author: Steere, J.

text:
    REVOLINSKI v. MANISTEE & NORTHEASTERN RAILROAD CO.
    X. Railroads — Master and Servant — Statutes—Negltgence.
    Where plaintiff was engaged in repair work in the employment of defendant railroad company, regularly working in the car shops, although his duties frequently took him outside to work upon engines, cars, machinery, and rolling stock, and it appeared that the car shop in which he usually worked was located a few feet from the roundhouse, that the engines and locomotives were put in the roundhouse for repairs and that plaintiff was injured as he was going to begin repair work upon an engine that was not in the roundhouse but standing on the repair track nearby, he was a shop employee within the meaning of section 7 of Act No. 104, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4116), and he was not entitled to recover for the negligence of a fellow-servant.
    2. Same.
    A fellow-employee of the plaintiff engaged in work as a foreman who, in moving an engine from the roundhouse, permitted the steam dome to stand or remain upon top of the cab in backing the engine from the roundhouse, during which operation the dome struck the top of the doorway and was knocked. off, striking plaintiff, was a fellow-servant and not a vice-principal, and plaintiff was not entitled to recover from the defendant railroad company under the common law counts of his declaration.
    3. Same — Master and Servant — Shop Employee.
    The effect of Act No. 104, Pub. Acts 1909, as to employees who were engaged in outside work, although employed in the shop, was not to except from its operation such ■employees as were working in the shops at the time of their injury merely, but was intended to relate to employees who were engaged in employment that might be distinguished by the general description of work in a shop or office.
    4. Same — Roundhouse.
    The roundhouse in which engines are repaired and kept in the ordinary operation of the railroad is a shop within the meaning of the statute.

    Error to Manistee; Withey, J.
    Submitted April 8, 1915.
    (Docket No. 20.)
    Decided June 7, 1915.
    Case by Peter Revolinski against the Manistee & Northeastern Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Wilson & Johnson, for appellant.

      Benjamin & Beizoldt, for appellee.

       As to employees in shop, etc., within the purview of statutes abrogating the fellow-servant rule, see note in 47 L. R. A. (N. S.) 117.

   Steere, J.

On April 3, 1912, while in defendant’s employ, as a car repairer in its shops at Manistee, Mich., plaintiff was. struck and injured by a steam dome jacket falling from an engine which was being moved through a door of defendant’s roundhouse, and later recovered, in the circuit court of Manistee county, a verdict and judgment of $550, as. damages for personal injuries then sustained. Plaintiff’s declaration contained two counts, one alleging negligence under the common law, and the other under Act No. 104, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4110 et seq.), which deprives common carriers by railroads of certain common-law defenses in actions for personal injuries brought by employees, including that of negligence on the part of a fellow-servant. The trial court held that plaintiff could not recover under the common-law count, as it appeared that the negligence complained of, so far as shown, was that of a fellow-servant, but submitted the question of defendant’s negligence to the jury under the statutory count, denying a motion and requests of defendant’s counsel that the court direct a verdict in its favor because it appeared by the undisputed evidence that at the time of said alleged injury plaintiff was a shop employee, expressly excepted and not entitled to the benefit of said act under’ section 7, which is as follows:

“The provisions of this act shall not apply to employees working in shops or offices.”

That the kind of work plaintiff was engaged to perform placed him within the class employed for shop or office work, as distinguished from the class of railroad employees whose duties involve the special risks and unusual dangers of operative service in running trains, track work, etc., is plainly established by his own testimony. He was employed at defendant’s shops, not in the operation of its road, but in putting such of its rolling stock as became out of repair in condition for operation. His work was limited to this, whether done inside or outside of a building. He had worked as a car repairer most of the time for 15 years, being, as he states, a “handy man doing woodwork and ironwork repairs on cars of all kinds, engine tanks, and cabooses,” and “had worked in these car shops the last time about a year and a half.” His place of employment was in the car shops, where he regularly worked, though occasionally his duties took him outside for a short time. Of this he testifies:

“My work, generally speaking, was in the car shop, and I spent most of the time there unless I was ordered out. It was only occasionally I was ordered to work outside the shops.”

The car shop in which plaintiff usually worked stood within a few feet of the roundhouse, which contained seven stalls, with doors opening to a turntable just outside. The engines, or locomotives, were repaired in the roundhouse where the machine and boiler shops, or rooms, were. Various other buildings, such as the oilhouse, paint shop, casting shed, storage sheds, etc., were located in the shopyards conveniently adjacent, the oilhouse being just back of the roundhouse. A “warehouse track” passed near the turntable, with “dead engine tracks,” or “cinder tracks,” leading from it with switch connections to the turntable. '

When an engine was turned out after general repairs, it was customary to have a man from the car shops go to it and pack the boxes, oil the tank, etc. Plaintiff was injured while on such a mission. The men sent from the car shop to pack the journal boxes, etc., of the engines, would find them either on the dead, cinder, or warehouse track if not still in the roundhouse. On the day of the accident, in the afternoon, the foreman of the car shops directed plaintiff to look up engine No. 4, oil its journal boxes, look it over and see whether there was anything wrong underx the tank or with the brake rods and such things. This engine was not in the roundhouse and plaintiff did not know just where it was located, but on receiving his order he stepped into the roundhouse for'an oil can, passed through a rear door into the oilhouse, where he filled the can and turned back, passing through the roundhouse to the turntable on his way to the dead engine track beyond, where he expected to find engine No. 4. Engine No. 21, which was in the roundhouse for repairs, was just at that time about to be moved out upon the turntable to run it into another stall for further work upon it. Plaintiff crossed the track upon which it stood, and stopped for a moment to talk with an employee who was holding the sweep of the turntable to receive the engine, which was headed in, and just then was moved slowly backward towards the turntable by the foreman of the roundhouse, who was in the cab operating the engine with compressed air. The engine had been placed in the roundhouse for repair about a month before, and was then stripped of its steam dome jacket, which was placed on the top of the engine cab, as was customary. As the engine moved out, this steam dome jacket struck the top of the doorway and was thrown off the cab, striking and injuring plaintiff as it fell.

It is contended here in behalf of plaintiff, as in the trial court, that the foreman, whose carelessness caused the accident and who had charge and control of the roundhouse, was a vice principal, and the doctrine of safe place is involved. We deem it sufficient to state upon this question, without extended discussion, that under the well-settled fellow-servant rule as interpreted by former decisions of this court, we find no error in the ruling that there could be no recovery under the common-law count in plaintiff’s declaration.

Upon the trial counsel for both parties conceded that under the evidence the question of whether section 7 of said Act No. 104 applied to plaintiff was one of law for the court to decide. It is undisputed that at the immediate time of the accident plaintiff, though in the line of his duties, was not at work inside the walls of a shop. For that reason it was the opinion of the trial court that he did not come within the exception of said section; that, though hired to work in shops or offices, it did not apply to any employees during the time their duties compelled them to do outside work, construing the section as intended to except such employees only “while actually working in the shops or offices.” We are impressed that such construction of a general law, based upon an individual case, disregards the distinguishing characteristics of the kinds of employment upon which the legislative classification under consideration is founded.

Cases before this court involving said Act No. 104 throw little light upon the question in issue here. In Ferguson v. Railway Co., 169 Mich. 260 (135 N. W. 268), plaintiff was a mason’s tender, working on the construction of an addition to defendant’s roundhouse, and was injured by the falling of a scaffold caused by the negligence of a fellow-workman. Liability was denied on the ground that he was working in a shop. It was manifest that he was not of the class of employees nor doing the class of work, belonging to shops and offices. The court, therefore, held that he did not come within the exception. Bruce v. Railroad Co., 172 Mich. 441 (138 N. W. 362), involved other questions arising out of the act, and no claim appears to have been made that plaintiff was of the excepted class. In Boesler v. Railroad Co., 184 Mich. 430 (151 N. W. 560), it was conceded that whether plaintiff was a shop employee or not was a question of fact for the jury, the only error assigned being rejection of certain evidence claimed to be material upon that issue.

Plaintiff was not injured while engaged in more dangerous work outside his shop. He was not yet doing any actual work outside, but was out of the shop and had started to go a short distance to where the engine upon which he intended to work stood on a dead engine, or storage, track. When injured he was subject to no greater or different risks than if he had gone out of the shop to get a tool, or for any other temporary purpose, such as passing from one building to another in the performance of his duties. Whether it was more dangerous to pack the journal boxes on the dead engine track than in the roundhouse, where it was sometimes done, is not shown, but, if so, he was not engaged at that work when injured. Neither was the work he was about to do outside the line of his employment. It was the concluding job of repairing, sometimes done inside the roundhouse and sometimes in the yard outside. Below, foreman of the roundhouse testified without contradiction that this was a “short job” and:

“It is the general custom for the men in the car repair shop to look after the journal boxes on engines; * * * that department oils the journal boxes and repairs the tanks. I have never known a fireman to put oil in journal boxes.”

This question has been well considered and thorously reviewed by the supreme court of Wisconsin, which has a statute, passed in 1907, closely resembling in its general purpose our act of 1909. Section 7 of the Michigan act is in the identical language of section 9 of the Wisconsin act. In Kiley v. Railway Co,, 138 Wis. 215 (119 N. W. 309, 120 N. W. 756), the statute was before the court of last resort to test its validity and was sustained after exhaustive review, three opinions being filed. It is there said, amongst many other things:

“The exemption of shop and office employees from the operation of the law seems an appropriate one, because they are not engaged in that part of the business which exposes them to the unusual dangers and hazards of the business, nor does their conduct bear so directly in securing the safety of the public. * * *, ‘The question to be considered, however, is the distinction between the classes as classes, whether they are characteristics which, in a greater degree, persist through the one class than in the other, which justify legal discrimination between them.’ We are of opinion that the office and shop employees are sufficiently distinct in their employment and relation to the conduct of the railroad business to justify the legislature, within the field of its discretion and with regard to public policy, in exempting them from the operation of the law.”

The same case was before the court in 142 Wis. 154 (125 N. W. 464), and the act again considered, in two separate opinions, sustaining the former decision. In further discussing this question it was said, in part:

“As to the provision exempting shop and office employees from the operations of the act, a different question arises. This is undoubtedly classification, or rather subclassification, of employees. * * * Nor is classification to be condemned by the courts because the situation of certain individuals in one class may not differ materially from the situation of certain individuals in another class. * * * Speaking generally of the shop and office employees as a class, they are in less danger from the negligence of coemployees, and perform duties less directly and vitally connected with the public safety than train employees and track repairers, who constitute a very large percentage of the other class, and we cannot say that the differences are not such as would justify a reasonable mind in concluding that they suggest the propriety of substantial differences in legislative treatment.”

Following these decisions, the question of the status of a shop employee, when temporarily engaged in the line of his work outside a shop, arose in Ruck v. Railway Co., 153 Wis. 158 (140 N. W. 1074). Ruck was a boiler maker employed in defendant’s shops at Milwaukee, and was sent to assist in repairing a boiler from a wrecking train, lying on the ground near the roundhouse at Galewood, and while so engaged was injured. Though not then actually working in any shop, nor even in the city where the shops in which he usually worked were located, it was held that he was nevertheless in the excepted class, and still to be considered an employee working in a shop within the meaning of the statute, the court saying, among other things:

“A shop employee who goes into the shopyard or even a great distance from the shop for the purpose of performing the kind of labor which is ordinarily done in the shop is, we think, within this exception. The words ‘employees working in shops or offices’ must therefore, we think, include that class employed for such service whether actually within the walls of the shop or not, * * * although outside the shop at the time of the injury.”

The State of Minnesota has a statute abolishing the common-law fellow-servant rule as to employees of companies owning or operating railroads, which contains no exception of any class, as do the Wisconsin and Michigan acts, and a different rule prevails in that jurisdiction. A case, however, arose in that State involving ah accident which occurred at Stevens Point, Wis., entitled Koecher v. Railway Co., 122 Minn. 458 (142 N. W. 874), wherein the facts were very similar to those in the instant case. Koecher was employed as a machinist in defendant’s roundhouse at Stevens Point, and while going from there to an engine standing outside, a short distance away, upon which he was working, he was struck and injured by another engine through the negligence of a coemployee. Finding that the Wisconsin statute applied, the court held plaintiff was within the excepted class, and to the contention that a roundhouse was not a “shop” said:

“We think the term in this statute is used in that sense, and that a roundhouse in which machinists are regularly employed for the purpose of making repairs is a shop within the meaning of the statute. Both the character of the work and the class of employees is the same as in other railroad shops, and under the Wisconsin rule we see no escape from the conclusion that plaintiff was a shop employee at the time of the accident.”

For the foregoing reasons, the judgment is reversed, and no new trial granted.

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


source: Caselaw Access Project

author: Brooke, C. J.

license: Public Domain

text:
    PEOPLE v. EGGLESTON.
    1. Criminal Law — Peremptory Challenges' — Trial—Jury.
    In criminal proceedings a respondent is entitled to peremptory challenges without assigning any reason for his action.
    2. Same — Burglary—Intent—Intoxication.
    If a person charged with burglary was so affected by the use of intoxicating liquors that at the time of committing the act he was unconscious of what he was doing, he did not have sufficient capacity to entertain a criminal intent, but if he knew why he was doing the aGt the jury might infer the intent as if he was sober. It was erroneous for the trial court to instruct the jury that the law holds the accused responsible because he should not have gotten intoxicated but should have restrained himself from indulging in such drugs or liquors.
    3. Same — Charge.
    No error was committed on the trial of a prosecution for burglary in charging that if the respondent broke and entered a dwelling house in the manner described by the only witnesses who gave evidence touching upon the commission of the offense, he should be convicted.
    4. Same — Insanity.
    The defense of insanity, as soon as evidence is introduced tending to show such condition of mind, does not require the respondent to establish his unsound condition of mind by a preponderance of the evidence; the burden of proof rests with the people to convince the jury beyond a reasonable doubt that he was sane when he committed the offense.

    5. Same — Evidence—Presumptions—Burden of Peoof.
    Where respondent claimed that he had a joint interest in the house and premises which he was charged with entering unlawfully, the trial court should have instructed the jury, as requested by the accused, that if he thought this ownership or interest gave him a right to enter the house, he would not be guilty of a felonious intent.
    Error to Barry; Smith, J.
    Submitted April 22, 1915.
    (Docket No. 54.)
    Decided June 7, 1915.
    Frank Eggleston was convicted of burglary.
    Reversed.

      Thomas Sullivan, Prosecuting Attorney, for the people.

      Lee H. Pryor (W. W. Potter, of counsel), for respondent.

      As to presumption of sanity and burden of proof, see note in 36 L. R. A. 721, 726.

   Brooke, C. J.

Respondent stands convicted of the crime of burglary. The first four assignments of error discussed in the brief of counsel for respondent relate to incidents occurring during the empaneling of the jury. At that stage of the proceedings the learned circuit judge seems to have become somewhat impatient at the course taken by respondent’s counsel in peremptorily challenging certain jurors. While we might hesitate to reverse the case on account of what happened in this connection, inasmuch as it must go down for a new trial for other reasons, it is perhaps proper to say that the statute securing to parties the right of peremptory challenge imposes upon counsel who exercise that right no obligation to assign any reason for its exercise. It is claimed by counsel for respondent that the language used by the learned circuit judge in this connection was such as to indicate his bias in the premises, and in effect • resulted in the denial to the respondent of a fair and impartial trial, under the authority of Wheeler v. Wallace, 53 Mich. 355 (19 N. W. 33), and People v. Leonzo, 181 Mich. 41 (147 N. W. 543). This contention may for the reason stated, be passed without determination.

Upon the trial evidence was introduced on behalf of respondent tending to indicate that, if an offense had been committed by him, it was so committed while he was under the influence of liquors or drugs, and insane to such an extent that he was unable to form a criminal intent. Upon this point the learned circuit judge charged the jury as follows:

“We frequently meet men in courts of justice who claim that they committed crime because they were drunk. The law holds them responsible, because they should not have gotten drunk; they should not have formed the habit, so the law requires of a man that he will curb his passions and restrain himself, and, if he does not do it, holds him accountable, unless it is by reason of disease which renders him unable to do it, or, in other words, distracts his mind or his powers, so that he has no control of himself.”

The true rule was announced in the case of Roberts v. People, 19 Mich. 401, where it is said:

“If his mental faculties were so far overcome by the intoxication that he was not conscious of what he was doing, or if he knew what he was doing, but did not know why he was doing it, or that his acts and the means he was using were naturally adapted to produce death; then he had not the capacity to entertain the intent, and in such case the intent could not be inferred from his acts. But if he knew what he was doing, why he was doing it, and that his act, with the means he was using, were likely to kill, then he is responsible for the intent as well as the acts, to the same extent, and the jury may infer the intent from his acts in the same manner as if he were sober.”

This rule was followed in People v. Walker, 38 Mich. 156, and was again emphasized in People v. Kirk, 151 Mich. 253 (114 N. W. 1023), where the court said:

“It is conceded that the rule of Roberts v. People, 19 Mich. 401, is the law of this State.”

Again, in the case of People v. Peterson, 166 Mich. 10 (131 N. W. 153), we said:

“If the respondent was so intoxicated that he was incapable of forming or entertaining an intent, it is difficult to see how he could be guilty of intentionally aiming the revolver toward the persons named.”

See, also, 12 Cyc. p. 170, and note 36 L. R. A. 465.

Error is assigned upon the charge of the court to the effect that, if the jury found that the defendant broke and entered the dwelling house “in .the manner described by Mary Eggleston and Harriet E. Hunt,” then, practically, that he should be convicted. We are unable to determine from the condition of the record whether the charge about which complaint is made is or is not erroneous. The record does not contain the evidence. While we have said that it is improper for the court, in charging the jury, to select and particularly emphasize the evidence of a certain witness or witnesses, thus, giving to such evidence undue prominence, it would certainly not be improper to charge as was done in the case at bar, if, as .claimed by counsel for the people, the two witnesses named were the only ones who gave evidence of the commission of the offense charged.

Touching the defense of insanity, the court charged:

“I instruct you further, gentlemen, that the defense of insanity, if made out, relieves the defendant of criminal responsibility; but such a defense must be established by a preponderance of proof.”

We are of opinion that this instruction was clearly erroneous. While it is true that at the outset there is a presumption of sanity, as soon as evidence is introduced on behalf of respondent tending to overthrow that presumption, the burden of proof rests with the people to convince the jury beyond reasonable doubt of the respondent’s sanity, that being one of the necessary conditions upon which guilt may be predicated. People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162). See, also, People v. Finley, 38 Mich. 482, where a charge instructing the jury that, after the introduction of evidence tending to show that the respondent was insane, it became the duty of the prosecution ‘“to prove the sanity of the defendant by at least a fair preponderance of the evidence.” It was approved upon the theory that, if the testimony introduced on behalf of respondent had been overcome in the minds of the jury by adequate proof, it would be difficult to conceive how they could further regard it, or how they could entertain a reasonable doubt, if convinced of the falsity of the only ground on which the defense rested.

In other portions of the charge the learned trial judge laid down the proper rule with reference to the burden resting upon the people to prove all the necessary elements of the crime, including the sanity of the respondent beyond a reasonable doubt. We have said, however, that where conflicting instructions are given, one erroneous and the other without error, it may be presumed that the jury followed that instruction which was erroneous.

Respondent’s seventh request to charge was as follows:

“I charge you that the respondent had a joint deed of the place in which Mrs. Eggleston lived, and that, i-f he thought that this ownership gave him a right to enter the house if he desired, then he would not be guilty of making a felonious breaking and entering, and your verdict should be not guilty.”

Again referring to the condition of the record, which does not contain the evidence, we are unable to say whether the refusal of this request by the court was erroneous. If the evidence disclosed the fact that the respondent did in fact have a joint deed of the place into which he was charged with having feloniously broken and entered, and if by reason of the condition of the title to said property the respondent honestly believed that he had a right to enter, it is difficult to see how he could have entertained criminal intent, which is a necessary element of the crime charged.

For the errors pointed out, the judgment will be reversed, and a new trial ordered.

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


author: Moore, J.

text:
    PEOPLE v. JOHNSON.
    1. Evidence — Criminal Law — Res Gestae — Trial—Murder.
    At the trial of a homicide case, the court did not err in receiving testimony as to what was said by the wounded man after he was carried into a house immediately following the shooting, the testimony being competent as part of the res gestee.

    2. Same — Hearsay.
    But it was reversible error for the court to go further and permit the prosecution to. show what he said about having a gun, i. e., that he never had one, where it was not a spontaneous statement of decedent in relation to the res gestee, but made in answer to- questions put by the witness.
    3. Same — Cross-Examination—Leading Questions.
    The trial court is vested with a considerable discretion in permitting leading questions to be asked an unwilling witness.
    4. Same — Murder—Dying Declaration.
    It was erroneous to permit a witness, who went to the hospital to see deceased at the sheriff’s request, to testify that he asked if deceased had a gun and the latter responded, “No, I didn’t have a gun,” and that he further stated that he had a knife.
    5. Criminal Law — Trial—Evidence.
    For the purpose of showing that the victim understood he was in extremis, the prosecution was not warranted in calling to the witness stand decedent’s wife and in having her describe the harrowing details of the deathbed scene: especially where the prosecuting attorney made effective use of the proofs in his argument.
    Exceptions before sentence from Houghton; O’Brien, J.
    Submitted April 28, 1915.
    (Docket No. 123.)
    Decided June 7, 1915.

      James Johnson was convicted of manslaughter.
    Reversed.

      Anthony Lucas, Prosecuting Attorney, and George E. Nichols, Assistant Prosecuting Attorney, for the people.

      D. L. Robinson and Burritt & Burritt, for respondent.
   Moore, J.

On January 31, 1914, John Laitila, a miner, received wounds which resulted in his death on February 13, 1914. The respondent was charged with his murder. He was convicted of manslaughter. The case is here on exceptions before sentence.

The respondent is a Norwegian, who came to this country in 1913. He went to Houghton county in the fall of that year, to work in the mines. A miners’ strike was on at the time, but he claims he did not know of it until the third morning after his arrival, when a man called Big Mike told him, and said he must not work, and advised him to join the union, and that if he went to work he would shoot him. He did go to work.

On the evening of the 31st of January, 1914, the respondent, Emil Strang, Oscar Strang, and one Kettunen went to Houghton to get their checks cashed. While there they visited several , places, including saloons. About 11 o’clock they started for home. They passed the Cote boarding house. Respondent’s version of what then occurred is as follows:

“Q. Before you got to the-railroad track did anything happen?
“A. Just as we got to the boarding house, we were a short distance past the boarding house, I looked back and saw a man that was pretty close to us.-
“Q. What was the man doing?
“A. He was walking.
“Q. How close was he to you?
“A. I cannot exactly say as to the feet, but he wasn’t very far.
“Q. Was anything spoken between you or any member of your company and the man?
“A. Yes; he walked alongside of me. He had his hand in his overcoat pocket, and he turned towards me and asked if you are a union man. I told'him, ‘No.’ He asked me if we were scabs. I told him, ‘Yes,’ that we were workingmen; and then I asked him if he was a union man, and he said, ‘Yes,’ and ‘Satana’ Red.
“Q. Did you ask him to — was anything said about Socialists ?
“A. It was either Emil or I that asked him whether he was a Socialist.
“Q. What did he say then?
“A. ‘Yes,’ he said again, ‘Yes,’ and ‘Satana’ Red.
“Q. And was anything else said?
“A. No; there was no other talk, but immediately as he said that he raised his hand, and he had an open knife in his hand.
“Q. Step down from the chair, Johnson. (Witness complies with the request.)
“Mr. Burritt: I place in the witness’ hand People’s Exhibit No. 7.
“Q. Take that knife and demonstrate to the jury what Laitila did, or what the man did at that time.
“A. Just as he said that, that T am a Socialist and a “Satana” Red,’ he raised his hand (in the attitude shown by the witness), and I saw the blade shining in the air.
“Q. What did you do then?
“A. I told Emil to ‘look out for yourself; that he has a. knfe.’
“Q. What did you do next when you saw the knife brandished ?
“A. Just as I saw him I tried to get away from him, and my foot slipped, and I fell down.
“Q. Now what happened next?
“A. I turned around this way-so that I could get up, and then there was a report,-and I was shot in the hip.
“Q. Then as you attempted to get up you heard the report, and you was shot in the hip, was you?
“A. Yes.
“Q. What did you do next?
"A. He immediately after that — it didn’t take me very long to get up, but I began to retreat; as I was going the first time I shot at him (as indicated by the witness); I shot towards Laitila.
“Q. And you drew your gun and began to shoot towards Laitila, did you?
“A. Yes, sir.
“Q. Did you continue to get away from Laitila as you were shooting, or did you stop and stand still?”
“A. Yes; I did stand still.
“Q. And how long?
“A. It wasn’t a very long time; just enough so that we stopped and again started.
“Q. Did you continue to fire your gun two or three or several times?
“A. I shot four times; I examined my gun after-wards, so that I know how many cartridges had been discharged. (Revolver shown witness, and he identified it as his revolver.)
“Q. Now state to the court and jury whether you were excited and frightened at the time when you saw the knife.
“A. I was frightened.
“Q. Why was you frightened?
“A. I was afraid of my life.
“Q. Why was you afraid of your life?
“A. For the reason that I did not want to die as yet, and thought who would take care of my family and those that were dependent on me if I should be mortally wounded.
“Q. You was afraid that Laitila would do you an injury?
“A. Yes, sir; after I quit firing I began to run. I shot all.the four at one time, and began to run; shot them all one right after the other. Laitila fired shots. I didn’t see the gun, but I saw the flashes. I think the gun was in Laitila’s hands, because no one else was on that side. We began to run towards the railroad track; we went along the railroad track. We ran away from the place for the reason I didn’t know whether there were strikers or scabs living in that vicinity, and I was afraid .they would come in a gang or group and injure us. I ran a short distance, and then I glanced backwards and saw Laitila. One shot took effect on my left hip. After ,1 left there I went along the railroad track to the rock burrow. I went below the rock burrow as I saw a light. I was somewhat excited; I didn’t know what was coming; I was excited because I was afraid on account of ,the shooting, because I had never been in such close proximity to shooting.”

The bullet which wounded Mr.'Laitila was found. It was of a different size from those which would fit the respondent’s revolver.

The record and appellant’s brief are very long. The assignments of error are discussed • by counsel under the following heads:

“(1) The ruling of the court in admitting in evidence over the defendant’s objection the statements alleged to have been made by the deceased before and after he was taken into the Cote boarding house.
“(2) The ruling of the court in permitting the prosecuting attorney to cross-examine the people’s witness Edward Baker for the purpose of discrediting his testimony.
“(3) The ruling of the court in admitting in evidence over the defendant’s objection, the statements made by the deceased while in the hospital, as dying declarations.
“(4) The error of the court in admitting in evidence over the defendant’s objection the guns covered by the experiments of the witness Nichols and the witness Woodward.
“(5) The error of the court in refusing to instruct the jury as requested by the, defendant.
“(6) Errors committed by the court in his instructions to the jury. .
“(7) Error committed by the court in instructing the stenographer to read the Charge to the jury when they returned into court for further-instructions.”

We will take them up, so far ,as we discuss them, in the order-presented by counsel:. '

1. It has already appeared that the shooting occurred near the Cote boarding house. Persons in and about the house heard the shooting, and some of them saw the flashes from the guns. They at once rushed to the scene, found Mr. Laitila, and took him into the house. They were permitted to state what they saw and heard of the occurrence. Over the objection of counsel that it was hearsay, they were allowed to testify what Mr. Laitila said about the shooting. The witnesses say this conversation occurred within a few minutes of the shooting. It was admitted upon the theory that it was part of the res gestse. The doctrine of res gestse is discussed at considerable length in People v. Simpson, 48 Mich. 474 (12 N. W. 662); White v. City of Marquette, 140 Mich. 310 (103 N. W. 698); Gilbert v. Railroad Co., 161 Mich. 73 (125 N. W. 745), and the cases cited therein. We think these cases are authority for the admission of Mr. Laitila’s statements as to the shooting.

The court, however, allowed the witnesses to go further. The record shows:

“Q. What, if anything, did he say about a gun?
“Mr. Burritt: That is under the same objection, your honor.
“The Court: Yes; that may be considered under the same objection.
“A. He said he never had a gun.”

This was not a spontaneous statement of .the deceased in relation to the res gestse, and should not have been permitted.

2. A trial court is allowed a good deal of discretion in controlling the examination of an unwilling witness by putting to him leading questions. People v. Case, 105 Mich. 92 (62 N. W. 1017). We cannot say from the record that the court erred in this respect.

3. Did the court err in admitting evidence of the dying declarations of the deceased? This court has had occasion to discuss the doctrine of dying declarations repeatedly. • We call attention to two cases and the authorities cited therein. They are People v. Beverly, 108 Mich. 509 (66 N. W. 379), and People v. Lonsdale, 122 Mich. 388 (81 N. W. 277). Under these authorities a proper foundation was' laid for the admission of the testimony of Mr. Sommero, which gave Mr. Laitila’s version of the shooting.

The following appears in the record:

“John P. Laity recalled.
“Q. Did you go to see John Laitila at the hospital?
“A. Yes, sir; I was sent there by the sheriff to see John Laitila; have a talk with him. I had a talk with him; I talked with him in Finnish; I did not tell him my purpose in going there. Edward Sommero and Adolph Aho were there. I asked him did he have a gun, and he—
“Mr. Burritt: This is objected to, if the court please, as incompetent, hearsay, self-serving statements of the deceased, not made under the sense of impending death.
“The Court: The objection is overruled.
“Q. Go on.
“A. And he answered, ‘No; I didn’t have a gun;’ and I asked him, ‘Did you have a knife?' and he answered, T had a knife; no gun; I never attack any one without cause.’ ”

We think the admission of this testimony was error. The prosecution called Mrs. Laitila for the purpose, as stated by counsel in the brief, “of showing that within a very few hours after the declarations of Laitila made to Sommero that he was going to die that he understood that fact that he was in extremis at the very time that he had the conversation with Sommero.” The witness was allowed to describe in detail a most pathetic deathbed scene culminating in the death of her husband. We know of no rules of evidence that made this permissible, and with the effective use made of it by counsel in his argument it is quite clear it was harmful error.

The other errors assigned have been considered, but we think it unnecessary to discuss them.

For the reasons stated, the case is reversed, and a new trial ordered.

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


text:
    VULTEE v. SAGINAW-BAY CITY RAILWAY CO.
    1. Carriers — Negligence—Charge—Tbial.
    In an action against a carrier for injuries sustained in descending from a street ear, the charge of the trial court was not erroneous in referring the jury to the claims made hy respective counsel in their arguments, especially if accompanied hy full instructions to he governed hy the evidence before them and by the cautionary instruction that the argument' of counsel was not to be considered as testimony: the objection that the arguments were treated as evidence thereby was untenable.
    2. Same — Tbial—Charge.
    Nor was the trial court in error in advising the jury that if the place where plaintiff alighted was a usual stopping . place for cars, it became the duty of defendant to so govern the stopping and starting of the car as to afford .plaintiff a reasonable opportunity to alight and if the jury found that plaintiff, without negligence on her part, was thrown while attempting to alight there, sustaining such injuries, as she alleged, she -was entitled, to a verdict and the instructions sufficiently covered the duty of defendant to give an opportunity to leave the car, and was not misleading in the connection in which it occurred.

      S. Same — Personal Injuries — Evidence.

      Held, also, that the evidence, being conflicting, sufficiently sustained a verdict for plaintiff.
    Error to Bay; Collins, J.
    Submitted April 6, 1915.
    (Docket No. 116.)
    Decided June 7, 1915.
    Case by Amy L. Vultee against the Saginaw-Bay City Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Weadoek & Duffy, for appellant.

      C. E. Pierce and L. G. Beckwith, for appellee.
   Moore, J.

This is a personal injury case brought to recover damages which plaintiff claims she sustained when alighting from one of the cars of defendant. From a verdict and judgment of $250 in her favor, the case is brought here by writ of error.

The errors assigned and relied upon are grouped by counsel for appellant as follows:

(1) Upon the admission of testimony.
(2) Refusal of the court to charge as requested in defendant’s written requests to charge.
(3) Upon the charge as given.
(4) The refusal to grant a new trial.

1. We have examined this group of errors assigned, and shall content ourselves with saying we think no reversible error was committed in relation thereto.

2. There were many requests to charge. A considerable portion of them requested a directed verdict and may be discussed with group 4. The remaining requests related to various phases of the case and may be considered with the charge as given. The important parts of the charge as given were as follows:

“It is a fact that at this place the plaintiff in some manner descended from the car of defendant upon which she was riding. Speaking of that, I use the word descended so as to avoid all questions of dispute as to the manner of her getting off the car, and I will speak of that as descended from the car at that time, and there is no dispute about the fact that the defendant was injured at the time and place in question.
“There is a very serious dispute of fact covering the entire case, although this dispute of fact is not in a very large compass. Now, you have heard the testimony and you have heard the arguments of counsel, and I refer you to those for a statement of the claims of the respective parties, but for my purpose in giving you this charge I will make a brief statement of the claims of both parties.
“It is the claim of the plaintiff that she was a passenger on the car in question at the time and place in question going from some place on Washington street to her home; that the car made the turn at Columbus avenue from Washington street, and approached the railway spur track at the place in question, and it is the claim of the plaintiff that she gave a signal to the conductor for alighting, and that while she was alighting or attempting to alight from the car, by the sudden starting of the car she was thrown down and injured.
“Now, that is a brief statement of plaintiff’s claim, but not necessarily all of it.
“It is the claim of plaintiff that as a matter of law it is the duty of the street railway company, where there is a usual place for passengers to alight, to afford a reasonable time for passengers to get off of a car, and it is the claim of plaintiff that the place in question where she descended from the car was a usual stopping place.
“The defendant denies that the plaintiff’s statement of the transaction is the correct statement. There is no question, as I understand it, about this being a usual stopping place, but the defendant denies that the plaintiff’s injury was occasioned by her getting off in the way she claimed that it happened.
“It is the claim of the defendant that the plaintiff descended from the car while the car was in motion, an°d, the manner of that is described by witnesses, and the defendant claims in short upon this point that the plaintiff, instead of waiting until the car came to a stop, or substantially so, got off the car while the car was in motion, and in that way was injured. So there is the conflict of fact, and there is where the controversy is, and there is where it becomes your duty to decide between these parties.
“Now, the case is divisible into two propositions: The first proposition is, was the defendant guilty of actionable negligence; if not, that would end the case. If, however, you find that the defendant is guilty of actionable negligence, then you will proceed to discuss the question of damages.
“I will first charge you upon the law as respects the question of fact as to whether or not the defendant is guilty of actionable negligence. I tried to make clear the disputes of fact involved and may refer to them again.
“I do not consider that it is necessary in this case to make a formal definition as to what is or is not negligence, because the controversy is a sharp and distinct one, and the question of fact is so clear and plain that I might obscure it by going too much into that detail. • I state this, however, as a leading proposition in the matter to control you and guide you in the case.-
“This is an action of negligence, and before the plaintiff can recover in this case, she must show, first, that the defendant was negligent; second, she must show, also, that at the time and place in question she herself was not negligent, because if she herself was negligent then she would be guilty of what is called in law contributory negligence, and her contributory negligence would defeat her right of recovery.
“Now, gentlemen of the jury, if it is a fact, as I said before, there does not seem to be any controversy about it in this case, that this place where the plaintiff was proposing to get off the car and where the accident happened was a usual stopping place for the railway company to stop its cars, then I charge you that the officers of the company, the conductor and motorman, one or both of them, whoever had charge of the car, on approaching this railroad crossing where people were accustomed to get on and off, it became their duty to so regulate the stopping and starting of the car at that point as to give plaintiff ample or reasonable opportunity to alight therefrom, and if you find from the evidence that the plaintiff, Mrs. Vultee, without any fault or negligence on her part, was thrown from the car while alighting, or attempting to alight therefrom, at that point by the sudden starting of the car, and thereby sustained injuries, your verdict will be for plaintiff.
“Before the plaintiff can recover, the plaintiff must prove these propositions by the greater preponderance of the testimony; that is, by the greater weight of the testimony.,
“Now upon this point, gentlemen of the jury, I further charge you that if, when plaintiff descended from the car, the car was then in motion and had not come to a complete stop, and then it had suddenly started again, the plaintiff cannot recover. If plaintiff was not thrown off by the sudden, abrupt starting of the car, the plaintiff cannot recover.
“If the plaintiff descended from the car while it was in motion and before it came to a stop, or substantially so, the plaintiff cannot recover.
“Now I believe that this puts before you, the charge that I give puts before you the claims of the parties, and puts before you the disputed questions of fact, so that you can, as readily as the case will permit, pass upon the same. I will give you some further charges on some further details of the .case.
“The defendant company was not in any way an insurer of the safety of plaintiff while the plaintiff was a passenger upon or alighting from this car. The street railway company is not an insurer of the safety of its passengers. I have stated already its liability and duty at the time and place in question.
“If you find the plaintiff was guilty of any negligence contributing to her injuries, if any, then she is not entitled to recover. I also charge you, as a matter of law, that there was no duty or obligation on the part of the conductor or the motorman of the car to assist the plaintiff in alighting from the car.
“It is the duty of you gentlemen to hear and decide this case precisely as if it were a suit between two individuals. The fact-that the plaintiff is a woman and the defendant a street railway company should make no difference with you in considering and deciding the case.
“In arriving at your verdict you are to be governed solely by the evidence in the case as to the facts, and by the instruction of, the court, as to the law of the case, and find your verdict accordingly, without reference to who the plaintiff is or who the defendant is, and without being influenced by sympathy or other improper motives.
“Now, gentlemen of the jury, this case must be decided by-you upon the testimony given in the case, and .all reasonable deductions therefrom, and the charge as given you by the court. The statements of counsel are not evidence in the case. You are privileged to- draw such reasonable inferences from the testimony as you think it will warrant. You are the judges of the credibility to be given to each witness that comes upon the stand and that applies to the plaintiff because the plaintiff has'been a witness; and considering all the circumstances in the case, and weighing all of the matters of probability and improbability, and considering all of the testimony, you have the right in the exercise of your best judgment to believe or disbelieve the whole or any part of the testimony of any witness.
“Now, I have said to you, and it is the law, that the burden of proof is upon the plaintiff to show by the greater weight of the testimony all of the facts essential for her recovery in this case, including that she must prove that the company was negligent and that she was not negligent. The greater weight of the testimony does not depend upon the number of witnesses. But, in considering the testimony of all of the witnesses, if there is a dispute between witnesses on a given point, and there are more or less witnesses upon that point upon the respective sides, you have the right to take into consideration the number of witnesses who testify in considering the question. The great point is the greater weight of testimony, but in considering where the greater weight is you are privileged to consider the number of witnesses testifying on either side of the case.
“Now, gentlemen of the. jury, I advise you first to take up the question as to whether the defendant is or fs not liable. If you find that the defendant is not liable, that .will, end the, case. If you find the defendant is liable then I charge you upon that subject as follows upon the question of damages.
“I charge you as . a matter of law that there is no testimony in the case that plaintiff has expended anything herself for medicines, drugs, nursing, hired help, physician’s' services or osteopathic treatments, and you will therefore, not allow damages, if you find that plaintiff is entitled to damages for these items. Nor will you allow her any damages for her services in or about her home or elsewhere, as these items the law does not permit her to recover for.
“If you find for plaintiff however, and find that she is entitled to recover damages, your verdict will be for the plaintiff in such an amount of damages as you may decide will compensate her for the actual physical injuries she received, and for the pain and suffering and _ sickness resulting therefrom, and for such inconvenience and deprivations as she has suffered by reason of her being deprived of the pleasures, enjoyments, and diversions to which she had heretofore been accustomed, and which she was thereby rendered incapable of taking part in.
“My giving a charge upon the measure of damages does not indicate that I have any view one way or the other upon that subject, but it is my duty by my charge to cover all the questions in the case.”

Special criticism is made of the portion of the charge reading:

“Now you have heard the testimony and you have heard the arguments of counsel and I refer you to those for a statement of the claims of the respective parties.”

It is said this permitted the jury to take the statements of counsel as evidence in the case. We do not think the jury was misled, especially in view of what the judge charged them about being governed by the evidence and his statement in connection therewith that “the statements of counsel are not evidence in the case.”

Criticismos made of the following:

“It became their duty (defendant’s) to so regulate the starting and stopping of the car at that point so as to give plaintiff ample or reasonable opportunity to alight therefrom.”

When read in connection with what precedes and follows it, we do not think this is misleading.

The important question is: Was there evidence that justified the submission of the case to the jury? Appellant insists there should have been a directed verdict, citing Conroy v. Railway, 139 Mich. 173 (102 N. W. 641, 104 N. W. 319); Snyder v. Traction Co., 154 Mich. 418 (117 N. W. 889); Schultz v. Railways Co., 158 Mich. 665 (123 N. W. 594, 27 L. R. A. (N. S.) 503).

This contention of counsel makes it necessary to refer to- some of the testimony. The evidence given by the plaintiff was in part as follows:'

“I arose, as there is no push button in the car, in the open car — there is a bell rope, I understand, above the car, but very unhandy to reach for a person — and I got up, and I said, T-Ioo-hoo!’ like that, as it has always been Mr. Vultee’s signal, and I hollered to the conductor, when there is no bell, and I rose and hollered that way to the conductor, and he jumped off this time, and I stepped by this man that was sitting there and got to the running board, and I put one foot, my right foot, down on the running board, and held onto the car with my left hand, and just then I saw the conductor ran ahead and signaled the car in this way as he always does, and I turned to protect the children from falling, and seeing that the conductor had signaled the car to start ahead, because that is their signal and I turned also to guard with my right hand, to protect myself and the children, for they were coming, and the car jolted ahead quickly and threw me off. When I turned I landed in the street on my right side, my head down toward the river and my feet up toward the car. * * *
“Q. Was the car slowing down or increasing in speed or what with reference to its running was the car doing aftér you signaled and while you were stepping toward the running board?
“A. The car had stopped when I got to the running board.”

On the cross-examination:

“Q. You had hold of the stanchion with your left hand then?
“A. Yes.
“Q. And your right foot was then on the running board?
“A. My right foot was then on the running board.
“Q. Where was the car with reference to your house?
“A. Right in front of the house.
“Q. Had any one stepped off the car there?
“A. No.
“Q. You were the only person to get off?
“A. Yes.
“Q. How long did the car stop there?
“A. It does not stop but a second sometimes.
“Q. How long did it stop there that night?
“A. It did not stop but a second, I should judge.
“Q. You could not step off.the car in a second?
“A. The car slows down and just stops, and starts right up again.
“Q. What did it do that time?
_ “A. Just slowed down and stopped and started right up again, did not give me time to step off.
“Q. Isn’t it a fact that you got up there in your seat to get off there at this usual place there that night, and before the car had ever come to a stop you had gotten off the car and fell down?
“A. No, sir.
“Q. That is. not true?
“A. No, sir.
“Q. That is not the way it happened?
“A. No, sir. * * *
“Q- You stated in response'to your counsel’s question, I think, on direct examination, that the time you stepped to the running board that the car had come to a dead stop?
“A. Yes, when I stepped my foot on the running board the car had stopped.
“Q. You were attempting to bring forward the other foot to step down when the car started ahead?
“A. I was just going to; yes.”

The nine-year old daughter of the plaintiff, who was with her mother, testified in part:

“I have ridden on those cars before, going home. We would get right off in front of our house. The car always stopped because there was a railroad track. The cárs stopped even if there wasn’t any one to get off. It did stop always. My mother was sitting on the second last seat. There was another seat back of her. I and my sister were sitting on the same seat with her. She sat in the middle. A man sat between her and the end of the seat. We were sitting on the side away from the man by the side of my mother. The car stopped that night in front of our house.
“Q. Now tell in your own way, if you can, just how it happened that your mother was hurt.
“A. She .stood up to get off, and hollered to the conductor, and he jumped off the car to run, and just as mamma was going to get off he waved his hand, and the car jerked and threw her. He waved his hand, and the car jerked, and threw mamma on the pavement. When the car jerked, she was standing one foot on the running board and one foot on the platform of the car. She was holding onto the board that goes up and down. At the end of the seat is that board. She was holding on with her left hand. She was facing our house away from the- conductor. The car was running when she hollered to the conductor. The car was not running when .she stepped down on the running board. It had stopped between those two times.”

On the other hand there was testimony that plaintiff stepped from the car before it stopped at all.

Counsel for plaintiff insists that the testimony showing that when plaintiff was picked up she was lying on her right side with, her feet toward the car and her head away from it, justifies the inference ■that she was thrown from the car and did not step from it while it was in motion.

Defendant disputes the testimony in relation to the position of the plaintiff on the pavement. In fact the record is full of contradictory testimony. This conflicting testimony made the case a proper one for the jury. Conely v. McDonald, 40 Mich. 150, 158; Swoboda v. Ward, 40 Mich. 420, 424; Rosie v. Willard, 44 Mich. 382, 383 (6 N. W. 872); Maxwell v. Bridge Co., 46 Mich. 278 (9 N. W. 410); Sheldon v. Railroad Co., 59 Mich. 172, 175 (26 N. W. 507); Brezee v. Powers, 80 Mich. 172, 182 (45 N. W. 130); Weidman v. Symes, 116 Mich. 619, 620 (74 N. W. 1008); Foster v. Lumber Co., 141 Mich. 316 (104 N. W. 617); Holmes v. Smith, 149 Mich. 327 (112 N. W. 912).

Judgment is affirmed.

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


author: Per Curiam.

text:
    CORBY v. WAYNE CIRCUIT JUDGE.
    Appeal and Error — Biel of Exceptions — Mandamus.
    In mandamus proceedings to require the circuit judge to sign a bill of exceptions proposed by the relator, which respondent claimed contained matters that appellant was not entitled to insert, the court will not enter an order compelling respondent to sign any particular bill of exceptions where his return set up that he was willing to settle and sign a proper bill.

      Mandamus by Thomas W. Corby against Henry A. Mandell, one of the circuit judges for the county of Wayne, to compel respondent to settle a bill of exceptions proposed by relator.
    Submitted April 19, 1915.
    (Calendar No. 26,590.)
    Writ denied June 7, 1915.

      Moore. & Moore, for relator.

      William Van Dyke, for respondent.
   Per Curiam.

This application for mandamus arises out of the case of Corby v. City of Detroit, 180 Mich. 208 (146 N. W. 670), brought to recover back taxes paid under protest, which was reversed by this court and remanded, with instructions to enter judgment for plaintiff on a basis outlined in the opinion filed. That course was pursued under authority cited by plaintiff, instead of granting a new trial in general terms,' as is the customary ' course, on the theory that no further contentions could arise, inasmuch as all parties in the court below had requested a directed verdict claiming no issues of fact arose for a jury, and the case involved only questions of law for the court.

In reversing and remanding the case this court did not order entry of judgment in the circuit court for any definitely stated amount, but did hold and direct that a judgment should be entered for plaintiff to be ascertained and computed as indicated. In that proceeding counsel were entitled to be heard. Within the limits and to the extent of computing and determining the exact amount of the judgment, the court properly treated the case as retried upon the record, as alleged by relator, and not denied, and as indicated by an order of the court extending the time in which to settle a bill of exceptions. Counsel disagreed as to the proper amount. After a hearing the court sustained defendant’s contention in the matter, and rendered judgment in favor of plaintiff for ?422.82.

Claiming that under the - ruling of this court the judgment was not properly computed, and is not the amount to which he is entitled, and desiring to settle a bill of exceptions to review the question in this court, plaintiff represents in this petition, amongst other things' and as a chief ground of complaint, that upon the original trial of the case counsel for defendant conceded that the amount of charges and interest transferred from the special assessment roll to the ad valorem roll was correct, for which reason the facts upon which it is based were omitted from the original bill of exceptions, but upon the second trial or hearing,- to ascertain the exact amount of the judgment which should be rendered, changed position, and contended that it was incorrect, insisting a much larger amount should be computed, to meet which plaintiff claimed the right at such hearing to show from the record that the amount previously admitted by defendant’s counsel was correct; that the court disregarded this, and later declined-to sign a bill of exceptions setting out the facts as asked by plaintiff’s counsel, being of the opinion that he was not authorized so to do, for which reason a writ of mandamus is prayed “requiring respondent to settle •a bill of exceptions in this cause as asked for by relator.”

In answer to the usual preliminary order to show cause, respondent returns and shows that he entered said judgment as alleged on June 16, 1914, and by successive orders has since extended the time in which to settle a bill of exceptions, that he has made no order refusing to settle and sign a bill “that counsel did. make various statements offering to introduce various records in order to have them incorporated in- a bill of exceptions, but as to whether such matters' and things are correctly set. forth respondent has no information upon which to affirm or deny, and, as he deems ’such matters extraneous to the record, * * * ■” repeats that he did not believe that he is authorized to sign a bill of exceptions setting out the facts asked by plaintiff’s' counsel, but that he will sign a bill of exceptions embodying all the facts and proceedings upon which the judgment is based, and that he is “ready at all times to sign a bill of exceptions properly made up, incorporating' such matters as respondent could truthfully certify as occurring upon the trial and proceedings, upon which the judgment was based.”

From this it must necessarily be assumed that respondent intends to, and will, certify to any offers or proposals of records in the case actually presented or “occurring upon the trial and proceedings,” though rejected and passed upon adversely in rendering the judgment, in order that this court may understandingly consider all questions then raised; and in the light of this return we discover no ground for dictating in what particular form said bill of exceptions shall be settled and signed.

Denied.


text:
    PEOPLE v. MELOCHE.
    1. Intoxicating Liquors — Venue—Criminal Law — Sale—Situs. Since taking an order for intoxicating liquor to be furnished from a wholesale house located outside the county in which the accused, its agent, took the order, is not a sale at the place where the order was given, no offense was committed by respondent in the county in which he accepted an order to supply liquors to a person of Indian descent to be secured from a wholesale house so located, and no jurisdiction existed to try the offense in the county of the alleged sale. ■
    2. Same — Venue—Stipulation — Jurisdiction — Parties — Intoxicating Liquors — Consent.
    A stipulation of the respondent, in a prosecution for unlawfully selling intoxicating liquors, that the sale took place in Baraga county and the court had jurisdiction, was insufficient to confer jurisdiction, upon a record showing that no sale was in fact or in law executed in the county of Baraga.
    Exceptions before sentence from Baraga; O’Brien, J.
    Submitted April 23, 1915.
    (Docket No. 124.)
    Decided June 7, 1915.
    Antoine Meloche was convicted of unlawfully selling intoxicating liquors to a person of Indian descent.
    Reversed.

      Grant Fellows, Attorney General, L. W. Carr, Assistant Attorney General, and Hubert A. Brennan, Prosecuting Attorney, for the people.

      Rushton & Riley, for respondent.
   Steere, J.

The information filed against respondent in this case charged him with violation of section 13 of the general liquor law of this State (section 5391, 2 Comp. Laws [2 How. Stat, (2d Ed.) § 5067]), in the particular that on the .12th day . of May, 1914, he sold intoxicating liquors to one Antoine Chosa, a person of Indian descent, in the county of Baraga, State of Michigan. The record is short and concise, with all of the facts and part of the law stipulated.

It appearing in the information filed against defendant that said Antoine Chosa was himself a duly licensed- saloon keeper under the laws of the State of Michigan, and, as such, engaged in selling intoxicating liquor at retail in said county, defendant first moved the court to quash the information on the ground that the State was estopped from prosecuting said case by reason of its having issued a liquor dealer’s license to Chosa, and thereby it became lawful for the wholesale dealer to sell him the commodity in which he was licensed to deal, even though he happened to have Indian blood in his veins. Said motion was denied, and the case duly brought on for trial. Upon the trial the facts were stipulated between counsel for the respective sides as follows:

“The facts are that one Antoine Meloche, as agent for the Bink Wholesale Liquor & Supply Company, of the city of Escanaba, did solicit and take an order for intoxicating liquors to be delivered to one Antoine Chosa, in the township of Baraga, Baraga county, Mich., who was a person of Indian descent, arid who at the time of said sale was a duly authorized saloon keeper, holding a license in the State of Michigan, and regularly issued to said Antoine Chosa by the government of the United States, and said Antoine Chosa -had been engaged in the saloon business in said township for the six years last past.
“It is further agreed that said sale was made in said.county, and that the court had jurisdiction. Said shipment of liquor from the Bink Wholesale Liquor & Supply Company of the city of Escanaba, under the order taken by the defendant, Antoine Meloche, was shipped and received by the said' Antoine Chosa.”

Counsel for defendant thereupon renewed his motion to quash the information for reasons already urged, adding, amongst others, the further reason that: ,

. “The agerit worild not be guilty of [Selling] liquor shipped by the wholesale house, because there would be no sale by him; he would.-simply.be. an agent of the company, soliciting orders.” :

Upon denial of this last motion he requested a directed verdict in defendant’s favor on the grounds previously presented and argued. ■ This request was refused, and the court, reviewing principally the question of whether the fact that Chosa was a licensed saloon keeper raised an exception in his, favor to the law forbidding sales of intoxicating liquor to persons of Indian descent, instructed the jury that, under the law and undisputed facts, it was their duty to find defendant guilty, and a verdict was rendered accordingly. Exceptions were duly taken to these adverse rulings, and the case thereafter removed to this court upon exceptions before sentence.

In People v. Perenchio, 181 Mich. 314 (148 N. W. 205), under the proven facts much stronger than those stipulated here, it was held that taking an order for liquor to be furnished from a wholesale house located elsewhere, for subsequent shipment to the party giving the order, did not amount to a sale at the place where the order was taken. Under the ruling in that case it is evident that defendant committed no offense in the county of Baraga, so far as disclosed by the stipulated facts. The court therefore had no jurisdiction of the subject-matter of the offense charged, except as it was conferred by consent of the parties.

Although counsel did stipulate, as a matter of law,that “the sale was made in said [Baraga] county, and that the court [of that county] had jurisdiction,” they also at the same time stipulated facts which showed a necessary conclusion of law directly to the contrary, under the authority cited.

It is familiar doctrine that judicial jurisdiction comes only from the law, and cannot be conferred by consent, especially over the subject-matter in criminal cases. 12 Cyc. p. 222; 1 Bishop’s Crim. Procedure (2d Ed.), § 123, and cases "cited.

Consent could not authorize the court of Baraga county to assume jurisdiction over the subject-matter of an offense committed, if at all, elsewhere than in that county. The verdict rendered in said court must therefore be. set aside.

The information is not set out at length in the record, and, not being advised whether further or different facts than those stipulated are available, the case is remanded for a new trial, or such other proceedings as the trial court may deem advisable.

Reversed.

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


text:
    BARRUS v. ENGEL.
    Constitutional Law — Public Officers — Salary — Civil Service Commission — Detroit Charter.
    A member of the civil service commission of the city of Detroit, acting without salary, was governed by the provisions of Act No. 279, Pub. Acts 1909, subd. <Z, § 5, and by the provisions of section 3, art. 16, of the Constitution, whereby municipal corporations are prohibited from increasing or changing the salary or emoluments of a public official after election or appointment. An attempted amendment to the charter of the city of Detroit, and city ordinance pursuant thereof authorizing the payment of a salary of $2,000 to the relator as a member of the commission was invalid and was in violation of the statutory and1 constitutional provisions. The fact that he was receiving no salary when the change was made in the charter .provision did not relieve the relator of the limitation imposed by law.

      Certiorari to 'Wayne; Codd, Van Zile, and Hally, JJ., presiding.
    Submitted April 20, 1915.
    (Calendar No. 25,582.)
    Decided June 7, 1915.
    Mandamus by George W. Barrus, one of the civil service commissioners of the city of Detroit, against George Engel, city controller of the city of Detroit, to compel respondent to pay salary under an amendment to the charter of said city. An order denying the writ is reviewed by relator on certiorari.
    Affirmed,

      Robert T. Speed (Fred A. Baker and James D. May, of counsel), for appellant.

      James H. Lee (Richard I. Lawson, of counsel), for appellee.
   Steere, J.

On April 7, 1918, an amendment to the charter of the city of Detroit, adding a new chapter providing for a civil service commission, was adopted by a majority vote of the electors of said city, being designated as:

“An act to amend an act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith, approved June 27, 1883, by adding a new chapter thereto for the purpose of providing for a civil service regulation for employees of the city of Detroit.”

This amendment went into effect May 3, 1913. It made provision for a civil service -commission composed of four members, electors of the city, to be appointed by the mayor, and specified that:

“Said commissioners shall hold no other office or employment under the United States, this State, or said city, or any other municipal corporation thereof. Said commissioners shall not receive any salary or other compensation for any duty or duties performed by them. * * * ”

On June 6, 1913, relator was appointed a member of said commission for the term of two years, qualified and entered upon the duties of such' office shortly thereafter, and had served continuously as a member of said commission up to the time of instituting these proceedings.

On November 3, 1914, section 1 of said chapter establishing a civil service commission was amended by a majority vole of the electors to read, so far as material to this inquiry, as follows:

“Each of said commissioners shall receive an annual salary of not more than three thousand dollars as the same may be determined by the common council.”

Thereafter the common council of said city enacted an ordinance, approved by the mayor January 12, 1915, fixing the compensation of various city officers, in which was included the following paragraph:

“The civil service commission shall each be compensated in the sum of $2,000 per annum, except the chairman of the commission, who shall receive $2,500 per annum and shall devote at least three hours of each and every day, excepting Sundays and legal holidays, to the duties of his office.”

Relator subsequently made application for his salary, as fixed by said ordinance, to respondent. As a prerequisite to their payment, it was respondent’s duty as controller to audit all accounts and demands against the city and allow the same if found correct and legal. ‘Under advice of the city’s corporation counsel, he refused to consider said application favorably, on the ground that the amendment providing compensation for civil service commissioners could not become effective as to relator, and other commissioners then in office, in view of the constitutional prohibition and so-called “Home-Rule Law” for cities, which precluded changing the salary of any officer, elected or appointed for a definite term, after commencement and during continuance of his tefm of office.- Relator thereupon applied to the circuit court of Wayne county for a writ of mandamus to compel respondent, as controller, to audit, allow, and pay the amount of salary claimed due him according to the terms of said ordinance. Upon an order to show cause why such writ should not issue, a hearing was had and relator’s application denied. . The proceedings were then removed into this court by certiorari, for review of said order of denial.

The constitutional provision and legislative enactment which actuated respondent in declining to audit relator’s demand against the city and led the circuit court to sustain his action are as follows:

Section 3, art. 16, of the present Constitution, is as follows:

“Neither the legislature nor any municipal authority shall grant or authorize extra compensation to any public officer, agent, employee or contractor after the service has been rendered or the contract entered into. Salaries of public .officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment.”

Under article 8 of said Constitution, the legislature was required to enact a general law for incorporation of cities giving them power to frame, adopt, and amend their charters and to pass laws and ordinances “subject to the Constitution and general laws of the State.”

In harmony with this constitutional requirement, the legislature enacted Act No. 279, Pub. Acts 1909, called the “Home-Rule Act” for cities, which, amongst other things (subdivision d, § 5, 2 How. Stat. [2d Ed.] § 5446), provided:

“No city shall have power: * * * (d) To change the salary or emoluments of any public official after his election or appointment or during his term of office; nor shall the term of any public official be shortened or extended beyond the period for which he was elected or appointed, unless he resign or be removed for cause.”

Relator contends, in brief, .that because no salary or compensation was fixed or provided for in the first instance, by the charter amendment or “civil service act” under which he was appointed, the prohibitions quoted do not apply, and therefore- an immediately operative salary' for civil service commissioners could subsequently be provided for, at any time the electors and municipal authorities might be so inclined. In support of this contention, counsel cite section 858 of Mechem on Pub. Officers, touching constitutional provisions prohibiting increase or decrease of officers’ salaries during their term, wherein it is said:

“Where, however, the salary or compensation has not been fixed at all at the time of the election or appointment, this provision does -not prevent its being fixed after the term begins”

—together with several decisions from other States tending, as is urged, to sustain that proposition.

No direct authority upon the exact question presented here is to be found in our decisions. The wisdom of a provision prohibiting any change either by increase or reduction of a. public officer’s salary during his term has been universally recognized. Such provisions are common in constitutions and statutes of the various States, and the courts have been firm in restraining attempts to evade them. .This court has been in line with the general rule when- deciding cases where phases of the question have arisen. Douvielle v. Supervisors, 40 Mich. 585; Anderson v. Hill, 54 Mich. 477 (20 N. W. 549); Olds v. Land Com’r, 134 Mich. 442 (86 N. W. 956, 96 N. W. 508); Chase v. Hart, 162 Mich. 74 (127 N. W. 256).

Of the cases cited from other jurisdictions in support of relator’s contention that the restriction is not applicable to a case like this where no salary or com.pensation is attached to the office, as “there can be no increase or diminution of a salary’ where none has been provided,” it may be said generally that those cases involved facts and statutes materially different from those involved here, and, where considered, the rule is recognized that, when those having authority in the matter of fixing salaries have once acted and made a determination, their power is exhausted as to all incumbents taking office pursuant to such determination.

We find here not only the constitutional prohibition, but that in the amendment itself which created this office those empowered to determine the matter of compensation exercised that authority, and declared in express language that no salary or other compensation should attach to the office, and also that the “Home-Rule Law” which authorized the amendment again declares that a city has no power to change the salary or emoluments of a public official after his appointment or election.

Restrictive provisions of this class are universally recognized as in the interest of good government and founded on sound reasons of public policy. They are adopted for the two-fold purpose of protecting the public by restraining those in office from taking advantage of their positions and official influence to unduly secure added compensation not contemplated and to which they were not entitled when they were selected for and accepted office, and also to secure each individual officer in enjoyment of the emoluments provided and rightfully to be expected when he accepted his office, by protectiing him from any unfriendly power which might, for any reason, otherwise reduce or abolish them. While the person accepting an office without salary or other emoluments attached, and in creating which it was expressly declared there should be none, could need no protection in that particular, it is evident that the paramount public interests are as much exposed to the contingency which the prohibition is intended to guard against as though he commanded a salary. This reason for the prohibition seems to apply with equal, if not greater, force to one holding a nonsalaried office.

Without reviewing' them in detail, it may be said of the cases cited by relator that, as a rule, the offices to which they relate were of the kind usually recognized as carrying a salary or fees, and the evidence disclosed that either compensation was contemplated and intended, or had been provided for, but not yet fixed as to amount, while here all uncertainty and possibility of misunderstanding had been eliminated by express provision to the contrary. The matter of compensation had been acted upon and settled, or fixed, in the negative, and relator accepted the office knowing that it did not entitle him to demand, as a legal right, any compensation for his services.

In Perry v. Village of Cheboygan, 55 Mich. 250 (21 N. W. 333), plaintiff had been appointed a member of the water commission of that municipality without any fixed compensation, and later sought to recover for extra services performed while acting as such official. This court determined from an examination of defendant’s charter that its provisions indicated an intentional omission to provide compensation for members of that board, and said:

“It follows that the members accepting such office must be- deemed to have done so with knowledge of and with reference to the provisions of the charter relating to the services which they were to perform, and that such services were to be rendered gratuitously.
“The court erred, therefore, in refusing to charge the jury, as requested by defendant in the second request, as follows: ‘The council are under no obligation to make compensation to any of the officers of the corporation unless the charter expressly provides that compensation shall be made, or that the officers are entitled to compensation.’ ”

This ruling as to his legal status, tested by conditions existing at the time he assumed office, has significance in connection with the views expressed in Garvie v. City of Hartford, 54 Conn. 440 (7 Atl. 723), which we regard as nearest in point here of any case we have been able to consult, and from which we quote with approval. In that case it was sought to award certain members of the common council of the city of Hartford pay for extra services rendered while acting as members of a joint standing committee. The office of councilman being an honorary one and without compensation, it was urged, as here, that the constitutional prohibition, which is similar to ours, did not apply. In overruling that contention, the court said, in part:

“The honor inseparable from the office has stood in the place of pecuniary compensation. Therefore the members in whose favor the resolution was passed accepted the office with knowledge of the fact that they then had neither legal nor equitable claim to compensation. Simultaneously with their acceptance there came into operation a binding agreement that they had entered upon an office to which no compensation then attached. Upon them the constitutional provision bore as upon any contractor, employee, or servant. They had undertaken an office upon an explicit agreement as to compensation then affixed; the contractor undertakes to furnish materials and perform labor for a stipulated price; the servant to labor upon fixed terms. The purpose of the provision, applicable alike to all, is to make it legally impossible for any one of them to receive a greater sum, either by payment or gift, for performing the duties pertaining to his office, or for fulfilling the terms of his contract for furnishing materials or for personal service, than it would have been legally possible for him to obtain by the judgment of a court upon the terms of his contract as originally made. Although, as is claimed by the defendants, it is mathematically impossible to add to nothing, nevertheless it is constitutionally possible to prohibit a gift to one who has no legal right to demand anything. The defendants are bound by their acceptance of an office without compensation.”

' In harmony with these views, the conclusion is reached that to construe the provisions under consideration as excepting all public officers for whom no compensation is provided or intended would be to follow narrow and technical reasoning contrary to the purpose, spirit, and intent of the prohibition as disclosed by, and fairly within, the meaning of the language used, taken in its entirety.

The order of the Wayne county circuit court, denying relator’s application for a writ of mandamus, is affirmed.

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


text:
    HOLMES v. UNITED THEATRES CO.
    Theatres and Shows — Negiigence — Evidence — Sufficiency— Constructive Notice.
    Evidence, in an action for injuries sustained by plaintiff in entering defendant’s theatre, that sbe tripped upon a mat at tbe entry, which - she testified looked humped up about three inches after the injury, was insufficient to show that the owner ought to have known of the defect which plaintiff claimed existed, or that he had constructive notice of the condition.
    Error to Kent; Brown, J.
    Submitted April 28, 1915.
    (Docket No. 152.)
    Decided June 7, 1915.
    Case by Clara Holmes against the United Theatres Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Major L. Dunham, H. Monroe Dunham, and John M. Dunham, for appellant.

      Stevens T. Mason, .for appellee.
   Moore, J.

This is a personal injury case. From a directed verdict in favor of the defendant the case, is brought here by writ of error. It is insisted by counsel for appellant that the case should have been submitted to the jury, and that is the only question involved. The only testimony tending to show negligence on the part of defendant is the following:

“My full name is Clara Holmes. * * * On the 29th day of January, 1914, I worked from 8 o’clock in the morning until half past 11; at that time I went over to the Vaudette, on Monroe avenue, just opposite the Herpolsheimer Building. I did not purchase a ticket that day because I fell. I caught my foot on the mat just as I was stepping up in the entrance. The entrance is approximately 25 feet wide, and the front of the Vaudette is back in from the street about 8 or 10 feet. The entrance to the Vaudette is at the right of the ticket window, near the south wall of the building. The exit is to the left, up near the north wall. Between these two doors is a brass rail and the mats, and the brass rail is just in front of the window, and the window is between the doors. That is where they sell the tickets. This flooring was covered with mats, and it inclines as you go up to the window. These mats were wire; they looked like it to me; I think wire and rubber mats. There were several mats; I think about three sets; and they ran parallel with the street. The first mat I stepped on was level. I did not stop to notice the second mat until after I fell. I saw it just after I fell, and it was humped up.
“Q. Did you see it just after you fell?
“A. Yes, sir.
“Q. What did it look like at that time?
“A. It was humped up.
“Q. About how many inches do you think it was humped up?
“A. About 3 inches.
“Q. That was after you had fallen on it, I think you said?
“A. Yes, sir.
“Q. But whether or not it was more than that before you fell you do not know; is that right?
“A. I could not say, because I did not see it.
“Q. But after you fell—
“A. After I fell the mat was up.
“Q. Still up about 3 inches?
“A. Yes, sir. It was that way after I was up. I was helped up by some friends; I was hurt; my arm was broken.”

Miss Ronan testified:

“On the 29th day of last January I was directly back of her [Miss Holmes] about three feet from her at the time she crossed the street going towards the Monroe Vaudette. I was also going to the Vaudette. I did not see her go into the Vaudette. As she got near the ticket window, then she got her foot caught on the mat, and fell. I saw her fall. I helped Mrs. Holmes to her feet, and saw the condition of her arm. The mats covering this incline run parallel with the street, and the first mat was smooth. I didn’t see the other mat before she fell. I saw the mats after she fell, for when I got Mrs. Holmes to her feet I called a gentleman’s attention to the mat and herself. I would say that it had a ragged, rough edge, and was raised about three inches from the floor when Mrs. Holmes got to her feet; that was after she fell.”

Later the case was reopened, and plaintiff was recalled. She testified:

“When I fell my left foot caught in the rug; as I stepped it went under the rug. I felt it as I fell; there was something over the top of my boot, but I fell so quick.
“Q. Can you tell us how far up on your foot the mat came when your foot went under it?
“A. The most of my foot went under the mat.
“Q. When you fell, how near wgre you to this ticket window?
“A. Well, I just missed the rail when I fell. The rail, I think, is about four feet in front of the ticket window; I could not say exactly. The only employees of the defendant who were there were the lady at the ticket window and the gentleman that stands at the door. He stepped right out there, but they had not picked me up yet. Those are all of the people who were there at that time. The ticket seller saw me when I fell because I looked at her and she looked at me. I saw her. I saw her look right at me, she sat right still. I could not say how far up from the floor she sits; she was quite high up in the place. I don’t know whether or not the mat was humped up, or raised up before T got there, because I did not see it, but I know that my foot went under the mat. I stepped with my right one, and my left foot went under the mat.”

The argument of counsel for appellant is (we quote from his brief) :

“It was the duty of the defendant at the very door of its theater to which, and through which, it invited the public to not have placed there, or permitted to have' been placed there, any matting or other thing that could buckle or curl up, against which or under which those going into that theater could'hit his or her foot, or catch his or her foot under it, so as to cause an injury.
“It amounted to negligence when defendant placed at this entrance strips of matting that were not fastened down. Add to this the fact that they were a kind which would buckle up, and that negligence becomes more than ordinary negligence. So that, we contend, regardless of defendant’s compliance with the duty of inspection, there was negligence in placing and maintaining these mats.
“This is just what defendant did. Upon its own premises, at the very door going into its theater, it placed a made up matting that could and did buckle up, that did so buckle up that plaintiff’s foot went under it, and by reason thereof she was thrown forward and down, and received the injury already mentioned.”

Many cases are cited by counsel. They say of them:

“It may seem to this court that we have cited a great many cases which are not in point with the case at bar, but we feel that they all enunciate the doctrine contended for here.”

We have examined all of these cases with care. The one nearest the instant case is Nephler v. Woodward, 200 Mo. 179 (98 S. W. 488), where the plaintiff was injured by tripping; her foot having caught in a hole in the aisle carpet while being shown to a seat in the theater. There was testimony showing that another person some days previously had tripped at the same hole. The court recognized the doctrine that the defect must have been known to defendant, or to have been in existence so long that he ought to have known if there was to be liability.

A case very much like the present case is Toland v. Furniture Co., 175 Mass. 476 (56 N. E. 608). The court said:

“What the plaintiff relies on is that the small mat between the top of the stairs and the long mat was curled up and out of repair, and worn on the edge next to the long mat, and that that caused her to trip and fall. In order to entitle her to recover on that ground, she was bound to show that that was its condition at the time of the accident, and that the defendant knew it, or in the exercise of reasonable care ought to have known it, and to have remedied it.”

The court then reviewed the evidence of which there was more than in the instant case:

“Taking into account the character of the alleged defect, we think that this evidence, if it does not fall short of showing that there was a defective condition at the time of the accident, at least falls short of showing that, if there was such a condition, it had been there so long that the defendant knew or ought to have known of it. The evidence is as consistent with the existence of the defect, if there was one, for a few moments only before the accident, as it is with its existence for a longer time. It does not seem to us, therefore, that the plaintiff has sustained the burden of showing that the defect (if there was one) had existed so long before the accident that the defendant, in the exercise of reasonable care, ought to have known of it and remedied it.”

See, also, De Velin v. Swanson (R. I.), 72 Atl. 388; Norton v. Hudner, 213 Mass. 257 (100 N. E. 546, 44 L. R. A. [N. S.] 79); Dwyer v. Hill Brothers Co., 79 App. Div. 45, 79 N. Y. Supp. 785; Reeves v. Fourteenth St. Store, 110 App. Div. 735, 96 N. Y. Supp. 448; Dudley v. Abraham, 122 App. Div. 480, 107 N. Y. Supp. 97; Meyer v. Chair Co., 180 Mich. 604 (147 N. W. 488).

Judgment is affirmed.

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