author: Brooke, J.

text:
    VAN SLYKE v. VAN SLYKE.
    Divorce — Suit Pending — Equitt—Motions—Dismissal of Bill.
    Complainant’s wife filed a bill for divorce wbicb be answered, charging her with fraud, in that she falsely represented that she was divorced from her former husband and praying for relief. The cross-bill was not verified as required by rule. Subsequently complainant filed a bill in another county praying for a divorce on the same grounds of fraud charged in his answer and cross-bill. A motion to dismiss the second suit was filed by defendant wife on the ground that the same issues were involved in the case instituted by her. Held, that the second proceeding was barred by the former suit pending and that the defect in the cross-bill could be remedied by application to the court.

    Appeal from Van Burén; Des Voignes, J.
    Submitted October 16, 1914.
    (Docket No. 10.)
    Decided December 19, 1914.
    Bill by William M. Van Slyke against Rose E. Van Slyke for divorce. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Alfred S. Frost (L. B. Gardner, of counsel), for complainant.

      Frank E. Jones, for defendant.

       The question whether the pendency of a suit for divorce or separation is a bar to another suit in the same State is treated in a note in 40 L. R. A. (N. S.) 83.

   Brooke, J.

The bill of complaint in this cause was filed to procure an annulment of marriage. The record discloses the following pertinent facts: The defendant in this proceeding on July 14, 1911, at that time being married to one Dibler, filed a bill for divorce in the Allegan circuit court. The defendant in that cause was brought in by publication, and after a full hearing upon the merits, a decree was granted to complainant (defendant herein) on December 5, 1911. Some time prior to the filing of said bill, complainant herein became acquainted with defendant and interested himself in and about the procuring of said decree of divorce. His purpose in so doing becomes apparent from the fact that shortly after the granting of said decree he became engaged to defendant and married her on April 9, 1912. The parties lived and cohabited together from that date to April 2, 1913, at which time defendant herein filed a bill for divorce against complainant in the county of Washtenaw. To this bill of complaint defendant filed an answer May 15, 1913, a material portion of which follows:

“The defendant, further answering said bill of complaint, denies each and every allegation as therein contained that has not already been answered or denied, and expressly charges the truth to be that said complainant perpetrated a fraud upon this defendant when she told this defendant that she had procured a legal divorce from her former husband, J. C. Dibler, of South Bend, Ind.; that this defendant believed the statements made by the said complainant concerning said matter, or he would not have entered into marriage relations with her; that he did so in good faith, believing that she was legally divorced, and did not know the contrary until he was so informed by his solicitor; and that since he was so informed, he has not lived or cohabited with said complainant,
“This defendant further alleges that after he was so informed by his said solicitor that he had made investigations, he learned that said complainant and her former husband were living in the city of South Bend, Ind., when they were separated; that the last time they separated was on the 10th day of April, A. D. 1910; that after the separation the said complainant lived for a short time with her mother at Quincy, Mich.; that later on she went to Mishawaka, Ind., where she engaged in the millinery business, and continued in such business from July 21, 1911, to March 12, 1912; that after leaving Mishawaka she clerked in a store at Hammond, Ind., and that she never had a legal residence in the State of Michigan, notwithstanding the fact that said complainant alleged in her bill of complaint against her former husband that for a period of one year and upwards immediately preceding the time of exhibiting her bill of complaint, she was an actual resident of the State of Michigan, and that she- still resided in, and was an inhabitant of the State of Michigan.
“This defendant further alleges that by reason of the false statements made in the bill of complaint filed by said complainant to obtain a decree of divorce from her former husband, she perpetrated a fraud upon the court, and procured a decree; that said decree is absolutely void, and that by reason thereof, she perpetrated a fraud upon this defendant, and has greatly wronged this defendant, and is not, nor has never been, the legal wife of this defendant.
“This defendant therefore prays that _ (a) said marriage entered into by the said complainant and himself may be declared null and void.”

On said last-mentioned date an order was made in the Washtenaw circuit court, requiring complainant herein to pay certain alimony and solicitor’s fees. This order he complied with until August 15, 1913, when he filed in the Van Buren circuit court his bill of complaint in the instant case. While this bill sets out with more particularity the alleged facts upon which he relies to bring about an annulment of his marriage than does his answer filed in the Washtenaw circuit court, they are, in essence, the same. On September 9, 1913, a motion was made in this cause, by defendant, praying for the dissolution of the preliminary injunction theretofore granted and the dismissal of the bill of complaint. The principal ground for said relief was that the same issues between the same parties were then pending in the circuit court for the county of Washtenaw, which court had jurisdiction of both parties. This motion was denied, and a full hearing had in the Van Burén circuit court upon the merits of the case. By the decree of that court, from which complainant appeals, his bill was dismissed. The court was of the opinion that the Allegan circuit court did not have jurisdiction to render the decree of divorce between defendant and her former husband, Dibler, for the reason that defendant had not resided in the State of Michigan a suificient length of time to confer jurisdiction. The court, however, found that complainant was active in the matter of securing said decree, that no fraud was perpetrated upon him, and that he should be held, by his conduct, to be estopped. The question involved upon this appeal is whether the bill was properly dismissed.

In the case of Robson v. Robson, 161 Mich. 293 (126 N. W. 216), this court refused to remand a proceeding to the circuit court for the purpose of permitting defendant to interpose the defense that the complainant was not his wife, because her divorce from a former husband.had been illegally granted. It was said of the defendant in that case:

“That he has been guilty of such laches as to render it inequitable for this court to exercise its discretion in favor of permitting him to take advantage of this defense. * * * Even if the statute should be held to be mandatory and the taking of the testimony and entry of the decree prior to the lapse of four months should be held to avoid the decree, the court ought not to facilitate the making of such an inequitable defense.”

In Harrison v. Harrison, 94 Mich. 559 (54 N. W. 275, 34 Am. St. Rep. 364), it was held proper for the defendant in a divorce proceeding to set up, by way of cross-bill, fraud on the part of complainant which would be sufficient to warrant a decree of annulment.

The gist of complainant’s bill in the case at bar, and of his answer filed in the Washtenaw county proceeding, is that he was induced to enter into the marriage relationship with defendant because he believed her fraudulent representation to the effect that the divorce between herself and Dibler was valid. Under the authority of Harrison v. Harrison, he had the right, by appropriate pleading, to raise this question in that court.

He did, in fact, raise it in his answer, and asked a decree of annulment upon the ground stated. It appears, however, that the answer was not verified as a cross-bill. This defect would have been remedied upon application. See Harrison v. Harrison, supra.

The issues in that case being such as they were, we are of opinion that complainant had no right to go to another county (Van Buren) and file an independent bill for the annulment of his marriage. At an early stage of the proceedings the court’s attention was called to the fact of the pendency of the identical question in the Washtenaw circuit court, where the court was possessed of full jurisdiction. The motion made at that time to dismiss complainant’s bill should have been granted, and complainant should have been remitted to his remedy in the Washtenaw circuit court, where he had first raised the issue. This view disposes of the matter in issue upon the question of jurisdictional grounds only.

The decree dismissing complainant’s bill is affirmed.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    MATTHEWS v. MONTREAL MINING CO.
    1. Appeal and Error — Pleading—-Abatement—Review—Waiver.
    On demurrer to a plea to the jurisdiction of the circuit court raising the objection that service of process on an agent of a foreign corporation who was not authorized to accept service was invalid, the defendant lost no rights and did not waive the defense raised thereby in taking an exception and pleading over after the court sustained such demurrer. Act No. 310, Pub. Acts 1905 (5 How. Stat. [2d Ed.] §12737).
    2. Pleading — -Abatement—Corporations, Foreign.
    A plea in abatement that defendant was a Wisconsin corporation; that it was not doing business in this State or transacting or operating any business within the State, or coming within thp said State in any way; that defendant had never within said State done or transacted any such business; that it had no officer, agent, attorney or counsel in the State authorized to receive service of legal process or appear for it in legal proceedings without special direction; that none of its officers or agents has any office or place of business within the State and it has not authorized any agent, officer, attorney or counselor to appear for it in this suit except for the purpose of objecting to the jurisdiction of the court; that the person on whom summons was served was not at the time within the State on official business of the corporation or in any official capacity, but casually or accidentally, and was not then and there authorized to represent it as an officer or otherwise or to receive service of legal process; that the cause of action arose in the State of Wisconsin where plaintiff’s intestate was employed by the defendant, was sufficient, certain and related to a single matter.
    3. Same — Amendment—Verified Plea.
    Such plea, being amended after verification by striking out the clause wherein it was alleged that defendant was not transacting or operating any business within the State so as to submit to the jurisdiction of the above entitled court, did not require to be verified a second time; for the conclusion stated in the omitted clause was a conclusion of law, not the subject of an affidavit.
    4. Corporations — International Law, Private — Foreign Corporations — Judgment—Abatement of Actions — Due Process of Law.
    Service of process upon the agent and officer of a corporation which was domiciled in a foreign State could not constitutionally be made if the company was not engaged in local business and the officer was not one that was empowered to accept service of process, or defendant was not transacting any business in the State; upon a showing that the officer was defendant’s manager and superintendent -and that he was casually in the State, not representing defendant, a plea to the jurisdiction should have been sustained in an action for the death of an employee in the sister State. Act No. 3, Pub. Acts 1909, amending 3 Comp. Laws, § 10442 (5 How. Stat. [2d Ed.] §13521).

      Error to Gogebic; Cooper, J.
    Submitted April 30, 1914.
    (Docket No. 70.)
    Decided December 19, 1914.
    Case by Richard J. Matthews, as administrator of the estate of Robert Matthews, deceased, against the Montreal Mining Company for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Belmont Waples (William F. Shea, of counsel), for appellant.

      Le Gendre & Driscoll, for appellee.
   Ostrander, J.

The suit was begun by summons. The sheriff of Gogebic county certifies that within said county of Gogebic the writ was served upon the defendant, Montreal Mining Company, by personally handing and delivering to and leaving with George H. Abeel, the superintendent and manager and an officer and agent of the above-named defendant, Montreal Mining Company, a true copy of the said summons, etc. The defendant pleaded in abatement of the action that it is a foreign corporation, organized and existing under the laws of the State of Wisconsin; that at the time of the commencement of this action “it was not doing business in this State of Michigan, or transacting or operating any business within said State, or coming within said State in any way * * *; that it had never within said State done or transacted any such business;” that it has no officer, agent, attorney, or counsel in the State of Michigan authorized to receive service of legal process or to appear for it in legal proceedings in any court in said State without its special direction and authorization; that none of its officers or agents has any office or place of business within the State, and it has not authorized any agent, officer, attorney, or counselor to appear for it in this suit, except for the special purpose of objecting to the jurisdiction of the court. The plea further sets out that George H. Abeel, on whom the summons was served, was not at the time of such service within the State of Michigan on official business for defendant, nor in an official character as an officer of defendant or otherwise, but casually and accidentally, and not as representing this defendant; that he was not then and there authorized to represent it as an officer or otherwise, or to receive service of legal process. It is further alleged that the cause of action in this suit arose out of the State of Michigan, and within the State of Wisconsin, in which latter State the decedent was employed by the defendant, and was working for it therein, under a contract made and to be performed therein, for wages due and payable therein. It prays judgment of the writ, and whether the court will take further cognizance of the action, and that the writ be quashed. The plea is verified. Plaintiff demurred to the plea, and the demurrer was sustained. Defendant pleaded over.

A judgment having been rendered in favor of the plaintiff, the first question this court is called upon to consider is the jurisdiction of the circuit court. 3 Comp. Laws, § 10442, was amended by Act No. 3 of the Public Acts of 1909, so as to read as follows:

“In cases where the plaintiff is a resident of the State of Michigan, suits may be commenced at law or in equity in the circuit court for any county in this State where the plaintiff resides or where service of process may be had, and suits at law may be commenced before any justice of the peace in such county, against any corporation not organized under the laws of this State, by service of a summons, declaration or chancery subpoena, within the State of Michigan, upon any officer or agent of the corporation, or upon the conductor of any railroad train, or upon the master of any vessel belonging to or in the service of the corporation against which the cause of action has accrued. And where the plaintiff is a nonresident of the State of Michigan, suits may be commenced in like manner against such corporations, in all cases where the cause of action accrued within the State of Michigan: Provided, that in all cases, except before justices of the peace, no judgment shall be rendered for sixty days after the commencement of suit, and the plaintiff shall, within thirty days after commencement of suit, send notice by registered letter to the corporation defendant at its home office.” (5 How. Stat. [2d Ed.] § 13521.)

It is by virtue of this statute and the service which was had in this case that jurisdiction of the defendant is asserted.

One ground of demurrer to the plea is that it is uncertain and ambiguous, and it is urged in this court on the part of the plaintiff, quoting from 1 Green’s Practice (1st Ed.), pp. 209, 211, and Gould on Pleading (by Hamilton), 87, 88 (see §57, 5th Ed.), that the plea lacks precision, and is open to the objection that it is double. It is also urged in the brief that, as it was originally filed and verified, it stated a certain conclusion of law, that by amendment this conclusion was omitted, that the plea has never since been verified, and is therefore insufficient in law. It is urged, further, that after the order sustaining the demurrer and overruling the plea had been entered defendant, through its attorney, filed a general notice of retainer, and later, without reservation, a plea of the general issue; that after judgment it filed a stay bond without reservation, and later entered into a general stipulation for extension of time to move for a new trial or settle a bill of exceptions. It is upon these grounds asserted that any rights which defendant had in consequence of the plea have been waived, and that the point raised by the plea is not for consideration by this court. The statute (Act No. 310, Pub. Acts 1905; 5 How. Stat. [2d Ed.] §12737) permits the assignment of error upon the overruling of the plea. Defendant duly excepted to the ruling, and lost no rights by pleading over.

The plea as amended is certain. The facts stated in it all relate to a single matter. The pleader evidently intended to negative the existence of all facts upon which, according to his construction of the law, jurisdiction could be predicated. It is true that a conclusion of law, namely, that the defendant was not transacting or operating any business within the State “so as to submit to the jurisdiction of the above entitled court,” is contained in the plea as filed and verified. The quoted language by permission of the court was struck out, and the plea was not again or thereafter verified. It does not appear from the record that any point was made in the court below that the plea was thereby rendered infirm, and as a mere conclusion of law is hardly the subject of an affidavit, and as the facts stated in the plea are verified, notwithstanding the presence or absence therein of the conclusion of law, which was eliminated, and the court below overruled the plea upon the merits, the objections which are made in this court are not sufficient to permit us to refuse to consider the plea.

It is evident that, if the judgment in question here had been rendered in another jurisdiction having a similar statute against a Michigan corporation, and it was sought to sue upon the judgment in the courts of this State, an objection that the foreign court had not acquired jurisdiction to render a personal judgment would be sustained. This upon the authority of decisions in the following and many other cases: Cella Commission Co. v. Bohlinger, 147 Fed. 419, 78 C. C. A. 467 (8 L. R. A. [N. S.] 537); Kendall v. Loom Co., 198 U. S. 477 (25 Sup. Ct. 768); Conley v. Alkali Works, 190 U. S. 406 (23 Sup. Ct. 728); St. Clair v. Cox, 106 U. S. 350 (1 Sup. Ct. 354); Goldey v. Morning News, 156 U. S. 518 (15 Sup. Ct. 559); Moulin v. Insurance Co., 24 N. J. Law, 222; Foster v. Lumber Co., 5 S. D. 57 (58 N. W. 9, 23 L. R. A. 490, 49 Am. St. Rep. 859, and notes). See, also, Marshall v. R. M. Owen & Co., 171 Mich. 232 (137 N. W. 204).

We held in Daniels v. Railway Co., 163 Mich. 468 (128 N. W. 797), in an opinion in which the foregoing and the next succeeding sections of the statute were set out, that the service upon a foreign corporation was valid; it appearing that the corporation was doing business in the State. As applied to such a case, we declined to hold the statute unconstitutional. The question of the constitutionality of the statute as applied to service upon the agent of a corporation not doing business in the State was mooted in National Coal Co. v. Mining Co., 168 Mich. 195 (131 N. W. 580), and in Young v. Reeves & Co., 172 Mich. 363 (137 N. W. 701, 139 N. W. 876), but was not decided, because in each of those cases defendant had entered a general appearance. In Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W 640, 133 Am. St. Rep. 376), it was held that section 10442, before the amendment of 1909, was limited in its application to foreign corporations transacting interstate commerce business in this State, and jurisdiction of the court in that case was sustained because it was found that the defendant was transacting a local business in the State. The court distinguishes corporations admitted to do business in the State, and thereby in a measure domesticated and domiciled here, and other foreign corporations. But it is contended that as to all foreign corporations not admitted to do business here the legislature intended and attempted by the amended law to confer upon the courts jurisdiction to render personal judgments in suits begun by residents, if process is served upon an officer or agent of the corporation within the State.

The court below, in the opinion overruling the plea, relied, as counsel for plaintiff relies, on Pope v. Manufacturing Co., 87 N. Y. 137, a decision which appears to have been followed in Tuchband v. Railroad Co., 115 N. Y. 437 (22 N. E. 360). The New York statute appears to be similar to our own. In the case first mentioned, service was made upon the president of a foreign railroad company temporarily within the State on his way to a seaside resort; the cause of action not arising in the State, and the corporation doing no business and having no corporate office or property within the State. It was held that the service was authorizéd by the Code, and, in effect, that the judgment was good in .the State, whatever its legal effect abroad might be. Like the State of New York, we have other provisions for reaching property of nonresident owners situated within the State. Our statute as it now stands still supports the construction given to it in Showen v. J. L. Owens Co., supra. To construe it as plaintiff contends we should is to do violence to the principle that courts may not draw to themselves jurisdiction over property or persons situate or living outside of the territorial range of the process which they may issue and may not be thereto empowered by legislation.

The plea should have been sustained, and the action dismissed. Consequently the judgment should be reversed, and no new trial awarded.

The judgment is reversed.

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


author: Stone, J.

text:
    WALTERS v. DETROIT UNITED RAILWAY.
    1. Damages — Personal Injuries — Verdict—New Trial.
    Five hundred dollars for a broken arm and expense of care and medical attention was not an inadequate amount so as to require a new trial, in an action by a woman 62 years of age, whose injuries and the extent of the other alleged results from being dragged by the car that she was attempting to board were in dispute, the jury finding against plaintiffs claim that paralysis of one side and deafness of her left ear were due to the fall.
    2. Same — Trial—Error—Charge.
    Failing to request the trial court to charge the jury on the subject of damages, plaintiff was not entitled to reversal of the judgment because the court covered the subject in a brief and general statement that she was to receive damages for past, present and future sufferings.
    Error to Wayne; Hally, J.
    Submitted November 11, 1914.
    (Docket No. 171.)
    Decided December 19, 1914.
    Case by Mary Walters against the Detroit United Railway for personal injuries. Judgment for plaintiff for less than her claim. Plaintiff brings error.
    Affirmed.

      Clarence P. Milligan, for appellant.

      Corliss, Leete & Moody and A. B. Hall, for appellee.
   Stone, J.

This is an action on the case to recover damages for personal injuries claimed to have been sustained by the plaintiff while a passenger on defendant’s Myrtle line car, by reason of the car starting while she was in the act of alighting from the rear step. The accident occurred on July 11, 1912, about 8 p. m., at Woodward avenue and Congress street, in the city of Detroit. The plaintiff was 62 years of age at the time, and was a widow. The trial resulted in a verdict and judgment for the plaintiff, in the sum of $500 damages. The plaintiff made a motion for a new trial, on the ground that the verdict was inadequate in amount under the testimony, and was against the great weight of the evidence. The motion having been' denied, the plaintiff has brought the case here upon writ of error, and by appropriate assignments of error the same question is presented, and it is urged that the court erred in not granting a new trial, for the reasons above stated. It is also claimed that the court erred in its charge to the jury, in not specifying for what damages the plaintiff would be entitled to recover.

A careful reading of the evidence discloses that the main issue at the trial was the extent of the plaintiff’s injuries resulting from the fall. She testified that she was thrown with great violence from the car, and, after being dragged the length of the car, fell on her left side, breaking her left arm at the elbow joint, and that she has suffered paralysis of the left side, so that she cannot walk without dragging her left foot; that her left eye is nearly blind, and the hearing of her left ear is greatly diminished; all of which she claims to have been the result of the injury complained of, and that she was in perfect physical condition before said injury. There was medical and other testimony tending to support plaintiff’s claim. It also appeared that she employed a physician. The length of time the physician treated her appears in the evidence, but the value of his services was not shown by any testimony. It also appeared that while she was being treated by the physician she was at the house of a friend, whose charges for nursing and-room were $75.

On the part of the defendant there was evidence tending to show that the plaintiff was a large, heavy woman, decrepit, and not active in her movements, and that she had been assisted both in getting on and off the ear; and there was medical testimony on the part of the defendant describing plaintiff’s condition as due solely to arterial sclerosis. It also appeared that the plaintiff had a blood pressure of 225, which in a woman of .her age, it was claimed, was exceedingly high.

The testimony of the plaintiff’s physician as to the injury of the arm was to the effect that no fracture was discovered at the time, but that it had developed that there was some fracture of the elbow joint which had impaired the use of that joint. He testified:

“I think, if she does not attempt to move it beyond its range of easy motion, there should not be very much pain.”

The trial court, in denying the motion for a new trial, among other things, said:

“The defendant’s contention is that the plaintiff’s ailments are of long standing, that she is a prematurely old woman, that the hardening of the arteries now evident is of slow growth, and could not develop in so short a time from the injuries received. Her previous walk, the way in which she had been helped on the car, were facts presented by the defendant to the jury for its consideration, and in support of the contention advanced by the defendant and its medical expert, that it was not responsible for the serious condition of the plaintiff.
“In his talk to the jury, defendant’s, counsel admitted the negligence of the company, but insisted that plaintiff’s, condition was not one which could be traced to the defendant. This question at issue, and almost the only one, was fairly presented to the jury, and its verdict would indicate that it reached the conclusion that defendant’s contention was correct. The theories of plaintiff and defendant were presented as fairly and as fully as counsel desired, and no good reason has been given for undoing the work now done. The motion for a new trial is denied.”

In the light of the testimony and of the issue presented, we are not able to say that the verdict was inadequate, or that it was against the overwhelming weight of the evidence. The issue seems to have been fairly and fully presented to the jury, and we cannot say that there was any error in denying the motion for a new trial.

In referring to the charge of the court, it should be stated that the plaintiffs counsel presented no requests to charge upon the subject of damages. Upon that subject the court charged the jury as follows:

“On the question of damages you are to find out by the same preponderance of evidence what injuries have been established as being the result of this particular accident, if you charge the accident to the responsibility of the Detroit United Railway. If you do not, why then, of course, you need not go into the question of damages. Now, in that respect, you are to give the plaintiff compensation — if you come to that question — for all of the injuries that she has suffered, for all of the injuries that she is suffering now, and for all that she will suffer in the future, that grow out of injuries received at that particular time. She is entitled to damages for past and present and future suffering, if you find that she is entitled to damages, and if you find that those injuries are the result of this particular accident. * * * So that the principal question you have for your disposition is: What were the injuries that resulted from this accident? When you find that, if you find that the injuries came as a result of this accident, you are to allow her damages as has been indicated here.”

Counsel complains of this charge, and cites the following cases: Barton v. Gray, 57 Mich. 622 (24 N. W. 638); Wright v. Railway Co., 77 Mich. 123 (43 N. W. 765); Jageriskey v. Railway, 163 Mich. 631-634 (128 N. W. 726).

In Barton v. Gray, supra, at page 631 of 57 Mich. (24 N. W. 641), Justice Champlin, in speaking for this court, said:

“It does not appear from the record that any requests were presented on behalf of the defendant for specific instructions to the jury. Undoubtedly it is the duty of the court to present to the jury the substantial issues in the cause, and to state to them the principles of law governing the rights of the parties, whether any specific instructions are requested by counsel or not. This duty was performed by the trial judge in this case. His instructions covered all branches of inquiry under the issues made by the pleadings; and if counsel desired more full or specific instructions upon any particular point, it was his duty to frame a special request to the court to charge as desired. Omitting or neglecting to do so, he will be deemed to be satisfied with the sufficiency of the instructions as given, and an exception based upon the want of sufficiency on particular points of law cannot be assigned as error.”

And judgment of the lower court was there af- . firmed.

An examination of Jageriskey v. Railway, supra, will show that there were requests to charge on the part of the plaintiff which were not given by the trial court, nor was their substance given. It was under such circumstances that this court said:

“It was the duty of the trial court to instruct the jury as to the law applicable to the case. * * * In this instance the court not only failed to cover the question of damages in his general charge, but refused to give the unobjectionable request of counsel on that subject. We think the refusal of the trial court to give the request was error.”

As appears from the court’s charge in the instant case, the substantial issues in the cause were presented to the jury by the trial court in appropriate language. The verdict was undoubtedly intended to cover the injury to the arm and the expense of the nursing, and we cannot say that it was not adequate. The jury must have found that the other condition of the plaintiff was in no way related to the accident.

In our opinion, no good reason appears why the verdict and judgment of the court below should be disturbed.

The judgment is therefore affirmed.

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


text:
    PEOPLE v. DAMM.
    1. Criminal Law — Statutes—Intoxicating Liquors — Intent.
    It is a general rule of criminal law that crime involves intent.
    2. Intoxicating Liquors — Sales — Master and Servant — Principal and Agent — Minors'—Students.
    Proof of sales of intoxicating liquors to minors, intoxicated persons, etc., under 2 Comp. Laws, § 5391 (2 How. Stat. [2d Ed.] § 5067), is prima facie evidence of an intent to violate the statute. But sales of druggists are governed by a different rule (2 Comp. Laws,. § 5381, 2 How. Stat. [2d Ed.] § 5057), intent is not a necessary element of the offense. The requirement of law that the retail liquor dealer keep his bar closed on Sunday is in the same class of offenses. And section 5392 was intended to forbid the sale of liquor to students at any public or private institution of learning without reference to the intent of the seller. Under this section the dealer is punishable for the act of his servant in making an illegal sale.

      3. Same — Criminal Law.
    A retail liquor dealer whose bartender sold liquor to a minor to be drunk on the premises was guilty of the offense prohibited by section 5392, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5068), and absence of any intention to commit a crime did not relieve him of the consequences of the criminal act of his servant.
    4. Same — Constitutional Law — Class Legislation.
    The provisions of 2 Comp. Laws, § 5392, are not invalid on the ground that the. statute deprives the accused qf privileges and immunities or is class legislation within the 14th amendment to the Federal Constitution.
    5. Constitutional Law — Intoxicating Liquors.
    It is not unconstitutional to forbid sales of intoxicating liquor to students at public or private institutions of learning, though the effect of the statute (2 Comp. Laws, § 5392) is to deprive others than minors of the right to purchase intoxicants.
    6. Same.
    The exercise of the police power of the States is not affected by the 14th amendment.
    Exceptions before sentence from Washtenaw; Kinne, J.
    Submitted November 5, 1914.
    (Docket No. 162.)
    Decided December 19, 1914.
    Lawrence Damm was convicted of a violation of the liquor law (2 Comp. Laws, § 5892, 2 How. Stat. [2d Ed.] § 5068).
    Affirmed.

      George J. Burke, Prosecuting Attorney, for the people.

      John P. Kirk, for respondent. 1

       As to the criminal liability for violation of liquor law by partner, servant, agent, etc., see notes in 41 L. R. A. 660; 16 L. R. A. (N. S.) 786; 20 L. R. A. (N. S.) 321, and 33 L. R. A. (N. S.) 419.

   Ostrander, J.

Respondent, on November 17, 1913, was a retail liquor dealer in Ann Arbor. On that day three students in attendance at the university of Michigan were furnished by respondent’s barkeeper with intoxicating liquor, which one of them paid for and which they drank in respondent’s saloon. It is provided (2 Comp. Laws, §5392), that:

“It shall not be lawful for any person by himself, his clerk or agent, to permit any student in attendance at any public or private institution of learning in this State, or any minor, to play at cards, dice, billiards or any game of chance, in any part of any building, in which spirituous liquors or intoxicating drinks are sold; nor shall it be lawful for any person, by himself, his clerk or agent, to sell or give to any student in attendance at any public or private institution of learning, in this State any spirituous or intoxicating drinks, except when prescribed by a regular physician for medicinal purposes; and any person who shall offend against either of the foregoing provisions of this section shall be deemed to have been guilty óf a misdemeanor, and on conviction thereof shall be punished as provided in section seven of this act.” (2 How. Stat. [2d Ed.] § 5068.)

Respondent was informed against for violation of this law and was convicted, the jury returning a verdict of “guilty,” adding, “without knowledge or intent.” Sentence was deferred and exceptions settled and, although a writ of error was sued out, it is made to appear that the trial court understood, and acted in conformity with the understanding, that a review on exceptions before sentence was desired, and counsel state that the issuing of the writ of error was an inadvertence. The people are content with the record, and the case will be considered as if no writ of error had issued.

The undisputed fact is that respondent was not present in his saloon when the liquor was sold, and it does not appear that his barkeeper knew that the young men who drank the liquor were students in attendance at the university. Respondent contends that the law should not be construed so as to make him responsible in this action for the conduct of his servant and, if such a construction is inevitable, that the law is unconstitutional. This contention was in various ways presented to the trial court.

It is unfortunate that the statutes relating to the sale of liquors do not with more certainty express the legislative intention. It is a general rule of criminal law that crime involves intention. By 2 Comp. Laws, § 5391, sales of liquor to a minor, intoxicated person, person in the habit of becoming intoxicated, Indian, and posted person, by any person except a druggist, is forbidden, and the fact of selling is made prima facie evidence of an intent on the part of the seller to violate the law. The language employed in this section implies that intent is a necessary ingredient of the offense. And so we have held that the good faith of the seller may be shown and may acquit him of a charge made under this section. People v. Parks, 49 Mich. 333 (13 N. W. 618); People v. Bronner, 145 Mich. 399 (108 N. W. 672); People v. Averill, 179 Mich. 224 (146 N. W. 189). See, also, People v. Thompson, 161 Mich. 391 (126 N. W. 466). Turning to the law governing sales of liquor by druggists, 2 Comp. Laws, § 5381 (2 How. Stat. [2d Ed.] § 5057), it will be found that sales to minors and others by druggists is forbidden, but no mention is made of the intent of the seller. And it was held in People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404), that criminal intent, or intent to violate the statute, is not an ingredient of the offense, and that the druggist must ascertain at his peril that the sale is a lawful one. This ruling was followed in People v. Sharrar, 164 Mich. 267 (127 N. W. 801, 130 N. W. 693), and, in an action for damages, in Bailey v. Briggs, 143 Mich. 303 (106 N. W. 863). It had been previously held, in People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270) (see, also, People v. Possing, 137 Mich. 303 [100 N. W. 396]; People v. Tolman, 148 Mich. 305 [111 N. W. 772]), that a statute which required all saloons to be closed on Sunday and prescribed a punishment for any person who violated the statute, warranted the conviction of a saloon keeper whose clerk, without his knowledge or consent, opened the saloon on Sunday morning to have it cleaned and meantime sold a drink to a casual customer. In Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374), Mr. Chief Justice Campbell said:

“The court held that it was no defense to a charge of selling intoxicating liquor to a minor that the seller had reason to believe and did believe him to be of age. This we think was clearly wrong. It cannot be assumed that the legislature would attempt such a wrong as to punish as criminal an act which involved no criminal intent. There can be no crime where there is no criminal mind.”

Of Faulks v. People it was said in the Roby Case, 52 Mich, page 580 (18 N. W. 367, 50 Am. Rep. 270):

“It was held in Faulks v. People, 39 Mich. 200 [33 Am. Rep. 374], under a former statute, that one should not be convicted of the offense of selling liquors to a minor who had reason to believe and did believe he was of age; but I doubt if we ought so to hold under the statute of 1881, the purpose of which very plainly is, as I think, to compel every person who engages in the sale of intoxicating drinks to keep within the statute at his peril.”

In People v. Hughes, 86 Mich. 180 (48 N. W. 945), respondent was. charged with a violation of section 15 of the law, which makes it unlawful for any person to allow a minor to visit or remain in a room where liquors are sold or kept for sale, unless accompanied by his father or guardian. It appeared that the owner of the saloon was absent upon the occasion there in question, and it was held that the trial court was in error in holding that the proprietor was responsible for the failure of his agent to obey the law. In reaching this ‘ conclusion it was pointed out that other sections of the statute, including section 14, here involved, contained words showing an intention on the part of the legislature to make the saloon keeper responsible for the conduct of his agent, and that, reading the various provisions of the law together, some effect must be given to the omission in section 15 of all reference to the clerks or agents of the proprietor. If this case may be treated as an exception, it is the only one since People v. Roby in which the statute has not been regarded by the court as a police regulation, imposing criminal penalties irrespective of the intent of the offender to violate the law, and regardless of whether the principal or his agent was the offender, except as the act itself makes intent a necessary element of the offense.

The language employed in section 14, which is the section here involved, imports the legislative purpose to make the respondent responsible for the acts of his servant and as, following previous decisions, he would have been liable if he had personally sold the liquor to these students (People v. Longwell, 120 Mich. 311 [79 N. W. 484]; People v. Curtis, supra; People v. Sharrar, supra), he is liable for the particular sale although it was made by his servant in his absence. In other words, he must, at his peril, see to it that liquors are not sold in violation of this section of the law.

Given this meaning and effect, it is said the statute is repugnant to section 1 of article 14 of the Federal Constitution, and that it is class legislation. It is not pointed out that any particular privilege or immunity arising under the Federal Constitution, protected by the Constitution and common to citizens of the United States, is invaded. It is generally accepted doctrine that the exercise of the police power by the States is not affected by the fourteenth amendment

The statute forbids sales of liquor to any student in attendance at any public or private institution of learning in this State. It is said, in argument, and is true, that the effect of the legislation is to deny to adult students privileges enjoyed by other adult citizens, and to deny them during the school year rights and privileges which they may enjoy during vacation. So citizens living .in a local-option county may be, in the same way, stripped of privileges which are enjoyed by their neighbors in an adjoining county. A law which makes it improbable, if not impossible, that students shall patronize drinking places, is not so clearly beyond the police power that the courts may declare it invalid. It appears in the record before us that one of the young men to whom liquor was sold drank three or more times in respondent’s saloon, and afterwards visited one or more other saloons. He was arrested the same evening, charged as a disorderly person. An investigation by the university authorities resulted in his being suspended for the balance of the year. It is possible that the reasons of discipline and morale which influenced the university authorities in the particular case affected the legislature in a general way, and induced the enactment of this preventive legislation.

The exceptions are overruled, and the court advised to proceed to judgment.

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


text:
      In re ELLIOTT’S ESTATE. ELLIOTT v. CHENEY.
    1. Wills — Deeds—Construction.
    Conveyances in the form of deeds intended or claimed to be intended as wills fall into three classes: (1) Those in which the testamentary intent is clearly dedueible from the writing; (2) those where the instrument is ambiguous, or of doubtful meaning; (3) those where there is nothing to indicate a testamentary intent, but, on the contrary, the instrument is in terms plainly a deed. In the first class of cases, it is said, there is no. difficulty in holding the document to constitute a will, if properly executed. In the second class, the instrument may doubtless be interpreted in the light of the circumstances. As to the third class of cases, extrinsic evidence is not admissible to show a testamentary intent on the part of the deceased grantor.
    2. Same — Estates oe Decedents.
    Where there was a clause in an undelivered deed reciting that the deed should be null and void if it was recorded before the death of the grantor and a different clause stated that it conveyed all the real property of decedent, nothing on the face of the instrument indicated testamentary intent, and the trial court properly held that delivery during the lifetime of the grantor was essential to its validity; parol evidence was inadmissible to show that it was intended to operate as a will.
    Error to Monroe; Chester, J., presiding.
    Submitted November 9, 1914.
    (Docket No. 150.)
    Decided December 19, 1914.
    Junius Elliott presented for probate an instrument claimed to be the will of Huida Elliott, deceased. From a finding and order admitting the will, Clarence G. Cheney, contestant, appealed. Judgment for contestant. Proponent brings error. Affirmed.

      Willis Baldwin and John O. Zabel, for appellant.

      Moloney & Atkinson and Woodruff & Woodruff, for appellee.
   Ostrander, J.

On the 6th day of February, 1901, Hulda Elliott, the deceased, owned 98 acres of land. On that day she executed and acknowledged the instrument proposed as her last will. It is, in form, a warranty deed, with the usual covenants, in which she is grantor and proponent is grantee. The instrument was never delivered to the grantee nor to any one for him. Whether the deceased intended this instrument to be a will was a question submitted to a jury and answered in the negative. Whether the question should so have been answered, by the court or by a jury, with or without the aid of extrinsic, evidence, is matter of contention, and, if the question was properly for a jury, appellant, proponent, desires a new trial because of various alleged errors of the trial court and because of alleged improper arguments of counsel for contestant.

It was said in Clay v. Layton, 134 Mich. 317, 336 et seq. (96 N. W. 458), that cases of this nature fall into three classes:

“(1) Those in which the testamentary intent is clearly deducible from the writing.
“ (2) Those where the instrument is ambiguous, or of doubtful meaning.
“(3) Those where there is nothing to indicate a testamentary intent, but, on the contrary, the instrument is in terms plainly a deed.”

In the first class of cases, it is said, there is no difficulty in holding the document to constitute a will, if properly executed. In the second class, the instrument may doubtless be interpreted in the light of the circumstances. As to the third class of cases, it was there held that extrinsic evidence was not admissible to show a testamentary intent on the part of the deceased grantor.

To which of these classes does the instrument before us belong? Proponent offered whatever testimony was introduced, relies upon it, claims that it is undisputed and that the court should have determined from all the evidence that the instrument is a will, and should so have instructed the jury. A request was preferred to so instruct the jury. It is inferred that it is not the idea or the claim of proponent that the case belongs to the first class of cases. The position of contestant is that it falls within the third class, and that the court should so have ruled. If this position is sound, then we need give no attention to the conduct of the trial.

Proponent points out and claims something for certain recitals in the deed. Following a description of land are the words:

“Excepting the twenty-two acres that I have this day deeded to Mrs. Abigail Cheney of Romulus, Wayne county, Michigan.”

Beginning another paragraph:

“The above description was given and intended for all the real estate that I now own or possess containing ninety-eight acres more or less.”

He calls attention also to the words, written after the certificate of acknowledgment, signed, apparently, by the grantor, but without attestation of witnesses:

“This deed to be null and void if recorded before my death.”

I assume that if the words to which I refer did not appear in the deed and in the margin thereof proponent would not contend that testamentary intent was suggested or could be sought for.

It is clear that the instrument falls within neither the first nor second class. There is nothing upon the face of the instrument to indicate testamentary intent. On the contrary, the language used — and none could be more apt, and none is more constantly employed in conveyances — imports a present grant and nothing else. All that was required to give the instrument validity as a deed, to divest the grantor of title, and put title in the grantee, subject to be divested upon a contingency, was delivery. If the deed had at once been delivered to the grantee, no one would contend that it was ambiguous. No better test than this can. be suggested. In a somewhat similar case (Dodson v. Dodson, 142 Mich. 586 [105 N. W. 1110]), it was said:

“An important question in this case is whether the deeds can be held to be a testamentary disposition of the property described in them. We may premise a discussion of that question by the statement that the circumstances under which they were made, and attending their disposition and custody, are convincing that they were so intended. Indeed, they leave no doubt that such was the testator’s intention. But the rule is that a testator’s intention cannot be given effect as against the plain and unambiguous provisions of a deed, and the rule is settled in this State that where there is nothing in the instrument to indicate a testamentary intent, but, on the contrary, it is in terms plainly a deed conveying a present interest, extrinsic evidence is not admissible to show the contrary. The subject is discussed at length in the case of Clay v. Layton, 134 Mich. 341 [96 N. W. 458].”

Language appropriate to this case was used in Clay v. Layton, 134 Mich. 338 (96 N. W. 466):

“The proposition is to show that certain instruments, which could only become effective by delivery, can be made effective by calling them by another name, and giving them an interpretation which their words do not warrant, through parol evidence tending to show that such was the decedent’s intention.”

There is nothing in any of the decisions of this court which in any manner qualifies the doctrine of Clay v. Layton and Dodson v. Dodson. See Leonard v. Leonard, 145 Mich. 563 (108 N. W. 985) (not a will case); In re Dowell’s Estate, 152 Mich. 194 (115 N. W. 972) (in which the point is not discussed); Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780).

The trial court should have directed a verdict for contestant. The conclusion reached in the court below was right, and is affirmed. Contestant will recover costs from proponent.

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


author: Bird, J.

text:
    PEOPLE v. HANSEN.
    1. Criminal Law — Witnesses—Conflicting Statements.
    Evidence tending to show that the complaining witness in bastardy proceedings had made conflicting statements charging an unknown or fictitious person with the crime, bore upon her credibility but would not justify the court in taking the case from the jury.
    2. Same — Bastardy.
    The defense was not prejudiced by the court charging the jury that the parties admitted it was doubtful whether any such person existed as claimed by complainant to be the putative father of her infant, where the record did not show that respondent claimed that there was such a person, and he had stated his opinion that a third party was the guilty one. If any error was made it should have been called to the attention of the court at the time it was made.

      3. Same — Character and Reputation.
    Instructions of the court that the jury might consider the standing of the respondent in the neighborhood for honesty, integrity, and truthfulness, stated in connection with caution of a general nature as to certain testimony-given by respondent’s character witnesses relating to his conduct with women, and his general reputation, were not erroneous.
    Certiorari to Montcalm; Davis, J.
    Submitted November 5, 1914.
    (Docket No. 163.)
    Decided December 19, 1914.
    Ola Hansen was convicted of bastardy.
    Affirmed.

      Grant Fellows, Attorney General, and J. Claude Youdan, Prosecuting Attorney, for the people.

      L. C. Palmer, for respondent.
   Bird, J.

Having been found guilty of bastardy in the Montcalm circuit court, respondent has removed the proceedings to this court by certiorari for review.

1. Complaint is made that the testimony relied upon by the people to prove that respondent was the father of complainant’s child was too uncertain to sustain the verdict. The weakness of the people’s case lay in the fact that the complainant, when first interviewed by the public authorities as to the paternity of her child, informed them that one Walter Nelson was the father, and, when questioned who he was, she would disclose nothing further than the fact that he was a stranger she had met at a dancing party at Trufant, a neighboring village. She also made a sworn complaint charging him with being the father of her child. But later she disclosed to the public authorities that respondent was the father of her child, and gave as a reason for her previous untruthfulness that respondent had prompted her to tell that story, and had threatened her with physical violence and death if she did not obey.

The jury had before them her conflicting stories, together with the explanation of why she had at first been untruthful about the matter. They also had before them the fact that complainant was a young girl, only 17 years of age, who lived with her grandmother in the country neighborhood where respondent resided. Instances of respondent’s attentions to and his manifestations of affection for the complainant were testified to by those who had witnessed them. They also had before them the fact that respondent was in the habit of exchanging work with the tenant on the grandmother’s farm, and that those occasions afforded the respondent an opportunity for doing the thing with which he was charged. Whether she told the truth when she declared that Walter Nelson was the father of her child, or when she charged that respondent was the father, was a question of fact for the jury. It was for them to determine which story, if either, was true. Kelly v. Freedman, 56 Mich. 321 (22 N. W. 820); Watson v. Watson, 58 Mich. 507 (25 N. W. 497).

2. Error is assigned because the court charged‘the jury that:

“It is admitted in this case that she has made statements wherein she charged a man by the name of Walter Nelson with being the father of the child, and, as admitted by counsel, it is a question that is very indefinite as to whether such a man existed as referred to by her. The claim is made by the people that no such man did exist, and, as I understand it, the defense do not claim there did; but it is offered by- the defense as showing she made a statement that was absolutely untrue.”

Counsel argue that these instructions were harmful because the respondent based his entire defense on the fact that Walter Nelson was the father of the child. We find nothing in the record of any claim made by either the respondent or his counsel that the defense was based upon the fact that Walter Nelson was the guilty party. On the contrary, there is testimony on the part of the respondent that he had given it as his opinion that one John Hansen, who resided with the grandmother, was the father of the child. Had that been the chief defense, we think there should be something in the record to disclose it. But if the court was in error in making the statement, his attention should have been called to it by counsel at the time. Not having done so, he is in no position now to complain of it.

3. Error is also assigned on the following instruction to the jury:

“You have the right to take into consideration the standing he has in the neighborhood, whether it is for honesty, integrity, and truthfulness.”

Counsel argue that the respondent was not charged with dishonesty, and that his honesty was- not an issue in the case, and therefore, when the jury were told that they had a right to consider his standing in the neighborhood for honesty and integrity, it was error. If this isolated portion of the charge is considered without reference to the context, we would probably agree with counsel. Upon the trial character witnesses were produced for and against the respondent. After instructing the jury generally as to the testimony of the witnesses, and the weight which should be given to it, he said:'

“Something has been said in regard to the credit and character of the respondent in the neighborhood where he lives for conduct toward women. You have ' the right to take into- consideration the standing he has in the neighborhood, whether it is for honesty, integrity, and truthfulness, or whether it is for conduct that shows a disregard of the rights of women and tenderness or lack of tenderness towards children of that age, and all coming before you in the way of testimony or evidence that satisfies you or throws light upon this transaction, and render such a verdict as you believe will be in accord with the evidence and the law as given you by the court.”

Respondent had attempted to show by his character witnesses that his reputation was good as regards his conduct toward women. When it is understood that the court was instructing the jury as to this testimony, when he used the words “honesty and integrity,” it is manifest that they were made use of in connection with respondent’s conduct toward women and children, and not generally, as would appear from the contention of counsel, and we think the jury must have so understood it.

We have considered the other errors assigned, but find no merit in them. The writ will be dismissed, and the judgment of the trial court affirmed.

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


author: BIRD, J.

text:
    BRAUN v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Carriers — Street Railroads — Interurban Roads — Alighting from Cars — Negligence.
    The question of negligence of defendant interurban railway company was for the jury, on testimony showing that plaintiff bad left bis seat and taken a position on the lower step of the car as the same approached its stopping place, and that the conductor gave a signal to proceed and that the car was started before be bad time to alight, and that no notice of intention to accelerate the speed was given to plaintiff, by the conductor, who saw where plaintiff was standing.
    2. Same — Contributory Negligence — Personal Injuries.
    In going out on the platform and down on the steps with the apparent consent of the conductor, plaintiff was not chargeable with contributory negligence as a matter of law.
    Error to Kent; Davis, J., presiding.
    Submitted November 12, 1914.
    (Docket No. 88.)
    Decided December 19, 1914.
    Case by John M. Braun against the Grand Rapids, Grand Haven & Muskegon Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Lombard, Hext & Washburn, for appellant.

      Carroll, Kirwin & Hollway, for appellee.
   BIRD, J.

On the evening of May 12, 1912, plaintiff was a passenger on one of defendant’s interurban cars entering Muskegon. The place where he intended to leave the car was at its regular stopping place, at the intersection of Walton and Pine streets. Walton street extends east and west and intersects Pine street at right angles, and the usual stopping place of defendant’s cars was on Walton street close to the west line of Pine street. When the car was a block west of Pine street, it began to lessen its speed, and plaintiff left his seat in the car and went out on the platform and down on the last step to be ready to get off when the car stopped. While in this position, with his hands holding the handrails, the car reached its usual stopping place, and when on the point of stopping, the car was suddenly started in response to a signal from the conductor. In starting, the car lurched forward, and, in consequence thereof, plaintiff was thrown to the ground and injured.

When plaintiff had concluded his case, the trial court directed a verdict for the defendant, on the ground that no actionable negligence against the defendant had been shown, and, further, that plaintiff assumed the risk of going onto the platform and steps while the car was in motion. These conclusions of the trial court give rise to two questions:

(1) Was defendant guilty of negligence?

(2) Did plaintiff assume the risk of being injured by going upon the platform and steps while the car was in motion?

1. If plaintiff had been thrown from his position on the step by reason of an acceleration of the car in order to reach its usual stopping place, no recovery could be had, under the rule laid down in Etson v. Railway Co., 110 Mich. 494 (68 N. W. 298). If the car had come to a stop at the usual stopping place, and then suddenly started while plaintiff was in the act of alighting, the question . of defendant’s negligence would have been one for the jury under the rule in Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524). In the case at bar, plaintiff was in position to alight, and the conductor was aware of it. After the car had reached its usual stopping place, and had nearly come to a stop, it was suddenly started on signal from the conductor. These circumstances bring the case within the principle of the holding in the Burke Case. If it were necessary for any reason to depart from the usual custom of stopping at that point, it was the duty of defendant to warn plaintiff. But it is the contention of defendant that the car was 16 feet away from its usual stopping place when its speed was accelerated, and that it was accelerated for the purpose of driving it to its usual stopping place, and counsel devotes much time in their brief to show that plaintiff’s testimony is in accord with that contention. We have examined the testimony of both the plaintiff and Nellie Voss, the only witnesses who testified upon that subject, and we are persuaded that their testimony was such that the jury would have been justified in finding that the car had already reached its usual stopping place before its speed was accelerated. We are therefore of the opinion that the question of defendant’s negligence should have been submitted to the jury.

2. Plaintiff was not necessarily negligent in leaving his seat and going out upon the platform while the car was in motion. Etson v. Railway Co., supra. His position upon the platform and steps was not an uncommon one. It is a custom -indulged in frequently by passengers on such cars as they are nearing their usual stopping places, and plaintiff’s going upon the platform on this occasion appears to have had the consent of the conductor, as he stood aside from the doorway to allow him to pass out. Whether plaintiff’s conduct in going on the platform increased the hazard, and, if it did, whether that was the proximate cause of his injury, were questions of fact for the jury.

The judgment of the trial court is reversed, and a new trial ordered.

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


text:
    HARRIS v. VILLAGE OF HIGHLAND PARK.
    Taxation — Special Improvements — Paving Tax.
    Complainant’s bill to restrain defendant village of Highland Park from collecting a special improvement tax in excess of five per cent, of the value of the premises assessed, containing an offer to pay so much of the tax as was valid, was not demurrable, though the property was benefited by such improvement. Act No. 707, Local Acts 1907, authorizing the tax, has been held invalid and no authority remains for an assessment in excess of five per cent, in said village.
    Appeal from Wayne; Van Zile, J.
    Submitted November 24, 1914.
    (Docket No. 24.)
    Decided December 19, 1914.
    Bill by Albert S. Harris against the village of Highland Park for an injunction to restrain the levy of a special assessment. From a decree for complainant, defendant appeals.
    Affirmed.

      Seth J. Wicker, for complainant.

      Edwin S. Bartlett, for defendant.
   Ostrander, J.

It appearing that complainant’s premises were taxed for a special improvement a sum equaling 25 per cent, of its value, that there is no authority of law for a tax exceeding 5 per cent, of the value of the property to pay for such an improvement, except Act No. 707, Local Acts of 1907, that this act has been held to be invalid (Cote v. Village of Highland Park, 173 Mich. 201 [139 N. W. 69]), notwithstanding which a special roll has been prepared for the purpose of collecting the third installment (5 per cent.) of the said 25 per cent, tax, that the property has been returned delinquent for the first and second installments of the tax, of 5 per cent, each, that complainant is willing and offers to pay a tax of 5 per cent., that he became owner of the property while the improvement was being made, and is not by his conduct, appearing on the face of the bill, estopped to deny the validity of the tax, a demurrer to a bill filed to restrain the action of the village officers and of the village in proceedings to collect any tax exceeding 5 per cent, of the value of the premises was properly overruled. The case presented by the bill is not one of irregularity in the proceedings, nor is it denied that the property was benefited, and that complainant ought to pay such sum as the law permits the municipality to demand. It is the excess, the demand for a sum for which there is no warrant of law, that complainant objects to.

Decree affirmed, with costs to complainant.

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


text:
    BROWN v. ANN ARBOR RAILROAD CO.
    1. Carriers — Negiigenoe—Aughting from: Train.
    In an action for personal injuries sustained by plaintiff in alighting from a train, bis vague and equivocal testimony that be was thrown off by the jerking of the train, contradicted by bis admissions made to seven different persons after the accident to the effect that be tried to board the train again after it started up, held, to require the court to set aside the verdict as contrary to the great weight of the evidence.
    2. Same — Release of Damages — Tendee.
    Where defendant’s claim agent effects a settlement with plaintiff stating that there was no liability and whatever he received was a gratuity and- the testimony for the plaintiff showed that he had not knowingly executed a release and did not authorize any one else to sign the instrument, a return of the money which plaintiff received was not essential to enable him to bring suit, nor could it be held as matter of law that the release was conclusive or binding between the parties.
    3. Evidence — Medical Testimony — Expert Evidence — Hypothetical Question.
    On the trial of a personal injury action, the court should have refused to admit in evidence the testimony of plaintiff’s medical expert, in answer to a hypothetical question relating to the condition of plaintiff after he had been given certain opiates, and had his arm cut off, what would be plaintiff’s condition after having his arm removed and taking 1½ ounces of chloroform, 1/30 grain of strychnine, ¼ grain of morphine and on the next day ⅛ grain of morphine by hypodermic injection, and some ⅛ grain tablets of morphine, and on the following day Vs grain of morphine and more tablets, on the next day three ⅛ grains by hypodermic injection and’more tablets given internally, and on Thursday, the next day, one hypodermic injection and more tablets,' and whether he would be able to comprehend what he was doing on Friday morning, following; the number of morphine tablets should have been stated in the question: the witness could not intelligently pass on the effect of an unknown quantity of drugs given at uncertain intervals.'
    Error to Shiawassee; Kinne, J., presiding.
    Submitted November 19, 1914.
    (Docket No. 20.)
    Decided December 19, 1914.
    Case by Marvin S. Brown against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cavanaugh & Burke (Alexander L. Smith and Gustavus Ohlinger, of counsel), for appellant.

      A. J. Sawyer and Arthur Brown, for appellee.
   Stone, J.

In this action, the plaintiff, a man 62 years of age, seeks to recover damages for an injury resulting in the loss of his right arm, on the evening of July 27, 1913, while alighting from a car as a passenger on a passenger train of the defendant going from Toledo, Ohio, to Durand, Mich. The declaration alleges the negligence of the defendant as follows:

“And said plaintiff further avers that said train had proceeded upon its journey from the city of Toledo to the village of Durand, and after said train had stopped at said village of Durand and after an agent and employee of defendant, commonly called a brakeman, had passed through the car upon which the plaintiff was a passenger and had notified plaintiff and the other passengers, upon said car that said train had arrived at the village of Durand and that it was time for plaintiff and said other passengers to depart from said car after said train came to a stop, by calling the station 'Durand/ and while said plaintiff was -in the act of going down the steps of one of the cars of said train, upon which car said plaintiff was a passenger, and as plaintiff was about to step from such car upon what he supposed was the platform of the station house at said village of Durand, the said defendant suddenly caused said train to start forward, and said plaintiff, while in the exercise of all due care and caution on his part, and through the fault and negligence of defendant, was thrown under the wheels of said train and was. dragged along said railroad track for a long distance, to wit, a distance of 50 feet, and plaintiff’s right arm was so crushed and mangled that it had to be amputated at or near the shoulder.”

To the plea of the general issue there was added a notice that, if there was any liability on the part of the defendant, the same was satisfied and discharged by the said plaintiff, and the said defendant was released by an instrument in writing from all liability.

This accident occurred about 11 o’clock p. m. at a point some 600 to 800 feet south of the station at a crossing where the train was required by law to stop. No person save the plaintiff gave testimony of the manner in which the injury occurred. He testified on direct examination as follows:

“After the train left Byron it had been running about 20 minutes and came to a standstill again, slowed down and stopped, the brakeman came through the door and cried out ‘Durand.’ I rose right up and had my arm right on the arm of the seat and stepped out into the aisle and I met him. I looked and saw-others getting up. He went on down, and called out ‘Durand’ toward the other end of the car. I stepped out. As I took the second step down the steps the train started with a jerk and threw me, and I grabbed with my right hand and got something; it was terribly dark, I couldn’t tell what.
“Q. Did you suppose, at that time, that you were going to step off at Durand?
“A. Why certainly, I supposed so.
“Q. When the train stopped and the brakeman came through and announced ‘Durand,’ and you got up and met him in the aisle,' did you follow him out, or did you come out the back door?
“A. I came out the back door and he went right up through.
“Q. And as you got to the back door you heard bim call ‘Durand’ again?
“A. Yes, sir.
“Q. You had got to where the train threw you when you got on the second' step on the train; from there what happened?
“A. As it threw me, I turned my right hand and grabbed something. I went off on the ground with my feet. I saw I was fast; I don’t know what to, but my coat was fast. I ran along and tried to get loose and to get onto the train. I couldn’t do either one. The train was going so fast that I lost my feet, and then -I guess I must have lost consciousness, for I didn’t, know anything until I came to, lying beside the track.”

On cross-examination the following question and answer appear:

“Q. So if your coat had not caught when you jumped off or were thrown off you would have been all right?
“A. Certainly I would. I would have lit on the ground good and walked in. My coat catching is what caused the accident.”

Opposed to this version, as testified to by plaintiff, there were many witnesses who testified to hearing accounts given by the plaintiff of the manner in which the accident happened, which are entirely inconsistent with his testimony. One Thomas Downer, the night watch and marshal at Durand and one of the plaintiff’s witnesses who talked with him at the hospital three or four days after the accident happened, testified on cross-examination as follows:

“Q. Didn’t you say to the doctor that he told you he got off, attempted to get on and slipped?
“A. Something like that; yes, sir.
“Q. Is that what Mr. Brown told you?
“A. Yes, sir.
“Q. He got off and the train started up and he attempted to get on again?
“A. Yes, sir.
“Q. And he fell as he attempted to get on?
“A. Why he slipped, or something like that.”

He testified on redirect examination:

“Q. His clothes were caught?
“A. I don’t know; he,didn’t say anything about his clothes.”

Dr. Fair, an employee of defendant and the physician who amputated the arm, testified as follows:

“ * * * I heard Mr. Brown make a statement to Reifsnider and to myself about the manner in which the accident occurred. When he made the statement he was in the full possession of his faculties. He stated to me, as near as I can remember, he got off the train, the train stopped, and he got off, and it started up again. He found he was out away from town, as it started up, and he caught hold of it to get on, and slipped or dragged or something, and he fell down and his arm got under the wheels.
“Q. Did he make any claim at that time that his coat or anything caught on the train?
“A. No, sir.
“Q. Were you present when he made the statement to Mr. Reifsnider?
“A. I was.
“Q. When he made the statement to Mr. Reifsnider, state whether or not Mr. Reifsnider told him that, based on his own statement, the railroad company was not liable?
“A. He did.”

Elbert Henry, the supervisor of Vernon township, testified:

“*'*** I heard Mr. Brown make a statement as to how this accident happened. He didn’t make it to me personally, and I cannot recollect the men who were in the room when he made it. He said the brakeman came through the train and called out ‘Durand,’ and the train stopped and he got off, and he started to get back on as the train moved, and he slipped and fell.”

Clarence Sproul, a switchman for the Grand Trunk Railroad Company, testified as follows:

“I asked him how he got hurt. He said he got off the train and went to get back on again and slipped.”

Again:

“He said when he got off he thought it was Durand, and found it was not, and went to get back on.”

A. B. C. Doak, a brakeman for the Grand Trunk Railroad Company who was with Mr. Sproul that night, testified to the following conversation with the plaintiff:

“ * * * I asked him how he got hurt, and he said he heard the station called ‘Durand station/ and went out on the platform and got off, or something, and stepped off, and the train started like, and he went to turn back to get on and slipped or fell, something to that effect.”

Roy Cook, another employee of the Grand Trunk, was also present when the plaintiff was picked up, and he testified:

“I heard the conversation that took place between Mr. Brown, Mr. Sproul, Mr. Doak, and myself. Mr. Brown said the brakeman came through the train and hollered ‘Durand/ and he got off, and the train started up and he went to get back on and he fell.”

Oliver J. Fleming, conductor on the Grand Trunk, testified:

“I was down where Mr. Brown was picked up, and so was Mr. Cook and Mr. Doak and Mr. Sproul. Mr. Brown was lying on the outside of the track. * * *
“Q. What statement did he make as to how the accident occurred?
“A. He said when the train stopped he thought he was at Durand and got off, and saw where he was, and went to get back on again; that was about all he could remember.”

' The injury occurred upon Sunday night. After the plaintiff’s arm was amputated in Dr. Fair’s office, he was taken to the Y. M. C. A. hospital at Durand, where he was treated and cared for until the following Saturday, when he went to the University hospital at Ann Arbor, where he remained for some 18 or 20 days.

The evidence of the defendant tends to show that while at the Y. M. C. A. hospital at Durand the plaintiff was visited by the claim agent of the defendant on a number of occasions, and the subject of a settlement was discussed with the plaintiff. It is undisputed that the claim agent stated to the plaintiff, as his opinion, that the defendant was not liable to the plaintiff in any sum according to his own statement, but he offered to settle with him and pay him the sum of $50 and all his hospital expenses. Negotiations were continued for two or three days, the plaintiff refusing to accept $50 and demanding $100 in settlement. Finally, on Friday, August 1, 1913, a settlement was reached with the plaintiff, and the following agreement was signed by him by his mark and witnessed by his son, Allen Brown, Dr. Fair, and the claim agent, the substance of which is as follows:

“In consideration of one hundred dollars and hospital services and doctor’s bills for a period not exceeding (3) three weeks to me paid by Ann Arbor Railroad Company, the receipt of which is hereby acknowledged, I hereby release and discharge the said Ann Arbor Railroad Company from any and all liability for and on account of any claim I have, or may have, against said railroad company by reason of, or in any manner growing out of personal injuries received when I jumped off of an excursion train 1881 feet south of diamond or crossing of Ann Arbor R. R. Co. and Grand Trunk Crossing, and received injuries to right arm and same was amputated, right knee, left hand and right side of abdomen contused and lacerated near Durand, State of Michigan, on or about the twenty-seventh day of July, A. D. 1913, said payment being received in full satisfaction of all claims of whatsoever nature to date.
“And I also agree that this release shall operate as a bar to any and every suit at law or otherwise, which I or. my heirs, executors, administrators, or personal representatives otherwise might or could sustain by reason of the claim aforesaid.”

It further appears that, after the plaintiff had been in the hospital at Ann Arbor for about a week, he received the check of the defendant, at the hands of the said claim agent, for the sum of $100, attached to which was a voucher purporting to be in full settlement and satisfaction of any and all claims substantially as stated in the foregoing instrument. This voucher purported to be signed by the mark of the plaintiff in the presence of two witnesses, one of whom was sworn as a witness and testified to her own signature, but had no recollection of the transaction other than the fact that the plaintiff received $100 by the check of the defendant, which was placed to his credit together with $29, the amount of 'the hospital bill.

While the testimony on behalf of the defendant tends to show that the foregoing claimed release was given and settlement made with the.plaintiff at a time when he was fully competent and understood the entire transaction, the plaintiff testified that he had no recollection whatever of the claimed settlement at Durand, but did admit that he received the sum of $100 from the defendant while in hospital at Ann Arbor, claiming that it was given to him by the defendant because of sympathy with him in connection with his injury, and that the same was so offered and received as a gratuity; that he had never tendered or paid back the same; that he had no knowledge of giving or executing any release until such claim was made after the commencement of this suit; and that he never had agreed to release any claim which he might have against the defendant. This question was submitted to the jury by the trial court.

On rebuttal the following hypothetical question was asked of Dr. Belser, and the following occurred:

“Q. Suppose a man of the age of 63 years in some manner getting off or bn a passenger train fell so far under the wheels of the train that his arm was crushed in such a manner above the elbow that the arm. was removed, and had lost a lot of blood, and. during the operation there was administered to him 1½ ounces of chloroform, two 1/60 grains of strychnine, some digitalis and Y, grain of morphine after the operation, on the next day grain hypodermic injection of morphine and in the mouth some grain tablets of morphine, on the next day one grain hypodermic injection of morphine and more tablets of morphine of grain size, on the next day, Wednesday, three grains hypodermic injection of morphine and more morphine tablets of grain, and on Thursday, the next day, one hypodermic injection of morphine and more morphine tablets, would he be, or would he not be, able to legally comprehend what he was doing on Friday, the next morning?
“Defendant’s Attorney: I object because it does not state with any degree of certainty the treatment or method in which the morphine was administered or the anaesthetic given to him.
“The Court: Does the number of tablets given appear?
“Plaintiff’s Attorney: It does not, from the testimony.
“Defendant’s Attorney: I object further that the question is not based on the evidence.
“Q. As to the morphine that was administered through the mouth, I understand the testimony to be that it was administered to him through the mouth in tablet form consisting of grain, when it was necessary to quiet him?
“The Court: I think he may answer the question. (Exception for defendant.)
“Q. Would he be able to legally comprehend what he was doing on Friday morning?
“A. Well, I think his mind would be_ in rather a depressed and blank condition; I don’t think he would be in a very bright condition.
“Defendant’s Attorney: I move the answer be stricken out, what he thinks about it.
“The Court: Go on. I deny the motion. (Exception for defendant.)
“Q. You may state whether or not a shock such as you say would follow and the drugs which were administered would or would not affect a person’s mental faculties so he might be caused to do certain things and not know it, and the whole week things be done of which he would not remember anything?
“Defendant’s Attorney: I object, that does not conform to the testimony.
“The Court: Answer. (Exception'for defendant.)
“A. I think that could happen.
“Defendant’s Attorney: I move the answer be stricken out as a mere opinion. (Motion denied. Exception for defendant.)”

At the close of the testimony, the defendant asked for a directed verdict on the grounds of a variance between the allegations in the declaration and the testimony of the plaintiff. Also because of the settlement, and the release of the plaintiff, which motion was denied and exception taken. The trial resulted in a verdict and judgment for the plaintiff in the sum of $2,000. There was a motion for a new trial, which motion presented nearly every question raised in the case, and the. further reason that the judgment was contrary to the law and the evidence in said cause, and contrary to and against the weight of the evidence. The motion was denied in writing, to which denial exception was duly taken. The case is before us on writ of error.

The questions raised by appellant by appropriate assignments of error and discussed in the brief and at the oral argument may be summarized as follows:

(1) Is the verdict against the- weight of the evidence as regards the manner in which' the accident took place ?

(2) Is the verdict against the weight of the evidence in regard to the release, and was the circuit judge in error in overruling defendant’s motion to direct a verdict because plaintiff had released the defendant company from liability?

(3) Did the court err in overruling defendant’s objection to the hypothetical question propounded by counsel for plaintiff, above set forth?

1. We have read this record with great care and are impressed with the claim of the appellant that the verdict is against the great weight of the evidence as regards the manner in- which the accident occurred. The plaintiff’s testimony, at the trial, that the jerking of the train threw him off, is equivocal and vague and is flatly contradicted by his own admissions on several occasions shortly after the accident, as testified to by seven witnesses, one of whom was the plaintiff’s own witness, and only one of whom (Dr. Fair) was in any way connected with the defendant company. Defendant requested the court to charge the jury as follows:

“If you find from the evidence that the plaintiff got off the train of the defendant, and attempted to board the train again after the same was in motion, and in so doing was thrown under the wheels of the train and was injured, then he would be guilty of contributory negligence, and your verdict should be no cause of action.”

This request to charge was not given, nor was the substance of it given; although the jury were instructed that if they found that the plaintiff was not injured as claimed in his declaration, by attempting to get off the train, he could not recover.

If the statements previously made by the plaintiff as testified to by the numerous witnesses be believed, then the injury was clearly due to the plaintiff’s own negligence in attempting to get on a moving train, and he could not recover. Blair v. Railroad Co., 60 Mich. 124 (26 N. W. 855); Lake Shore, etc., R. Co. v. Bangs, 47 Mich. 470 (11 N. W. 276); Werbowlsky v. Railway Co., 86 Mich. 236 (48 N. W. 1097, 24 Am. St. Rep. 120); Jacob v. Railroad Co., 105 Mich. 450 (63 N. W. 502).

While the mere number of witnesses contradicting plaintiff’s testimony is not conclusive, yet it is a fact which should not be lost sight of. In our opinion the motion for a new trial should have been granted on the ground that the verdict was against the great weight of the evidence, as to the manner in which the accident occurred, and that it was error to refuse the same. In re McIntyre’s Estate, 160 Mich. 117 (125 N. W. 51).

2. We hesitate to hold that the verdict is against the overwhelming weight of the evidence in regard to the release. There is some testimony in the record that the claim agent, in his conversation with the plaintiff, sought to impress upon the plaintiff that there was no liability on the part of the company, and that everything he gave him was a matter of charity and a gratuity. Upon this subject the claim agent testified on cross-examination as follows:

“ * * * I wanted to impress upon Mr. Brown that I wanted to be perfectly fair with him, and I told him every time I talked with him about the settlement that there was no liability on the part of the company, and that everything I gave him was a matter of charity, and I wanted him to believe it was a matter of charity. * * *
“Q. And all your talks all the time with Mr. Brown was that whatever you gave him was a matter of charity?
“A. It was nothing else. There was no liability.
“Q. You wanted him to believe it?
“A. When I told him; yes, sir.”

There are decisions to the effect that a payment back, or tender, is unnecessary where the money was paid voluntarily or as a donation, and the plaintiff subsequently induced by fraudulent means to execute a paper which turned out to be a release. Likewise, it has been held that, where the amount received was not understood by either party to be in settlement of the disputed liability, a return or tender of the money was not necessary. Simeoli v. Rubber Co., 81 Conn. 423 (71 Atl. 546); Mensforth v. Brass Co., 142 Wis. 546 (126 N. W. 41, 512, 135 Am. St. Rep. 1084). See Marple v. Railroad Co., 115 Minn. 262 (132 N. W. 333, reported with note in Ann. Cas. 1912D, 1084 et seq.).

The testimony of the plaintiff is very positive to the effect that he never knowingly signed, or authorized the signing of, any release. While the testimony opposed to this position of the plaintiff is very persuasive, yet we do not feel like holding, as matter of law, that there should have been an instructed verdict upon the subject of the claimed release.

3. We are of the opinion that the court erred in permitting the hypothetical question to be answered, for the reason that there was no sufficient foundation in the evidence upon which to base such question; and we think there was prejudicial error in the overruling of defendant’s objection to this question. A careful reading of the record shows that there was no positive testimony as to the treatment of the plaintiff. In other words, as objected to by counsel, what the treatment consisted of did not appear with any certainty. The question purports to lay before the witness such facts regarding the administration of certain drugs and opiates during plaintiff’s confinement at the hospital at Durand as would enable the witness to give an opinion as to whether or not the plaintiff would be able to comprehend what he was doing on Friday. The foundation was wholly uncertain. The number of morphine tablets administered was not given at all. The question refers to “some” digitalis; “some” grain tablets of morphine; “more” tablets of morphine ; again “more” morphine tablets; and still again “more” morphine tablets. The question did not state at what time of the day the hypodermic injections were given, and it seems to us that it wholly lacks that degree of certainty' which makes the answer of the expert admissible, or of any value. The record shows that the plaintiff’s attorney admitted that the number of tablets did not appear in the testimony,_yet he sought to have the witness testify what would be the condition of a patient on a given day if on the preceding days an indefinite unknown quantity of drugs was administered to him at unknown intervals. This court said, in Turner v. Township of Ridgeway, 105 Mich. 409 (63 N. W. 406):

“As the question was put, it would be impossible for any expert to give an intelligent answer as to whether a fall upon the side would occasion concussion of the spine. It would depend, of course, upon the nature of the fall.”

And so here, it would depend upon the number of tablets of morphine administered, the method of administering, and the time when the doses were given in order to determine the effect upon the patient. Such question and answer were well calculated to mislead the jury.

This court has recently, in the case of Beattie v. J. L. Hudson Co., 180 Mich. 111 (146 N. W. 650), had occasion to pass upon a similar question. In that case Justice Brooke, speaking for the court, said:

“We think it obvious that an opinion based upon facts or information beyond the personal knowledge of the witness, and not in evidence, should not have been permitted to stand. Connell v. McNett, 109 Mich. 329 [67 N. W. 344], and La Londe v. Traction Co., 145 Mich. 77 [108 N. W. 365].”

In our opinion the testimony of this physician was probably largely influential upon, and may have controlled the verdict of the jury as against the numerous witnesses who testified that plaintiff’s condition was in fact that of one competent to execute the release in question.

For the errors pointed out, the judgment of the court below is reversed, and a new trial granted.

Ostrander, Bird, Moore, and Steere, JJ., concurred. McAlvay, C. J., and Brooke and Kuhn, JJ., concurred in the result.