proposition, which proposition was signed by defendant, and thereby, plaintiff claims, became a binding agreement between the parties. The agreement was as follows:

“ Jan. 20, 1906.
“ Mr. G. H. Turner.
Dear Sir: I make you the following proposition for the purchase of your property: I will lease the properties described as lot one, block seven, and lots five and six, block one, village of Topinabee, and the buildings thereon, for a period of four years from date of this agreement, at a monthly rental of $15.00 for both properties, with the privilege of purchasing said properties at any time within four years from date of agreement, for the sum of $2,000.-00. The stock to be taken by me at 75 cents on the dollar of invoice price. Payment to be made in the following manner: $1,500.00 cash, remainder in notes to be paid at the rate of $25.00 or more per month until paid in full, with interest on deferred payments at the rate of 6 per cent, per annum. To be secured by a mortgage second to one of $1,000.00. The show cases, etc., etc., to be taken by me at the rate of 50 cents on a dollar invoice price.
“ J. H. Mailhot.
“ G. H. Turner.”

The buildings on lot 1 consisted of a store and a living house attached to it. Defendant and his wife lived in the house. Defendant did not own the title in fee to lot 1, block 7, but owned a life estate therein. Defendant refused to carry out the agreement, and plaintiff brought this action for damages alleged to have been suffered in consequence of such refusal. At the conclusion of the testimony, the court directed a verdict for the defendant, and plaintiff brings the case to this court for review upon writ of error.

Treating the signature of defendant to the plaintiff’s proposition as creating a contract between the parties containing their entire agreement, we think the plaintiff’s counsel misinterpret the effect thereof. The contract was not, in our opinion, an agreement for a lease, as claimed by plaintiff, and was not so regarded by the parties. Shortly after the signing of the agreement, defendant put plaintiff in possession of the store building and other buildings on lots 5 and 6, in block 1, and permitted him to look over the stock, for the purpose of estimating its value. Afterwards plaintiff gave up the possession of the real estate last mentioned to defendant. Plaintiff never demanded a written lease or bill of sale, nor is there any intimation in his testimony that he supposed any further papers were to be executed. In the light of the testimony, we think it should be held that the agreement was intended by the parties as, and was, a present lease of the real property for a period of four years from January 20, 1906, at a monthly rental of $15, with an option to purchase at any time within four years for the sum of $2,000. The constitutional provision as to homesteads provides that a mortgage thereof “or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.” Constitution, Art. 16, § 2. This provision covers a lease of the homestead, at least where, as in this case, it would exclude any enjoyment of the premises by the wife. 15 Am. & Eng. Enc. Law (2d Ed.), p. 674, subd. 4; Maatta v. Kippola, 102 Mich. 116 (60 N. W. 300). The lease of the homestead, without the signature of the wife, was absolutely void, just as a deed of the homestead without her signature would have been void. So far as the leasehold interest was concerned, the instrument in question was not an agreement to alienate the premises, but was the instrument of alienation itself, and, lacking the signature of the wife, was invalid. Lott v. Lott, 146 Mich. 580 (109 N. W. 1126, 8 L. R. A. [N. S.] 748); Maatta v. Kippola, supra.

Plaintiff treats the agreement as an agreement to execute a lease, and contends that, while it was so far void as not to support a decree for specific performance, it was so far valid as to support an action for damages for nonperformance. Plaintiff further contends, as follows:

“ (5) Even if it could be held that the agreement to lease and sell the real estate was void on account of it not having been signed by the wife, would that affect the validity of the sale of the personal property — the stock of goods? We think not. The proposition to purchase and the price to be paid therefor and the method of payment are fully set forth in the memorandum, and are distinct and separable from the proposal to lease and sell, and this part of it need not be signed by the defendant’s wife, so that, even if this court should hold that the plaintiff cannot recover damages for the agreement in reference to the real estate, plaintiff could still recover for his damages sustained by the refusal to carry out the agreement to sell the personalty.”

It appears from the plaintiff’s testimony that defendant wished to dispose of all of the property, for the reason that he intended to remove with his family from Topinabee to Sault Ste. Marie and make his home there. The contract itself indicates that it was an entire and indivisible contract. The bill of particulars bases the right of recovery upon the contract, and it is clear that the lease of the real estate with the privilege of purchase was regarded as an essential part of the contract, without which probably neither party would have entered into it. The rent was not divided between the separate properties, but was a single sum for both properties, and, when plaintiff was refused possession of the homestead, he surrendered, the possession of the other real estate. Evidently, if he could not have the homestead, he did not want the other real property. We are therefore of the opinion that the invalidity of the lease as to the one description avoided it as to both. The agreement provided for the leasing of the stores and the purchase of the ■ stock and -fixtures therein as mutually dependent, the one upon the other. Neither of the parties was bound by the lease of the real estate, and therefore neither of the parties should be held to be bound by the agreement as to the personal property, which was in no sense independent of the lease. Co-operative Telephone Co. v. Katus, 140 Mich. 367 (103 N. W. 814, 112 Am. St. Rep. 414).

The judgment is affirmed.

Grant, Montgomery, Ostrander, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    BRININSTOOL v. MICHIGAN UNITED RAILWAYS CO.
    1. Negligence — Master and Servant — Wilful or Malicious ' Acts.
    A charge to the jury that the defendant railway company is not liable for the wilful or malicious act of its motorman in unnecessarily blowing the whistle and frightening plaintiff’s team, but that it would be liable for a negligent blowing of the whistle, is sufficiently favorable to defendant.
    2. Same — Street Railways — Unnecessary Use of Whistle.
    Testimony that there was no crossing within one and one-half miles, and no apparent necessity for blowing the whistle, raises an issue of fact as to the negligence of the defendant.
    8. Personal Injuries — Expert and Opinion Evidence — Damages.
    While impairment of the nervous system and disorders reasonably certain to result from the injuries are proper elements, testimony as to speculative possibilities is not a proper basis upon which to estimate damages.
    4. Same — Damages, Future and Prospective.
    To entitle a plaintiff to recover damages for apprehended future consequences of an injury, there must be a degree of probability of such consequences as to amount to a reasonable certainty that they will result from the original injury.
    Error to Calhoun; North, J.
    Submitted February 19, 1909.
    (Docket No. 107.)
    Decided June 7, 1909.
    Case by Yerne S. Brininstool against the Michigan United Railways Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Sanford W. Ladd, for appellant.

      J. M. & J. L. Powers, for appellee.
   Ostrander, J.

The plaintiff, driving a team of horses in the highway, adjoining the track of the defendant’s railway, was thrown, from the wagon and injured. The team was frightened; the wagon and harness broken. He alleges in his declaration:

‘ ‘ The said defendant, by its agents, servants, and employés, again sounded said whistle, without any reason or cause therefor, a large number of times, for the express purpose of frightening said team, and of injuring said plaintiff; that at the time said whistle was sounded as aforfesaid, said car was not approaching any crossing nearer than 1^- miles from the point where said whistle was sounded, and there was no reason whatever for the said defendant, by its said servants, agents, and employés, to sound said whistle; that the said defendant, its agents, servants, and employés then and there well knew, at the time said whistle was sounded as aforesaid, that said plaintiff’s team was frightened, and liable to run away on account of the repeated sounding of said whistle, yet the said defendant, by its agents, servants, and employés, disregarding its duty as aforesaid, wilfully, maliciously, wantonly, and negligently continued to sound said whistle after it, the said defendant, its agents, servants, and employés well knew that the plaintiff’s said team was being frightened by said whistle and the passing of said car, and did not stop, or attempt to stop, said car or cease to sound said whistle until said team of said plaintiff was so frightened that it was impossible for said plaintiff to control and manage said team.”

In the second count of the declaration, a careless and negligent sounding of the whistle, frightening plaintiff’s team and causing his injury, is alleged.

The court instructed the jury:

“ I am requested to charge you, and do charge you, that the defendant in this case is not liable for any damages whatever to the plaintiff, if you find that the motorman, at the time he blew the whistle in question, was not in any way furthering or serving the defendant’s interests, and that he blew the whistle, not for any purpose in connection with the ordinary and proper handling of the car, or because it was his duty in any way, as a motorman, to blow the whistle, but for the intentional purpose of frightening the plaintiff’s horses; and, if you find such to be the fact, I charge you that your verdict must be for the defendant, ‘ No cause of action.’ I also charge you that the defendant railway company is not liable in this case for any damage to the plaintiff whatever, if you find that the motorman upon the car blew the whistle intentionally, wilfully, and maliciously for the purpose of frightening plaintiff’s horses, if you further find that what he did in that respect was not within the scope of his employment as a motorman. Those two requests have already been covered in substance. In determining, gentlemen, whether or not there was negligence or carelessness on the part of the motorman in sounding the whistle in the manner and at the place that he did, I say to you, if you come to the other question (and you will have to consider it) of determining whether or not he was wilful or malicious in sounding the whistle in the manner and at the time and place he did, you have a right to take in consideration, and should take in consideration, the fact that the whistle, as is indicated by some of the evidence in the case (and that is a question of fact for you to determine), was not blown ordinarily at this point, and that there was no crossing within a mile and a half, and under the light of the other surrounding circumstances as shown by the evidence in the case which would enable you to determine the principal phase of the first question you have to decide upon; viz., whether or not there was carelessness or negligence on the part of the motorman in sounding the whistle, or whether he was prompted by wilfulness and maliciousness.”

It is one of the contentions of the defendant, appellant, that a verdict for defendant should have been directed, for the reason that the testimony for the plaintiff tended to prove a malicious and wilful, as opposed to a negligent and careless, use of the whistle; that it did not tend to prove a negligent and careless use of the whistle. It is true that the testimony for the plaintiff (no testimony upon this subject was offered by defendant) tended to prove there was no apparent necessity for such sounding of the whistle as was alleged and proven, and witnesses were permitted to testify, on cross-examination, that they thought the motorman sounded the whistle to make the horses jump. It cannot be said, however, as matter of law, that the testimony did not tend to prove a negligent, use of the whistle, as opposed to a malicious and a wanton use of it. It was not error to submit the case to the jury upon the theory of defendant’s responsibility for the careless and negligent use of the whistle; and, as the instructions upon the subject of wilful and malicious use were agreeable with defendant’s contention, it must be assumed that the jury found the negligence of the motor man, and not his wilfulness, was responsible for the fright of the team. It is therefore unnecessary to enter upon the subject of the responsibility of the defendant for the wilful or the malicious conduct of the motorman.

Defendant produced as a witness the physician who attended the plaintiff at the hospital to which he was taken August 17th, and from which he was discharged August 26th. He was of opinion that plaintiff sustained no permanent injuries. Plaintiff’s testimony tended to prove that he had been — was when injured — a healthy man. He was rendered unconscious by being thrown from his wagon; his nose was broken; his scalp badly cut, front and rear. There was also testimony that the skull was fractured. Since the injury — never before — he has been subject to headache, bleeding at the nose, and at intervals to “nervous spells,” which prevented work and reading. His witness, Dr. Alvord, gave testimony tending to prove a continuing and permanent injury to plaintiff. It was objected that no injury to the brain, and none to the nervous system, was alleged, and also that testimony, wholly uncertain and speculative in character, was admitted to prove the nature and probable consequences of the injury. The objection last stated is the one relied upon in this court. After describing the external evidences of injury to the head, and the manner in which force applied to the skull sufficient to produce such injuries would affect the blood vessels and soft matter of the brain, the witness said, among other things:

“Now, in this case we didn’t have a rupture of the brain, but we have a large amount of pressure upon those capillaries, which has induced a great deal of congestion here that didn’t properly belong there. I mean to say, those capillaries, instead of being the small capillaries, that they were created elastic, as they are, and they are as elastic as rubber, have been pressed with the amount of blood in them until they are forced to contain a great deal more blood than they have any business to in the same space, so that those are enlarged, permanently enlarged, because the blood keeps forced in from the heart below. What is the result ? The result is not only this depression here, but possibly extending to the inner table of the skull, as well as without, but the result is what we have got always to have in mind, recurring probabilities of brain trouble, a type which always follows these traumatic troubles. * * * For instance, it is quite a common thing for these traumatic injuries to the brain, of this type — accidental, forceful injuries — to develop epileptic fits within two or three years afterwards. It is quite a common thing for them to develop sclerosis, a hardening of the cells themselves, in operations that produce the shaking palsy. * * * He cannot live a minute longer without that danger hanging over him, and we cannot tell when it will strike him from this time forth, and it is liable to come any month, any year. As years go on he is more liable to it, instead of having the healthful changes that occur in advanced years for the man with a good healthy brain, who has no such changed conditions in the blood supply there — that he is very likely — and a good deal more likely than a normal man to (not) have brain trouble or neurosis that produce insanity, epilepsy, paralysis, and all that class of cases. A good deal more might be said but this is the drift of it 5 that is the most important part of this case. * * * They are permanent — I don’t mean to say that the scalp wound is a permanent injury. All these external conditions have healed as much as they will ever heal. I am not, I trust, very much mistaken. * * *
UQ. During the examination which you have made of Mr. Brininstool last evening and had before the injury have you discovered any nervous condition ?
“A. Yes, sir. * * * In assuming that he had never had nervous spells prior to the injury received, but since the injury he had been frequently subject to these nervous spells, of being nervous, I would say that they were very likely produced by the injury, or rather indirectly by the injury, simply as symptoms of deep-seated trouble within the brain.
“Q. Then a nervous condition occurring in that way, I understand you, would be a symptom of an injury or some trouble to the brain ?
“A. A symptom of brain lesion, internal injury, perhaps would be the English of it. * * * There are two forms of nervous difficulties; they are organic and functional. Now, ordinary functional headache that comes on, the functional nervous difficulties that we have every once in a while in normal people, is very different in its character, in its history, and in its type, from a nervous ' condition, which we get in cases of brain lesion. In the functional type of nervous troubles they are largely hysterical. They don’t amount to any particular sum. In case of injury by traumatics, like this, the nervous condition has a very different aspect. It appears different; all the conditions of the body are different; the pulséis different. If the temperature was taken that .would be shown to be different, depending upon the hidden cause back of it all in connection with the nervous system within the brain. Mr. Brininstool’s nervous condition is organic, rather than functional. It is a permanent condition.
On cross-examination:
“Q. Now, doctor, you have stated here as to what might happen in the future in reference to some possible brain trouble, or possible epilepsy, or something of that kind — you don’t want to have this jury to understand that this young man is going to have any such trouble as that, or that he is absolutely sure to have some trouble like that, do you, doctor ?
“A. I would like to have them understand that he has the danger hanging over him for the balance of his life.
“Q. A possible danger only ?
“A. Oh, it is a danger — a living, actual danger.
‘ * Q. But it is not anything that you as a physician or as a surgeon would say is going to happen absolutely, is it doctor ?
“A. I would say—
“Q. Answer that by ‘Yes’ or ‘No,’ please.
“A. Ask.
“Q. (Question read.)
“A. No, sir; it is true that epilepsy may or may not occur.
“Q. And the chances are just as good that it will not, or better, than that it will happen, aren’t they ?
“A. Pretty well divided.
“Q. That is your opinion about it ? Of course, in your profession you have no absolute certain rules to go by in those matters — that is your opinion only, is that right ?
“A. It is a matter of opinion.
“Q. Now, the other things that you referred to in the way of possible troubles in the future are also along the same line — they may or may not happen, being a matter that the future alone can tell about, isn’t that right ?
‘A. That is true.
“Q. You have seen many cases where there have been depressions in the skull such as this young man has got, or some depressions, and cases where some other external appearance the same as those where the skull showed the same appearance where no such thing as brain trouble or epilepsy or any of those things have occurred, haven’t you ?
“A. I think not. I think there is always a train of conditions following and depending on such traumatism. It may not be always in one direction; it may not always be epilepsy. It is not true that every injury to the head causes brain trouble.
“Q. And it is not true that every injury to the head, even though it has been a violent injury, as perhaps the indications he would show, would cause brain trouble. You don’t say that is true in every case ?
“A. Well, when we have got as much behind it as there is in this case, there is sure to be some brain trouble. A great many people are suffering from brain trouble and don’t know it.
UQ. And people that are notin a very serious condition go about and do their work; still they are suffering from some little brain trouble or condition. That statement is true, isn’t it ?
“A. Yes, sir; headaches are a very common thing. You oftentimes find very serious headaches in cases where there has been no history of any violence to the head. That is also true of nose bleed. These things, taken in themselves, do not indicate any permanent development here. Only when you collect all these things together they have a significance. The mark on the forehead where the scar is that in itself does not indicate that there is any severe injury. That is not serious as far as a skin trouble is concerned. It is not a trouble that would arise from depression in the rear of the skull; it is the trouble that would arise from an injury to the brain. The scar on the back of the neck is not a very deep-seated, serious thing, or of anything serious.”
On redirect:
“Q. Doctor, from your examination of the plaintiff in this case, what would you say as to the probability of his having epilepsy, apoplexy, or paralysis some time in the future ? * * *
■ “A. I cannot say that any more of these will occur. I cannot say what certain sequel there will be in this case, but such a kind of injury as this young man has received never goes through life without leaving its mark on some one of the neuroses, either apoplexy, epilepsy, paralysis, functional or organic nervous difficulties; possibly a formation of a tumor within the brain; possibly a degeneration of the cell tissue, starting in the region where the injury was received; posteriorly, and possibly anteriorly. There is a whole lot of those neuroses, any one of which is_ liable to occur to this young man during the course of his life. It may not be this year; it may not be next year; it may not be in five years — but he will not get through life without knowing it.”
On recross:
“Q. Then, of course, I understand you that the injury, if any, and its results, is a matter you can’t tell us with any greater degree of-certainty than you have already ?
“A. Correct.
“Q. These matters are matters that mayor may not happen in the way of difficulties in the future ?
“A. Any one of them. That is true; as a whole — as a class — some of them will.
“Q. And you think that is absolutely correct that some of them will ?
“A. Yes, sir; I think some of these neuroses will fill out this man’s life without question, simply because all these classes of cases have that history.
“Q. But you can’t tell us which one ?
“A. No.
Q. Or when ?
“A. No.”

Reading this testimony, it seems to us to amount, in effect, to this: No one could predict which, if any, of the several enumerated disorders would supervene; but a condition had been created, an effect produced, by the injury permanently impairing the normal health of the plaintiff, manifesting itself in present nervousness, and likely to manifest itself in more serious nervous disorder, at some time during the probable life of the plaintiff. While this is the conclusion we draw from the testimony, we are constrained to say that, as it was elicited, it is more than probable that the jury did not so translate it. It is the generally accepted rule that to entitle a plaintiff to recover damages presently for apprehended future consequences of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury. Strohm v. Railroad Co., 96 N. Y. 305; Briggs v. Railroad Co., 177 N. Y. 59 (69 N. E. 223, 101 Am. St. Rep. 718); 12 Am. & Eng. Enc. Law (2d Ed.), p. 450. See Collins v. City of Janesville, 99 Wis. 464 (75 N. W. 88). If one of the consequences of an injury is a permanent impairment of the nervous system, it should be considered by the jury in estimating damages. If a more serious nervous disorder than is presently shown is a reasonably certain future consequence of the injury, and is expected, evidence upon the subject should be received. The charge to the jury did not limit or modify the effect of the testimony, or confine the jury to the question of the probable results of the injury to the head. The testimony was all of it permitted to stand for consideration, and as it is obvious that some of it is speculative, and refers to possible consequences and to disorders liable to occur; and as a substantial verdict was returned by the jury, we feel obliged to reverse the judgment, and to order a new trial.

Other contentions which are made are not likely to arise upon a new trial.

Judgment reversed, and a new trial granted.

Montgomery, Hooker, McAlvay, and Brooke, JJ., concurred.