Volume 167 — Michigan Reports

Case by Albert Scherer against the Otis Elevator Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. While in the employ of defendant, and while operating a machine known as a jointer,the plaintiff on November 13, 1909, was injured.

<p>Error to Oakland; Smith, J.</p> <p>Case by John Hamilton against the Detroit United Bailway for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

Bill by Olaf Hansen against Stephen C. Hall, Alfred B. Stryker, Arthur A. Juttner, and Fred S. Nor cross to quiet title to lands. From a decree for defendants, complainant appeals. Complainant is the holder of a tax title upon certain lands described in the bill of complaint and seeks a decree quieting title to the lands in himself.

Bill by Mary A. Mohn against John Mansfield and others for the reformation of a deed. From a decree for complainant, defendant Charles Mansfield appeals.

Assumpsit by the people of the State of Michigan for the use and benefit of Lucy Wipfler against Charles W. Wipfler and the Fidelity & Deposit Company of Maryland. A judgment for defendants, overruling plaintiff’s demurrers to two pleas in abatement filed by defendants and on plaintiff’s replication to a portion of one of said pleas, is reviewed by plaintiff on writ of error. Reversed.

Case by John 0. Curry against Traver-Bird Company for false imprisonment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Error to Cass; Des Voignes, J.</p> <p>Case by Hugh Miller against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Insurance — Waiver of Defenses — Change of Occupation.</p> <p>On the statement of his occupation made by insured in his application for accident insurance, he was accepted and insured as a machinist by defendant. He died as the result of injuries sustained while employed in cleaning out a boiler, work which was not mentioned in the application. Defendant claimed that insured had changed his occupation and could not recover, under the conditions of the policy, the amount claimed. Before the trial, however, defendant, after making an investigation, tendered to the beneficiary a sum which it claimed was payable under the policy for death oaused by accident while decedent was engaged as a common laborer. A smaller sum was payable if death resulted from sickness while decedent was engaged as a common laborer. Held, that defendant waived its right to claim that the beneficiary was entitled to the diminished benefit accruing for death by illness of one engaged in common labor.</p> <p>2. Same — Cause of Death — Trial.</p> <p>Whether the cause of death of the insured was accident or sickness was, under disputed evidence, for the jury.</p> <p>3. Evidencie — Opinion—Conclusion.</p> <p>Plaintiff’s statement that decedent came home hurt, was, on defendant’s motion to strike out the testimony, allowed to stand, and plaintiff afterwards testified fully as to the condition of decedent and the appearance of injury upon his body. Held, that the ruling was not so prejudicial to defendant as to justify the reversal of plaintiff’s judgment.</p> <p>4. Insurance — Instructions to Jury — Burden of Proof.</p> <p>On the trial the court properly charged the jury that the burden of proof was on the plaintiff who must show, in order to recover, that decedent’s death was caused alone and independently of other causes by a bodily injury sustained by accidental means, leaving upon the body marks of contusions or wounds visible to the naked eye: that the jury must find that death resulted from an accident which left upon the body marks of contusions or wounds visible to the naked eye: suoh being the phraseology and conditions of the policy.</p> <p>5. Same — Words and Phrases.</p> <p>It was not error to instruct the jury that “the mark visible to the eye on the body need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury which may appear within a reasonable time after the injury is received, such, for instance, as discoloration of the part of the body affected.”</p> <p>6. Same — Wounds.</p> <p>Wounds were properly defined as “injuries of every description that affect either the hard or soft parts of the body, and it comprehends bruises, contusions, fractures, luxations,” etc., or any lesion of the body.</p> <p>7. Same — Evidence—Aeeidavit.</p> <p>Where a policy of insurance required satisfactory proofs of death, and, after the submission of plaintiff’s proofs of death, further proofs were requested by defendant, the court, which held the proofs to be sufficient, did not err in receiving in evidence an affidavit of the physician of decedent obtained by plaintiff and submitted to defendant.</p> <p>8. Same — Tender—Payment into Court.</p> <p>While the trial court might have entered upon the judgment rendered a credit to defendant of the amount tendered and paid by it into court, the judgment will not be reversed for the omission so to do, but the error will be rectified by an order of this court crediting the amount so tendered in part satisfaction of the judgment.</p>

<p>Error to Missaukee; Lamb, J.</p> <p>Replevin by Thurlow M. Sheffler against Minnie Sherman for certain cattle. Judgment for plaintiff. Defendant brings error.</p>

Case by Richard Stevenson against the Detroit United Railway for injuries to plaintiff’s wife and automobile. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Specific Performance — Fraud—Contracts—Vendor and Purchaser — Brokers.</p> <p>Specific performance was properly denied upon a record showing that complainant, a real estate broker, obtained from the owner of a farm an option in writing to sell the farm on terms stated therein, that complainant read the instrument to him omitting the clause relating to the consideration and a clause requiring a sixty-day notice in writing of the grant- or’s intention to terminate his option, and that the said owner and grantor was old, feeble and in ill health and relied upon complainant to read the paper to him, and subsequently attempted to revoke the option according to the provisions as read.</p>

<p>Exceptions before sentence from Ottawa; Padgham, J.</p> <p>Bennie Lapidus was convicted of larceny.</p>

, presiding. Bill by Edward G. Wasey, trustee in bankruptcy of James Vaughan, against Edgar B. Whitcomb for an accounting and other relief. From a decree dismissing the bill of complaint, complainant appeals. •

Case by Flora Mellish, as administratrix of the estate of Nicholas George Mellish, deceased, for the wrongful death of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Mandamus by Frank J. Kellogg to compel Joseph W. Donovan, one of the circuit judges for the county of Wayne, to vacate an order expunging from relator’s pleadings in a suit in chancery certain averments as scandalous and impertinent.

<p>Bill by the Detroit Society for the Study and Prevention of Tuberculosis, an unincorporated association, against the Detroit Society for the Study and Prevention of Tuberculosis, a corporation, and Harriet R. McGraw, Austin E. Wing, Charles Moore, and the Detroit Tuberculosis Sanatorium for an injunction and other relief. On motion of complainant to dismiss the appeal.</p>

Bill by the Detroit Society for the Study and Prevention of Tuberculosis, an unincorporated association, against the Detroit Society for the Study and Prevention of Tuberculosis, a corporation, and others, to restrain the use of complainant’s name and for other relief. Prom a decree for complainant, the said defendant corporation appeals.

Case by Edward Wilson against. the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed bjr plaintiff on writ of error.

Assumpsit by Winifred C. Brown against the Great Camp of the Knights of the Modern Maccabees on a benefit certificate. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Bill by Elijah E. Myers against George W. Radford for an accounting. Mary D. Myers, executrix of the estate of Elijah E. Myers, deceased, was substituted as complainant upon his death. From a decree for complainant, defendant appeals.

Bill by Thomas Webb against the Concordia Fire Insurance Company to set aside an adjustment and settlement of a fire loss and obtain the payment of complainant’s loss under a policy of fire insurance. From a decree for complainant, defendant appeals. Reversed, and bill

Bill by Mosey John against Andrew J. McNeal and others for the specific performance of a land contract and an accounting. From a decree dismissing the hill, complainant appeals.

Case by William F. Druck against the Antrim Lime Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Limitation of Actions — Foreclosure of Mortgages — Deficiency Decree — Execution.</p> <p>Since under the statutes of limitation (8 Oomp. Laws, § 9751) a foreclosure decree is barred after ten years, execution may not issue on a decree of foreclosure entered December 11, 1899, on which a deficiency was reported March 3, 1900, by the commissioner after sale of the premises, complainant having made application on November 29, 1909, for leave to issue execution which was not issued until December 18, 1909.</p>

Pearl E. Austin, by Michael Traxler, her next friend, filed her bill against Clarence R. Austin for divorce. Upon an order of the court Celia Austin was appointed as defendant’s guardian ad litem. Complainant presented a petition for alimony and expense money, which was allowed to her by the court, and on defendant’s failure to comply with the order he was committed for contempt of court.

Assumpsit by Matthew Finn and Alfred J. Ducharme, copartners as Finn & Ducharme, against the board of supervisors of Bay county to recover the deposit of a certified check in the hands of defendant county. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.

<p>1. Sales — Statute of Frauds — Delivery and Acceptance — Principal and Agent.</p> <p>In an action for the purchase price of a horse, upon evidence, although contradicted, showing that defendant and his agent went to plaintiff to purchase two horses, that plaintiff’s , horses were unbroken, and plaintiff’s agent refused to halter-break the animals before selling, that defendant stated his agent would take charge of and break them, and he selected two which were examined by defendant who expressed himself as satisfied, that defendant’s agent under his direction bought a rope, made halters, and, catching one of the horses, attached the halter to its neck and led it into the highway where it fell and broke its neck, it was proper to refuse to direct a verdict for defendant because there was evidence of delivery and acceptance, although the price had not been paid.</p> <p>2. Same.</p> <p>It is well settled that a delivery of a part of the property satisfies the statute of frauds.</p> <p>3. Same — Principal and Agent — Instructions to Jury.</p> <p>Nor did the court, in leaving to the jury the question of agency, commit any error in charging that they might consider the instructions, if any, given by defendant to his alleged agent relative to the horse, or any claimed ratification of his acts done in defendant’s presence, or whether defendant brought him there to assist in taking charge of the horses, or in breaking them.</p>

<p>Railroads — Negligence—Operation oe Trains — Signals—Side Tracks.</p> <p>Plaintiff’s declaration charged that he was injured by defendant’s employés who impelled a number of cars against certain standing freight cars behind which he was engaged in working on the side track of a mining company; that he was trying to move a loaded car between which and the standing cars he was working; that no signals or warning were given by the engine that was doing the switching and that defendant’s servants negligently handled the train. Prom the testimony it appeared that the train crew had no notice of plaintiff’s presence about the cars, that the conductor had switched in the standing cars a few minutes before, and saw no one working about the cars; that he set the brakes, blocked them, and the train temporarily left; that except for the use of unusual force, an element of negligence not counted on in the declaration, the train was operated in the usual manner. Plaintiff had actual notice of the presence of the train which he saw doing switching. Held, that no negligence averred by the declaration was proved.</p>

<p>1. Telegraphs and Telephones — Transfer of Money — Negligence — Delivery—Identification.</p> <p>In an action against a telegraph company for money received to transmit to a third person, to whom defendant did not deliver the funds, the question of negligence was for the jury upon evidence showing that plaintiff received a telegram from one Saida Abda, a woman, asking for money; that plaintiff went to the telegraph office, and, being unable to write English, the clerk filled out a blank; that without asking plaintiff whether the addressee was a man or woman, the clerk wrote in the name as it appeared on the telegram, and signed with plaintiff’s name a blank clause in the order waiving identification; that the money was paid to the sender of the request for money who was a man and who fraudulently furnished evidence of his identity as Saida Abda.</p> <p>3. Same — Evidence—Cross-Examination.</p> <p>It was not error to permit plaintiff’s counsel to show, on cross-examination of defendant’s clerk, that the application blank filled out for plaintiff by the clerk contained on its face instructions, where practicable, to prefix Mrs. or Miss to the name of a female addressee, the evidence showing that the receiving office paid the money to the party claiming it, assuming that the payee was a man.</p>

Assumpsit in justice’s court by William Snelling against Alfred J. Brown for goods sold and delivered. Plaintiff removed the cause to the circuit court from an insufficient judgment and recovered a larger amount on the 'trial. Defendant brings error.

Bill by Henry N. Loud against Michael O’Brien and James Francis, copartners as O’Brien & Francis, to redeem from the purchase of certain State tax lands. From a decree dismissing the bill, complainant appeals.

Joseph Cismadija was convicted of assault with intent to commit the crime of murder. Respondent was convicted of the crime of assault with intent to commit murder, and sentenced to imprisonment for a term of from eight to twenty years. He has now served upwards of one year of that term. Both the respondent, and the complaining witness, Sam Goller, are Hungarians.

<p>Appeal and Error — Exceptions Before Sentence — Municipal Corporations — Criminal Law.</p> <p>The statute permitting criminal cases to be reviewed on exceptions before sentence (3 Comp. Laws, § 11964), does not apply to convictions under village ordinances.</p>

<p>1. Sales — Damages — Breach oe Contract — Expenses oe Resale — Recoupment.</p> <p>In an action for breach of a contract to sell plaintiff apples of agreed sizes and quality, in which action defendant claimed damages for the purchaser’s refusal to accept apples tendered in accordance with the agreement, it was competent to receive in evidence the expenses and charges of insurance, storage, and of a resale by defendant’s agent at the nearest available market.</p> <p>2. Same.</p> <p>Where the property is in the possession of the seller, he may, without committing a breach of the contract, resell the goods if the original buyer refuses, without justifiable cause, to receive and pay for them, and may recover the difference between the contract price and net proceeds of such sale after deducting the expenses, interest, and charges of resale.</p> <p>3. Same — Diligence.</p> <p>The vendor is bound to exercise good faith and reasonable diligence to effect a resale at the highest price.</p> <p>4 Same.</p> <p>The cost of insurance is a proper expense thereof.</p> <p>5. Same — Market—Resale.</p> <p>The seller may hold the goods for a market or seek a market within a reasonable time, if there was none at the time and place of breach.</p> <p>6. Evidence — Books—Secondary Evidence.</p> <p>No error was committed in receiving in evidence a statement made out by the defendant’s agent who resold the goods, showing the items of charge and expense, which the witness had sworn to and stated were taken from his books, the statement having been used by the parties as part of the res gestee, and the contents of the statement having been brought out on cross-examination by appellant’s attorney.</p> <p>7. Sales — Contracts—Acceptance—Instructions to Jury.</p> <p>The trial court did not err in refusing to charge the jury that, unless defendant furnished and packed apples of a particular grade and quality, as required by the contraot, he broke his contraot, since it was defendant’s claim that plaintiff sent on an inspector who examined and-, accepted the goods as packed by plaintiff; this claim not being covered by the request so refused.</p> <p>8. Same — Damages.</p> <p>There was evidence supporting the charge of the court as to the damages defendant was entitled to reoover; and the verdiot was not so excessive as to require the granting of a new trial.</p>

Case by John Howell McCauley against the Michigan Central Railroad Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of’error.

Mandamus by Edward Prey against the common council of the city of Jackson to compel respondent to grant relator’s application for a license to engage in the retail liquor trade. An order denying the writ is reviewed by relator on certiorari.

<p>1. Evidence — Hearsay—Insurance—Defense of Suicide.</p> <p>In an action on an insurance policy, in which the defense was suicide, and it was claimed that deceased had been short in accounts with his principal, who had discovered the discrepancy, testimony as to facts and amounts learned by a witness from persons who had paid money to deceased was hearsay and correctly excluded.</p> <p>2. Same — Execution of Written Instruments — Policy of Life Insurance — Statutes.</p> <p>The policy of life insurance issued by the Fraternal Aid Association was admissible in evidence without proof of its execution, in an action against the General Council of the Fraternal Aid Association, which appeared as party defendant, and did not deny the execution of the certificate under oath, as required by Circuit Court Rule 8, where a copy of the policy was annexed to plaintiff’s declaration, and no plea in abatement setting up the correct name of defendant was filed. 3 Comp. Laws, § 10473.</p> <p>3. Trial — Special Questions — Jury—Insurance.</p> <p>It was not error to refuse to submit to the jury, as not controlling, three special questions; whether deceased had certain checks protested, whether he had collected moneys for his principal and was unable to pay them, and whether he wrote a letter to his son, as certain witnesses testified, relating to his death: the jury having found, in answer to another question, that the insured did not commit suicide.</p> <p>4. Same — Witnesses—Remarks oe Counsel.</p> <p>Prejudicial error was not committed by plaintiff’s attorneys charging a witness with making false statements during the progress of cross-examination, in view of the prompt interference and correction by the court of counsel.</p> <p>5. Same — Saving Questions eor Review. ,</p> <p>The court, on appeal, will not pass upon alleged improper argument which the attorney denied making, which the court did not hear, and which was not taken down by the stenographer.</p> <p>6. Same.</p> <p>Nor will it reverse the judgment because plaintiff’s attorney, in arguing the case, said, “Your verdict will be mine; but I believe as I stand here today and the man that cannot raise his voice himself, but sleeps over in the little churchyard yonder, has a right by his weeping wife, his widow, to ask you, to ask you, gentlemen, to render under your oath a righteous verdict and give us,” etc.</p>

Clair; Law, J. Bill by Rose Howard against the Factory Land Company, Limited, George B. Lloyd, Yiolet Lloyd, Emery Brown, William A. Jowett, and Mary A. Jowett to foreclose a land contract. From a decree for complainant, defendants appeal. Error to Muskegon; Davis, J., presiding. Case by Sena Pearson against Charles Schoenberg for unlawful sales of intoxicating liquors to plaintiff’s husband. Judgment for plaintiff. Defendant brings error.

<p>1. Intoxicating Liquors — Jurors—Qualification—Trial—Voir' Dire.</p> <p>In a civil-damage action plaintiff was entitled to excuse for cause a member of the panel who admitted on his preliminary examination that he was opposed to some of the provisions of the liquor law.</p> <p>2. Same — Trial—Prejudice—Evidence as to Family.</p> <p>It was error to show by plaintiff that during her husband’s debauch she remained alone with her infant daughter; nor was the error cured by subsequently striking out the testimony, although the jury was advised of the existence of her child by its presence in the courtroom and by certain colloquies between counsel and the court. Moore, J., dissenting.</p> <p>8. Same — Damages—Charge—Husband and Wife.</p> <p>Error was committed by charging the jury that plaintiff had a right to a sober, industrious husband, to his support, and to the comfort of her home to the ability and extent of her husband to provide, upon a showing that her husband had not been sober and industrious before defendant sold him the intoxicating liquor.</p> <p>4. Same — Statutes.</p> <p>Under 2 Comp. Laws, § 5398, plaintiff was entitled to recover what she had lost by way of support considering the relations between her and her husband at the time of the alleged sales.</p>

Case by Emma Groesbeck against the Grand Trunk Railway Company of Canada and the Grand Trunk Western Railway Company and the Toledo & Muskegon Railway Company for the wrongful killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.

<p>1. Insurance — Principal and Agent — Brokers—Fraud.</p> <p>Insurance brokers having no authority to execute a policy, but merely being authorized to receive applications for health and accident insurance which they forwarded to the home office where the policy was issued, were not agents of the insurer in such a sense that notice to them of the falsity of statements contained in the application was notice to the insurer.1</p> <p>2. Same — Accident Insurance — Warranties.</p> <p>As in the case of life insurance, so in the case of accident insurance, the insured is required to know that representations set forth in a copy of the application contained in the policy were true.</p> <p>3. Same.</p> <p>Nor was the insurer bound by knowledge obtained by its agents several months before the relation of principal and agent was created.</p> <p>4. Same — Fraud—Intent.</p> <p>That representations contained in an application for a policy of insurance were not intentionally false does not obviate their effect; they amount to constructive fraud.</p>

<p>1. Master and Servant — Assumed Risk — Knowledge.</p> <p>The doctrine of assumed risk does not, as a matter of law, bar the recovery of a common laborer employed about a mill, who, on being called by the foreman from his regular work to operate a molding machine in the place of an employé who was absent, attempted to run the machine without receiving any instructions or warning concerning the dangers of the same, and in attempting to look under the machine which was working improperly,, placed his hand on the bed plate which appeared to plaintiff smooth and level, but in doing so placed his fingers among rapidly revolving knives, which he claimed were invisible.1</p> <p>2. Same — Contracts—Dangers Known or Obvious.</p> <p>The assumption of risks arises from the contract 'of employment; the servant assuming the risk of all obvious dangers incident to the service which were known or should have been known by him.</p> <p>3. Same — Contributory Negligence — Instructions.</p> <p>Plaintiff, claiming that he had never operated a similar machine, and that he so informed the foreman at the time he was placed in charge of it, and that he followed the usual method when he placed his hand on the bed plate of the machine, was not, as a matter of law, guilty of contributory negligence. Ostrander, C. J., dissenting.</p> <p>4. Same.</p> <p>On the basis of testimony given by one of plaintiff’s witnesses that he supposed plaintiff was proceeding to seize a sliver that stuck up from plaintiff’s molder, that he did not see the accident; that if a man had reached over and taken hold of the sliver it would have easily pulled off, defendant was not entitled to an instruction that if the jury should find he was reaching over the bed plate to get out a sliver, he assumed the risk; because the conclusion of the witness was not competent evidence.</p> <p>5. Evidence — Impeachment. •</p> <p>Testimony tending to show the foreman’s knowledge of dangers attendant upon plaintiff’s work was admissible to impeach the testimony of the foreman given on defendant’s behalf, relating to the obvious character of the danger.</p> <p>6. Same — Custom—Operation op Machine.</p> <p>It was competent to show the oustom of experienced operators of the molding machine to place their hands on the bed plate - in looking underneath.</p>

<p>1. Evidence — Admissions—Foundation eor Testimony on Trial oe Separate Action.</p> <p>The official stenographer’s minutes of testimony taken in another cause, not sworn to by the stenographer, were not admissible in evidence to show that the president and general manager of defendant admitted that defendant, at a time several years previous to plaintiff’s injury, owned the street car line on which plaintiff was injured.</p> <p>2. Same — Street Railways — Inoompetenoy.</p> <p>It was prejudicial error to admit such evidence, aside from which the showing as to ownership was meager and inferential, and to refer to it in the charge to the jury as an admission of defendant’s officers which the jury might consider on the question of its ownership of the road.</p> <p>3. Damages — Permanent Injuries — Declaration.</p> <p>A claim for permanent injuries must be plainly averred in the declaration either in exact words or by an equivalent statement of facts.</p> <p>4. Same.</p> <p>While it was permissible, under plaintiff’s declaration, which did not aver prospective pain or permanent injury, to show the extent of his suffering and of his injuries at the time of the trial, the court erred in permitting the jury to find damages for permanent or future suffering, annoyance, or anxiety.</p>

<p>Error to Montcalm; Davis, J.</p> <p>Trespass quare clausum fregit by Adelbert J. Grinned against John Mayes. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Evidence — Husband and Wife — Loss of Services — Damages.</p> <p>It was prejudicial error, in a personal injury case brought by a married woman, to permit her to show that her husband conducted a store of which she was chief manager, and that by reason of her injuries she was unable to perform the same duties as formerly and in consequence the business failed. That defendant brought out, on cross-examination of plaintiffs physician, the fact that had she submitted to an operation promptly her sufferings would have been diminished, did not justify the admission of the objectionable testimony, and plaintiff should not have been permitted to go further after testifying that neither she nor her husband had sufficient means to pay for the operation.</p> <p>2. Husband and Wife — Negligence— Personal Injuries — Action for Loss of Wife’s Services.</p> <p>If the husband suffered the loss of his wife’s services, they could only be recovered for in an action instituted by him.</p>

Case by Frances Stolz, administratrix of tbe estate of William Stoiz, deceased, for the wrongful killing of decedent. Judgment for plaintiff. Defend ant brings error.

Bill by Gardner Powell, administrator with the will annexed of the estate of Sarah A. Beardsley, deceased, against Hamaline Beebe for the construction of a will. From a decree for complainant, defendant appeals.

Ejectment by John McRae, Lucy McRae, and Samuel Anker against William Barber and Mariette Barber. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.

Bills by Mario Lutz against Mary Rohn and others, and by Anna Spanier and Frederick Rohn against said defendants to set aside certain deeds and the transfer of beneficiary under certain policies of insurance of Joseph Rohn, deceased. From a decree for complainants, defendant Rohn appeals.

Bill by Katherine Monroe, Charles Roe, and Phoebe Roe against William E. Carter to quiet title to certain lands. From an order overruling a demurrer to the bill of complaint, defendant appeals.

<p>1. Master and Servant — Assumed Risk — Common Laborer — Warning and Instructing Servant.</p> <p>A common laborer, engaged in the work of removing hatch covers on a boat, after having removed two of them with the assistance of three other laborers, assumed the risk of the danger that if they were pulled over the combing they would fall through the hatchway into the hold, and it was unnecessary to warn the workman of such danger, which was open ' to ordinary observation.</p> <p>2. Same.</p> <p>And plaintiff was not entitled to recover because defendant did not furnish clubs to use in doing work that was done in a manner commonly adopted in similar establishments and could be done safely if proper care were employed.</p>

Bill by the Muskegon Traction & Lighting Company against the city of Muskegon and the mayor and members of the common council thereof, and others, to enjoin the establishment of a municipal lighting plant. From a decree dismissing the bill, complainant appeals.

<p>Trial — Conduct of Court — Prejudicial Remarks of Trial Judge.</p> <p>In an action brought by a sister-in-law of defendant to recover for board and other services furnished to defendant’s wife, it was error for the court to state, during the taking of testimony, that plaintiff had proved her theory, that defendant was bound to pay for his wife’s board, etc., and to intimate by other remarks his opinion that plaintiff was entitled to recover.</p>

Trover in justice’s court by David Lytle against the Southern Michigan Fruit Association, Fred Young, and James N. Peters. From a judgment for plaintiff against defendants Peters and Young, said Peters appealed to the circuit court. Discontinuance as to the Southern Michigan Fruit Association was entered. Judgment for plaintiff. Defendant Peters brings error.

Case by William Johnson against William Burke for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>1. Master and Servant — Declaration — Railroads — Defective Apparatus — Variance.</p> <p>It was not error to refuse to direct a verdict for defendant rail- . road, in a personal injury case brought by one of its freight conductors who was hurt while coupling a car that he claimed was equipped with a broken and insufficient draw-head, where the declaration alleged that it was defendant’s duty, under 2 Comp. Laws, § 5511, to furnish safety coupling devices and to keep them in reasonable repair, that the coupling in question was defective and could only be operated by plaintiff’s putting his hand between the cars, that the draw-head of one of the cars had fallen down because of the broken and defective condition of the bolts thereof, that the bolts had been cracked and broken for a period of about three months, and where evidence showed that the bolts which held the drawhead were no part thereof and their defective condition was the proximate cause of the injury: since the defendant was not surprised by the alleged variance and was fairly notified that plaintiff claimed the bolts were defective.</p> <p>2. Same — Contributory Negligence.</p> <p>Nor was plaintiff per se guilty of contributory negligence because he put his arm between the cars to uncouple them; for he had a right to rely on defendant’s performance of its duty, and if it had performed the same his position would have been a safe one.</p> <p>3. Appeal and Error — Assignments — Saving Questions for Review.</p> <p>An assignment that the court erred in his charge to the jury is too general to be considered.</p> <p>4. Evidence — Usual Methods — Contributory Negligence — Personal Injuries.</p> <p>Testimony of plaintiff, in an action for personal injuries, that he uncoupled certain cars in the usual way, and the business of the railroad could not be conducted if the conductor waited to make a particular examination of each car, was not objectionable.</p> <p>5. Same — Rules.</p> <p>Nor was it erroneous to exclude from the evidence rules of defendant which required no more than the law in their absence required.</p>

<p>Error to Newaygo; Sessions, J., presiding.</p> <p>Assumpsit by Oscar Silfver against George F. Daenzer for money bad and received. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Wayne; Donovan, J.</p> <p>Partition by Melissa Loranger against Harriet A. Carpenter, Mary P. Ross (now Hislop), and others. Prom a decree for complainant, defendant Hislop appeals.</p>

Action by the Schwarzschild & Sulzberger Company against Edward Cryan, Monroe H. Morrow, and Edward Dwan, on an appearance bond. An order exonerating the sureties on the bond is reviewed by plaintiff on certiorari. The defendant Edward Cryan was arrested upon a capias tested July 11, 1910, upon which was indorsed an order to hold to bail in the sum of $2,000.

<p>1. Master and Servant — Fellow-Servant — Inoompetenoy — Railroads.</p> <p>Evidence tending to show that defendant’s locomotive engineer, whose negligence caused a collision, had on one occasion permitted his fireman to partly smother the fire;, that afterwards the fireman forgot to shake down the fire, and on another occasion the engineer ran past a stop which, he was ordered to make, but furnished a reasonable excuse therefor; and that he had been in defendant’s employ as engineer about a year, is insufficient to establish his incompetency.1</p> <p>2. Same.</p> <p>While a single act may, under some circumstances, show an individual to be an improper and unfit person for a particular service, as when he acts wantonly or maliciously, yet a single act of casual neglect does not sufficiently establish that a servant was incompetent.</p>

<p>Error to Livingston; Miner, J.</p> <p>Bill by Aurelia Hill against Matilda Reiner and others for partition. From a decree for complainant, defendant Reiner appeals.</p>

Bill by Anton Gurchke against Ernestine Gurchke for a divorce. From a decree for defendant granting a divorce upon her answer in the nature of a cross-bill, complainant appeals.

Case-made from Kent; Perkins, J. The Michigan Trust Company, administrator of the estate of Mary McNamara, deceased, presented to the probate court a petition for leave to make a partial distribution of assets. An order determining the persons entitled thereto and granting the prayer of the petition was entered in probate court. On appeal to the circuit court by James McNamara, one of the distributees, the order was affirmed and he brings case-made.

Assumpsit by William Veltmans and Margaretha Veltmans against Benjamin Kurtz and Ella Kurtz for breach of the covenant of seisin in a certain deed of conveyance. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.

<p>Exceptions before sentence from Berrien;</p> <p>David J. Stewart was convicted of selling goods by sample without a license.</p>

Replevin in justice’s court by Charles H. Anderson against David Henderson. On appeal by defendant from an adverse judgment to the circuit court, plaintiff was nonsuited for his failure to appear, and judgment entered against plaintiff and his surety, Orin Travis, who brings error.

<p>Error to Mackinac; Shepherd, J.</p> <p>Case by Mary E. Minor against the Escanaba Lumber Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Petition for habeas corpus by William Forscutt to obtain his release from confinement in the State prison under an indeterminate sentence.

Mandamus proceedings by the board of regents of the University of Michigan against James B. Bradley, auditor general of the State of Michigan, to compel the issuance of a warrant upon the treasurer for certain expenditures and disbursements.

Mandamus by Oramel B. Fuller, auditor general of the State of Michigan, to compel Edward L. Cousino, treasurer of the county of Monroe, to pay to the State a certain tax charged back to said county by the auditor.

Bill by Mark W. Allen and others against the city of Detroit and others for an injunction restraining defendant city from erecting a fire station on property restricted to residences only. Bill by Edward Frumveller against Hoyt Post and others for the specific performance of a land contract. The two causes were consolidated and heard as one.

<p>Exceptions before sentence from Jackson; Parkinson, J.</p> <p>Carl Eberle and Stephen H. Carrol were convicted of violating the local-option law.</p>

Mandamus by George M. Haney and another against Philip Padgham, judge of the Allegan circuit court,to compel respondent to settle a record on appeal and approve a bond. On motion to dismiss for insufficiency of the printed record.

Bill by William B. Brown, prosecuting attorney for the county of Kent, on the relation of George O. Norton and others, against the president and trustees of the village of Sparta and others to restrain defendants from granting a. license to a saloon. Prom a decree dismissing the bill,, complainant appeals.

<p>1. Attorney and Client — Admission to Bar — State Board of Law Examiners — Rules.</p> <p>The rule adopted by the State board of law examiners requiring applicants to present a certificate of graduation from a normal or high school, or to take an examination in certain subjects as a preliminary qualification to their admission to the bar, is reasonable and in harmony with 1 Comp. Laws, §§ 1121, 1122.</p> <p>2. Same — Striking Name from Rolls.</p> <p>Where an applicant for admission to the bar, who had passed the examination, was permitted to sign the roll and take the oath of office upon his assurance that he would thereafter furnish the required evidence of his educational qualifications, his certificate of admission being withheld until he had complied with the requirement of the board of examiners, he did not acquire the status of an admitted practitioner and his name is ordered stricken from the rolls upon the petition of said board showing his failure to comply with the requirements.</p>

<p>Constitutional Law — Statutes—Registers oe Deeds — Salary —Fees.</p> <p>Under the Constitution of 1909, art. 8, § 9, providing that boards of supervisors shall have exclusive power to fix the salaries and compensation of all county officers not otherwise provided for by law, the board of supervisors of Ingham county exceeded their authority in fixing the salary of the register of deeds at $1,500 in lieu of all fees, since the fees and compensation of the register are determined by a pre-existing statute. 3 Comp. Laws, § 11227.</p>

Assumpsit in justice’s court by the estate of S. Kaufman, Louis Harris, S. Rothschild, Alfred Rothschild, and Moses Schott, copartners doing business as Rothschild & Brother, against Louis Schneider upon a promissory note. From a judgment for plaintiffs defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

Information by Franz C. Kuhn, attorney general of the State of Michigan, upon the relation of Milton A. McRae against William B. Thompson and others. From a decree dismissing the information, relator appeals. The information in this case is filed by the attorney general upon the relation of Milton A. McRae,a taxpayer of the city of Detroit and president of the board of commerce of said city.

Case by Jessie Woods by her next friend against the Kalamazoo Paper Box Company for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>1 Insurance — Accident—Directing Verdict.</p> <p>Testimony of plaintiff, who was insured against accidental injuries, that while she was washing clothing water splashed into her eye, and that gonorrheal infection, resulting in. the loss of her eye ensued, was not so improbable, nor was the cause of her injury so conjectural, that the court should have directed a verdict for the insured.</p> <p>2. Same — Policy—Disease—Words and Phrases.</p> <p>Nor was the loss of the eye the result of disease in such a sense that plaintiff oould not recover.</p> <p>3. Same.</p> <p>Where the death or injury is caused by a disease not resulting from any bodily infirmity or disease existing at the time of the accident, but is itself caused by the external, violent, and accidental means which produced the injury, the disease is an effeot of the accident, a mere link in the chain of causation, and the insurer is therefore liable.1</p>

Bill by the Title Guaranty & Surety Company against the State of Michigan, the ¿Etna Indemnity Company, and others, to restrain an action at law, for an accounting and other relief. From a decree overruling the demurrer of defendant the ¿Etna Indemnity Company, said defendant appeals.

Case-made from Missaukee; Lamb, J. Trespass quare clausum fregit for treble damages by Thomas White against Mark T. Dunsmore. Judgment for defendant. Plaintiff brings case-made.

Bill by Herbert H. Hamilton, as executor of the estate of Daniel P. Wilcox, deceased, against Anna Wilcox and others to set aside as fraudulent conveyances of real property held by decedent. From a decree for complainant ordering a division of defendant’s homestead, complainant appeals.

<p>Appeal from Bay; Collins, J.</p> <p>Bill by Carrie A. Bialy against Robert C. Bialy for divorce. From a decree for complainant, both parties appeal.</p>

Attachment by James Greacen against the Buckley & Douglas Lumber Company. Defendant moved to dissolve the writ for alleged insufficiency of plaintiff’s affidavit. An order denying said motion is reviewed by defendant on writ of certiorari.

Assumpsit in justice’s court by Newcomb-Endicott Company against Robert L. Eee and others for goods sold and delivered. Plaintiff recovered and defendants appealed to the circuit court. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by George A. McKenzie against James Lynch for breach of contract. Judgment for plaintiff. Defendant brings error.

<p>Error to Cass; Des Voignes, J.</p> <p>Case by Oswald Wegner and wife against George R. Herkimer for fraud and deceit. Judgment for plaintiffs. Defendant brings error.</p>

Case by Anna Knickerbocker, administratrix of the estate of Franklin Glenn Knickerbocker, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company and the Grand Trunk Western Railway Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff against the defendant the Detroit, Grand Haven & Milwaukee Railway Company, which brings error.

Bill by Frederick Laubengayer against Magdalene' Rohde and William H. L. Rohde for rescission of a purchase of real property, for damages for fraud and other relief. From an order overruling a demurrer to the bill, defendants appeal.

Assumpsit by A. Backus, Jr., & Sons, a corporation, against the Detroit River Tunnel Company. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Ephraim E. Mills against Charles Warner for an assault and battery. A judgment for plaintiff for less than the amount claimed is reviewed by plaintiff on writ of error.

Garnishment by the National Grocer Company against Robert Plotler upon an account and indebtedness of George Hanna, principal defendant. A judgment for plaintiff on a verdict directed by the court is reviewed by the garnishee defendant on writ of error.

Bill by the Godfrey Lumber Company against Belle E. Kline and George W. McConn to enforce a mechanics’ lien. From an order sustaining a demurrer to complainant’s bill and dismissing the same, complainant appeals.

<p>1. Appeal and Error — Evidence—Stenographer’s Notes.</p> <p>While minutes of the official stenographer taken at a previous trial should be proven before they are admitted in evidence, the objection comes too late on appeal by a party that asked to have the stenographer’s minutes produced, and read from them on the trial without raising the objection that they were not proven.</p> <p>3. Replevin — Demand—Instructions to Jury.</p> <p>In replevin it is not error to charge as a matter of law that a demand was made for the property by plaintiff when the evidence showing the demand is undisputed.</p>

<p>Erorr to Berrien; Coolidge, J.</p> <p>Victor Tonnelier was convicted of keeping and using a slot machine.</p>

Assumpsit by Harry R. Brown against Frederick F. Spiegel on two promissory notes. Plaintiff caused an attachment to be levied on certain property of defendant: On motion to dissolve, the property was released, and by stipulation of the respective attorneys defendant was authorized to have deducted from plaintiff’s claim all damages and costs to which he might be entitled because of the wrongful levy. Judgment for defendant. Plaintiff brings error.

<p>1. Pleading — Demurrer—Sufficiency of Declaration — Trial.</p> <p>A declaration not demurred to, charging defendant railroad company with not maintaining a cattle guard sufficient to prevent cattle from straying on its right of way, or such as the Michigan railroad commission had approved, warranted the admission of evidence and of proof that the guard constructed did not conform to the plan presented by defendant to and approved by the Michigan railroad commission.</p> <p>2. Railroads — Trial—Rebuttal.</p> <p>On the trial of such issue it was not error, on rebuttal, after the defense had shown that the guard used was in accordance with the plan submitted to and approved by the railroad commission, no motion to direct a verdict having been made at the close of plaintiff’s evidence, which tended to establish the insufficiency of the cattle guard, to permit plaintiff to introduce testimony to meet the defense and prove that the guard did not conform to such plan.</p> <p>3. Same — Negligence—Contributory Negligence — Proximate Cause — Animals.</p> <p>The mere negligence of plaintiff in permitting his cattle to run at large did not constitute a defense to an action under the statute; 2 Comp. Laws, § 6294, Act No. 308, Pub. Acts 1909.</p> <p>4. Same — Instructions to Jury — Value.</p> <p>Upon plaintiff’s uncontradicted evidence that the horse was worth $250, the court rightly directed the jury that its value was the amount claimed.</p> <p>5. Same — Sufficiency of Cattle Guard.</p> <p>Standing alone, instructions that the plaintiff must recover on the ground that defendant was negligent in not having a sufficient guard were questionable, but the instructions were proper when considered with the remainder of the charge which advised the jury that if defendant installed a cattle guard in accordance with a plan approved by the railroad commission it was not negligent.</p> <p>6. Same.</p> <p>Nor was it incorrect for the court to instruct the jury that if the cattle guard did not conform to the plan submitted to and approved by the commission or was different in dimensions or in structure and that thereby it was insufficient to turn stock, and did not turn the horse in question, the plaintiff was entitled to recover, since plaintiff’s evidence as to ownership, value, circumstances of its death, insufficiency of the guard, etc., was uncontroverted.</p>

Assumpsit in justice’s court by Jefferson M. Thurber, as administrator of the estate of Henry T. Thurber, deceased, upon a promissory note. From a judgment for defendant plaintiff appealed to the circuit court where the issue was tried by the court without a jury. Judgment for plaintiff. Defendant brings error.

Trespass guare clausum fregit by Thomas G. Sullivan against John Godkin for cutting and removing timber. On motion of defendant to compel plaintiff to file certain exhibits with the clerk of the court, to stay proceedings until the order should be complied with, and to reverse a judgment appealed from in default of such compliance.

Mandamus by Franz C. Kuhn, attorney general, on the relation of John Greenfield and others, to compel the board of supervisors of the county of Alcona to rebuild the jail of said county previously destroyed by fire.

Bill by Myron Burdick and Rickey Burdick, his wife, against the Harbor Springs Lumber Company to enjoin a trespass. From a decree for complainants, defendant appeals.

Information in the nature of quo warranto by the people of the State of Michigan on the relation of Franz C. Kuhn, attorney general, against John S. Haggerty to try respondent’s title to the office of member of the board of control of the State prison.

Mandamus by Edward A. Phillips against Franz C. Kuhn, attorney general, to require respondent to sign an information in the nature a quo warranto and authorize the filing thereof for the purpose of determining relator’s title to office as member of the board of control of the Michigan reformatory at Ionia.

<p>Habeas corpus proceedings by Frank Courtright against Euphemia S. Jewell to test the right to the care and custody of Margaret L. Courtright, an infant.</p>

<p>1. Negligence — Street Railways — Highways and Streets.</p> <p>Upon testimony tending to prove, though contradicted, that plaintiff, after looking to ascertain if a car was coming, and seeing none, drove his wagon beside defendant’s car track so near as to be in danger from approaching cars, a distance of over 700 feet, that while so proceeding he turned across the track without looking again, in front of a car that came up behind him, without any warning, and was struck by it, that the motorman made no effort to stop the car until nearly at the moment of the collision, the question of negligence was for the jury.</p> <p>%. Same.</p> <p>Plaintiff was not barred from recovering because he turned from a hazardous situation to one of greater peril.</p> <p>3. Same — Contributory Negligence — Last Clear Chance.</p> <p>And where plaintiff looked for a car when he first turned upon the street, and saw none for about three blocks, then traveled at about ten miles an hour to the point at which he turned, it was for the jury to say whether he was guilty of contributory negligenoe in relying on the fact that the car would have to travel at an unusual rate of speed to overtake him, and it was for the jury to determine whether plaintiff should have looked again. Ostrander, C. J., and MoAlvay and Brooke, JJ., dissenting.</p>