text:
    FAHEY v. DETROIT UNITED RAILWAY.
    Compromise and Settlement — Inoompetenoy—Weight of Evidence — Ratification.
    In an action for personal injuries, the entry of a judgment for defendant notwithstanding the verdict, based on a stipulation of the parties, is sustained by the weight of evidence as to plaintiff’s competency to execute a release, and her subsequent ratification of the compromise by expending the money and failing to tender it back when in her right mind.
    Error to Wayne; Brooke, J.
    Submitted December 13, 1909.
    (Docket No. 73.)
    Decided April 1, 1910.
    Case by Sarah J. Fahey against the Detroit United Railway for personal injuries. A judgment for defendant non obstante veredicto is reviewed by plaintiff on writ of error.
    Affirmed.

      Washington I. Robinson and Henry O. L. Forler, for plaintiff.

      Brennan, Donnelly & Van De Mark, for defendant.
   McAlvay, J.

On September 2, 1902, plaintiff, who was a seamstress and on her way to her work at the residence of Mr. Jones at Grosse Pointe, was riding on the line of defendant company along Jefferson avenue in the city of Detroit. A slight collision occurred at Bates street crossing, where there is a switch connecting the line on Jefferson avenue with that on Bates, caused by the front end of the car on which plaintiff was riding, going east, striking the rear platform of a large sight-seeing parlor car, which projected over the curve of the switch track. Both cars were moving slowly and but little damage was done to them. Some glass was broken in the Jefferson avenue car, and a man was cut upon the hand by falling glass. The conductor’s attention was called to plaintiff by a man to whom she had complained. She complained of a pain in her arm. The conductor took her name and address. She continued her journey about four miles, to the corner of Belvidere and Jefferson, getting off from the car at Dr. Bennett’s office. In charge of this office at this time was Dr. Marcus Hagan. She told him she had been injured in a street car collision, and complained of her arm and side, and of feeling faint. ' Dr. Hagan treated her, and went to the car with her, when she took it a short time after, for Grosse Pointe where she remained about 10 days doing sewing at the house of Mr. Jones. She then came back to the city to No. 1503 Twenty-Third street, staying there a few days, and then called on Dr. Bird on Greenwood avenue. On the same day, September 15th, she went to the claim department of defendant at No. 12 Woodward avenue. On September 18th she telephoned for Dr. Hagan. He found her in bed. She complained to him of pain and nervousness. He continued to treat her as her physician from that date until February 13, 1903, during which time he saw her professionally every day. On many days he made two visits, and on several days three visits, to see her. After September 18th Dr. Hagan next saw her on September 24th, when she came to his office in a carriage alone, and took him with her to Harper Hospital and entered as a patient. After plaintiff’s visit to the claim department, as above stated, Dr. Brodie, defendant’s surgeon, went to see her twice, and suggested that she go to the hospital. She remained at Harper Hospital until January 6, 1903. She was then taken to the Red Cross Hospital, and from there, on January 11th, to Grace Hospital, where she remained until February 23d.

Before she went to the hospital, and after she had called at defendant’s claim department, Mr. Schneider of that department called on her to investigate relative to her claim and talked over the matter of her injury. She promised to come to the office on the next day. She came on the second day after, and asked what defendant was going to do for her. At her request by letter he called again at Twenty-Third street when she complained of the poor care she was getting. He next saw her at the hospital on October 7th, in answer to a telephone call from her, when she desired him to take her things away from 1503 Twenty-Third street and put them in storage, which he refused to do. Afterwards plaintiff wrote three letters to Mr. Schneider and one to Mr. Ross, the claim agent, all referring to her condition, and those to Schneider asked him to come to the hospital to see her; the last one stating that she would like to talk business with him. Schneider went to see her each time she sent for him. The matter of settlement was discussed on October 23d, at the visit in answer to the last letter above mentioned. He visited her several times after that, and on November 3d Mr. Schneider again saw her, when a settlement was again discussed, and also on November 5th, when he told her defendant would give her $400 and all the hospital bills, which she said she could not accept until she had seen Dr. Hagan. He called again on November 8th, when she told him that she was satisfied with the amount. She would not sign any papers unless Dr. Hagan was present. On November 10th, Mr. Schneider telephoned Dr. Hagan that he was going with a release voucher to plaintiff at the hospital and that she requested him to be present. Mr. Webber went with Schneider. At the hospital a settlement was made. Dr. Hagan was present. Four hundred dollars in a check was paid plaintiff and hospital bills to the amount of $102.86, in consideration of which she signed a release in full for all claims and causes of action, liability, etc., by reason of injuries received at the time of the accident. Schneider, Webber, and Dr. Hagan signed as witnesses.

On the same day plaintiff indorsed the $400 check in presence of Dr. Hagan, and requested him to deposit it in the People’s Savings Bank as a commercial account. That bank refused to receive so small a commercial account, and he took it to the Home Savings Bank and deposited it. At the request of the bank he took a signature card to her, which she signed, and he returned it to the bank. The plaintiff’s account was opened on that date in the savings department, with a credit of $400, and on her signed receipt $100 was drawn out which Dr. Hagan received. From that date down to April, 1907, the time of the trial of the case, amounts were drawn out from time to time upon her signed receipts therefor, and a balance of $15 remained to her credit. Her signatures to the above-mentioned papers and receipts are admitted to be genuine, and also that all withdrawals from this account after February 28, 1903, were made by her. She testifies that she never knew where this money came from; that she has no knowledge that she ever executed any release to defendant or that any settlement was ever had. The settlement of November 10th, above related, included all hospital bills in full to November 23, 1902.

On December 10th following she wrote a letter to Mr. Hutchins, president of defendant company, which is given in full, and reads as follows:

“Harper Hospital,
“Detroit,
“Dec. 10, 1902.
“Mr. J. C. Hutchins,
“Pres. United Str. Ry.,
“Detroit.
“Dear Sir: As you are fully informed regarding the accident which occurred on September 13, 1903, between car 812 and Yolanda, which has been the cause of injuries sustained by me, causing much suffering and confinement, at the above hospital. The same for which purpose this message is written you needs no further, or detailed explanation. As I have underestimated the time which would be necessary for my recovery and as I will be indebted to the hospital for about one and one half or two weeks charges incurred on account of the injuries received in the accident, I write to say, that as I was cut off from my employment and it being my only resource for maintenance, I will here ask, are you disposed to settle this small amount with the hospital authorities. I sincerely trust that looking over the matter and considering what I have suffered for almost five months, as well as my losses, employment, patronage, etc., you will be honorable and see that this debt is canceled agreeable to all. You cannot fail to comprehend even in my sufferings that I was overly disposed to not impose, or even demand what to others would seem justice. I trust you will give it your personal and immediate attention. I am not asking anything unjust. But as I have been rendered helpless through the accident, the hospital indebtedness being unavoidable, it will have to be settled. I only ask justice. And I am sure you will acquiesce with me, that when I tell you truthfully, that as I stóp out of the hospital, almost destitute as the result of this unfortunate accident, that there is very little hope for a person as weak as I to face a dreary winter to begin over. I do not want to have recourse to any trouble in this matter and I hope you are so disposed. Of course the matter put in the hands of an attorney would be still more expensive and for the most part disagreeable. Trusting that you will treat this matter justly and asking your kindness to reply at your earliest convenience.
“Thanking you, I am,
“Very respectfully,
[Signed] “Sarah J. Fahey.
“ P. S. By calling the hospital by ‘phone’ or concurring with them you will be justly informed regarding my health. Dr. Chapman of the staff I am sure would be pleased to tell you.
“Resp. S. J. F.”

Mr. Hutchins replied as follows:

“Detroit United Railway,
“12 Woodward Ave.
“Detroit, Michigan,
“Dec. 16, 1902.
“Miss Sarah J. Fahey,
“ Harper Hospital,
“Detroit, Michigan.
“Dear Madam: Yours of the 10th was referred to our claim department. I find that we hold your receipt in full of all claims arising out of your accident including a receipt for your hospital bill amounting to $102.86. Our records show that you have been fully compensated.
“Yours truly,
[Signed] “ J. E. Hutchins, President.”

On the same day she wrote the foregoing letter to Mr. Hutchins she wrote one of equal length relative to the same matter to Mr. Schneider asking him to call, and saying:

“As you no doubt know that I overestimated my strength and miscalculated the time I would be able to leave the hospital, and as there is a small amount due for the time it was necessary I should remain here with regard to the injuries I sustained in the United Railway accident with which you are familiar, I wish to ask that the company please be agreeable and adjust the same. I wrote to Mr. Hutchins regarding it, but it is very hard for me as I feel to fully explain. I trust you will do so for me.”

Plaintiff, while admitting that these letters are in her handwriting, testifies that she has no recollection of having written them. She remembers receiving the letter from Mr. Hutchins in answer to her letter of December 10 th, and produced it on the trial. The claim on the part of the plaintiff is that her mental condition was such that she was not competent to make a settlement. All the evidence in the case was directed to that proposition.

At the close of the testimony defendant’s counsel moved the court for a directed verdict. This motion was denied, and the case was submitted to the jury under the charge of the court. A verdict was returned in favor of plaintiff, and, in accordance with a stipulation between counsel theretofore made, upon motion made by defendant, the verdict was set aside, and a judgment was entered non obstante veredicto. Error is assigned upon such action of the court. The court granted defendant’s motion on the ground that the verdict of the jury was against the weight of evidence in the case.

That a settlement was made in good faith by defendant with plaintiff, for a consideration of $400 paid to her and $103 paid in full for hospital charges, appears from this record to be established beyond question, as also does the fact that plaintiff received the $400, and on November 10th signed a full release and satisfaction for all claims for injuries received. To determine whether her claim that she had no knowledge of this settlement by reason of her mental and physical condition at the time, and was incompetent to enter into it, or has not by her acts and conduct since that time ratified it, is sustained by sufficient evidence to warrant the verdict which the court set aside, will require a most careful consideration of the testimony in that regard presented by this record, and a consideration of all the testimony bearing upon the history and credibility of the plaintiff.

The settlement was brought about at her solicitation. The record contains many of her letters to that effect, which, as well as all the other letters written by her both before and after the settlement, indicate a clear understanding of the subject-matter treated, which is expressed in language unusually good for the average person and devoid of incoherency. Attention is called to the letter written Mr. Hutchins on December 10, 1902, which she remembers and admits was partly written by her. This letter, read in connection with this settlement, is conclusive that at the time it was written the fact that a settlement had been made was in the mind of the writer, and that the intention was to convince Mr. Hutchins that a payment of the additional amount asked would be preferable to a suit for damages broadly hinted at. There does not appear to be the slightest confusion of the details of the accident, including the number and names of the cars in collision on the date mentioned. The letter to Mr. Schneider, written by plaintiff on the same day, is of the same general character, and contains references which clearly indicate a knowledge of the settlement. Dr. Hagan who was her physician from the date of the accident was present at the settlement. He had visited her daily from the time she entered the hospital. His testimony is emphatic that at the time this settlement was made she was competent. The other witnesses present testify to the same effect. We do not find anything in this record to warrant the suggestion that Dr. Hagan was in any way connected with the defendant company or interested in its behalf, or indicating that his conduct of plaintiff’s case was not skillful and successful. He was not called by plaintiff as a witness for obvious reasons. Because he was present under process as a witness for defendant, cannot be considered as bearing upon his credibility; nor the fact that he received payment for services rendered plaintiff from the money paid to her by defendant upon the settlement. The record shows that plaintiff had confidence in him, and there is nothing in it to indicate that his testimony as to what he did at her direction is not in perfect accord with the facts. To show that plaintiff was incompetent to make this settlement at the time, reliance is placed upon the testimony of two witnesses who called upon her frequently at the hospital about the time it occurred. The testimony of both ladies tends to show that at the times they saw her she was very nervous and perhaps hysterical; that she seemed somewhat confused mentally, sometimes mistaking one of them for another person. These witnesses did not call at the same time, nor does the record show that either had knowledge that the other was coming to see plaintiff. This testimony shows that one of these witnesses did not call to see plaintiff for a period of at least two weeks, and during this time a settlement was made. Plaintiff told her this and the amount she had received. The other witness states she averaged once a week calling at the hospital, and sometimes might not have gone for two weeks; that on one occasion, in November or December, when plaintiff did not know her, and was in a stupid condition, and moaning, witness could not find out from those present what was the trouble. She saw a pad there,and said, ‘"That girl wants to write.” Her testimony proceeds:

“ It said on the pad, why she couldn’t even speak, and there was something terrible had happened to her, and I couldn’t tell what it was. I had made several visits before that. It was the time she signed the papers, because they saw on this paper, ‘ I signed; they made me sign,’ or something like that. I wish I could have kept the paper but it affected me so I could not tell anything about it. She could not speak to me. She wrote on the pad.”

In view of the incoherency of this testimony and of the fact that this witness did not know what caused plaintiff’s condition and knew nothing of any papers she had signed, except from this writing on the pad, this testimony does not carry the weight it otherwise might.

What was done with the money paid to plaintiff on this settlement and her treatment of the account during the four following years has already been stated. There is no claim made on her part that after she was discharged from the hospital she was not compos mentis. The letter which she received from Mr. Hutchins in answer to her demand for payment of about two weeks’ hospital charges was notice that defendant held her receipt in full for all claims arising out of her accident, including hospital bills, and that she had been fully compensated. She preserved the letter and produced it on this trial four years later. During that interval she used this money as she needed it by drawing it from the bank where her physician had deposited it at her request on the day it was received. There was no repudiation by plaintiff of this settlement until suit was brought, and then or since she has made no tender of the money paid to her. There is no proof or intimation in this record that any fraud or misrepresentation was practiced upon, or made to, plaintiff by or on the part of defendant to bring about the settlement.

We need not rest the case upon the question of fact as to plaintiff’s mental condition at the time she executed a full release and was paid the amount agreed upon. Her subsequent acts after she, by her own admission, became compos mentis as shown by the record to be undisputed, operated as a ratification and affirmance. It appears that she had knowledge that a settlement had been made, and continued to use the proceeds until the time of the trial. As already stated, there was no repudiation nor tender back of the money, nor was there any excuse offered why this was not done. Gibson v. Railroad Co., 164 Pa. 142, 151, et seq. (30 Atl. 308, 44 Am. St. Rep. 586), and cases cited. Drohan v. Railway Co., 162 Mass. 435, 437 (38 N. E. 1116).

Our conclusion is that the trial court was not in error in entering a judgment for defendant non obstante veredicto, for the reason that it was against the weight of the evidence, and for the further reason the settlement was accepted and fully ratified by the plaintiff. The judgment is affirmed.

Montgomery, O. J., and Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    MATLA v. RAPID MOTOR VEHICLE CO.
    1. Highways — Negligence—Motor Vehicle Law — Automobiles —New Trial.
    On a motion for a new trial of an action for negligently operating a motor vehicle on the highway, the opinion of the circuit judge in refusing a new trial was sufficiently supported by evidence tending to show that the car ran at an excessive rate, and the chauffeur failed to use reasonable care.

    2. Same — Highways—Frightening Team.
    Averments of a declaration that the defendant’s agent operated his car in such a manner as to frighten plaintiff’s team, are not so dependent upon other averments of a collision that plaintiff could not recover without proving both allegations.
    3. Same — Witnesses—Speed.
    It was not error to permit plaintiff, who had an opportunity to observe its approach for some distance, to testify concerning the rate of speed of the approaching automobile.
    4. Same — Contributory Negligence —Questions of Law and Fact.
    Under conflicting evidence as to plaintiff’s management of his team, a question of fact for the jury was presented.
    5. Evidence — Cross-Examination—Extent.
    A cross-examination as to the rate of speed at which the defendant’s agent ordinarily ran his car was permissible, following his statement that he ran slowly while testing cars.
    6. Same — Automobiles.
    Permitting a question whether it would have caused a different result if the witness had gone to the head of the horses, was not harmful where no injurious answer was elicited.
    Error to Oakland) Smith, J.
    Submitted January 20, 1910.
    (Docket No. 102.)
    Decided April 1, 1910.
    Case by William Matla against the Rapid Motor Véhicle Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Patterson & Patterson, for appellant.

      Davis & Bromley, for appellee.

       As to duty and liability of operator of automobile with respect to horses encountered on the highways, see note to Mahoney v. Maxfield (Minn.), 14 L. R. A. (N. S.) 251.

   Montgomery, C. J.

The plaintiff brought this action to recover for damages to his horses and vehicle occasioned by the alleged wrong of defendant company through its agent and servant, James Carey: The duty averred on the part of the defendant was based on Act No. 196 of the Public Acts of 1905, and it is alleged in the declaration that—

It became and was the duty of the defendant company, by its public servant and agent, in running said automobile northerly on Parke street in the city of Pontiac, to drive and run the same at a rate of speed not greater than 15 miles an hour in any event, and in approaching the place on Parke street where Whittemore street intersects and crosses the same, at a rate of speed not greater than 10 miles an hour, and it became and was the duty of the defendant company by their said servant and agent, in approaching and passing the place where Whittemore street crosses Parke street, to have had said automobile under control so as to have stopped it quickly, and it became and was the duty of the defendant company, by their said servant and agent, on approaching the plaintiff, his team and vehicle, to slow down to a speed not exceeding 10 miles an hour, and give reasonable warning of his approach, and use every reasonable precaution to insure the safety of plaintiff, and to prevent frightening his team, and inasmuch as the plaintiff on the occasion in question did holler at the said servant and throw up his hands as signals to him to slow down and stop said automobile, it became and was the duty of the defendant company by their said servant to immediately bring said automobile to a stop, and it became and was the duty of the defendant company by their said servant to not drive or guide said automobile against and into the team of the plaintiff and not frighten, injure, or damage the plaintiff or his team, harness and surrey, or cause said team to run away, yet the said defendant company, by their said servant and agent, at the time and place aforesaid, disregarded their said duty as aforesaid, * * * did not have said automobile under control so as to have stopped it quickly, and on approaching the plaintiff, his team and vehicle, on Parke street aforesaid, did not slow down to a speed not exceeding 10 miles an hour and give reasonable warning of the approach of said automobile, but did run said automobile at a rate of 25 miles an hour, and did not give any warning of its approach and did not use any reasonable precaution to insure the safety of the plaintiff and to prevent frightening the plaintiff’s team, and when the plaintiff signaled the said driver, agent, and servant, the said defendant company, by their agent and servant, did not slow down and stop said automobile immediately, and did not drive or guide said automobile so as not to run against and into the team of the plaintiff and not frighten said team and not cause them to run away, but the defendant company, its servant and agent in each and every respect mentioned, was careless and negligent, so carelessly, negligently, and improperly run and drove the said automobile at the time and place aforesaid with force and arms, and with great violence against and into the said team of horses and surrey, in which surrey the said plaintiff was riding and driving in and along the said public highway, and did unnecessarily frighten the team of the said plaintiff, and caused said team to fall down and then to run away after getting up,” etc.

The plaintiff recovered a judgment of $200, and the defendant brings error.

The errors assigned are the refusal to grant a new trial, refusal to give certain of defendant’s requests, and alleged error in the admission of testimony. The claim is that the testimony of the plaintiff was so vague as not to justify basing a verdict upon it, and that this testimony was met and overcome by testimony offered on the part of the defendant. Plaintiff’s testimony, however, was not too vague to support the declaration. There was uncertainty as to whether the defendant’s vehicle actually struck the horses. But plaintiff’s testimony as to the rate of speed and as to the manner in which the automobile was controlled by the defendant’s servant was sufficiently definite. There was a sharp issue upon the question of fact, and the circuit judge, who saw the witnesses, was not convinced that the verdict was sufficiently against the testimony to justify a new trial. We think no error was committed in this respect.

Error is assigned upon the refusal of the court to give its fourth request, which was, in substance, that unless there was an actual collision between the motor wagon and the team, there could be no recovery. We think the averments in the declaration are not so dependent as to make this request proper. The declaration avers that it was the duty not to frighten the team, and avers that the car was so managed as to frighten the team. If the statutory duty was neglected, we think this declaration broad enough to cover it.

The defendant’s eighth request was as follows:

“ There is no competent evidence in this case that the speed of the motor wagon exceeded 10 miles per hour.”

The plaintiff testified that he had witnessed automobiles go by his place frequently, had seen them driven frequently, and that he had ridden in automobiles. He had the opportunity to see this automobile approaching for some distance, and he expressed the opinion that it was going at a very much higher rate of speed than 10 miles an hour, and we think this testimony was competent. The case is easily distinguishable from Wright v. Crane, 142 Mich. 510 (106 N. W. 71). In that case the automobile was not seen by the plaintiff until it was within 20 feet of where the plaintiff stood, coming directly towards him. It was said in that case that the witness was not in a position to estimate the speed of the vehicle. In the present case, the plaintiff had much better opportunity, in fact, ample opportunity, to judge of the rate of speed of this motor car.

It is claimed that the plaintiff was guilty of contributory negligence. We think his testimony showing the manner in which he controlled his team presented a question for the jury.

Error is assigned upon permitting a question, on cross-examination of defendant’s witness, as to what his ordinary rate of speed was in testing out cars. It appeared that he was defendant’s tester. The witness on cross-examination offered the statement: “I run slow all through town while testing.” This certainly opened up the door for a searching cross-examination as to the rate of speed at which he ran the car. The question put on cross-examination of this witness as to whether it would have been different had he got down and gone to the head of the horses is without force, as the court practically excluded the inquiry, and no answer was given which would injuriously affect the defendant.

While the testimony was not very conclusive as to defendant’s negligence, there was, as we think, sufficient to carry it to the jury, and sufficient to justify the refusal of the court to vacate the verdict. There was no damaging error in the admission of testimony or in the submission of the case to the jury.

The judgment will be affirmed.

Ostrander, Hooker, Moore and Stone, JJ., concurred.


text:
    WEED v. CONSTRUCTION NEWS CO.
    1. Contracts — Acceptance.
    Where plaintiff received an offer of employment and replied that he wanted more time, and the offer was subsequently modified, after which he accepted the original proposition, by letter, the first reply constituted a refusal of the offer.
    2. Same — Evidence.
    Plaintiff’s statement that he orally accepted the proposal did not tend to show an acceptance, in the light of subsequent letters.
    8. Same — Corporations—Officers.
    Authority is not shown in the president of the defendant corporation to make an agreement for permanent employment of plaintiff as manager of a corporation to be subsequently purchased, at a stated salary and a further consideration of half the stock of the corporation, without evidence of some action on the part of the defendant.
    Error to Wayne; Donovan, J.
    Submitted January 18, 1910.
    (Docket No. 85.)
    Decided April 1, 1910.
    Assumpsit by Guy 0. Weed against the Construction News Company for breach of a contract of employment. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Bowen, Douglas, Whiting & Eaman (Herbert V. Barbour, of counsel), for appellant.

      James & Kilpatrick, for appellee.
   Montgomery, C. J.

This action was brought to recover damages for an alleged breach of contract. The defendant company was engaged in publishing “The Construction News,” “The Contractor,” and “The Cement Era.” The plaintiff had been employed by this company to solicit advertising, and in April, 1906, the president of the defendant company, E. H. Baumgartner, stated to plaintiff that he intended to become the purchaser of a paper called “Motor Way,” then being published by the Technical Press of America, a corporation. The proposition made to plaintiff by Baumgartner was that he would purchase a controlling interest in this corporation, the Technical Press of America, and that plaintiff should then take over one-half of the stock so purchased, and that plaintiff should have principal charge of the conduct of the business at a salary of $40 per week; the agreement being that the plaintiff was to share the losses, if any, which' were incurred while establishing the business of the paper “Motor Way.” This is plaintiff’s version of the contract.

The record shows, however, that correspondence passed between the parties relating to the contract, and a letter signed “E. H. Baumgartner, President,” on the letter head of the Construction News, and dated April 26, 1907, states in substance the contract as stated. The reply of plaintiff to this letter was as follows:

“ I would like to have the opportunity of getting some of the business in this territory that has been promised me, and, as this is only a reasonable request, I trust it can be done. I find however to get my property ready for the market I shall have to spend several hundred dollars on it and am dependent on my earning ability for this money. Just how I am going to do this and put up money if necessary on Motor Way is a question I have not as yet solved. * * *
“I want an opportunity for 4 months yet to make some money, the more the better so I can clean matters up here. If this can be arranged I am satisfied to accept the deal as outlined.”

On the 3d of May Mr. Baumgartner wrote another letter, which included this language:

“ Beginning next week, I want you to work on a salary under the arrangement outlined in my letter to you recently. I have also decided to have you come on to Chicago, as it is difficult to perfect our matters by mail. In order to economize on your time, I wish you would make several towns en route,” etc.

On the 25th of May, Baumgartner again wrote plaintiff, stating:

“I think if we allow you $25 per week and $3 per day trav. expenses and railroad fare it should be sufficient. I am prepared to go ahead on that basis beginning June 1, ’07. We will fix up the other details some time later.”

On the 81st of May, plaintiff wrote Baumgartner as follows:

“ I am ready to comply with the agreement as to Motor Way and will be open for business to-morrow morning June 1, ’07. This is in acceptance of your recent proposition of £ of 51 per cent, of the stock and the active management at $40.00 per week it being understood that I shall pay one half of the deficit if any until Motor Way becomes self-supporting.”

It will be noted that nearly two months had elapsed since the proposition of April 26th, and that the letter in response thereto of April 30th would in law amount to a refusal of the offer except as the same was later renewed, and that in the meantime, and on the 25th of May, Baumgartner had modified his proposition by suggesting a price of $25 per week and $3 per day for traveling expenses in place of $40 per week, and suggesting that the details should be arranged later on.

Notwithstanding this, the plaintiff insists that there was an oral agreement by which he became interested according to these terms. On cross-examination, witness was asked:

Q. What date did you say was accepted ‘ The Motor Way’ contract?
“A. Accepted verbally on April 27, 1907.
Q. When did you accept it in writing, if ever ?
“A. By this letter, which was last April, the 28th.
Q. That you say was paid on that contract ?
“A. It was also practically accepted on the 30th. You must remember in a long connection with the company, there were little minor details that came up every once in a while, and they were always considered as part of the contract.”

We think this falls short of showing an acceptance of this contract.

We think, also, that there is an insurmountable obstacle to a recovery in the case in the failure of the plaintiff to show any authority on the part of Baumgartner to bind the Construction News Company by such a contract as is alleged by the plaintiff. This contract involved an agreement between the plaintiff and Baumgartner, alleged to be representing the Construction News Company, to go out and purchase a controlling interest in the stock of another corporation. There was not only no proof of the authority on the part of Baumgartner to do this, but Baumgartner was called as a witness for plaintiff, and distinctly denied such authority. Plaintiff himself testified as follows:

“Q. Was the Construction News Company to have anything to do with the stock ?
“A. That I could not tell.
“Q. You are not absolutely certain of that?
“A. No, sir.”

Mr. Baumgartner testifies that the defendant company had nothing whatever to do with the purchase of the stock of the Motor Way.

We think the court erred in submitting the question of authority to the jury, and for the reasons stated the judgment will be reversed, and a new trial ordered.

Ostrander, Hooker, Moore, and Stone, JJ., concurred.


text:
    KEATING v. PATRONS' MUTUAL FIRE INSURANCE CO. OF MICHIGAN.
    1. Insurance — Amendment of Pleadingi — Time.
    An amendment of the alleged date of a policy in a declaration upon a lost policy of insurance in a mutual benefit association, from September 11th, 1908, to September 18th, 1908, was a proper exercise of discretion; it appearing that the error in date was caused by a letter from defendant’s agent in which he stated that the policy was issued September 11th.
    2. Same — Lapse—Payment por Plaintiff’s Benefit.
    It was properly left as a question of fact for the jury to say whether or not plaintiff was in default under the terms of his policy, which was subject to a by-law providing that a default of six months in his dues to a local organization connected with defendant should avoid the policy, where it was shown that a member of the organization in good faith agreed to pay the same, and the secretary of the organization had money of such member in her possession, which she treated as paid on the delinquent dues.
    Error to Alpena; Emerick, J.
    Submitted January 20, 1910.
    (Docket No. 107.)
    Decided April 1, 1910.
    Assumpsit by Charles Keating against the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      E. C. Chapin, for appellant.

      O’Brien & Francis, for appellee.
   Montgomery, C. J.

This action is brought upon a mutual insurance policy. The plaintiff suffered a loss, and recovered the sum of $865.75.

The original application for insurance was made in April, 1907. On the 18th of September, 1908, this risk was reviewed, and the policy increased from $2,400 to $2,500, and a new application made. The declaration averred that on the 1st day of May, 1907, in consideration of certain agreements on the part of the plaintiff, the defendant association issued its insurance policy to the amount of $2,400, and further averred that subsequently, on the 11th of September, 1908, the amount was increased to $2,500, apportioned as follows: $600 on dwelling, $600 on barn, $300 on contents of dwelling, $500 on contents of barn, and $500 on live stock. The certificate was duly numbered, but, by reason of the certificate being destroyed, the number thereof was unknown to the plaintiff. The policy or certificate as reviewed was dated September 11, 1908.

The defense interposed was that at the date of the alleged destruction of the building and the contents thereof by fire the dues and assessments required to be paid by the terms of the policy were not all paid but were in arrears, and that, by reason of the failure of the plaintiff to pay such dues and assessments, the policy was null and void at the time of the fire. The case came on for trial before a jury, and it was objected that the policy of insurance issued in 1908 was a new policy of insurance, and this objection was based in part upon the ground that the policy issued in 1907 had been rendered void by a failure of plaintiff to pay his grange dues. The circuit judge permitted an amendment of the declaration changing the date to September 18th, which was the real date of the issuance of the second policy, and overruled the objection.

We think no error was committed in this ruling. The defendant’s general agent, in response to a letter from the plaintiff asking the date of his policy, replied by the following letter:

“O’Brien & Francis,
“Alpena.
“Charles Keating insured with us May 1st, 1907; the amount of his insurance was $2,400. Sept. 11th, 1908, his risk was reviewed and his insurance was increased to $2,500. The items originally were $600 on dwelling; $600 on barn; $300 on contents of dwelling; $100 on musical instrument; $300 contents of barn; $500 live stock. When his risk was reviewed he changed by taking the insurance off of musical instrument and adding $200 to contents of barn. The other items remained the same.
“Very truly yours,
“E. A. Holden.”

The pleader appears to have followed this letter as well as he could, and there can be no doubt about the cause of action having been properly set out. The error as to the date of September 11th, instead of September 18th, was one which the defendant’s agent was responsible for, and an amendment was properly allowed to correct it. The defendant saw fit to plead the general issue to this declaration, and, while it is not full in its averments as to the policy, it was sufficient to apprise defendant fully of the nature of the plaintiff’s claims.

The defense chiefly relied upon is that plaintiff’s policy had lapsed, and that the second policy was invalid from the first because the plaintiff had failed to pay his dues to the Grange, an organization distinct from that of defendant, but apparently associated with the defendant in its policies. Section 26f of the by-laws of the Grange provides :

“ Every policy holder shall keep his dues in the subordinate Grange of which he is a member fully paid up and any policy holder who shall, permit or allow his.dues to remain unpaid for the space of six months voids his policy and the company shall not be liable for loss or damage thereafter.”

It appears that when this policy of September 18, 1908, was taken out, Frank La Chappelle acted for the defendant. On the 14th of September, 1908, he was at the house of Mr. William A. Hall, whose wife, Mary E. Hall, was secretary of the local Grange. The subject of the policy of plaintiff was discussed. Mr. La Chappelle says that Mrs. Hall then told him that plaintiff was over a year behind in his dues to the Grange, and he then made the remark that that was too bad, for he had sent him the application. Mr. Hall spoke up and said, “ Well, to help you out, I will go good for Charlie,” meaning plaintiff. Mr. La Chappelle further testifies that, “ I took it by that that he would see, did pay it himself, or see that it was straightened up.” Mr. Hall testified:

“ I spoke right up and said: ‘ I will come good for his dues, so as to make you all right. Send your policy in. I will come good for those dues. I will pay them myself. ’ Well, Mr. 'La Chappelle says: ‘Well, then, all right.’ He says: ‘ That makes the thing all right with me. I can send the policy in.’
“Q. Did you go good for those dues ?
“A. I certainly did.”

Mrs. Hall testified:

“A. Mr. La Chappelle said that Mr. Keating didn’t know how he stood in the Grange. I told him he was behind, and looked it up, and saw how much he was behind. He hadn’t paid any dues since July 1,1907. He said Mr. Keating had asked Mr. Butler to go to Marston’s and get the money and pay his dues. I said: ‘ What if he should forget it ? ’ And Mr. Hall said — spoke up and said that he would go good for it. He would pay it until Mr. Keating came back, so the policy might go on.
“Q. Now, did Mr. Hall pay it at that time?
“A. Well, he paid it in that way. He instructed me to pay it, expected I would make the receipt right then, but I didn’t because I hadn’t got my work out around, my Grange work.
“Q. Did Mr. Hall give you any money at that time ?
“A. No; he didn’t hand me the money. I had the money in my desk.
“Q. Mr. Hall’s money?
“A. My money and Mr. Hall’s money and Grange money, and several other moneys. * * * I considered Mr. Keating’s dues paid.”

The circuit court charged the jury:

“ Now, in the first place, gentlemen, of course, it is for. you to. determine what these people did say, and the intention with which they said it. I say that the intention of these two people at that time is an important element in your determination of this question of whether payment was made or not. Now, gentlemen, suppose the facts to exist that I have just mentioned, that Mrs. Hall had certain money in her desk in her room that belonged to Mr. Hall, that she had her own money there, and that she had the Grange money or Grange moneys in her desk together, if you please. They may have been all in one pocketbook, for all that I know. We will suppose that. Now, if Mr. Hall had then and there said to his wife, when this subject of the delinquency of Mr. Keating’s dues was brought up, £I will pay Mr. Keating’s dues,’ and Mrs. Hall had gotten up and gone into her room and opened her desk and taken out a sum of money belonging to Mr. Hall, and carried it out into the room where Mr. Hall was, and given it to him, and he had taken and counted out from his money, $1.80, and handed it back to Mrs. Hall, and she had gone and put it in the depository where she kept it, I presume it would be conceded that upon that occasion and by those actions Mr. Hall had paid Mr. Keating’s dues. I presume it would be conceded. The question is: Was it necessary that he should do those things, all of them or some of them, or not? Now, I claim, gentlemen, that it was not necessary for him to have done all of those things, or any of them, if it was then and there positively agreed by the words used between Mr. and Mrs. Hall, that he turned over to her as present payment of Mr. Keating’s dues $1.80, that they could do it in that way. If that was their honest, bona fide understanding and intention at the time to then and there make a present payment of that sum of money, that they could do it without actually handling the money. I say they could have gone through this performance which I have indicated, and without an honest intention, and it would have been no payment. It might have been a mere play that they had made up between themselves. But if they then and there honestly agreed — Mr. Hall declared that he paid the dues of Mr. Keating, and that Mrs. Hall accepted it as a present payment — I say that they might have done it in that way; but that nothing short of that would amount to a payment. It would not have done for Mr. Hall to have said that he became responsible, or intended to agree to become responsible in some collateral manner. It would not have done at all for him to have said that he would become good for them if Mr. Butler didn’t pay them — or if Mr. Keating didn’t pay them. Nothing of that kind would do. Nothing of that kind would amount to a payment, and would not have been sufficient to have validated this policy. You understand. I think you must understand what I mean. He must have then and there agreed to have paid those dues then, and Mrs. Hall must have honestly intended to accept that money as a payment, and not a conditional payment, nor a collateral agreement to pay them, if some one else didn’t —if Mr. Butler didn’t, or if Mr. Keating didn’t — or upon any contingency whatever. He must absolutely have turned over the money. And, gentlemen of the jury, if you believe by a fair weight and preponderance of the evidence in this case, that that was the agreement between the parties at that time, then it would be a payment in the law. And, if you are not able to find that fact by a fair weight and preponderance of the evidence, it would not be, and the plaintiff could not recover in this case. Now, that is the single question of fact at issue in this case, on which it is to turn. All this evidence that has been admitted here is for your consideration, as bearing upon that one point, upon that one question, of payment or nonpayment.”

It is contended by the defendant that the record conclusively shows that this agreement on the part of Mr. Hall was a collateral agreement, and did not amount to payment. We think otherwise. We think that it was a fair question for the jury as to what the real intent of the parties was, as evidenced by their conversation at this time, and that the circuit court did not err in submitting that question to the jury.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Stone, JJ., concurred.


text:
    KRAFT v. KRAFT.
    1. Divorce — Extreme Cruelty.
    Unfounded charges by a wife against her husband and against his daughter, to the effect they were guilty of immoral conduct with third persons, sustains a decree for divorce on the ground of extreme cruelty.
    2. Same — Alimony.
    Four hundred and forty-six dollars as permanent alimony, with an award of solicitors’ fees and costs in favor of a wife, who is at fault, should not be increased when the complainant is worth only $8,000, and would be ruined by a substantial increase.
    Appeal from Kent; Connine, J., presiding.
    Submitted January 19, 1910.
    (Docket No. 95.)
    Decided April 1, 1910.
    Bill by George B. Kraft against Elizabeth Kraft for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      William E. Gfrove, for complainant.

      Thompson & Temple, for defendant.
   Montgomery, C. J.

The bill in this case was filed for divorce on the ground of extreme cruelty. Complainant was awarded a decree by the circuit judge, and defendant appeals to this court, and strenuously insists that there is a total want of proof justifying a divorce.

We are not able to agree with this contention of counsel for defendant. There is, as we find, abundant testimony which supports the charge of cruelty, that the defendant charged the complainant with illicit relations with other women, and that she made similar unfounded charges against the complainant’s grown daughter. The circuit judge had exceptional opportunities for judging of the credibility of these witnesses, and we may add that we see nothing in the record which to our mind impeaches the testimony of the witnesses who make out the complainant’s case. We think, therefore, there was no error committed in granting the divorce.

Defendant’s next contention is that the allowance of alimony was grossly inadequate. These people were both of mature years when the marriage occurred; the complainant having a grown daughter and son. The defendant was the owner of a double house and lot worth something like $2,200. The evidence satisfies us that the total net worth of the complainant did not exceed $3,000. Of this sum the defendant was awarded $446 permanent alimony besides the allowance for her support during the pendency of the suit and her solicitors’ fees. We think that this allowance of alimony ought not to be disturbed. The case is one in which the fault for the separation was with the defendant. She is now left in better circumstances than is the complainant. It would almost be certain ruin to increase in any substantial sum this allowance of alimony.

The decree is affirmed, without costs to either party.

Ostrander, Moore, Blair, and Stone, JJ., concurred.


author: Moore, J. Hooker, J.

text:
    ESCANABA MANUFACTURING CO. v. TRADES AND LABOR COUNCIL OF ESCANABA.
    Injunction — Strikes—Labor Unions.
    An injunction to restrain a trades and labor council composed of delegates from the various labor unions of the city from illegal acts in connection with a strike is not justified under testimony that the strike was called by an organization not represented in the defendant council, which held no meetings until after the end of the strike, and took no part in it, except that certain of its officers engaged in unlawful acts without express authority, and that an effort apparently successful was made by the council to settle matters amicably before the strike was finally declared. Hooker, MoAlvay, and Brooke, JJ., dissenting.
    Appeal from Delta; Stone, J.
    Submitted June 18, 1909.
    (Docket No. 83.)
    Reargued' January 5, 1910.
    Decided April 1, 1910.
    Bill by the Escanaba Manufacturing Company against the Trades and Labor Council of Escanaba and others to enjoin an interference with complainant’s business. From a decree for complainant, said defendant Trades and Labor Council appeals.
    Reversed, and bill dismissed as to appellant.

      A. H. JRyall, for complainant.

      Judd Yelland and Albín W. Norblad, for appellant.
   Moore, J.

The complainant is engaged in the manufacture of dishes, clothespins, plates, and other articles from wood. It'had in its employ about 300 persons, about half of whom were girls and women. In the fall of 1907, Local Union No. 123 — one of the defendants — of the Amalgamated Wood Workers’ International Union of America was organized at Escanaba. The defendant John J. Meyers was the organizer of this union. Many of the employés of the complainant became members thereof. About November 1, 1907, three women employed by complainant were discharged. At this time other employés ceased to work because of their sympathy with the persons who were discharged. This trouble was adjusted after a few days and the employés returned to work. Trouble arose again on Friday, November 29, 1907, when two young women were discharged. The next day about 100 employés quit work, and still others on the following Monday, making nearly 100 girls and women and about 70 men and boys who quit work. These employés were members of the defendant union. About 150 employés continued to work. It was claimed by the complainant that the striking employés attempted to prevent those who continued to work from working, and that violence was used to accomplish this object. The complainant, claiming that great injury would be done to its business and property, filed this injunction bill for relief.

The bill sets out in detail what the complainant claims are the illegal acts of the defendants. The prayer of the bill contains, among other things, the following:

“(2) That said defendants may be enjoined from congregating or loitering about or in the neighborhood of the premises of your orator, or at any other place, with intent to interfere with the employés of your orator or with the prosecuting of their work, or to interfere with or intimidate the employés of your orator with intent to cause them to leave the employment of your orator or to interfere with or obstruct in any manner the business of your orator.
“(3) That said defendants may be further enjoined from interfering with the free access of the employés of your orator to your orator’s premises and their place of work and the free return of said employés to their place of business or their homes.
“(4) That said defendants be further enjoined from giving directions or orders to committees or associations or otherwise for the performance of any such acts or threats as are hereinbefore enjoined, and from any manner whatsoever impeding, obstructing, or interfering with the regular operation and business of your orator.”

Upon the filing of the bill of complaint, a temporary injunction was issued. The only answer interposed was made by the appellant the Trades and Labor Council of Escanaba. In the answer there is a denial of nearly all the material allegations of the bill of complaint, and especially is it denied that the appellant committed any unlawful or improper act, or ever interfered with the defendant company or its business or its employés. The testimony in the case was taken at length before a commissioner and reported to the court. After a hearing a decree was made enjoining all of the defendants in accordance with the prayer of the bill of complaint. None of the defendants have appealed except the defendant the Trades and Labor Council.

It is contended that no illegal acts were shown on the part of any of the defendants. We cannot agree with this contention. The record is full of testimony which is convincing that some of the defendants were guilty of acts which not only authorized the granting of a writ of injunction, but made it the duty of the court to issue the restraining order under the following cases: Beck v. Teamsters’ Protective Union, 118 Mich. 497 (77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421); Ideal Manfg. Co. v. Wayne Circuit Judge, 139 Mich. 92 (102 N. W. 372); Ideal Manfg. Co. v. Ludwig, 149 Mich. 133 (112 N. W. 723, 119 Am. St. Rep. 656); Ideal Manfg. Co. v. Ludwig, 149 Mich. 699 (113 N. W. 20).

The important question in the case is whether the appellant the Trades and Labor Council is shown to have been a party to any of the illegal acts. This presents a question of fact. On the part of the complainant it is urged as a significant fact that, when the first trouble recited in the bill of complaint arose, the complainant was visited by a committee of the appellant, who interfered in behalf of the striking employés. The cross-examination of the superintendent of the complainant shows the personnel of this committee, and it also shows that no member of the committee made any threats or any statements to which exception could be taken, and that the work done by the committee and the mayor of the town resulted in an amicable settlement being made, and the employes all returning to work. The Trades and Labor Council of Escanaba is made up of delegates from the various labor unions of the city. The employes who took part in the strike and in the illegal acts perpetrated during its existence were members of Local Union No. 123 of the Amalgamated Wood Workers. The record discloses that at the time of the strike this local union had no representation in the Trades and Labor Council. It further shows that the appellant met November 15th, and had no further meeting until after the strike was over. It is shown that it had no reason to suppose after the adjustment of the trouble between the complainant and its employés in the early part of November that there would be any further trouble. There is a failure to show that the appellant took any part in having the strikers go out or that it advised, ordered, directed, or incited to or took part in any of the unlawful acts which were committed by some of the defendants.

The decree as to the appellant should be reversed, and the bill of complaint dismissed, with costs.

Montgomery, C. J., Ostrander, and Blair, JJ., concurred with Moore, J.

Hooker, J.

(dissenting). A bill was filed to restrain the defendants from unlawful interference with complainant’s property, business, and employes. Upon a hearing upon proofs taken before a commission, a decree was entered against all defendants determining—

“ That the defendant Trades and Labor Council and its officers and members were at the time of the filing of said bill of complaint unlawfully and wrongfully combining and colluding together with the other defendants herein-before mentioned for the purpose of carrying out, by threats and intimidations, the unlawful acts referred to in said bill of complaint, and that the said Trades and Labor Council and its said officers, agents and members, were, at the time of the filing of said bill of complaint, threatening and had threatened to call upon the various organizations which it represented to assist the said Trades and Labor Council and to assist the other defendants in this cause in carrying out the unlawful acts complained of in said bill of complaint.”

And ordering that said defendants, and each of them,—

“Under a penalty of $10,000, be, and the same are hereby, ordered and directed to absolutely desist and refrain from in any manner interfering with the employés of said complainant now or hereafter in its employ, and from in any manner interfering with any person who may now or hereafter desire to enter the employ of said complainant, by way of threats, personal violence, intimidations, or other unlawful means calculated or intended to prevent such person from entering or continuing in the employ of said complainant, or calculated or intended to induce any such person or persons to leave the employ of the said complainant, and from congregating or loitering in or about the neighborhood of the premises of the complainant or at other places with intent to interfere with the employés of said complainant, or with intent to cause them to leave the employ of said complainant, and from any time interfering with the free access of the employés of complainant to its premises and its place of work and the return of said employés to their places of business ór to their homes, and from giving any directions or orders to committees, associations, or to any person or persons or otherwise for the performance of any such acts or threats as are hereby enjoined, and from in any manner whatever impeding, obstructing, or interfering either now or hereafter with the regular operations or conduct of the business of complainant, and from now or at any time hereafter trespassing or entering upon the property of complainant without its permission, and from now or hereafter committing any trespass or assault upon any of Ahe employés, officers, or agents of said complainant.

The “Trades and Labor Council” has appealed. It is indisputable that the officers and members of this council were present in the crowd at the time of some of the lawless and unlawful acts connected with the strike, and there is evidence plainly showing the complicity of the Trades Council in threats, afterwards carried out, of attempting to stop complainant’s business until such time as it should submit to the dictation of the unions, and deny work to others than members of the union, a proposition and project as wrongful toward unaffiliated labor as toward the complainant.

We have examined the testimony, and think there was a great sufficiency to justify the learned circuit judge in making a decree requiring this council to refrain from acts admittedly unlawful. It is not to be expected that organizations of this character will spread upon their record the evidence of unlawful projects or acts, or that their officers will publicly avow the responsibility of the society for the unlawful acts of a mob.- When, however, they interest themselves as a committee, and as officers in meetings with the employer, seeking to further the objects of the strike, and are seen repeatedly among the mob that engages in riotous and unlawful conduct, there is sufficient to warrant the inference that they are acting for and on behalf of the society.

The circuit judge has found that the conduct of this defendant was threatening to complainant’s property and business interests. He has not punished it. He has not even asked it to pay the costs, which he might well have done. He has merely required it to obey the law which it was and is in duty bound to do without admonition, and which apparently it would have us believe it has every intention of doing. Seeing no reason to doubt the accuracy of the conclusions of the learned circuit judge, we concur in his disposition of the case.

The decree should be affirmed, with costs.

McAlvay, and Brooke, JJ., concurred with Hooker, J.

Stone, J., did not sit.


author: Moore, J.

text:
    GREEN v. OSTRANDER.
    1. Bills and Notes — Failure op Consideration — Pleading — Notice of Defense.
    Evidence in support of. defendant’s claim should not be excluded, in an action on promissory notes in which a notice of special defense was given by the defendant to the effect that the notes were executed for the purchase price of mining stock held by a trustee, and to be thereafter issued, that defendant never received the stock, and the consideration for the notes had totally failed; the notice containing sufficient averments of failure of consideration.
    2. Same — Holder in Due Course — Good Faith.
    The fact that the money paid by defendant had been obtained from a bank, on the notes which plaintiff subsequently paid, is not a defense where the testimony showed the bank knew all about the transaction and the consideration therefor, and it was not a holder in good faith.
    Error to Ontonagon; Cooper, J.
    Submitted January 11,1910.
    (Docket No. 35.)
    Decided April 1, 1910.
    Assumpsit by Thornton A. Green against Edwin J. Ostrander on certain promissory notes. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Adams & Jones (P. H. O'Brien, of counsel), for appellant.

      Arthur H. Brown, for appellee.
   Moore, J.

The plaintiff commenced suit by declaration attached to which were two notes. One of them reads as follows:

“ $100.00. Ontonagon, Mich., Jan. 21, 190?.
“ Thirty days after date, I or either of us promise to pay to the order of the First National Bank, one hundred ......dollars at the First National Bank of Ontonagon, for value received, with interest at seven per cent, per annum after due, until paid.
“Due Feb. 21-’07. No. 1370.
“E. J. Ostrander.”

This note was indorsed by T. A. Green and afterwards was paid by him. The other note reads the same, except that it was due 60 days after date, instead of 30 days after date.

The defendant pleaded the general issue, and gave the following notice:

“Please to take notice: That at the trial of this cause the defendant will give in evidence and insist under the plea of general issue by him above pleaded. That on or about the 1st day of August, A. D. 1906, the said plaintiff and the said defendant, entered into a certain agreement, whereby the said plaintiff agreed to assign and transfer 200 shares of a certain mining stock designated by the said plaintiff as e Mikado Mining & Milling Company stock,’ and that by the said agreement the said plaintiff undertook and promised to deliver the said stock to the said defendant, with all assessments paid, as soon as the same was issued, and which said stock the said plaintiff represented to the said defendant was then in the hands of Dan H. Ball, of Marquette, Mich., as trustee. That the said defendant, acting in good faith, and relying upon the promises and representations made to him by the said plaintiff, and believing in good faith that he would receive the said 200 shares of said stock, in consideration therefor undertook and promised to pay to the said plaintiff the sum of $400. That on the 21st day of November, A. D. 1906, the said defendant paid $100, and that on the 21st day of December, A. D. 1906, the said defendant paid another $100 of said above-mentioned sum of $400. That if the said defendant executed the notes in said declaration set forth, whether as alleged in the said declaration or otherwise, the same were executed in pursuance of the above-mentioned agreement and under the belief in good faith by the said defendant that he would receive the said 200 shares of said stock from the said plaintiff as was agreed between them, and the said defendant relied upon the aforesaid representations of the said plaintiff. That the said plaintiff, disregarding his promises and undertakings in that behalf, has not delivered the said stock nor the certificates thereof nor any part of the same to the said defendant, and, although often requested so to do, has utterly failed to keep his promise and undertaking in that behalf. Therefore the said defendant claims that the consideration of the said alleged promissory notes and for the sum of $200 paid by the said defendant has totally failed. That if the notes set up in the plaintiff’s declaration were made payable to the First National Bank of Ontonagon, Mich., they were made payable to said First National Bank for the convenience of the said defendant and did not become the property of the said First National Bank. That by reason of the failure of the above-named plaintiff to carry out his said promises and undertakings and to deliver the said stock to the said defendant as agreed between them, the said defendant has been greatly injured, and has sustained damages to a large amount, to wit, the sum of $250, which said damages, or so much thereof as will be sufficient, said defendant, Edwin J. Ostrander, will claim by way of recoupment, against the demand of the said plaintiff to be proved at the trial of said cause, and prays for the balance thereof to be certified in his favor.”

Upon the trial plaintiff produced as a witness the cashier of the bank, who gave his version of the notes sued upon. Upon the cross-examination and against the objection of plaintiff he was cross-examined about the origin of the debt represented by the notes, and testified, in part, as follows:

“ Those notes, of which the notes we see are in part renewal, were given in payment for that stock. They borrowed the money for that stock, I remember. So that Mr. Ostrander signed his name to certain notes, making $400, and Mr. Green indorsed each and all of those notes, and then the bank gave the money to Mr. Green. * * * I presume Exhibit 2, which is shown me, is the paper that was deposited as collateral security for notes given. * * * But I paid no special attention to this. I wasn’t concerned in this, and I knew the security was good enough when Mr. Green indorsed the note. That is all I cared for. I didn’t care for this; but I presume this was the paper that was pinned to the note and was supposed to be delivered when the note was paid. * * * I think Exhibit % is in Mr. Green’s handwriting. I presume Exhibits 3, 4, and 5, purporting to be notes signed by Mr. Ostrander on August 81, 1906, the same date as Exhibit 8, are the notes for which Exhibit 8, the receipt, was given as collateral security. * * * I guess he paid $800 in order to take up the $800 note. I think that is right; that he made out two notes, Exhibits A and B, in renewal of the $800 notes.”

Exhibits A and B are the notes upon which suit is brought.

Exhibit 8, mentioned by the witness, reads as follows:

“Ontonagon, Mich., Aug. 81, 1906.
“For value received I hereby assign and transfer two hundred shares of Mikado Mining and Milling Co. stock to E. J. Ostrander.
“ Certificates to be delivered as soon as issued, with all assessments paid.
“Thornton A. Green.
“ Said shares now held by Dan H. Ball, Trustee.
“ T. A. Green.”

Exhibit 3, mentioned by him, reads as follows:

“$800.00. Ontonagon, Mich. 8/81 /06.
“ Five months after date I promise to pay to the order of Thornton A. Green, at First National Bank of Ontonagon, Two Hundred no /100 dollars, for value received, with interest at the rate of 6 per cent, per annum.
“ No. 1144.
“ Due January 81-1907.
“E. J. Ostrander.
“ I have transferred and delivered to the holder of this note as collateral security, for the payment of this and of any other liabilities of the undersigned to said payee or assigns, due or to become due or that may hereafter be contracted, the following property, value of which is Four Hundred Dollars, viz.: An agreement to transfer two hundred shares of Mikado Mining and Milling Co. stock when certificates are issued. And the undersigned hereby gives the said payee and assigns authority to sell the said property, or any part thereof, or any substitutes thereof, and all additions thereto, on the maturity of the above note, or any time thereafter, at any public or private sale, with the right to said payee and assigns themselves to be the purchasers, when the sale is made at any Brokers’ Board or public sale. And after deducting all costs and expenses, to apply the residue to the payment of any, either or all liabilities as aforesaid, as said payee or assigns shall elect, returning the overplus to the undersigned ; and in case the proceeds of the sale of said property shall not cover the principal, interest and expenses, the undersigned engages to pay the deficiency forthwith after such sale, with legal interest.
“ The First National Bank
“PAID
“Jan. 23,1907
“of Ontonagon, Mich.”
E. J. Ostrander.”

On the back of Exhibit 3 was indorsed: “T. A. Green.”

The defendant was sworn, and was allowed, against the objection of the plaintiff, to give his version of the transaction. His testimony was, in substance, that he purchased 200 shares of Mikado Mining & Milling stock of plaintiff; that the only consideration for the making of Exhibits 3, 4, and 5, which were originally put in the bank, and the notes sued upon which were renewals, was the above stock.

“ I have never been delivered a certificate showing my 200 shares of capital stock of the Mikado Mining & Milling Company. I have never been delivered any certificate of stock at all in that company. I have made a demand upon Mr. Green for the delivery of the shares that I purchased from him. That demand was made the 21st day of February, 1907, in writing. * * * I demanded a delivery of that stock. Mr. Green jumped up and said to me, ‘ Mr. Ostrander, that stock has never been issued and never will be.’ * * * My transaction relative to those notes was entirely with Mr. Green. I didn’t have the money handy at the time to pay cash for the stock. Mr. Green proposed to go to the bank to get the money. He said he would be able to get the money at the bank by indorsing the notes. He said he would indorse them, and when they would become due I would pay them, and, not being able to pay them, these renewals were made from time to time. * * *
“Q. Well, did you receive anything at all for those notes ?
“A. I received the paper that was handed me by Mr. Green. I did not receive anything else other than this paper, which is marked ‘Exhibit 2.’ I did not receive the stock, or any other stock contemplated by this paper. ‡ $
“Mr. Brown: If the court please, I wish to make my motion again, or make a new motion, that that evidence be stricken out, all evidence given by that witness, for the same reason as appears at the commencement of this testimony.
The Court: The motion is hardly in proper form. I suppose you want to move to direct a verdict ?
“Mr. Brown: Yes, I want to move to direct a verdict in favor of the plaintiff in this case on the two notes, and against the defendant in favor of the plaintiff on the question of recoupment. * * * My reasons for asking a direction of the verdict at this time are: First, that the plaintiff has made aprima facie case. Second, that the testimony introduced on behalf of the defendant is incompetent, irrelevant, and immaterial, and that the testimony is inadmissible for the reason that the defendant proposes, first, to show breach of contraet, and there is no sufficient allegation of breach of contract contained in the plea. Further, that the testimony purports to show a failure of consideration — a total failure of consideration — whereas, the plea of the defendant specifically admits that a consideration moved. That the contract set up in the plea of the defendant is not proper subject of recoupment in this case. * * * That the defendant has not proved or established his right to the stock. Further, that the evidence tending to impeach the validity of the note is inadmissible for the reason that it cannot be impeached in the hands of a bona fide holder until it was shown that he took it under circumstances which render him guilty of bad faith, or has notice of equities.
The Court: My mind is made up in this case. As I feel at present, I am quite positive the two notes sued upon by the plaintiff in this case were given in payment for certain shares of stock in the Mikado Mining & Milling Company, sold by the plaintiff to the defendant, and at the time of selling it he agreed to deliver the stock when issued; the stock itself being held in trust by one D. H. Ball, of Marquette, Mich. The defendant, in addition to pleading the general issue, has added to his plea the fact that the original contract for which the notes were given was without consideration, for the reason that it seems the stock was never issued. There is no evidence in this notice, or in the plea of recoupment, or generally, that the stock had been issued, nor any failure on the part of the plaintiff to have carried out his part of the agreement in the event that the stock had been issued. There has been some evidence introduced that the stock never would be issued; but I am of the opinion that the original agreement was certainly equitable with a consideration, and it was an actual sale by the plaintiff of these shares of stock to the defendant. A note was first given to complete the contract; and afterwards this note was taken up, and new notes given by the defendant to the bank. It seems that the plaintiff indorsed these notes, the bank loaned the defendant money, and the money was paid to the plaintiff. It appears to me that at that time the plaintiff was actually paid for the shares of stock; and this suit is to recover on the renewal of notes given at that time which the plaintiff became indorser of, and he is entitled to recover here as indorser upon those notes. But in any event, it seems to me that there was a consideration passed at the time of the original contract. * * * I am further of the opinion that the motion of the plaintiff made at the beginning of the defense in this case to shut out all this evidence on the ground that there was nothing in the notice or the plea of recoupment charging failure of consideration or charging a failure on the part of the plaintiff to deliver the stock when issued, in accordance with the original contract, ought to have been granted, and that testimony not admitted. Therefore I will proceed to direct a verdict.”

He at once directed a verdict in favor of plaintiff.

It will be observed that the trial judge did not in terms strike out the testimony which he says ought not to have been admitted, but he seems to have directed a verdict after a consideration of the entire case. If a direct ruling had been made about the testimony, the defendant might have asked leave to amend his plea. We think the court was in error in saying there was nothing in the plea or the notice under the plea charging a failure of consideration. We think, also, that there is room under the testimony for another conclusion than the one stated by him, that the bank loaned the defendant the money for which the original notes were given. There is also room for the inference that the bank knew all about the consideration for which these notes were given, and the plaintiff, of course, knew for what they were given, so that we do not think it can be said as a matter of law that the plaintiff was a good-faith holder of these notes, for value, and without notice of any defense. To state the case most favorably to the plaintiff, it is clear that many phases of the defense urged here were proper matters to be submitted to the jury.

Judgment is reversed, and new trial ordered.

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


author: Ostrander, J.

text:
    BELMER v. BOYNE CITY TANNING CO.
    1. Master and Servant — Infancy—Negligence—Assumption of Risk — Hazardous Employment.
    In an action for negligence, brought by a minor under 16 years of age against his employer, on the ground that he was ordered to undertake hazardous work outside the scope of his duties, and was injured in attempting to turn a pulley while standing on it, as directed by a superior servant who was making an adjustment, the questions of unavoidable accident, assumption of risk, and whether the plaintiff was expressly directed to do the work in the way adopted, were questions of fact for the jury.
    3. Same — Fellow-Servant—Alter Ego.
    The fact that one employé has authority to hire and discharge other employés is not conclusive of his relation of fellow servant to other employés.

      3. Same — Representative op Master.
    Where a servant is exposed to danger not in the line of duty which he has engaged to perform, by the act of a superior servant, having authority over him, the negligence of the superior may be treated as that of the master.
    4. Same — Contributory Negligence — Assumption op Risk — Minor Servant.
    The age of the plaintiff, and his tendency to defer to the judgment of his superior are proper considerations in determining the questions of negligence, of assumed risk, and contributory negligence.
    6. Same — Trial—Argument—Appeal and Error.
    An appellant, who does not satisfy the court on error that the admission of evidence and argument of counsel objected to were prejudicial, is not entitled to a reversal.
    6. Same — Trial—Mortality Tables — Expectancy.
    A statement by the court, in charging the jury, that the mortality tables showed plaintiff’s expectancy to be forty years, is not open to the objection that the jury were not permitted to consider plaintiff’s life at less than forty years, in the absence of requested instructions on the point or the direction of the court’s attention thereto on the trial.

      7. Same — Words and Phrases.
    “Expectancy of life” accurately expresses the time which a healthy person may expect to live, as shown by mortality tables.
    Error to Charlevoix; Mayne, J.
    Submitted January 21, 1910.
    (Docket No. 108.)
    Decided April 1, 1910.
    Case by Frederick Belmer, by next friend, against the Boyne City Tanning Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Knowles & Converse and John M. Harris, for appellant.

      H. A. Jersey and George E. & M. A. Nichols, for appellee.
   Ostrander, J.

In substance, the case stated in the declaration of the plaintiff is that, having been employed at labor not dangerous to life or limb, plaintiff was ordered from his regular employment to employment more dangerous and really hazardous, by one who had, as to him, the authority of the master; that plaintiff was immature, was advised by said superior that what might have been considered as an obvious danger was not a danger, and that he was injured in the said employment while following the directions of his superior, and was himself without fault. The trial of the case resulted in a verdict and judgment for the plaintiff. Defendant was refused a new trial.

Four propositions are discussed by counsel for the appellant, to which form they have reduced the errors relied upon. They are:

“ (1) The court erred in not directing a verdict for defendant.
“ (2) The court erred in allowing certain testimony on behalf of the plaintiff to be introduced.
“(3) The argument of counsel for the plaintiff was such as to mislead and prejudice the jury.
“ (4) The court erred in his charge to the jury as to the amount of damages to award plaintiff.”

It is convenient to consider them in the order stated.

It is said that a verdict for defendant should have been directed because:

“ (a) The defendant was not guilty of any negligence.
“(5) The plaintiff was guilty of contributory negligence.
“(c) The injury was caused by an unavoidable accident.
“ (d) The results complained of could not have been caused by the injury complained of.
“(e) That if the injury complained of was caused by the act of Mills, Mills was a fellow-servant and the defendant company is not liable.”

The testimony for the plaintiff tended to prove that the plaintiff, a lad not 16 years old, was employed to operate an extract wheel used in the process of tanning hides and to load and unload the wheel. The wheel was some 8 feet in diameter, 10 feet in length, and hollow. In it hides were placed, and certain materials, and the wheel was revolved. Power was supplied by an electric motor. At each end of the extract wheel, on its outer surface, was a series of cogs which meshed with cogs on certain pinion wheels, the shaft upon which they were being driven by a belt working upon a pulley and running to another pulley upon a line shaft. The extract wheel was loaded and unloaded through a door in its circumference. It was very heavy when loaded. It was loaded upon the occasion in question. The pulley upon the shaft upon which the pinion wheels were was 32 inches in diameter and its center was 11 feet from the floor. The line shaft pulley, secured to the shaft by set screws, sometimes worked loose. It had worked loose upon this occasion. Discovering this, plaintiff shut the motor down, called Mr. Mills and told him of the trouble. Plaintiff had never repaired or assisted in repairing the machinery. TJpon other like occasions Mr. Mills had procured the machinist employed by defendant to adjust the difficulty. On this occasion he attempted to adjust it. Plaintiff, at his direction, put up the ladder and handed him the wrench. Mills tightened one or more set screws and said to plaintiff, “Climb up on the oil barrel and try and pull the wheel around a little.” Plaintiff said, “If I get up there it might turn.” Mills said, “No; it won’t turn.” Plaintiff mounted a platform at one end of the extract wheel, mounted a barrel which was on the platform, the top of which was at or above the center of the extract wheel, and climbed into the pulley and tried to turn it. Plaintiff testified:

“Q. Now, when you got up there on this wheel, what position did you get in ?
“A. Why, I got my feet in the spokes, and pulled on it.
“Q. Which way did you pull ?
“A. I pulled this way — on the back of it— (Shows how he pulled.)
‘ ‘ Q. What effect did that have on that back cylinder the leather was in ?
“A. Why, it pulled the cylinder back a little.
“Q. Do you know whether the stick was under there at the time that you went up on the wheel ?
“A. Yes, sir; it was.
“Q. Did you put it under there at the time you went up to pull it ?
“A. Yes, sir.
“Q. And it hadn’t been taken out ?
“A. No, sir.
“Q. You got up on this wheel you say, and put your two feet in the spokes down there ?
“A. Yes, sir.
{‘Q. Then took hold of the wheel and did what ?
“A. Pulled on it.
“Q. And the last time you pulled, when you say Mr. Mills told you to yank it harder, where was Mr. Mills ?
“A. He was on the ladder.
“Q. Was he in a position so he could see what you were doing when he told you that ?
“A. Yes, sir.
“Q. Well, do you know whether he was looking at you?
“A. Yes, sir. He had to wait there till I turned it before he could cighten the set screw.
“Q. Then you say after you gave it this last yank, you found yourself down on the floor ?
“A. Yes, sir. * * *
“Q. When you gave this last yank, what did this pulley do, so far as you know ?
“A. Why, it turned over a couple of times, of course.
“Q. Turned over?
“A. Yes.
“Q. Whirled over. Like that? (Shows.)
“A. Yes, sir.
flQ. And it threw you off?
“A. Yes, sir.”

On cross-examination.

“ I was standing on the table that goes to the vat. I could not see the door. I stood at the foot of the ladder. I was right under Mills. When he told me to get up there I got up on the oil barrel. The oil barrel is the one on the platform. There was no head in it. I stood on the chimes of the barrel. I did not lay a board across it. There was no board across .this barrel. From this I went upon the framework. I did not step on the girt in the framework right opposite this barrel. I stepped on the barrel and swung up on the framework. I took hold of the big timber shown on Exhibit A. I could not reach the pulley from the top of the barrel. I could reach the belt. I did not try to move the shaft by pulling on the belt. While I was climbing up Mr. Mills was standing on the ladder.
. “Q. When you got up there on the framework, where did you rest to pull that pulley ?
“A. Why, I had my feet on the spokes of the pulley when I pulled it.
“Q. Did you stand right up in the pulley ?
“A. Yes, sir.
“Q. What did you have hold of with your hands?
“A. I had hold of the wheel.
“ Q. You had a hold of the pulley ?
“A. Yes, sir. * * *
“Q. Do you know whether or not that stick was in there when you got up there ?
‘A. Well, I am pretty sure it was because they couldn’t take it out till after we started the wheel.
“Q. You couldn’t take it out?
“A. No.
“Q. Why not?
“A. Because it wouldn’t come out. The wheel rested on it. The stake might be knocked out. While I was yanking on the wheel I was stooping over and pulling on the rim of the wheel towards me. It did not move the first time I yanked it. I could not budge it the second time I yanked it.
“ Q. But when Mr. Mills told you to yank it hard, it all at once gave way ?
“A. Yes, sir.
“Q. Now is that right ?
“A. I yanked twice on it and the second time it turned quick.
“Q. The second time it turned quickly ?
“A. Yes, sir.
“Q. And it turned the way you were pulling it ?
“A. Yes, sir.”

Mr. Mills testified that he told plaintiff to get up and pull on the pulley. He denies having said that the wheel would not turn, denies that he saw what plaintiff did do, denies that he told him to “ yank ” the pulley. On cross-examination he testified:

“Q. Now, when you told that boy to get up there and pull on the pulley, he was to do that for the purpose of turning that other shaft that you were working on half way round, wasn’t he ?
“A. Yes, sir.
“ Q. And to turn the other shaft half way round he was obliged to turn the pulley that he got upon also half way round ?
“A. Yes, sir.
Q. And if he did that, he was bound to move the cylinder, wasn’t he ?
“A. Yes, sir.
Q. And you knew that ?
“A. I did; yes, sir.
Q. You knew that if he moved that cylinder, didn’t you, and the stick fell out, that it would settle and the other wheel would turn ? Didn’t you know that ?
“A. I didn’t know that.
Q. You didn’t know that? After 17 years as foreman in the loft there and in other places ?
“A. No, sir, I never seen those cylinders till but a short time before that — these wheels were not in operation till but a short time before that.
” Q. How long had you had that cylinder up there ?
“A. About three years.
“Q. And in three years you hadn’t learned that the hides would settle when placed in there, unless there was a stick to keep them steady ? Hadn’t you, witness ?
“A. Why, if they piled the hides in the front part of the wheel and the stick came out, it would fall down, no doubt about that.
“Q. What was the stick put in for ?
“A. To hold it.
“Q. And what would happen if the stick fell out, or got out ?
“A. It would settle down.
“Q. You knew that, if that boy put force enough on that cylinder to move that shaft around, it would move the cylinder, didn’t you ?
“A. Yes, sir.
“Q. And you knew if he moved the cylinder that the stake or stick would fall out ?
“A. I can’t say as to that. I didn’t pay any attention to where he was going. I didn’t look at him. I never noticed where he was going. I told him to get up and pull that pulley. He was standing on the floor where I had the ladder. He was standing on the floor when I last seen him. I don’t remember whether I told him to give me the wrench. If he did give it to me he had to either climb up the ladder or climb up and stand on the drainage table, or else get up on these steps. I said to him, ‘ Get up and pull on the pulley.’ I couldn’t say that he had ever done such a thing before that.
“Q. And you knew, didn’t you, Mr. Mills, that if he pulled on that pulley as you directed him, and thus turned the set screw of that clutch up as you wanted him to do, that the cylinder would settle or was liable to settle, and, if it did, that it would turn the whole thing like lightning, didn’t you ?
“A. Yes. No doubt it would. While this boy was getting up somewhere to pull on that pulley I was up on the ladder at the clutch. I never took my eyes off the clutch because I was watching for him to turn that up so I would get at that set screw. I can’t say as the shaft turned. I see it move, just in that way, backwards and forwards a trifle, and I told him to pull a little more. Just while you could say it, I heard the noise at the back side of the wheel, and turned round quickly, and I saw Fred Belmer at.the back side of the wheel kneeling on his knees with his left hand to his eye. I was watching the set screw move a trifle back and forth.
“Q. You watched this set screw move a trifle back and forth ?
“A. Yes, sir.
“Q. And then you said to Fred, ‘ Pull harder ? ’
“A. Yes, sir.
“Q. Well, I will ask you this question: You said to the boy, ‘Pullharder,’ did you, Mr. Mills?
“A. I told him to pull a little more. I remember telling him to pull a little more. I didn’t know where the boy would go to pull on that wheel.”

So much testimony has been set out to show that the injury itself may be accounted for, that the jury were warranted in finding that it was not an unavoidable accident, the risk to which plaintiff was exposed, the express direction by which he acted.

Mr. Mills was in authority in this department, hired and discharged the men, and was the one to whom they came for orders and directions. The fact that one employe has authority to hire and discharge other employés is not conclusive of his relation of fellow-servant to other employés. Beesley v. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Findlay v. Wheel Co., 108 Mich. 289 (66 N. W. 50); Andre v. Elevator Co., 117 Mich. 563 (76 N. W. 86); Wellihan v. Wheel Co., 128 Mich. 1 (87 N. W. 75); Lepan v. Hall, 128 Mich. 523 (87 N. W. 619); Corey v. Iron Co., 151 Mich. 558 (115 N. W. 737).

If in the course of the regular employment and while being assisted therein by Mills, plaintiff had been injured through the negligent conduct of Mills, a different question would be presented. But where a servant is exposed to danger not in the line of the duties he has engaged to perform, by one whom the master has placed over him, and to whose orders he is subjected, this wrongful act of his superior may be treated as the wrongful act of the master. And it is proper to take into consideration, in a case like the one here presented, the age of the plaintiff and the tendency of a lad of his age to obey directions and to defer to the judgment of one placed in authority over him. In principle the contentions of appellant presented under this head must be resolved against it upon the authority of Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205. None of them can be determined in defendant’s favor as matter of law.

We have examined the portions of the record referred to by counsel and are not satisfied that if the rules of evidence were violated, which is doubtful, defendant was prejudiced thereby.

We may not correctly appreciate the bearing of the remarks of plaintiff’s counsel which are complained about, but, if we do, error is not well assigned.

Complaint is made that in the charge to the jury the probable duration of plaintiff’s life, as shown by the mortality tables, was treated as established. It does not appear that counsel for defendant preferred any request to charge upon the subject nor, after the charge was given, did they direct the attention of the court to any error therein. It was not assigned as a reason for a new trial. And after instructing the jury that every dollar given plaintiff presently would earn $2 in 40 years, and that $33.33£ would be the present worth of $100 in 40 years, the court said: “Gentlemen, have I laid down that rule correctly?” Evidently there was no response and the court continued:

“Well, I have given you the rule, gentlemen, and you will take that as the rule. I will look it up, and, if I find I am wrong, I will recall you. I am speaking of it as I recall it.”

The use which a jury may make of the tables showing the expectancy of life at any age is not different in different cases in which they are admitted in evidence. There is no reason to apprehend that trial judges, in this State, entertain different views upon the subject or that it is ever intended to enlarge or to restrict the force and. effect which should be given to them, as evidence under repeated decisions of this court. If a misstatement of the law is made, it must be assumed that it is an inadvertence. In a given case, what is said upon the subject to the jury may be patent error, likely to prejudice one or the other of the parties litigant. But, as there can rarely if ever be a difference of opinion about what ought to be said, counsel may usually have the needed correction made at once. It is contended here that the jury were not permitted to consider the probable life of the plaintiff as more or less than 40 years. What the court said was:

“Now, under the mortality tables, 40 years is the expectancy of plaintiff’s life; it is a little more, but you may consider it as 40 years, because, under the instructions which I will further give you, it will be easier for you to remember and make the computations, which I will instruct you how to make.”

Again it was said, after explaining that plaintiff was not entitled to his earnings until he was 21 years of age:

“ His expectancy from the time he is 21 is 40 years, in round numbers.”

The court correctly stated the fact from evidence furnished by the tables and from the testimony of plaintiff’s health and condition prior to the accident. There was direct and positive testimony that plaintiff was a strong, healthy boy. There was no testimony contradicting it. There was therefore no evidence of the probable duration of his life except the tables of mortality. The term expectancy of life was technically accurate to express that which the tables of mortality showed. Nelson v. Railway Co., 104 Mich. 587 (62 N. W. 993); Davis v. Railroad Co., 147 Mich. 479 (111 N. W. 76). In the absence of any request from counsel that the jury be instructed that the tables were not conclusive evidence of the duration of plaintiff’s life, and a refusal to so instruct, reversible error is not made out.

The judgment is affirmed.

Montgomery, C. J., and Hooker, Moore, and Stone, JJ., concurred.