author: Steere, J.

text:
    LUMBERT v. PRINCE.
    1. Trial — Conduct of Counsel — Appeal and Error — Prejudicial Error.
    In an action for personal injuries, for defendants’ counsel, on cross-examination of plaintiff’s witness, to suddenly change the subject and ask, “What relation are you to this fellow (plaintiff), anyway?” and on the reply, “Not any,” exclaim “Good for you,” and dismiss the witness, was prejudicial error which was not cured by the admonition of the court not to take such remark seriously.
    2. Same.
    For defendants’ counsel to exclaim, on plaintiff’s reply to a question, “What a liar you are!” was highly prejudicial and was not cured by an admonition by the court to the jury to pay no attention to such remarks, especially as counsel exclaimed further, “For a man to sit there and tell me that!” which was tolerated without further reprimand.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

      3. Same — Master and Servant — Workmen's Compensation Act —Employers Not Operating Under the Act — Defenses—Instructions.
    In an action for personal injuries by a servant against his employer, who .was not operating under the workmen’s compensation act, the defenses of assumption- of risk and contributory negligence not being available (2 Comp. Laws 1915, § 5423), it was error for the court below to instruct the jury that plaintiff must bear the consequences of all ordinary risks incident to his employment, although he had previously instructed them in accordance with the law.
    4. Same — Personal Injuries — Instructions.
    In an action for personal injuries, where the negligence charged was that the place where the plaintiff was required to work was rendered unsafe by and in connection with the unsafe condition of the équipment and machinery, an Instruction that “defendants were under no legal obligation to provide a guard, screen, or cover for this buzz-saw, if there was sufficient room to carry on the work with ordinary safety,” was erroneous, since the work was done in the open and the question of sufficient room was not involved.
    Error to Eaton; Smith, J.
    Submitted June 12, 1918.
    (Docket No. 95.)
    Decided September 27, 1913.
    Case by Claude J. Lumbert against Cyrus Prince and another for personal injuries. Judgment for defendants. Plaintiff brings error.
    Reversed.

      W. J. Carbaugh and W. A. Norton, for appellant.

      Frank A. Dean and Elmer N. Peters, for appellees.
   Steere, J.

In the fall of 1916 plaintiff was injured while in defendants’ employ at a portable sawmill located on their premises, engaged in sawing into lumber some logs cut from their land. The portable mill had connected with it a slab- or buzz-saw attachment and plaintiff’s work was to cut up the slabs for wood as they came from the logs which were being sawed into lumber. The buzz-saw was so connected with the power appliances of the mill that it ran continuously whenever the machinery of the mill was in motion, whether in use or not. At an interval during which a log was being placed upon the carriage of the mill for sawing and the engine running with the buzz-saw in motion but not in use, plaintiff proceeded to clear away the saw-dust and other waste material accumulated around and under the saw at which he worked. While so engaged he slipped in such manner, as he testified, that his right hand came upon the swing table or platform of the unguarded slab saw and was swung into it, resulting in loss of its index and middle fingers with their metacarpal bones, permanently disabling and mutilating that member.

Defendants had not elected to come under the workmen’s compensation act, and plaintiff eventually brought this action in the circuit court of Eaton county to recover damages for injuries sustained in that accident, imputing the same to defendants’ negligence. The trial in that court resulted in verdict and judgment for defendants, to review which plaintiff has removed the case to this court on various assignments of error, of which those directed against portions of the charge and prejudicial conduct of defendants’ counsel are most seriously urged.

Plaintiff’s declaration charged negligence in failure of defendants to provide him a safe place in which to work, or reasonable safe appliances and machinery with which to do the work for which he was employed; that the buzz-saw rig attachment of the portable mill was “a mere contrivance fixed up for the occasion,” not properly constructed or safe-guarded as customary with those in common use, not equipped with a cover to guard the saw or any device to hold the table from swinging when the saw was running but not sawing, etc.

Defendants pleaded the general issue, with special notice of settlement, assumption of risk and negligence on the part of plaintiff. During the progress of the trial defendants were allowed to amend their notice to the effect that they did not own or control the “machinery connected with the buzz-saw,” at which it was not disputed they had employed plaintiff to work, and then introduced testimony that a contractor was sawing their logs for a price per thousand feet.

Under the issue raised by the pleadings conflicting evidence was introduced by the parties fairly presenting questions of fact as to defendants’ alleged negligence and their claim of settlement. The testimony was largely directed to those two contentions. Several witnesses who had owned and operated portable sawmills were called as experts by each side. Their conflicting testimony fairly supported the claims of the respective parties calling them as to the safe or unsafe condition, construction and manner of operating this buzz-saw according to approved and commonly adopted equipment and methods in that line of business. In concluding his cross-examination upon this subject of one of plaintiff’s witnesses with over 15 years’ experience in operating portable mills, who testified the saw should be guarded and under the exposed condition shown the place provided for plaintiff to work was “dangerous and unsafe,” defendants’ counsel suddenly changed the subject and asked, “What relation are you to this fellow, anyway?” being answered, “Not any,” he exclaimed, “Good for you, that is all.” Upon plaintiff’s counsel objecting to this reflection as intended to prejudice the jury the court replied, “I think the jury will not take that very serious.” The more serious impropriety of this nature arose as follows: Plaintiff had signed a receipt to defendants for their payment of “Doctor bill, hospital expense and wages for four weeks,” amounting to $98, which concluded, “To cover damages in accident for loss of fingers.” He claimed to have been misled into signing so far as the concluding portion was concerned, supposing it only a receipt for the items stated which defendants had assumed or paid. In his cross-examination as to a time when he was in the office of defendants’ counsel the following occurred:

“Q. There was a man with you?
“A. Yes, sir, he told me you sent for me to come up there.
“Q. That I sent for you?
“A. Yes, sir.
“Counsel: What a liar you are!”

Upon exception and objection to such treatment of plaintiff while a witness as prejudicial to his case, the court, without reprimanding counsel, said to the jury, “Of course, gentlemen, you are supposed to give no attention to a remark of that kind; sometimes remarks come when we can’t avoid it,” which defendants’ counsel supplemented by the exclamation — “For a man to sit there and tell me that!” As there is no testimony to the contrary, the turpitude of the witness in testifying that a man who admittedly accompanied him to counsel’s office had told him before they went that counsel had sent for him to come up there is only indicated in this record by the assertion of counsel that the witness was a liar and his expressed astonishment, in furtherance of the court’s unfortunate intimation that calling the witness a liar was, under the circumstances, irresistible and in the category of remarks which sometimes come “when we can’t avoid them,” illustrated by counsel’s concluding expression of emotion which was tolerated without reprimand. The prejudicial effect of counsel’s conduct certainly was not relieved by the court’s caution to the jury.

The defense quite apparently stressed during the trial not only freedom from negligence on the part of defendants, which was a legitimate defense, but the claims which had been pleaded that plaintiff assumed the risk and was himself negligent — defenses now denied to employers not operating under the workmen’s compensation law which provides as to them (section 1, part 1, 2 Comp. Laws 1915, § 5423) that: .

“In an action to recover damages for personal injury sustained by an employee in the course of his employment * * * it shall not be a defense:
“(a.) That the employee was negligent, unless and except it shall appear that such negligence was wilful;
“(b) That the injury was caused by the negligence of a fellow employee;
“(c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.”

While the court early in the charge correctly advised the jury of these provisions as applicable in the case, later in the charge they were instructed without subsequent modification or explanation, as follows:

“I instruct you that a servant, in this case the plaintiff, must bear the consequences of all ordinary risks incident to his employment including that from machinery with which he was working.”

This was the last authoritative utterance of the court on the subject, and it cannot be said from the general tenor of the charge considered in its entirety in the light of the pleadings and proofs that its inconsistencies were not misleading. Assuming that the jury had clearly in mind the two contradictory instructions, which one they adopted if either is but conjecture, with a possible inference that it was the last given. Under the reasonable assumption that in the minds of the jury these contradictory instructions offset each other, then the jury were uninstructed upon that important subject and plaintiff was deprived of the benefit of the instruction to which the workmen’s compensation act entitled him.

The jury were also instructed that:

“Defendants were under no legal obligation to provide a - guard, screen or cover for this buzz-saw, if there was sufficient room to carry on the work with ordinary safety.”

As the portable mill was operated in the open the question of sufficient room to carry on his work was not involved. Were that the test this instruction applied to the undisputed evidence effectually put plaintiff out of court. The negligence charged, however, was not failure to furnish ample room in which to work, but that the place where plaintiff had to be to do his work was rendered unsafe by and in connection with the unsafe condition of the equipment and machinery at and with which he was required to work.

For the foregoing errors the case is reversed, with costs, and a retrial granted.

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


source: Caselaw Access Project

license: Public Domain

text:
    SMITH v. CIGARMAKERS’ INTERNATIONAL UNION OF AMERICA.
    1. Insurance — Life Insurance — Mutual Benefit Associations —Construction of Contract.
    A contract of insurance, prepared by a mutual benefit association in accordance with its constitution, is to be most strongly construed against it.
    2. Same.
    Where such constitution recognized that the death benefit might be disposed of by will, Held, to authorize the construction that it might be regarded as an asset of insured’s estate, although otherwise not technically such.
    3. Same — Powers—Statutes.
    Under 3 Comp. Laws, §§ 11592, 11593, relating to and abolishing all powers except those authorized by statute, the technical rule relative to the exercise of a power by will is not, in Michigan, controlling; so where the constitution of a mutual benefit association authorized a member to appoint his beneficiary by will, and by his will he left all of his property to his daughter, his sole heir at law, without specifically designating her as beneficiary of the death benefit, it not appearing that he had appointed any other beneficiary, Held, to be an exercise of the right, the will otherwise being purposeless.

    Error to Washtenaw; Kinne, J.
    Submitted June 6, 1918.
    (Docket No. 61.)
    Decided September 27, 1918.
    Assumpsit by Hattie E. Smith against the Cigar-makers’ International Union of America for the amount of a benefit certificate. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      William H. Murray, for appellant.

      A. J. Sawyer and H. A. Balser, for appellee.

      See note in 42 L. R. A. (N. S.) 1161.

   Steere, J.

Aaron Long, by occupation a cigar maker, died at the city of Ann Arbor in the home of plaintiff, his only daughter, on June 23, 1915, being then over 72 years of age. He left a will dated September 21, 1914, making plaintiff his sole beneficiary. At the time of his death he was a member in good standing of the defendant Cigarmakers’ Union and had so been since 1885. The constitution of this union contains an insurance feature in the form of death benefits to its members in good standing at the time of their demise, increased by stages for duration of membership. Fifty dollars is provided for funeral or cremation expenses on the death of any member, and including this, that—

“there shall be paid on the death of a member the following sums, viz., if the decedent shall have been a member continuously for five years or longer period less than ten years next preceding his death the sum of $200. * * * If the decedent shall have been such member continuously for 15 years or longer period next preceding his death the sum of $550.”

Plaintiff, as .sole beneficiary under deceased’s will, made seasonable application to defendant, with proper proof of death, relationship, etc., for payment of the amount provided for a member in good standing for 15 years or longer preceding his death, which was refused and this suit commenced. The $50 provided for funeral expenses was paid after commencement of the suit, leaving the amount claimed by her and in litigation $500, which defendant declined to pay on various grounds, but mainly because plaintiff was not specifically designated in her father’s will as beneficiary of his death benefit. Upon trial of the case by jury a verdict was directed for defendant on the ground that deceased had not properly, in compliance with the constitution of defendant, designated any person to whom his death benefit should be paid.

Plaintiff’s nine assignments of error involve but the main meritorious question of whether Aaron Long as a matter of law designated appellant in his will as the beneficiary of his death benefit, to which he was entitled as a member of the defendant union; and, if not, whether under the facts shown .the question of intent should have been submitted to the jury as bearing upon the construction of his will.

Deceased lost his wife not long before he executed this will. Following her death he called upon the president and secretary of defendant’s local lodge at Ann Arbor and talked with them in relation to his death benefit, after which he had prepared and executed his will which, aside from formal matter — provision for payment of his debts and the appointment of his daughter as executrix — is as follows:

“Second, I give, devise and bequeath to my only surviving child, Hattie E. Smith, of Ann Arbor city, Michigan, all property of which I may die possessed, real, personal or mixed, or which I may be entitled to at the time of my death, she,, the said Hattie E. Smith, to have,and to hold full title thereto all except what may be required to fulfill the first mentioned item (payment of debts and funeral expenses) of this my last will and testament which I have this day made by reason of the recent death of my beloved wife, Mary J. Long.”

Upon the subject of death benefits, section 144c of defendant’s constitution provides as follows, so far as material:

“A member may at any time designate the person or persons to whom his death benefit shall' be paid. Such designation shall be in writing, signed by such member and witnessed by the secretary of the local union * * * and such member may at any time thereafter in like manner change such designation. If there be no such designation, or if the paper making such designation be not deposited with the president of the International Union within 30 days after the death of such member, such benefit shall be paid to the widow of such deceased member; if there be no widow, then to the minor children of such deceased member; if there be no widow and no minor children of such deceased member, then to any relatives of the deceased member, who at the time of his death were dependent for support pi whole or in part upon such deceased member. If there be no written designation produced and deposited, as above required, no widow, no minor children, nor such dependent relative of such deceased member, or if no application in writing as hereinafter provided for the payment of such death benefit shall be made within one year next after the death of such member, then all right and claim of any and every person to such death benefit shall wholly cease and determine. This application shall state (proof of death, etc.). * * *
“In case the designation of the beneficiary of any such death benefit is made by a will the original of which is required by law to be filed in court, a certified or sworn copy of such will in lieu of the original may be deposited.” * * *

It is undisputed that, acting under the last quoted provision, plaintiff made application through the proper channels for the death benefit, furnishing a proper certificate of death, probation of the will, a certified copy of the same showing that the original was required by law to be filed in the probate court. And no question as to time or manner of application for payment of benefit is raised, defendant’s denial of liability being squarely planted upon the proposition that deceased’s personal rights as a member of the union in the benefit fund were merely a power to appoint' or designate, and change, the beneficiary or beneficiaries during his lifetime in the prescribed form specified in his contract of membership, evidenced by the constitution of the order and that he failed to exercise that right, its counsel stating in their brief:

“An examination of the will shows that as a matter of fact the will does not designate a beneficiary of the death benefit because the death benefit is not mentioned, * * * The exact question is whether words disposing of testator’s property, Teal, personal or mixed,’ disposed of this benefit.” * * *

Deceased’s will was duly admitted to probate on July 9, 1915, in the probate court of Washtenaw county. The inventory and appraisal of his estate shows real and personal property valued at approximately $5,000, consisting of $4,000 worth of real estate, $606.12 in bank, $57 pension check and a bill for some furniture sold. The benefit right in question was not inventoried or appraised and no reference to it appears in the records of probation.

It is pointed out by the defense that this benefit right under deceased’s contract of membership in the union was no part of his estate, but to him only a power of designation, and urged for that reason, with citation of sustaining decisions from other jurisdictions, that the bare bequest of his entire estate to plaintiff does not entitle her to the death benefit accruing under his membership, as it is not a part of his estate. The decisions cited are chiefly based on the recognized general rule that in respect to the execution of a power by will there should be reference to the subject of it, or to the power itself, except in those cases where the will would otherwise be inoperative and the intention to execute the power becomes clearly manifest. Relying upon those decisions and invoking the technical rule relating to powers, defendant points out that deceased’s will does not mention any power or subject to which it relates, or express any intention in relation to it, while he had other property upon which the will operated. This view was adopted by the trial court, and a verdict directed for defendant, followed by judgment thereon.

Not claiming as a strict proposition of law that this death benefit was a part of deceased’s estate, it is contended for plaintiff that it was a right in relation to property which he was authorized to confer upon a designated beneficiary in prescribed manner during his lifetime; that he was authorized to do so by will, as though it were part of his estate although technically not such; that plaintiff was Ms sole heir under the law of inheritance, rendering a will unnecessary and for all practical purposes inoperative except to exercise by it the authority, or power, given him by his membership contract to designate her as the beneficiary of the death benefit, which the language used in it and attending circumstances clearly indicate was his intent; and urging further that the general rule as to powers relied upon by defendant is not recognized in this State as of controlling application to death benefits provided for by mutual associations, or unions, of this nature under the ruling in Aveling v. Masonic Aid, Ass’n, 72 Mich. 7 (1 L. R. A. 528). In that case the defendant association had issued a certificate of insurance to Robert Aveling payable upon his death to his devisees, or, if no will, to his heirs at law. He left a will disposing of certain described real estate, and “all other property of which I shall die seised, real, personal and mixed, and expressly all money in (certain banks), all bonds and notes and stocks to Richard Aveling,” his brother, nowhere in said will making reference to the insurance, or death benefit certificate, he held from defendant. The will was admitted to probate in Wayne county and plaintiff, having been appointed his administrator cum, testamento annexo, demanded of defendant the sum due on the certificate. ■ This was refused because the will made no mention of the insurance, the right to which under the certificate did not “depend upon the accident of being named in the will as devisee of something else, but that it confers upon the insured a power of appointment, under and by virtue of which he may designate in his will the devisee or devisees of his insurance,” and not being a part of his estate it was not included in a general devise of deceased’s personal property. Of this contention the court there said:

“While, technically speaking, the decedent may not have died seised of this insurance, we are satisfied that he intended to pass his insurance as well as all his other property to the plaintiff.”

The logic of this conclusion necessarily is that, while not technically and as a general proposition of law a part of decéased’s estate, under his special relations with defendant and its character the contract prepared by it ostensibly for his protection should be construed, between the parties, as authorizing him to treat it as an asset of his estate when disposing of it by will. In the instant case the intent is much more manifest, from the instrument itself which makes no mention of any specific items or kinds of testator’s property to the possibly implied exclusion of others, and from the fact plaintiff was both his sole heir and only devisee.

This will was purposeless and could accomplish nothing in respect to deceased’s evident desire to leave his daughter everything he owned or had a right in relation to, except as it served to confer on her his death benefit. He stated in the will itself that his reason for making it was the recent death of his wife who, if she survived him, would have been the beneficiary under defendant’s constitution had he made no designation by will or otherwise. He bethought.himself of his benefit for which he had been paying dues for nearly 30 years and shortly before he made the will .talked upon the subject with the secretary of defendant’s local lodge. Eliminating from consideration all testimony as to this secretary’s admissions of what advice he gave deceased, which his denial makes an issue of fact, and striking out questioned testimony of plaintiff as to what her father showed and told her, which was objected to, we are well satisfied from the unquestioned and undisputed evidence that deceased intended to designate plaintiff in his will as the beneficiary of his death benefit, and believed he had done so.

In Catholic Benefit Ass’n v. Priest, 46 Mich. 429, where the rules of the association provided that a death benefit should be paid “to the person or persons as named by deceased and entered by his order on the will book,” with the right reserved to change the same, a question arose over the right of deceased to change by an ordinary will a previous disposition entered in the will book. Recognizing that this beneficiary fund did not technically become a part of deceased’s estate, or subject to his debts, the court nevertheless held that the will must govern in so far as it named the persons and amounts, saying:

“Very clear and binding provisions must be shown to deprive a person of the right given him by the laws of the land to dispose of such a fund by his last will.”

Deceased’s right in this death benefit required at least 15 years’ faithful membership with payment of dues, which must be continued thereafter as long as he lived in order to retain such right. His contract with defendant as to the disposition of it after his death is embodied in defendant’s constitution, prepared by, or for it, and any obscure provisions are to be most strongly construed against the maker. In the section relating to designation of beneficiaries, it supplementally recognizes in general terms that such designation may be made by will, an instrument in writing popularly and in law recognized as the legal direction or expression of the testator’s wishes as to the disposition of his property and property rights, real, personal or mixed, after his death. In view of the relations of the contracting parties, the subject-matter and assumed character of this benefit association, it does no violence to the language used to construe this authority to designate the beneficiary by will as meaning that, between the parties, for the particular purpose of designation and distribution, the provided death benefit, in its nature personal property, may be included with and regarded as an asset of the member’s estate, although otherwise not technically such.

The technical rule relative to exercise of a power by will, as evolved in the complicated development of that subject, is not in this State imperatively controlling in the disposition of a life benefit of this nature, in its attributes purely personal property. Even at common law the recognized exercise of that power, through the medium of the statute of uses, relates primarily and almost exclusively to real estate, while in this jurisdiction all powers except as authorized by statute are abolished (section 11592, 8 Comp. Laws 1915) and:

_ "A power is an authority to do some act in relation to lands,, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform.” Section 11598, 3 Comp. Laws 1915.

While it is not to be claimed this statute wipes the word "power" from our legal vocabulary with all its varied meanings which lexicographers have accumulated, even in proceedings relating to personal property, it at least frees the word from the magic of bewildering technicalities with which the common law has invested it and renders less significant here the decisions in other jurisdictions which recognize the full force of common-law powers and apply them to personal property rights.

Under the unquestioned facts and circumstances of this case, and the provisions of deceased’s contract with defendant authorizing him in general terms to appoint his beneficiary by will, and it not appearing that he had appointed any other beneficiary, we are satisfied that he intended to and did exercise that right within the meaning of their agreement as fairly interpreted, and by this will has designated plaintiff as such beneficiary. A verdict should have been directed for plaintiff.

The judgment is therefore reversed, with costs, and a new trial granted.

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


author: Bird, J.

text:
    PONTIAC, OXFORD & NORTHERN RAILROAD CO. v. MICHIGAN RAILROAD COMMISSION.
    1. Carriers — Switching Charges — Freight Rates.
    Where the relation of railroads is one of co-operation merely, they are entitled to have sustained a joint rate and a reasonable charge for switching service.
    2. Same — Orders of Michigan Railroad Commission.
    The corporate organization and affairs of the Pontiac, Oxford & Northern Railroad Company being controlled by the Grand Trunk Western Railway Company, although the independent organization of the first named road was maintained, they must be regarded as identical for the purpose of rate making, so that switching charges between them were properly eliminated by order of the Michigan railroad commission.

    Appeal from Ingham; Collingwood, J.
    Submitted October 11, 1917.
    (Docket No. 5.)
    Decided September 28, 1918.
    Bill by the Pontiac, Oxford & Northern Railroad Company and others against the Michigan railroad commission and J. T. Wylie & Company and others, interveners, to review an order establishing freight rates. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      L. C. Stanley (Geer, Williams & Martin, of counsel), for plaintiffs.

      Alex. J. Groesbeek, Attorney General (David H. Crowley, of counsel), for defendant commission.

      See note in L. R. A. 1918A, 164.

   Bird, J.

J. T. Wylie &- Company, manufacturers of certain forest products, together with other companies similarly engaged, filed their petition with the Michigan railroad commission complaining of certain tariff rates on such products in force on the several lines of railway in Michigan which go to make up what is known as the Grand Trunk Railway System, and praying for a reduction thereof. A hearing followed, testimony was takeif and a conclusion reached by the commission that the rates complained of were too high, unreasonable and out of proportion to the rates charged by other railroads for similar service, and a reduction of the line rate was ordered and switching charges as between themselves were altogether eliminated.

Conceiving themselves aggrieved at the order of ■ the commission they filed a bill in equity to review it. On review in this court the contentions of plaintiff have been narrowed to the following:

(1) The Pontiac, Oxford & Northern is a separate and distinct railroad company for the purpose of rate making, notwithstanding the fact that its stock is substantially all owned by or held in trust for the Grand Trunk Western; it is proper for the plaintiff and appellant to treat the former company as not a part of the Grand Trunk Railway System, but whether it is so treated or not is immaterial for rate making purposes, that system being merely a trade-name for certain railroad companies having interests more or less in common.
(2) The switching charges scheduled in the tariffs of the Pontiac, Oxford & Northern and the Grand Trunk Western as between their respective roads are proper and legal, and it was beyond the power of the Michigan railroad commission to order the elimination of such charges.

Plaintiff contends that the provision of the Michigan railroad commission’s, order that the Pontiac, Oxford & Northern and the Grand Trunk Western eliminate all switching charges between themselves, was and is legally unwarranted, wholly beyond any power vested in the commission, and that it is unjust, unreasonable and confiscatory as requiring said railroad companies to perform switching services wholly without remuneration. Further that the commission considered the aggregate sum of the line rate and the switching charges, whereas it should have considered these items separately.

Defendant meets this contention by the claim that the stock of the Pontiac, Oxford & Northern Railroad Company is owned by the Grand Trunk Western Railway Company and is operated and controlled by it and for the purpose of rate making it should be considered a part of the Grand Trunk Western.

If plaintiffs are right in their contention that the relations of the Pontiac, Oxford & Northern and the Grand Trunk Western Railway Company are one of co-operation merely, they are entitled to have sustained a joint rate and a reasonable charge for switching service. On the other hand, if defendant’s contention is the proper one, neither road would be entitled to make a charge for switching services, and the order of the commission should be affirmed.

In order to determine which contention should prevail it will be necessary to consider at some length what the relations are between the Grand Trunk Western and the Pontiac, Oxford & Northern.

It appears from the record that the Grand Trunk Railway Company of Canada has secured control of several Michigan railroads and operates them in connection with its own under the trade-name of the “Grand Trunk Railway System.” Both the Grand Trunk Western and the Pontiac, Oxford & Northern, the railroads directly involved in this controversy, are a part of that system. The Pontiac, Oxford & Northern is a railway wholly within the State of Michigan extending from the city of Pontiac to Case-ville, something over 100 miles. It connects and exchanges traffic with the Grand Trunk Western at Im~ lay City and with the Detroit, Grand Haven & Milwaukee, another line controlled by the Grand Trunk, at Pontiac. In 1909, the entire capital stock of the Pontiac, Oxford & Northern was purchased by the Grand Trunk Western, and immediately thereafter announcement was made of the purchase by Mr. Chas. M. Hayes, president of all railroads constituting the Grand Trunk System. The announcement was in the following form:

“Grand Trunk Railway System,
“Grand Trunk Western Railway:
“Detroit, Michigan, December 1, 1909.
“The Pontiac, Oxford & Northern Railroad has passed under the control of this company. The jurisdiction of all officers of the respective departments of this company is hereby extended to that railway, effective December 1, 1909.
■ “Chas. M. Hayes,
“President.”

Since that date the Pontiac, Oxford & Northern has been operated as a part of the Grand Trunk Railway System. The general officers of the Grand Trunk Western have been the general officers of the Pontiac, Oxford & Northern. The officers of the Grand Trunk Railway Company of Canada have looked after and paid its taxes, done its financing and absorbed its losses or deficits, and the road has been treated in the same way that it would have been had the Grand Trunk Western owned its assets. At the hearing Mr. George W. Alexander, secretary of the Pontiac, Oxford & Northern and the Grand Trunk Western, testified, upon cross-examination, as follows:

“Q. As a matter of fact, inasmuch as it is a losing proposition that the Grand Trunk has, because of its general interest, assumed the losses, the proposition of having independent existence is merely a matter of bookkeeping, isn’t it? -
“A. It is run in the same way as it would if owned by the Grand Trunk Western, the losses that accrue they pay. They assumed the bonds and to keep it away from the bond holders they have to pay its debts.
“Q. It comes down merely to the proposition of difference in bookkeeping?
“A. The result would be the same.”

The Pontiac, Oxford & Northern Railroad, however, maintains an independent organization. It is assessed separately by the State, makes reports to the State and maintains its own roadbed and equipment and has its own employees.

But the attorney general argues that notwithstanding these independent features the road is absolutely controlled and managed by the Grand Trunk Western, that the will of the Grand Trunk Western is the will of the Pontiac, Oxford & Northern, and that this control under the authorities creates a relation which justifies the commission in considering the Pontiac, Oxford & Northern as a part of the Grand Trunk Western for the purposes of rate making. This contention appears to be supported by two recent cases, one of which has been reviewed by the Federal Supreme Court. State v. Railway Co., 133 Minn. 413 (158 N. W. 627); Minneapolis Civic & Commerce Ass’n v. Railway Co., 134 Minn. 169 (158 N. W. 817).

In the case first cited the question. discussed is whether the Chicago & Northwestern Railway Company was entitled to maintain a joint rate with the Chicago, St. Paul, -Minneapolis & Omaha Railway Company. It was shown that the Northwestern owned nearly 51 per cent, of the stock of the Omaha and that the officers and directors were the same, and that the Omaha was operated as a part of the Northwestern system. The Omaha, however, maintained a separate organization, maintained its own roadbed and equipment and had separate employees.

In the last case-cited the Chicago, Milwaukee & St. Paul Railway and the Chicago, St. Paul, Minneapolis & Omaha Railway each owned one-half of the stock of a terminal railroad serving certain industries in the city of Minneapolis. The terminal railway maintained a separate organization but its officers were either those of the owning companies or friendly to those companies. The terminal company was used by the Milwaukee and the Omaha in connection with their lines of railway on the same terms. The question arose as to whether the terminal, under these circumstances, was entitled to maintain a switching charge for carload freight either delivered to or received from the Milwaukee and Omaha lines. The questions discussed in these cases are similar to the one involved in this case, and in each one it was urged by the stockholding companies that ownership alone of capital stock in one corporation by another does not create an identity of corporate interests between the two companies, or render the stockholding company the owner of the property of the other. To this proposition the following cases were cited, which are also cited in plaintiff’s brief in this case: Pullman’s Palace Car Co. v. Railway Co., 115 U. S. 587 (6 Sup. Ct. 194); Peterson v. Railway Co., 205 U. S. 364 (27 Sup. Ct. 513); United States v. Delaware & Hudson Co., 213 U. S. 366 (29 Sup. Ct. 527); Interstate Commerce Commission v. Stickney, 215 U. S. 98 (30 Sup. Ct. 66); United States v. Railroad Co., 238 U. S. 516 (35 Sup. Ct. 873).

Afterwards, on review of the Milwaukee case against the terminal company in the Supreme Court of the United States (247 U. S. 490 [38 Sup. Ct. 553]), the same argument was made and the same authorities cited. In disposing of this contention Mr. Justice Clarke said in part:

“While the statements of the law thus relied upon are satisfactory in the connection in which they were used, they have been plainly and repeatedly held not applicable where stock ownership has been resorted to, not for the purpose of participating in the affairs of a corporation in the normal and usual manner, but for the purpose, as in this case, of controlling a subsidiary company so that it may be used as a mere agency or instrumentality of the owning company or companies. (United States v. Railroad Co., 220 U. S. 257 [31 Sup. Ct. 387]; United States v. Railroad Co., supra). In such a case the courts will not permit themselves to be blinded or deceived by mere forms of law but regardless of fictions, will deal with the substance of the transaction involved as if the corporate agency did not exist and as the justice of the case may require.”

The rule which appears to be established by these cases is that where the corporate organization and affairs of one railroad company are controlled and dominated by another railroad company through ownership of stock or lease, the roads must be regarded as identical for the purpose of rate making.

The relations of the Northwestern Railway Company and the Omaha Railway Company, and .the relations of the Milwaukee and Omaha companies with the terminal company are substantially the relations of the Grand' Trunk Western and the Pontiac, Oxford & Northern Railroad Company. While it is true that the Pontiac, Oxford &• Northern maintains a separate corporate organization, that organization is controlled and dominated by the Grand Trunk Western, and in turn its organization is controlled by the Grand Trunk Railway Company of Canada, which owns or leases, directly or indirectly, all the lines which make up the Grand Trunk Railway System.

We are of the opinion that the relations of these railroads as shown by the record justified the railroad commission in considering them as identical for the purpose of rate making. '

The order of the commission will be affirmed.

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


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    ABBOTT v. ABBOTT.
    1. Divorce — Extreme Cruelty — Condonation—Evidence.
    Although plaintiff had condoned defendant’s act in communicating to her a venereal disease, and was thereby estopped from reviving the cause in the absence of subsequent misconduct, nevertheless it was an element competent for the court to consider in weighing their conflicting testimony as to her health and defendant’s subsequent dissolute tendencies, neglect and loss of affection, and association with women of questionable reputation, supporting the decree of divorce on the ground of extreme cruelty.

      See notes in 4 L. R. A. (N. S.) 909; 5 L. R. A. (N. S.) 729; 44 L. R. A. (N. S.) 1003.

      2. Same — Alimony—Lien.
    An allowance of $5 per week as alimony, the same being made a lien on defendant’s real estate, including a lot standing in their joint names as tenants by the entireties, which by the decree was to vest in and be the sole property of defendant on compliance therewith, he being a young man in robust health and earning $15 a week, held, not excessive.
    3. Same — Modification of Decree — Default.
    While it may be questionable whether it is for the best interest of either party to hold unproductive property tied up indefinitely, and a modification of the decree might be advisable on a proper showing of compliance therewith, defendant is in no position to move therein while in default.
    Appeal from Kalamazoo; Weimer, J.
    Submitted April 24, 1918.
    (Docket No. 68.)
    Decided September 28, 1918.
    Bill by Grace Abbott against Charles A. Abbott for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Hurry C. Howard, for plaintiff.

      Alfred S. Frost, for defendant.
   Steere, J.

On September 16, 1916, plaintiff filed a bill for divorce against defendant in the circuit court of Kalamazoo county charging extreme cruelty and on March' 15, 1917, obtained a decree in accordance with the prayer of her bill. The parties to this suit were married on November 21, 1907, in Kalamazoo, Michigan, residing there during their married life together, and separated permanently on September 4, 1916, he going to Detroit where he has since lived. When they were married she was 23 years of age and he over 21. He was then an electric car conductor, and she living with her parents. No children were born to them. For the first five years of their married life they made their home with her parents he paying rent for their rooms and his own board when there, while she helped her mother in the household, and no charge was made for her board. He at times ran upon an interurban line and would then necessarily be away from home nights a portion of the time. In company with other employees of the road he had apartments in Albion, one of the cities on the interurban line, and apparently began a course of fast living which ultimately led to his arrest under a charge of embezzlement and conviction on his plea of guilty, which terminated his career as a railroad employee. He then engaged in the grocery business in Kalamazoo and they set up housekeeping by themselves. He ran a small grocery with indifferent success for about two years and a half, after which he followed jitney driving until he left for Detroit.

Just what means, if any, defendant had at the time they were married is in dispute and not made clear, but when they separated he owned in his own name a lot in Kalamazoo valued at $400, a cottage and lot at a resort nearby on Crooked Lake, valued at $700, standing in his name, but in which he claimed, and plaintiff denied, that his father owned a half interest, and a lot in Kalamazoo valued at $600 standing.in both their names as owners by entirety. She had in her possession household effects partly purchased by him and partly given by her parents worth from two to three hundred dollars, and something over $150 of old grocery bills due him from the time he was in that business, of which she claims she was able to collect only between $11 and $12. He claimed to have been in debt about $150 when he left Kalamazoo.

She charges in her bill as grounds of divorce that during their married life he commenced a course of “unkind, harsh, cruel and brutal conduct” consisting of neglect, infidelity, and unkind words and acts when they were together, asserting in harsh language he was not going to longer live with her, etc., until she was finally compelled to and did separate from him in consequence thereof on the 4th day of September, 1916; that in his general conduct he was untrue to his marriage vows, associated with women of doubtful character against her protest, to which he would reply it was “none of her business”; and as a result of his conduct in that regard he contracted and communicated to her a venereal disease which caused her great humiliation, suffering and annoyance, seriously impairing her health.

He filed an answer, with cross-bill asking that a divorce be granted him, denying her charges, except the communication of a venereal disease which he claims was condoned, and charged as ground for the relief asked by him unseemly conduct on her part towards other men, and extreme cruelty in extravagance, idleness, failure to properly care for their home, refusal to live with him, and the fact that she took advantage of a visit by him to Kalamazoo for the purpose of seeing and persuading her to go to Detroit and live with him, to serve papers upon him in her divorce suit, of which she had given him no previous intimation.

It seems evident both from the pleadings and proofs in this case that reconciliation is past possibility. Some carefully worded correspondence between them after he went to Detroit, touching her joining and living with him there, savors too strongly of sparring between them for legal position to call for serious consideration. Both parties ask a decree of divorce, the minor question, at least with defendant, being to which of them it should be granted, with his major grievance the amount of alimony awarded to her.

The issues are in the main purely of fact, and each of the parties impresses us as testifying in the extreme to the bad qualities of the other. To detail the volume of accusing testimony this record furnishes would be an unwholesome and useless thing, serving no beneficial purpose, but we fully agree with the trial court that defendant has failed to make a case for divorce in his favor against plaintiff, whose good reputation and character in the community appears to be well sustained.

It is urged for defendant as a legal proposition that the communication of a venereal disease to plaintiff, which is not denied by defendant, was condoned through her continuing to live with him in marital relations for some years after she knew the fact, authorities being cited which tend to sustain the general proposition. This standing alone might present a serious question; but the drift of the testimony as a whole tends strongly to show that the wreck of their married relations and resultant estrangement was his inclination to lead a fast life and predilection for women of doubtful morality, as to which her credulity and confidence in him made deception on his part easy until finally his conduct became such that her faith in his rectitude and marital fidelity was shattered, particularly after he engaged in jitney driving.

Plaintiff became afflicted and discovered she had contracted a venereal disease from him about two years after they were married. With and in consequence of this she suffered greatly and ultimately was compelled to undergo a serious surgical operation. She testified that he admitted his condition and the result to her, but claimed he had contracted the disease in the use of a public convenience and was sinless and, until convinced to the contrary, she believed that they were equally innocent victims of circumstances over which they had no control, suffering together in mutual sympathy. His version is that he had contracted the malady before he was married, and, having undergone five or six months’ treatment, was, as he supposed, entirely cured, but it came on him again about the time she developed the same condition,' and although he never told her before they wer.e married that he was so afflicted he did so later, but not with the excusing particulars she claimed.

If she, with full understanding of the true facts, forgave the wrong he had done her, accepted the situation, and elected to continue the marriage relations for several years thereafter, it may be conceded that, in the absence of any subsequent misconduct on his part giving new ground for divorce, she might be estopped from reviving the cause she had thus understandingly condoned, but here she claims to have been persuaded by him that he had done no intentional wrong and they alike were innocent sufferers; that, believing him blameless, she accepted their misfortune as he represented it and only continued to live with him until subsequently undeceived, although her health was permanently impaired as a consequence of what then befell her. Her mother testified that defendant at first claimed to be suffering with a-laceration of the bladder, but afterwards admitted his true condition and excused it as the return of a pre-nuptial affliction of which he supposed he was cured before marriage; that plaintiff refused to believe he was to blame, felt sorry for him and continued to live with him until their final separation, “because she thought so much of him, you could not make her believe he was to blame.”

Rejecting this episode in their domestic relations as a sole or distinct legal ground of divorce because condoned, it nevertheless was at least an element in their married life competent for the court to consider in weighing their conflicting testimony as to her health and defendant’s subsequent dissolute tendencies, neglect and loss of affection for his wronged wife, and charged association with women of questionable reputation. There is abundant competent testimony in the case which, if true, and we are impressed that it is, supports the decree granting a divorce to plaintiff on the ground of extreme cruelty.

The court awarded costs to plaintiff, including an attorney fee of $75 and $18.50 expenses of suit, with alimony in the sum of $5 per week, the same being made a lien on his real estate, including the lot standing in their joint names as tenants by entirety, as to which the decree provides , that the title shall, “if said sums are promptly paid, vest in and be the sole property of defendant.”

A petition was filed by defendant for modification of the decree as to. alimony, which was denied and of which the court said in part:

“The defendant complains of the provisions by the terms of which alimony should be made payable at regular intervals for an indefinite period, and urges upon the court the propriety of an order requiring the defendant to pay a lump sum in lieu of alimony, or a division of the property.
“The defendant is comparatively a young man, in the vigor of life, strong and alert physically and mentally and capable of making a good livelihood for himself.
“The plaintiff is not in robust health and her condition I am satisfied is due, to some extent at least, to a loathsome disease transmitted to her by the defendant.
“The separation of these parties is the result of serious misconduct on the part of the defendant. The plaintiff has just cause for complaint of serious wrongs. She is entitled to substantial aid from him as long as she may be in need of it, in my opinion.
“The property is not of such a character or value that any division could be made that would admit of that provision for plaintiff to which she is entitled.”

We are not prepared to hold this award excessive under conditions shown. It is not unusual to make such charges a lien upon a defendant’s real estate. Defendant was earning about $15 a week at the time of the decree and has failed to comply with its requirements. By reason of such unexcused default he is not in an advantageous position to move its modification. It is true, as he contends, that without some modification, no matter what or how promptly he pays, he cannot release the property from the continuing lien for alimony imposed, dispose of or raise money on it even to pay the alimony, nor obtain any benefit from the provision relative to the lot in their joint names eventually becoming his sole property. It may be questionable whether it is for the best interests of either party to hold this unproductive real estate with accumulating taxes thus tied up indefinitely. It would seem possible, if not probable, that a modification of the decree in that particular might be advisable, on a proper showing of compliance with its requirements up to the time of application; but as the case now stands, with defendant in default, we are not prepared to disturb the decree of the trial court.

It will stand affirmed, with costs to plaintiff.

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


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    DEAL v. SNYDER.
    Automobiles — Contributory Negligence — Negligence — Highways and Streets — Motor Vehicle Law.
    Where plaintiff alighted from an automobile standing slightly to the west of the center of the traveled track, and started to the east to cross the road without looking, when he was struck and injured by defendant’s automobile which approached from the south, he was guilty of contributory negligence precluding recovery, although defendant was concededly negligent in violating the statute by passing to the right of the standing car.
    See notes in 38 L. R. A. (N. S.) 491; 42 L. R. A. (N. S.) 1183. 203—Mich.—18.
    Error to Eaton; Smith, J.
    Submitted April 17, 1918.
    (Docket No. 105.)
    Decided September 28, 1918.
    Case by John H. Deal against Walter Snyder for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Rosslyn L. Sowers and Elmer N. Peters, for appellant.

      Frank A. Dean and Claude J. Marshall, for appellee.
   Bird, J.

In the summer of 1916 plaintiff was employed as a farm laborer on the farm of John Locke, in the township of Benton, Eaton county. The farm lies along the east side of a north and south “State reward” highway. Plaintiff resided in the tenant house about 60 rods south of the Locke dwelling and barns. In returning to his work after dinner on July 17th he rode with a Mr. Murray, a neighbor who was driving an automobile of the roadster type. When they arrived opposite Mr. Locke’s barns Murray stopped the car a little to the west of the center of the traveled tra^k and plaintiff got out on the right side where he had been riding. After closing the door he took a step or two toward the east when he was run into, knocked down and run over by defendant’s automobile which approached, from the south and passed the Murray car on the right side, with the result that plaintiff was severely injured.

The declaration charged defendant with operating' his car in a reckless and negligent manner in violation of the statutory provisions of the automobile law. Excessive speed, failure to give warning of his approach and the passing of the Murray car on the right instead of on the left are counted upon as negligent operation. The jury found defendant guilty of negligence and awarded plaintiff the sum of $3,150 by way of compensation.

Defendant’s assignment of errors raises a large number of questions affecting the defendant’s negligence. The question of plaintiff’s contributory negligence is also raised. We think this is the controlling question in the case. Plaintiff’s own testimony is important on this question. Upon cross-examination he testified as follows:

“I could see and hear good. The house I occupy is the tenant house on the Locke farm and across the road from where he lives, something like 60 rods south. The Watts house is about 60 rods south of the house I live in as near as I can get at it. It is something like 120 rods from where this accident occurred to the Watts house. This was in broad daylight, about one o’clock in the afternoon, a very clear, bright day. From Watts’ place clear down to where I w;as hurt the road was clear and any one could see any person that was in the road if they had looked at all, see them perfectly plain.
“Q- In other words, Mr. Snyder could have seen that car you were riding in if it was in the road any time after he broke over the hill by Watts’ place?
“A. Yes, sir.
“Q. And you could have seen Snyder’s car any time from the time it broke over the hill by Watts’ place » until it hit you, had you looked?
“A. No, sir; I didn’t look to see if there was any car coming back of me.
“Q. Had you looked you could have seen it?
“A. If I had looked?
“Q. Yes.
“A. I presume I could have looked and seen it if I had looked.
“Q. Don’t you know you could?
“A. Sure I could if I looked.
“Q. But you didn’t look?
“A. No, I didn’t. I didn’t see it at all before it hit me, and didn’t even see it when I got into the Murray car. I didn’t even see Watts when I got into the Murray car; in fact I didn’t look that'way at all. If I had looked that way at any time I could not have helped seeing Snyder. Murray stopped his car and let me in a little bit north of my house; the car was a runabout, one seat, room for two passengers. He drives from the left hand side. It is not a noisy car, doe's not make any more noise than a Ford. The back curtain of the top was rolled up, so my view of the road was not obstructed by the curtain particularly, nothing to prevent me looking back before I got out.”

No error was committed in submitting to the jury the question of defendant’s negligence, but even though it be conceded that defendant was violating the provisions of the statute in -operating his car as he did, it was the duty of plaintiff to avoid injury to himself if he could do so by the use of ordinary care. The ordinary care which the law demands of one in the public highway similarly situated is to look before attempting to cross. This he admits he did not do, When plaintiff admits that the slightest glance upon his part would have averted the accident, the law cannot aid him even against one who is concededly negligent. This is the doctrine of the following cases and this case must be ruled by them: Zoltovski v. Gzella, 159 Mich. 620 (26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752); Gibbs v. Dayton, 166 Mich. 263; Tolmie v. Taxicab Co., 178 Mich. 426; Ude v. Fuller, 187 Mich. 483; Barger v. Bissell, 188 Mich. 366; Fulton v. Mohr, 200 Mich. 538; Hill v. Lappley, 199 Mich. 369.

The judgment must be reversed, with no new trial.

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


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    REICHLE v. DETROIT UNITED RAILWAY.
    1. Street Railways — Crossing Accident — Contributory Negligence — Personal Injuries.
    Where plaintiff stopped his automobile before crossing defendant’s street car track, and looked, and there was no street car within 250 feet, the range of view, he was not guilty of contributory negligence, as a matter of law, in proceeding to cross, when he was struck and injured by defendant’s car.
    2. Same.
    Where plaintiff, after he saw that a collision was inevitable, elected to receive a glancing rather than a direct impact, by turning to the right instead of continuing across, he was not as a matter of law, guilty of contributory negligence.
    3. Same — Contributory Negligence — Question eor Jury.
    Whether plaintiff stopped his car so far back as to make looking useless as a precaution, or whether he was careless and negligent in his observations were questions of fact for the jury.
    4. Same — Negligence—Assumptions.
    Plaintiff had a right to assume that if a street car were approaching at or beyond the 250-foot view, it would not be operated over and across a mucb traveled street at a speed in excess of 30 miles an bour.

      See note in 32 L. R. A. (N. S.) 266.

      5. Trial — Instructions—Context.
    In an action against a street railway company for personal injuries caused by a collision between defendant’s car and plaintiff’s automobile, an instruction that “it is likewise tbe duty of tbe railway * * * to exercise reasonable care ‘and’ to provide those things that will * * * insure * * * tbe safety of tbe public,” it being in dispute whether tbe word “and” was used, held, that even if used, tbe meaning was made clear by tbe context.
    Error to Wayne; Des Voignes, J., presiding.
    Submitted April 23, 1918.
    (Docket No. 103.)
    Decided September 28, 1918.
    Case by Louis Reichle against the Detroit United Railway for personal injuries and damage to his automobile. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody (William G. Fitzpatrick, of counsel), for appellant.

      Lodge & Brown, for appellee.
   Bird, J.

Plaintiff’s automobile came in collision with defendant’s trolley car at the intersection of Can-field avenue and Beaubien street in the city of Detroit, resulting in an injury to himself and damage to his machine. The salient facts in connection with the collision are: That plaintiff was driving, about dusk, in an easterly direction on Canfield avenue with his family and some friends. When approaching Beaubien street, which crosses at right angles, he slowed down and stopped from 20 to 25 feet from the west rail of defendant’s track. Defendant’s line on Beaubien street is a single track and cars are operated in a southerly direction only. Plaintiff was familiar with the situation and looked to the north and neither saw nor heard an approaching car. He started his car and after shifting into second speed he looked again and saw a car approaching rapidly and only 50 feet away. Doubting his ability to clear the car by going directly across he turned it to the right preferring to receive the impact by a glancing blow rather than a direct one. The fender of the trolley car engaged the running board of his machine and carried it upwards of 160 feet before it-came to a stop. The testimony tended to show that the' car was being operated over the intersection at the rate of 30 miles an hour, and that its speed was not slackened after the motorman had opportunity to observe the plaintiff’s position was one of peril.

Excessive speed, failure to give warning of its approach and a failure to slacken the speed of the car after discovering plaintiff’s position are all counted on as grounds of negligence. The case was given to the jury on the question of defendant’s negligence and the plaintiff’s contributory negligence. They found a verdict for plaintiff in the sum of $1,500.

Was defendant guilty of negligence? Counsel very frankly concedes that as the record stands this question was one of fact for the jury. It will, therefore, be unnecessary to give it further attention.

Was plaintiff guilty of contributory negligence? It appears that from the point where plaintiff stopped his car he could see north on Beaubien street not to exceed 250 feet by reason of a building on the northwest corner of the intersection which stood flush with the street line. He testifies that he looked and saw no car. Neither did he see a headlight and, therefore, concluded the way was clear. He proceeded on his way and after getting his car started and in second speed he looked again when his car was within four or five feet of the west rail, and saw a street car approaching rapidly and within 50 feet of him. He con-eluded he could not avoid a collision and therefore turned to the right in order to avoid a direct blow. When plaintiff stopped his car and looked and listened he appears to have been within the rule of ordinary-prudence heretofore laid down many times by this court. To proceed across a street railway track where there is no car within 250 feet, nor within view, can hardly be said, as a matter of law, to be at variance with what the average driver of ordinary prudence would do under similar circumstances. Neither can it be said, as a matter of law, that plaintiff was guilty of negligence in electing to receive a glancing rather than a direct impact. Subsequent events seem to verify the wisdom of his election.

But counsel say that plaintiff either stopped his car so far back as to make looking useless as a protection, or if he stopped his car where he said he did he was careless and negligent in his. observations. If these points are based upon any testimony in the case they are within the domain of fact. The court cannot say, as a matter of law, that plaintiff’s conduct in those respects was negligent.

In testing plaintiff’s conduct the jury were entitled to consider another phase. It is the experience of every traveler upon the highway that he is constantly shaping his course upon the assumption that other travelers, whether by foot or by vehicle, will do the thing which is usually done by reasonably prudent travelers (Tiley v. Railway, 190 Mich. 7; Prince v. Railway, 192 Mich. 194; Travelers’ Indemnity Co. v. Railway, 193 Mich. 375; McManigle v. Railway, 193 Mich. 530), and therefore we think plaintiff had a right to assume that if a street car were approaching at or beyond the 250-foot view, it would not be operated over and across Canfield avenue, which the record shows is a much traveled street, at a speed in excess of 30 miles an hour.

During the course of the charge the court used the following language:

“It is likewise the duty of the railway, whether street or steam, to exercise reasonable care and to provide those things that will in a measure insure, as far as possible, the safety of the public, and those who use our streets and public ways.”

Counsel observes that the law imposes no such degree of duty on the defendant in the case at bar. Counsel for plaintiff suggests that the word “and” following the word “care” has crept into the record through some error in transcribing, and that with this eliminated what the court said would be the law. We are inclined to the opinion that if the word was actually used by the court the meaning is made clear by the context.

We have examined the other errors complained of and are of the opinion that they , aré not well taken.

The judgment of the trial court is affirmed.

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


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    F. M. SIBLEY LUMBER CO. v. DORAN.
    Mechanics’ Liens — Burden of Proof — Evidence—Sufficiency.
    In proceedings to enforce a mechanic's lien, held, that plaintiff had failed to furnish the burden of proof that the lien was filed within 60 days after the last of the materials was furnished.
    See note in 49 L. R. A. 236.
    Appeal from Wayne; Withey, J., presiding.
    Submitted April 18, 1918.
    (Docket No. 120.)
    Decided September 28, 1918.
    Bill by the F. M. Sibley Lumber Company against David Doran and others to enforce a mechanic’s lien. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Leo P. Rabaut (Lyle G. Younglove, of counsel), for plaintiff.

      James H. Pound, for defendants Doran.
   Bird, J.

Plaintiff furnished lumber and materials to defendant Wilson with which to erect a dwelling house for defendants David and Ella Doran on Distel avenue, in the city of Detroit. The estimated cost thereof was $4,400. In order to secure the balance due upon this contract plaintiff filed a statement of lien on April 25, 1914. It appeared at the hearing that the first of the materials was furnished on October 28, 1913, and that the last was furnished on February 2, 1914. These dates of delivery were shown by a statement which had been made by the bookkeeper from the receipted delivery slips. At the conclusion of the proofs defendants’ counsel made the point that the statement of lien was filed more than 60 days after the last of the materials was furnished and therefore the lien was invalid. This led to some discussion between counsel, after which the chancellor held that the filing was too late, consequently there was no lien.

Later a motion for rehearing was filed, argued, and granted. Further proofs were taken bearing upon the actual date the last of the materials was furnished. Plaintiff, to establish its contention that an error was made in copying the receipted delivery slips, produced them. The slip in question bore date of February 24th. The bookkeeper of plaintiff testified that the last slip was copied by him as February 2d, whereas it should have been the 24th of February. Other delivery slips were produced showing deliveries on February 4th and 5th, which were numbered respectively 4768 and 4805, whereas the slip in question was number 5032. It was' argued from this that number 5082 must have been made at a later date than February 2d because the slips, were numbered consecutively by a registering machine.

In opposition to this contention, defendants testified they moved into the house on February 12th, and that no materials were furnished after that date. Their testimony in this respect was corroborated by no less than six witnesses, some of whom were members of their family while others were their neighbors.

The explanation of the error by the bookkeeper of plaintiff appears to be reasonable and convincing. The testimony of defendants and their witnesses is also convincing. The materials which appear to have been the last delivered were several feet of pordh rail. The absence of several feet of porch rail would be something which would likely be noticed by the members of the family as well as the act of Wilson or his foreman in supplying it. Therefore, there is not much chance for them to be mistaken in their testimony. If plaintiff is right in its contention these parties must have deliberately falsified concerning it. To say the least, the question is involved in serious doubt. It was the duty of plaintiff to furnish the burden of proof upon this question. We think it haá failed to meet this burden and therefore its case must fail. The conclusion reached by the chancellor must be affirmed, with costs to the defendants Doran.

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


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    VILLAGE OF OTSEGO v. ALLEGAN COUNTY GAS CO.
    1. Contracts — Gas—Municipal Corporations — Franchise.
    A franchise for a gas company voted by the, people of a village and afterwards accepted by the company constituted a contract between the parties.
    2. Same — Gas Rates — Meter Charges — Construction of Franchise.
    Where the franchise provided that the rate for gas should not exceed $1.25 per thousand cubic feet, and that meters should be furnished free to the consumer, but that in case no gas was used and the occupant wished to retain the' meter he' should pay 75 cents per month minimum charge, held, no authority to charge a minimum rate of 75 cents per month where gas was used.

    3. Same — Breach of Contract — Reasonableness of Rate.
    Where the franchise fixed the rates for gas, the reasonableness of a proposed minimum rate in violation thereof will not be considered by the courts.
    Appeal from Allegan; Perkins, J., presiding.
    Submitted April 19, 1918.
    (Docket No. 43.)
    Decided September 28, 1918.
    Bill by the village of Otsego against the Allegan County Gas Company to enjoin the collection of illegal charges. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Wilkes & Stone, for plaintiff.

      A. H. By all, for defendant.

      See note in 26 L. R. A. (N. S.) 1109.

   Bird, J.

In July, 1911, the village of Otsego voted by a three-fifths vote to grant to one C. A. Runyan a franchise to erect and operate a gas plant in the village for a period of 30 years. On July 29, 1911, the franchise was accepted in writing by the said Runyan and filed with the village clerk. Soon thereafter the franchise was assigned by Runyan to the defendant. Defendant installed the plant and has been furnishing gas to the people of Otsego for five years and upwards, as is claimed, in accordance with the terms of the franchise. In February, 1917, defendant addressed a letter to its patrons, notifying them: “That on and after March 1, .1917, the Allegan County Gas Company will expect a minimum return of seventy-five cents per month from each of its meters,” and advising them that this was made necessary by reason of the increased cost of materials and labor. The village authorities took the view that this charge was an illegal one and not justified by the franchise. This suit was filed to enjoin defendant from enforcing the collection of the increased rate. The sections of the charter which are material to the questions involved are the following:

“Section VIII. — Rates.—The rights and privileges herein granted are upon the express condition that said grantee and his assigns shall furnish merchantable^ illuminating and heating gas to consumers, according to the provisions herein, and shall not charge or receive any higher rate for gas furnished the inhabitants of said village of Otsego than the following, to wit: _ (a) Until the village of Otsego shall attain a population of ten thousand (10,000) people the rate shall be not to exceed one dollar and twenty-five cents ($1.25) per thousand cubic feet. * * *
“VI. — All meters used for the purpose of furnishing gas for any purpose shall be furnished by said grantee and assigns, free of charge. Said grantee and assigns may remove meters from the premises of any person occupying same, providing no gas has been used for the period of a month; but if the occupant of such premises shall pay seventy-five (75) cents per month minimum charge, such meter or meters shall not be removed by the said grantee or assigns.”

Plaintiff’s construction of these franchise provisions is that the maximum price of gas is fixed and definite and therefore whether much or little gas is used in a month, no more than the contract rate can be legally charged therefor. That no meter charge can be made except the one provided for in the franchise.

Defendant contends that it has a right to make the minimum charge, and gives the following reasons in support thereof:

“1st. Because the right to make a. minimum charge is expressly recognized in the sixth paragraph of the franchise.
“2d. Because to hold that this minimum charge could not be made would result in requiring consumers who use no gas to pay the charge in question, while those who used some gas would be relieved of it.
“3d. Because the defendant has the inherent right to make reasonable charges of this sort, unless clearly restricted by the terms of its franchise or by other legislation, and there is nothing in the franchise which specifically forbids the making of a minimum charge.
“4th. Because the fact that a franchise forbids the making of a meter rental negatives any intention to prohibit the making of other reasonable charges, such as the minimum charge in question.”

The chancellor who heard the case was persuaded that the contentions of plaintiff should prevail and a decree was made enjoining defendant from putting the increased rate into effect.

Defendant’s assignee was desirous of obtaining a franchise from plaintiff to install and operate a gas plant. The franchise was voted by the people and afterwards accepted by him. The relations of these parties are therefore one of contract. 28 Cyc. p. 880; City of Traverse City v. Telephone Co., 195 Mich. 373.

The contract is not ambiguous. It plainly states that “the rate shall be not to exceed one dollar and twenty-five cents ($1.25) per thousand cubic feet.” If the consumer uses four hundred feet of gas in a month at the rate stated he would owe the company fifty (50) cents. If, instead, he be'charged seventy-five (75) cents therefor he is charged a rate in excess of $1.25 per thousand cubic feet, and this the contract forbids. To give the contract the construction contended for by counsel it would be necessary to read into it, “that consumers using less than six hundred feet in any month will be charged a minimum fee therefor of seventy-five (75) cents.”

Counsel, however, argues that section VI authorizes a minimum charge for gas of seventy-five (75) cents, that the meter must be furnished free of charge, and that if no gas is used in any given month the meter may be removed, unless the consumer pays the minimum charge of seventy-five (75) cents for gas. Section VIII deals with the price of gas and fixes the price definitely. Section VI deals with meters. Had this been the intention it would doubtless have been expressed in paragraph VIII, which fixes the price to be paid for gas. Having dealt with it in the paragraph devoted to meters, it is fair to assume that the charge has reference to meters and not to gas. We cannot accept counsel’s argument that a meter charge is forbidden by section VI. A meter charge is not forbidden by section VI in a certain contingency. The meter in the first-instance must be furnished free to the consumer and he may use it free of charge as long as he uses some gas each month. If he desires to retain it, without using any gas, he must pay seventy-five (75) cents per month, or be deprived of it. In other words, the consumer is furnished a mechanical device free. He may retain it in one of two ways; either by taking gas each month, or paying seventy-five (75) cents each month. Under such a regulation we think the average mind would conclude that he was paying a meter rental rather than a minimum price for gas. This was the conclusion of the parties to the contract and they dealt with each other, for upwards of five years on the theory that this was the proper interpretation of the contract. In support of this construction, see Montgomery Light & Power Co. v. Watts, 26 L. R. A. (N. S.) 1109 (165 Ala. 370, 51 South. 726, 138 Am. St. Rep. 71); Louisville Gas Co. v. Dulaney & Alexander, 36 L. R. A. 125 (100 Ky. 405, 38 S. W. 703).

Much argument is indulged in by defendant to the effect that if the legislature has not fixed the rate and there is nothing in the contract forbidding it, that a public utility may fix its own rate. We have no contention with this proposition as our view is that the contract does forbid it.

Counsel has also discussed in his brief the question of the reasonableness of the proposed charge, and the reasonableness of permitting a minimum rate, and in support thereof has cited many decisions of public utility commissions. If we were sitting as a public utility commission, and had the power to determine upon the reasonableness of a minimum rate or whether a minimum rate should be charged, the argument and authorities would be most helpful. But such is not the case. We are called upon to construe the terms of a contract which the parties have deliberately made. The question as to whether the proposed charge is a reasonable one, or whether it is reasonable to allow a minimum monthly charge for gas, is not very important on this inquiry.

We are of the opinion that the chancellor reached the right conclusion, and the decree will be affirmed, with costs of both courts to the plaintiff.

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


text:
    McCullough v. McCullough.
    1. Process — Criminal Charge — Exemption—Extradition.
    A nonresident, charged with crime and brought within the jurisdiction of the court by compulsory process, is exempt from service of civil process while coming into the jurisdiction, while necessarily in attendance upon court, and while returning to his place of residence without unnecessary delay.
    2. Same — Exemption—Waiver.
    In an action in Michigan to recover installments of alimony which had accrued on a decree granted plaintiff for alimony alone in an Ohio court, the service of process upon defendant in the alimony suit while he was in Ohio under extradition to answer a criminal charge, was a violation of his privilege and unless waived is a valid defense to this action.
    3. Same — Day in Court.
    Defendant, having instituted proceedings in the same court to have the alimony proceeding dismissed, and being denied relief, has had his day in court, and, it having been determined adversely to him, is not now available as a defense to this action.
    4. Divorce — Foreign Judgments — Constitutional Law.
    Although a decree for alimony in an Ohio court is subject to modification, the wife has a vested interest in installments already due and payable, entitled to recognition under the füll faith and credit clause of the Federal Constitution.

    5. Same — Alimony—Termination of Decree.
    A divorce obtained by the husband in Michigan, where he had become domiciled, terminated the decree of an Ohio court for alimony alone as to installments falling due thereafter.
    Error to Ingham; Collingwood, J.
    Submitted February 12, 1918.
    (Docket No. 26.)
    Decided September 28, 1918.

      Assumpsit by Dora D. McCullough against Robert E. McCullough for alimony. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      L. B. Gardner and O. J. Hood, for appellant.

      Cummins & Nichols, for appellee.

      See notes in 59 L. R. A. 178; 9 L. R. A. (N. S.) 1168: 28 L. R. A. (N. S.) 1068.

   Bird, J.

Plaintiff sued defendant in the Ingham circuit court to recover certain installments of alimony which had accrued on a decree granted her for alimony alone, by the common pleas court of Licking county, Ohio. Upon the trial plaintiff showed the marriage and desertion and made proof of the records of the Licking county court showing an allowance of $100 a month to plaintiff as alimony beginning on March 1, 1913, the same to paid monthly. It was further shown that no part of this allowance had ever been paid and that there was then due thereon the sum of $3,447.73. With this proof the plaintiff rested.

The defendant then attempted to show under his notice following the general issue the following facts:

“(a) That Mrs. McCullough, the plaintiff, about May 9, 1911, refused to live with the defendant.
“(b) That defendant, on or about May 9, 1911, turned over to plaintiff practically all the property he had, with the understanding and agreement that the same was to be in satisfaction for her maintenance and support and for the care, maintenance and support of their daughter.
“(c) That plaintiff realized from the property he turned over to her, more than $4,000.
“(d) That plaintiff went before the grand jury of the common pleas court of Licking county, State of Ohio, and through falsehood and deception, procured an indictment to be issued against him on the ground of nonsupport of their daughter.
“(e) That plaintiff procured said indictment for the purpose of getting defendant within the jurisdiction of Licking county, State of Ohio, for the purpose of serving him with process in the case upon which she procured a judgment, which judgment she has brought this action on.
“(f) That plaintiff procured judgment against the defendant in the common pleas court of Licking county, State of Ohio, upon false statements, and statements that she knew to be false at the time she secured said judgment.
“(g) That at the time defendant was served with summons in the common pleas court of Licking county, Ohio, in which she secured judgment, which judgment this action is predicated, defendant was in attendance upon the common pleas court of Licking county, Ohio, by virtue of an indictment issued against him, out of said common pleas court of Licking county, charging him with nonsupport of their child.
“(h) That the service of process in said cause was made before he was. able to leave the court house after his arraignment in the common pleas court of Licking county, State of Ohio, on said charge of nonsupport of their infant child.
(i) That defendant was privileged from service of process while in attendance upon the court.
“(f) That defendant was advised by a lawyer in Licking county, Ohio, that it was unnecessary for him to enter his appearance in said cause or defend the same for the reason that the service so made was void ;■ that he. was told by the sheriff of Licking county, Ohio, that he need not pay any further attention to the proceedings in said cause and if any further steps were taken, he would notify the defendant of the same.
“(k) That he did not enter his appearance in said cause personally or by attorney.
“(1) That the defendant maintained his innocence and did not know that a plea of guilty was to be entered against him, in the common pleas court of Licking county, Ohio, on a charge of the nonsupport of their child. * * *
“(n) That plaintiff, knowingly and falsely claimed the defendant was making from $1,000 to $1,250 per month, at the time she took the judgment against him in Licking county, Ohio.
“ (o) That at the time she made said claim, and when the judgment was taken, she had the greater part of the $4,000 and over, which she had received from the properties he had turned, over to her, in settlement of their property rights.
(p) That he become a resident of Ingham county, State of Michigan, in about six weeks after plaintiff refused to live with him, to wit: May 9, 1911, and has been a resident of Mason, Ingham county, State of Michigan, ever since.
“(q) That for more than a year last past, he has been married and living with his wife in Mason.
“ (r) That he returned to his home in Mason, Ingham county, Michigan, and never heard anything from the court nor the sheriff, regarding said suit, and supposed hothing further had been done in the case, until he was served with summons in this case. * * * “(t) That on or about the 21st day of September, 1915, defendant obtained a decree dissolving the marriage between said parties, in the circuit court for the county of Ingham, Michigan.
“(u) That a decree in the Ohio courts for alimony is ambulatory in character, that is, may be changed at any time for cause shown.”

The trial court refused to receive most of this evidence, holding in substance that while defendant was privileged from service of civil process while in attendance upon the criminal case in the State of Ohio he had waived that privilege. .

It is the law in Ohio as elsewhere that if a nonresident is charged with crime and brought within the jurisdiction of the court by compulsory process, he is exempt from service of civil process, while coming into the jurisdiction, while necessarily in attendance upon the court, and while returning to his place of residence, providing no unnecessary delay occurs in returning. Compton, Ault & Co. v. Wilder, 40 Ohio St, ISO.

Defendant was a resident of Michigan on December 12, 1912. On that day he was extradited from his home State to the State of Ohio. On December 18th he was taken before the court in Licking county, and while in attendance upon the criminal proceeding he was served with civil process in the alimony proceeding. This was clearly a violation of his privilege and if he has not waived the privilege the defense is a valid one in the present proceeding, because it affects the jurisdiction of- the court which made the decree. Indeed we do not understand that plaintiff denies this proposition but her counsel insist that defendant has waived his privilege because of the great lapse of time in failing to move to set aside the proceeding and because he filed a direct proceeding in the Licking county court to dismiss the alimony proceeding after this suit was commenced in Ingham county, which resulted in a denial of relief.

After this suit was commenced and on the 5th day of October, 1915, he instituted a direct proceeding in the common pleas court of Licking county to dismiss the alimony proceeding on substantially the same grounds that he is now raising in this suit. He was denied relief in that suit but it does not clearly appear upon what ground the decision was rested. By reason of this action we think it must be held that he has had his day in court upon that question, and it having been determined adversely to his contention it is not now available as a defense to this action.

The further defense is interposed that the decree of the Ohio court is not for a fixed and definite amount, that the judgment is ambulatory and therefore is not such a judgment as comes within the full faith and credit clause of the Federal Constitution. This contention is met by plaintiff with the assertion that the judgment is final as to installments which are already due and payable.

Our attention has been called to no statute which authorizes the Ohio courts to modify a decree for alimony, although that power is exercised by them. Olney v. Watts, 43 Ohio St. 499 (3 N. E. 354). Presumably the exercise of this authority is based upon their common-law right. Assuming as we must that the decree in question for alimony is subject to modification, does this power affect the installments already matured and are the matured installments entitled to recognition under the full faith and credit clause of the Federal Constitution? This precise question is considered and decided in Sistare v. Sistare, 218 U. S. 1 (30 Sup. Ct. 682, 28 L. R. A. [N. S.] 1068), where the former holdings of that court are discussed and harmonized by Mr. Justice White. In that case it was said in part:

“We think the conclusion is inevitable that the Lynde Case [181 U. S. 183 (21 Sup. Ct. 555) ] cannot be held to have overruled the Barber Case [21 How. (62 U. S.) 582], and therefore that the two cases must be interpreted in harmony, one with the other, and that on so doing it results: First, That, generally speaking, where a decree is rendered for alimony and is made payable in future installments the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, since, as declared in the Barber Case, 'alimony decreed, to a wife in a divorce of separation from bed and board is as much a debt of record until the decree has been recalled, as any other judgment for money is.’ Second, That this general rule, however, does not obtain where by the law of the State in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even though no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.”

This holding by the Federal court sustains plaintiff’s contention that she has a right to recover on installments pf alimony already due and payable, inasmuch as the qualification of the rule laid down in the second proposition is satisfied by the holding of the supreme court of Ohio that she has a vested interest therein. Coffman v. Finney, 65 Ohio St. 61 (61 N. E. 155, 55 L. R. A. 794).

But counsel for defendant contends that even if plaintiff is entitled to recover she is not entitled to recover installments which fell due after the date of the decree of divorce rendered bv the Ingham circuit court. This raises the question whether the decree of divorce granted to defendant by the Michigan court abrogated the decree or order for alimony theretofore made by the Ohio court. It is clear that the Michigan 'decree could have no effect upon the installments which had matured at the time of its rendition, because as to those installments plaintiff had a vested interest. Coffman v. Finney, supra. But we are of the opinion that the divorce decree so changed the legal relation of the parties that the Ohio decree as to future alimony was no longer of any force. We have been much influenced in reaching this conclusion by the case of Harrison & Saunders v. Harrison, 20 Ala. 629 (56 Am. Dec. 227), which discusses the question upon a state of facts which differ in no material respect from those involved here. It is held in that case that the subsequent decree of divorce obtained by the husband in another State to.which he had removed and in which he was domiciled put an end to the decree for alimony as to installments falling due after the divorce. In the concluding paragraph of that case it is said:

“We are of opinion that-both decrees may stand so far as in their results they are not incompatible with each other. The subject-matter and object of each are wholly different. The first seeks to enforce the obligations and duties springing out of the relation of marriage; the second, entirely to annul that relation, and having effected the contemplated object, puts a period to the operation of the first, which is necessarily dependent upon that relation.”

We are content with the reasoning of this case and think it should be applied to the facts under consideration. It follows, therefore, that defendant’s offer to show that a divorce was granted to defendant in the Ingham circuit court was competent and material and should have been received. The plaintiff will be permitted to recover on installments due and payable at the date of the divorce decree but nothing more. The case must be reversed unless counsel can agree how much was due at that time. In the event that counsel file in the trial court a stipulation of the amount due within thirty days, from the date of filing this opinion a judgment for the stipulated amount will be affirmed, otherwise the judgment will be reversed and a new trial ordered with costs in either event to the defendant.

Ostrander, C. J., and Moore, Steere, Brooke, Fel- , lows, Stone, and Kuhn, JJ., concurred.