text:
    BUTLER v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    1. Trial—Instructions—Invading Province on Jury.
    Where in a personal injury case the severity of plaintiff’s injuries is contested, it is error for the court to charge that defendant does not dispute that plaintiff was injured as alleged, but bases his defense on his nonliability for the injury.
    2. Same.
    The court should not intimate that “plaintiff could best describe his injuries.”
    3. Same.
    The jury should not be told that they must believe the theory of one party or the other “ right through,” where they might have found that the injury occurred as plaintiff claimed, but that its extent was trivial.
    •4. Same.
    It is error for the judge to refer to a previous trial of the same case, in which plaintiff had verdict, and state that for some unfortunate remark or ruling another judge thought the case better be tried again, and that he would like to get to the end of it and reach the just rights of the parties.
    Error to Wayne; Donovan, J.
    Submitted October 19, 1904.
    (Docket No. 52.)
    Decided November 15, 1904.
    Case by Charles Butler against the Detroit, Ypsilanti & Ann Arbor Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Gorliss, Andrus, Leete & Joslyn, for appellant.

      Edward M. Vining (J. Emmet Sullivan, of counsel), for appellee.
   Hooker, J.

The plaintiff was riding upon the defendant’s car platform, having paid his fare, at a time when a controversy arose between the conductor and one Miller in relation to the latter’s fare. Miller was put off from the platform, and plaintiff testified that he also was thrown off and hurt by defendant’s motorman. This was disputed, but it was clearly a question for the jury. The defendant has appealed.

It was claimed on the part of the plaintiff that he was seriously injured, having several ribs broken, and that he was a sufferer therefrom for a long period. The defense sought to show that ho was not seriously hurt, and there was testimony that his early complaint was confined to small injuries; that he was silent about injury to his ribs or trunk; that he attended to his business and walked considerable distances; that he was not confined to the house; that soon afterwards he went to a fair, and was strong enough to go to Wayne to commence a suit but a few days after the injury; that he also had a successful fight with his two farm laborers two years later.

In his instructions to the jury, the judge said:

“ The real defense in this case by the railway company is not that Butler was not injured; is not that Butler’s ribs were not broken; is not that his wrist was not twisted; is not that he is making up a case in any way. That is not it. The theory of the defense in this case by the company is this: That Miller—the man having no authority to put anybqdy off—that Miller, being rightfully put off, grabbed hold of Butler and dragged him down.”

Again he said:

“ I take it, if the man is injured, he has been injured as described in this case. * * * Now, you heard the testimony about the extent of the injury, and I need not go into it any more than the doctor and Mr. Butler— We will say the two doctors and Mr. Butler swore to the extent of the injuries, and no doctor was put on to contradict them, excepting what they could draw from the physicians —Dr. Zimmerman and Dr. Bennett. * * * ‘There can be no recovery in this case under the declaration for any injuries that the plaintiff may have sustained to his back.’ Well, it depends upon what you call his ribs. To his ribs was the main burden of the case. I will say that it will depend upon what you call it. I do not know any particular injury to his back testified to, but two broken ribs and another injured rib, and the rest seems to have been contradicted, the injury sworn to by Butler.”

Again he said:

“If you believe the testimony of the witness Moore, I will not particularize, and call any witness by name, and plant the case on his testimony. You will either believe for the plaintiff or the defendant in this case. I am not going to hold up any one witness—possibly might hold up the plaintiff, he being the one that could describe his injuries. But I am not going to plant this case upon the testimony of any one witness. You will either believe the theory of the plaintiff and the evidence on his side right through, or the theory and the evidence of the railway right through. I will not plant it upon any one man of their picking out. That is for you to take up.”

Complaint is also made of the following language of the court:

“ (a) I have known of cases where two witnesses would outswear ten if they had better knowledge of the facts, circumstances, and surroundings. * * *

“(b) I am not going to hold up any one witness—pos-' sibly might hold up the plaintiff, he being the one that could describe his injuries. * * *

“(e) Without any anger or malice clearly proven on the part of the company against him, * * * Butler went off with Miller; * * * had his two ribs broken, and his wrist, or was thrown off. * * *

“ The case has been tried twice before. Some unfortunate remark or ruling has given the judge the idea that it should be tried again. You will either believe the theory of the plaintiff and the evidence on his side right through, or the theory and evidence of the defendant right through. ”

It was error to give the jury to understand that the defendant did not dispute any of the hurts described in the portion of the charge quoted, and in saying that, if injured at all, it was as described. It was also out of place to say, by implication, that the claim of two broken ribs and injury to the back was uncontradicted. If no other physicians than those named by the court were called, it was the right of the defendant to show that plaintiff’s conduct was inconsistent with the claim of severity of injury made, and it had a right to have that question fairly submitted to the jury upon the question of damages.

The language in relation to the value of the testimony of two witnesses as against ten was perhaps, in the main, unobjectionable, when taken in connection with all said upon the subject; but it would have been better had he omitted the intimation that the “plaintiff could best describe his injuries.”

It was not proper to say that the jury must believe the theory and evidence of one side or the other “right through.” The jury might have found with the plaintiff upon the incidents of the fight, and yet disbelieved his testimony as to the extent of his injury, in the light of circumstances shown. This would have had a material bearing on' the amount of damages to be awarded.

A witness stated a conversation with the motorman relating to the affair, which talk occurred some time afterward. Plaintiff’s counsel insist that this was impeaching testimony. If a proper foundation was laid, it may have been properly admitted. It was not substantive testimony of the facts so stated, however; and if, as counsel claim, the judge so treated it, he committed an error in so doing. It is doubtful, however, if this was so intended or so understood.

- Again, it was prejudicial for the judge to say:

“Now, I hope you have not lost sight of the case by this grand jury coming in and out, and some little confusion, because we could not avoid it. I hope you have not lost sight of this case here, because the case has been tried twice before. Some unfortunate remark or ruling has given the judge the idea that it should be tried again —once in my division and once in another division—and we would like to get to the end of this case, and we would like to reach the just rights of the parties.”

If, as is not improbable, the jury knew that the plaintiff had already recovered two verdicts, they would be likely to think that “some unfortunate remark or ruling” was an unimportant matter, not justifying further resistance by defendant.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Grant and Montgomery, JJ., concurred. Carpenter, J., took no part in the decision.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    CHURCH v. ANTI-KALSOMINE CO.
    1. Patents—1Transfer— Contracts—Construction.
    On a bill to compel the reassignment of certain patents for wall finish, the contract of assignment examined, and held to render defendant the absolute owner of the patents, and not to constitute a mere license for their use for five years, as alleged in the bill.
    2. Same—Corporations—Directors—Resolution—Effeot .
    The contract being plain and unambiguous, defendant’s rights thereunder were not affected by a, resolution passed by its directors at the expiration of the five-year period, declaring the contract “and all things connected with and pertaining thereto terminated, and at an end.”
    Appeal from Kent; Wolcott, J.
    Submitted October 20, 1904.
    (Docket No. 57.)
    Decided November 15, 1904.
    Bill by Melvin B. Church against the Anti-Kalsomine Company to compel the reassignment of a contract. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed.

      Hyde, Earle & Thornton, for complainant.

      T. J. O'Brien (Burlingame, Belden & Orton, of counsel), for defendant.
   Carpenter, J.

In his bill of complaint complainant sets forth at length the same written contract executed by .himself and defendant which is set forth at length in a former case between the same parties decided by this •court. See 118 Mich., at pages 226-228. He avers that the inventions therein described whereby wall coatings might be applied by the use of cold water instead of hot ■ water were patented, and that the patents were by a written instrument assigned to defendant “as required by said contract.” He claims therein that defendant’s right to these patents expired at the end of the five-year period mentioned in said contract, and prays for a reassignment of the same.

The defendant demurred to the bill of complaint. The trial court overruled this demurrer, and defendant appeals to this court. We shall consider but one of several reasons stated for the demurrer, viz., that the effect of the contract and the assignments set forth in the bill of complaint conveyed to defendant an absolute title to the patents, and not merely an exclusive right for the period of five years.

Complainant contends that defendant’s demurrer and argument in support thereof assumes that the bill is framed on the theory that under a proper' construction of the contract and assignments the title of defendant ended at the expiration of said five-year period, whereas the true construction of the bill is that the contract was ambiguous, and “ at the time it was understood and agreed that the patents were to be owned by defendant only for the life of the contract;” that is, for a period of five years. As no effect can be given to an oral contract inconsistent with the terms of a contemporaneous written one, the construction of the bill contended for by complainant will not entitle him to relief unless we may say that either the contract or- the assignment is consistent with the alleged contemporaneous agreement that the rights of the defendant should end in five years. Whether or not there is such consistency must be determined by construing the written contract and assignments. No time need be spent in construing the assignments, because they transfer to defendant the title to which its contract entitles it. The question is, then, What title to the patented inventions did the written contract entitle defendant ? •

The contract was made January 27, 1892. It recites the claim.of. complainant:

“ That one Haire, now living in England, has made a new improvement and discovery in wall coating by means of which the product * * * may be used and applied with a brush after mixing the same with cold water. * * * An improved article which may be applied with cold water would be superior, it is claimed, to anything now in use or heretofore known, and the ownership of such discovery and invention by the first party [defendant], it is also claimed, will result in increased gains and profits, * * ■ * and he [complainant] has proposed, in consideration of what follows herein, to make the first party [defendant] the owner, within certain territory, of the invention and improvements in question. ”

That complainant also “claims to have discovered and invented certain improvements by which the same result may be produced.” That these discoveries and improvements “ are severally patentable.” It is therefore agreed, that complainant “will cause and procure to be transferred to the first party [defendant] the invention and discoveries of the said Haire, * * * will also procure from the said Haire an agreement and undertaking * * * that all inventions and improvements which he shall make in the future in the direction of wall finish or wall coating of any kind shall belong exclusively to the first party [defendant] within the territory of the United States and Mexico, and that * * * the said Haire * * * will make and sign such papers as may be necessary to assure to the first party the ownership of such discoveries and inventions, and will also, on request, sign such applications for patents as the first party shall deem necessary.” That complainant “will also make such applications as may be necessary for the issuance of a patent or patents within the United States covering any invention or improvements made by him in the direction in question, and will also make like applications in the future, when requested, for any further improvements. All patents which may be issued to the said Haire or to the second party [complainant] shall belong and be assigned to the first party [defendant] hereto.”

It was also a part of this agreement, and apparently the consideration for complainant’s promises, that the latter should continue in defendant’s employ for five years at an annual salary of $5,000 a year, and, in addition thereto, should receive one-half the net profits in excess of $40,000 per annum. The contract shows this amount was fixed at $40,000 because it was assumed that the defendant was making that amount from its business before this contract was made. It was also agreed that at the end of the period of five years the capital stock of the company, which was assumed to be worth $400,000, should be increased at the rate of $1 for each 10 cents of its average annual increased earnings during said five-year peroid, and that this increased capital stock should be divided equally between complainant and defendant.

Is this language consistent with an alleged contemporaneous agreement that defendant’s interest in the patents should cease at the expiration of five years ?

For the express purpose of making defendant “ the owner within certain territory,” viz., the United States and Mexico, complainant agreed to “ procure to be transferred to the first party [defendant] the inventions and discoveries of the said Haire” and “also to procure from the said Haire an agreement * * * that all inventions and improvements which he shall make in the future * * * shall belong exclusively to the first party [defendant] within the territory of the United States and Mexicoj ” that patents shall be procured by said Haire for said inventions and discoveries; that complainant will also procure patents for inventions and improvements then made or made in the future by him in the same direction; and “that all patents which may be issued to said Haire or to the second party [complainant] shall belong and be assigned to the first party [defendant] hereto.”

"We are able to draw but one inference from this language, viz., that defendant should be the absolute owner of these patents during their life. And this inference is strengthened, rather than weakened, by the rights the contract secured to complainant as a consideration for said assignments. He secured employment for the period of five years, and this circumstance is the one thing in the contract which created a five-year period. That there is no relation between this five-year period and defendant’s rights in the patents is proved by the fact that when said period expires—that is, when said complainant’s employment terminates—complainant obtained by the increased stock a permanent interest in defendant’s business, to which he would have no right except upon the assumption of the latter’s continued ownership of the patents.

We conclude, therefore, that under the proper construction of the contract defendant was to become the absolute owner of the patents, and that any prior or contemporaneous oral agreement that said ownership should cease at the end of five years is inconsistent with its terms.

In reaching this conclusion we have not overlooked complainant’s contention that a resolution passed by defendant’s board of directors at the expiration of said five-year period declaring that the contract “and all things connected with and pertaining thereto are now terminated and at an end ” is inconsistent with the construction now placed on said contract. It is by no means clear that by this resolution defendant’s directors intended to admit that their title to the patents was ended, and therefore it may be argued that it is not in fact inconsistent with our construction. If it is in fact inconsistent, then it may be said that the bill contains an averment that defendant has made an admission that the contract should be construed as contended by complainant. If defendant made such an admission, the most that can be said is that it had a mistaken notion of the proper construction of a written contract. Such mistaken notion would not lessen its rights nor be considered by the court in construing a contract which, like the one in question, is clear and unambiguous. See Scully v. Detroit Iron Furnace Co., 132 Mich. 333.

We are constrained, therefore, to hold that the learned trial judge erred in overruling defendant’s demurrer. The order appealed from will therefore be reversed, with costs of both courts, and the record remanded for further proceedings.

The other Justices concurred.


author: Moore, C. J.

text:
    MICHIGAN MILLING CO. v. ANN ARBOR RAILROAD CO.

    Adverse Possession.
    The use of a strip of railroad right of way for a railroad scale by an abutting mill owner is not adverse and hostile to the railroad company, though exclusive, where the railroad company builds and maintains a switch over the scale, has exclusive possession of the key to the switch, and receives and delivers cars over the switch for the mutual benefit of the parties.
    Cross-appeals from Washtenaw; Kinne, J.
    Submitted February 5, 1904.
    (Docket No. 85.)
    Decided November 29, 1904.
    Bill by the Michigan Milling Company against the Ann Arbor Railroad Company to restrain the removal of a side track. From the decree rendered both parties appeal.
    Reversed and bill dismissed.

      Frank E. Jones and Jasper C. Gates, for complainant.

      A. J. Sawyer & Son {Alex. L. Smith, of counsel), for defendant.

       Rehearing denied May 12, 1905.

   Moore, C. J.

In 1903 the city of Ann Arbor passed an ordinance providing for a change in the grade of the road of the defendant company so as to carry the railroad track over the streets by an overhead bridge. In order to construct the railroad in accordance with the' provisions of the ordinance, it became necessary to raise the grade of the embankment on the company’s right of way about 13 feet between Washington and Liberty streets. The complainant owns a tract of land abutting on First street between Washington and Liberty streets, and extending back to the railroad company’s right' of way. At this point the right of way of the railroad company is 50 feet wide. The complainant carried on a general milling business upon its property. Its main building is located as indicated on Exhibit A. In the rear of the building is a set of railway scales built by the complainant for the purpose of weighing cars shipped by the complainant over defendant’s railway. These scales are about 36 feet long by 10 feet wide. Until shortly before the beginning of the suit there was a side track from the main track of the railroad across the scales, and some little distance northerly upon the complainant’s property. In order to raise the embankment as contemplated, it became necessary to remove this side track, which was done a short time before this suit was begun. This action is brought for the purpose of enjoining the defendant from interfering with the scales or the land upon which they stood, it being claimed that the title was in the complainant both by deed and by prescription. The title of the railway company was derived under a deed from Kling & Weber to the Toledo & Ann Arbor Railroad Company dated September 6, 1878, which granted “ a strip of land fifty feet wide along the line of railroad of said party of the second part as now located, that is, twenty-five feet on each side of the middle of said line over and across the property known as the City Brewery property,” etc.

The defendant claims it and its predecessors have been in possession of said railroad right of way ever since, and that it is in substantially the same location now that it always was; there having been no change in the center line of more than a few inches. It is the claim of complainant that the map shows the original line of the road opposite the property of complainant to be on a curve of 1 deg. 42 min., and that this would bring the right of way outside of the scales.

At the time of the making of this deed of September 6, 1878, the grantors owned the property on both sides of the railway track, and were using it as a brewery plant. There was at that time a building in the rear of the mill of the complainant, instead of the railway scales which are now there, and a small building on foundations extending about 20 feet westerly from the main building, about 33 feet in length. This building was subsequently taken down. The foundation walls were located as indicated upon the map, Exhibit A, by D, D, D.

The complainant’s title to its property was derived under a series of mesne conveyances from Kling & Weber, the last being a deed from Allmendinger & Schneider to the complainant. This deed is dated April 21,1900, and conveys “all that part of the following described lands which lie east of the track of the Ann Arbor Railroad Company * * *, ” this being followed by a description of the property on both sides of the railroad by metes and bounds.

In the year 1887 the building in the rear of the main mill building was taken down, and Allmendinger & Schneider, who then owned the milling company’s property, built at their own expense the railway scales in question. The first load was weighed on them on the 25th day of November, 1887. There had been a side track put in by the railroad company before this time, which was taken up temporarily when the scales were constructed, but was relaid over the scales. The evidence showed that the scales were put in at a cost to Allmendinger & Schneider of about $600, and that they made changes in their milling machinery and apparatus to enable them to operate in connection with the scales at an expense of about $2,000.

It is the claim of defendant that no question was ever made between the owners of the milling company property and the officers of the railroad in regard to the ownership of the ground upon which the scales are located; that the scales have been used by complainant, in connection with the railroad company, for the purpose of weighing cars and their loads shipped by and to complainant over the line of defendant’s railroad; the railroad company placing cars upon the siding and scales in question and

removing them when requested. The roadbed in question was prepared by complainant, the rails were laid by defendant, and since then the track has been kept in repair by the railroad company. Practically no use was made of the scales by any one but complainant. The scale beam was inside the mill. The switch to the siding was in the control of the railroad, and its employés had the key to the switch.

The bill of complaint alleges that the property described therein “has been used, possessed, and occupied by complainant and its predecessors in ownership as parts and portions of, and as together constituting, one business plant, for the period of fifteen years and upwards, and that complainant and the said predecessors in ownership for during said period have been in actual, continuous, visible, notorious, distinct, hostile, and exclusive possession of the whole of said plant, including the scales and every part thereof, and of the whole of the land and real estate upon which said plant, including every part of said scales, is located.”

It alleges the tearing out of the side track, and the threat to destroy the scales and to build the embankment, and prays for an injunction, and that defendant shall be compelled to permit a connection to be made over said scales with defendant’s track. Defendant denied complainant had obtained title by adverse possession, and avers the necessity of building the embankment, and its intention to provide complainant with a connection with its road.

The circuit judge was of the opinion that complainant had obtained title by prescription to the land upon which the platform scales rest, and granted a permanent injunction “restraining the defendant from trespassing upon the real estate and property known as the Central Mills property, and from tearing down or in any manner interfering with the said platform scales, the foundation thereof, and the coal shed and grainroom situated on the southwest part of the said Central Mills property, adjoining the lands and right of way of the defendant,” and said, “ This embraces all the relief to which, in my opinion, the complainant, is now entitled.”

Both parties have appealed.

Complainant says the questions involved are:

' 1. ■ Who has the title to the land occupied by the scales and the land south of the scales and west of the mills F

“2. It being conceded by the answer that complainant has a statutory right to a side track for the benefit of its mill, ■ and connected with defendant’s main track, is complain- * ant entitled to a decree requiring defendant to comply with the statute in that regard ?”

Defendant contends the questions involved are:

“1. Had the complainant title by deed to the triangle in controversy ?

“2. Had it acquired title by prescription ?”

Counsel for complainant say in their brief:

“ The amended.bill appears on pages 27 to 37 of the record, and the amended answer on pages 44 to 61. It was on these that the cause was heard and decided. Why the original bill and answer are also printed, we cannot understand.”

A careful reading of the amended bill of complaint does not disclose to us an averment therein that complainant got title by deed to the land covered by the scales, and the land directly south thereof and west of the mill. The averments of the bill are that as early as in 1878 their predecessors came into possession of the property indicated on the plat by the lines D, D, D; that the side track was put in and the scales erected in 1887, and the property covered thereby had been in the possession of complainant and its predecessors since 1878. It is true that in the oral argument, as well as in the brief, it is claimed that, if the right of way opposite complainant’s premises was laid out upon a curve of 1 deg. 42 min., it would leave the scales and side tracks untouched by the right of way. There is no mention of this claim in the amended bill, and we are unable to find that the fact is established by the testimony. We then are confronted with the question, Did complainant get title by prescription ? In relation to this question, counsel for complainant say:

“ It is undisputed that when Ailes & Allmendinger purchased the City Brewery property, in 1882, the buildings were standing thereon which covered the space D, D, D, substantially as shown on Exhibit A; that Ailes & All-mendinger then took possession of all these buildings, believing that they owned the land upon which they were standing. It is unquestioned that the addition D, D, D, was an essential part of the brewery plant, and that the side track and scales, which have always been within the same westerly boundary, have been an essential part of the milling plant, without which it could not be successfully operated. Moreover, this side track and these scales from 1883 and 1887, when they were respectively constructed, have always been used exclusively by Ailes, All-mendinger & Schneider, and their successors in title, including the present complainant, and for their business. On the hearing below, defendant’s counsel contended that our possession of the scales and side track had not been exclusive, and based this contention on the fact that defendant’s servants always placed the cars on the scales and side track, and removed them therefrom. We reply: These cars were then in our service, and were transporting our goods to and from our mill, and we were paying this defendant for the use of these cars, and for the work of its servants and locomotives in delivering these hired cars of ours, loaded with our goods, upon our scales and our siding. Substantially, defendant was our servant, moving our hired cars loaded with our goods upon land in our possession, and the title to which we were claiming.”

Had the buildings remained substantially as they were in 1882, there can be no serious question but that their continued use by the predecessors of the complainant would have ripened into a title; but the record' discloses they were torn down in 1887, and the scales were erected by complainant’s predecessors, and, upon a roadbed prepared by it, rails were laid by defendant, over which cars owned by defendant and other railroads for the use of complainant have been transported for the mutual advantage of both parties. The railroad not only got pay for the freight to and from complainant’s plant, but it was relieved- of the necessity of furnishing some other portion of its railroad track for the use of said cars while they were being loaded and unloaded. Suppose the railroad company was in fact the owner of the title in fee of the land where this side track and scales were put at the time they were constructed; would the use that has been made of this track and scales as disclosed by the record be an indication of a possession on the part of the complainant that was adverse and hostile to defendant? We think not. It is a use which inures to their mutual benefit, and which is not inconsistent with a title in fee ■ in either of them. See Perkins v. Nugent, 45 Mich. 156, and cases cited therein; Marble v. Price, 54 Mich. 466; Chabert v. Russell, 109 Mich. 571; Smith v. Hitchcock, 38 Neb. 104. We think the learned judge reached a wrong conclusion in relation to complainant having obtained title by prescription.

Counsel say they are entitled to a decree requiring defendant to accommodate them with a side track, in accordance with the provisions of section 5249 of the Compiled Laws of 1897. Defendant, by its answer, avers it intends to provide a connection with complainant’s plant. In view of the conclusion we have reached in relation to the other branch of the case, we think this question may be safely left to future developments, and should not be passed upon by us now.

The decree is reversed, and bill of complaint dismissed, with costs.

Carpenter, Montgomery, and Hooker, JJ., concur- . red. Grant, J., did not sit.


author: Moore, C. J. Montgomery, J. Carpenter, J.

text:
    KNICKERBOCKER v. WORTHING.
    1. Judges—Disqualification—Relationship to Attorney—Suit . on Contingent Basis.
    A circuit judge, who was a brother-in-law of plaintiff’s counsel, who was conducting the case on a contingent-basis, was not disqualified to try the case under 1 Comp. Laws, § 1109, . where, in a recess prior to the trial, the contingent fee agreement was abrogated, and counsel in open court waived any lien he had or might have upon any judgment which plaintiff might obtain.
    2. Husband and Wife — Alienation of Affections — Suit for Divorce—Bar.
    Where defendant husband, in a bill for divorce on the ground of cruelty, makes a bona fide defense, but does not in terms charge his wife with adultery, his failure to do so will not bar him from maintaining a suit against a third person for alienation of affections and criminal conversation based on acts prior to the divorce suit.
    3. Same.
    A decision of the Supreme Court reversing a decree denying a divorce, and holding that the evidence showed complainant entitled to a divorce on the ground of extreme cruelty, is not a bar to an action subsequently brought, but tried before the decision was rendered, by defendant in the divorce suit, against a third person for the alienation of affections and criminal conversation, though adultery was in effect alleged as a defense in the divorce suit.
    4. Witnesses—Competency—Husband and Wife—Adultery.
    Under section 10213, 3 Comp. Laws, a wife cannot testify, even by consent of the husband, in an action brought by the husband against a third person for alienation of the wife’s affections, when another count of the declaration charges adultery, though the evidence purports to be restricted to the count charging alienation of affections.
    5. Same — Cross-Examination — Questions Imputing Want of Chastity.
    Asking a witness on cross-examination questions imputing to her a want of chastity, in the apparent belief that they are competent, is not such misconduct as to warrant reversal. Moore, C. J., dissenting.
    6. Alienation of Wife’s Affections—Adultery — Evidence — Instructions.
    In an action for the alienation of a wife’s affections, where the charge limited the jury to the time fixed in the declaration, it was not error to refuse a request that, before plaintiff could recover, the jury must be satisfied that defendant committed adultery with plaintiff’s wife substantially at the time and place and under the circumstances alleged.
    7. Same—Instructions—Ignoring Testimony.
    In an action for. the alienation of a wife’s affections, a charge that plaintiff must prove, first, an adulterous disposition on defendant’s part towards plaintiff’s wife; second, an adulterous disposition.on her part towards defendant; and, third, an opportunity for the gratification of this adulterous disposition, held properly refused, as ignoring testimony almost directly proving adulterous intercourse, and as calculated to lead the jury to understand that the various elements must be established by distinct and segregated testimony.
    8. Same.
    In an action for the alienation of a wife’s affections, a charge that mere opportunity to commit adultery is not sufficient to establish the offense; that there must be evidence of such facts, circumstances, times, and places of association as to naturally lead a man of ordinary care and prudence to the conclusion that the parties were having illicit sexual intercourse, held to sufficiently embrace the element of disposition to commit adultery.
    9. Same—Instructions—Character of Defendant.
    In an action for the alienation of a wife’s affections, where evidence of defendant’s previous good character is erroneously admitted, defendant is not entitled to a charge giving him the benefit thereof.
    Error to Hillsdale; Chester, J.
    Submitted April 5, 1904.
    (Docket No. 43.)
    Decided November 29, 1904.
    Case by Frank J. Knickerbocker against Aaron Worthing for the alienation of his wife’s affections. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      F. A. Lyon, for appellant.

      Frankhauser & Cornell and Paul W. Chase (Grant Fellows, of counsel), for appellee.
   Moore, C. J.

On the 23d of May, 1901, Mary E. Knickerbocker brought suit against the plaintiff in this suit for divorce. June 1, 1901, this suit was begun against the defendant, charging him with alienating the affections of plaintiff’s wife. The declaration contained two counts. The first charged the defendant with having alienated her affections by unlawfully and wrongfully poisoning her mind against him and causing their separation by means of making her presents, and lavishing his wealth and money upon her, associating himself with her, and talking disparagingly of him to her. The second count in the declaration charges the defendant with having committed adultery with her.

The testimony in the divorce case was completed in February, 1902. It was decided in December of that year by the circuit judge, who refused to grant a decree for divorce. The case was appealed to this court. An opinion was filed December 1, 1903, reversing the decree of the court below. The case is Knickerbocker v. Knickerbocker, 135 Mich. 102. The trial of this case was held in May, 1902. The jury returned a verdict in favor of plaintiff. The case is brought here by writ of error.

There are nearly 600 pages of the record. There are 135 assignments of error, upon all of which counsel says he relies. In his discussion of them he has grouped them as follows:

First. As to the jurisdiction of the court to hear, try, and determine the cause.

Second. The permitting of any evidence in the cause tending to show criminal conversation as alleged in the plaintiff’s second count in his declaration, because of the fact that the plaintiff had failed to set up this charge in his answers to the bill of complaint in the divorce case, such cause having been submitted to the court for its decisión upon the testimony introduced therein and the pleadings in said cause.

Third. The refusal of the court to permit Mr. and Mrs. Knickerbocker to be sworn and examined as witnesses in the cause upon request of defendant’s counsel and the consent of both Mr. and Mrs. Knickerbocker.

Fourth. Errors of the court in admitting and rejecting testimony in the cause.

Fifth. Misconduct of plaintiff’s counsel in the examination of witnesses.

Sixth. The refusal of the court to grant the defendant’s several requests to charge.

Seventh. Errors of the court in charging the jury.

In disposing of them we follow the order in which they were presented. >

Did the court have jurisdiction to try the case ? The circuit judgé is a brother-in-law of one of the counsel for plaintiff. This fact was known to defendant’s counsel for a long time. After the trial was entered upon it appeared the counsel for plaintiff had this case on shares. Their fees and the money advanced by them in the way of expenses depended upon their winning and collecting a verdict. It is the claim of counsel for defendant that he did not know this until the trial was entered upon. It is claimed by counsel for plaintiff that he learned it months before in the examination of Mr. Knickerbocker in the divorce case. After the situation was disclosed at the beginning of the trial, counsel for defendant objected to the ■ circuit judge trying the case, because he was related to one of the attorneys, who was to be paid out of the judgment if paid at all. His contention is that section 1109, 1 Comp. Laws, should apply. A recess was taken, and, to guard against any contingency, the attorneys and client rescinded and abrogated the agreement with reference to compensation, and this fact was made to appear to the satisfaction of the circuit judge. Counsel also in open court waived any lien they had or might have as attorneys upon any judgment plaintiff might obtain. The judge held that he was not disqualified, and proceeded with the trial. We need not decide whether the judge would have been disqualified had the contract continued. As it was abrogated, the case certainly is not within the statute. Morever, the contract was originally void on the ground of public policy. See McCurdy v. Dillon, 135 Mich. 678.

Did the court err in allowing evidence tending to show the truth of the allegations contained in the second count of the declaration ? Counsel says plaintiff failed to set up this charge in his amended answer in the divorce case, and is now debarred from charging the defendant with said offense. It is true, the defendant in that case did not say in so many words that his wife and Mr. Worthing had committed adultery, but he, in effect, so charged them. This court so regarded the allegations of his answer, and passed upon that question in disposing of the case. Counsel also says that because the court passed upon that phase of the case, and found the charge of adultery was not made out in the divorce case, the decree in that case is conclusive upon that question; citing as to both of these claims Gleason v. Knapp, 56 Mich. 291. There is language in the opinion in that case which tends to justify the claim of counsel, but when the case is considered carefully it will be found to be distinguishable from this one. In the case of Gleason’s wife against him no answer was put in. In the case of Gleason against his wife nothing was done by him except to file his bill of complaint. In the case brought by him against Knapp the court found the facts sworn to by him were entirely contradictory to his sworn bill against his wife. The question involved in the case of Knickerbocker v. Knickerbocker was whether the wife was entitled to a divorce upon the ground of cruelty. We held that she was. The question involved here is whether the affections of Mrs. Knickerbocker were alienated by the unlawful acts of the defendant. We think the case comes within Corry v. Lackey, 105 Mich. 363.

Did the court err in refusing Mr. and Mrs. Knickerbocker to be sworn ? The question arises in a somewhat peculiar way. Counsel for defendant was authorized to speak for Mrs. Knickerbocker, and offered to call her as a witness, and also offered to allow Mr. Knickerbocker to be called as a witness. Counsel for plaintiff stated to the court that, if it could lawfully be done, he had no objections, but he believed it was unlawful. After taking the question' under advisement, the court declined to permit the calling of these witnesses. ' Counsel say, as there were two counts, the testimony at least ought to have been allowed under the first count. Counsel also says (we quote from his brief):

“It certainly would be a strange public policy that would say that a wife, who had always borne the best of a reputation, and stood as high in the community as any woman in that community, should not have the right, when charged with infidelity, to go upon the stand and protect her good name and reputation, when all parties in interest in open court should give their consent. As we said in the court below, so we say now, that, if this is public policy, we think that public policy should be reformed ; and we do not believe that this court or any other court is going to hold that Mrs. Knickerbocker, under these circumstances, had not the right to go on the stand .and deny the charges which were made against her, and that this denial of such right was justified because of public policy.”

We cannot overlook the fact that the question of adultery •is involved in the case. It is difficult to see how the testimony of the husband or wife could be given tending to •prove or disprove the charge contained in the first count without its also having a bearing upon the question involved in the second count. If the testimony was permitted to be given, it would be beyond the power of the judge •or counsel to confine its effect to the first count alone. Section 10213, 3 Comp. Laws, so far as it is material, reads:

“ A husband shall not be examined as a witness for or against his wife without her consent nor a wife for or .against her husband without his consent. * * * Nor shall either, during the marriage or afterwards without the consent of both be examined as to any communication made by one to the other during the marriage; but in any action or proceeding instituted by the husband or wife in consequence of adultery the husband and wife shall not be-competent to testify.”

This section has been repeatedly construed by the court. It was held the wife was not a competent witness for the husband in a criminal conversation case in Mathews v. Yerex, 48 Mich. 361, which case was reaffirmed in Reynolds v. Schaffer, 91 Mich. 494. In Carter v. Hill, 81 Mich. 275, which was a case for the alienation of the affections, there were three counts in the declaration, one of which was for adultery. In that case it was held the husband was not a competent witness in his own behalf. All of the above cases were cited by Justice Montgomery in his opinion in Hanselman v. Dovel, 102 Mich. 505, where it was held the husband was not a competent witness in a criminal conversation case, even after he had been divorced from his wife. It is very likely, as counsel suggest, that a great injustice may be done in requiring a woman to keep still when a charge of unchastity is made against her, as in this case; but it sometimes happens an individual must submit to a wrong that a greater good may come to the public. This action is such a one as is described by the statute which declares the husband and wife may not be witnesses.

Did the court err in admitting and rejecting testimony in the case? Under this head a great many assignments of error referring to several witnesses are discussed. It is not practicable to take up and deal with each of them. We have examined the brief and the record with care. While much of this testimony may not have had very much value standing alone, it related in some degree, at least, to the questions involved in the case. It is possible the court might properly have allowed more latitude in the cross-examination of Miss Mather as to whether her testimony had been influenced by the testimony of Mr. Kitchen, but, taken as a whole, we do not find as to this feature of the case any reversible error.

Was the counsel of plaintiff guilty of .misconduct in the cross-examination of witnesses?

Counsel for plaintiff concedes that in the heat and excitement of the trial he transgressed the rules, but insists no harm was done to defendant. Complaint is made of the cross-examination of Mrs. Westbrook and of Mr. Rogers. A part of the cross-examination of Mrs. West-brook, of which complaint is made, is as follows:

“ Q. Will you swear that you didn’t write to Mrs. Knickerbocker substantially what I have asked you—that God had put it in your way to give her a home ? I am not haggling about words. A. I don’t see how I could have written it.

Q. Will you swear that you didn’t say it? A. That I didn’t say it ? I know I didn’t say it.

“ Q. Did you say in your letter that God had put it in your way to give her a home ? A. I don’t think so.

‘ ‘ Q. Will you swear that you didn’t ? A. I will swear that I don’t remember it.

‘ ‘ Q. Didn’t you admit, on the other trial, saying something .of that kind ? A. I say now I might have said it.

‘ ‘ Q. Ain’t you right here on the stand denying it now ? A. No.'

Q. Because you understand that that link of testimony would connect Mr. Worthing? A. No.

Q. Don’t you know that you are stating right now what isn’t true, when you say you don’t remember any such thing ? A. I do not.

Mr. Lyon: We object to that question, if your honor please.

The Court: The answer may stand.

“Mr. Lyon: We insist this witness is entitled to fair treatment.

Mr. Frankhauser: I will give her fair treatment if she will come in and fix up her testimony.

“Mr. Lyon: We take an exception to the remark of counsel.

The Court: The remark ought not to have been made.

Q. Well, perhaps I ought not to have said that. * * *

. Q. Let’s see, you lived in Detroit about ten' or eleven years ago ? A. I don’t remember just how long ago.

“Q. If you lived there about ten or eleven years ago, what business were you in then ? A. Well, I sewed.

Q. Living therewith your stepfather? A. No; we had a double house, and I had rooms adjoining.

Q. Who lived there with you, if anybody ? A. My daughters.

“ Q. At one time there, isn’t it a fact that a certain railroad man was caught in bed with you ? A. Never; no, sir; never.

Mr. Lyon: That is objected to, if your honor please. '

“ The .Court: The objection is good.

“Mr. Lyon: And we wish to have an exception on the record to counsel asking it.

Q. And didn’t your stepfather talk with you about it, and accuse you of it ? A. Never.

“Mr. Lyon: Now we object, if your honor please, to counsel asking these questions.

The Court: The objection is good.”

Mrs. Westbrook was an important witness in the case. She was sister of Mrs. Knickerbocker. The charge made against Mrs. Knickerbocker and Mr. Worthing was a grave one. The case itself was a close one. In the case of Knickerbocker v. Knickerbocker, in which the testimony was largely the same as in this case, it being our duty to pass upon the facts, we reached the conclusion that the charge was not established. Mrs. Westbrook’s testimony in the main was against the plaintiff, and, if believed, would go far to establish that plaintiff’s cruel conduct was the occasion of the change wrought in his wife toward Mr. Knickerbocker. The defendant had a right to have her testimony weighed upon its merits. Counsel had a right to discredit this witness, if he could, by a close and rigid cross-examination conducted within the rules of cross-examination. He did not content himself with doing this. He is an able lawyer. He subjected the witness to a rigid and searching cross-examination conducted at great length. He put question after question to her, and finally put to her a question the simple putting of which was an accusation of dishonor. When the witness indignantly repudiated the accusation, counsel ignored the ruling of the court, and repeated the accusation by an equally objectionable question. The minds of the jury were poisoned, and the mischief was done. The case comes, I think, within the recent cases of People v. Mills, 94 Mich. 637; People v. Gotshall, 123 Mich. 474; Gould v. Gregory, 126 Mich. 594, and cases therein cited. It is undoubtedly true, as stated by counsel, that in the heat and excitement engendered by the trial he went further with the cross-examination than he intended, but that did not cure the mischief done by it.

Did the court err in refusing the several requests preferred by the defendant F There were 33 of these requests, all of which were refused except as covered by the general charge. We shall refer to only such of them as we deem necessary to dispose of the case. The defendant preferred the following requests:

“13. The second count in the plaintiff’s declaration charges the alienation of his wife’s affections by means of adultery having been committed with her by the defendant. Now, I charge you that, before the plaintiff can recover under this count, he must satisfy you that the defendant committed adultery with the plaintiff’s wife substantially at the time and place and under the circumstances alleged by the plaintiff in his declaration.

“ 14. In order to establish the charge of adultery, the plaintiff must, first, prove an adulterous disposition on the part of the defendant towards Mrs. Knickerbocker; second, an adulterous disposition on her part toward the defendant; and, third, the opportunity for the gratification of this adulterous disposition. If any one of these elements is lacking, the plaintiff must fail. Mere opportunity is not sufficient; neither is the adulterous disposition without the opportunity sufficient; neither would it be sufficient to prove an adulterous disposition on the part of the defendant, coupled with the opportunity, unless the plaintiff goes farther, and proves an adulterous disposition on the part of the plaintiff’s wife.

“15. The offense of adultery is a most grave and serious one, for which no person can be required to answer except upon distinct and positive specifications, to which the proof must be strictly confined. In considering the evidence produced to establish this charge, the testimony is always to be examined with great care and solicitude, the character, motives, intelligence, memory, and credibility of the witnesses should be considered with great care, and every circumstance weighed and considered, in order that no reasonable doubt of guilt remain. When I say ‘ reasonable doubt ’ I do not mean the reasonable doubt which the law inquires in the trial of criminal causes, but that reasonable doubt which the law requires the jury shall not possess in the decision of civil causes of this kind. It means, in cases of this kind, simply that the evidence must satisfy the conscience of the jury in such a manner that they are convinced to a moral certainty that the offense has been committed.

“16. It is a matter of common knowledge that a large proportion of such charges are fabricated, and that they are often allowed to be proved by incomplete testimony. This renders it necessary that the jury should exercise the utmost care in considering the testimony, and not convict unless the chain of circumstances is entirely complete.

“17. The plaintiff cannot recover under this charge if the testimony is capable of being reconciled in favor of the innocence of the defendant. Before the plaintiff can recover, the testimony must be inconsistent with the theory of innocence, or with any theory except that of guilt. If two constructions can be placed upon the testimony, one of guilt and the other of innocence, it is your duty to adopt the construction of innocence.”

The entire charge of the court upon that branch of the case was as follows :

“Adultery is a crime naturally committed in secrecy, and it is not necessary, in order to convict of adultery, to produce evidence of witnesses who claim to have caught the parties in the act; but it is simply necessary to show facts and circumstances from which, if found to exist, adultery may be naturally inferred as the natural result of such circumstances. Mere opportunity to commit adultery is not sufficient to establish the offense. It must he evidence of such facts and circumstances, times and places, and association together, as would naturally lead a man of ordinary care and prudence to the conclusion that such parties were having illicit sexual intercourse. And if you find that the conduct and actions of this defendant and Mrs. Knickerbocker were such as to convince you that adultery was committed, you have a right to so find, even though there is no witness who testifies to seeing them engaged in the unlawful act. But if the evidence of such facts and circumstances do not naturally lead to that conclusion when viewed in the light of men of ordinary care and prudence, then you should not find this defendant guilty of adultery. And you are to determine this question from all of the evidence bearing upon it, giving it due and careful consideration, that you may justly determine the truth or falsity of this claim.

“Gentlemen, there are two classes of evidence, namely, direct evidence, which is evidence from eyewitnesses, who-see the things about which they testify; and circumstantial evidence, which is evidence of facts and circumstances, which, when established, lead the mind to certain conclusions or inferences taken therefrom. And I charge you that circumstantial evidence and direct evidence are both equally lawful means of establishing facts; that is to say, the law recognizes circumstantial evidence to be as convincing, when it does convince, as direct evidence. It makes no difference in this case as to plaintiff’s right of action, whether Mrs. Knickerbocker was willing to accept presents, or receive attentions, or have sexual intercourse with the defendant or not. If you find the defendant guilty under either count in this declaration and the instructions I have given you, her willingness to contribute to such wrongs would not relieve defendant from liability. However, this testimony is for your consideration in determining the amount of damages, if you come to that question.”

It will be observed that the thirteenth request is not covered. I think it a proper statement of the law, and it, or its equivalent, should have been given. See Dunn v. Dunn, 11 Mich. 284; Green v. Green, 26 Mich. 437; Freeman v. Freeman, 31 Wis. 235. It will also be observed that the propositions involved in request 14 were • not covered by the general charge. What I have said as to request 13 will apply with equal force to this. See 8 Am. & Eng. Enc. Law (2d Ed.), p. 269; 2 Bishop, Mar., Div. & Sep. § 1370; Freeman v. Freeman, 31 Wis. 235, and the many cases there cited. Request 15 was doubtless intended to challenge the jury to the gravity of the charge. It does not contain a correct statement of the law as to the degree and weight of evidence in this State as applied to a civil case. It is not necessary the plaintiff should sustain his case by evidence amounting to a moral certainty; but in a civil case, as well as in a criminal case, the charge of adultery is a grave and serious one, and testimony which is introduced for the purpose of establishing it should be examined with great care. The character, motives, intelligence, and credibility of the witnesses should be weighed in the light of surrounding circumstances. If, as a result of all the evidence, so considered, the plaintiff has established by a preponderance of proof the fact of adultery, it would be the duty of the jury to so find. While the request to charge was not a correct statement of the law, I think the learned judge failed to caution the jury in relation to the gravity of the offense and their duty in scrutinizing the testimony. We do not regard the sixteenth and seventeenth requests as correct statements of the law. The following request was preferred :

“The long and uniform good standing and reputation of the parties charged should he considered in their favor. Parties who have led a moral and chaste life until they have reached the age of fifty years or more are not liable of a sudden to commit this act. And if you find that the uniform standing and reputation of the parties charged in this case has always been good, that fact should weigh in their favor, and be taken into consideration by you in arriving at your verdict.”

Instead of giving the request, the court said:

“ The defendant has offered evidence of his good character. This was permitted, because this declaration charges him with commission of a crime; that is, intending to commit the crime of adultery. You are instructed that good character, if established, is of importance to a person charged with crime. It is not unusual, perhaps, for good men to commit crime; but it is possible, and men who stood high have been guilty. You should consider whether a person with a good character would be less liable to_ commit a crime than one with a bad character. You will consider this evidence with all the rest, and give the defendant all the benefit of it that you believe him entitled to.”

This question was passed upon in Adams v. Elseffer, 132 Mich. 100, under which decision the charge of the circuit judge was even more favorable to the defendant than it ought to have been. We have examined the other requests, and think they either ought not to have been given or were sufficiently covered by the general charge. '

Did the court err in his charge to the jury? It is the • claim of counsel that the judge in his charge to the jury gave undue prominence to the claim of the plaintiff and the evidence of his witnesses in support of it; that this was the more detrimental because he failed to give the same prominence to the claim of defendant and the evidence in support of it. We cannot agree with-this contention of counsel. A careful reading of the charge in connection with the record convinces us that the trial judge made a successful effort to carefully and impartially present to the jury the claims of the respective parties.

For the reasons I have herein indicated, I think the judgment ought to be reversed, and a new trial ordered.

Montgomery, J.

The facts are sufficiently stated in the opinion of the Chief Justice. I agree with him that the circuit judge was not disqualified. I also agree that the plaintiff’s action is not barred by the failure to charge adultery in terms in the answer interposed in the chancery case. There is no doubt that a bona fide defense was made in that case. It would be going beyond anything held in Gleason v. Knapp, 56 Mich. 291, relied upon by defendant’s counsel, and going beyond the requirements of public policy, to hold that because the.husband (if such were the fact) chose to make his defense without introducing that element he is barred from maintaining this action against another. Much less can it be said that the decision of this court in the divorce case, rendered long after the trial of the present case at the circuit, such decision being upon a question of fact, can or should have the slightest effect upon the verdict of the jury in the present case. I also agree that the court was right in excluding the testimony of Mr. and Mrs. Knickerbocker, and for reasons, sufficiently stated in the opinion of the Chief Justice.

Mrs. Westbrook was called as a witness for defendant, and on cross-examination the following questions were propounded by plaintiff’s counsel. The answers of the witness and the rulings of the court are also given:

Q. Let’s see, you lived in Detroit about ten or eleven years ago ? A. I don’t remember just'how long ago.

“ Q. If you lived there about ten or eleven years ago, what business were you in then ? A. Well, I sewed.

“ Q. Living therewith your stepfather? A. No; we had a double house, and I had rooms adjoining.

“Q. Who lived there with you, if anybody? A. My daughters.

Q. At one time there, isn’t it a fact that a certain railroad man was caught in bed with you? A. Never; no, sir; never.

“Mr. Lyon: That is objected to, if your honor please.

“The Court: The objection is good.

“Mr. Lyon: And we wish to have an exception on the record to counsel asking it.

‘ ‘ Q. And didn’t your own stepfather talk with you about it, and accuse you of it ? A. Never.

“Mr. Lyon: Now we object, if your honor please, to counsel asking these questions.

“The Court: The objection is good.”

It is insisted that the propounding of these questions ■ constituted such misconduct on the part of counsel as calls for a reversal of the judgment. This contention apparently proceeds upon the view that proof of want of chastity is not admissible for the purpose of impeachment, and that, as this must have been known to plaintiff’s counsel, he should be held to have abused his privilege in putting the questions quoted. It is true that as original testimony for the purpose of direct impeachment the want of chastity of a female witness cannot be shown. It was also held in People v. Mills, 94 Mich. 637, 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. In People v. Harrison, 93 Mich. 596, Mr. Justice Durand, speaking for the court, said of such an inquiry:

“It was the duty of the circuit judge upon the cross-examination of the witness to permit such reasonable interrogation upon the subject as would fairly disclose to the jury her true character, and thus enable them to judge of the weight which should be given to her testimony.”

It was, however, held that the court had not abused his ■discretion in the limit placed upon the inquiry in that case. The cases are numerous which hold that on cross-examination of a witness the test is not whether the ■question propounded would be proper if put to another witness for purposes of impeachment, but that, on the contrary, within limits fixed by the discretion of the trial court, the jury may be made acquainted, through the cross-examination, with the past life and character of the witness, and that only in case of a clear abuse of such discretion will the appellate court reverse the ruling of the irial judge. Beebe v. Knapp, 28 Mich., at page 72; Leland v. Kauth, 47 Mich. 508; McBride v. Wallace, 62 Mich. 454. In my judgment, it would not have been reversible error for the circuit judge to have permitted an .answer to the questions put. The matter was within his discretion within the rule of the cases cited; but, even if the inquiry was not admissible, it would by no means follow that the propounding of these questions in the apparent good faith belief that they were competent should be held reversible error. The lawyer is not bound to guar.antee that his position on the legal questions that arise during the progress of a trial shall in all cases be unassailable. To impose, such a burden upon counsel would Tender fair discussion of legal questions impossible, and would withdraw from the trial judge the great aid now derived from arguments of counsel. The law is not so.

In addition to the cases which have held that, even when questions relating to the past life of the witness, which, in the opinion of this court, should have been excluded, have been answnred, yet the court would refuse to disturb the ruling on the ground that the circuit judge’s, discretion would not be interfered with (as in Beebe v. Knapp, supra, and Threadgool v. Litogot, 22 Mich. 272), it has been held that, where questions along this line are excluded, the propounding of such questions in good faith does not constitute error. People v. Palmer, 105 Mich. 579. See, also, Fosdick v. Van Arsdale, 74 Mich. 305, and Prentis v. Bates, 93 Mich. 235, in which my own views are set forth at length.

People v. Gotshall, 123 Mich. 474, is not, when fairly construed, out of harmony with these cases, for in that case want of good faith was apparent. The case of Gould v. Gregory, 126 Mich. 594, follows People v. Gotshall.

Error is assigned upon the refusal to give the defendant’s thirteenth request, which, in substance, asked an instruction that, before the plaintiff could recover under the second count, the jury must be satisfied that the defendant committed adultery with the plaintiff’s wife substantially at the time and place and under the circumstances alleged. I think the charge of the court very clearly limited the jury, as to the adultery charge, to the time fixed in the declaration, and that it was not error to refuse to give this instruction.

The fourteenth request was as follows:

“In order to establish the charge of adultery, the plaintiff must first prove an adulterous disposition on the part of the defendant towards Mrs. Knickerbocker; second, an adulterous disposition on her part towards the defendant; and, third, the opportunity for the gratification of this adulterous disposition. If any one of these elements is lacking, the plaintiff must fail. Mere opportunity is not sufficient; neither is the adulterous disposition without the opportunity sufficient; neither would it be sufficient to prove an adulterous disposition on the part of the defendant, coupled with the opportunity, unless the plaintiff goes farther, and proves an adulterous disposition on the part of the plaintiff’s wife.”

This request ignores the fact that there was testimony which came very near being direct evidence of adulterous intercourse, and by its peculiar, argumentative phraseology was well calculated to give the jury to understand that the various elements named must be established by distinct and segregated testimony. Such an instruction could not have furnished a clearer guide than that given, viz.:

“ Mere opportunity to commit adultery is not sufficient to establish the offense. It must be evidence of such facts and circumstances, times and places, and association together as would naturally lead a man of ordinary care and prudence to the conclusion that such parties were having illicit sexual intercourse.”

The jury could not fail to understand from this that the disposition to commit adultery must be present.

The refusal to give the instruction asked as to the effect to be given to the defendant’s evidence of previous good character was not error, for the reason that the defendant had greater benefit from this testimony than he was entitled to. The evidence was not admissible. Adams v. Elseffer, 132 Mich. 100.

I am satisfied that the question of fact was fairly submitted to the jury, that there was ample testimony to support the finding, and that, if the defendant has been in any way wronged, it is not in our power, keeping within the lines of our duty, to interpose.

The judgment should be affirmed.

Hooker, J., concurred with Montgomery, J.

Carpenter, J.

I agree in the conclusion reached by Justice Montgomery,'and, except as herein stated, I concur in his opinion. I agree that we should not reverse the case because of the questions imputing want of chastity asked witness Mrs. Westbrook by plaintiff’s counsel. I agree with Justice Montgomery that we should say that the asking of these questions did not constitute reversible error, because it is to be presumed they were asked in good faith, under the belief that the inquiry was within the discretion of the trial judge. This is as far as it is necessary to go, and it is as far as I think we should go in the case. I therefore express no opinion on the proposition that it would not have been reversible error for the circuit judge to have permitted an answer to these questions.

Grant, J., did not sit.


author: Montgomery, J.

text:
    OLIVIER v. HOUGHTON COUNTY STREET-RAILWAY CO.
    1. Personal Injuries—Death —Measure of Damages—Survival Aot.
    Under section 10117, 3 Comp. Laws, providing that actions for negligent injury to persons shall survive, in an action by an administrator for injuries to his decedent, who died a few hours after the injury, plaintiff may recover the amount decedent would have earned during the period he would probably have lived, without any deduction for what it would probably have cost him for food, clothing, and other personal expenditures.
    3. Same—Evidence—Harmless Error.
    In an action for personal injuries by an administrator, under the survival act (3 Comp. Laws, § 10117), evidence that decedent left a family is immaterial, but its admission is harmless, where plaintiff disclaimed any recovery on such evidence, and the court so instructed the jury.
    Error to Houghton; Streeter, J.
    Submitted July 16, 1904.
    (Docket No. 85.)
    Decided November 29, 1904.
    Case by Charles O. Olivier, administrator of the estate of Cyrille Boivin, deceased, against the Houghton County Street-Railway Company, for negligent injuries to plaintiff’s intestate, resulting in his death. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Gray, Haire & Stone, for appellant.

      W. A. Burritt, for appellee.
   Montgomery, J.

On the 21st of June, 1902, plaintiff’s intestate received injuries through defendant’s negligence, which, 14 hours later, on June 22, 1902, caused his death. This suit is brought, under the survival act (section 10117, 3 Comp. Laws), to recover compensation.

The first trial resulted in a small verdict and judgment for the plaintiff, the trial judge holding that recovery for loss of earnings of decedent was limited to the time intervening between his injury and death. That judgment was reversed fby this court (see 134 Mich. 367) on the ground that a recovery might be had “for loss of earnings for the period during which the evidence fairly shows that he [the deceased] would have lived, but for the injury.”

A second trial has been had, and a verdict of $7,300 rendered for plaintiff. On this trial the jury was instructed, in accordance with our decision, to compute the loss of earnings during the period deceased would probably have lived. But the trial court refused to instruct them, as requested by defendant, that they should deduct from this amount what it would probably cost decedent for his food, clothing, and other personal expenditures. The principal question raised by this appeal is the claim of defendant that the refusal of this request was erroneous.

In my opinion, the trial judge correctly interpreted and applied the decision of this court given on the former hearing of this case. 134 Mich. 367. In that case it was held that the plaintiff might recover for the loss of earnings which the evidence fairly shows that deceased would Lave made during the period which he would have lived, but for the injury. This rule is to my mind the only just one to apply. The present plaintiff sues in a representative capacity. He ought to be able to demand the same damages that the deceased might have exacted if the action had been brought to trial during the latter’s lifetime. If this be not so, then the statute is in part inoperative, and the action does not survive to the legal representative, except in a limited degree. But we held in Kyes v. Telephone Co., 132 Mich. 281, and in Olivier v. Railway Co., 134 Mich. 367, that the administrator is entitled to the same damages that deceased could have recovered, had he lived to bring the suit to a successful issue. See, also, 4 Sutherland on Damages (3d Ed.), § 1241, citing above cases. I am not able to discover any just reason why these rulings should not be decisive of the present case. When the deceased received his injury, he stood entitled to recover then and there the loss sustained by being deprived of the power to earn money during the period he would have lived, had he not suffered the injury. It would not, under these decisions, have been any answer for defendant to say that “while this is precisely what we have deprived you of, you cannot recover it all, as we have, in addition to crippling you, shortened your life.” To admit such an answer is going a step beyond refusing compensation for loss of life. It is permitting a defendant to assert the excessiveness of his own tort to escape paying full compensation for the injury. This should not be permitted. If not permitted in an action by the injured party, it should not be allowed in an action by his legal representative.

Still more inequitable is the suggestion that the plaintiff’s damages ought to be reduced because the defendant, by the severity of the injuries inflicted, succeeded in relieving the deceased of the burden of supporting himself after a short period, as the injury shortened his life. In the first place, such a contention erroneously presupposes that the tort feasor is concerned in the manner in which his victim shall dispose of the damages which he receives for Ms injuries. 'With all respect for the contention, it may be stated that it is none of the defendant’s business how the injured party disposes of the money received in compensation for the injury. The fallacy is in assuming as a premise (although not so stated) that the action is, in some sense, to recover for the cost of the injured party’s maintenance. This is in no sense true. The action is to recover the damages which have resulted as a present loss to the injured party, in being deprived of a capacity to earn money, which capacity he had before the injury, and which he now has not. That capacity he had, with an assurance of a continuance for his expectancy of life (subject, of course, to ordinary vicissitudes as to sickness). He has it not now for any period. If we subtract nothing from such expectancy, we have as a result the period of earning capacity of which the injured party is deprived.

The cases cited which have arisen under the death act, and have from time to time been considered, have no application, for the reason that in those cases the damages recoverable are those sustained by the next of kin. In tMs case the damages which are recoverable are those sustained by the deceased.

I think it also follows from the above reasoning that testimony to the effect that deceased left a family was immaterial. But in view of the disclaimer of any claim for damages based upon this testimony, and of the very careful charge of the circuit judge, I think the error in the admission of this testimony did no harm to defendant, and that the judgment ought not for this reason to be rewersed.

The judgment should be affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    CHICAGO, KALAMAZOO & SAGINAW RAILWAY CO. v. KALAMAZOO CIRCUIT JUDGE.
    Preliminary Injunction—Dissolution—Discretion.
    The coming in of a sworn answer fully meeting the allegations of the hill does not deprive the court of all discretion to refuse dissolution of a preliminary injunction.
    Mandamus by the Chicago, Kalamazoo & Saginaw Railway Company and others to compel John W. Adams, circuit judge of Kalamazoo county,to dissolve a preliminary injunction.
    Submitted June 7, 1904.
    (Calendar No. 20,516.)
    Writ denied November 29, 1904.

      E. M. Irish and W. G. Hoivard, for relators.

      Dallas Boudeman and Taggart, Denison & Wilson, for respondent.
   Per Curiam.

This is an application for mandamus requiring the respondent to vacate a preliminary injunction. The relator has argued his case at great length and very forcibly, but the argument proceeds upon the theory that the answer fully meets the charges in the complainant’s bill, and that the circuit judge should have accepted the answer as true. While it is undoubtedly true that as a general rule a court will, upon the coming in of a sworn answer fully meeting the allegations .of the bill of complaint, dissolve a preliminary injunction, this rule is not so rigid as to deny any discretion in the court. 2 High on Injunctions (3d Ed.), § 1508.

We are not able to say that there was a clear abuse of discretion in maintaining the injunction in the present case until the hearing.

The writ is denied.


text:
    AMERICAN MISSIONARY ASS’N v. HALL.
    1. Mandamus—Propriety—Refusal to Remove Administrator.
    Mandamus will not lie to review the order of a probate judge refusing to remove an administrator.
    2. Foreign Executors —Appointment with Will Annexed — Removal—Foreign Courts—Decrees—Effect.
    The fact that a foreign executor, appointed executor to administer property located in this State, as authorized by the statute (3 Comp. Laws, § 9284), is thereafter removed by the court of his domicile, does not require his removal as executor here, as a matter of law.
    Certiorari to Huron; Beach, J.
    Submitted October 4, 1904.
    (Calendar No. 20,657.)
    Decided November 29, 1904.
    Mandamus by the American Missionary Association and others to compel Charles L. Hall, probate judge of Huron county, to remove an administrator. To review an order denying the writ, relators bring certiorari.
    Affirmed.

      George W. Radford, for relators.

      Fred H. Aldrich, for respondent.
   Montgomery, J.

Mabel Crawford, a resident of Ohio, died testate. Her will was admitted to probate in the probate court of Lucas county, Ohio, on May 23, 1891. William it. Stafford was appointed executor by that court.

As the testatrix left a large estate in Michigan, proceedings were had in Huron county to have her will admitted to probate there. On May 17, 1893, the will was admitted to probate by the probate court of Huron county, and William R. Stafford was granted letters testamentary, under section 9284, 3 Comp. Laws.

In May, 1900, the probate court of Lucas county, Ohio, removed Stafford from his trust. In June, 1903, an application was made by relators to the probate court of Huron county (tbe respondent acting as judge of that court) to remove Stafford as executor in this State. This application was based wholly upon a showing of his removal by the Ohio court. The respondent, being of the opinion that he was not precluded by the decision of the Ohio court from exercising his own judgment, denied the application of the relator. No appeal was taken, but, after the time for appeal had elapsed, an application was made to the circuit court to compel the probate judge to revoke the appointment of Stafford. This application was denied, and the present proceeding is certiorari to review the decision of the circuit court.

We do not think mandamus the proper remedy. The probate judge, having jurisdiction to consider and decide the question presented, did so in the regular way. If he erred, appeal was the proper remedy. If the remedy by mandamus was open, we would be wholly unable to assent to the broad contention of relators’ counsel that the action of the probate court of Ohio was conclusively binding upon the Michigan court. Administration of estates lying within this State is not committed by our law to foreign tribunals. Under section 9284, the courts of this State are given authority to exercise a discretion in the appointment of an executor or administrator with the will annexed. If the court may appoint, it may retain. It is a startling proposition that a foreign court may interfere to remove an officer of our courts, or an appointee of such court, to a position of trust. If such foreign court has not this power, it cannot indirectly cause such removal by making an order which shall bind the court. True, we are bound to give full faith and credit to the determinations of the Ohio tribunal. • We are not, however, required to permit the courts of a sister State to determine matters committed by the law to our jurisdiction. While the administration in this state is ancillary, it is independent.

The order of the circuit court is affirmed, with costs.

The other Justices concurred.


text:
    COX v. RAIDER.
    1. Specific Performance—Equity.
    Specific performance is not a matter of right.
    2. Same—Estoppel.
    Where the contract purchaser of land, on inquiry, disclaims any interest in the land, and, in reliance thereon, a third person purchased it of the vendor as a part of a larger tract, which would be less valuable without the tract in question, specific performance is properly denied.
    Appeal from Newaygo; Palmer, J.
    Submitted October 4, 1904.
    (Docket No. 101.)
    Decided November 29, 1904.
    Bill by Nicholas Cox against John F. A. Raider and Neils Jensen to compel the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Grove & McDonald, for complainant.

      W. D. Fuller, for defendants.
   Montgomery, J.

On the 12th day of October, 1900, the defendant Raider, being the owner of a tract of land in the village of Grant, Newaygo county, Mich., sold on contract to one Henry Caplin the lot in controversy in this suit. The size of said lot is 32 feet by 100 feet. The consideration was $200, payable $50 on delivery of said contract and $156 one year from the date of said contract, to wit, October 12, 1900. Caplin paid the $50 due on the delivery of the contract, went into possession of the lot, and built a store building thereon, which he occupied until it burned down. He made other payments on said contract until October 22,1901, when there remained $100 of the purchase price unpaid, of which the time of payment was extended to October 11, 1902.

On the 18th day of January, 1903, Caplin assigned all his right and title to said contract to the complainant in consideration of the sum of $25, which complainant agreed to pay if he (complainant) got the lot and made anything out of it. On March 31, 1903, the complainant paid to defendant Raider $125, which exceeded the amount due by more than enough to pay all the expenses of executing and making a conveyance according to contract, and asked him for a deed, and Raider said he could not give him a deed because he had assigned his interest in the contract, but received the $125, giving the following receipt:

“Received of Nicholas Oox $125 as custodian. This money is intended (by Cox) to fulfill on a certain contract given to me by one Henry Caplin, but which I have some time since assigned to one Phillips. As soon as it is legally decided who is now entitled to the deed for said land, the money shall apply, if in favor of Mr. Cox, otherwise I will refund the above amount.”

On January 17, 1903, the defendant Raider sold by contract to one James A. Phillips a tract of land (of which the lot in controversy is about one-sixth part), describing the whole tract by metes and bounds, and specifying the following exception:

“Excepta piece, off the southwest corner of lot four 32x100 feet sold to one Sanders, and any legal interest one Harry Caplin may legally claim under, certain contract to him which the above first party assigns to the above second party as part of this agreement.”

This last-mentioned contract was assigned by Phillips to defendant Jensen on February 17,1903. Mr. Phillips and defendant Jensen went together when Phillips bought the land from Raider, and knew of Caplin’s interest. He knew of the exception in Phillips’ contract.

On April 1, 1903—the next day after complainant paid defendant Raider the balance in full for the lot—the defendant Jensen caused written notice to be delivered to complainant that the defendant Raider had assigned his interest in said contract to him, and that he (Jensen) canceled the contract on account of nonfulfillment of the terms thereof. On the following day complainant notified the defendant Jensen that he had paid the balance on the contract in full to Raider, and oh the 15th day of April, 1903, complainant tendered $125 to defendant Jensen as payment in full on said contract, and demanded from him a relinquishment and conveyance of all his right, title, and interest in and to said land contract. Jensen refused to accept the money, claiming that the contract was forfeited.

The bill of complaint sets forth the foregoing facts, and prays for specific performance of the contract. Defendant Jensen defends as assignee of the Phillips contract, and claims that before it was made Caplin stated to Phillips that he had given up his contract, and let the lot gó back to Raider; and that Caplin made similar statements to him before he bought the land of Phillips and received an assignment of his contract. He further claims that he owned other land contiguous to the Phillips land, and took an assignment of the Phillips contract in the belief that Caplin had given up all rights under his contract. The Caplin lot fronts on á street, and partially obstructs passage therefrom to the remainder of the Phillips land, and he claims that he would not have purchased said land if he had supposed that the Caplin contract could be enforced as against him. For these reasons Jensen objected to the court granting the relief prayed for in the bill. The case was heard in open court, and a decree made dismissing the complainant’s bill. The complainant appeals.

The testimony fáirly establishes the following facts: After the purchase of the land Caplin erected a store building thereon, and conducted a merchandising business therein until the fall of 1901, when the building was destroyed by fire, and Caplin left the lot with the remains of the building thereon, and removed from the village, and engaged in the business of a traveling salesman. He failed to pay the taxes on the property and to make the payment of $100 October 11,1902, as per the receipt given him by Raider October 22, 1901. Under these conditions Phillips applied to Raider for the purchase on contract of the Caplin lot and of land in the rear of, and of a lot adjoining, the Oaplin lot on the front, and, knowing that Caplin had a claim at one time to the lot in suit, went to him in company with one Davis, and asked him what interest he had in the lot, and Caplin told him that he had none; had all the use of it he wanted, and had let it go back to Raider. In reliance upon these acts and statements, Phillips contracted to purchase the land before mentioned for $500. He paid $100 down, and is to pay $200 in one year and $200 in two years, with 7 per cent, interest. The date of Phillips’ contract is January 17, 1903.

Defendant Jensen owned land and buildings adjoining or near the Caplin lot, and desired to secure the land covered by the Phillips contract, and asked Caplin what interest he had in the lot, and was informed that he claimed none. In reliance upon this statement, Jensen paid Phillips what he had paid Raider, and took an assignment of the contract, dated February 17, 1903. He cleared off the remains of the building and performed some other work on the lot and upon the adjoining land covered by the Phillips contract. He claims it was worth $10. Jensen took all the possession he could of the land, and exercised acts of ownership over it.

There is an apparent equity in refusing specific performance in this case. The defendant has, in reliance upon the contract vendee’s statements that he had abandoned the contract, changed his position, and has bought this lot as a portion of a larger tract, the remainder of which is made more valuable by his ownership of the lot in question.

The complainant contends that this defense is an attempt to establish the title to land by estoppel, and that the testimony was therefore incompetent. We do not think that the conclusion reached by the circuit judge need be rested upon estoppel. The remedy by specific performance is within the legal discretion of a court. Specific performanee is not a matter of strict right. Rust v. Conrad, 47 Mich. 449; Fry on Specific Performance, § 44. And when the conduct of the contract purchaser has created conditions which render it inequitable for the court to interfere and specifically enforce the contract, there is no hardship in treating an abandonment as conclusive and in refusing to permit a retraction.

The result reached by the circuit judge accords with ; equity, and the decree is affirmed, with costs.

The other Justices concurred.


text:
    FLANAGAN v. SANDERS.
    1. Negligence—Elevator Shafts—Protection—Duty to Trespassers.
    The owner of a store building owes no common-law duty to a trespasser to maintain guards about an ^levator shaft on his premises.
    2. Same—Detroit Charter—Construction.
    Section 714 of the charter of Detroit of 1893, requiring that elevator shafts in stores or buildings in the city shall be provided with and protected by a substantial railing and sufficient automatic trapdoors, etc., does not impose a duty on the owners of store buildings in favor of trespassers, nor render them liable to trespassers for injuries proximately resulting from failure to provide elevator wells with automatic gates. \
    Error to Wayne; Rohnert, J.
    Submitted .October 5, 1904.
    (Docket No. 10.)
    Decided November 29, 1904.
    Case by Mollie A Flanagan against Fred Sanders and others for personal injuries. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Corliss, Andrus, Leete & Joslyn (Bay B. Morgan, of counsel), for appellant.

      Brennan, Donnelly & Van De Mark, for appellees.
   Montgomery, J.

The plaintiff, a young woman 27 years of age, was a saleswoman in charge of the toilet goods department of Shafer’s store in Detroit at the time this cause of action arose, and had held such position for upwards of four years.

Shafer’s store occupied the first eight floors of the Majestic building, a building fourteen stories high, situated on the corner of Woodward and Michigan avenues, directly opposite the city hall, the busiest locality in the city.

Defendants occupied the six-story building adjoining the Majestic building on the north, and known as 141 and 143 Woodward avenue. They were the lessees of the whole building, and occupied the basement, ground floor, and fourth floor themselves in their confectionery and ice cream business. The' remainder of the building was rented by them to numerous tenants for office purposes. In the rear of this building defendant maintained a frieght elevator running from the basement to the top of the building. On the ground floor the elevator could be reached only by a door opening on the alley. This door led to an inclosure about 18 feet long and 8 feet wide. This inclosure was provided with no other doors or windows. At its inner end, and about 8 feet from the door, was the elevator opening, extending practically the full width of the inclosure. This opening or well-hole was provided with a picket gate, which extended across the inclosure in front of the hole. The gate was not automatic, but was operated by hand, sliding up and down in grooves. If a person, in using the elevator, pushed the gate up above his head, and then took the elevator to some other floor, and forgot to push the gate down, it would remain up, and the opening in the floor would be left with no guard or protection whatever. It was not provided with trapdoors.

On the morning in question—Monday, October 7,1901— plaintiff arrived at the Michigan-avenue entrance to the, Shafer store, at about 8:15 o’clock, and found it surrounded by a large crowd. The business had a few days before been sold to Pardridge & Walsh, and for three days previous the store had been closed in preparation for a sale, which had been widely advertised. The plaintiff, with ■other employés, had worked until 12 o’clock Sunday night in arranging her stock. Upon reaching the Michigan-avenue entrance, plaintiff was instructed by the night watchman to go around to the alley entrance. This she ■did, in company with Mrs. Dorothy Gray, another, saleswoman, entering the alley from Griswold street. Neither had ever before been in the alley. The alley is L-shaped, running south from State street in the rear of the Woodward-avenue stores to the Majestic building, then running west and opening on Griswold street in the rear of the Michigan-avenue stores.

The plaintiff and Mrs. Gray proceeded along the alley towards the Majestic building. They entered a door which they thought was the rear door of the Majestic building. .It proved to be the door leading to the Sanders’ ■elevator inclosure. Plaintiff, who entered the door ahead of Mrs. Gray, stepped into the open well hole and fell a ■distance of 11 feet to the brick floor of the basement, whereby she received very serious injuries.

Section 714: of the charter and laws of the city of Detroit (1893), upon which the plaintiff relies, reads in part as follows:

“In any store or building in the city of Detroit in which there shall exist or be placed any hoist-way, elevator, or well-hole, the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial railing, and also with good and sufficient trapdoors opening and closing automatically as the elevator passes from floor to floor: Provided, however, that such hoist-way, elevator, or well-hole may be inclosed in brick or by substantial woodwork, furred, lathed, and plastered -or sheathed with corrugated iron.”

The following diagram shows the situation of the premises and the location of the elevator shaft:

This action was planted and prosecuted on the theory that this statute imposed upon the defendánts a positive duty, and that the neglect of this duty gave rise to a cause of action in favor of one occupying the relation to the property which this plaintiff did. The court submitted the case to the jury upon this theory. A verdict was returned for defendant. Plaintiff brings error, and alleges that the court erred in various instructions given and in refusing certain requests preferred by the plaintiff’s counsel.

At tbe threshold of the case lies the question whether the plaintiff is in position to complain of the defendant’s failure to observe the requirements of this statute if there was such omission, for, if she is not entitled to assert that this statute imposed a duty upon defendant for her benefit, the other questions involved become immaterial.

It is clear that at the common law the defendant owed the plaintiff no duty to maintain guards about the elevator shaft for her protection. She was not upon defendant’s premises by invitation or license. A closed door stood between the alley and the elevator shaft. This entry way was not designed for use by the general public, but was used only by those who were concerned in using the elevator for handling freight. Our own cases upon this question are decisive. Pelton v. Schmidt, 97 Mich. 231; Ryan v. Towar, 128 Mich. 463.

Is the rule different where a duty is imposed by statute? There are cases in which a statute imposed added duties in the care of one’s premises, in which it is held that the duties are public in their nature, and that a neglect of duty can only be redressed by the pqblic. Such a statute was considered in Taylor v. Railroad Co., 45 Mich. 74. There are statutes imposing duties the neglect of which may be considered as evidence of negligence in an action brought by one sustaining a relation to the offending party which entitles him to invoke such statute, as in McRickard v. Flint, 114 N. Y. 222; Parker v. Barnard, 135 Mass. 116. It does not follow, however, that the legislative intent was to impose a duty upon owners of buildings as to trespassers. It is hardly conceivable that any such purpose to reverse all the rules relating to the duty owed by the owner of a private building was in the legislative intent. It was certainly not expressed.

We think that the most that can be said of this legislation is that in the interest of those to whom the owners of buildings owe care the measure of that duty is fixed. But we think it was not intended to create new relations, nor to impose upon such owner duties to strangers, trespassers, or others in no way entitled to occupy or be present on the premises. In this view no other verdict than that reached on the trial would be justified. '

The judgment is affirmed.

Moore, C. J., and Carpenter and Hooker, JJ., concurred. Grant, J., did not sit.