author: Brooke, J.

text:
    WELLING v. KALAMAZOO LUMBER CO.
    1. Customs and Usages — Evidence—Sufficiency.
    Testimony of a carpenter and cabinet maker, who did not have general knowledge, of a custom in the community to use a guard on a universal saw, and who gave testimony covering merely his experience, should have been withdrawn by the court from the consideration of the jury, by an instruction that there was no competent evidence of a custom in that vicinity to use guards on such machines, in a personal injury action against. his employer.
    2. Master and Servant — Assumption of Risk.
    Where plaintiff had used the saw at which he was injured on occasions previous to his injury, and knew how to operate it, the court erroneously instructed the jury that there was no contract of hire to do the machine work; plaintiff assumed such risks as were or ought to have been obvious to him, in the exercise of reasonable care.

      ,3. Same — Defective or Unguarded Machinery — Risks Assumed —Negligence.
    Where defendant claimed and ofEered evidence tending to prove - that its superior servant had told the plaintiff to lower the saw, and that plaintiff had failed to comply with the instructions, defendant was entitled to have its request given, that if plaintiff was hurt because he did not lower the saw, and the other facts were found as claimed by the defense, he could not recover.

      A. Same — Obvious Defects — Sawdust.
    Upon testimony having a tendency to show that an accumulation of sawdust under the machine might have caused plaintiff’s injury, the court did not err in refusing to instruct the jury that plaintiff could not recover on that claim, since it appeared that he was not the regular operator of the saw.
    Error to Kalamazoo; Knappen, J.
    Submitted June 12, 1913.
    (Docket No. 52.)
    Decided October 1, 1913.
    Case by John C. Welling against the Kalamazoo Lumber Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Boudeman, Adams & Weston, for appellant.

      Smedley, Linsey & Lillie, for appellee.
    The plaintiff, a man 48 years of age, was a carpenter and cabinetmaker by trade. He worked as a cabinetmaker in Grand Rapids some six or eight years, and as a carpenter in Kalamazoo six or seven years. He entered the employ of the defendant on March 25, 1910, and was injured on August 12, 1910. Defendant operates a lumber yard and planing mill. In its manufacturing plant it uses various machines and saws, including those ordinarily used in producing interior finish. Plaintiff’s work in defendant’s factory consisted in nailing up forms and doing all kinds of stair work and carpenter work. He worked at a bench located some 25 feet west of the saw upon which he was injured.
    This machine was what is known as a universal saw, the table was of iron, 3x4 feet, and the saw could be lowered or raised by means of a wheel or crank in the front of the table. This saw had been used by plaintiff a half dozen or dozen times during the course of his employment. Such use was only occasional and for the purpose of preparing a single piece now and then, of which plaintiff was in immediate need in the production of his work. On the morning in question the. machine man who usually prepared the material for plaintiff’s work was otherwise engaged. Though working upon the machine in question, he was getting out material for another carpenter. Plaintiff was instructed to build some newél posts, and to himself machine the material necessary for their construction. He went to the stock room and secured the necessary lumber, and ripped it or sawed it up upon a machine on the lower floor. He then carried it upstairs to his bench, and proceeded to nail it up. It then became necessary to prepare pieces for the “trim” of the posts. These were pieces of pine board 3 inches wide, % of an inch thick, and about 5 feet long. The machine near his bench being at that time idle, plaintiff took his boards to it for the purpose of sawing strips off — thus making them exactly 3 inches wide. He adjusted the gauge to 3 inches, threw the belt from the “loose” to the “drive” pulley, and proceeded with the work.
    The man who had preceded him upon the machine had left it so adjusted that about 3 or 4 inches of the saw projected above the table. Plaintiff did not lower the saw though he testifies he knew the crank in front of the table was there for that purpose, and had seen it so used. After running through 4 or 5 pieces, and while in the act of pushing another through, the board upon which he was working "kicked back,” and struck him in the face. He momentarily lost his balance, and his left hand came in contact with the saw, severing his index and second fingers at the first joint. After -an absence of less than two weeks, he returned to work and remained until late in October, when he was laid off.
    He later, brought suit, charging defendant with negligence (1) in failing to have the saw properly guarded, according to law; (2) in permitting sawdust to accumulate to a dangerous degree under the saw; and (3) in failing to properly instruct plaintiff as to the dangers incident to the operation of the saw.
    It affirmatively appeared and the court charged the jury that the saw in question was the best of its kind and in perfect repair at the time plaintiff was injured.
    At thé conclusion of plaintiff’s case, it having been made to appear that the accident was primarily attributable to the fact that the saw was too high— projected too high through the top of the table— plaintiff’s counsel asked leave to amend his declaration, charging that defendant was negligent in failing to warn and instruct plaintiff as to the necessity of lowering the saw. This amendment was permitted over defendant’s objection. Plaintiff secured a judgment, which is now reviewed on writ of error.

       As to assumption of obvious risk of hazardous employment, see note in 1 L. R. A. (N. S.) 272. And for assumption of risk of defective tool, machine, or appliance, where the defect is obvious, but its importance not appreciated, see note in 13 L. R. A. (N. S.) 691.

   Brooke, J.

(after stating the facts). There are some 45 assignments of error, only a few of which we will consider. We find it unnecessary to pass upon the propriety of allowing the amendment, as the case must be reversed upon other grounds.

It appeared that the factory inspector had never ordered a guard to be placed upon the saw in question. Plaintiff then endeavored to show that it was customary to use guards upon such machines in that vicinity. At the close of the evidence of the only witness by whom it was sought to show this custom, the following occurred:

“Mr. Adams: I move to strike out the testimony, as far as the general custom is concerned, of the witness in the city of Kalamazoo as irrelevant, immaterial, and inadmissible.
“The Court: The motion should be granted; he doesn’t seem to know very much about the custom.
“Mr. Linsey: An exception.
“The Court: He should have some knowledge of the general custom prevailing in the city; part is hearsay, and some of it was a good ways back.
“Mr. Adams: A man who has worked on machines of this kind might give expert testimony as to the machine; but now he has testified to a custom. That is not a question of experience; that is a question of knowledge. My point is that from his own showing here before the court and jury that he has not qualified himself, and shows affirmatively that he does not know what the custom is.
“Mr. Linsey: Here is a man who has worked in a great number of shops for 20 years on this kind of saws, and he says he knows what the custom is. In every place where he has worked they have used them, and in but one instance did he testify as to it being hearsay.
“The Court: The motion may be denied pro forma. I will think it over.”

Upon this point the court charged as follows:

“I charge you that, while it is the general rule of law, it is not the duty of the master to furnish guards on a ripsaw or a saw of the kind which plaintiff was injured upon in the absence of an order made by the State factory inspector; however, if you find that plaintiff was ordered outside of the scope of his employment, and it is, as he claims, the custom to guard these kind of saws in this vicinity, and the injury resulted in the failure to have a guard upon this saw, then it was the duty of the defendant to have this saw guarded, and in the absence of a guard it would be negligence.”

We are of opinion that the court should have adhered to the original ruling, and charged the jury that there was no competent evidence of a custom to use guards on such machines? in the vicinity of the city of Kalamazoo. Ledyard v. Hibbard, 48 Mich. 421 (12 N. W. 637, 42 Am. Rep. 474); Black v. Ashley, 80 Mich. 90 (44 N. W. 1120); Eaton v. Gladwell, 108 Mich. 678 (66 N. W. 598).

Upon the question of the assumption of risk, the court charged:

“I charge you, gentlemen of the jury, that if you find the plaintiff was ordered to work upon' this saw by Mr. Lage, through Mr. Hice, who was acting as foreman, and the plaintiff did proceed to work upon this saw and do his own machine work in pursuance of this order, then he, working outside the scope of his regular employment, of the particular work he was hired to do, therefore, did not necessarily assume the risk of all obvious danger incident to the work upon that machine. I charge you that assumption of risk arises from the contract; the servant assuming the risk of all obvious dangers incident to the service which are known or should have been known to him. In this case there was no contract of hire to do this machine work, and, therefore, if the plaintiff was ordered to work upon this machine by the defendant’s foreman, he did not by that act assume the risk.”

And again:

“I charge you that the risks which the servant actually assumes are only those which are incident to the employment, and he may always require of a master response for injuries resulting from his personal negligence, that is, the master’s personal negligence. Cases of this sort occur when the master exposes the servant to unsafe machinery or sends him into places where there are risks of which he is ignorant. This principle may be applicable even when the risks are apparent and fully opened to observation, provided the servant from his inexperience or other causes is .incapable of fully understanding and appreciating them.”

We think the first of these instructions is erroneous and misleading. The plaintiff in undertaking to operate the machine in question did assume the risk of all obvious danger incident to the work upon thát machine. In other words, considering his age and experience, he must be held to have assumed such risk as was, or in the exercise of ordinary prudence should have been, obvious to him.

The second excerpt quoted above is taken from an opinion in the case of Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205, 211, 212, when plaintiff’s intestate, a boy between 17 and 18 years of age, physically lame and mentally weak, employed as a common laborer, lost his life in attempting to obey an order of the master requiring him to act as brakeman. The observations of the court were peculiarly pertinent to the facts in that case, and, while technically correct as an abstract legal proposition, we are of opinion that the instruction should not have stopped where it did, but. that the court should have stated the converse of the proposition, and instructed the jury that the plaintiff did assume such risk as was or should have been obvious to him.

Plaintiff produced a witness named George Hice, who was defendant’s foreman at the time of the accident, and who gave plaintiff the order to machine his own material. This witness, though with apparent reluctance, testified that he had instructed plaintiff as to the necessity for lowering the saw when ripping this material so that the saw would “just make a clean cut,” and also how to lower it.

Upon this point defendant preferred the following request:

“If you find that it was safer to lower the saw in order to saw what the plaintiff wanted to saw on the morning in question, and if you further find that plaintiff did not lower the saw, and because he did not, if he did not lower the saw, he was hurt, and if you further find that Hice had before the time of the accident, whether on that day or on some other day or days, told the plaintiff to lower the saw so that the saw just came through the material to be sawed, or told him that in substance, then plaintiff cannot recover.”

We think this was a proper request, and should have been given.

It is urged by defendant that the court should have instructed the jury that:

“Plaintiff cannot recover on account of any claim that he makes that sawdust was under the. machine and about the saw” — citing Willis v. Besser-Churchill Co., 126 Mich. 659 (86 N. W. 133).

We do not think that case controlling. In the instant case the plaintiff was not the regular operator of the machine, and therefore we think should not be charged with notice of the condition, as a matter of law. Of course, he Was bound to take notice of a condition clearly obvious, the effect of which was, or should have been, known and appreciated by him. But it is said that it is not shown that the presence of the sawdust interfered in any way with the plaintiff, or caused or contributed in any way to his injury. There is some testimony, though not very convincing, to the effect that the presence of the sawdust may have contributed to the accident.

Other errors assigned have been examined, but require no discussion.

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

license: Public Domain

text:
    NATIONAL SURETY CO. v. GRANT.
    1. New Trial — Weight oe Evidence — Jury Question.
    Where defendant was charged with receiving a check for $593.56, which he was not entitled to, from his successor in the office of township treasurer, and on the trial plaintiff’s evidence was contradicted by that of defendant and by certain alleged admissions of his successor in office, the issue was one for the jury and the court properly denied a motion for new trial on the ground that the-weight of the testimony was for the jury.
    2. Same — Newly Discovered Evidence.
    It was not an abuse of discretion to deny a new trial for which plaintiff asked, on the ground of newly discovered evidence, when the testimony was merely cumulative and might have been produced on the trial with the exercise of due diligence.
    Error to Presque Isle; Emerick, J.
    Submitted June 16, 1913.
    (Docket No. 97.)
    Decided October 1, 1913.
    Assumpsit by the National Surety Company against Fred O. Grant for money had and received. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      I. S. Canfield, for appellant.

      C. S. Reilley, for appellee.
   Brooke, J.

In April, 1906, defendant was the outgoing treasurer of the township of North Allis. The township board met on March 21st and found a balance due from defendant to the township of $2,878.73. On April 24, 1906, defendant met William A. Wright, the incoming treasurer, at the office of the Onaway Banking Company, in which institution the township funds were deposited, and there turned over to Wright certain paid orders, together with a check for $1,669.30 on the Onaway Banking Company. Altogether these sums equaled the sum of $2,878.73 found by the board to be due. Plaintiff was surety upon Wright’s bond. In October, 1906, Wright was found short in his accounts and resigned. Plaintiff and Wright were afterwards sued by the township, and a judgment was recovered for $496.16 and costs, which were taxed at $60.50". These sums were paid by plaintiff.

Plaintiff thereupon, as assignee of Wright, brought the instant suit against defendant. It was plaintiff’s claim that on April 26, 1906, two days after defendant had given Wright the check for $1,669.30 in settlement of his account with the township, defendant went to Wright and falsely and fraudulently represented to him that he (Grant)' had overpaid him to the amount of $593.56. That on said day defendant secured from Wright a check on the township fund for that sum, which was immediately deposited in the Onaway Bank to cover an overdraft of Grant’s for that amount, created by the giving of the check for $1,669.30 on April 24th. These facts were testified to by Wright, and testimony was given by Frank D. Hughes, at that time cashier of the Onaway Banking Company, tending to support plaintiff’s theory. The books of the banking company were introduced in evidence. The entries therein, if they represented actual transactions, strongly supported plaintiff’s claim. On the other hand, defendant flatly denied ever having received from Wright the check in question, and it was shown (indeed, Wright himself testified) that upon the discovery of Wright’s shortage he (Wright) protested to the township officials that he had ever given defendant the check in question. Wright was unable to produce the canceled voucher. Under these circumstances, the case resolved itself into a pure question of fact, which was submitted to the jury in a careful charge, to which no exception is taken. The jury returned a verdict for defendant.

In this court plaintiff argues but two assignments of error:

(1) The verdict is against the great weight of the evidence.

(2) The court erred in refusing to grant a new trial because of newly discovered evidence.

1. We have perused this record with care and interest, as it presents an anomalous state of facts. Both Wright and defendant appear to be men of good reputation and seeming honesty. Yet they flatly contradict each other upon an important question of fact, the actual truth concerning which is known to them alone and about which neither can very well be mistaken. From a perusal of the record it is difficult to determine where the right of this controversy lies. The jury heard the, evidence of these men and determined that defendant told the truth. The circuit judge saw the witnesses and heard them testify and denied a new trial. We are of opinion that in so ordering there was no abuse of discretion. Dupuis v. Traction Co., 146 Mich. 151 (109 N. W. 418).

2. We are satisfied that the court below properly denied a new trial upon the ground of newly discovered evidence. This case was tried more than five years after the happening of the events put of which it arose. The evidence of McQueen (the newly discovered witness) is cumulative only. We think reasonable diligence on the part of plaintiff would have discovered its existence. Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444); Grand Rapids Electric Co. v. Manufacturing Co., 142 Mich. 4 (105 N. W. 1).

The judgment is affirmed.

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


author: Stone, J.

text:
    ULTZ v. UPHAM.
    1. Deeds — Construction — Wills — Life Estate — “Heirs” — Words and Phrases.
    Under a deed granting farm lands to the daughter of the grantors for her life and “at her death to her legal heirs excepting her present husband,” containing covenants of seizin, warranty, and against incumbrances, and executed in conjunction with a life lease of the premises from the grantee to the grantors, the said daughter took a life estate with the remainder over to her legal heirs subject to the exception: the instrument was not testamentary in character.
    2. Adoption — Heirs—Descent and Distribution.
    The term “legal heirs,” employed in the granting clause of a deed, included the adopted son of the grantee, who took title as if he had been an own child, under 3 Comp. Laws, § 8780 (4 How. Stat. [2d Ed.] §11640), which provides that the persons adopting “shall thereupon stand in the place of a parent or parents to such child in law and he liable to all the duties and entitled to all the rights of parents thereto and such child shall thereupon become and he an heir at law of such person or persons, the same as if he or she were in fact the child” thereof.

    Appeal from Branch; Knowlen, J.
    Submitted June 18, 1913.
    (Docket No. 103.)
    Decided October 1, 1913.
    Bill by Sarah I. Ultz against Charles Upham and others for the construction of a deed. From a decree for complainant, defendants appeal.
    Reversed.

      H. H. & B. E. Barlow, for complainant.

      Clayton C. Johnson and Charles U. Champion, for defendants.

       The question whether terms “child,” “children,” “issue,” etc., in a will, include adopted children, is treated in a note in 27 L. R. A. (N. S.) 1158.

   Stone, J.

The question presented by the bill of complaint in this case is the construction of the granting clause of a certain deed therein described. No question is raised by the pleadings as to the jurisdiction of equity in the case or as to the practice. The history of the transactions involved is as follows :

The complainant and her husband, John A. Ultz, being the owners by the entireties of the E. % of the S. E. 1/4 of section 19, town 7 south, range 8 west, Branch county, Mich., excepting one acre for burying ground, they on the 17th day of February, 1892, conveyed the said land to Ida A. Ultz Upham, one of their five children, by deed duly delivered, which deed contained the following provision:

“And by these presents do grant, bargain, sell, remise, release, alien and confirm unto the said party of the second part, for her lifetime only, and at her death to her legal heirs, excepting her present husband, Oscar J. Upham, their heirs and assigns, the intention of this instrument being to create a life estate only in said second party, and remainder in said second parties heirs, excepting therefrom her husband, also reserving from said conveyance a life estate in said first parties.”

The habendum clause in said deed reads as follows:

“To have and to hold said premises as above described with the appurtenances unto the said party of the second part, and to her heirs and assigns as above set forth.”

The covenants of seisin and against incumbrances are in the usual form, and the covenant as to possession, is in the following words:

“And that the above bargained premises in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, as above set forth, against all and every person or persons, lawfully claiming or to claim the whole or any part thereof, they will forever warrant and defend.”

On the same day, to wit, February 17, 1892, Ida A. Ultz Upham executed and delivered a life lease of said above-described premises to John A. Ultz and Sarah I. Ultz, and the survivor of them; the granting clause of said instrument reading as follows:

“Does by these presents, grant, bargain, sell, remise, release and forever quitclaim unto the said parties of the second part, during the lifetime of both of said second parties, and at the death of both of said second parties to revert to sai<] first party, heirs and assigns. The survivor of said second parties to have sole use during lifetime.”

The habendum clause in said instrument reads as follows:

“To have and to hold the said real estate to the said parties of the second part, and to their assigns, to the sole and only proper use, benefit and behoof of the said parties of the second part, and assigns, during their lifetime as aforesaid.”

The expressed consideration in each of said deeds was one dollar.

No child was born to Ida A. Ultz Upham during her lifetime. On August 16, 1909, Oscar J. Upham and Ida A. Ultz Upham regularly adopted under the statute a child named Charles Sturm; the said child thereafter being known as Charles Upham, who is one of the defendants herein.

John A. Ultz died January 16, 1911. Ida A. Ultz Upham died testate on December 2, 1911, and in and by her last will and testament made and constituted her husband, Oscar J. Upham, sole legatee and devisee of all her estate, both real and personal, and such will has been duly admitted to probate.

Upon the hearing evidence was offered on behalf of complainant and received against the objection of the defendants, tending to show that John A. Ultz and Sarah I. Ultz, the grantors, intended to limit the grant or remainder to themselves, if living, at the time of the death of Ida A. Ultz Upham, and, if not so living, to her brothers and sisters.

It was and is the claim of complainant that the words “legal heirs,” used in the granting clause, and the word “heirs” in the habendum in the deed from John A. and Sarah I. Ultz to Ida A. Ultz Upham, were used in their customary and ordinary sense and did not include “contract heirs” or “adopted heirs,” and that complainant, being the mother and only surviving parent of Ida A. Ultz Upham at the time of her decease, became and was entitled to the property in question under the statute of descent then in force. From a decree in favor of complainant, the defendants have appealed.

On the part of the defendants it is not claimed that either of them acquired any title to the lands in question under said will, but it is claimed that Charles, the adopted child of the said Oscar J. Upham and Ida A. Ultz Upham, is a legal heir within the meaning of the deed executed to Ida A. Ultz Upham and as such took the remainder limited to the heirs of Ida A. Ultz Upham on the death of the latter, subject to the life estate of Sarah I. Ultz; the complainant, and that the deed and life lease should be construed together. It is also urged by complainant that the first deed referred to was testamentary in character. We cannot agree with this claim of complainant. The instrument was, in our opinion, a deed, taking effect on delivery, vesting a life estate in Ida A. Ultz Upham, and at her death the estate to go to her legal heirs, subject to the life estate of the- first parties.

Section 8780, 3 Comp. Laws (4 How. Stat, [2d Ed.] § 11640), relating to the adoption of children, contains the following language:

“And the person or persons so adopting such child, shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon becoftie and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.”

It being conceded that Charles Upham was legally adopted by Ida A. Ultz Upham and her husband, Oscar J. Upham, did he not thereupon become the “legal heir” of Ida A. Ultz Upham? We think so. Counsel for complainant have called attention to the statute of descent and claim that, at the death of Ida A. Ultz Upham, Charles could not inherit as her heir under the . statute and terms Of the deed. We are of opinion that the very language of the adoption statute refutes such claim for the reason that he “thereupon becomes an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.” Language could not well be stronger. We can see no difference between “an heir at law” and a “legal heir.”

This view is in accord with the holding of the supreme court of Illinois in Butterfield v. Sawyer, 187 Ill. 598 (58 N. E. 602, 52 L. R. A. 75, 79 Am. St. Rep. 246). The statute of that State provided that an adopted child should be regarded as if it had been born in lawful wedlock for the purposes of inheritance “and other legal consequences and incidents of the natural relation of parents and children.” A deed from B. to his daughter conveyed to her a life estate, with remainder to her child or children, and in default thereof to her “heirs generally,” forever. The daughter died without children except an adopted son. It was held that such adopted son would take the fee simple, under thé terms “heirs generally,” in preference to the collateral heirs of the daughter. The court there said:

“It is earnestly insisted on behalf of appellants that the grantor by the term ‘heirs generally/ meant ‘collateral heirs/ but we find no warrant in the deed for so holding. The deed itself does not show that he used the language ‘heirs generally’ in any other than its commonly accepted legal sense. To hold otherwise is to enter the field of speculation as to his intentions, which is not permissible. In giving construction to deeds we are confined to the terms of the instrument itself, the object being to ascertain the intention of the grantor as expressed by the language used and not the unexpressed purpose which may at the time have existed in his mind. Where there is no ambiguity in the terms used, or where the language used has a settled legal meaning, the instrument itself is the only criterion of the intention of the party” — citing cases.

Less latitude is allowed in the construction of deeds than in the construction of wills. In a deed the word “heirs” in a general comprehensive sense includes all who stand in a relation to the ancestor that will entitle them to inherit on his death, and it includes an adopted child, placed by the statute on an equality with children by birth for the purpose of inheriting from the adopting parent. Wallace v. Noland, 246 Ill. 535 (92 N. E. 956, 138 Am. St. Rep. 247).

Counsel for complainant have cited in support of their position Morrison v. Sessions, 70 Mich. 297 (38 N. W. 249, 14 Am. St. Rep. 500). An examination of that case will show that it involved the construction of a will, and the court was able from the surrounding circumstances, which were peculiar and unusual, to arrive at what was actually in the mind of the testator. Speaking of the testator, the court said:

“But he left a will, and the only question is the proper construction of that will. The cardinal principle in the interpretation of wills is to arrive at and carry out the intention of the testator if it is lawful.”

We think that the question here presented was not passed upon in that case. It should be borne in mind that nothing is claimed for the will of Ida A. Ultz Upham in the instant case. Defendant Charles Up-ham does not claim under the will but under the deed of February 17, 1892. Reinders v. Koppleman, 94 Mo. 338 (7 S. W. 290), referred to in the Morrison Case, was also a case involving the construction of a will.

Neither is the instant case controlled by Van Derlyn v. Mack, 137 Mich. 146 (100 N. W. 278, 66 L. R. A. 437, 109 Am. St. Rep. 669, 4 Am. & Eng. Ann. Cas. 879). In that case it was held that the adoption statute does not make such children heirs of the kindred of the persons adopting them. That case, however, is instructive upon the subject we are considering and shows that the adoption statute gives power to the child to inherit from the adopting parent. It also shows that the apparent inharmony in the cases in the different States may be explained by the varying statutes. As was- said in Helms v. Elliott, 89 Tenn. 451 (14 S. W. 931, 10 L. R. A. 535):

"The law of adoption arbitrarily establishes for the adopted child the relation of heir and next of kin to the adopting parent; but it does not establish such a relation to the descendants of the adopting parent.”

Applying the familiar rule of Jacobs v. Miller, 50 Mich. 119 (15 N. W. 42), and Bolio v. Marvin, 130 Mich. 82 (89 N. W. 563), that in the construction of a deed the intent of the grantor is to be gathered from the whole instrument, that the language employed is to be taken most strongly against the grantor, and that the terms of a deed must be given their legal effect, we are constrained to hold that the premises in question are owned in fee by the defendant Charles Upham subject to the life estate of complainant therein.

The decree of the court below is reversed, and bill of complaint dismissed, and a decree will be entered here in accordance with the prayer of the defendant Charles Upham, and the views herein expressed. The defendants will recover their costs of the complainant to be taxed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


author: BROOKE, J.

text:
    PEOPLE v. SMITH.
    1. Intoxicating Liquors — Indictment and Information — Counts — Election—Return of Justice.
    The trial court, in a prosecution on an information embracing two counts, the first for selling intoxicating liquor to an habitual drunkard, and the second for selling to a posted person, was not in error in denying a motion to quash the information because the justice of the peace before whom respondent was examined refused to specify in his return on which count he bound over the accused, who, at the trial, asked for and obtained an election on which count the prosecutor proposed to proceed.
    2. Same — Complaint—Criminal Law — Pleading.
    It was sufficient to charge the offense in the language of the statute creating the offense. 2 Comp.. Laws, § 5391 (2 How. Stat. [2d Ed.] § 5067).
    3. Criminal Law — Trial—Requests—Refusal.
    In marking respondent’s requests to charge “refused, except as covered in the general charge,” the circuit judge sufficiently complied with the statute which requires the court to mark such requests “given” or “refused,” error being assignable on the charge and refusals to instruct without taking specific exceptions under Act No. 52, Pub. Acts 1901 (5 How. Stat. [2d Ed.] § 12960). See 3 Comp. Laws, §10245 (4 How. Stat. [2d Ed.] § 11839).

      4. Same — Trial—Opening Statement — Intoxicating Liquors.
    Upon the trial of a prosecution for selling liquor to an habitual drunkard, the court committed reversible error in refusing to counsel for respondent the privilege of stating his theory, of the law to the jury in opening his defense.
    Exceptions before sentence from Ingham; Wiest, J.
    Submitted June 13, 1913.
    (Docket No. 126.)
    Decided October 1, 1913.
    William Smith was convicted of selling intoxicating liquor to an habitual drunkard contrary to statute.
    Reversed.

      Grant Fellows, Attorney General, Charles H. Hayden, Prosecuting Attorney, and William C. Brown, Assistant Prosecuting Attorney, for the people.
    L. B. Gardner, for respondent;
   BROOKE, J.

The information in this case contained two counts. Under the first the respondent was charged with having made an illegal sale of intoxicating liquor to one Edwin Bowman, a person in the habit of getting intoxicated. 2 Comp. Laws, § 5391 (2 How. Stat. [2d Ed.] § 5067). Under the second count respondent' was charged (the same act being counted upon) with having made an illegal sale of intoxicating liquor to said Bowman; respondent having been theretofore—

“Forbidden in writing by Gottlieb Reutter, mayor of said city of Lansing, to sell, furnish, and give away any spirituous, malt, brewed, fermented, and vinous liquor to said Edwin Bowman.”

The first assignment of error is based upon the refusal of the court to quash the information. Some 19 reasons were urged why the motion should be granted. We notice only two:

First. “Because the justice of the peace refused to specify in his return to the circuit court upon which count of the complaint and warrant he would or did bind the respondent over to the circuit court upon.”

It is respondent’s contention that he should not have been held for trial upon both counts, citing People v. Keefer, 97 Mich. 15 (56 N. W. 105), and People v. Rohrer, 100 Mich. 126 (58 N. W. 661). Neither case is authority for the proposition stated. At the circuit respondent was entitled to have the prosecutor elect upon which count he would proceed, and this was done; the prosecutor designating the first count.

Second. “Because the complaint, warrant, and information do not charge the respondent with having sold intoxicating liquor to a person with intent to violate the law.”

The information in the case at bar is essentially framed in the language of the statute creating the offense. In a prosecution under a statute it is sufficient, as a general rule, to charge the commission of the offense in the language of the statute. 3 Comp. Laws, §11924 (5 How. Stat. [2d Ed.] §15095); People v. Kennedy, 105 Mich. 75 (62 N. W. 1020), and cases cited.

Assignments of error numbered from 2 to 6, inclusive, relate to the admission or exclusion of evidence. We are of opinion that they are all without merit and require no discussion.

Assignments of error numbered from 8 to 27, inclusive, relate to the refusal of the court to charge as requested and to the charge as given. After a careful perusal of the charge, we conclude that it was a correct exposition of the law governing the case; that it covered all of respondent’s requests which should have been given; and that it carefully preserved all of respondent’s rights.

Assignment of error No. 28 is based upon the fact that the trial judge marked the requests of respondent, “Refused except as covered in the general charge,” instead of marking each request “refused” or “given,” as required by the statute. 3 Comp. Laws, § 10245 (4 How. Stat. [2d Ed.] § 11839). We think what was done a sufficient* compliance with the statute, in view of the fact that error may now be assigned upon the charge or refusal to charge, without the necessity of taking an exception. Act No. 52, Pub. Acts 1901 (5 How. Stat. [2d Ed.] § 12960).

This leaves for discussion only assignment of error No. 7, which is based upon the following occurrence during the trial: In opening for the defense counsel said:

“Mr. Gardner: May it please your honor and gentlemen of the jury, this is a charge made under a certain statute which makes it a misdemeanor for a person who is engaged in the sale of intoxicating liquors to sell to a person who is in the habit of getting intoxicated. There are some questions stated here about a notice. The count in reference to that has been eliminated by his honor and the prosecuting officer. So the only question that comes before you is: Did William Smith, the respondent, on the 7th day of September last, sell intoxicating liquors to this man, E.dwin A. Bowman? The question further is: If he did, was he a person in the habit of getting intoxicated? Now, in order for me to state clearly the facts that we will bring out in the defense, it is proper for me to state to you what I understand the law to be in reference to that, so as to direct your attention specifically to the facts, and by and by his honor will tell you just what the law is, and it is for him to tell you.
“The Court: I think, Mr. Gardner, that in your opening statement of what you expect to prove you should confine yourself to a statement of the facts you expect to prove. It is not necessary at this time to state any law.
“Mr. Gardner: Well, isn’t it necessary, if your honor will bear with me, I have a right to state, have I not, what it is necessary for the prosecutor to prove, and then we will state what we expect to prove as a refutation of it?
“The Court: You should confine yourself at this time to a statement of the evidence you intend to offer.
“Mr. Gardner: I would like to note an exception to that.
“The Court: This is not an argument.
“Mr. Gardner: No.
“The Court: You may state to the jury the facts you expect to show.”

This ruling, it is insisted on the part of respondent, constitutes reversible error.

Three cases are cited and relied upon: Fosdick v. Van Arsdale, 74 Mich. 302 (41 N. W. 931); Prentis v. Bates, 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494) ; and Edwards v. Three Rivers Common Council, 96 Mich. 625 (55 N. W. 1003). In the first of these cases, as in the case at bar, counsel for defendants—

“Proceeded to state the defendants’ case to the jury and during the opening proceeded to state the law governing the defendants’ case, and upon which the defense was based, whereupon the counsel for the plaintiff interposed an objection, and the said court sustained the objection, stating that the law .would come from the court in due time.”

Error having been assigned upon this ruling, this court, speaking through Justice MORSE, said:

“We are not able, from this meager statement in the record, to know whether error was committed or not by this action of the circuit judge. But counsel have the right in stating their case to the jury at the opening to briefly set forth what points of the law they rely upon, and the nature of the testimony they propose to introduce to support such points. It is true the law is to be given by the court ; but, as it is not given in most cases until the testimony is ended, and the counsel have summed the same up in support of their case before the jury, the counsel have the right, both in opening the case to the jury, before the testimony to support their case is offered, and when closing the argument, -after the testimony is in, to state to the jury that they claim the law to be thus and so, and that they shall request the court to so instruct them. * * * They ' have the undoubted right to state so much of the law, as they claim it to be, as may enable them to lay before the jury an intelligent idea of the force, effect, and bearing of the testimony upon their , case, either before or after said testimony is in the case.”

In the case of Prentis v. Bates, supra, counsel had been permitted in his opening statement to the jury to state his views upon the law. It was urged in this court that the privilege had been abused and that the law as stated by counsel was not sound. Justice Montgomery, speaking for the court, said that it was evident counsél had acted in the utmost good faith, and, under the authority of Fosdick v. Van Arsdale, was within his rights. He adds:

“Nothing short of bad faith or a gross misconception of what is admissible, resulting in bringing to the attention of the jury matters wholly irrelevant, and of a nature calculated to create so profound an impression that the charge of the court cannot eliminate the prejudice produced, will justify an appellate court in vacating a judgment on such grounds.”

The case of Edwards v. Three Rivers Common Council, supra, follows and quotes from Fosdick v. Van Arsdale, and the case was reversed because of two errors, one of which was the ruling of the trial court that counsel should not “state what the law is.”

In the case of Scripps v. Reilly, 38 Mich. 10, this court held the opening to have been so unfair and unjust as to constitute legal error; but in Porter v. Throop, 47 Mich. 313 (11 N. W. 174), it was held, though with apparent difficulty, that the opening argument, though erroneous, did not justify a reversal. In that case Justice Cooley said:

“We agree that the trial court must in its discretion supervise the opening of the case by counsel, and that in general a judgment is not to be disturbed merely because in our opinion the course which the opening was suffered to take was calculated to do injustice. In á variety of cases the action of the trial court must be final even when we are satisfied it is wrong; for the simple reason that in such cases the final decision is left by the law to that court.”

The rule may be deduced from the foregoing excerpts and it requires no restatement here. There can be no doubt that it was violated in the case at bar. The right and duty of the trial court, in the exercise of a sound discretion, to supervise and control statements of counsel is not questioned.

The conviction is set aside, and a new trial granted.

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


text:
    DRUCK v. ANTRIM LIME CO.
    1. Master and Servant — Employment—Negltgence—Evidence.
    A verdict for injuries sustained by plaintiff, wbo claimed be was burt while in tbe employ of defendant corporation, is affirmed on bis testimony tending to show tbat be was employed by defendant’s president and another agent, and that defendant admitted tbe existence of tbe relation in a certain letter or exhibit, though defendant offered proofs to show that be was in the service of an independent contractor. Tbe evidence presented a question of fact for tbe jury.

      2. Same — Tbiai>-Argument.
    Where plaintiff’s counsel, in his argument to the jury, said that if they thought plaintiff was entitled to recover, he believed they would take the burden of his support off the taxpayers of the county and place it upon defendant, where it belonged, and no ruling on the objectionable language was secured from the court, whose attention was not directed to it, a new trial was correctly denied on motion of defendant alleging the improper conduct of counsel.
    3. Same — Personal Injuries — Termination of Employment.
    Nor was it erroneous to instruct the jury that if, as plaintiff claimed, he was engaged by the president of defendant company, who was also general manager, and received his pay from the corporation, and, so long as he worked there, he had no notice or information that his employment had terminated or changed to that of and under an independent contractor, the relation of employee and’ employer continued to exist.
    4. Same — Charge—Inspection—Mines and Mining.
    In charging the jury relative to the duty of plaintiff’s employer to inspect the face of the cliff which the men were engaged in blasting, the court correctly instructed them that it was the custom after a blast was fired to examine the face of the cliff and warn any of the workmen who might undertake to work at or near the place of the blast or within dangerous proximity thereto, before defendant had inspected it, and that under the undisputed evidence the plaintiff had received no warning on the occasion of the accident and the charge was not misleading or open to the objection that it left the jurors to infer that a custom had prevailed to inspect the entire face of the cliff, instead of the portion likely to be affected by the blast.
    5. Same — Weight of Evidence — New Trial.
    A verdict must be clearly against the great weight of the evidence to require the Supreme Court • to reverse the decision of the circuit judge in denying a motion for a new trial.
    Error to Emmet; Shepherd, J.
    Submitted June 16, 1913.
    (Docket No. 102.)
    Decided October 1, 1913.

      Case by William F. Druck against the Antrim Lime Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Pailthorp & Hackney (Henry S. Sweeny, of counsel), for appellant.

      Maxwell W. Benjamin, for appellee.
   Stone, J.

This case is before us for the second time. When first here it will be found reported in 167 Mich. 154 (132 N. W. 492), where there will be found a full statement of the case. A comparison of the two records will show that there is no material difference in the testimony adduced upon the two trials, and it is not deemed necessary to restate the case. Upon the first trial the circuit judge directed a verdict and judgment for the defendant, upon the ground of assumption of risk by the plaintiff. In reversing the case, we said:

“The most favorable statement for the defendant that can be made from this record is that whether the plaintiff was in the employ of the defendant, and whether the plaintiff assumed the risk, or was guilty of contributory negligence, were questions for the jury under proper instructions.”

A second trial has resulted in a verdict and judgment for the plaintiff in a substantial sum.

The defendant has brought the case here upon writ of error, and by appropriate assignments of error it claims the following errors:

(1) The court’s refusal to direct a verdict for the defendant at the close of the evidence.

(2) . Improper and prejudicial remarks to the jury by counsel for plaintiff.

(3) Error made by the court in its charge to the jury, (a) The hiring of plaintiff by Nathan Jarman acting as president of the defendant company, (b) The custom to inspect the cliff after each blast.

(4) Error in denying the motion for a new trial.

First. Upon the first proposition it is the claim of the appellant that the relation of master and servant was not established between the plaintiff apd the defendant company, but that plaintiff was in the employ of David Jarman, an independent contractor. There was a sharp conflict in the evidence upon this subject, and we are still of the opinion that it presented a question of fact for the jury. Upon this subject the court, at the request of the defendant, submitted to the jury the following special question:

"Was the plaintiff in the employ of the Antrim Lime Company, the defendant, upon the 19th day of December, 1908?”

The jury answered this question in the affirmative. That there was evidence tending to support the claim of the, plaintiff that he was in the employ of the defendant We need only, refer to the record. About six months after plaintiff’s injury, the defendant took measures to provide him with an artificial limb from Winkley Artificial Limb Co., of Minneapolis, Minn., and the following letter was written to that company by defendant:

"Antrim Lime Company, General Office Michigan Trust Building, Grand Rapids, Michigan.
"Petoskey, Michigan, June 28, 1909. "Winkley Artificial Limb Co.,
“Minneapolis, Minn.
"Dear Sirs:
“I enclose herewith a receipt for W. F. Druck’s signature, when he receives the artificial leg from you. I intended to have him sign it before he left here for Ludington, but did not have it ready. When you send your bill for the leg, please send the enclosed receipt with the signature and two witnesses.
“You can send the bill to me, or to our general office Grand Rapids (Mich. Trust Bldg.), and a check will be sent you in return.
"Our understanding is that we pay $100.
"Very truly yours,
“Antrim Lime Company, ■
"By N. Jarman, Pres, and Mgr.”

The receipt referred to in said letter, and which was inclosed in it, contained the following language:

“Whereas, I, W. E. Druck, did, on the nineteenth day of December, A. D. 1908, meet with an accident while employed by the Antrim Lime Co. and engaged at work in and about the limestone quarry at Petoskey, Michigan, which resulted in the loss to me of my right leg, and as said Antrim Lime Company, as a token of their appreciation and esteem for my services while in their employ, and upon consideration of the covenants and conditions hereinafter mentioned, has agreed to purchase for me an artificial leg to be by me worn upon the stump of the limb lost as aforesaid,” etc.
(Here followed a discharge and release of any and all claims, demands, damages, and causes of action against the defendant by the plaintiif.)

This receipt was not signed by the plaintiif.

Not only did the plaintiff testify that he was directed in his work by Nathan Jarman, the president and manager of the defendant, but he also testified that he was paid by him. Upon the subject of the hiring, he also testified on cross-examination as follows:

“I stated in my direct examination that I was employed by Sherman Cassell. I say that he employed me to work for the Antrim Lime Company. * * * I have stated positively that Mr. Cassell was foreman of the Antrim Lime Company. I swear to that, because Mr. Nathan Jarman said, it was the Antrim Lime Company that was running the kiln. In the very first place, the first man I spoke to of working anywhere was Mr. Nathan Jarman, working at the kiln; he said as quick as there is an opening, why, they would see about giving me work. I had this conversation with Mr. Nathan Jarman about two weeks before I commenced work. It was not brought up on the other trial.
“Q. Wasn’t you asked, upon the other trial, who hired you?
“A. Yes, sir; Mr. Cassell hired me, and I testify to it now. I don’t think that I testified at that time of having two conversations with Mr. Cassell. Not to my recollection did I talk with Mr. Cassell about going to work there at some time previous to the time he told me I might come. The only conversation I had with Sherman Cassell was upon the day that he came there. At the time I had the conversation with Mr. Nathan Jarman, I went over to see him. I seen him milking his cow in his pasture field. I asked him if there would be any show working for him, and he said they were full now, but if there was an opening, why, he would give me a show.
“Q. Now just repeat the conversation, if you can, you had with Mr. Jarman, and what did you say to Mr. Jarman, and what did he say to you?
“A. I asked him — I was out of employment; the paper mill quit working — and I wanted to know if there was any show to work for the Antrim Lime Company or at the kiln, and he said at the present time they were full. ‘But,’ he says, ‘if later on there is a show, we will give you a show.’ Later on Mr. Cassell came and saw me. Mr. Cassell never told me he was the foreman of the Antrim Lime Company. Some of the men working there told me he was the foreman of the Antrim Lime Company.”

The plaintiff had been laid off from his work in the summer of 1908. The wife of plaintiff testified to the following conversation with Nathan Jarman:

“I am acquainted with Nathan Jarman. He came to my place of residence in the month of August. My husband was working at the lime kiln before Mr. Jarman came to my place. I remember my husband being laid off some time before Mr. Jarman called. He was laid off a week or such a matter. He (Mr. Jarman) called to see Mr. Druck — asked for Mr. Druck. Mr. Druck was not there. I told Mr. Jar-man that Mr. Druck would soon be there. Mr. Jar-man said he wanted Mr. Druck to come to work at the Antrim Lime Company.
“Q. Said he wanted him to come to work for the Antrim Lime Company?
“A. Yes, sir; he said he wanted him to go to work the next morning. Mr. Druck did go to work the next morning. He continued that work from that time down to the time of his injury.” .

It is true that this testimony, and all like testimony, was contradicted on behalf of the defendant. But that a question of fact was presented for the consideration of the jury seems too clear for controversy.

Under this head it is also claimed that the plaintiff assumed the risk of his employment, and that a verdict should have been directed for the defendant upon that theory. What we said in our former opinion is an answer'to this proposition.

Second. Improper and prejudicial remarks to the jury by counsel for plaintiff. The language complained of was as follows:

“If you think that the plaintiff is entitled to recover, I am satisfied that you will take this burden off from the taxpayers of this county and put it upon the Antrim Lime Company, where it belongs, so that he will not have to depend upon charity, and so that he will not have to stand on the street corners selling shoe laces and pencils for meager earnings to buy bread for himself and family.”

The plaintiff had testified without objection that during the three years since his injury he had been able to earn only about $50. This he had earned by selling lead pencils, shoe laces, and a few books, and that he was not able to do manual labor, and that he had been supported chiefly by charity, and by the aid of the city or county.

The above-quoted argument of counsel was excepted to; but there is nothing in the record to indicate that the matter was called to the attention of the court, or that the court was asked to rule upon it. The matter was urged as one of the grounds in support of the motion for a new .trial. In his reasons for overruling the motion, the circuit judge, in referring to the subject, said:

“The court is unable to recall the remarks as alleged, and, while he has no doubt that they were made as alleged by counsel for defendant, he does not feel that they were so prejudicial as to be proper grounds for a new trial.”

We think that the court did not err in reaching this conclusion, in view of the testimony and circumstances.

Third. Alleged errors in the charge, (a) The following language of the charge is complained of:

“Mr. Druck claims that he was hired by the president of the company; that he was told to go to work there by the president of the company, and never received any notice but what he was at work for the company; and that he received his pay from the president of the company. * * * On the other hand, Mr. Druck claims that he was hired' by the president of the company, acting in his capacity as president or general manager of the company, and that as long as he was employed there he, Druck, had no notice or information that he was not in the employ of the company. If you find that Mr. Druck was so employed, that is, hired by Nathan Jarman, acting as president of the company, to work for the company, he remained and was the employee of the company until he had notice of the arrangement, or independent contract, which the defendant company sets up as existing between itself and Mr. David Jarman.”

In view of the testimony contained in the record, a part only of which we have quoted, and of the rule of law announced in Tousignant v. Iron Co., 96 Mich. 87 (55 N. W. 681), we are of opinion that there was no error in that part of the charge here complained of.

(b) Error is also assigned upon the following part of the charge:

“It was the custom there, after a blast had been fired, to examine the face of the cliff, and to warn any of the workmen who might undertake to work at or near the place of the blast, or within dangerous proximity of the place of the blast — if they undertook to do such work before the cliff had been inspected, it was the custom to warn them against going there. In other words, it was the custom to inspect the cliff and bar out loose pieces of rock, before workmen were allowed or permitted, without warning, to work under the cliff. No warning was given Mr. Druck, according to his testimony, and no witness claims that he was warned.”

It is the contention of appellant that the only custom that the record shows was that after every blast the cliff was inspected to a point about 20 feet, at the farthest, on both sides of the point of blast, and that the effect of a blast was never known to reach beyond 20 feet on both sides of the point of blast, and that custom had established an inspection of the cliff to these points after each blast.

Upon the subject of inspection Sherman Cassell, the foreman, testified that after a blast, and before the men were permitted to return to work, he generally took a man or two with him, and went on top and saw that all the loose stuff was poked off, and so below; that he always did that; that some of the men might return to the ledge and work in other parts of the quarry where it was not dangerous; and that he was in the habit of warning men from the dangers of loose rock. It is true that this witness testified that in his judgment a blast set off there, where they had five or six holes drilled in, and filled with dynamite, would not affect or disturb the face of the ledge more than 15 feet from each side of the end of the battery holes, and all the way to the top; that he did not think there would be very much vibration across the entire ledge. Other witnesses varied the distance affected, and all testified that after a blast it was the custom to examine the face of the ledge to determine whether there was any loose rock or not.

The plaintiff testified that he was injured by a falling rock at a point about 50 feet from where a blast had taken place the afternoon of December 18th, the day before. Upon this question the main contention of defendant was that there had been no blast the day before, and hence no warning. Whether there had been any blasting done the day before was, on defendant’s motion, made the subject of a special question to the jury, and they answered that there was such a blast on- December 18th.

We think that the trial court in the charge proper confined the place of inspection at or near the place of blasting, or within dangerous proximity to the place of blasting, and did- not leave the jury to infer that it was the custom to inspect the entire cliff. We discover no error in that portion of the charge.

Fourth. Did the court err in denying the motion for a new trial? The grounds of the motion, not already covered, were that the verdict was against the weight -of the evidence, and was not justified by the preponderance of the evidence. Upon these points the circuit judge, in giving his reasons for denying the motion, said:

“The weight of the evidence is for the determination of the jury; the court being of the opinion that there was sufficient evidence to go before the jury, upon which to render a verdict, and that the same was submitted to them under proper instructions, at least under instructions, as to which the defendant can find no objection, in that it was sufficiently favorable to it, and that the verdict of the jury must stand.”

A careful examination of the entire record' leads us to agree with this conclusion. Upon the main questions involved, the law of the case was settled when it was first before us. The learned trial court followed the opinion of this court ih submitting the questions of fact to the jury. Upon the two main questions involved, the defendant by submitting special questions to the jury must be held bound by the answers- given to such questions. Stevens v. Rose, 69 Mich. 259-264 (37 N. W. 205); Swanson v. Power Co., 113 Mich. 603 (71 N. W. 1098).

The rule is well settled that this court will only-reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence to require this court to overrule the decision of the circuit judge in refusing a new trial. Gardiner v. Courtright, 165 Mich. 54, 62 (130 N. W. 322); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592). We cannot say that the verdict in this case was against the overwhelming weight of the evidence, in the light of the record.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Ostrander, and' Bird, JJ., concurred.


author: Kuhn, J.

text:
    LUNDE v. DETROIT UNITED RAILWAY.
    1. Trial — Cross-Examination — Recross-Examination — Marriage — Evidence.
    On recross-examination in a negligence case, defendant’s counsel was rightly permitted to ask plaintiff about her marriage and to show that it was a common-law relation, where he had been prevented from inquiring into the matter in his cross-examination, hut plaintiff’s attorney had shown on redirect that she was recognized by the courts in certain litigation as the common-law wife of a decedent.

      2. Witnesses — Cross-Examination.
    The extent of cross-examination to show the true character of a witness, being left mainly to the discretion of the trial court, there was no prejudicial error in permitting defendant’s counsel to show that plaintiff had conducted a house of doubtful reputation. The examination was not open to the objection that counsel was attempting to impeach the witness by showing unchastity.
    3. Negugence — Damages—Injuries to Person.
    Evidence that plaintiff, who sustained injuries in boarding a street car, had at one time lived in a house of ill repute, but had suffered no infection or other disease from which her injuries might have arisen, was insufficient to justify the court in charging the jury that plaintiff could not recover if her former mode of life and not the fall caused the condition from which she suffered.
    Error to Wayne; Hally, J.
    Submitted June 19, 1913.
    (Docket No. 35.)
    Decided October 1, 1913.
    Case- by Emily Lunde against the Detroit United Railway for personal injuries. Judgment for defendant and plaintiff brings error.
    Reversed.

      Thomas W. Payne (George W. Coomer, of counsel), for appellant.

      Corliss, Leete & Moody (Frederic T. Harward, of counsel), for appellee.
   Kuhn, J.

This cause, which on the trial below resulted in a verdict and judgment for the defendant, arises from a claim made by plaintiff that she sus-» tained injuries from being thrown to the pavement by the starting of one of defendant’s cars as she was about to board it at the corner of Michigan avenue and Shelby street in the qity of Detroit. The errors relied upon on this appeal relate to the cross-examination of the plaintiff and the charge of the court.

Counsel for defendant, on cross-examination, sought to show her relations with a man named Lorimer, which testimony was excluded upon objection by plaintiff’s counsel. On redirect examination the following occurred:

“Q. You were the wife of Thomas Lorimer, that died sometime in 1903, were you?
“A. 1895 it was that he died.
“Q. You had lived with him how many years?
“A. I had lived with him, yes, practically lived with him, for the last 25 years.
“Q. And the courts of the State of Michigan—
“Mr. Harward: You are aware, are you, Mr. Payne, that I have not gone into that on cross-examination? The court ruled I should not go into that on cross-examination. It was ruled out.
“The Court: What is the objection?
“Mr. Harward: Your honor ruled the testimony
out, when I inquired about her relations with Thomas Lorimer. Now he is going into it on his redirect examination.
“Mr. Payne: Go ahead.
“The Court: Proceed. I do not understand there is any objection.
“Q. The courts of the State, after a lawsuit with relatives of Thomas Lorimer, decided that you were his wife?
“A. Yes, sir.
“Q. It is a matter of court record that you are a married woman for the last 30 years practically?
“A. Practically, yes, sir.
“Q. You are 53 years old now?
“A. Yes, sir.”

Recross-examination:

“Q. You say you were the wife of Thomas Lorimer?
“A. Yes, sir.
“Q. After Thomas Lorimer died, you sued the estate, and claimed you were his common-law wife, did you?
“Mr. Payne: I object to this cross-examination.
“Mr. Harward: He brought it out himself.
“Mr. Payne: My examination was confined entirely to show that she was a married woman, and the courts of this State made her a married woman, and the nature of the litigation that was carried on by any relatives in that matter. That is a matter of public record. I only put that in to show in view of this cross-examination something in her early life, that she was, according to the laws of this State, a married woman, was adjudged so by a jury and by the Supreme Court of this State.
“The Court: Take an answer.
“Mr. Payne: Note an exception.
“Q. You never had any marriage ceremony with Thomas Lorimer, did you?
“Mr. Payne: I object to it. It is a matter of public record, having been litigated in the Wayne circuit court and in the Supreme Court.
“The Court: Take an answer. Note an exception for plaintiff.
“A. I have to answer, judge?
“Mr. Payne: Yes, answer the question.
“A. Why, no.
“Q. No. After he died you came in and claimed a third of his estate because you had lived with him, without a marriage ceremony, claiming you were his common-law wife, didn’t you? '
“Mr. Payne: I object to that, make the same objection in view of that litigation.
“Q. Is that true?
“Mr. Payne: If there is any question, Mrs. Lunde, that he puts to you that is not true on its face, say so. I don’t know anything about this third or anything else. I am not familiar with this litigation myself. I will ask the stenographer to read the question.
“Mr. Harward: You want to object, or what do you want to do?
“Mr. Payne: Calling the witness’ attention to a
fact that does not in fact state the true state of facts, she is not obliged to answer it.
“The Court: Proceed, please. (Question read by reporter.)
“A. Yes, sir; I believe, according to the records on that, that is the claim.
“Q. That is what you did, isn’t it?
<^4. Yes sir.
“Q. You were finally declared his common-law wife?
“A. Yes, sir.
“Q. That is what you mean when you say you were married to Thomas Lorimer?
“A. Yes, sir; isn’t that sufficient? Isn’t that a marriage contract?
“Q. I am asking you, Is that what you mean w;hen you say you were married to Thomas Lorimer?
“A. I have answered you. I answered you.
“Q. How did you answer?
“A. I answered you that I was married to Thomas Lorimer; yes, sir.”

Exception is taken to this recross-examination. In view of the fact that the subject-matter of the examination was opened up by plaintiff’s counsel on redirect examination, it was proper to allow the recross-examination.

On further cross-examination defendant’s counsel showed that at one time plaintiff conducted a house of questionable reputation. It is urged that it was prejudicial error to allow the antecedents of the plaintiff and her former life to be brought before the jury. The extent of cross-examination for the purpose of showing the true character of the witness, so as to enable the jury to properly judge the weight to give the testimony, should be and is left to the discretion of the trial judge, and will not be reviewed unless this discretion is clearly abused.

There is a clear distinction between attempting to impeach a witness by showing a want of chastity and a cross-examination for that purpose. The former is not proper, while the latter, as has been said, is discretionary with the trial judge, and in the instant case we do not find that there was any abuse of such discretion. In the case of Beebe v. Knapp, 28 Mich. 53, 71, Justice Christiancy said:

“Beebe, having been, as it would seem, on cross-examination, asked how many times he had been married, said he had been married four times, that one of his wives was buried, and one of them at home; was then asked, ‘Where are the other two?’ This was objected to as irrelevant, the objection overruled, and exception taken. His answer was: T cannot tell; was first married 18 years ago.’ He was then asked, ‘How long did you live with that woman?’ This was objected to, and the objection overruled, and the witness answered: ‘Seven years. I have not lived with any other women besides these; not what I call living with them.’
“These questions do not appear to have been put for the purpose of founding upon them any other questions pertinent to the issue, or any other fact in his past life which might contradict any statement made by witness, or in any 'way tend to impair his credit, except the mere facts elicited in reference to the women referred to. I think the court would have wisely exercised its discretion in excluding the evidence. But on cross-examination the court must be allowed considerable latitude of discretion in permitting questions calculated to elicit any information as to the past life and conduct of the witness, and to enable the jury to see ‘what manner of man he is,’ and we cannot, therefore, say that it was error in law to permit these questions. See Comstock v. Smith, 20 Mich. 338.”

See, also, Threadgool v. Litogot, 22 Mich. 271; McBride v. Wallace, 62 Mich. 451 (29 N. W. 75).

Before allowing- this class of questions to be put to a witness, the court should be satisfied that they are asked by counsel in good faith, and in the case of People v. Gotshall, 123 Mich. 474 (82 N. W. 274), cited by plaintiff’s counsel, a réversal was had because want of good faith on the part of counsel was apparent. In the case before us there can be no question of the good faith of counsel, because the witness admitted that she had lived in a house of evil reputation. In Knickerbocker v. Worthing, 138 Mich. 224, 238 (101 N. W. 540, 545), Mr. Justice Montgomery, in speaking of the case of People v. Mills, 94 Mich. 637 (54 N. W. 488), also relied upon by plaintiff’s counsel, said:

“It was also held in People v. Mills, 94 Mich. 637 [54 N. W. 488], that it was not error to exclude the inquiry attempted in that case on cross-examination. The statement in the opinion is very brief, and, if understood as holding that the court may not, in its discretion, permit, on cross-examination, an inquiry into the past life of a female witness, and an inquiry as to her chastity, is misleading.”

As to the charge of the court. The trial judge, in charging the jury, said:

_ “If you believe that the plaintiff’s physical condition is caused by her former mode of living, and not by any injuries that she received at the hands of the defendant company, then you are not to allow her for such injuries.”

This naturally assumes that there was evidence in the record that the injuries she claimed might have been caused by her former mode of living. The only testimony upon this question was that brought out on the cross-examination of Dr. Sanderson, one of the medical witnesses sworn by the plaintiff:

“Q. Would a woman’s life, had she been perhaps a demimonde in her life — would that tend to prolapse the uterus?
“A. No, sir.
“Q. Sexual intercourse, no matter how frequent or promiscuous, would not affect the uterus — do you mean to say that?
“Mr. Payne: I want to object to all this. There is no time fixed any way. I want the time and the place placed on the record. Mr. Harward is trying to make out that she was a demimonde, as he calls her.
“Q. I said, would the life of a demimonde — I think I have got a right to ask him under the testimony in this case, and under the admissions of the plaintiff, your honor.
“The Court: You may proceed. Note an exception for the plaintiff.
“Q. I say, would the life of such a woman tend to affect her uterus in any way?
“The Court: That question has been answered, I think.
“Mr. Harward: What?
“The Court: That question was answered, I think, by the doctor.
“A. It might not cause any injury to the uterus at all, unless it were an infection. There are no evidences or signs of such now, or of womb infection. There are no symptoms in the womb of infection. When I looked her over, there wasn’t any evidence that there had been any infection, none whatever. Such a life has no effect on the organs that she complains of here, unless there is an infection, or pregnancy develops; the mere fact of intercourse does not injure the uterus at all. Of course, the uterus might be infected, or pregnancy might come on, and there is a child born or a miscarriage, and that might affect the uterus. Infections, gonorrhea, and such might cause prolapsus in a roundabout way by producing congestion of the uterus, an enlargement of the uterus. I have seen such caused in women. It is not a very frequent cause; but it is a cause.
“Q. Fromlthe inflammation set up the gonococcus?
“A. Yes, sir; but there is none in this case.
“Q. Well, that is a frequent cause, is it not?
“A. No, not a frequent cause. It has occurred; but it is not frequent.
“Q. I think that’s all.
“Mr. Payne: Now, Doctor, you found no evidence of any diseases of any kind?
“A. No, sir; it is in a relaxed condition.
“Mr. Payne: That is all.”

It appears from this testimony that there was no evidence that the plaintiff ever suffered from such disorders as a result of her past life which might have caused the injuries complained of. The evidence is clear that no such condition was discovered by the doctor. It was therefore improper to submit the question to the jury. In the instant case, as it is impossible to tell whether the jury disregarded this in arriving at their verdict, it was prejudicial error to submit it to them. 38 Cyc. p. 1638; Clark v. Rail way Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559).

For this reason, the judgment of the trial court must be reversed, and a new trial granted.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.