text:
    BEECHER v. COMMON COUNCIL OF DETROIT.
    Domicile — Intention oe Changing — Evidence—Taxation.
    A finding that a person intended to fix his domicile in the city in which he was taxed for personal property is sustained by evidence that he had actually resided therein for four years, and had built an expensive house, in the construction of which his wife made suggestions as to its internal arrangements, with the evident view of making it a home, and that he owns no other house, although he testifies that he came to such city for a temporary purpose, as administrator of his father’s estate therein located, that he had no intention of changing his residence, that he returned twice a year to his former residence to vote, and that he described himself in , insurance policies as residing at such place.

      Certiorari to Wayne; Frazer, J.
    Submitted June 8, 189?.
    Decided September 14, 1897.

      Mandamus by George L. Beecher to compel the common council of the city of Detroit to vacate an assessment for taxes on personal property. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Alfred Bussell, for relator.

      C. D. Joslyn, for respondent.
   Long, C. J.

In 1896 the board of assessors of Detroit assessed George L. Beecher.for taxation upon personal property valued at $304,000. He appealed to the board of review, and thence to the common council, claiming that he was not a resident of the city of Detroit, but that he is a resident of Negaunee, Mich., and hence the assessment of his personal property in Detroit was unauthorized. The board and the common council refusing to relieve him from this assessment, he filed a petition in the Wayne circuit court for mandamus to compel the respondent to correct the assessment against him by striking therefrom said assessment. The court held that the answer raised an issue of fact as to where the relator resided, and directed such issue to be heard before a jury. A jury was called, and testimony taken. Upon this testimony, the jury found that the relator resided in the city of Detroit. The court confirmed this finding, and denied relator’s petition. The case comes into this court upon a writ of certiorari.

It is the contention of the relator that there is no testimony in the case which warranted such a finding by the court or jury. No testimony was presented by the respondent. It appears by the testimony introduced by the relator that in 1882 he went to Negaunee, to take charge of the property and business of his father there. He continued in this employment, living in a house owned by his father, until the year 1892, when his father died, leaving a large estate in the city of Detroit; and, as he was one of the administrators of his father’s estate, he came to Detroit that year, with his wife and children. Two years after coming to Detroit, he built a house costing $45,000 on a lot purchased for $35,000. This house was completed, so that he moved into it with his family, in January, 1894, and still continues to live in it. Relator claimed that his residence is at Negaunee. He gave testimony tending to show that from the time he went to Negaunee till the present he has voted there; that at the time of leaving Negaunee he stated publicly that he had no intention of changing his residence to Detroit, and has returned twice a year to Negaunee to vote; that, after coming to Detroit, he took out two policies of life insurance, in both of which he is described as of Negaunee; that he offered his house in Detroit for sale, saying his health was such that he should not leave Negaunee, and had never intended to leave it, and was only temporarily in Detroit; that he should return to Negaunee as soon as the estate of his father was closed up.

There can be no question but that a taxpayer may elect Ms residence as a matter of right. Neither can there be any question that temporary abode in a place does not establish a residence there. As was said in Warren v. Board of Registration, 72 Mich. 400:

‘ ‘ There can never, in the eye of the law, be more than one domicile of-citizenship, and that continues, in the case of a citizen, till he himself renounces it absolutely, and takes up another in its stead; and such a domicile is not lost by absence in the State or out of the State, whether within or without the United States.”

But how is the question to be determined whether one place has been abandoned and another domicile has been fixed? Every person must have a domicile somewhere. The domicile is acquired by the combination of residence and the intention to reside in a given place, and can be acquired in no other way. Inhabitants of Phillips v. Inhabitants of Kingfield, 19 Me. 375 (36 Am. Dec. 760). The residence which goes to constitute domicile need not be long in point of time. If the intention of permanently residing in a place exists, a residence in pursuance of that intention, however short, will establish a domicile. Cadwalader v. Howell, 18 N. J. Law, 138. The rule is laid down by Mr. Justice Cooley in his work on Taxation (2d Ed., p. 369), as follows:

“It is a maxim that every man must have a domicile somewhere, and also that he can have but one. Of course, it follows that his existing domicile continues until he acquires another, and, vice versa, by acquiring a new domicile he relinquishes his -former one. From this view it is manifest that very slight circumstances must often decide the question. It depends upon the preponderance of evidence in favor of two or more places; and it may often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive were it not for the existence of facts and circumstances of a still more conclusive and decisive character which fix it beyond question in another. So, on the contrary, very slight circumstances may fix one’s domicile, if not controlled by more conclusive facts fixing it in another place.”

As Jacobs in his Law of Domicile (section 378) states it:

“A removal which does not contemplate an absence from the former domicile for an indefinite and uncertain time is not a change of it. But when there is a removal, unless it can be shown or inferred from circumstances that it was for some particular purpose, expected to be only of a temporary nature, or in the exercise of some particular profession, office, or calling, it does change the domicile. The result is that the place of residence is prima facie the domicile, unless there be some motive for that residence not inconsistent with a clearly-established intention to retain a permanent residence in another place.”

Lord Thurlow, in Bruce v. Bruce, reported in a note to Marsh v. Hutchinson, 2 Bos. & P. 229, laid down this rule:

“A person’s being at a place is prima facie evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence.”

In Bempde v. Johnstone, 3 Ves. 198, Lord Loughborough laid down the same rule.

It is insisted, however, by counsel for relator, that this presumption has been overcome by the testimony of relator and his witnesses; that from such testimony it conclusively appears that the relator left Negaunee for temporary purposes only, and with the intention to return there as soon as the trust which he had assumed as one of the administrators of his father’s estate had been fully discharged. If we were to decide the question here de novo, I am strongly of the opinion that the great weight of the evidence is in favor of the proposition that the relator intended, when he left Negaunee, to return there, and that his residence in Detroit was intended as temporary only, and to continue only during the time necessary to settle up his father’s estate. But the case is before us on certiorari, and the question to be determined is whether there is any evidence from which the jury or the court could legitimately find that his intention was to fix his domicile in Detroit. The fact is established that he actually resides there. He has built an expensive house. It appears that in building it his wife made certain suggestions as to the internal arrangements, and evidently with a view of making it a home. The house in Negaunee where he lived belonged to his father, and the only house which he actually owns is the one built by him in Detroit. It does not appear that he was ever assessed upon this large amount of personal property in Negaunee. He does not suggest that he is not possessed of it, or that it is not property subject to taxation. The question was fully submitted to the jury, and their finding is against him upon the question of fact.

It is claimed that the court should have determined the question, instead of the jury. However that question might be determined, the finding of the jury was evidently acquiesced in by the court, for the court confirmed their finding, and evidently was satisfied with it. We are satisfied that there is some evidence in the case which the jury and the court below might properly consider in determining the question of fact.

Section 13, Act No. 206, Pub. Acts 1893, provides that:

“All personal property, except as hereinafter provided, shall be assessed to the owner in the township of which he is an inhabitant on the second Monday of April of the year for which the assessment is made.”

The proceedings below must be affirmed, with, costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    HALL v. MURDOCK.
    erty — Dependant as Witness — Contradictory Testimony.
    Plaintiff was injured by the falling of a freight elevator. In an action against the owner of the premises and her husband, the wife denied any liability, on the ground that the husband, who had a life interest in the premises, put in the elevator and controlled the property. Being called as a witness for plaintiff, she testified that, after the property was deeded to her, her husband was to have charge of the business and collect the rents, but that he was not to have the rents. Upon cross-examination by her own counsel, she stated that she was mistaken in -giving such testimony, and thai the rents belonged to her husband. Held, that the contradictory statements justified the submission to the jury of the question of her liability.
    3. Same — Negligence—Question por Jury.
    In an action by one who was injured by the falling of an elevator, due to the breaking of the cable, evidence that the cable was considerably worn when purchased for use in the elevator in question, that it had been in use there for two years, and that the proprietor had made statements to the effect that the cable was worn out, and that he would have to get a new one, was sufficient to go to the jury on the question of the proprietor’s negligence.
    3. Expert Witnesses — Competency.
    A witness who is shown to have some knowledge of and to have had some experience with elevators and safety devices may testify as' an expert in an action for injuries caused by the fall of an elevator, although he has never had any experience with an elevator with a safety device similar to that used in the elevator in question.
    4. Elevators — Safety Appliances — When Necessary.
    The mere fact that the occupants of a business block occasionally ride upon a freight elevator, which has nothing in its construction or appearance to indicate that it was intended for the conveyance of passengers, does not impose upon the proprietor the duty to equip it with safety appliances with the same care that would be required in the case of a passenger elevator.

      5. Same — Injury to Passenger on Freight Elevator — Liability of Owner.
    The owner of a freight elevator who permits or invites another person to ride thereon does not guarantee that it is equipped with the most approved appliances in use on passenger elevators, and is not hable for an injury caused by the fall of the elevator if he has provided appliances in common use in freight elevators, and has exercised reasonable care in inspecting, repairing, and managing it.
    6. Same.
    The proprietor of a freight elevator, who ought to have known of a defect in the cable rendering it dangerous for use, is not relieved from liability for an injury to one whom he invited to ride, by the mere fact that he also was riding at the time of the injury, and exercised the same care for the passenger’s safety that he did for his own.
    7. Evidence — Reading from Medical Works — Prejudicial Error.
    To permit plaintiff’s counsel, in an action for personal injuries, to read to the jury extracts from medical works, in connection with the cross-examination of experts called by defendant to refute plaintiff’s theory of the cause of his physical condition, is prejudicial error.
    8. Same — When Permissible — Impeachment of Witnesses.
    The only circumstances under which medical works can properly be read in evidence are where the witness has based his opinions upon them, and has referred to them as authority.

    9. Instructions — Allegation of Negligence — Issue.
    An instruction, in an action for personal injuries resulting from the fall of an elevator, which permits the jury to find the defendant to have been negligent in the maintenance of the elevator otherwise than in respect to the particular appliances claimed to have been defective, is erroneous.
    Error to Calhoun; Smith, J.
    Submitted June 8, 1897.
    Decided September 14, 1897.
    Case by Charles E. Hall against Gilson E. Murdock and Sarah M. Murdock for personal injuries. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Tort for damages resulting from the fall of an elevator upon which plaintiff was riding. The. elevator was in an annex at the rear of a block, running from the basement to the third floor. The first story was occupied as stores; the second as living rooms, some of which were occupied by the defendants, who were husband and wife; the third story was a large room used for the storing of goods and furniture. The claim of the plaintiff is that the defendant Sarah owned the title in fee, and thai/her husband (defendant Gilson) was her agent in the management and control of the building. Mrs. Murdock claimed that she had nothing to do with the construction of this evelator, and that her husband owned a life estate in the block, and rented and controlled it. Plaintiff had. made a contract with the defendant Gilson for the storage of some of his household furniture in the third story, the consideration depending upon the amount of floor room occupied. The elevator was constructed and designed for the carrying of freight. There was nothing in its construction or appearance to indicate that it was intended for the conveyance of passengers. It was supplied with a safety device consisting of a large half-elliptic spring of steel, made of four plates, fastened on the under side of the cross-beam, and inclosed by a clamp attached to the cable. The lower end of the clamp was fastened around this spring in such a manner as to cause the weight of the car and its contents, when suspended, to rest on this spring, and bend it up to the beam. Its construction was such that, if the cable broke, the pressure on the spring would be released, and the spring would rebound to its half-elliptic form, and in so doing it moved a lever which set the safety brakes.
    Two grounds of negligence were submitted to the jury: First, that the cable had become old and worn, and for that reason brokeand, second, that the safety device used was not such as experience had shown to be the most effective. The theory of the defense was that the cable parted in consequence of a piece of timber which, in some way not accounted for, got between the cable and sheave wheel, on which the cable parted. Mr. Murdock, at the time the contract for storage was made, directed plaintiff to deliver the goods at the middle south door of the annex by setting them into the annex from the alley. Mr. Murdock was not present when the goods were delivered, which was Saturday. Plaintiff and his drayman, upon their own motion, elevated one dray load of goods to the third story. On the following Monday plaintiff went to the block, to see if his goods had been placed. He was informed that they had not been. His own testimony was to the effect that Mr. Murdock told him that he was lame, and could not handle them, and asked plaintiff to assist him; that plaintiff did so, and, at the direction of Mr. Murdock, placed the goods upon the car; that Mr. Murdock then invited plaintiff to go up on the elevator, which he did. Mr. Murdock was also upon the elevator, and started it, and, after going about 12 feet, the cable parted, and the elevator fell to the basement.
    Plaintiff recovered verdict and judgment.

      John C. Patterson (H. E. Wins or, of counsel), for appellants.

      Lyman B. Trumbull and Charles A. Blair, for appellee.

       The use of medical books or scientific books as evidence is the subject of an extensive note to Union Pacific R. Co. v. Yates, (U. S. C. C. A.) 40 L. R. A. 553.

   Grant, J.

(after stating the facts). Defendant Sarah contends that there was no evidence of negligence upon her part, for the reason that Mr. Murdock had a life interest in the premises; that he put in this elevator, received the rents, and controlled the' property. The plaintiff introduced evidence to the effect that leases had been made out in her name, and signed by her. The plaintiff called Mrs. Murdock as a witness, and she testified that, after the property “was deeded to me, he [Mr. Murdock ] was to have charge of the business. He was to collect rents. He was not to have the rents.” Upon cross-examination by her counsel, she testified that she was mistaken when she testified as above, and that the rents belonged to her husband. Under this testimony it was not error to leave the question of her liability to the jury, which the court did under proper instructions. She was a party in interest, and her contradictory statements were for the jury, not the court, to consider.

It is insisted that there was no evidence of negligence on the part of the defendants. We think there was evidence sufficient to submit the question to the jury whether the cable had become old and worn, and parted in consequence. The mere fact that it broke, under the decisions of this court, was no evidence of negligence. The cable had been in use when purchased by Mr. Murdock, and had been used by him about two years. One witness saw a piece of the cable as it was when purchased by Mr. Murdock, and testified that it was considerably worn. It is true, he did not testify that it was, in his opinion, sufficiently worn to be dangerous, but its condition in this respect was proper for the consideration of the jury in connection with the other testimony. Other witnesses also testified to statements made by Mr. Murdock to the effect that the cable was “worn out or played out;” that some of his tenants had used it had, and pretty much spoiled it, and that he had got to get a new one. Under evidence of this character, we think the question was properly submitted to the jury.

A more doubtful question is presented as to negligence in the use of this safety device. The evidence of the defendants shows that it was in common use in the vicinity of Albion. The sole testimony against the device used was given by a witness named Holtgren, who was introduced as an expert. He testified that there were other devices, better than this, which had been in common use some years. He also gave evidence tending to show that, if the cable parted in a certain place, the device could not work. But on cross-examination he testified: “I never had any experience personally with this kind of an elevator. Never had any experience with any elevator with spring safety device.” He, however, had shown some knowledge and experience of elevators and safety devices, and we are not prepared to hold that his knowledge and experience were not sufficient to justify his testimony as an expert.

There was, however, no testimony to show that this device, which was once in common use, was not proper for an elevator intended solely for freight. It is true that there was testimony tending to show that the occupants of this building sometimes rode upon this elevator in raising and lowering their goods, but this did not constitute it a passenger elevator, or make it the duty of the defendants to have it constructed with the same care that would be required in the case of a passenger elevator. We are, therefore, of the opinion that the evidence in this case was not such as to justify the court in submitting to the jury the question whether it was negligence to equip a freight elevator with it.

But the most difficult question arises upon the instruction that—

“If Mr. Murdock invited the plaintiff to ride upon the elevator, he thereupon made the elevator, so far as the plaintiff is concerned, a passenger elevator, and became liable for the degree of care which is required of the carrier of passengers.”

We are of the opinion that this instruction states the rule too broadly. It leaves out the other rule that, if plaintiff knew that this was not a passenger, but a freight, elevator, he assumed all the risks incident to carriage upon it. Owners are under no legal obligation to put safety appliances upon elevators not intended to carry passengers. Webb, Pass. & Freight Elevators, § 23; Kern v. Refining Co., 125 N. Y. 50. Under the instruction given, defendants were bound.to exercise the highest degree of care, and to use those appliances which experience had shown to be the most effective in securing the safety of passengers. When one knows that the elevator is designed for freight alone, he must be held to know that it is not equipped with the same regard for safety that a passenger elevator is or should be. This is the rule applicable to freight trains upon railroads. McGee v. Railway Co., 92 Mo. 208 (1 Am. St. Rep. 706); Oviatt v. Railway Co., 43 Minn. 300. When, therefore, one is permitted or invited by the owner to ride upon a freight train or elevator, such owner does not guarantee that either is equipped with the most approved appliances in use upon those carrying passengers, and, if he has provided those which are in common use, and has exercised reasonable care in inspecting, repairing, and managing them, he has done all that the law requires.

The mere fact that the occupants of this block rode upon this elevator is no evidence that defendants intended, it for that purpose, even if such use were known to them.

The injury to the plaintiff was vigorously contested by the defendants, and they introduced expert testimony tending to show that the injury resulted from other causes. Medical experts were placed upon the stand, who gave their experience in such diseases, and their opinions that plaintiff’s condition was not the result of the injury. Upon cross-examining these witnesses, counsel for the plaintiff called their attention to certain medical works, and, under objection and exception, read quite extensively to the jury. This was error, and we cannot hold that it was not prejudicial. The only circumstances under which medical books can be read in evidence are where the witness has based his opinions upon them, and has referred to them as authority. Pinney v. Cahill, 48 Mich. 584. The established rule is that it is incompetent to read from these books. Elwell (J. J.), Med. Jur. chap. 23; Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Mich. 75. This rule cannot be evaded upon cross-examination. Marshall v. Brown and People v. Millard, supra.

The court instructed the jury that—

“If you find that this cable and safety device and elevator were of an approved kind and make, and that it was set up and put into operation by skillful and competent mechanics, and that it was carefully watched by defendants, and was carefully inspected from time to time by a competent izispectoz’, and that no defects were or could have been discovered in the cable or safety device by a competent inspector, making a proper and careful inspection often enough to discover the defects in the same, if any, then the defendants have done all that the law would require,” etc.

There were only two grounds of negligence, as already shown. There was no evidence tendizig to show that the elevator outside the safety device was not of an approved kind and make, or that it was not properly set up, or that it was not carefully inspected by a competent inspector. The objection to this charge was that it left it to the jury to determine negligence from facts upon which there was no dispute. Defendants were entitled to have the jury instructed definitely and clearly as to the two grounds of negligence.

Complaint is made that the court erred in refusing to instruct the jury that Mr. Murdock was on the elevator, and exercised the same care for plaintiff’s safety that he did for his own, and that this was all the law required. There was no error in refusing this request. If he knew, or should have known, that there were defects, it was his duty to notify the plaintiff. Plaintiff was entitled to be informed as to the danger, if any, and then exercise his own judgment whether he would assume it. The fact that Mr. Murdock chose to assume it is no excuse for him when others are injured.

For the errors above noted, the judgment must be reversed, and a new trial ordered.

Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.


author: Long, C. J.

text:
    ATHERTON v. VILLAGE OF BANCROFT.
    1. Villages — Reincorporation—Effect on Existing Rights of Action.
    An action against a village for injuries received upon a defective sidewalk before Act No. 3, Pub. Acts 1895, reincorporating thereunder all villages previously incorporated, took effect, may, under the saving provisions of chapter 14, § 8, be prosecuted under the former law.
    2. Same — Claim for Damages — Presentation to Council — Notice.
    Therefore, the injured person’s failure to present his claim to the council for allowance, as required by chapter 5, § 7, of the act of 1895, and to give notice to the village clerk, within 60 days after the injury occurred, of his intention to hold the village liable for the damages sustained (chapter 7, § 7), will not, in such case, defeat a recovery, where no such provisions were contained in the law under which the defendant village was previously incorporated.
    3. Sidewalks — Condition . of Repair — Conclusions of Witnesses.
    In ah action for injuries sustained upon a defective sidewalk, a witness, who had attempted to repair the walk several days before the accident, was asked the following questions: “What can you say, after you had got through your work on that walk, whether or not it was in good repair?” and “What can you say as to whether or not it was in a reasonably safe condition for public travel ? ” The witness had already testified fully as to the condition of the walk, and what he did.in its repair. Held, that the questions calling for his conclusions were properly excluded.
    4. Same — Notice of Defect — Insufficient Repairs — Defenses.
    A village which has actual notice of a defect in a sidewalk cannot, by ordering it to be repaired by some one else, escape liability for an injury resulting from the defect, where the repairs were insufficient to render the walk reasonably safe for travel.

      5. Married Women — Action for Personal Injuries — Damages —Instructions—Correction of Misstatement.
    Where the charge, in an action for damages for a personal injury, included, as elements for which compensation should he awarded, medical attendance, nursing, inability to earn money, and loss of time, and, on suggestion of plaintiff’s counsel, in the presence of the jury, that she was a married woman, and could not recover therefor, such elements were eliminated by striking them from the charge, there was no error.
    Error to Shiawassee; Smith, J.
    Submitted June 9, 1897.
    Decided September 14, 1897.
    Case by Mary E. Atherton against the village of Bancroft for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Selclen 8. Miner and M. V. B. Wixom (Timothy E. Tarsney, of counsel), for appellant. ■

      Watson & Chapman, for appellee.
   Long, C. J.

This action was brought to recover for an injury received by the plaintiff upon a defective sidewalk in the defendant village on July 12, 1894. The case was tried before a jury, and a verdict and judgment entered in favor of the plaintiff for $2,050.

Before the jury was impaneled and sworn, a motion was made to dismiss the case upon the ground that the declaration did not state a cause of action. The reason given by counsel for this contention was that it did not appear by the declaration that the claim for damages for the injuries had been presented to and passed upon by the village council, as provided by Act No. 3, Pub. Acts 1895. Section 7, chap. 5, of that act provides:

“The council shall audit and allow all accounts chargeable against the village. * * * It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the village, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance. * * * ”

It is therefore insisted that under these provisions of the •act the plaintiff could not maintain an action against the village until she had first presented her claim to the council for allowance, and that those facts must be set out in “the declaration.

This act was approved February 19, 1895, and took immediate effect. The injuries complained of were received July 12, 1894, so that before the act was passed the right of action had accrued. By section 7, chap. 7, it is provided that:

“No village subject to the provisions of this act shall be liable in damages sustained by any person in such village, either to his person or property, by reason of any defective street, sidewalk, cross-walk, or public highway, or by reason of any obstruction, ice, snow, or other incumbrance upon such street, sidewalk, cross-walk, or public highway, situated in such village, unless such person shall serve or cause to be served, within 60 days after such injury shall have occurred, a notice in writing upon the clerk or deputy clerk of such village, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury, as far as the same has become known, and that the person receiving such injury intends to hold such village liable for such damages as may have been sustained by him. * * * ”

It is evident from these and other provisions that it was not the intent of the legislature that the act should be regarded as retroactive. If the act is to be so treated, the plaintiff could not sustain this action in any event, for the injury occurred more than 60 days prior' to the time the act was approved and took effect. These provisions already referred to must be read and construed in connection with other provisions of the act. The act is entitled “An act to provide for the incorporation of villages within the State of Michigan, and defining their powers and duties.” Section 7, chap. 14, provides that:

“All villages heretofore incorporated under any general or special law of this State are hereby reincorporated under and made subject to the provisions of this act, such reincorporation to take effect on the 25th day of February, A. D. 1895; and all general or special laws by .virtue of which such villages have been incorporated are hereby repealed from and after the said 25th day of February, A. D. 1895.”

By the provisions of this section, the act under which the village was incorpoi’ated was repealed, and a new corporation formed; and, but for the saving clause contained in the succeeding section, the contention of counsel, for defendant would have great force. Section 8 provides r

“All villages reincorporated under and made subject to the provisions of this act, as provided in the preceding section, shall succeed to and be vested with all the property, real and personal, moneys, rights, credits, and effects, and all the records, files, books, and papers belonging to such villages as formerly incorporated; and no rights or liabilities either in favor of or against such former corporation, existing at the time of its reincorporation under or subject to the provisions of this act, and no suit or prosecution of any kind, shall be in any manner affected . by such change, but the same shall stand or progress as if no such change had been made, and all debts and liabilities of the former corporation shall be deemed to be the debts and liabilities of the new corporation. * * * Provided, that when a different remedy is given in this act, which can be made applicable to any rights existing at the time of the incorporation of.the village under or subject to this act, the same shall be deemed cumulative to the remedies before provided, and may be used accordingly.”

The cause of action having accrued in the present case prior to the time this act took effect, and more than 60 days having elapsed between the time of the injury and the taking effect of the act, the plaintiff was not in fault in not serving the notice required by this act. We think it clearly the intent of the legislature that causes of action arising prior to the taking effect of the act of 1895 may be prosecuted under the old law. It is not contended that the act under which the village was incorporated contained any provision requiring a party injured to present such claim to the council for audit and allowance before suit could be maintained. The court was not in error in ' overruling this motion and proceeding to the trial of the cause.

Certain questions were raised upon the trial which are also presented here for consideration. Mr. Waldie was called as a witness, and he was asked:

“What can you say, after you had got through your work on that walk, whether or not it was in good repair ?
“What can you say as to whether or not it was in a reasonably safe condition for public travel ? ”

These questions were objected to, and excluded. It was the contention of plaintiff that this walk, south of South street, for several rods in extent, was old, rotten, worn out, with broken planks and holes; that this was the general condition of the whole walk. Mr. Warren, as well as the witness Waldie, was called by the defendant, and both were permitted to testify what they did in the repair of the walk several days before the injury occurred. They examined the walk,' turned the boards to see which were loose, nailed down the loose ones, and claimed to have put in some new boards where any were needed. They were permitted to testify fully as to the condition of the walk, and what they did in its repair. Under such circumstances, we think the court was not in error in excluding the answers to the above questions. .It was calling for a conclusion, and there was no occasion for expert testimony in the case. This question was settled in Girard v. City of Kalamazoo, 92 Mich. 612, and cases there cited.

It is contended that the court was in error in giving the plaintiff’s fifth request to charge, as follows:

“If the village of Bancroft had actual notice of the defective condition of said walk, it could not order it to be repaired by some one else, and pay no further attention to it, but, after having such actual notice, it should see that it was repaired in a reasonable time, and put in a reasonably safe condition for travel in the, daytime and in the night-time.”

We think the court was not in error in giving this request. It was the claim upon the part of the defendant that there was no liability, because it had ordered the walk repaired by Mr. Warren, a member of the village council, and a member of the street committee. The village could not escape liability for injuries arising from, the defective sidewalk by directing its repair. It had .notice of the walk’s actual condition, and was bound to put it in a condition reasonably safe and fit for public travel. It was out of repair for nearly 60 rods, the boards-being laid upon rotten stringers, and many of the boards themselves rotten. All the repairs that Warren and Waldie claim to have made were turning some of the boards over and nailing them down, and putting in three or four new pieces. No new stringers were put in. The plaintiff was injured by stepping on a board in the walk, which flew up, tripping her, and she fell to the ground, and was seriously injured. While all the testimony is not here, the record itself states:

“Plaintiff produced several witnesses who gave evidence tending to show that the walk was defective, and had been so for one year or more, and that she was permanently injured, and made a cripple for life.”

Aside from the first question discussed, counsel for defendant most strenuously urge that the court was in error in its instruction to the jury upon the question of damages. The court gave the following in place of the ninth request:

“I read from the 82d Mich., page 383 [Sherwood v. Railway Co.], as follows: ‘In estimating the compensatory damages in cases of this character, all the consequences of the injury, future as well as past, are to be taken into consideration, including the bodily pain which is shown by the proof to be reasonably certain to have-resulted from the injury. The injured party,_ when entitled to recover, should be awarded compensation for all the injuries, past and prospective. These are intended to embrace and include indemnity for actual nursing and medical expenses; also for loss of power or loss of capability to perform hard labor, .or capacity to earn money, and reasonable satisfaction for loss of physical powers. The elements of damages which the jury are entitled to take into account consist of all the effects of the injury complained of, consisting of personal inconvenience, sickness which the plaintiff endured, loss of time, bodily and mental suffering, impairment of capacity to earn money, the pecuniary expenses, the disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury; and, in considering what would be a just sum in compensation for the sufferings or injury, the jury are at liberty, not only to consider the bodily pain, but the mental suffering, anxiety, suspense, and fright may be treated as elements of the injury for which damages by way of compensation should be allowed. And as these last-mentioned element^ of damage are in their very nature not susceptible of any precise or exact computation, the determination of the amount is committed to the judgment and good sense of the jury. And if you find for the plaintiff, such sum should be awarded as will fairly and fully compensate her for all damages which she has sustained, consisting of the elements referred to, not exceeding in amount the sum claimed in the declaration,’ — which in this case is the sum of #10,000.”

At this point in the charge, plaintiff’s counsel, interrupting, said:

“Your honor, the plaintiff is a married woman, and we cannot recover for medical attendance, nursing, inability to earn money, or loss of time.
“The Court: If I read anything in that relation, you will not consider it. That belongs to the husband, and that will be stricken out. This is for personal injuries. In this action I also instruct you that the plaintiff is not entitled to recover, and you have no right to award her, any damages by way of punishment of any one, or of the village, or of its officers, or inhabitants thereof. If the plaintiff is entitled to recover at all, it can only be such damages as will compensate her; nothing more.”

Notwithstanding this correction, it is insisted that the court was in error. We think the court, when his attention was called to his misstatements, eliminated from the minds of the jury any erroneous impression that they might have received from his charge upon the question of measure of damages. Counsel for plaintiff interrupted the charge, and admitted in the presence of the jury that the plaintiff could not recover for medical attendance, nursing, and inability to earn money, or for loss of time. With this correction in the general charge, we think there was no error.

Some other questions are raised, which we do not think of sufficient importance to discuss. From an examination of the whole record, we think a fair trial has been had, and we find nothing in it prejudicial to the rights of the defendant.

The judgment must be affirmed.

Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.


text:
    FISK v. WABASH RAILROAD CO.
    Railroad Companies — Damage by Fire — Statutory Defenses— Title to Lands — Costs.
    The fact that a railroad company, when sued in the circuit court for negligently setting fire to land, attempts to establish the statutory defense that its engines were properly managed, its fire-boxes, machinery, and smokestacks in good condition, and that it was therefore not responsible for the fire, does not bring the title to the land in question, so as to entitle plaintiff to costs under subdivision 2, § 8964, 2 How. Stat., where the amount recovered by him is less than 8100.
    Error to Lenawee; Lane, J.
    Submitted June 9, 1897.
    Decided September 14, 1897.
    Case by Daniel Fisk against the Wabash Railroad Company for the negligent burning of property adjacent to its right of way. From a judgment for plaintiff, with costs to defendant, plaintiff brings error.
    Affirmed.

      J. C. Winne, for appellant.

      Watts, Bean & Smith, for appellee.
   Long, C. J.

Action commenced in the Lenawee circuit court in trespass on the case for damages:

In setting fire to and burning 100 rods of fenoe on plaintiff’s land--------------------------------. §100
Burning certain of the soil on six-acre parcel____ 150
20 days’ labor in extinguishing fire .............- 25
Burning and destroying portions of land and meadow....................................... 25
§300

The declaration sets out that plaintiff is the owner of certain lands, described therein as containing 100 acres; that defendant’s right of way for its road 100 feet wide extends across it; that a fire was set on said right of way by the employes of the defendant, which spread and ran over the land of the plaintiff; and also that fire was set on plaintiff’s land by sparks and cinders from defendant’s engines, then passing over said right of way, etc., causing the damages for which suit is brought. The plea was the general issue. Plaintiff had judgment for $86. The court below gave costs in favor of the defendant. Plaintiff brings error, claiming that the costs should have been awarded in his favor.

This is the only question involved here. There is no claim made by counsel for plaintiff in his brief that the title to the premises was put in issue by the pleadings. The only contention is that the title came in question on the trial. The record is very short, and states:

“Plaintiff introduced evidence tending to support the allegations of his declaration, and show that fire was set by defendant’s engines, and destroyed his fence and land, and that he suffered damages thereby, as his witnesses estimated the same, from $125 to $150. The defendant introduced evidence tending to show that it was not responsible for the fire; that its engines were properly managed; that the fire-boxes, machinery, and smokestack of its engines and parts were in good condition; and that the damages plaintiff had suffered ranged from $25 to $50. The jury, after considering the evidence, found a verdict in favor of the plaintiff, and assessed his damages at $86. The court held that, under the circumstances, the judgment did not carry costs to plaintiff, and awarded costs to defendant.”

This is the whole record.

Subdivision 2, § 8964, 2 How. Stat., provides that the plaintiff shall recover costs—

“In all actions to which the title of lands or tenements, or right of way, or right by prescription or otherwise to any easement in any land, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in- question on the trial of the cause.”

Upon the record presented here, we do not see how it can be claimed that the title to the land described in the declaration came in question on the trial. All the record shows is that the defendant made the defense which the statute (section 3378,1 How. Stat.) permits railroad companies to make in defense of such actions. The statute does not change the common-law liability for setting fires. It simply shifts the burden of proof upon the defendant to show that such fires were not negligently set. The only claim made by the defendant, so far as this record shows, was that it was using its own land in a lawful way, and was in the exercise of due care. It was not contending that it had any interest in the plaintiff’s land. We think the court very properly awarded costs to the defendant.

The judgment must be affirmed.

Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.


text:
    WOODBURY v. VENIA.

    1. Surveys — Boundaries—How Determined.
    A boundary line between adjoining proprietors, unless fixed by agreement, acquiescence, or' adverse possession, is to be determined in accordance with the original government •survey.
    2. Same — Monuments and Measurements.
    The rule that monuments control courses and distances, and that, when monuments and measurements vary, the monuments always control, applies only to monuments and measurements made by the original survey.
    3. Same — Highways and Fences — Evidence.
    Therefore, an old fence or a highway, supposed to be upon the boundary line between two sections, but not shown to have been erected or laid out with any reference to the original survey, is not better evidence of the actual location of a disputed section corner than surveys made from the government field notes by subsequent surveyors.
    4. Same — Witnesses.
    Where a surveyor had testified in an action of trespass that he had located a disputed section corner at a given point by reference to the field notes of the government survey, and that he had discovered there traces of the stake driven by the government surveyor to mark the place, it was not a material inquiry whether existing fences would have to be changed under his survey.
    Error to Monroe; Kinne, J.
    Submitted June 10, 1897.
    Decided September 14, 1897.
    Trespass guare clausum fregit by Rosina Woodbury against Godfrey Venia. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John O. Zabel, for appellant.

      Watts, Bean & Smith, for appellee.

       Rehearing denied November 23, 1897.

   Long, C. J.

This is an action of trespass commenced in justice’s court. Defendant pleaded title. The cause was removed to the circuit court for trial before a jury, and the plaintiff had verdict and judgment.

The plaintiff was the owner, and in possession, of the north 10 acres of the south 26 acres of the W. £ of the E. i of the N. W. fractional i of section 3, township of Whiteford, Monroe county. On the trial she testified that the defendant owned the land south and east of her land, and that in the month of April, 1895, he drew a line across her land, and proposed moving the fence over to that line. This she forbade, but he removed the fence over upon her land on the south and east four or five rods. On cross-examination she testified that the fence at that time was on what was. known as the “Winney” line; that defendant claimed that this was not the true line, but that what was known as the “Baldwin” line was the true line; and that he moved the fence over to the Baldwin line. It appears' that the plaintiff had moved the fence to the Winney line some two years before, and the defendant, at the time of the claimed trespass, moved it back to the Baldwin line; so that the whole controversy arises over the true location of the lines on the south and east sides of this 10 acres.

It is admitted upon both sides that these lines are subdivisions of the north half of section 3, and that their correct location depends upon the correct location of the northeast corner of section 3. Two or more surveys have been made to determine the correct lines of this 10 acres. A surveyor by the name of Baldwin had run the lines for the defendant, and Mr. Winney had surveyed the lines for the plaintiff. Other parties and some surveyors were present at the time these lines were run out, and they were all witnesses in the case.

Surveyor Baldwin, being called as a witness for the defendant, testified that in the fall and winter of 1890 he made a survey of the north half of section 3 in that township. He says:

“We commenced from the quarter post on the east side of the section, ran west to the quarter post on the west side. At each of these places there were stones. The original witness trees were not there; in fact, I did not find any on the corners in the north half of the section. I then ran north, to the northwest corner of the section, where we found a stone. Then we ran east, to the northeast corner of section 3, where we found a stone, which, after considerable measuring and examination, I accepted as correct. The difficulty in the section was in the northeast corner. * * *■
“Q. What led you to accept the stone which you found at the northeast corner of section 3 as correct ?
“A. I saw there was some trouble there, because the highway supposed to be on the section line running north and south in Summerfield, the jog between this highway and the one in Whiteford, did not agree with the government notes, and the difficulty was to determine which of those was correct, or, if I could, what made the difference. There were no witness trees ever taken by the government surveyor to the northeast corner of section 3. The notes of the government survey give witness trees to the southeast corner of section 34 in Summerfield, — that was supposed to be the corner where the Summerfield road was, — and noted a jog in the corners of something like 24 or 25 rods; and the actual jog, as the roads are built, was, I think, four or five rods. I do not know the exact distance; did not agree with the notes at all. I then made inquiry as to the length of time this stone which we found in the road had been there. I also inquired as to how long the west part of section 2 had been fenced, and how long the road had been fenced as it was there. The fences on the west side of the section were very old. They showed they had been there a good many years, and the parties there present at the survey said they had been.”

The witness further stated that, after some further inquiries of parties present, and finding that, if he took the corner of section 34 as correct, it would move all the fences on section 2, where they had been built for some 15 or 20 years, as well as the division fences in section 3, where they had been built for about the same length of time, he “then went on and completed this survey, with this corner of section 3 as the correct corner, * * * and divided the north half of this section correctly, with this stone as the northeast corner of the section.” The witness stated that this stone was in the center of the north and south road as then laid out.

The government field notes were also offered in evidence. These notes called for witness trees at the southeast corner of section 34 of Summerfield, as follows: “White oak, 12 inches in diameter, south, 53 degrees west, 2 1-100 chains; elm, 12 inches in diameter, south, 49 degrees west, 2 9-100 chains.”

Mr. Winney was called as a witness by the plaintiff, and testified that he had done surveying for 50 years, and surveyed this section in Whiteford in 1893. He stated:

“I ascertained the northeast corner of section 3 from the bearings cited for the southeast corner of section 34 in Summerfield, and quarter post south of section 35. I ascertained the southeast corner of section 34 from the U. S. witness tree, bearing tree. I found the elm tree. These trees were necessary to locate the northeast corner of section 3, because the corner of section 3 had no bearing or witness trees. None were given in the notes. That would indicate that the corner was in a prairie. The notes say: ‘A prairie. No bearing trees. 6 14-100 chains east of southeast corner of section 34, set post at intersection of corners 2 and 3 in prairie. No bearing trees. Soil, timber, and undergrowth as last noted.’ After I found the southeast corner of section 34, I located the northeast corner of section 3 by measuring east 6 14-100 chains. I ran out section 3 with this point as the northeast corner of section 3, and subdivided the lands.”

Another surveyor, by the name of Richards, was also pi’esent with Mr. Winney when this survey was made, and testified to the same facts as testified to by Mr. Winney. Mr. Henry F. Bean, witness for plaintiff, a surveyor and civil engineer, was present with Winney, and testified to the same facts. They all testified to finding the elm tree, and recognized it as the witness tree to the corner of section 34. From other testimony it appears that the oak, the other witness tree, was gone, but they claim to have found the remains of it by digging. They also claim to have found evidences of the original stake set by the United States surveyors at the corner of section 34. Taking their measurements from the witness trees, they •dug down, finding a black spot in the earth. Following this downward, the hole or black spot tapered, growing smaller, like a stake driven down. At the bottom they found a little rotten wood, and this was taken by Mr. Winney as the corner post of section 34. Measuring from this point, and following the direction of the field notes of the government survey eastward 6 14-100 chains, they rested, and again dug, and claim to have found the traces of the point of a stake marking the northeast corner of section 3. They measured from this point to the quarter post east and the quarter post west, and claim to have found them all right. The point where they claim to have located the southeast corner of section 34 was shown to be exactly in the center of the east and west road and the road running north into Summerfield.

There was no evidence in the case showing, or tending to show, that the boundary line between the plaintiff and the defendant had ever been fixed by agreement between the parties, by acquiescence, or adverse possession. The court thereupon directed the jury that there was but one question in the case, and that was which was the correct survey,- — that made by Mr. Baldwin or that made by Mr. Winney; that, if they found the survey made by Mr. Baldwin was correct, their verdict must be for the defendant ; while, on the other hand, if they found the Winney survey correct, their verdict would be for the plaintiff.

The defendant asked the court to instruct the jury, by the second request to charge, as follows :

“It appears from the testimony in this case that the cause of variation in the surveys of the premises in dispute as run by Winney and Baldwin is in the different location •of the northeast corner of section 3. It also appears from the testimony that there were never any witness trees to this corner. It is therefore for the jury to determine whether the stone found by Mr. Baldwin is the correct location of this corner, or whether the corner set by Mr. Winney, about 20 rods farther east, is correct.”

This was given by the court.

The defendant further asked the court to charge:

“A long-established road is better evidence of actual boundary, settled by practical location, than any survey made after the monuments of the original survey have disappeared. ”

Also the court was asked by the defendant to instruct the jury:

“It is for the jury to determine from the testimony whether such evidence as is before them of the location of the corners between sections 34 and 35, in connection with the testimony in this case, is of more value in determining the northeast corner of section 3 than the road claimed by the defendant to have been upon the east line of the north half of said section 3 for 15 years and upwards. If the jury are satisfied that the long-continued use of this road in its present location, as claimed by the defendant, is the best evidence, to their minds, of the location of the east line of the north half of section 3, then the jury would be justified in finding that Mr. Baldwin is correct in his location of the northeast corner.”

These requests were refused.

It is not contended by counsel for plaintiff but that, as an abstract proposition, counsel was right in claiming that this road would be better evidence of the location of the northeast corner of section 3 than the survey made by Mr. Winney, if it had been shown that this road had been laid out upon the section line at the north end; but counsel claim there is absolutely no evidence in the case that the road was placed upon the section line.

In this we think counsel are correct. It is not pretended by Baldwin that he knew that this road was located upon the section line. . Mr. Montri testified that he was chain man when Baldwin made his survey; that, when they came to the north end of the road as now located, Mr. Baldwin said: “This is not the section line. The section line is over yonder; it is farther east. The road is wrong, but I have no right to move it.” And witnesses Lockwood and McMicken both testified that this road was not laid on the section line, and McMicken testified that the road was finally opened in the edge of the timber, while the field notes show that the northeast corner of section 3 was in the prairie. We think, under these circumstances, the court was not in error in refusing to give these requests, and that it would have been error to charge that the location of this highway was the best evidence of this corner.

Counsel for defendant has cited numerous cases laying down the rule that monuments control courses and distances, and that, if the original landmarks are no longér discoverable, the question is, where were they located? and that upon that question the best possible evidence is usually to be found in the practical location of the lines, made at a time when the original lines were presumably in existence, and that, as between old boundary fences and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are. It is not contended by counsel for plaintiff but that these rules are well settled in this State, but it is contended that subsequent surveyors cannot make monuments of their own, which shall control the government surveyor’s measurements, and that the original government survey must always control, and the effort should be to find, if possible, where the lines are on the ground; that the original survey must control, although it may have been incorrect at the time it was made.

It is a well-settled law in this State that monuments control courses and distances, and that, when monuments and measurements vary, the monuments always control; but this reference is to monuments and measurements made by the original survey. Courses and distances would not be controlled by monuments made by some person unauthorized to make them; and the whole trouble with defendant’s contention is that he was unable to locate the northeast corner of section 3, unable to show that the north and south highway was on the section line between 2 and 3, or that these division fences upon section 3 were located with reference to any measurements from the true northeast corner of section 3. He found a stone at that corner, but there is no showing that it was one of the original monuments marking the corner. On the other hand, the testimony of the plaintiff’s surveyor is that he was able to find and locate upon the ground the southeast corner of section 34, and that, in accordance with the original survey, and following the field notes with courses and distances eastward 6-14-100 chains, he discovered evidences of an old stake in the ground, and located that as the northeast corner of section 3. There was no evidence in this case of any monuments shown by the defendant which the court was bound to instruct the jury would be better evidence of the actual location of the northeast corner of section 3 than the surveys and measurements made by the plaintiff’s surveyors.

It is contended that the court was in error in not permitting Mr. Winney, on cross-examination, to state whether or not the division lines on section 2, as well as the lines on section 3, according to their present location, would have to be changed under his survey. We think this was wholly immaterial. The question had reference to fences already built there. If Mr. Winney and the other surveyors with him found the original corner as established by the United States survey of section 34, and then followed the field notes which located the northeast corner of section 3, it would necessarily fix and determine that corner of section 3, and Winney and the other surveyors claim that they found evidences of the old stake there. If the jury found that Winney was stating the truth about it, then the northeast corner of section 3 was plainly established, and there was nothing in the testimony of Mr. Baldwin which in any manner contradicted it. According to Baldwin’s own testimony, he had no starting point to commence a survey which had been definitely fixed by the original survey, and he simply assumed that the northeast corner of section 3 was where he found this stone, without any evidence to show that the stone actually marked the correct corner.

It is further contended that the court was in error in his charge to the jury, as follows:

“From the evidence submitted to you, from these men and other men, of the facts and circumstances as they have been developed, all these matters you should take into consideration, and from them determine where the true government survey is, or ought to have been.”

We think there was no error in this, when taken in connection with the other parts of the charge. Counsel, in his criticism of the judge, says:

“While in other portions of his charge he submits the whole question to the jury, without consideration of the evidence, yet this constant reiteration that the jury should find where the correct line ought to be, or should be, according to the government survey, could not do otherwise than leave the jury to believe that the proper survey was the one which made the jog at the northeast corner of section 3 conform to the jog mentioned in the government field notes.”

There was no error in the court saying to the jury that they must find where the correct line ought to be, or should be, according to the government survey. That was the very inquiry of the case. Where did the government survey locate upon the ground the northeast corner of section 3 ? If that question were properly solved, it determined the rights between these parties, and the jury were told plainly that this was the issue. Personally, I am satisfied that it would not have been error if the court had directed the'jury that the plaintiff’s testimony tended to fix that corner in accordance with the government survey, and that there was no testimony on the part of the defendant to contradict it.

The judgment must be affirmed.

Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.


text:
    LEHMAN v. EUREKA IRON & STEEL WORKS.
    1. Railroads — Kicking Cars — Negligence—Question for Jury.
    In an action for personal injuries, it appeared that the plaintiff attempted to pass through an opening three feet wide between two freight cars, which, with several others, blocked a public street, and that the cars came together, catching him between the bumpers and severely injuring him. Plaintiff testified that he did not notice that the cars were in motion, and that he saw ño engine there. There was evidence that, a short time previously, cars had been brought from defendant’s works, and shunted down upon the siding, without any one upon the same to warn persons crossing or to manage the cars. About the time of the injury, the engine, under the control of defendant’s engineer, was seen going away from the siding. Held, that there was evidence to go to the jury on the question of defendant’s negligence.

    2. Same — Infants—Contributory Negligence.
    A child nine years of, age, who is injured by the negligence of a railroad company, will not be denied a recovery because, at the time of the accident, he was not in the exercise of the prudence and foresight which the law might require of an adult under the same circumstances.
    Error to Wayne; Carpenter, J.
    Submitted June 10, 1897.
    Decided September 14, 1897.
    Case by Edward Lehman, an infant, by his next friend, against the Eureka Iron & Steel Works, for personal injuries. From a judgment for plaintiff, defendant-brings error.
    Affirmed.

      Sidney T. Miller, for appellant.

      James H. Pound, for appellee.

       The negligence of a railroad company in respect to flying switches or kicking cars is considered in a note to Kentucky Cent. R. Co. v. Smith, (Ky.) 18 L. R. A. 63.

   Long, C. J.

The defendant operates a manufacturing plant at the city of Wyandotte. To carry on that business it controls and uses cars, engines, etc., having a track from its works extending out to and along Eureka avenue. This track has been laid for many years along this public street, and is. connected with the tracks of the Michigan Central Railroad. The plaintiff, a boy about nine years of age, on May 28, 1892, was passing across this street. He, with another boy, a little older, had been across the track from their homes, and in going back the avenue was filled with freight cars. There was an opening between two of them. The older boy passed safely through the opening, which was about three feet wide. The plaintiff attempted to pass, when the cars came together, and he was caught between the bumpers, and severely injured. This action is brought to recover for the damages sustained. The negligence charged is that the cars were kicked back upon that siding without any warning, and without any brakeman or other person upon the same to warn persons crossing, or to control the cars. The testimony of the boys shows that they did not notice that the cars were in motion, and saw no engine there. Other testimony was given tending to show that a short time previously cars had been brought from the works, and pushed upon this siding, where many other cars stood at the time; that this engine was under the control of the defendant’s engineer, and only one brakeman was there, and he was riding on- the engine. About the time of the injury the engine was seen going away from the siding. The case was submitted to the jury upon the facts as shown, and verdict was given in favor of plaintiff for $1,200. Defendant’s contentions are: (1) That the court should have taken the case from the jury, for the reason that there was no evidence tending to show the negligence of the defendant; and. (2) that the plaintiff was guilty of contributory negligence.

The negligence of the defendant under the circumstances here shown was a question for the jury. This was a public highway. While the defendant was permitted to use it for the storage of its cars, yet the plaintiff was not a trespasser in crossing over it. The defendant, in the use of the street, was bound to take some precaution to guard the public from danger in placing its cars upon it. The kicking of the cars down upon the street with force would naturally move the cars standing there, and there is evidence in this record from which the jury were warranted in finding that that was the cause of the cars’ coming together when these boys attempted to pass through. No person was there in control of the shunted car. As the boys approached the opening, the cars were apparently not in motion, and no engine was in sight of them, if their testimony be true. There was also testimony tending to show that no bell or whistle was sounded. Shunting or kicking cars across a public highway was held actionable negligence in Schindler v. Railway Co., 87 Mich. 400; Cooper v. Railway Co., 66 Mich. 261 (11 Am. St. Rep. 482). The circumstances shown in the present case certainly warranted the court in submitting the question as one of fact for the determination of the jury.

The question of the plaintiff’s contributory negligence counsel for defendant argues at great length in his brief. We think that question was fairly left to the jury. The same rule is not to be applied to a mere child that would be applied to an adult. As was said by Mr. Justice Cooley in East Saginaw City R. Co. v. Bohn, 27 Mich. 503:

“It would be unreasonable and cruel in the extreme to hold such a child responsible for a prudence and foresight beyond his years, and for a perception and comprehension of dangers which are only learned by experience, or by observation and reflection.'”

See, also, Hargreaves v. Deacon, 25 Mich. 1; Daniels v. Clegg, 28 Mich. 32; Hassenyer v. Railroad Co., 48 Mich. 205 (42 Am. Rep. 470); Ecliff v. Railway Co., 64 Mich. 196.

We think the requests to charge were properly refused, and they will not be discussed, as there is some evidence to sustain the claim made by the plaintiff.

The judgment is affirmed.

Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.


author: Moore, J.

text:
    CAPPON & BERTSCH LEATHER CO. v. PRESTON NATIONAL BANK OF DETROIT.
    1. Appeal — Evidence to Support Finding — Presumptions.
    Where the record on appeal does not purport to contain all of the testimony, it will be presumed that there was evidence to support the jury’s finding upon a fact submitted to them.
    2. Sale — Fraudulent Purchase — Good Faith of Mortgagee— Burden of Proof.
    A mortgagee of goods fraudulently purchased by the mortgagor has the burden of proving, in an action by the vendor to recover back the goods, that the mortgage was taken in good faith, for present value, and without notice of the fraud.
    Error to Wayne; Simpson, J., presiding.
    Submitted June 10, 1897.
    Decided September 14, 1897.
    Replevin by the Cappon & Bertsch Leather Company against the Preston National Bank of Detroit, Clarkson M. Snedicor, and others. Prom a judgment for plaintiff, defendant bank brings error.
    Affirmed.

      J. G. Dickinson, for appellant.

      Sloman & Groesbeck, for appellee.
   Moore, J.

Plaintiff is a wholesale dealer in leather. Defendant Snedicor was engaged in business in Detroit under the firm name of Snedicor & Hathaway. It is the claim of the plaintiff that in July, 1894, Snedicor came to its place of business to buy leather, and at that time represented himself to be perfectly solvent, and represented that he had in good accounts and stock in trade $50,000 above all liabilities, and also owned a piece of unincumbered real estate on Woodward avenue worth $50,-000; and that, relying upon these statements, during the summer it sold him goods; that on the 33d of November, 1894, its officers had another conversation with him, in which he said his affairs were in the same shape they had been, and, relying upon his statement, it sold him a bill of leather amounting to nearly $1,500; that, soon after this, the plaintiff learned the statements to he untrue, and that as early as February, 1894, Snedicor had deeded the Woodward-avenue property to the Preston National Bank of Detroit, and also assigned, in February, 1894, to the bank, his accounts. November 30, 1894, Mr. Snedicor made to the Preston National Bank a chattel mortgage of all his stock of goods, and the bank at once took possession of the goods. December 5, 1894, Mr. Snedicor made another chattel mortgage of his goods to Charles S. McDonald as trustee for creditors. When the plaintiff learned what the situation was, it instituted this suit in "replevin to recover the goods sold November 33, 1894. Part of the goods were found in the possession of the Preston National Bank; the others were not found. The case was tried by a jury, who gave a verdict in favor of the plaintiff against the bank for the goods found in its possession, and against Snedicor for the value of the goods not found. The bank appeals.

A large number of errors are assigned, and but few of them are argued. It is the claim of the defendant that the bank was a good-faith mortgagee for a present consideration passing at the time of the making of the mortgage, and for that reason the court should have directed a verdict in its favor. The bill of exceptions does not purport to contain all of the testimony, and we cannot presume that there was no testimony showing knowledge upon the part of the bank. Indeed, it is not clear from the testimony that does appear in the record that the question of good faith was not a proper one to submit to the jury.

The circuit judge charged the jury that, if Snedicor fraudulently obtained the goods, “the burden is upon the Preston National Bank, if it claims to have rights to these goods superior to the plaintiff, to show that, at the time its’ mortgage was taken, it parted with a valuable consideration in good faith, and without notice of the circumstances under which the goods were obtained.” It is claimed this puts the burden of proof where it does not belong. . We think the charge of the court was fully justified by the late case of Whitaker Iron Co. v. Preston Nat. Bank, 101 Mich. 146, and cases there cited. The charge was a long one, and, without quoting more of it, we think it was quite as favorable to the defendant bank as it should have been.

Judgment is affirmed.

Long, C. J., and Montgomery, J., concurred. Grant and Hooker, JJ., did not sit.


author: Montgomery, J.

text:
    EWERS v. WHITE’S ESTATE.
    1. Agency — Money in Agent’s Hands — Demand—Statute op Limitations.
    The statute of limitations does not begin to run against a claim for money in the hands of an agent until a demand is made by the principal or his representative.
    2. Estates op Decedents — Executor’s Failure to Inventory Claim — Estoppel—Implied Admissions — Evidence.
    Where neither a deceased debtor nor his executors have been misled by the failure of the executrix of the creditor's estate to schedule and inventory the claim in the debtor’s lifetime, the elements of an estoppel to assert the claim against his estate are wanting; and the force of the omission as evidence against the claim is but slight, where it appears that the executrix supposed that the claim was merged in a collateral agreement, which the debtor failed to carry out.
    S. Same — Executrix as Sole Legatee — Suit in Individual Capacity.
    An executrix who is also the sole legatee and devisee may, after the payment of all debts, turn over to herself a claim due the testator, and bring suit thereon in her individual capacity.
    4. Same — Payment op Debts — Prima Facie Case.
    The fact that no debts are outstanding against an estate in which no commissioners on claims have been appointed is prima facie established by the testimony of the executrix, given 26 months after the xirobate of the will, that there are no such debts.
    5. Attorney and Client — Friendly Advice — Privileged Communications.
    An attorney at law who acted in the caxiacity of friendly adviser merely to both parties in interest, accepting no retainer, and refusing to have anything to do in the matter if there was to be any difficulty between the parties, was not the attorney of either, so as to render statements to him Xirivileged.
    Error to Saginaw; Wilber, J.
    Submitted June 10, 1897.
    Decided September 14, 1897.

      Julia A. Ewers presented a claim against the estate of John B. White, deceased. The claim was allowed by the commissioners, and the estate appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      Charles S. Smith (Humphrey & Grant, of counsel), for appellant.

      G. K. Grout (E. M. Joslin, of counsel), for appellee.
   Montgomery, J.

Harriet E. White, wife of John B. White, died in December, 1893, leaving a will which devised all of her property to claimant after her debts were paid and $100 set aside to care for a cemetery lot. Her will was probated March 10, 1894, and claimant was appointed as executrix. Claimant and Mrs. White were sisters. Prior to the probate of the will, Dr. White and claimant had some discussion about the terms of the will, and it appears Dr. White deemed the will unjust to him, and announced a purpose of contesting it. Mrs. Ewers agreed to satisfy the doctor if he would not oppose the probate of the will, and the will was admitted to probate without opposition from him. In September following, as appears by the testimony offered on behalf of claimant,, a full discussion of the matter in difference was held. It is claimed that on this occasion the doctor admitted that he had acted for his wife in making loans and investing money, and that he had an amount of money in his hands belonging to her, and reported that, if the terms of the will were carried out, it would not leave him a bed to sleep on; at the same time insisting, however, that, as the furniture was bought during the matrimonial relations, it belonged to him as much as to his wife. Dr. White had an estate of his own, amounting to about $20,000. According to the testimony offered on claimant’s behalf, it was fully agreed that claimant would not insist upon payment of the indebtedness of Dr. White to his wife’s estate, or assert any claim to the furniture, if the doctor would by bis will devise her one-fifth of his estate. This was agreed to, and a will in these terms drafted by him in his own handwriting. Whether any such will was ever fully executed does not appear, but it dues appear that subsequently he made a will which contained no provision for claimant. On the trial of the case in the circuit, on an appeal from an allowance by commissioners on claims, claimant was allowed $1,631.93.

The court instructed the jury that claimant was not entitled to recover on the agreement to devise to her one-fifth of the estate, as this agreement would be invalid, under the statute of frauds. The court also held that, whether Mrs. White was the owner of the furniture or not, there had been no conversion of it during the lifetime of Dr. White, and that, therefore, there could be no recovery on that ground. The court charged as follows:

‘‘ The sole question submitted to you is whether or not, as claimed by the claimant, in September, 1894, an arrangement was reached as claimed, whereby Mrs. Ewers released her claim to any moneys in the hands of the doctor which he held as the agent of Mrs. White in her lifetime. If there was such an arrangement made, and she did so release that money, then the question that is submitted to you is the amount of money remaining in the doctor’s hands, at the time this agreement was made, belonging to his wife’s estate. As that money, if such an agreement was made, afterwards went into the body of his estate, in the opinion of the court she should be entitled, in this case, to recover the amount of moneys he actually held in his hands at the time the agreement was made, as the agent of his wife; and that is the sole question that is submitted to you.”

It will be seen, therefore, that the issue finally presented to the jury was very narrow. There are, however, a large number of assignments presented. We shall deal with those only which arise upon questions as to rulings which might have affected the result, and shall pass over others.

It is contended that, as the agreement on the part of Dr. White was to refrain from contesting the will of Mrs. White, and to devise to claimant one-fifth of his estate, in consideration of the release of the demand for money and furniture, and that, as he has so far executed his agreement as to refrain from contesting his wife’s will, claimant cannot rescind on her part, and recover on the original consideration. The record does not support the contention. No definite agreement was made until after the will was probated. The most that Mrs. Ewers promised to him was that she would not ask anything but what was reasonable and fair if he made no contest.

The defendant pleaded the statute of limitations, and some complaint is made of the instructions bearing upon this question. We think the court was right in this instruction:

“It is claimed that, if he was indebted to his wife’s estate or to his wife in the amount or in any amount they may claim, that the statute of limitations has run upon the claim; in other words, it is outlawed. The claimant makes no claim here for anything except moneys that he held in his hands belonging to Mrs. White, as her agent, at the time this agreement was .made, if it was made at. all. Now, for such moneys, if any remained in his hands, the statute of limitations would not run until a demand was made. No demand is shown to have been made by Mrs. White upon the doctor for this money.”

After the agreement between claimant and Dr. White, she made an inventory of the estate of Mrs. White, omitting the claim against Dr. White and the furniture, and it is contended that she is estopped from asserting a claim against Dr. White’s estate. While the failure to schedule and inventory this claim is evidence against claimant in the nature of an admission, we think the elements of an estoppel are wanting. Neither Dr. White nor his executors have been shown to have taken any action, or refrained from any action, because of being misled by the omission. Even the force of this act as an admission is much broken down by the fact that claimant, if the testimony advanced on her behalf is credited, supposed that the claims for money and furniture were merged in the agreement with Dr. White.

It is claimed that the claimant should have instituted these proceedings in her representative capacity. The court charged, in substance, that if, at the time of the alleged agreement in September, the funeral expenses had been paid, and there was no indebtedness against the estate, Mrs. Ewers, as the sole residuary legatee, and Dr. White, as the husband of Mrs. White, were the only persons interested in the estate of Mrs. White, and that Mrs. Ewers might turn over to herself this claim. We think this instruction correct. Letts v. Letts, 73 Mich. 138; Foote v. Foote, 61 Mich. 181.

It is insisted that the evidence does not show that there were no debts. This question was not contested on the trial. Mrs. Ewers testified that there were no debts. The will was probated in March, 1894, and this case was tried in May, 1896. The statute (section 5888, 2 How. Stat.) does not imperatively require the appointment of commissioners, and, when noné are appointed, creditors are not barred from proceeding. Id. §§ 5902, 5946. We think, therefore, that there was sufficient evidence to show prima facie that there were no debts.

The claimant’s case was established by the testimony of William N. Brown, an attorney at law. His testimony as to statements made by Dr. White was objected to, on the ground that the relation of attorney and client existed. Mr. Brown testified that he told Dr. White in the beginning that, if there was to be any difficulty between the parties, he should refuse to have anything to do in the matter; that he acted as a friend of both parties. There was no retainer or employment. The testimony was properly admitted. Alderman v. People, 4 Mich. 414 (69 Am. Dec. 321).

Other points are discussed, but an examination of the record satisfies us that no error was committed to the prejudice of the defendant.

Judgment affirmed.

Long, O. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit.


text:
    WIENSKAWSKI v. WISNER.
    Actions — Joint Trespassers.
    A joint action may be' brought by the owner of a stock of goods against a constable who levied an execution upon the stock, another constable who aided in the levy and subsequently took possession of the exemptions under a chattel-mortgage lease assigned to the execution creditor, and the attorney to whom the conduct of the whole business was intrusted by the latter, where, by their concerted action, the sale under execution was made before the hour advertised, and the exemptions were disposed of after the lien of the mortgage had been discharged by tender to each of the amount due under the lease.
    Error to Kent; Grove, J.
    Submitted June 11, 1897.
    Decided September 14, 1897.
    Trover by William Wienskawski against Thompson D. Wisner, John H. Payne, and Michael E. Griffin. Erom a judgment for plaintiff, defendants bring error.
    Affirmed.

      Lombard & Hughes, for appellants.

      McKnight & McAllister, for appellee.
   Long, C. J.

In June, 1896, the plaintiff was the owner of a stock of groceries and general merchandise in the city of Grand Rapids. He was indebted to Edwin J. Gillis & Co., of New York, for merchandise, in the sum of $87.49. Defendant Griffin was acting as the attorney for Gillis & Co., and brought suit against the plaintiff in justice’s court, recovering judgment for $87.49 damages and $3.25 costs of suit. Directly after the rendition of the judgment, Griffin made the necessary affidavit and filed it with the justice to obtain the immediate issuing of an execution. The execution was placed by Griffin in the hands of defendant Wisner, a constable, and defendant Payne, also a constable, was sent by Griffin to assist Wisner in making the levy. The levy was made upon the entire stock of goods and fixtures in the store, claimed to be worth about $1,000, together with all the books of account, a quantity of wood, and a delivery wagon. An inventory and appraisal were made of the goods and property levied upon. The plaintiff claimed his exemptions, but insists they were never set out to him, though the defendants claim the exempt goods were set aside. The store occupied by the plaintiff had been rented from one Dubois, and to secure the rent a chattel-mortgage clause was inserted in the lease. The defendants ^assert that Dubois claimed there was $25 unpaid on this lease, and that an assignment was made of the lease to Gillis & Co. Defendant Payne, acting, as he claims, for Gillis & Co., then took possession of the exempt goods under this chattel-mortgage lease. The plaintiff claims to have made a tender of the amount due on the chattel-mortgage lease to the defendants, which was refused. The amount so tendered was $36, though the plaintiff claims there was nothing due to Dubois under the lease. The goods and property levied upon were advertised to be sold under the execution at 10 o’clock in the forenoon of the 20th of June, 1896. The property, except the exemptions, was sold on that day, and bid in by the defendant Griffin for the sum of $35. These goods were set apart and were held by the parties under the chattel-mortgage lease. On the trial it was claimed by the plaintiff that the sale was made and the goods struck off to Griffin before 10 o’clock, the hour at which the sale was advertised to take place. On the other hand, it is contended by the defendants that the sale was made at that hour. The court directed the jury that, if the sale under the execution was made before the hour advertised, it was prematurely made, and was therefore void, and that the defendants would be liable for the value of the property; and in regard to the exempt goods sold under the chattel-mortgage lease and bid in by Griffin, the court charged that the plaintiff was entitled to recover their value as against the defendants if the jury found the tender was sufficient, or found that there was nothing due on the ehattel-mortgage lease. The plaintiff had verdict for $640, and defendants bring error.

It is claimed by the defendants that the plaintiff has joined two distinct trespasses in the same action, in which separate and 'distinct parties committed the trespass; that, although the sale under the execution might be void, and defendant Wisner might be held liable as a trespasser from the beginning, his liability would be limited to the value of the goods he unlawfully disposed of under the execution, and that defendant Payne could not be held liable therefor; that Payne, as the authorized agent of Gillis & Co., under the mortgage, had a right to take possession of the exempt goods, and that, defendant Wisner having no right to the possession of those goods, Payne had a right to take possession, and Wisner could no longer be held responsible for Payne’s subsequent acts. Counsel claim that the case falls within the rule laid down in Strawbridge v. Stern, 112 Mich. 16. In that case the plaintiff brought an action against Livingston & Block, copartners, and one Levy. Livingston & Block purchased a large quantity of goods from the plaintiff fraudulently, and afterwards turned over a small portion of them to defendant Levy. Plaintiff sued, and claimed a right to a judgment against all the defendants for the conversion of the entire stock of goods originally purchased from plaintiff by Livingston & Block. It was held that a joint action could not be maintained against the different defendants, as the conversions were distinct, and neither was in any way concerned in the conversion by the other. In the present case it appeared from the testimony that Griffin, acting as the attorney for the plaintiffs in the execution, directed both Wisner,and Payne, who were constables, to seize the goods. They were in joint possession when the plaintiffs in the execution took an assignment of the mortgage lease. The exempt goods at this time were not separated out of the others when the plaintiff in this suit made demand for them. Both Wisner and Payne were then in possession, and Griffin was also there present. A tender was made for the exempt goods, not only to Payne, but to Wisner and Griffin, and refused. Mr. McKnight, attorney for the plaintiff in the present suit, testified :

“The day when they removed the goods away from the store I was there when the teams drove up and hauled them away; that is, they were loading up the exemptions and other stock of goods at the time while I was there. Both Payne and Wisner were in possession, and part of the time Mr. Griffin was there with them, and it was pretty hard to find out just who each was representing; they shifted about in such a way. *' * * I was there at the time they were carrying them onto the wagons, and I demanded of both Wisner and Payne personally those goods, and also Mr. Griffin, who was there at the time, to deliver these goods to Wienskawski; and he said we could not have them, that they knew their business, and were going to take them away; and they did so.”

We think the circumstances in the case and the testimony of plaintiff’s witnesses tend to establish the fact that, after the mortgage lien was discharged by the tender, ail three defendants acted in concert in disposing of the exempt goods, as it is apparent they also did in disposing of the goods levied upon under the execution.

It is contended that Payne had no authority to receive the money tendered. It is apparent that he was acting under the direction of Griffin in taking these goods under the mortgage lease. The firm of Gillis & Co. was doing business in New York, and the whole conduct of its business in relation to this matter was intrusted to Griffin. The tender was made to all of them, — Griffin, Wisner, and Payne, — and refused by each. Notwithstanding the tender, they proceeded with the sale, and did sell these exempt goods under this mortgage.

It is claimed that the court was in error in directing the jury that they might find the sale invalid if prematurely made. We think there was no error in this. From the whole record it is apparent that the defendants combined together to overreach the plaintiff, and, upon an execution of less than $100, not only destroyed his business by depriving him of a large stock of goods by the sale under the execution, but also deprived him of his exemptions, to which he was legally entitled.

The judgment is affirmed.

Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.