text:
    PEOPLE v. WEEKS.
    1. Criminal Law — Arraignment—Omission of Plea — Waiver.
    Where a respondent charged with a felony was not arraigned and did not plead to the information, but his counsel announced that he was ready for trial, and at a subsequent term filed an affidavit for a continuance denying his guilt, and later objected to a postponement of his trial that was asked for by the prosecutor, and where respondent was thereafter present during trial without raising any objection, and heard his counsel in argument to the jury state that he had pleaded “ not guilty” to the information, he waived the right to an arraignment and plea.
    2. Same. ,
    Announcing himself ready for trial has been held to be, in effect, entering a plea.
    3. Same.
    After a trial on the merits, want of a plea does not render a eonviotion invalid.

      Error to Missaukee; Lamb, J.
    Submitted March 1, 1911.
    (Docket No. 198.)
    Decided March 31, 1911.
    Robert W. Weeks was convicted of a felony.
    Affirmed.

      Gaffney & Miltner, for appellant.

      Norman W. Dunan, Prosecuting Attorney, for the people.
    The defendant was convicted of a felony and has thus appealed.
    The record shows:
    (1) That he was bound over to the circuit court upon examination.
    (2) An information was filed on August 16, 1910.
    (3) At the September, 1910, term he announced himself ready for trial, but the cause was postponed to an adjourned term in October at the instance of the prosecuting attorney.
    (4) At the adjourned term the cause was continued on application and showing by affidavit of the defendant, in which he said “that he had a good and meritorious defense,” and “that he was innocent of the crime charged.”
    (5) He was tried and convicted at the November term, being present throughout the trial, on which occasion his counsel stated:
    “ ‘Now, gentlemen, Mr. Dunan has read to you the charge. We deny that the charge is true; we have pleaded not guilty to that charge, and we claim and say that we are not guilty.’”
    He was represented by counsel throughout the case and made a defense upon the merits.
    (6) Subsequently he was sentenced; a motion in arrest of judgment, on the ground that he had not been arraigned, being denied.
    It is contended that the verdict and judgment are invalid for the reason stated, and this is the only question raised.
   Hooker, J.

(after stating the facts). Counsel for defendant rely on the early case of Grigg v. People, 31 Mich. 471, in which this court held that a record of an arraignment and plea were essential to the validity of a conviction.- The return was silent on the subject, and the attorney general conceded that arraignment and plea were essential. This record differs materially from the record in Grigg v. People. In this case the defendant filed affidavits denying the charge under oath and asserting that he had a meritorious defense. He complained of delay caused by a postponement of his trial, and, when tried, heard his counsel state to the jury that he had pleaded not guilty to the charge. Whether or not the omission of an arraignment and plea and the record thereof ought to be considered as more than a formal defect to be disregarded under the statute (Comp. Laws 1857, § 6043; 3 Comp. Laws, § 11908), as indicated by Mr. Justice Christiancy in his opinion in Hensche v. People, 16 Mich. 46-49, the affidavit denying guilt filed in the case and his counsel’s statement to the jury that the defendant had pleaded not guilty gave him the full benefit of such a plea in fact, and justified the entry of such a plea nunc pro tunc under the case of Grigg v. People, supra. We also think that the presence of defendant in court through a trial of the cause upon the merits represented by counsel, who failed to call attention to the omission of arraignment and plea, was a waiver of his right thereto, and we cite in support of this for future convenience the following cases which the industry of counsel has collected, several of which cases overrule earlier ones in harmony with Grigg v. People, supra.

Announcing himself ready for trial has been held to be in effect entering a plea. Spicer v. People, 11 Ill. App. 294; People v. Bradner, 107 N. Y. 1 (13 N. E. 87); People v. Frost, 5 Parker, Cr. R. (N. Y.) 52; Avery v. People, 11 Ill. App. 332; People v. Tower, 17 N. Y. Supp. 395.

After trial on the merits want of plea does not render a conviction invalid. State v. Straub, 16 Wash. 111 (47 Pac. 227); Molihan v. State, 30 Ind. 266; State v. Hayes, 67 Iowa, 27 (24 N. W. 575); State v. Greene, 66 Iowa, 11 (23 N. W. 154); U. S. v. Molloy (C. C.), 31 Fed. 19; State v. Thompson, 95 Iowa, 464 (64 N. W. 419); Hudson v. State, 117 Ga. 704 (45 S. E. 66); Waller v. State, 2 Ga. App. 636 (58 S. E. 1106).

In the case of People v. Osterhout, 34 Hun (N. Y.), 260, the subject was treated as follows:

“ The defect is merely technical, affecting no rights whatever. * * * Nor may this court on appeal regard technical errors or defects, or exceptions which do not affect substantial rights (referring to the statute). If this section is to have any meaning at all, it applies exactly to a case like the present. * * * Every one who knows anything of a criminal trial must see that the omission did the defendant no harm. * * * Where the prisoner appears with his own counsel, the omission formally to arraign and ask for a plea is immaterial to his rights and may be deemed to be waived.”

To the same effect see People v. Bradner, 107 N. Y. 1-9 (13 N. E. 87, 90), where the court says:

“A formal plea of not guilty is not necessary to put the defendant on trial.”

Further, in effect, going to trial as if an issue were formed, all participants acting as if all formalities had been complied with, is equivalent to an arraignment and plea.

“ It would be sacrificing substance to form not to give effect to the transaction according to the plain understanding of the court and the parties.” People v. Bradner, supra.

The State of Kansas also recognizes some exceptions to the general rule; its courts holding that: A failure to arraign the defendant and to enter a' formal plea of not guilty is not a ground for reversal or arrest of judgment, when it appears that the defendant was present, announced himself ready for trial, and regularly went to trial before the jury without objection. State v. Cassady, 12 Kan. 550.

The Mississippi courts hold that: An arraignment and plea are mere matters of form, and may be expressly or impliedly waived by the defendant, or cured by trial or verdict without objection. Bateman v. State, 64 Miss. 233 (1 South. 172).

In South Dakota it is held that: Where a record shows the presence personally and by counsel of a defendant charged with a felony, his announcement of ready for trial, and a trial on the merits without objection, failure to show affirmatively the fact of arraignment is not ground for reversal. State v. Reddington, 7 S. D. 368 (64 N. W. 170).

Also that an arraignment may be waived, even when the charge is a felony, is held in the following cases: State v. Robinson, 36 La. Ann. 873; State v. Glave, 51 Kan. 330 (33 Pac. 8); Kelly v. People, 132 Ill. 363 (24 N. E. 56); State v. Winstrand, 37 Iowa, 111; State v. Grate, 68 Mo. 22; Molihan v. State, 30 Ind. 266; Mitchell v. State, 22 Ga. 211 (68 Am. Dec. 493); People v. McHale, 15 N. Y. Supp. 496; Douglass v. State, 3 Wis. 820; Peoples v. Osterhout, 34 Hun (N. Y.), 260; Pierson v. People, 79 N. Y. 424 (35 Am. Rep. 524). And this may be accomplished not only by expressly waiving arraignment (Goodin v. State, 16 Ohio St. 344; State v. Robinson, 36 La. Ann. 873; State v. Glave, 51 Kan. 330 [33 Pac. 8]), but also by acts equivalent thereto. State v. Winstrand, 37 Iowa, 110; State v. Grate, 68 Mo. 22; Molihan v. State, 30 Ind. 266; People v. Lightner, 49 Cal. 226; State v. Thompson, 95 Iowa, 464 (64 N. W. 419); Spicer v. People, 11 Ill. App. 294; Hudson v. State, 117 Ga. 704 (45 S. E. 66); Waller v. State, 2 Ga. App. 636 (58 S. E. 1106); State v. Reddington, 7 S. D. 368 (64 N. W. 170); State v. Cassady, 12 Kan. 550; People v. Tower, 63 Hun (N. Y.), 624; State v. Straub, 16 Wash. 111 (47 Pac. 227); State v. Hayes, 67 Iowa, 27 (24 N. W. 575); U. S. v. Molloy (C. C.), 31 Fed. 19; Bateman v. State, 64 Miss. 233 (1 South. 172); People v. Bradner, 107 N. Y. 1 (13 N. E. 87); People v. Frost, 5 Parker, Cr. R. (N. Y.) 52; Avery v. People, 11 Ill. App. 332; 2 Enc. Pl. & Prac. p. 761; Fitzpatrick v. People, 98 Ill. 259.

In Hack v. State, 141 Wis. 346 (124 N. W. 492), the court said:

“ The accused is entitled to every constitutional right; but he should not be allowed to juggle with them. He has no right to be silent, and then after the decision has gone against him raise the plea that he was not given his right. Should he be allowed to play his game with loaded dice? Should justice be allowed to travel with leaden heel, because the defendant has secretly stored up some technical error not affecting the merits, and thus securing a new trial because, forsooth, he can waive nothing ? We think not. We think that sound reason, good sense, and the interests of the public demand that the ancient rule, framed originally for other conditions, be laid aside, at least so far as all prosecutions for offenses less than capital are concerned. We believe it has been laid aside in fact * * * by the former decisions of this court. It is believed that this court has uniformly attempted to disregard mere formal errors and technical objections, not affecting any substantial right, and to adhere to the spirit of the law which giveth life, rather than to the letter which killeth.”

In the same case Justice Marshall, in a concurring opinion, says:

“While in my judgment the decision here is conformable to and required by the law of 1856 and numerous decisions that rights, even of a fundamental character, may be waived in a criminal, as well as in a civil, case, overruling the principle of Davis v. State [38 Wis. 487], I claim for the court inherent power and duty to reach the same result independently of legislative assistance. The doctrine of Davis v. State as to arraignment and plea not being waivable, is wholly of judicial creation. Not only, as said by the Chief Justice, have the basic reasons which suggested such doctrine as a guard against injustice long since ceased to exist, but just as weighty reasons, prior to the legislation of 1856, called for its abrogation as a useless interference with the due administration of justice. The inherent power of the court, which originated the doctrine to satisfy seeming requirements of the social state which no longer exist, may properly be used to lay it aside as a legal curiosity, appreciable only by a knowledge of its antecedents, and inadaptable for any beneficial purpose in our modern life.”

We think that the prosecutor’s most excellent brief, from which we have quoted liberally in this opinion, conclusively shows that the trend of judicial opinion supports overwhelmingly the validity of this conviction. It is therefore affirmed.

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


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    VAN DYKE v. McCORMICK
    Landlord and Tenant — Emblements—Growing Crops — Termination of Lease by Conveyance of Premises — Parties—Contracts.
    An action for the value of growing crops on property leased subject to sale of the premises, which were sold after the commencement of the tenant’s term, is an action for the value of emblements, and could not properly be maintained by the tenant as plaintiff on a showing that he leased the property for his relative who provided the funds, put in the crop, and was in possession at the time of eviction.
    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted March 3, 1911.
    (Docket No. 174.)
    Decided March 31, 1911.
    Case by Martin Yan Dyke against Henry E. McCormick for trespass on lands. Judgment for plaintiff. Defendant brings error.
    Reversed.

      William A. Connell (William Wisner Taylor, of counsel), for appellant.

      Colin P. Campbell, for appellee.
   Ostrander, C. J.

The action is trespass on the case. It is alleged in the declaration that plaintiff and defendant, acting as administrator of an estate, made a written lease of certain premises for a term beginning March 15, 1908, ending March 15, 1911; that plaintiff entered into possession, paid rent, planted crops, and on May 1, 1908—

“Defendant with force and arms broke and entered upon the said premises and the dwelling house of the said plaintiff, * * * and then and there ejected, expelled, and put out the said plaintiff and his family from the possession and use * * * of the said dwelling house and the’said premises, * * * whereby the said plaintiff * * * lost and was deprived of the use, benefit, and enjoyment of the said premises, and the growing crops of the said plaintiff on said premises * * * the said defendant trampled down and destroyed. * * *

The plea is the general issue.

Upon the trial the lease was introduced. By its terms the lessor reserved the right to sell the farm and cancel the lease at any time. No provision was made therein with respect to crops growing at the time of sale. The first payment of rent ($100) became due April 1, 1908. The lessee covenanted that he would not assign or transfer the lease or sublet the premises without the written consent of the lessor, and further covenanted that the lessor should have a lien and mortgage upon the product of the land, whether harvested or not, as security for the payment of rent.

The testimony for plaintiff tended to prove the following : Plaintiff was required to, and did, deposit as security'for the first installment of rent the note of a third person for $100, belonging to his uncle. He put his uncle, with his family, into possession of the premises, who planted, with his own seeds and using his own tools, after March 15th, a small portion of the land to carrots and beets. Plaintiff rented the land, not for himself, but for his uncle, with whom he had, at the time of his eviction, no contract relations whatever. Plaintiff was notified on March 28th that the farm had been sold (it was sold March 24th) and that the contract of lease was determined. The note deposited as security for rent was returned to him, and he never paid any rent. The man in possession (the uncle) was evicted about May 1, 1908, by legal process upon the judgment of a circuit court commissioner rendered in a proceeding in which, not plaintiff, but the person in possession, was a defendant. The man so in possession, and so evicted, was the owner of the growing crops. Testimony was admitted to prove the value of the crops if they had been harvested, as well as testimony which tended to prove an oral arrangement of plaintiff and the administrator that the value of growing crops was, in case of a sale of the land, to be estimated by men to be chosen by the parties to the lease. The purchaser of the farm, not the defendant, destroyed such crop as there was in the farming operations he carried on.

It is therefore apparent that plaintiff seeks to recover the value of emblements under a declaration which gives no notice whatever of any such theory of recovery Defendant does not raise the question that the declaration is insufficient to support a verdict for the value of the emblements. The issues of fact were tried and determined in favor of plaintiff, and we consider only such contentions as are supposed to have affected such determination. We are of opinion that the testimony wholly fails to prove that plaintiff had any interest in the growing crops.

Assuming that the presumption is that the crops belonged to plaintiff, because he was the tenant of the owner, such a presumption is destroyed when it is shown that in fact they did not belong to him. The uncle of the plaintiff testified that the growing crops belonged to him. The testimony for plaintiff negatives the fact that his uncle was a cropper, or that he was plaintiff’s hired man. See, upon this subject, Welling v. Strickland, 161 Mich. 235, 242 (126 N. W. 471). The jury should have been so instructed. The judgment is reversed, and a new trial granted.

The record contains 96 pages. A large portion of the testimony of witnesses is set out in the form of questions and answers. The record contains colloquies of court and counsel, and interjections of counsel, wholly immaterial in this court. The brief of counsel for appellant contains 33 pages, 12 pages of which consist of excerpts from the record of the testimony of witnesses. Breach of the rules of this court is so flagrant that, in place of mere admonition, so often given and so often disregarded, we restrict the appellant, in the recovery of costs, to a record of 50 and a brief of 15 pages.

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


author: Blair, J.

text:
    VERLINDE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Pleading — Joinder oe Counts — Survival oe Actions — Negligence.
    A parent may not join in one count his claim for loss of his minor son’s services by death with his claim as administrator under the survival act so as to recover for both in one action.
    2. Same — Executors and Administrators —“Death Act” — Statutes.
    Nor can an administrator combine in one count a claim under the death act with a claim under the survival act.

      3. Parent and Child — Action for Wrongful Death — Infant.
    Independent of statute, the father could only recover for the loss of his infant’s services accruing between the injury and death; no cause of action surviving to the administrator for loss of services to the parent.
    4. Same — Assignments—Damages.
    No assignment of a cause of action for loss of services which he did not possess, could be made by the father.
    5. Pleading — Amendment.
    The objection that a declaration contained a cause of action for the damages to a minor’s estate with a cause of action of the father for loss of services, assigned to the administrator, can be obviated by amendment.
    6. Railroads — Negligence—Duty to Trespassers — Infants.
    A railroad company owes a duty to a child riding on a freight car, without permission, to use ordinary care to prevent injury from active negligence.
    7. Same — Putting Trespassers off Train.
    It may not be said, as a matter of law, that it was not active negligence for a brakeman in a threatening manner to order off boys riding without right on a freight train while the cars were moving and another train approaching on an adjacent track.
    8. Same — Brakeman—Master and Servant — Scope of Authority.
    Under rules of a steam railway company, requiring employés to render assistance in carrying out rules; subjecting trainmen to the orders of conductors and to the rules for conductors; forbidding the carrying of persons without permission or right on freight trains, and requiring great precaution against possible robbery of cars, the act of a brakeman in frightening boys off a train in motion, in the apparent exercise of an authority which he supposed he had, was an act within the scope of his authority.
    9. Same.
    Testimony that brakemen were accustomed to eject trespassers from trains is insufficient to prove authority unless it is also shown that the acts were not done in pursuance of the conductor’s direction and authority.
    10. Same — Negligence—Proximate Cause.
    Whether the act of the brakeman was negligent and was the proximate cause of the boys’ jumping in front of the approaching train was for the jury.

      Error to Otsego; Sharpe, J.
    Submitted January 12, 1911.
    (Docket No. 81.)
    Decided March 13, 1911.
    Rehearing applied for May 4, 1911.
    Settled pending decision by court.
    Case by Charles Yerlinde, administrator of the estate of Peter Yerlinde, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      George L. Alexander (Humphrey, Grant & Baker, of counsel), for appellant.

      W. L. Townsend (De Vere Hall, of counsel), for appellee.
   Blair, J.

Plaintiff brings this action as administrator of the estate of his son, Peter Yerlinde, to recover damages for his death, alleged to. have been caused by the negligence of defendant. Immediately prior to his injury, Peter, then 13 years of age, and an older boy, were unlawfully riding upon defendant’s train of flat cars, which was moving north on a side track at the rate of four or five miles an hour. When first seen, the boys were lying side by side about in the center of a flat car, flat on their stomachs, with their heads sticking up and facing north. It was the intention of the boys to ride a short distance, and then jump off. A brakeman stood upon a flat car three or four cars south of the one the boys were on, talking with a man who intended to ride to the highway crossing and then jump off. When the brakeman saw the boys, he said, “ he would have to put them off the train, that he couldn’t let them ride,” and started towards them. At the same time a locomotive was pushing a car of bark south, on the main track to put into a freight train on such track, which was a few feet east of, and parallel with, the side track. The conductor of the train on the main track stood: near the highway crossing. When the boys were within about half a oar length, the conductor called to them that the brakeman was coming. When the conductor spoke, they turned their heads and saw the brakeman coming, who told them to “ get to hell out of here.” The Ward boy rose up first, and, as he rose up, the Verlinde boy rose, and the Ward boy took the Verlinde boy by the shoulder, and they both leaped at once. At the time they jumped, the car of bark was only a few feet distant. They fell as they struck the ground, and were run over. Peter lived an hour and a half or two hours after his injuries. The boys might have jumped off on the west side with comparative safety.

The declaration contains only one count, and avers the right of the father and mother to recover damages for pecuniary loss and injury, and the deprivation “of the value of the services, assistance, aid, comfort, society, and prospective earnings of intestate until he would have arrived at the age of 21 years,” to the amount of $5,000, and, also, that intestate would, after becoming 21 years old, have earned $40 a month, and, in consequence of his injuries, he suffered great pain, and his estate has suffered a loss thereby through pain and suffering and what he would have earned after he became 21 years old during his expectancy of life, for which a right of action to recover $10,000 has accrued to his administrator.

Defendant pleaded the general issue. At the beginning of the testimony, defendant’s counsel objected to the reception of any testimony, for the reason that there was a misjoinder of causes of action in one count. The objection was overruled and exception taken. Later in the course of the trial, the following paper, executed by the parents, was received in evidence against the objection and exception of counsel for defendant:

“We, the parents of Peter Verlinde, formerly of Waters, Michigan, now deceased, hereby severally surrender to the estate of said Peter Verlinde, all right of action for damages for the injuries sustained by him and his consequent death, on' June 20, 1908, through the claimed negligence of the Michigan Central Railroad Company, and all loss of earnings and earning capacity during his minority, which otherwise would have existed in us, or either of us, hereby granting such rights and claims to the said estate and severally releasing such company from all such rights and claims upon our several parts.
“ Dated, Gaylord, Michigan, February 28, 1910.
“Charles Verlinde,
“Mary Verlinde.”

Certain rules of the defendant and the deposition of a witness as to the custom of brakemen in ejecting trespassers were put in evidence. At the close of plaintiff’s testimony, a motion was made for a directed verdict, which was overruled, and the case was submitted to the jury, with instructions that, if they found that the plaintiff was entitled to recover, he was entitled to both classés of damages claimed in the declaration. Plaintiff had verdict and judgment, and defendant brings the record to this court for review upon writ of error.

We are of the opinion that the defendant’s objections to the declaration and charge based thereon are well founded. The plaintiff could not combine in one count a claim for loss of his son’s services with his claim as administrator under the survival act and recover for both in the same action. Walker v. Traction Co., 144 Mich. 685 (108 N. W. 90); Id., 156 Mich. 514 (121 N W. 271); Fournier v. Railway, 157 Mich. 589 (122 N. W. 299). Neither could the administrator combine in one count a claim under the death act, so called, and a claim under the survival act and recover both classes of damages. Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629); Carbary v. Railway, 157 Mich. 683 (122 N. W. 367). Independent of statute, the father could only recover for the loss of services accruing between the injury and the death. Hyatt v. Adams, 16 Mich. 180; Merkle v. Township of Bennington, 58 Mich. 156 (24 N. W. 776, 55 Am. Rep. 666). No cause of action survived for loss of services which belonged to the father. Walker v. Traction Com pany, supra. And the father could not confer upon the administrator a cause of action for loss of services subsequent to death which he himself did not possess. This objection can be obviated by amendment of the declaration.

It is further urged that there was no evidence that the brakeman had any authority to eject trespassers, and the act complained of was not within the scope of his employment, citing Randall v. Railway Co., 113 Mich. 115 (71 N. W. 450, 38 L. R. A. 666); Hartigan v. Railroad Co., 113 Mich. 122 (71 N. W. 452). The defendant owed a duty to the boys “ to use ordinary care to prevent injury to them arising from active negligence.” Schmidt v. Mining Co., 159 Mich. 308 (123 N. W. 1122). We cannot say as a matter of law that it was not active negligence to order the boys in a fierce and threatening manner to “get to hell out of here,” in view of the surrounding circumstances.

The important question is, therefore, whether the brakeman was acting within the scope of his employment. The brakeman evidently understood that it was his duty to put the boys off, and supposed that he was acting within the scope of his employment in ordering them off, since he said to the witness Norman that “he would have to put them off the train, that he couldn’t let them ride.” Apparently the conductor of the other train entertained the same view of the brakeman’s authority and duty, since he warned the boys of his approach. While the statement of the brakeman would not be evidence of express authority conferred upon him, it would be evidence that the act was done with a view to further the employer’s interests, and not from a personal motive on the part of the brakeman to do the act on his own account.

The rules of the defendant printed in this record do not expressly, nor, in my opinion, impliedly, negative the authority of the brakeman to order trespassers off a train. Several of the rules printed in this record do not appear in the record in the Hartigan Case, and the brakeman’s want of authority in that case was predicated upon the testimony of the general superintendent of the road. The rules printed in this record appear to me to imply, at least so far as ordering trespassers off the train, such authority upon the part of the brakeman. I quote the following:

“(B) Employés .must be conversant with and obey the rules and special instructions. While the special rules are subdivided for convenience, they apply equally to all, and must be observed wherever they relate in any way to the proper discharge of the duties of any employé. If in doubt as to their meaning, they must apply at once to the division superintendent, assistant superintendent or train-master for an explanation.
“(D) Persons employed in any service on trains are subject to the rules and special instructions.
“(E) Employés must render every assistance in their power in carrying out the rules and special instructions.”
“900. Trainmen report to and receive their instructions from the trainmaster, and while on trains are subject to the orders of the conductor, and at terminal stations must obey the orders of the stationmaster or agent. They must be governed by the rules for conductors in so far as the rules pertain to their duties.
“920. Brakemen report to and receive their instructions from the trainmaster, and while on trains, are subject to the orders of the conductor, and at divisional stations they must obey the orders of the agent or yardmaster. They must be governed by the rules for conductors, in so far as the rules pertain to their duties.”
“FREIGHT CONDUCTORS.
“Special Instructions.
“830. Passengers, including employés not on duty, must not be carried on freight trains without proper authority.
“ 831. Tramps or other persons who have no legitimate business on the trains must not be allowed to ride. Every precaution must be taken to prevent cars being robbed while in transit.”
“920. (Same as third rule above.)”

It is made the duty of the brakeman to render every assistance in his power “in carrying out the rules and special instructions,” and among such special instructions to freight conductors is the one quoted, that “ tramps or other persons who have no legitimate business on the trains must not be allowed to ride.” No discretion is permitted to the conductor as to whether a trespasser shall be permitted to ride. They must not be allowed to ride at all. If the brakeman reports to the conductor that a trespasser is on the train, the conductor must either put him off himself, in which event the brakeman is bound to assist him, or he must order the brakeman to put him off. Section 6287, 2 Comp. Laws, provides that:

“ If any person shall refuse to pay his fare or refuse to obey such regulations as may be established for the convenience and safety of passengers, it shall be lawful for the conductor of the train and servants of the company to put him off the train at any usual stopping place, or opposite any dwelling house, the conductor may select.”

This statute applies only to passenger trains; and apparently rule 815, printed in the record, applies only to trains carrying passengers, is in pursuance of the statute, and should be interpreted as authorizing “ the conductor of the train and servants of the company ” to eject a person not entitled to ride. The only limitation upon the authority of the servants is that the conductor is to select the place where the trespasser is to be put off if it is not a “usual stopping place.” Again, rule 831 indicates that part of the reason for the rule is the prevention of robbery of the cars, which it would clearly be the duty of the brakemen to prevent, and, under rule B, applies equally to, and must be observed by, the brakemen.

I am further of the opinion that, even though it should be held that the brakeman had no authority to actually eject a trespasser from the train, still, under rule E, it would be his duty to prevent violations of special instruction 831 by ordering trespassers to get off whenever and wherever the conductor would be justified in doing so. Whether the brakeman was negligent in the discharge of his duty was a question of fact for the jury. If he was negligent, the defendant was responsible for its result. There was also some testimony that it was the custom of brakemen to eject trespassers, but such testimony would not suffice to prove authority unless it also appeared that such acts were not pursuant to the authority of the conductor, and the special instances mentioned by the witness were in pursuance of such authority or of the train-master.

It is also contended that the alleged negligence of the brakeman was not the proximate cause of the injury; that it was not the order of the brakeman that caused the boyB to jump to the east rather than to the west; that the act of jumping caused them no injury whatever, and was not the proximate cause of the injury.

“ The proximate cause of their injury was their being run over by a train coming from another direction, and which was being moved in a proper and ordinary way,” etc.

This question is to be determined in the light of the situation at the time the brakeman gave the order, the character of the order, and the manner of the brakeman. The brakeman was walking directly towards the approaching car of bark, and the jury might well infer that he saw it, and that he heard what the conductor said, since the man talking with him heard it. It was a question of fact for the jury whether a reasonably prudent man ought not to have anticipated that the boys would be so frightened and startled as to lose their self-control and jump at once to escape the immediately threatening danger without regard to other dangers.

For the error above referred to, the judgment is reversed, and a new trial ordered.

, Moore, McAlvay, Brooke, and Stone, JJ., concurred.


author: Brooke, J.

text:
    LE ROY v. COLLINS.
    1. Judgment — Concjlusiveness—Res Judicata — Matter in Issue.
    A judgment is not res judicata unless the identical matter in issue in the subsequent proceeding was determined by the former adjudication.
    2. Same — Words and Phrases.
    The matter in issue, is. defined to be that matter upon which the plaintiff proceeds by his action and which the defendant controverts by his pleadings.
    3. Same — Adverse Possession — Alleys.
    Upon a bill of complaint claiming a right of easement over land on the grounds that it was a public alley, and that complainants had acquired the right of user by prescription, a decree dismissing the bill because the evidence did not sustain the claims of complainants is not conclusive of the defendant’s title in a subsequent action of ejectment wherein plaintiffs base their right on a vacation of the alley and reversion of the land, and defendant claims title in fee by adverse possession.
    Error to Kent; Perkins, J.
    Submitted February 7, 1911.
    (Docket No. 133.)
    Decided April 1, 1911.
    Ejectment by Simeon Le Roy, Sr., and John Le. Roy against Margaret Collins. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      A. C. Hindman, for appellants.

      William E. Grove, for appellee.
   Brooke, J.

This is an action of ejectment, in which the plaintiffs by their declaration claim title in fee to a part of block 2 of Coit & Company addition to Grand Rapids, being a piece of land 8 feet east and west by 55 feet north and south, lying east of and immediately adjoining lot 14, of block 2, as shown by the recorded map thereof, and being the westerly half of that portion of the land adjoining said lot 14, shown in the said map as an alley. Defendant’s plea was the general issue only.

Upon the trial of the case before a jury in the circuit court, the evidence presehted was all by way of stipulation and record; no witnesses being sworn or testimony taken. At the close of the evidence defendant’s attorney made a motion that a verdict be directed for the defendant. The court, after argument, granted the motion, being of opinion that the question at issue in this case had been'determined in the chancery suit of Le Roy v. Collins, reported in 154 Mich. 77 (117 N. W. 579); the defendant in that suit being the husband of the defendant in this suit. In other words, the circuit judge was of opinion that the chancery suit was res judicata of this case. Plaintiffs assign error upon this determination of the circuit court, and have removed the case to this court for review.

Passing the question of the identity of the parties to the two suits, we come directly to inquire what was determined in the chancery cause. The first essential of the rule of res judicata is the identity of the matter in issue. The “matter in issue” is. defined to be “that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings.” See Chand on Res Judicata, p. 35. If the same subject-matter comes in question in a second action in a court of last resort, it is bound by its own former decision. Bigelow on Estoppel (1st Ed.), p. 16.

“A matter or question, either of law or fact, is res judicata, or set at rest, as to adverse parties and their respective privies, if it was a material issue in the proceeding, directly involved, and not merely incidentally cognizable nor collaterally in question, and was adjudicated after a contest, by a final judgment on the merits.” 1 Van Fleet’s Former Adjudication, p. 2.

Now, what was the matter in issue in the chancery proceeding ? Clearly the question of the ownership of the alley was not involved, for the complainants, by their bill, set up no claim of title thereto nor to any part thereof. They averred that they were entitled to an easement over the entire strip composing the way, for two reasons: (1) Because it was a public alley, and (2) because they had acquired the right of ingress and egress by adverse user. The defendant in the chancery suit, by his answer, denied complainants’ right to the easement claimed, and set out that he and his wife (defendant herein) were the owners of the whole of said alley by purchase from Daniel W. Coit. He says:

“That he and said Margaret Collins have respectively the legal title to all of lots 1, i, 5, 8, 9, 12, 13, and 16; that said private way is wholly on the lots mentioned.”

In this answer, he prayed for no affirmative relief, but asked for a decree dismissing the bill only. Such a decree was entered in the court below, and, upon appeal, was affirmed in this court. That decree determined two things, and only two. It determined that the strip in question was not a public alley, and that complainants had not acquired an easement over the whole strip by adverse user. The defendant in the suit at bar can base no claims of ownership upon a decree which gave her nothing, but which simply denied complainants the rights they claimed upon the theories they advanced in their pleading.

While it is the decree, and not the opinion, which determines what was adjudicated in the cause, a reference to the opinion filed by this court will demonstrate most clearly that the question of the title to that part of the alley now in dispute was not determined. So far as the question was considered, the court seems to have been of the opinion that the title thereto was in the plaintiffs, for it said:

“On the hypothesis that the evidence supports the finding of a vacation, John Clancy became vested with a half interest in the alley, since he had acquired such interest prior to the actual vacation. Defendant and his wife, never having acquired the Clancy interest in this alley but only the half interest of the Coits, it seems plain that they never acquired the record title in the whole alley, and that the abutting owners of the lots on the west side of the alley acquired the other half interest. ” Le Roy v. Collins, 154 Mich. 82 (117 N. W. 579).

And again:

“We deem the evidence conclusive that this was not a public alley, and, considering the case as stated by the bill of complaint, we might stop here. But since the circuit judge considered and determined the second claim above stated, we will do likewise. This claim is based upon the hypothesis that the ownership of .the alley, originally in defendant and his wife, has, by adverse user, become subjected to an easement in favor of the complainants which they originally did not possess. It is to be noted, also, that the bill of complaint and the brief proceed upon the theory that complainants’ rights attach to the entire alley.” Id. 83.

We have now, for the first time in the case at bar, the question presented whether the plaintiffs are still the owners of that portion of the alley lying immediately in the rear of their lot. Upon the vacation of the alley, they acquired title thereto. Have they lost that title through the adverse possession of the defendant ? That question was not in issue in the chancery case, and must be answered in this proceeding.

The judgment should be reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


text:
    H. J. CHENEY CO. v. ALLGEO.
    1. Process — Arrest — Capias ad Respondendum — Affidavit— Trover and Conversion.
    It was a sufficient ground for quashing a writ of capias ad respondendum for insufficiency of the affidavit where it al. leged that defendant bought and sold apples under contract with plaintiff who furnished funds, barrels, etc., for that purpose, defendant to share the profits or loss, that defendant sold certain car loads of apples, and secretly converted to his own use property of the plaintiff and profits arising therefrom, and failed to account to plaintiff pursuant to their contract; since the allegations as to conversion were mere conclusions and the affidavit failed to show that apples were sold without plaintiff’s consent.
    2. Dismissal and Nonsuit — Capias ad Respondendum — Insufficiency of Affidavit.
    An action begun by capias should not be dismissed for insufficiency of the affidavit; plaintiff should be allowed to proceed on the summons clause of the writ.
    Error to Ionia; Davis, J.
    Submitted February 8, 1911.
    (Docket No. 141.)
    Decided April 1, 1911.
    Trover by H. J. Oheney Company against Charles E. Allgeo, for the conversion of money, apples, and other property of plaintiff. An order quashing the writ of capias ad respondendum and dismissing the action, is' reviewed by plaintiff on writ of error.
    Modified and affirmed.

      William J. Landman, for appellant.

      Locke & Sheldon, for appellee.
   Blair, J.

Plaintiff prosecutes its writ of error in this case to reverse the order of the circuit court quashing the writ of capias ad respondendum by which the suit was begun and dismissing the suit. The affidavits in support of the writ allege,, in substance: that H. J. Cheney Company entered into a verbal agreement with said defendant, Charles E. Allgeo, by the terms'" of which said H. J. Cheney Company was to furnish said C. E. Allgeo with money with which to buy apples and with barrels and baskets to be used for containing and shipping said apples; that by the terms of said agreement the apples so purchased by said C. E. Allgeo were to be the property of said plaintiff and were to be sold by said C. E. Allgeo, with the consent of said plaintiff, for the highest price obtainable, and from the proceeds of such sales, after the deduction of the freight charges on the shipment thereof, said plaintiff was to receive the moneys which it had advanced to said C. E. Allgeo to be used for the purchase of said apples and the money which it had expended for the purchase of the baskets and barrels used for the retention and shipment of said apples and the money expended for freight and other charges for delivering said barrels and baskets to said C. E. Allgeo, and then said plaintiff and C. E. Allgeo were to equally divide any moneys that were left from such sales after the deduction above mentioned, including said C. E. Allgeo’s actual expenses in buying and packing said apples; that by the terms of said agreement, if any sale of apples made under this agreement did not bring an amount sufficient to pay the freight and other charges thereon and the return of the moneys advanced thereon by said plaintiff, as above mentioned, the loss on said sale should be borne, in equal amounts, by said plaintiff and said C. E. Allgeo; that by the terms of said agreement said Charles E. Allgeo promised to inform said plaintiff, whenever a sale of apples was made, the name and address of the party to whom the sale was made, and the amount for which they were sold, and that said Charles E. Allgeo, for and in behalf of C. E. Allgeo & Co., would render to said plaintiff a proper account of the receipts and expenditures pertaining to each such sale, and that prompt remittance of all moneys to be returned to said plaintiff and of all profits to which plaintiff was entitled by the terms of said contract would be made; that under this agreement plaintiff furnished to defendant barrels, baskets, and head-liners of the value of $405.06, upon which it received $123.55, and furnished cash to the amount of $415; that defendant sold one car of apples for $404.25, which he did not account for; that there was a profit of $90 made on this sale, of which one-half belonged to Allgeo; that a second car was sold by plaintiff at a loss of $101.94, for one-half of which Allgeo washable; that Allgeo made cash payments amounting to $697.32; that a personal inspection of the records and books of the Pere Marquette Railway Company shows that, from October 9 to October 25, 1909, inclusive, defendant shipped several cars of apples to various persons; that there is now due plaintiff the sum of $409.41, being the value of barrels, baskets, head-liners, and apples—

“ Which apples, barrels, baskets, and head-liners were wrongfully converted to the use of said Charles E. Allgeo, doing business as C. E. Allgeo & Co. (7) Deponent further says that said defendant, Charles E. Allgeo, told deponent, on or about November 15, 1909, that he did not then have in his possession or under his control the apples, barrels, head-liners, and baskets belonging to said plaintiff, and that they had been disposed of to other parties, and he had received the proceeds thereof, but he did not then have the moneys to reimburse said plaintiff for the goods so disposed of by him, and said defendant then and there admitted to deponent that the amount due said plaintiff for the goods so disposed of by defendant amounted to the said sum of four hundred nine and-fifo dollars ($409.41). Deponent further says that said defendant, Charles E. Allgeo, with intent to defraud said plaintiff, has secretly converted to his own use the apples, barrels, head-liners, and baskets belonging to said plaintiff, and the profits arising therefrom, and has sold said apples, barrels, baskets, and head-liners, and of which said sales said defendant has given plaintiff no information and from which it has received no returns, and that said defendant now refuses to account to, or to pay, said plaintiff for the goods belonging to it and converted to the use of said defendant, as hereinbefore stated.”

Plaintiff’s attorney also made an affidavit stating from personal inspection of said railway boobs and records the cars shipped, and that defendant admitted that he owed said plaintiff the amount mentioned in the affidavit, namely, $409.41, and that the same was due for goods belonging to said plaintiff which had been disposed of by said defendant, that he did not then have the proceeds from the sale of such goods, although such proceeds have been received by him.

We are of the opinion that the court did not err in quashing the capias feature of the writ. By the terms of the agreement, defendant had a lawful right to sell the property with the consent of the plaintiff. ' There is no allegation in the affidavits that the property was disposed of without the consent of the plaintiff unless by the allegation of a fraudulent conversion or the statement in plaintiff’s affidavit:

“And that said C. E. Allgeo & Co., and any one in behalf of said C. E. Allgeo & Co., has not notified or informed said plaintiff, or any one in its behalf, in regard to any other or further purchase, sales, or shipments of apples, other than above enumerated, although the records and boobs of the station agent of the Pere Marquette Railroad Company, at Clarbsville aforesaid, which this deponent personally examined, show,” etc.

The allegations as to conversion are mere conclusions and the allegation as to information as in the concluding paragraph of the affidavit naturally refers to the concluding clause of the agreement, “to inform said plaintiff whenever a sale of apples was made,” etc. They are not sufficient allegations of want of consent. Conrad v. Van Buren Circuit Judge, 144 Mich. 492 (108 N. W. 347).

Among the exceptions to the order is the following:

“ (7) Because said order is a final order by which plaintiff is deprived of its right to proceed against plaintiff on the summons clause of said writ.”

The thirteenth assignment of error is as follows:

“(13) The court erred in making the order quashing said writ a final order, dismissing said cause.”

We think this assignment is well founded, and that the right to proceed on the summons clause of the writ should have been permitted by the order.

As modified in this respect, the order is affirmed, without costs to either party.

Ostrander, C. J., and Bird, Brooke, and Stone, JJ., concurred.


author: Stone, J.

text:
    ANTHONY v. CASS COUNTY HOME TELEPHONE CO.
    1. Evidence — Opinion op Expert — Electricity—Physicians and Surgeons.
    In an action against a telephone company for negligently constructing its system of wires so that one of them came in contact with an adjacent wire of high voltage, and, because of defective insulation, killed plaintiff's team, it was competent to ask the opinion of a physician and surgeon whether it took a less powerful current to kill a horse than to kill a man, when the current required to cause death to a person was shown by previous evidence.
    2. Same — Impeachment—Admissions.
    Under the rule of collateral impeachment, no error was committed in showing that one of defendant’s witnesses, an employé, had stated that he had told another employé the wires were crossed and he supposed it had been fixed, after the witness had been called and said he could not remember whether or not he had so stated.
    3. Same — Expert and Opinion Evidence.
    Nor was it incompetent to ask the expert how many volts of electricity would be required to kill a cow.

      4. Same.
    On rebuttal, the plaintiff was rightly permitted to ask a witness if the defendant’s wires were so close to the wire which it was claimed supplied the electricity, that the cable of the adjacent system had been burned out.
    5. Same — Qualifications of Witness.
    No error occurred in refusing to permit a witness who had been clerk and superintendent of the city water and light system for a number of years, but who did not profess unusual skill and did not pretend to be an electrician, to answer the question whether or not the method of constructing defendant’s wire system was proper.
    6. Same.
    Or in excluding evidence of the uses of alternating currents by electric street railways, which the testimony showed was different in detail from the system in question.
    .7. Same.
    It was a question for the jury whether or not the horses were killed by the lightning, as claimed by defendant, or by a shock received from defendant’s wire, which plaintiff claimed formed a circuit with the power wire of an adjacent system.
    8. Electricity — Telegraphs and Telephones — Construction— Insulation.
    The court properly charged the jury that, if it could have been foreseen in laying the wire through the limbs of trees, and a man of ordinary intelligence would have seen, that a limb was likely to sway or break off in a storm so as to bring the wire of defendant in contact with the power wire, it was defendant’s duty to have exercised such diligence.
    9. Evidence — Weight of Expert Testimony.
    A charge that the testimony of expert witnesses should be weighed in the same manner as other testimony was not erroneous.
    10. Trial — Instructions to Jury.
    ' That the court after modifying defendant’s requests to charge submitted them to the jury as proposed by defendant was harmless error.
    11. Same.
    The trial court did not err in advising the jury that the case was important and to some extent would establish a precedent, and that they should determine the questions from the testimony, excluding such matters as they might have heard elsewhere.

      12. Same — Requests.
    The giving of oral requests which correctly cover the law is not error, although the practice of orally requesting instructions is not to be commended.
    Error to Cass; Des Voignes, J.
    Submitted February 21, 1911.
    (Docket No. 168.)
    Decided April 1, 1911.
    Case by Mark Anthony against the Cass County Home Telephone Company for the negligent killing of plaintiff’s horses. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Chas. E. Sweet, for appellant.

      James H. Kinnane, for appellee.
   Stone, J.

This is an action on the case to recover the value of a span of horses belonging to the plaintiff, claimed to have been killed between 6 and 7 o’clock p. m. on July 21, 1907, as a result of the negligence of the defendant. The defendant is a corporation organized for the purpose of erecting and maintaining a telephone system in the city of Dowagiac, and prior to the death of the horses it had commenced the erection of its plant. At the time of their death, the horses were being driven by a brother of the plaintiff, who was a milkman, and in passing through an alley extending from North street in said city, and when about five or six feet from the point where a guy wire from'one of defendant’s poles (which guy was connected with the messenger wire of the system) entered the ground, they dropped dead in a pool of water which had formed during the rain of the afternoon.

The specific negligence of the defendant which is complained of in the declaration is that it negligently permitted one of its wires, called a “messenger” wire, to be placed and strung in dangerously close proximity to an electric wire used and owned at that time by the Beckwith estate, and which was charged with a heavy and deadly current of electricity, to wit, an alternating current of 1,000 volts, and that by the negligence of said defendant its aforesaid messenger .wire, at a point upon said North street, came in contact with said electric wire so charged, and an arc was formed between the said messenger wire and the said electric wire, transmitting thereby a direct, heavy, and deadly current of electricity upon said messenger wire, which ran along said last-mentioned wire, and was thence transmitted over and along the guy wire aforesaid, running from thence to the ground and killing the horses. The said messenger wire was the wire from which the defendant afterwards strung its cable. The word “messenger” is applied to the said wire to distinguish it. from a wire which carries messages. There was no electricity in said wire except as it would be drawn from some electric wire, or electric disturbance in the air.

The plaintiff introduced evidence showing the circumstances, and tending to support the declaration.

At the close of the plaintiff’s testimony, counsel for defendant moved the court to direct a verdict in behalf of defendant for the following reasons:

“ (1) No negligence as charged in plaintiff’s declaration has been proven.
“ (2) No negligence by the defendant has been proven.
“ (3) There is no evidence that an electric current passing over defendant’s messenger wire and guy wire to the earth killed the horses of plaintiff, as charged in the declaration.
“(4) There is no evidence that the horses of plaintiff were killed through any fault or negligence of the defendant.
“ (5) There is no evidence to support a verdict against the defendant, and in favor of the plaintiff, under the pleadings.”

The court overruled the motion, to which ruling defendant’s counsel excepted. Afterwards the defendant offered evidence in its defense and claimed that the evidence tended to show that the horses were killed by a stroke of lightning during the storm. Whether the storm had abated or not at the time was a disputed question. The trial resulted in a verdict and judgment for the full amount of plaintiff’s claim.

The defendant has brought the case here by writ of error. There are 37 assignments of error in the record. In the presentation of the case to this court the defendant’s counsel has grouped the assignments of error under six heads, as follows:

(1) That the court erred in admitting testimony. This point embraces assignments of error Nos. 5, 9, 11, 12, 13, 14, 15, 17, and 18.

(2) That the court erred in excluding evidence. This point embraces assignments Nos. 2 and 8.

(3) That the court erred in overruling defendant’s motion to direct a verdict. Assignment No. 6.

(4) That the court erred in refusing defendant’s requests to charge, as appear by assignments Nos. 19, 20, and 21.

(5) That the court erred in its voluntary charge, referring to assignments Nos. 22 to 31, inclusive.

(6) That the court erred in giving the plaintiff’s oral requests to charge, and in commenting thereon; covered by assignments Nos. 32 to 37, inclusive.

We will briefly consider such of these assignments of error as we think are worthy of consideration.

First Group. The fifth assignment of error is based upon the ruling of the court in permitting the plaintiff’s witness Rudolph H. Von Notch to answer the following question over objection and exception:

Q. I will ask you the question this way: Recalling to your mind what you have stated of an alternating current of 1,000 volts being used in cases of electrocution to kill, now- what would you say, or do you know whether it takes less voltage to kill a horse than it does a man ?”

This witness was a physician and surgeon of many years’ practice. We have examined the evidence as to his learning and experience with reference to experiments with electricity. It appears from the record that the contention of the experts for the defendant was that the death of the horses, probably, was caused by a bolt of lightning, or discharge of an accumulation of electricity in the atmosphere. There was no claim that the horses were not killed by electricity. We think the question was a competent one, and there was no error in permitting its answer to be taken.

The ninth assignment of error is based upon the ruling of the court in permitting the plaintiff’s witness, Charles Crossman, to answer the following question, over objection and exception:

"Q. Did you hear Mr. Frost say, in substance, to somebody in your hearing at the point where the horses were killed that Sunday night, these words, in substance: ‘ By G-! I told you those wires were crossed, and I supposed you fixed it, or fixed them ’ ?”

The witness Frost had been in the telephone construction business for some years, 'and was in charge of the construction for the defendant from the time it started business in Dowagiac, and when the messenger wire in question was put up. He had testified as to the conditions at the place of the accident. His attention had been called to this language upon cross-examination; but he said that he did not remember whether he used it or not, and would neither admit nor deny the same. We certainly think the evidence was admissible and was proper in rebuttal. We did not suppose there was any doubt about the rule in this State as to collateral impeachment upon matters that were material. As early as Smith v. People, 2 Mich. 416, it has been held that, where the witness neither admits nor denies having made a statement conflicting with his testimony on the trial, but merely says he does not recollect having done so, his credit may still be impeached by showing that he did make the conflicting statement.

The same reásoning applies to the eleventh assignment of error relative to the testimony of the witness Myres in answer to the following questions over objection and exception :

“Q. Did he say, in substance, this, that we must all stand together so that the blame won’t fall on any one man ? * * *
*‘Q. Did he direct you then, or about that time, in substance, to go up there with Doan, and fix the wire up if nobody was around there, and, if they were around there, not to do it ? * * *
“Q. Did you go back to Mr. Frost and report to him that there were some people around there, and did he say to you, ‘Well, let it go’ ?”

The thirteenth assignment of error also relates to permitting the witness Von Notch to answer the following question over objection and exception:

“Q. From your experience, what would you say as to the number of volts, or can you say as to the number of volts, of an alternating current that would be necessary to produce death in a cow ?”

This witness had testified that it would require a less number of volts to kill an animal than a man, and had testified as to how many volts were used in electrocution of men, and as to some experience he had had with electricity in the stockyards of Chicago with cattle. We think that his testimony had a tendency to aid the jury in determining the cause of the death of the horses, and that there was no error in asking the questions.

The fourteenth assignment relates to the testimony of the witness White on rebuttal, wherein he was permitted to testify in answer to the following questions over objection and exception:

•“ Q. I will ask you now if the electric — or if the telephone company, the defendant company, has constructed its wires so close to your wires that they have burned out your cable or their cable ? * * *
Q. What times were those?”

This witness was an electrician in the employ of the Beckwith estate at the time the horses were killed. He had testified to the voltage and, generally, as to the condition of the wire. We think that, in view of certain testimony, especially that of the witness Briggs, it was not error to permit this testimony upon rebuttal. The testimony was certainly material, and whether proper in rebuttal should, in our judgment, be addressed to the sound discretion of the court. We should be reluctant to hold that there was an abuse of discretion in this instance. The sole ground of appellant’s defense to the action, aside from its expert testimony, which tended to show, or sought to show, that the horses were killed by lightning, was that the company’s lines were properly and carefully constructed, and the proximity of the wires was certainly material.

The fifteenth assignment of error relates to the question put to the plaintiff’s expert witness Lucius B. Andrus on rebuttal over objection and exception:

“Q. I desire to ask you the following question: Whether one side of the generator current was connected with the ground, could it maintain a voltage at the ground, or at the point or part entering the ground, different on the ground due to there not being sufficient area of contact to bring the generator voltage to the ground potential in such a way as to make it impossible to get a shock in standing on the ground and touching the object which was grounded ?”

This testimony was introduced to meet the testimony of the defendant’s expert witness Hescott, and would seem to be rebuttal in its nature.

The seventeenth assignment of error should be disposed of in the same manner; and the same may be said with reference to assignment 18; the court having stricken out so much of said answer as was hearsay.

Second Group. The second assignment alleges error in the refusal of the court to permit the plaintiff’s witness Dell Connine to answer the following question on cross-examination :

Q. If you had been the superintendent of the putting up of that plant, and it was built just as you saw it there, would you have considered it properly built and properly grounded ?”

This witness had been a clerk and superintendent of water and light in the city for a number of years. He did not profess any unusual skill, and on his direct examination had been examined only as to facts, and he had testified that he did not pretend to be an electrician. We think there was no error in the refusal to allow an answer to this question, and to leave the jury to draw their own conclusion from the facts.

The eighth assignment of error relates to the refusal of the court to permit the witness Rolland M. Hescott to answer the following question:

“Q. I will ask you what the detail is ?”

This witness was an expert introduced by the defendant, and the defendant sought to show by him the uses of alternating currents by street electric railways. This testimony having been objected to by the plaintiff’s counsel, a colloquy arose between the court and counsel, whereupon the court asked this witness the following questions:

“Q. Is there difference in the voltage, that is, in the manner of taking care of voltage and providing for a place for loss of the respective force of electricity and to dissipate it — is there any difference in an overhead construction such as a trolley wire and T-rail ? Is there any difference in construction to provide against danger ?”

The witness answered:

“Yes, sir; in detail.
The Court: But that detail all refers to the care and avoidance of the loss of life ?
“A. Yes, sir.
The Court: And the details in one are different from the one in the other ?
“A. Yes, sir.”

Then occurs the question by defendant’s counsel, the answer to which was not permitted by the court. We do not think that this matter was material or pertinent to the issue in this case, and would tend rather to confuse than to enlighten the jury, and we are unable to see how the answer would have in any manner aided the jury. We find no error in the ruling of the court.

Third Group. This is the overruling of defendant’s motions to direct a verdict. This is covered by the sixth assignment of error, We have read the record with care in order to appreciate the motion to direct a verdict for the defendant. This work of construction was in progress and not completed at the time of the killing of the horses. There had been testimony showing the condition of proximity and crossing of the wires, the emitting of sparks of electricity, the condition of the surface of the ground where the horses were killed, the manner of their death, the steam or fog arising from the surface, the time with reference to the storm, and whether or not it had abated, the shock received by persons there who stood on the ground, and we are unable to say that the court erred in refusing to direct a verdict for the defendant at this stage of the case. We do not hesitate to say that the case of the plaintiff was much strengthened by the testimony introduced after the plaintiff had rested his case; there being evidence that the limb was broken and left hanging when the wire was put up. We think, however, that, had the defendant rested at this point, the proof introduced by the plaintiff would have supported a judgment in his favor, and therefore there was no error in this ruling.

Fourth Group. This brings us to the refusal of the court to give defendant’s requests to charge. There were three of these requests, and each one absolutely directed a verdict of no cause of action. We think the giving of any one of these requests would have been error, for the reason that, in our judgment, a case was made for the consideration of the jury.

Fifth Group. This covers the assignments of error relating to the voluntary charge of the court. By the twenty-second assignment of error it is claimed that the court erred in using this language in its charge:

“Q. Was it the result of this current coming down this guy wire and into the ground in the manner as claimed by the plaintiff, with the water in the pool and they stepping upon it ? Was it so charged with an electrical current as to produce death in the manner as claimed by them ?”

In our opinion there was evidence that warranted the court in submitting this question to the jury, and we see no error in it.

The twenty-third assignment of error complains of the following language of the court immediately following the last quotation:

“If it was, and you find, in the light of all the testimony in this case, that it was the proximate cause of the death of these animals, then, before you can find the defendant liable in this case, you must further find that they did not exercise reasonable care and reasonable prudence in the stringing of these wires, and in the manner in which they constructed and laid their wires upon North street and the alley in .question.”

There was no error in the giving of this portion of the charge.

The twenty-fourth assignment of error complains of the following language used by the court, after it had instructed the jury that if this storm was an unusual one, an unusual emergency, it need not be provided against; that if there was a board or pole, for that matter, even a limb, so broken by reason of the storm that it threw the two wires together, and they coming in contact thereby produced the damages as claimed in the case, then the defendant would not be liable. Then follows the language complained of:

“But, upon the other hand, if it could be foreseen in the laying of this wire through the trees, and through the limbs, and if it could have been foreseen, and a man of reasonable intelligence and ordinary diligence would have seen and known, then it was their duty to have exercised that reasonable diligence and that reasonable prudence.”

We see no error in this portion of the charge.

The twenty-fifth assignment of error relates to the following language, referring to the stringing of the messenger wire in relation to its proximity to the electric wire, and the court said:

“Does the evidence of the men who are skilled in this direction satisfy you that it was so strung as to be safe to life and limb, that is, reasonably safe, and that they constructed this line — strung these wires and put up these poles and exercised the ordinary reasonable care and prudence such as is expected of men ?”

The court then cautioned the jury that the mere fact of the accident or killing of the horses would not warrant a recovery. "We do not think this assignment is of any force.

The twenty-sixth assignment of error relates to that part of the voluntary charge which was in the following words:

“ So far as the expert testimony is concerned, you will consider that and treat it in the same manner as you treat any of the other testimony in the case. The simple fact that it was offered by experts does not compel you to take their testimony in preference to any other,, but you should give the testimony of the expert witnesses the same right, the same consideration, everything else being equal, as that of any other witness.”

We fail to see any error in this part of the charge.

The twenty-seventh assignment of error complains of the following language in the charge:

“Of course, you will remember this: That the testimony of one line of experts is that such stated facts could not exist and result in the death of the animals. On the other side it is contended that it could.”

If we were to give this language the construction contended for by defendant, in view of the testimony of plaintiff’s expert witness Andrus, we are not prepared to say that there was error. We doubt, however, if it is capable of that construction. The court, in speaking of the defense, had spoken of its expert testimony. When it comes to speak of the other side, it seems to speak of the entire testimony in the case; the language being “ On the other side it is contended that it could.” In any view of the matter, we think there was no error, for there was testimony on the part of the plaintiff’s expert witness tending to establish the plaintiff’s claim, and the question became one for the jury.

The twenty-eighth assignment of error complains because the court said to the jury that there were disputed facts in the case. We have already answered this by saying that we are of opinion that a case for the jury was made out.

The twenty-ninth and thirtieth assignments of error complain because the court used the following language:

“ I will give to you a request to charge that was handed to me by counsel for the defendant, and you will receive it as the law, the same as any I have given you:
‘“If you should find from the evidence that the defendant’s wire was properly and legally erected and grounded, and that the wires of the electric lighting plant were properly and safely placed and insulated; also, that there was no current passing over defendant’s wires from the electric light wires, or, if there was such a current, it was because of an extraordinary storm; also, that there had not elapsed a reasonable time for either the defendant or the electric lighting company to make necessary repairs and to put the lines and wires in a safe condition; and if you find that it was such current of electricity that killed plaintiff’s horses — I charge you that your verdict should be for the defendant.’ ”

Also the following:

“I will give No. 2 of the defendant’s requests to charge:
“ ‘ The defendant would not be liable in this case unless it was guilty of neglect in allowing this current to run over defendant’s messenger wire in the manner as has been testified to by the plaintiff, or claimed by the plaintiff in this case, and such negligence must be shown in this case in order for the plaintiff to recover.’”

We have already referred to certain of defendant’s requests which were refused by the court. It would seem that after refusing those requests, the court had modified and given two of them in the language above quoted. This is complained of by defendant, and counsel urge that it was highly prejudicial to the defendant for the court to modify and change defendant’s requests, and then give them as though they had been proffered by the defendant. In our opinion, the question is whether the court properly instructed the jury and gave a correct rule of law to govern them in considering their verdict. We find no error in this portion of the charge, and, while we think it would have been better to have made no allusion to defendant’s requests in that connection, we cannot hold it to be reversible error.

The thirty-first assignment of error complains of the following language in the charge of the court:

“You must remember that it is important in many ways as bearing upon this class of cases in the future; to some extent it is a precedent, and you should be very careful to follow out and determine this case, not from matters outside of what you have listened to on the witness stand, but what you have heard here in the way of testimony and the law, and the instructions given to you by the court in this case.”

It appears that this case is against the Cass County Home Telephone Company, presumably a local company, and one in which many citizens of that county were interested. We cannot say that there was any error in the court cautioning the jury as it did upon the subject of their care, and most certainly the latter portion of the language used in the above quotation properly stated their duty. In our opinion it was not error and does not call for criticism.

Sixth Group. The sixth group of errors complains of certain oral requests of plaintiff’s counsel which were given by the court during a colloquy with counsel. While this course is not to be commended for many reasons that must be apparent to the profession, such as haste and immature consideration, yet an examination of this portion of the charge fails to disclose any erroneous statement of the law. We do not agree with defendant’s counsel that there was no evidence to support this portion of the charge

We have thus gone over the entire record in the case, and are of opinion that the case was a proper one for the consideration of the jury; that it was properly submitted to them by a fair charge; and that there was no reversible error in the trial of the case, or charge of the court.

The judgment below is affirmed.

Bird, Hooker, Moore, and Brooke, JJ., concurred.


text:
    COMMERCIAL NATIONAL BANK v. GAUKLER.
    1. Equity — Pleading and Practice — Supplemental Bill— Mortgages — Release after Commencement of Foreclosure.
    No necessity exists for the filing of a supplemental bill in foreclosure proceedings, to show a partial payment on the mortgage and the execution of a release of part of the mortgaged premises after the institution of the suit.
    2. Same.
    Nor is a supplemental bill required to show the payment of taxes after the filing of the bill, in order to include them in the decree.
    Appeal from Wayne; Mandell, J.
    Submitted February 7, 1911.
    (Docket No. 136.)
    Decided April 4, 1911.
    Bill by the Commercial National Bank against Josephine Gaukler to foreclose a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.

      George W. Radford, for appellant.
    Angell, Boynton, McMillan & Bodman, for appellee.
    This is an appeal from a decree of foreclosure. The record shows that the bill was filed March. 28, 1908. Defendant was personally served with process on April 1, 1908, and the bill was taken as confessed April 17, 1908. On the same day complainant received from defendant a payment, in consideration of which it executed a discharge of the mortgage as to part of the mortgaged premises, and thereafter and on May 7, 1908, it filed a supplemental bill of complaint in all respects like the original bill, except that it set out the fact of the partial discharge. No process was issued or served upon the filing of the supplemental bill. The case remained in statu quo for nearly 18 months, when, on October 28, 1909, defendant made a motion to dismiss the cause—
    “For the reason that * * * on April 17th, 1908, for a good and valuable consideration, the parties to said cause mutually agreed that the same should be dismissed and discontinued.”
    This motion was heard upon voluminous affidavits, and counter- affidavits, and on November 11, 1909, an order was made denying defendant the relief sought. On the day before this motion was decided defendant filed another motion. The latter motion was for an order setting aside the order pro oonfesso, the grounds set up being:
    “ (1) Because said defendant did not appear and defend said cause to which she has a good and valid defense, because of her reliance upon the agreement of the complainant to discontinue said cause, made prior to the entry of said order pro confesso herein.
    “ (2) Because no process has been served on the supplemental bill herein.”
    This motion was likewise denied, and the' cause came on to be heard in open court on December 6, 1909, defendant’s counsel having been notified of the hearing and being present in court. Upon the hearing, defendant, who had filed an .answer to the original and supplemental bills, the default not having been set aside, sought to offer proofs concerning the allegations of the answer. This the court declined to permit except with regard to the amount due under the mortgage. The court said:
    “ When the matter was before the court on motion for leave to reopen, a statement was made in open court that all you desired was an opportunity to contest the amount. I so understood and determined then that the interest of the defendant would be amply protected and I so stated at the time and determined then that 1 would permit the defendant to be represented by counsel at the hearing for the purpose of cross-examining the witnesses as to the amount that was due under the mortgage, and for no other purpose.”
    Testimony as to the amount due was taken, and complainant’s witness was fully cross-examined thereon by counsel for defendant.
   Brooke, J.

(after stating the facts). Defendant’s position, as defined by her counsel, is as follows:

“It is, on the other hand, contended on behalf of defendant and appellant, that, by the transaction of April 17, 1908, she was entitled, as a matter of fact and agreement, (a) to have the bill dismissed, and an extension of time, in order to make an advantageous sale of the remainder of the property mortgaged, in parcels, unhampered by pending foreclosure of the mortgage which did not contain a release clause; and, as matter of law, (6) that it was improper for the complainant to take the original bill as confessed, on April 17, 1908, after the transaction of that date; (c) that the only way complainant could have proceeded after the transaction of April 17, 1908, was by the filing of a supplemental bill, which should have accurately set up the entire transaction of April 17, 3 908, instead of merely changing the description of the real estate so as to exclude the lots released; (d) and also that the decree entered must be reversed because it covers taxes which were paid after the supplemental bill was filed, and before they could be included in any decree a new supplemental bill should have been filed; (e) that process should have issued under the supplemental bill and defendant given an opportunity to answer after service thereof.”

Upon the question of the alleged agreement of complainant to dismiss its bill at the time of the execution of the partial discharge, we have examined the record with care, and conclude that the learned circuit judge made a proper disposition of the motion to dismiss.

Upon the execution of the partial discharge, there was no necessity of filing a supplemental bill. Had none been filed, the decree of foreclosure would simply have omitted the description covered by the lease. There was no new or material averment added by the supplemental bill, and it was unnecessary to issue process thereon. The case of Harris v. Deitrich, 29 Mich. 366, relied upon hy defendant, is not in point, as in that case there was new matter material to the issue set up in the supplemental bill. The other authorities cited by defendant have been examined, but they are not applicable to the state of facts presented in the case at bar.

Defendant presents many authorities to the effect that new matter arising after the filing of the original bill must be brought before the court by supplemental bill, and it is urged that the payment of taxes after the bill was filed and before decree was such a matter. There is no doubt of the correctness of the principle contended for. This court, however, has determined that where the mortgage provides for the payment of taxes, as the one here in suit does, those taxes paid between the filing of the bill and the taking of the decree are properly included in the decree. Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440), and cases cited.

We find no error in the proceeding, and the decree is affirmed, with”costs to the complainant.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.