text:
    GRIGGS v. SAGINAW & FLINT RAILWAY CO.
    1. Appeal and Error — Exclusion op Testimony — Error Cured by Verdict.
    An assignment of error, in an action against a street railroad company to recover damages for personal injuries sustained as the result of the derailment of one of defendant’s cars at a certain switch, on exclusion of evidence that defendant’s cars had been derailed at this switch in a similar manner on former occasions, offered to show defendant’s knowledge and negligence, is disposed of by a verdict in plaintiff’s favor.

      2. Evidence — Witnesses—Failure to Call — Presumptions — In-' structions.
    In an action against a street railroad company to recover damages for personal injuries, where plaintiff was attended after the accident hy two physicians, one of whom was his family physician, who was not called by plaintiff as a witness, nor his deposition taken, he being absent from the city at the time of trial, an instruction that the jury might consider whether or not plaintiff knew such physician was going to be absent and that a presumption would arise from the unexplained absence of the physician’s testimony that if produced it would be adverse and the jury might so consider it, was proper.
    3. Same — Witnesses—Impeachment—Cross-Examination.
    In a personal injury action, where impairment of plaintiff’s memory was claimed as one of the results of the injuries, testimony on cross-examination of plaintiff that he had been under observation in a psychopathic hospital on commitment by a probate court some time before the accident, was admissible as bearing on the question of plaintiff’s condition of health prior to the accident as testified to by him.
    4. Damages — Personal Injuries — Question eor Jury.
    Compensatory damages to be awarded in personal injury actions are contingent on the extent, nature and permanency of the injuries suffered, and are peculiarly appropriate for the estimation and determination of the jury, as they find the facts to be.
    5. Same — Inadequacy oe Verdict — Evidence.
    A verdict for $50, as damages for personal injuries, held, not inadequate, where the testimony as to the extent, nature and permanency of the injuries suffered was conflicting and that of plaintiff was discredited by apparently disinterested witnesses.

    6. Same — Evidence—'Verdict—Improper Motives.
    In a personal injury action held, that the record in its entirety showed that the jury were not influenced or actuated by malign or improper motives in arriving at their verdict as to amount of plaintiff’s damages.

      Error to Genesee; Wisner, J.
    Submitted January 17, 1917.
    (Docket No. 17.)
    Decided May 31, 1917.
    Case by George R. Griggs against the Saginaw & Flint Railway Company for personal injuries. Judgment for plaintiff for an insufficient amount, and he brings error.
    Affirmed.

      Benjamin & Betzoldt, for appellant.

      Weadock & Weadock (Lewis J. Weadock, of counsel) , for appellee. •

      On excessiveness or inadequacy of verdict in actions for personal injuries other than death, see comprehensive note in L. E. A. 1916F, 30, 492.

   Steere, J.

Plaintiff recovered a verdict and judgment against defendant of $50 in the circuit court of Genesee county for personal injuries inflicted upon him by one of its cars at an interurban station in the city of Flint. He has removed the cause to this court by writ of error, claiming that the verdict as to damages was contrary to the weight of evidence and the award clearly inadequate, attributable largely to errors committed by the court in rulings during the progress of the trial and the charge to the jury.

The accident upon which this action is based occurred on June 5, 1912, at the Detroit United Railway station located on the east side of North Saginaw street, in the city of Flint; the station and track at that point being used jointly by that company and defendant. The main line is along Saginaw street, running north and south. At the station a switch track turns from the main line to the east and runs along the south side of the station to the car barns at the rear, there being a switch in the track to the barns near the east sidewalk of Saginaw street, immediately south of the station waiting room, with curves leading from the switch point northerly and southerly into the main track.

On. the morning of the accident plaintiff, a farmer 70 years of age, went with his grown son to the interurban station intending to take one of defendant’s cars for Saginaw. A Saginaw car came out from the barns and stopped on the south side of the waiting room, preparatory to turning from the switch point south on to Saginaw for a run to Court street, whence it would return north along Saginaw street to the station, and go on from there to Saginaw city. Plaintiff was advised of this, and stood waiting on the walk just north of the switch track and west of the waiting room as the car started again on its preliminary run to Court street, when the rear wheels climbed the point of the switch as it was taking the curve south on Saginaw and left the rails, the car striking plaintiff as it swung, throwing him down and inflicting injuries, the severity of which is a matter of marked dispute.

It was claimed by defendant that plaintiff stood carelessly close to the moving car running slowly around the curve, which necessarily swung its rear over the walk, and that it was stopped within a few feet just as the wheels were leaving the rail; while plaintiff claimed that had the wheels not left the track he was a safe distance away on the walk, or platform of the station, and in the exercise of due care; that the sole cause of the accident was running the car around the curve at an excessive rate of speed, purely attributable to defendant’s negligence. As the jury found in plaintiff’s favor on that issue, it becomes unnecessary to discuss the testimony with reference to it.

A motion for a new trial on numerous grounds was denied by the trial court, and plaintiff brings the case here for review upon 27 assignments of error, which may be condensed into the contentions that the damages were inadequate, the court erred in admitting testimony showing that in June, 1911, the year prior to the accident, plaintiff was confined in the psychopathic ward of a hospital at Ann Arbor, that the court excluded evidence of other accidents, similar to this, on the same curve, and certain portions of the charge to the jury were prejudicially erroneous.

Plaintiff’s assignment of error on exclusion of testimony that defendant’s cars had been derailed at this switch in a similar manner on former occasions, offered “for the purpose of showing both knowledge and negligence on the part of defendant,” was disposed of so far as this case is concerned by a verdict in his favor finding negligence on the part of defendant.

That plaintiff was thrown down by the car -which struck him and sustained some external injuries is not disputed. He was carried into the waiting room and laid on one of the seats in a dazed or unconscious condition, as he and his son testified. The station agent telephoned for Dr. Stuart, defendant’s physician in that city, and the son procured some whisky for his father, who took a small amount, and said “no” when offered more. The physician arrived in a few moments, saw on superficial examination that plaintiff had a wound on his head and required attention, spoke to him, and, concluding he could be moved, took him, at the instance of the son, who was with him in his automobile, to the home of another son who lived in the city, where he gave him medical attention and dressed his injuries. That evening Dr. Stuart took plaintiff to his home in the country in his automobile, visiting him the following morning and attended him professionally for about a week, making five calls, until he saw no occasion for further medical attention.

•Plaintiff claimed and testified to having sustained serious and permanent injuries to his head, right shoulder, arm, hip, and a bruise on the calf of his leg, which caused constant pain and left him in shattered health; that before the accident he was in good physical condition for his age, with sound memory and keen sight, able to work on and look after his farm, but, following the accident, and as a result of it, his arm was crippled so that' he was obliged to carry it in a sling for some time, which he estimates “might have been for three weeks”; that his right leg was crippled from the injury to his hip; that he suffered pain in the back of his head, in his hip, and from disorder of the bowels, so that he was no longer able to work pn his farm and attend to his affairs as before. On the other hand, it was defendant’s contention to the jury that the injuries plaintiff received on the occasion in question were not permanent, but only superficial, bruises and cuts, from which he soon recovered, and he feigned their continuance, magnifying them to increase the damages he sought to recover.

In support of his testimony that his right leg was permanently injured plaintiff called a Dr. Millard, his only expert witness, who testified that in an examination of plaintiff made on December 30, 1913, he found a discolored spot over the right hip to the rear of the hip joint and the right leg one-half inch shorter and over two inches less in circumference at a given point ab'ove the knee than the left. This, he stated, might result from many causes, and answered various hypothetical questions on the subject. He had never treated plaintiff, but when making the examination received a partial history of the case from his statement that he was in a railroad accident. Defendant contended that what the physician found had no connection with the accident, but was the result of an old injury. In answer to leading questions on cross-examination plaintiff said that when about 17 years of age he had an accident in which—

“I got my right leg broken twice in two, got a bad set in it, shortened the limb just a little and made a little hitch, but I never was lame in it. * * * I knew the surgeon said it had went so long— It was broke at a slant, and had contracted and drawn up; they could not pull it back.”

It was disclosed that following this accident two physicians attended plaintiff, Dr. Stuart, called by defendant’s station agent, and Dr. Jickling, plaintiff’s physician, who was also called in the afternoon of the accident by plaintiff, who testified that he sent for him and he came to see him at his home every day the other doctor did; “Dr. Stuart came in the forenoon and Dr. Jickling in the afternoon;” that he understood Dr. Jickling was in Panama. On cross-examination he testified that he had consulted with the doctor about his injuries, knew of some one seeing him with reference to his suit, did not remember sending any one himself, or think fie suggested it, but that his “lawyers suggested it themselves”; that he heard the doctor was going and thought the interview was before he heard it. Dr. Jickling was not a witness nor were his depositions offered. Dr. Stuart was called by defendant.

Referring to the undisputed testimony that the two physicians were in attendance on plaintiff shortly after the accident, and that but one had testified, the court on defendant’s request charged the jury that they might consider the testimony relative to Dr. Jickling’s going away, and whether or not plaintiff knew he was going to be absent, saying further in part:

“Whenever the evidence introduced in the trial of an issue of fact shows that the testimony of some witness whose testimony would greatly aid the court or jury before whom the issue is being tried in determining the truth or falsity of such issue, and that the testimony of such witness could not be used without the consent of such one of the parties to such action, and such witness is not produced or the testimony of such witness is not taken by such party, the jury may consider such fact that the testimony of such witness, if given would be contrary to the claim of the party who has failed to produce such witness in open court, or to have such testimony taken by deposition.”

It is urged that this instruction was erroneous and prejudicial, because no evidence in the case indicates that plaintiff was responsible for the doctor going or knew when he left, and that before any presumption can arise against a party for failure to call a material witness it must be shown to have been within the power of the party to produce such witness, citing 16 Cyc. p. 1062, and numerous other authorities.

At the time of the accident Dr. Jickling was plaintiff’s family physician, located and practicing in the city of Flint. He was plaintiff’s attending physician after the accident. He was seen by some one in reference to this suit, at the suggestion of plaintiff’s attorneys. Presumptively his presence or his deposition was available to plaintiff. His testimony was not available to defendant without plaintiff’s consent. Having attended plaintiff as a physician, he possessed peculiar knowledge concerning facts essential to the issue bearing on the truth or falsity of plaintiff’s claim. There is no evidence that his deposition could not have been taken, and no proof of his absence from the jurisdiction of the court, beyond plaintiff’s hearsay testimony that he heard he was going and understood he was in Panama. Though not a model in expression, especially as punctuated in the record, the charge complained of fairly instructed the jury that the unexplained failure to produce the testimony of this witness raised a presumption that if produced it would be adverse to plaintiff, and the jury could so consider it. His counsel apparently so construes it in their brief, contending that such presumption does not arise, because the doctor was absent from the jurisdiction of the court, and plaintiff is not shown to have been responsible for his absence. The jury was not told that plaintiff was responsible for failure to take his deposition or to produce him at the trial, but was told they might consider “whether or not the plaintiff knew that he was going to be absent,” and, in substance, that under the facts in this case a presumption would arise from the unexplained absence of his testimony that, if produced, it would be adverse and the jury might so consider it. As applied to the situation disclosed here, we think the principles embodied in this instruction find support in Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075); O’Connor v. City of Detroit, 160 Mich. 193 (125 N. W. 277); Dowagiac Manfg. Co. v. Schneider, 181 Mich. 539 (148 N. W. 173); Cooley v. Foltz, 85 Mich. 47 (48 N. W. 176).

Serious complaint is made of the court permitting defendant to show that in June, 1911, plaintiff was an inmate of the psychopathic ward of the hospital at Ann Arbor, which is urged as error particularly prejudicial to plaintiff’s claim for damages, because unfairly tending to minimize his testimony before the jury by the implication that he was mentally incompetent to testify rationally as to his injuries.

The evidence upon this subject was developed in connection with plaintiff’s cross-examination. Both he and his son had testified that prior to the accident his general health was good. He also testified that his memory was impaired as one of its results, while it was pretty good before. In that connection he was asked in cross-examination if he had been in the psychopathic ward at Ann Arbor in 1911. He replied that he was at Ann Arbor for treatment in 1911; he did not know what for; that he was in the hospital eight or nine days and then his sons brought him home. He denied being taken there by the sheriff on commitment by the probate court of Genesee county, or that he was in the probate court in connection with any such proceedings. Following his denials and while upon that subject counsel for defendant introduced in evidence the files of the probate court relating to his commitment, as bearing generally “on the condition of health prior to the accident and impeachment of plaintiff’s own testimony of that condition.” All testimony upon that subject was allowed over the objection that the same was “incompetent and immaterial.”

This testimony was not introduced for the purpose of showing plaintiff of unsound mind and incompetent as a witness at the time of the trial, because previously so adjudicated. Neither would the fact that he was an inmate of the psychopathic ward of the Ann Arbor hospital for a short time, for observation under the law, be evidence that he was then of unsound mind. Such was not defendant’s claim or the avowed purpose of the proof. His sanity at the time of the trial and competency to testify were not questioned. In view of his and his son’s testimony as to his previous good health, , memory, ability to work and manage his farm, it was not incompetent to interrogate him on cross-examination as to any matters which might tend to throw light upon his former physical, or mental condition as affecting his general health, efficiency, ability to work, and accuracy of memory formerly or at the time he was testifying. A reason-: able latitude, in the discretion of the court, is always permissible along those lines in cross-examination of plaintiffs for damages ex delicto, particularly where the witness is evasive or irresponsive, and we do not find the discretion of the court was abused in the particular complained of.

The compensatory damages to be awarded in cases of this nature are contingent on the extent, nature,, and permanency of the injuries suffered, peculiarly appropriate for the estimation and determination off the jury according as they find the facts to be. No question is raised as to the charge of the court upon the measure of damages. Dr. Stuart was the only medical witness with personal knowledge of the injuries. He cared for plaintiff immediately after the accident, and attended him until his condition was such that he saw no further occasion to do so. He testified that he was neither hired nor discharged by plaintiff, but attended him professionally, and quit because he thought he had rendered such services as were necessary; not being aware Dr. Jickling was visiting him also. He stated that upon examination of plaintiff shortly after the accident, at his son’s home, he found a scalp wound, which was a cut or incision with some contusion around it, a redness near the point of the right shoulder of which plaintiff complained on lifting his arm, and a little evidence of an injury or bruise on his leg near the knee; that he dressed his wounds, took him home, and on visiting him in the morning found him sitting in a chair in as good condition as could be expected; that he fixed a sling around his neck in which' to carry the arm of which he complained, prescribed massage, a stimulating liniment and rest, and had no idea plaintiff sustained any permanent injuries. Plaintiff’s neighbors testified to his being out and around his place soon after the accident, apparently as well and as able to work as before. A neighbor who lived about 20 rods west of him and had called to see him on the day following the accident testified that four days later he went over there and saw him driving some chickens around with a small fishpole, using it with both arms; that he did not have his arm in a sling, and witness never saw him with his arm in a sling after the first day he visited him, following the accident. Plaintiff’s testimony was in the extreme to the contrary. So many things, often of minor importance, which he denied, were proven by other and apparently disinterested witnesses that misgivings naturally arise as to the accuracy of his testimony upon the extent and permanency of the pain and suffering which he asserts. For those there is no definite, legal standard of damages. The foundation facts of the injury are for the jury, and with them decided it is their further province to make such award as in the light of all the evidence seems in their united judgment adequate. The trial court was not able to find on a motion for a new trial that the verdict was perverse, or inadequate. In 6 Thompson on Negligence (2d Ed.), § 7862, it is said:

“In cases where the amount of the award is attacked on the ground of inadequacy, the court will grant a new trial only where it clearly appears that the jury must have been influenced by passion, prejudice, partiality, corruption or mistake as to the law or facts.”

This record, considered in its entirety, fails to show that the jury was influenced by any of the elements above stated, or actuated by any malign or improper motives in arriving at their verdict.

The judgment is affirmed.

Kuhn, C. J., and Stone, Osteandee, Bied, Mooee, Beooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    GROCHULSKI v. PORATH.
    Master and Servant — Personae Injuries — Death—Evidence— Negugenoe.
    In an action against a master to recover damages for personal injuries resulting in death sustained by plaintiffs intestate, an employee, while hauling dirt to a certain dumping ground, due to the tipping over of the wagon at such grounds, evidence held, insufficient to show actionable negligence on the part of defendant.
    Error to Wayne; Hally, J.
    Submitted January 11, 1917.
    (Docket No. 97.)
    Decided May 31, 1917.
    Case by Michalina Grochuiski, administratrix of the estate of Stanislaus Grochuiski, deceased, against Julius Porath, for the negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Leonard Szynanski, for appellant.

      John E. Maloney, for appellee.
   Steere, J.

Plaintiff’s intestate' suffered fatal injuries on August 17, 1913, while in defendant’s employ, resulting from the capsizing of a dirt wagon of which he was the teamster. Upon trial of the case in the circuit court of Wayne county, a verdict was directed for defendant at. the conclusion of plaintiff’s testimony, on the ground that the evidence failed to disclose any actionable negligence on his part.

Defendant was a contractor engaged in excavating a sewer along Thirty-Second.street in the city of Detroit, removing the dirt as excavated to a dumping ground located between McGraw avenue on the south, Warren avenue on the north, and Campbell avenue on' the west. Dirt from the excavation was being ele-' vated at a so-called shaft on Thirty-Second street some distance southerly from the dumping ground, and about 18 teams were engaged in hauling; deceased being one of the teamsters. The loads were hauled several blocks northerly along convenient streets until the dumping ground was reached, which was. of considerable extent, when they turned upon and drove over it to the dump, or particular place where the dirt was then being unloaded. A man was stationed at the dumping place to level the earth, whose duty it was, as instructed by the foreman, to direct the teamsters where to dump their loads. The dump was: changed as conditions required. On the day of the accident, and for over a week preceding, it was located! near the intersection of McGraw and Campbell ave-1 núes, having been changed from a location near Warren and Wesson avenues between one and two blocks! farther northwest. Deceased’s wagon capsized at ori near the latter place. Different roads, or tracks, led’ from adjacent streets, or avenues, across the dumping) ground to these dumps. An employee named Plucin-i ski, who was stationed at the dump on the day of the' accident to do the leveling and direct the teamsters, where to drive and dump their loads, was called by plaintiff and examined under Act No. 307, Pub. Acts 1909 (3 Comp. Laws 1915, § 12554). lie testified,1 through an interpreter, giving the only testimony in the case as to conditions at the dumping ground and circumstances attending the accident. His testimony is not always coherent and in some parts self-contra-1 dictory. He testified that deceased was injured at' about 11 a. m., when coming with his third load for) ■that day, about a block and a half away from the. dump at which witness was at work, and not on the1 regular or direct route to that dump. • On direct ex-> animation, the principal and most material portion of his testimony is as follows:

“When I saw him coming in this time, he came in off Warren avenue. He came in on the road track. Wherever this man showed him, he dumped the dirt over — took it and dumped it over. I showed Mr. Grochulski where to dump this. He had come over that same road twice before that morning, over that same road he dumped. He was a block or a block and a half —there is no streets in between — from Warren avenue when the wagon tipped over. I might have been a block or more away when the wagon tipped over. I went to him as soon as I saw the wagon tip over. The hind heels of the box tipped over, and the front wheels were standing. When I got over to the wagon, Mr. Grochulski laid under the team — under the wagon. The wagon box was turned over. * * * The horses were standing right in front of the wagon. * * * The box was tipped over, the front wheels were turned round and stood fast on the ground, and the box was lying on the ground off from the — ■ As soon as I found Mr. Grochulski, I tried to help him out, I helped him out alone. * * * I went over and got a man that was making a cement walk, and I told this man to call up the ambulance, and the ambulance came and took Mr. Grochulski away. When the wagon tipped it went over on the left side. I didn’t see any hole or gutter that the left hind wheel of the wagon went down into or was down in when it tipped over. There was a driveway there made by the wagons, when they go on the empty lot. They used that before they got there for the dump. The wagon tipped a little bit off from the roadway. I looked at the left hind wagon track and saw what the wheel went into at the time the wagon tipped over, and wherever the road was made there, why, I was supposed to fix it up. It was part, of my work to see that this roadway was kept level and the ruts filled so that the wagon could be driven over. * * * There was no hole in this roadway at the point where the wagon tipped over, only in the driveway from the traffic. I did not measure the hole down in this gutter that this left hind wheel went into, but it was 10 or 12 inches. I didn’t have any tapeline or anything to measure it with, but it was about the width of the wagon wheel. It was about 10 or 12 inches deep.”

On cross-examination, he testified further that, when deceased brought his first load, witness gave him directions and told him not to dump at the old place of dumping, where the accident occurred and where they had formerly been dumping, but to dump where witness was at work leveling; that, when he talked with deceased about it, “he says that he drives the team and I don’t. * * * He says he was not coming to the place where I was standing. He dumped near Wesson avenue.” After some confused testimony as to locations and routes, witness finally said;

“The point where the accident occurred was not on the regular driveway to the dump where I was working. It was about a block or block and a half away from the regular driveway to the dump where I was working. We had been dumping for seven days before the accident at the spot that I have marked on here near McGraw avenue and Campbell.”

It is contended in behalf of plaintiff that the question of defendant’s negligence should have been submitted to the jury on the proposition that, in recognition of the dangerous character of the employment of teamsters in driving over this dumping ground, defendant had assumed to keep the driveways they were required to use in a reasonably safe condition by delegating an employee to care for and so keep them, and whether a rut 10 or 12 inches deep was reasonably safe was a question of fact which the court erroneously disposed of as a matter of law.

As to the claimed rut or depression in the driveway, it is contended by defendant, and the trial court so held, that in any aspect of the case its duties as to a safe place for the employee to work only required the exercise of that reasonable degree of provision and care demanded by the nature of the work being carried on and attending conditions, so that the employee is not exposed to unusual dangers, not ordinarily within the obvious scope of his employment, as customarily conducted, and even if there was a rut 10 or 12 inches deep in the temporary driveway leading over a dumping ground, which deceased’s duties required him to use, it was but a depression open to common observation, reasonably to be expected at any time in such a road at such a locality, and its existence under the circumstances was not evidence of actionable negligence ; that, irrespective of this proposition, the testimony discloses deceased was injured at or near an abandoned dumping ground, where he was directed not to go upon or near a driveway which his duties did not require him to use, which was not the regular driveway to the dump where he was directed to unload, and for that reason no duty rested upon defendant to repair it.

Relying upon Plucinski’s testimony that it was part of his work to see that the road “was kept level and the ruts filled so that the wagon could be driven over,” plaintiff contends that his failure to fill the rut in question was evidence of failure to perform a nondelegable duty of defendant which raised an issue for the jury under the holding in Scoop v. White Co., 182 Mich. 539 (148 N. W. 762). The essential facts calling for the application of the nondelegable duty rule in that case are radically different from the facts in the instant case, amongst them being that the teamster in that case was driving where his. duty- called him and where he was ordered to drive; that the danger ahead, which was not visible to him as he drove, arose from inability of the teams to hold back large loads of heavy logs while going down a steep- hill when the road was not properly sanded, and the “sand men” especially stationed along the hill to care for and sand the road at that inherently dangerous place were required by an answering call to advise the teamster approaching from the opposite side that the unseen, steep descent ahead was made safe for him to venture down. Relying upon such assurance, the teamster went on and was injured because the road had not been sanded, as the jury found. Here the rut complained of was not upon a road deceased was expected or required to use in the performance of his duties; if made before he drove that way, it. was plainly visible to him as he drove along, and no question of losing control of his team was involved, as it stood still where the accident occurred.

We are not cited to, and have been unable to find, any authority which holds, or indicates, under like or analogous facts, that a rut in a temporary driveway of the kind, depth, and under the conditions claimed here, is evidence of actionable negligence on the part of those who made or caused it to be made.

Plucinski’s testimony that it was his duty to keep the roadway level and ruts filled in is. clouded, as to time when, by his further testimony that they had moved their operations from that locality and he was leveling at another place, where he instructed deceased and others to dump, and which was reached by another way. Taking his statement of his duty, however, as it reads and unqualified, he also testifies that when he went over there he did not see any hole that the left hind wheel of the wagon, which tipped to the left, went down in when it tipped over; that "the wagon tipped a little bit off from the roadway,” and "there was no hole in this roadway at the point where the wagon tipped over, only in the driveway from the traffic.”

Unquestionably, the numerous conflicting and far from lucid statements; in his testimony relative to material facts, presumably within his knowledge, give rise to uncertainty as to what he actually knew or meant to say; but, considering Plucinski’s testimony as a whole in its strongest and most favorable light for plaintiff, upon whom rests the burden of proof, we cannot but agree with the conclusions reached by the learned circuit judge that it fails to disclose the essential facts requisite to sustain a' prima, facie case of actionable negligence.

The judgment is therefore affirmed.

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


text:
    MILLER v. YOUNG.
    1. Trial — Reception of Verdict — Absence of Judge — Irregularity — Waiver.
    The irregularity in the receipt of a .verdict in a civil case, in the absence of the trial judge, is waived, where there is no other irregularity or prejudicial incident, and such verdict is rendered within one-half hour from the time the case is submitted by the judge to the jury, and is taken by the clerk with consent of the parties in open court in the customary manner.
    2. Conversion — Evidence—Question for Jury.
    In an action against an agent to recover the proceeds from the sale of sheep belonging to plaintiff by defendant and not accounted for, where plaintiff claimed that a certain number of sheep were intrusted to the agent under an arrangement whereby they were to be let out to double in a term of four years, and, upon return, the increased flock was let out for a similar period, and, with further increase, was sold at the end of the second period by defendant, held, that it was a question for the jury whether plaintiff had any interest in the flock.

      3. Limitation of Actions — Statute of Frauds — Concealment— Conversion.
    Where one owning sheep intrusts them to the care of her agent under an arrangement whereby they are to be let out to double in four years, and, upon the return of double the number of sheep at the expiration of the term, such agent then converts and ■ appropriates them to his own use, concealing the fact from the owner, and deceives the latter into believing that he has let out the increased flock for a similar period and on similar terms, the statute of limitations does not begin to run until discovery of the conversion by the owner, and it is immaterial that the second time the agent lets out some of his own sheep, instead of all of those of such owner, if the owner is kept in ignorance of such fact and is deceived into believing that they are all hers.
    4. Witnesses — Credibility—Question for Jury.
    The credibility of the parties and of their respective witnesses is peculiarly a matter for the jury.
    5. Conversion — Evidence—Sufficiency—Agency.
    In an action by a principal against her agent to recover the proceeds of the sale of sheep of plaintiff, sold by defendant and not accounted for, where plaintiff claimed that a certain number of sheep were intrusted to the agent under an arrangement whereby they were to be let out to double within a certain period, and, upon return, the increased flock was let out on similar terms for a similar period, and, at the end of the second period was, with the further increase, sold by defendant, evidence held, sufficient to establish a contract of agency and the interest in the sheep.
    Error to Eaton; Smith, J.
    Submitted January 10, 1917.
    (Docket No. 76.)
    Decided May 31, 1917.
    Assumpsit by Rosa Miller against Daniel J. Young for money received upon the sale of certain sheep belonging to plaintiff. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Joseph B. Hendee and Horace S. Maynard, for appellant.

      Elmer N. Peters, for appellee.
   Steere, J.

Plaintiff declared in this action on the common counts in assumpsit, filing a bill of particulars of her demand as follows:

“For money received by defendant from Ben Gillett upon the sale of a certain flock of sheep belonging to the plaintiff, and sold by defendant to said Gillett on or about the month of October, A. D. 1910, $318. Interest thereon from the date of sale to the date of judgment.”

Defendant pleaded the general issue, with special notice of the statute of limitations, and payment in full of any and all amounts owing plaintiff “upon said several supposed causes of action.” The case was tried by jury in the circuit court of Eaton county on October 16, 1915, resulting in a verdict and judgment for plaintiff in the sum of $380.94. Defendant moved for a new trial on numerous grounds, especially urging that the verdict was against the weight of evidence. The motion was denied, and reversal is now sought in this court on 29 assignments of error; the last being that the court erred “in refusing to grant defendant 'a new trial for the fifteenth reason assigned in defendant’s motion for a new trial.”

Plaintiff is a single woman of middle age, and sister-in-law of defendant, who, when plaintiff was a child, married her older sister Cora. Defendant, who is a farmer, testified that he had lived in Eaton county about 57 years, residing since his marriage with his wife upon his farm in Eaton Rapids township. They had no children. His father-in-law, Robert Miller, who died in June, 1913, had lived for many years upon, and owned, a small farm not far from that of defendant. He had six daughters, and during a portion. of her girlhood plaintiff lived in the home of defendant as a member of his family, going to school from there for a time. In those days she is shown to have been a favorite with defendant and his wife, who took an interest in her welfare, urged her to attend school, made her presents, etc. She states that defendant then used to call her “his daughter.” Between 1895 and 1900 she lived at defendant’s home much of the time, after which she was more at her parents’ home, or “working out” in different families, but frequently visited and stayed at defendant’s, going and coming as she chose, helping defendant’s wife when there, apparently welcomed and treated as one of the family on such occasions, until after her father’s death, with the exception of one or two intervals, when defendant testified that something took place which did not suit him, and he sent her home to her mother. The two families appear to have generally been on very friendly terms, with no lasting or serious differences, until a disagreement arose, after the death of plaintiff’s father, over the disposition of the small farm which he left; some of the children, including plaintiff, wishing to deed their interest in it to their mother, so that she might dispose of it, while others, including defendant’s wife, preferred to give her a life estate in it, so that she would keep it for a home. This led to friction, unkindly feeling, and change of attitude towards each other.

Of its culmination, to which he attributes this litigation, defendant testified in part that plaintiff never claimed he owed her for sheep, or made any demand of him, until March 20, 1914, during a family discussion at his home over whether the sisters, should deed outright their interest in their father’s estate to their mother, which his wife declined to do, and—

“Rosa spoke up, ‘Will you deed your interest to me for what Dan owes me?’ I says, ‘That will be a mighty small amount she would receive for her interest,’ in the presence of Miss Miller and her sister and my wife; she says, ‘Don’t you owe me for those sheep?’ I says, ‘No; I don’t owe you a nickel, and you know it.’ That dropped right there; she said no more until she started to go home. * * * When she started to go home, she stepped up in front of me and said in a low tone, ‘If you don’t permit Cora to deed the property to ma, I will make it hot for you.’ I says, ‘Go ahead, I shan’t do it.’ She went on home.”

Plaintiff on her part claimed that her ownership of the sheep and their increase, as let o,ut for her by him, was often discussed between them, recognized by him to her and others, and never denied until this disagreement over her father’s estate arose, and he thereafter asserted he owed her nothing.

Upon the trial their respective contentions and proofs upon, the issue involved were in brief as follows:

Plaintiff claimed that in the spring of 1902 defendant gave her three lambs that had been disowned -by their mothers and also two runt pigs, which she took to her father’s home, where she cared for, fed, and fatted them until the following November, when defendant sold the two pigs for her for the sum of $16, and gave her two more lambs for one of the three, a buck, which he sold to a neighbor, after which he sold her 12 more for the $16 which her pigs brought, making a flock of 16 sheep belonging to her, which he agreed to, and did, let out for her on shares, first letting them to a farmer named Smith, to be doubled in four years, and at the end of the first four years, in the fall of 1906, he received back from this letting 32 sheep, which he then let out for her to one Ben Gillett, to be doubled in four years more; that as the result of such increase she owned 64 sheep in 1910, and defendant told her that he was unable to let them out in that way any longer, and they would have to be sold; that he subsequently sold them for $300, which he did not then, however, pay to her, nor did she press him for it until after their trouble, when he denied that he owed it to her. .

On the other hand, defendant denied that he ever let out any sheep for plaintiff at any time to any person, and claimed that during the summer of 1902 the three lambs in question, which he had given to plaintiff in 1901, were brought back to his farm and were with his own flock, he having agreed to buy them of her in case she did not succeed in letting them out; that he tried to help her do so, and probably spoke to neighbors about it, but they were unsuccessful, and he paid her for them in the fall as he had agreed; that those three sheep were the only ones she ever owned, and he had given her the money received for the two pigs at the time they were sold; that he always kept sheep upon his farm, and did, out of his own flock, let sheep to Smith and Gillett, a transaction in which plaintiff had no interest, and with which she had nothing to do; that in 1907 he heard plaintiff was liable to make him trouble under a claim that he had sheep belonging to her, and in making a settlement with her for work which she had done for him in picking beans, amounting to some $10.06, he proposed, when he paid her, that they settle up all' matters in full, so they would know how they stood, and asked that she sign the following receipt, drawn by him, which she did:

“December 4 X907.
“Received of D. J. Young $15.06 for picking beans, and sheep and other work, in full to date.
“Rosa Miller.”

After which he made her a present of $5.

The testimony introduced by the respective parties upon this issue was submitted to the jury by the court, resulting in a verdict as above stated, and thereafter defendant moved for a new trial, urging numereras alleged errors committed during ■* progress of the trial, and that the verdict was a* '• the weight of evidence.

One of the objections presented against tne verdict in defendant’s, motion for a new trial, and earnestly urged here, is that the verdict was taken by the clerk of the court in the absence of the presiding judge, and therefore a nullity. That such was. the fact is conceded. An affidavit was presented to the trial court by defendant’s counsel as to the circumstances of taking the verdict in the absence of the judge and his understanding of the agreement between counsel that this might be done. Touching this matter it is said in the opinion of the trial court overruling defendant’s motion:

“There is no dispute as to the fact that the verdict, was taken in the absence of the judge. The proofs in this case were closed on Friday afternoon after 4 o’clock. The following day being Saturday, and the court having business that would require his presence at home the afternoon of Saturday, stated to the counsel for parties that unless they would consent that the clerk might take the verdict in the absence of the judge, if it were not reached before his train, due at 11:26 a. m. should leave, he would continue the case until the following Tuesday morning, at which time the court would return. Counsel assented that the clerk might take the verdict, and the argument was then taken up and an evening session was held. The case was resumed the next morning at 8 o’clock. It was given the jury at 11 o’clock, and the judge left for the train. The jury returned a verdict at 11.30. In concluding the charge to the jury, the court said to it as follows:
“ ‘Now, gentlemen, I will probably not be here when tbe verdict is returned. I am going to leave on the train. You have heard what was talked last night between counsel and the court, and I simply say to you the clerk will take your verdict; if you should come in before I go away, I will take it myself, or it will be taken in my presence. After you have got through with the consideration of this case, you will be excused till next Tuesday morning at 9 o’clock.’
“Counsel for defendant was present when the jury were instructed, and when they retired.”

Counsel for defendant concede to having consented to what was proposed, and do not question that the facts were as stated by the court, but contend they supposed, or understood, that if the jury agreed a sealed verdict would be given the clerk, to be opened and formally taken in the usual manner on the following Tuesday morning, when court would convene with judge and jury present. It is not claimed anything was said to that effect by court or counsel; neither would the consent of counsel have been necessary to authorize a sealed verdict. We see nothing ambiguous in what was said by the court to the jury in the presence of counsel. On this record the assignment squarely presents the question of whether, in the absence of other disclosed irregularity or prejudicial incident, a verdict in a civil case, rendered within half an hour from the time the case was submitted by the judge to .the jury, taken by the clerk in open court in the customary manner, but by consent of parties in the absence of the presiding judge, must be regarded as void and a nullity, because he was not then present in court.

We are not referred to and do not find controlling precedent upon the question in this State, and the authorities are not found uniform in other jurisdictions. Counsel on both sides cite cases supporting their respective contentions. It may be noted in the outset that the course adopted in this case was irregular and unfortunate, a practice liable to result in a ■mistrial, which we do not wish to be understood as approving. For obvious reasons the presiding judge of the court should be present when the court is in session and its business being transacted. Bedal v. Spurr, 33 Minn. 207 (22 N. W. 390), which holds, however, that consent of counsel to the clerk taking a verdict in a civil case in the absence of the judge was equivalent to a waiver of all irregularities in that particular, and he cannot afterwards be heard to object to the verdict on that ground. It has, on the other hand, been held that receiving a verdict is a judicial function, which the court cannot delegate, even by consent of the parties, to a nonjudicial officer. Willett v. Porter, 42 Ind. 250. This view was at one time adopted by certain of the New York courts, but was subsequently repudiated, or distinguished, in the well-reasoned case of Dubuc v. Lazell, 182 N. Y. 483 (75 N. E. 401), where it is held that the clerk, in receiving a verdict in the absence of the presiding judge by consent of counsel for both parties in open court, was exercising no strictly judicial function, and the verdict so received by him, though irregular, was not void.

The manner of taking a verdict is a matter of practice. Under the practice of this State it is the duty of the clerk, on return of the jury to render a verdict, to inquire if they have agreed upon a verdict, and, if so, what it is, to receive the verdict, repeat it to the jury, and, if assented to by all, record it. Usually and by proper practice this is done in the presence of the presiding judge, who is not called upon to otherwise participate or exercise any strictly judicial function at that time, unless some motion or matter out of the ordinary arises. This is a civil action between private parties, in which the court had jurisdiction of the subject-matter and of the litigants. In such a case the parties may in many ways waive rights and stipulate as to the conduct of the litigation, which will be binding between themselves, and which, if reasonable, the courts will recognize and enforce. Presumptively, and so far as shown, this verdict was taken and recorded by the clerk at the conclusion of the trial in the customary manner without any prejudicial circumstances or irregularities, except that the trial judge was not present — a palpable irregularity in practice, which the parties by their consent could and did waive. That contingencies might have arisen in the absence of the trial judge which would give this question a different aspect, and perhaps result in a mistrial, does not render the judgment invalid. Under the circumstances shown by this record, we cannot find that it is void because the verdict' was received, with, the consent of counsel, by the clerk of the court in the absence of the presiding judge, which was no more under the circumstances than a mere irregularity in practice, which was waived.

Aside from the above, and the contention that the verdict is against the great weight of evidence, defendant’s assignments of error are mostly directed against the charge of the court, in which it is urged' that the claims and theory of the defense were not fairly submitted to the jury. It is said that, under the issue tendered and testimony given, the only question for the jury, if any, was whether plaintiff owned 16 sheep in 1902, which were let by defendant for her to Smith to double in four years, which were taken over from Smith during that four years by one Rogers to complete the contract, who returned the 32 sheep to defendant in 1906, which 32 sheep were then let for her by defendant to one Gillett to double in four years, at the end of which time, in 1910, the doubled flock, or 64 sheep, were sold by defendant for $300.

Defendant not only denied ever letting any sheep for plaintiff to any one, but produced a written contract between him and Gillett, of October 6, 1906, showing that he then let Gillett 20 black top merino lambs, to be doubled in four years, which he testifies were selected from his own flock, to which he subsequently added 12 breeding ewes from his own flock, and that all of them were taken over by Gillett some time before Rogers returned those he had. Gillett testified that he dealt with and contracted 32 sheep from defendant, in 1906, that he did not know any one else claimed or had any interest in them, and at the expiration of the letting bought the then 64 sheep from defendant for $300, paying for them one year later, with 6 per cent, interest. This transaction is admitted by defendant. It is claimed that these facts are undisputed, and'plaintiff has failed to show defendant let any sheep of hers to Gillett. in 1906; that when this action was brought more than six years had expired since Rogers returned the 32 sheep claimed by her, and the court particularly erred in instructing the. jury as follows:

“While you might find as a fact that the sheep let to Gillett in 1906 were not the sheep that Smith and Rogers had, yet, should you find that when they were let to Gillett, they were let to him by Mr. Young in the interest of Miss Miller as and for her flock, then she would be entitled to recover.”

Plaintiff testified that while she lived at defendant’s she kept tab on the sheep more or less; that she knew Gillett, who lived about a quarter of a mile from defendant, got her sheep; that she was not at defendant’s place at that'time, and had no personal knowledge of the agreement between him and defendant, but understood they were let to Gillett to be doubled in four years; that before the four years were up defendant talked with her about the sheep, and the difficulty of letting them out, said “the flock is getting quite large,” and when she asked if they could not be let in two bunches replied, “People don’t like to take sheep like that any more,” and she then consented to their being sold, if he could not let them out; that he subsequently told her he had sold them to Gillett, and she found out from Gillett what he had paid for them. Various witnesses, mostly neighboring farmers, testified that defendant had at different times offered to let them sheep on shares belonging to “Rosa,” or to his “wife’s youngest sister,” and statements made by him that certain sheep which he had let out belonged to her.

Defendant does not deny that he let out two bunches of sheep for four years each in succession, of the number, at the time, and on the terms stated by plaintiff. His denial, which goes to. the foundation of her action and raises the test issue of fact for a jury, is that she had no interest in them. If the 16 sheep first let out and the 32 returned four years later were hers, which he denies, and if he then converted and appropriated them to his own use, concealing the fact from her, and deceived her into believing that he had let out the increased flock to Gillett for four years more upon the same terms as> formerly, the statute of limitations would not begin to run against her until she learned of the deception and conversion. The fact, if true, that he let some of his own sheep to Gillett, instead of hers, would not defeat her right to recover, if she was kept in ignorance of it, and led by him to believe they were hers. The court committed no error against defendant in telling the jury that if defendant did in fact let his own sheep instead of hers to Gillett, but in her interest, as and for her flock, she would be entitled to recover.

This case, as we view it, is essentially one of fact —an action in assumpsit, based in effect under the testimony upon a claimed ownership and contract of agency which plaintiff asserts and defendant denies. The subject-matter is a number of sheep which she claims were hers, and handled for her by defendant during a term of years, at the end of which time he sold them with her consent and has not accounted to her for the proceeds. His flat denial of all the essential facts she claims leaves no middle ground in the controlling issue of this litigation, which is well defined and not difficult for the ordinary jury to understand. The credibility of the respective parties and their witnesses was peculiarly a matter for the jury. The court distinctly charged that the burden of proof rested upon plaintiff, and the verdict should be for defendant, unless she established the facts as she claimed them by a preponderance of evidence. The nature of the controversy, respective claims of the parties, and controlling questions of fact for the jury were fairly stated, and the duty of the jury in the premises pointed out by the court. We find no' prejudicial error in the charge, and after an examination of the entire cause cannot conclude that the verdict should be disturbed because against the great weight of evidence, or that it affirmatively appears any error of the court has- resulted in a miscarriage of justice;

The judgment is affirmed.

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


author: Bird, J.

text:
    KOVACEVIC v. REID.
    Automobiles — Personal Injuries — Negligence—Instinctive Actions — Instructions—Appeal and Error.
    In an action to recover damages for personal injuries received in an automobile collision, where defendant’s testimony showed that he was driving his car at an excessive rate of speed at the intersection of two streets, and, had he looked when he first reached the cross street, he could have seen another car which was approaching on the cross street at a high rate of speed in time to have stopped his own car before reaching the other car, but he failed to so look, and, when he later observed the other car, and in order to avoid it, turned suddenly and struck and injured plaintiff, held, that defendant, having placed himself in a place of danger where he was obliged to act without care as to third persons, was not entitled to an instruction on the doctrine of instinctive action.
    Error to Wayne; Davis, J., presiding.
    Submitted January 3, 1917.
    (Docket No. 18.)
    Decided May 31, 1917.
    Case by Helen Kovacevic against William Reid and Anthony Rzadkowoloski for personal injuries. A verdict was directed in favor of defendant Rzadkowoloski. Judgment for plaintiff against defendant Reid, who brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      Clarence P. Milligan, for appellee.
   Bird, J.

On the evening of May 17, 1915, defendant Reid was driving his automobile in a westerly direction on Grand boulevard in the city of Detroit. As he was approaching Chene street, which crosses the boulevard at nearly right angles, he slowed his car down to nine miles an hour. He made observations to the south and afterwards to the north, but saw no one approaching. His view to the north was obstructed by a building which stood on the northeast corner of the intersection flush with the street line. He proceeded to the street car tracks on Chene street, and just as he was entering on the first track he saw an automobile coming down Chene street at a furious gait. Thinking if he proceeded in a straight line across the tracks he would collide with it, he turned his car sharply to the left, and before he succeeded in stopping it he ran into plaintiff, who was crossing the boulevard on foot, and injured her. At the trial a verdict was directed in behalf of defendant Rzadkowoloski, who was supposed to have been driving the car referred to. The jury rendered a verdict against defendant Reid, and he assigns error.

It was defendant’s position upon the trial that he was suddenly confronted with a great emergency, and that his act in turning to the left was instinctive action upon his part to avoid a threatened injury to himself and family, and therefore he was not liable for the consequences which resulted to plaintiff. To get this defense properly before the jury, counsel requested the court to charge as follows:

“I charge you that, where one does an act instinctively and without opportunity for meditation for the purpose of saving his life or the lives of others, he is not liable for any injuries to third parties that may result from his conduct.”

In response to this request, the court charged the jury that:

“Now, as to that claim I say to you that, where the driver of an automobile is compelled to choose between protecting himself and those in his charge against possible injury, he is justified in obeying instincts for self-preservation to take care of himself as well as others, and in doing what he deems best to do and act what he deems best to act, in view of such threatened injury. I might illustrate by simply.saying, suppose you are going along in an automobile and are forced by any one to turn to the left instead of to the right, as the law requires, for fear of being run into, yet when going to the left you must be careful of the rights of pedestrians and others who are lawfully in the street. It would not be sufficient excuse or justification to say, T was forced to turn to the left or run into something.’ While you are turning to the left you must use due care and diligence to bring your car under control so as to prevent the accident itself by reason of your turning out.”

Counsel criticize the charge and insist that it is inconsistent with itself and also inconsistent with the law of instinctive action. We are impressed that there is some ground for counsels’ criticism in this respect. The court, in the first part of his charge upon this question, gave the law correctly; but in the latter portion thereof he somewhat lessened the effect of his statement by an unfortunate illustration. But we are impressed that this error was without injury to the defendant Reid, because his testimony fairly shows that by his own negligence he put' himself in a place of danger. It is shown by his testimony that he was proceeding across the intersection at a speed in violation of the ordinance, that had he looked to the north when he got to the street line he could have seen the car coming down on the other side of the tracks, and that at the rate which he was traveling he could have stopped his car in a distance of 12 feet. Therefore it is obvious that, had he looked when he reached the street line and applied his brakes, he would have stopped his •car before he was across the street car tracks. Having established the fact by his own testimony that he placed himself in a position of danger where he was obliged to act without care as to third persons, he was not entitled to any instruction upon the doctrine of instinctive action. Carpenter v. Automobile Co., 159 Iowa 52 (140 N. W. 225). The facts in the case cited were very similar to those in the present case, and defendant made a similar request therein. The appellate court, in passing upon the refusal of the trial court to give the request, said:

“These instructions 9 and 10, asked by the defendant, to the effect that if the act complained of by the plaintiff was the result of the excitement and confusion produced in the defendant by sudden and impending peril from an approáching motorcycle and its rider, and that but for this excitement and confusion they would not have driven upon the sidewalk, then the verdict of the jury must be for the defendants. These instructions ignore too many questions appearing in this record to justify the court in giving them to the jury as a guide. They ignore the thought that, if the excitement and confusion and the sudden and impending peril were produced by their own negligence, it would not serve as a shelter behind which they could hide against the consequences of their act, and the jury might well be led by these instructions into the belief that, no matter how the peril or impending danger arose, no matter how negligent the defendants were in producing such conditions, yet, if they existed and they acted under them, they would be relieved from responsibility. These instructions,' though abstractly correct, were liable to mislead the jury as to the rule that should guide them in this case, and were rightly refused.”

We find no error assigned which calls for a reversal of the case.

The judgment will be affirmed.

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


author: Brooke, J.

text:
    ALLEN v. ALLEN.
    1. Divorce — Division- op Property — Statutes — Discretion op Court.
    Under Act No. 259, Pub. Acts 1909 (4 How. Stat. [2d Ed.] § 11496 et seq., 3 Comp. Laws 1915, § 11437 et seq.), providing that every husband and wife owning real estate as joint tenants or tenants by entireties shall, upon being divorced, become tenants in common of such real estate unless the ownership thereof is otherwise determined by the decree of divorce, which was declaratory of the former law and was intended to provide for an equitable distributton of tbe whole property held by the parties irrespective of the character of the tenancy, a court may award the whole or any part of the lands held by the parties as tenants by the entireties to either of the parties.
    2. Same — Decree—Equity.
    An award under the statute must be equitable in the light of the facts and circumstances surrounding each case, and where there is neither allegation nor proof- of a wife’s adultery and the property held by entireties is all that is owned by either spouse, a decree awarding the husband the whole of such property is inequitable and the property should be decreed to be held in common.

    Appeal from Wayne; Codd, J.
    Submitted January 9, 1917.
    (Docket No. 65.)
    Decided May 31, 1917.
    Bill by Bertha Allen against Charles E. Allen for a divorce. Defendant filed an answer and cross-bill praying therein for a divorce. From a decree for defendant, plaintiff appeals.
    Affirmed in part, and reversed in part.

      Henry F. Chipman, for plaintiff.

      Louis W. McClear, for defendant.

      On effect of divorce on property held by the entireties, see notes in 30 L. R. A. 333; 10 L. R. A. (N. S.) 463; L. R. A. 1915C, 396.

   Brooke, J.

Plaintiff filed her bill • for divorce against defendant upon the grounds of extreme cruelty and nonsupport. To this bill of complaint defendant filed an answer and a cross-bill. In the cross-bill defendant set out certain alleged facts, which he claimed constituted as to him such extreme cruelty as to entitle him to a decree of divorce against the plaintiff. Adultery on the part of the wife was neither charged in the bill nor proven upon the hearing. It appears from the record that the parties were the owners as tenants by the entireties of a certain lot described as lot No. 460, Kason’s Palmer Park subdivision of part of fractional section 14, town 1 south, range 11 east, of the value of about $800. The court below made a decree dismissing plaintiff’s bill of complaint and granting a divorce to the defendant on the ground of extreme cruelty, and awarded to the defendant the whole of the lot held by the parties by the entireties and to the plaintiff the sum of $1—

“in lieu of any and all dower rights which said complainant and cross-defendant now has or may hereafter have in any and all real estate which said defendant and cross-complainant now owns or may hereafter acquire.”

A stipulation was thereafter entered into between counsel for the respective parties as follows:

“This case having been heard and decree entered wherein certain real estate held jointly by the parties hereto under the decree in said cause by said decree was taken from complainant and given to defendant, over the objections of complainant, it is hereby stipulated and agreed that in the printing of the record in the above-entitled cause that the same shall be simplified and abbreviated as far as possible, suitable to the attorney for defendant; it being agreed and understood that there shall be but one question raised in the appeal, viz.: Can the court take from complainant her' one-half interest in joint property held with defendant? It is the purpose of this appeal to have this one question decided by the Supreme Court of the State of Michigan; other issues in the case being limited by stipulation for the purpose of saving costs to either party.
“Roy Herald,
“Solicitor for Complainant.
“Louis W. McClear,
“Solicitor for Defendant.
“Dated this 2d day of September, A. D. 1915.”

The statute covering the question of alimony generally will be found in 3 Comp. Laws, § 8640 (3 Comp. Laws 1915, § 11416), in part as follows:

“The court in lieu of a money allowance may decree such a division between the husband and wife of the real and personal estate of the husband or of the husband and wife by joint ownership or right as he shall deem to be equitable and just.”

Act No. 259, Pub. Acts 1909 ('3 Comp. Laws 1915, §§ 11437, 11438), provides as follows:

“Every husband and wife owning real estate as joint tenants or as tenants by entireties shall, upon being divorced, become tenants in common of such real estate, unless the ownership thereof is otherwise determined by the decree of divorce.
“The bill of complaint or amendment thereto, or the answer or cross-bill or amendment thereto, filed in any divorce proceeding may ask that the ownership of the lands described therein and owned by the parties to such suit as joint tenants or as tenants by entireties shall be determined by the decree of divorce, if granted, and in such case the court granting the divorce may award such lands, to one or the other of said parties, or any part of it to either of them, or may order such lands to be sold under the direction of a circuit court commissioner, and the proceeds thereof divided, between the parties in such proportion as the court shall order; or may appoint commissioners to partition such lands between said parties in the proportion fixed by the decree. The proceedings following the appointment of such commissioner shall conform to the law governing the partition of lands between tenants in common.”

In the case of Delor v. Delor, 159 Mich. 624, 628 (124 N. W. 545), decided December 15, 1909, after the passage of the act in question, this court said:

“The real estate is owned by the entireties, and it is not competent for the court in fixing alimony to diminish the estate owned by the wife in the realty.”

In the case of Brasch v. Brasch, 168 Mich. 459 (134 N. W. 450), decided in February, 1912, it was said:

“Deducting the amount of the mortgage from the value of the Michigan avenue property (held by the entireties) a balance of $2,100 is found, in which the wife has a one-half interest, which may not be diminished in this proceeding” (citing Brown v. Brown, 144 Mich. 654 [108 N. W. 288], and Delor v. Delor, supra).

No mention is made of Act No. 259, Pub. Acts 1909 (3 Comp. Laws 1915, § 11436 et seq.), in either the Delor Case or the Brasch Case. It is apparent, therefore, that the statute received no construction in those opinions. The language of the statute is unambiguous, and clothes the court with plenary authority to award the whole or any part of the lands held by the parties as tenants by the entireties to either of the parties. The purpose of the legislation was undoubtedly to provide for an equitable distribution of the whole property held by the parties irrespective of the character of the tenancy. The statute is, in effect, declaratory of the law as it had already been held to exist by this court. Jeske v. Jeske, 147 Mich. 367 (110 N. W. 1060).

But granting the power of the court to award the whole of the property so held to either spouse, such award must be equitable in the light of the facts and circumstances surrounding each case. In the case here under consideration, where there is neither allegation nor proof of the adultery of the wife, and where it is apparent from the record that the property held by the entireties is all of the estate owned by either spouse, we are of opinion that a decree, taking from the wife her entire interest in the property and giving it to the husband, is wholly inequitable.

The decree of the lower court upon this point will therefore be reversed, and a decree will be entered in this court by the terms of which the title to said lot will be placed in plaintiff and defendant as tenants in common. In other respects the decree of the court below will stand affirmed. Plaintiff will recover her costs of this appeal.

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


text:
    MILLER v. ANN ARBOR RAILROAD CO.
    1. Master and Servant — Negligence — Defective Appliances — Evidence — Instructions—Question for Jury.
    In an action by a section foreman against a railroad company under the Federal employers’ liability act to recover damages for injuries sustained in a collision between a hand car operated by plaintiff and a like car operated by another foreman of defendant, by reason of the alleged defective facings on the brakes of the latter’s car preventing his car being stopped properly, whether the accident happened wholly or partially because of the negligence of the plaintiff in stopping his own car too suddenly, held, to be a question for the jury.
    2. Same — Evidence—Instructions.
    Where the evidence tended to show that it was the duty of the section foremen to renew the facings on the wheels of their hand cars when they should need it, a charge that there was no evidence of negligence of the operator of a colliding car and that if the jury found the facings on that car were not reasonably safe and efficient for the purpose for which the car was used they might find the defendant guilty, was erroneous, as defendant could not have been negligent unless such operator of that car was.
    3. Same — Instructions—Assumption of Risk.
    The court should have instructed the jury on the question of assumption of risk that defendant was not bound to keep its car in such condition that an accident would never happen, or absolutely safe, but only in such condition that an accident would ordinarily not be apt to happen in the ordinary reasonable use of the car, in which case defendant would not be negligent if an accident did happen.
    4. Corporations — Negligence—Liability.
    Corporations act through servants or agents, and if they are liable for negligence, they are so liable because of the negligent act or omission of some particular agent or servant.
    5. " Master and Servant — Negligence—Evidence.
    Evidence held, not to furnish proper basis for a finding of negligence on the part of defendant or any of its servants operating a hand car colliding with another hand car at the time of the accident.

    Error to Gratiot; Searl, J.
    Submitted January 23, 1917.
    (Docket No. 99.)
    Decided May 31, 1917.
    Case by William Miller against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gustavus Ohlinger and O. G. Tuttle (Alexander L. Smith, of counsel), for appellant.

      Charles IT. Gog gin and John T. Mathews^ for appellee.
    Plaintiff brought his action against defendant railroad company to recover damages for injuries alleged to have been received by him through the negligence of his employer. It is conceded that both plaintiff and defendant at the time of the alleged injury were engaged in interstate commerce, and plaintiff’s action is therefore planted upon the so-called Federal employers’ liability act (35 U. S. Stat. 65 [U. S. Comp. Stat. 1916, §§ 8657-8665]).
    On September 14, 1915, plaintiff was and had been for many months section foreman, and had charge of a section of defendant’s railroad known as section 27, or Alma section. Adjoining the section under control of the plaintiff was section 28, or Ithaca section, which was under the control of one Whitmore as section foreman. In the conduct of the work upon his section, plaintiff was supplied with and used a hand car. This car was of the’ordinary type, and was propelled by hand power. When being.propelled, men.stood upon the platform of said car, working two handles up and down, rods connected the handles with gearing beneath the platform, which caused the wheels to revolve. When.pushed down the handles came within about 18 inches of the floor of the car, and when elevated were about 4% feet above the floor. The braking apparatus is described as follows:
    “A brake, that is a piece of wood about 8 inches long and 2 inches square at the top and tapers, off almost to a point at the bottom end. It is curved the shape of the circumference of a wheel so as to cleave to the wheel, so as to have more friction surface. These brake shoes are fastened to two irons that run to a common point and through by a hole at the top end of each. Through the hole in these two pieces of irons runs, a shaft or gudgeon on which the irons are keyed. Vertically from this gudgeon an iron extends up' from a hole from the floor of the car, and on the top of the iron is a pedal upon which the operator places his foot to apply the brake. The shoes are faced with a piece of rubber generally.”
    Whitmore, on section 28, operated a hand car identical in construction as to size and braking facilities with that used by plaintiff. It differed from the car used by plaintiff in that it was supplied with a gasoline engine weighing about 250 pounds, which furnished the motive power. It was customary for the section gangs on sections 27 and 28 to w:ork together when the business of the defendant company required. Upon such occasions, it was usual, when the two gangs came together, for Whitmore to place his car behind the car used by plaintiff and to propel both to the point where the work was to be done. While this operation was not of frequent occurrence, it had happened several times during the period that plaintiff had been foreman of section 27. Prior to the day upon which plaintiff received his injury a culvert had been put in on section 27. While this, culvert was' being constructed the track had been temporarily carried by two heavy timbers. The timbers were 30 feet long, 18 inches wide, and 10 inches thick. Plaintiff received orders to move these timbers from the culvert to Goldbaum’s Crossing, and Whitmore with his gang was ordered to assist in doing this work. On the day in question the two gangs met at or near the point where their sections joined, and Whitmore, as was customary, proceeded to push plaintiff’s car and crew in a northerly direction to the point where the timbers were to be loaded. It appears from the record that at a point about 10 rods south of the culvert there was a “take-off,” or place where a hand car could be removed from the track to the side of the track and that north of the culvert, at about an equal distance, there was another take-off. It further appears that there was a down grade toward the north for some little distance south of the culvert. On the first trip, arriving in the vicinity of the southerly take-off, plaintiff motioned Whitmore to release his car, which Whit-more did by shutting off the power of his gasoline engine. Plaintiff’s car thereupon “floated” ahead until in the vicinity of the northerly take-off, where it was stopped by plaintiff through the application of the brake, and was lifted off. Whitmore’s car was then pushed past the take-off, and plaintiff’s car was returned to the track. In that position they returned to the culvert, where one of the timbers was loaded, one end upon plaintiff’s car and the other end upon Whit-more’s car. Both cars were then propelled by the engine on Whitmore’s car to Goldbaum’s Crossing, where the stick was unloaded, the positions of the cars, were again reversed, and the two crews started back to the culvert to get the second stick. Approaching the southerly take-off, plaintiff again signaled to Whit-more, who threw off his power, and plaintiff upon his car “floated” ahead as before. Plaintiff applied the brake to his car with the intention of stopping at the north take-off, as he did upon the first occasion, and when some little distance therefrom, and while traveling at about three or four miles an hour, a rear-end collision occurred between Whitmore’s car and his own. Whitmore’s car at the moment of impact was traveling at perhaps double the speed at which plaintiff’s car was moving. As a result of the collision, plaintiff, who was standing between the handle bars of his own car, was thrown with some violence against the rear handle bar, breaking it off, and in some manner, not explained by plaintiff, he claims to have received a blow upon the back of his head. No mention of any injury was made by plaintiff at the time of the accident. He removed his car at the take-off as before, Whitmore’s car was rolled past, and in the changed positions the cars were returned to the culvert, where the second timber was loaded and transported to Goldbaum’s.
    With reference to the rubber face of the brakes upon Whitmore’s car one Argersinger, a member of Whitmore’s crew, testified:

      “Q. What was the condition of the facing on it?

      “A. It was worn some.

      “Q. Describe the condition of the facing 'on this brake on the day of the accident.

      “A. The facing of the brake — there had been a piece of rubber belt; I put it on there myself when this rubber belt had got worn until it was smooth and nearly worn through at the bottom, clear down to the bottom of those two brake shoes, and it was very defective; it would not hold when you would get on to it.

      “Q. It didn’t hold when you stepped on to it?

      “A. Yes, sir. It was smooth and pretty well worn. It would not hold much, like myself, and Mr. Whit-more stepped on the brake, no heavier than we were, both weighed about 140 pounds, we did not have very much effect on it, either him or I, but Rathbun or Nafe could jump on to that with their giant heft, and it would make quite an impression, as smooth as it was.”

      This witness further testified that on an occasion a couple of months before the accident, when they were operating this identical hand car upon which, himself and four others, including Joseph C. Fink, roadmaster of the defendant company, were riding, at about 25 miles per hour on a down grade, substantially the same as that at the place of the accident, it became necessary to stop the car, and that on that occasion it went 100 feet. He further testified:

      “A. Í took the brakes off the Whitmore car three or four times. When the car would generally get so that the brakes would not work good, I would put a new piece of belting on them.”
    With reference to the brakes upon the plaintiff’s car, plaintiff gave the following testimony:

      “Q. Did you ever put any facing on the brake shoes ;of your hand car?

      “A. Yes, sir. * * *

      “Q. About how often did you put on that leather on the brake shoes of this hand car you were using that day?

      “A. I don’t know. When it wore out I would put on some new.

      “Q. Whenever the facing on that brake shoe was worn out you would put on another piece of leather?

      “A. Yes, sir.

      “Q. You did that yourself?

      “A. Yes, sir.

      “Q. You had done it on this car you were using that day? * * *

      “A. 1 think I did put some on that car.

      “Q. Can you tell the jury about how often you had made that kind of a repair on that car?

      “A. I don’t know as I had only made it about once or twice.

      “Q. Had you ever made that sort of a repair on any other car?

      “A. No, sir.

      “Q. This was the only car you ever used?

      “A. Yes, sir.

      “Q. The only hand car you ever had on your section?

      “A. Yes, sir. * * *

      “Q. During the five or six years you worked on your section, you only repaired the brakes once?

      “A. I was not foreman all the time there.

      “Q. Did you ever see any one else repair the brakes?
    . “A. I don’t know.

      “Q. How long were you foreman?

      “A. About 17 months.

      “Q. During the 17 months you were foreman, you repaired the brakes only—

      “A. I think once or twice.

      “Q. You had never seen anybody else do it, you think?

      “A. Not as I know of.”
    The sole question submitted to the jury touching defendant’s negligence referred to the condition of the brakes on' Whitmore’s car. Upon this question the court charged the jury as follows:
    “You have heard all the evidence that has been offered here in regard to this brake on the car, and you take that up and weigh it and determine whether or not the plaintiff has shown by a preponderance of the evidence that the brake on that car on the day in question was defective or deficient so that the car could not ordinarily be stopped within a reasonable distance after the brake was applied by the men in the operation of it. In that connection I charge you, gentlemen of the jury, as a matter of law that it was the duty of the Ann Arbor Railroad Company to furnish a hand car with brakes sufficiently efficient to be reasonably safe in its operation by the man that had to work upon it and around it and in connection with it. This duty would not require the railroad company to furnish a car that was absolutely safe; they would not be bound to furnish and keep on this car brakes in such condition that an accident would be sure never to happen; they are not required to do that, but they are required to furnish this car and keep it in condition, and the brakes, so. that an accident would ordinarily not be apt to happen in the ordinary reasonable use of the car, and if they did that, notwithstanding the fact that an accident did happen, then they would not be negligent. But if the railroad company did not do that, and these brakes were not reasonably safe and efficient for the purpose for which the car was used, and you find that is shown by a preponderance of the evidence, then you would have a right to determine that that was negligence upon the part of the railroad company, and then you would pass to the other questions which I shall submit to you.”
    At the conclusion of the testimony and before the charge was given the court announced to counsel that the only question touching defendant’s negligence to be submitted to the jury would be whether the brakes on the Whitmore car were in proper repair or not, whereupon counsel for defendant inquired:
    “Will your honor instruct them there is no evidence of negligence on the part of Whitmore?

      “The Court: Yes; I will instruct them that too.”
    Counsel for defendant moved for a directed verdict upon three grounds:
    (1) That plaintiff had failed to show any negligence on the part of the defendant.
    (2) That the plaintiff had assumed the risk.
    (3) That the accident was due to the fact that plaintiff had stopped his own car too quickly, thereby himself being the cause of the collision.
    This motion was denied, and the case went to the jury under the instructions above set forth, and the jury returned a verdict in favor of the plaintiff.

      On master’s liability for co-servant’s negligence in respect to defective handcars', see note in 54 L. R. A. 172.

   Brooke, J.

(after stating the facts). Whether the accident happened wholly or partially because of the negligence of the plaintiff in stopping his own car too suddenly raised a question of fact, which was submitted to the jury by the court under proper instructions. We are of opinion too that the proper rule was enunciated by the court with reference to plaintiff’s assumption of risk. The important question for determination upon this record is whether the court was right in submitting to the jury the question of defendant’s negligence based upon evidence of the condition of the lining of the brake shoes at the time of the accident. If, as found by the jury, the defendant was negligent in that it had not exercised reasonable care to see that the lining of the brake shoes on Whitmore’s car was seasonably renewed, it would seem that that negligence must have grown out of the fact that Whit-more himself failed to do his duty in the premises. The testimony of Argersinger to the effect that, he had on several occasions renewed the lining of the brake shoes on the Whitmore car as they became worn, and the testimony of the plaintiff that, during the 17 months he had been foreman of the gang on. section 27, he. had renewed the lining on the brake shoes of his car once or perhaps twice makes it clear, we think, that it was in contemplation of the parties, the plaintiff as well as the defendant, that this small, and insignificant repair should be made by the section boss or one of his men under his direction. Inasmuch, therefore, as the defendant could not have been negligent unless. Whit-more, a fellow employee of the plaintiff, was negligent, the court clearly was in error in instructing the jury that there was no negligence on the part of Whitmore and yet that if they found the brake shoes to have been “not reasonably safe and efficient for the purpose for which the car was used,” they might find the defendant negligent. Section 2 of the so-called Federal employers’ liability act provides:

“That every common carrier * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” * * *

In the Second Employers’ Liability Cases, 223 U.S. 1 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44), it is held:

(a) That the Federal act supersedes all State regulation upon the subject.
(b) That in removing the defenses of the assumption of risk, the fellow-servant doctrine, and modifying that of contributory negligence, the congress acted within proper constitutional limitations.

See, also, Seaboard Air Line Ry. v. Horton, 283 U. S. 492 (34 Sup. Ct. 635, L. R. A. 1915C, 1 Am. & Eng. Ann. Cas. 1915B, 475). Under these authorities it is therefore clear that if the accident to plaintiff occurred by reason of the fact that the lining of the brake shoe on Whitmore’s car had become unduly worn (and that was the theory upon which the case went to the jury), the defendant might be held liable for negligence, that negligence consisting in the failure of Whitmore, the plaintiff’s fellow servant, to seasonably renew, or cause to be renewed, the lining. The jury should have been instructed that they could find the defendant guilty of negligence only if they found that Whitmore was guilty of negligence because of his failure to act with reasonable prudence in the premises. Corporations act through agents or servants, and if they are liable for negligence, they are so liable because of the negligent act or omission of some particular agent or servant.

It is pointed out by counsel for defendant that, though plaintiff showed that Whitmore’s car, when running at a certain rate of speed, could not be stopped by application of the brake within a certain number of feet, there is no evidence in the record tending to show within what distance Whitmore’s car could be stopped with brakes equipped with proper linings, and therefore that the jury had no legitimate basis for a finding of negligence on the part of the defendant or any of its servants. We are of opinion that this is a just criticism of the proofs as they exist in this record.

The record fails to disclose whether the hand cars in question were originally furnished to the several section foremen equipped with brake shoe linings, or without such equipment. If they were originally furnished without such equipment and the linings were added by the section men themselves as occasion required from time to time, in order to facilitate the handling of the cars, a different question would be presented.

Judgment will be reversed, and a new trial ordered.

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


text:
    SWANTECK v. CITY OF DETROIT.
    Municipal Corporations — Alleys—Power to Vacate — Damages.
    On a bill to enjoin the vacation of an alley adjoining plaintiff’s premises, where it appeared that such vacation would result in a benefit to his premises either by adding thereto the vacated alley or by furnishing him a paved area in the rear of his property causing it to increase in value, held, that the bill was properly dismissed.
    Appeal from Wayne; Codd, J.
    Submitted January 18, 1917.
    (Docket No. 116.)
    Decided May 31, 1917.
    Bill by John C. Swanteck and another against the city of Detroit and others to restrain the vacation of a public alley. From a decree for defendants, plaintiffs appeal.
    Affirmed.

      Denton Guinness, for plaintiffs.

      Harry J. Dingeman, for. defendant City of Detroit.

      William Van Dyke for defendants St. Hyacinth, church, Holkiewicz and Foley.
    Outlot No. 73, Patterson subdivision of the Mc-Dougall farm, occupies an entire block bounded on the north by Frederick street and on the south by Farnsworth street, on the west by McDougall avenue and on the east by Elmwood avenue. It is approximately 257 feet north and south by 444 feet east and west. As originally platted there was an. alley parallel with McDougall avenue 113.4 feet easterly from McDougall avenue 18 feet wide, running north and south from Farnsworth to Frederick. In the middle of the block between Farnsworth and Frederick another alley running east and west 20 feet wide connected Elmwood avenue with the north and south alley. The defend- and St. Hyacinth church, having acquired certain property on both sides of the north and south alley, secured from the common council of the city of Detroit the passage of a resolution vacating the northerly one-half of said north and south alley in the year 1908. Later the church acquired further property facing Mc-Dougall avenue on the west and Farnsworth avenue on the south, so that at the time of the proceedings complained of it was the owner of the entire westerly one-half of said block 73, with the single exception of lot No. 12, which lot, located at the northeast corner of McDougall avenue and Farnsworth street, is the property of the plaintiffs in this case. Said lot abuts on McDougall avenue with a frontage of approximately 33 feet, upon Farnsworth avenue with a frontage of 113.4 feet, and upon the north and south alley between Farnsworth and Frederick. The church authorities, having made an abortive effort to purchase from plaintiffs lot No. 12, petitioned the common council in July, 1915, for a vacation of the remaining portion of the north and south alley between Farnsworth and Frederick streets and for that portion of the east and west alley lying between the lots owned by the church. Accompanying the petition was a proposition to dedicate a new alley 18 feet wide running north and south from Farnsworth street to the east and west alley and being the easterly 18 feet of lot 16. This petition came on for consideration before the committee on street openings, and after three meetings the committee recommended to the common council that the prayer of the petition be granted, whereupon the following resolution was unanimously passed by the common council:
    “Resolved that ‘all of the public alley 20 feet wide lying north of and parallel with Farnsworth avenue and west of the east line of the west 12 feet of lot 16, Patterson’s subdivision of O. L. 73, McDougall farm, also all of the public alley 18 feet wide lying east of and parallel with McDougall avenue and between the south line extended of lot 4 of subdivision last mentioned and the north line of Farnsworth avenue,’ be, and the same are hereby, vacated to become part and parcel of the adjoining lots: Provided, petitioner deeds to the city of Detroit ‘the east 18 feet of lot 16 of Patterson’s subdivision of O. L. 73 McDougall farm,’ according to the plat recorded in Liber 15 of plats on page 90, Wayne County Records, for alley purposes.”
    After said action was taken, and on February 25, 1916, the plaintiffs herein filed their bill of complaint, wherein they pray that a decree may be entered requiring the common council to rescind its action in vacating said alley and for a perpetual injunction restraining said common council from vacating said alley or any part thereof. A preliminary injunction was granted, but upon an early hearing upon the merits the injunction was dissolved, and plaintiffs’ bill dismissed. From the decree entered, plaintiffs appeal.
   Brooke, J.

(after stating the facts). At the hearing the defendants offered in open court to pay to the plaintiffs $17,000 for their property. They likewise offered to leave an open space behind plaintiff’s property 30 feet by 32 feet and to pave the same as an alley or cul-de-sae. As a further alternative they offered to leave an alley immediately north of Farnsworth street and behind plaintiffs’ property 18 feet wide to the contemplated alley running north and south between Farnsworth street and the east and west alley. None of these propositions were acceptable to the plaintiff, who gave testimony to the effect that the closing of the alley would, in his opinion, damage him to the extent of $200 per annum. Evidence was introduced on behalf of defendants as to the value of plaintiffs’ property and as to whether the proposed closing would effect an appreciation or depreciation in such value. From such evidence it would seem that plaintiffs’ property was not worth to exceed $16,000, and that by adding to the lot the 9 feet from the vacated alley behind it it would be actually more valuable than it is in its present condition.

The learned circuit judge found as a matter of fact that the plaintiffs would not be injured in their property rights by the closing of said alley, and further found that:

“No testimony has been adduced by plaintiffs to show any damage to their property by this action, and the obvious purpose of these proceedings is to obtain an exorbitant price for their property, which I do not think it is the province of a court of equity to assist.”

The charter of the city of Detroit (1904) provides:

“The common council * * ' * shall have power to establish, open, widen, éxtend, straighten, alter, vacate and abolish highways, streets, avenues, lanes, alleys and public grounds or spaces within the city.” Chapter 7, § 33.

Counsel for appellants rely particularly upon the case of Horton v. Williams, 99 Mich. 423 (58 N. W. 369). That case was considered and distinguished in this court in the case of Schmolt v. Nagel, 151 Mich. 502 (115 N. W. 411). We there said:

“The grievance of complainants is purely fanciful, and not one to be redressed by injunction.”

This languáge is, in our opinion, exactly applicable to the facts in the case at bar. We reach this conclusion for the following reasons: Plaintiffs’ lot is a corner lot abutting on two streets. Upon the vacation of the alley plaintiffs may either build upon the 9 feet added to their lot, or, accepting the proposition of the defendants, secure a paved, open space behind their lot 30 by 32 feet in area. Plaintiffs have shown no injury.

The decree is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Fellows, JJ., concurred. Moore, J., did not sit.