Volume 177 — Michigan Reports

<p>Error to JacksonParkinson, J.</p> <p>Case by Fred H. Seebach against the Michigan United Railways for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by Alfred Folks against William H. Burletson, Gardner L. Hunn, Albert M. Helmer, Charles W. Bullen, and Fennor K. Corwin for certain debts or claims owing by the Farmers’ & Merchants’ Bank of Hanover, Michigan, a copartnership. Judgment for plaintiff. Defendants except said Burletson bring error.

<p>1. Master and Servant — Negligence—Personal Injuries.</p> <p>Testimony that defendant failed to supply customary safeguards for the gearing of its rattlers and to furnish loose pulleys to' throw the power off, and that the safeguards could easily and inexpensively have been provided, making it unnecessary for an employee to climb on a barrel to put on a heavy belt by hand, tended to establish negligence, under Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4025).</p> <p>2. Same — Contributory Negligence — Promise to Repair.</p> <p>Taking the facts as presented by plaintiff’s witnesses as true, where plaintiff testified that he did not know of any rule against putting belts on running pulleys, and had been instructed how to püt the belts on the rattlers when the machinery was in operation, and had so done for several months, that'having become familiar with the . danger, he purposed to quit unless the difficulty was . obviated, and complained to his foreman who advised him to go ahead, be careful, and use all precautions, and the defects would soon be corrected, he was justified in putting on the belt as he had been instructed to do, and was not chargeable with contributory negligence as matter of law, nor did the directions amount to a change or revocation of his previous instructions.1</p> <p>3. Same.</p> <p>Whether the, danger was so imminent that no prudent person would undertake to perform the service, was a question of fact: knowledge of the danger was not conclusive evidence of want of care on plaintiff’s part.</p> <p>4. Same — Trial—Argument—Contributory Negligence.</p> <p>Argument of plaintiff’s counsel to the effect that a working man was entitled to wear mittens while he. was putting on the belt, if counsel for defendant and himself could wear fur wraps and gloves on the street, — being outside the record, — with other remarks tending to enhance the damages and improperly criticising expert testimony introduced by - defendant, was prejudicial and erroneous, where the verdict rendered was large in amount, over $6,500, and where the court in his charge instructed the jury to decide the matter “as it actually affects you.”</p>

<p>Error to Livingston; Miner, J.</p> <p>Case by Henry C. Gerkin against the Brown & Sehler Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Deeds — Competency—Evidence—Consideration.</p> <p>Held, that complainant’s contention that she was induced to execute a deed of 120 acres of land by fraud and undue influence was not sustained by the proofs; and that the deed was not void for incompetency.</p> <p>2. Same — Cancellation of Instruments.</p> <p>Evidence considered, and held, to show performance by defendant of his agreement for the grantor’s support and maintenance during her lifetime, made in consideration of the deed.</p>

Bill by the Toledo, Saginaw & Muskegon Railway Company against Charles Peters for an injunction to restrain an action at law on a negotiable instrument. From a decree for complainant, defendant appeals.

<p>1. Street Railways — Contributory Negligence — Use of Streets.</p> <p>In an action for injuries sustained in a collision between a street car and plaintiff’s conveyance, his testimony that he looked both ways and could- see no car, that his vision was obstructed at a distance of about 240 feet by vehicles and similar objects, that he believed he could safely cross, but was struck by a car as his rear wheels were clearing the track, that the car ran 650 feet after it struck him and its speed was 40 to 50 miles per hour, presented an issue for the jury as to his contributory negligence.1</p> <p>2. Same — Trial—Charge—Due Care.</p> <p>In charging the jury the trial court erred in omitting to state the duty resting on plaintiff to act as a reasonably prudent man would and to state the degree of care also required of defendant’s motorman; the language of the court’s instructions being ambiguous.</p> <p>3. Same — Streets—Negligence.</p> <p>The jury should also have been instructed that additional care was required of both plaintiff and defendant’s servant because of the fact that the street was badly torn up and the crossing difficult to make, as shown by the testimony.</p>

Bill by Ada Ketchum and another against James Ketchum and another to correct a mistake in the description of certain deeds. Defendant filed a cross-bill setting up the invalidity of the conveyances in question. From-a decree for complainant, defendant Ketchum appeals.

<p>Error to Wayne; Murphy, J.</p> <p>Case by Joseph H. Andries against the Everitt-Metzger-Flanders Company for damages to plaintiff’s automobile. Judgment for plaintiff. Defendant brings error.</p>

Case by Michael Gorrey against the W. F. Hurd Company for personal injuries. Judgment for defendant upon a directed verdict, plaintiff brings error.

Assumpsit by Edward P. Smith and Carrie Smith against the American Insurance Company on a policy of fire insurance. Judgment for plaintiffs, and defendant brings error.

Case by Arthur A. Goodyear, as administrator of the estate of Albion A. Goodyear, deceased, against the Detroit United Railway for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.

Case by Harriet Colborne against the Detroit United Railway for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Mary Oldenberg and others proposed for probate the will of Henry Oldenberg, deceased. Lizzie Lei-berg and others contested. Proponents appealed to the circuit court from an order of the probate court disallowing the will. Judgment for proponents. Contestants bring error.

Bill by the Detroit Trust Company as trustee in bankruptcy of the Marvel Motor Car Company against the C. C. Wormer Machinery Company for an accounting and other relief. From a decree for complainant, defendant appeals.

Bill by Samuel Fishel, in whose stead Stephen G. Earl, trustee in bankruptcy of the estate of Samuel Fishel, bankrupt, was later substituted, against Abraham Jacobs and others for an injunction and other equitable relief. From an order permitting complainant to sell the property in litigation, defendant Jacobs appeals.

<p>Appeal from Barry; Smith, J.</p> <p>Bill by Charles Duane Bauer against Charlotte Bauer for divorce. Defendant filed a cross-bill for a divorce. From a decree for complainant, defendant appeals.</p>

, presiding. Assumpsit in justice’s court by Mike Devich. against Frank Dick for services as defendant’s bartender. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Bill by Harry Brandt and others against Emery G. Luce and others for an injunction, etc. From an order sustaining a demurrer to complainants’ bill, complainants appeal.

<p>1. Criminal Law — Trial—Opening Statement.</p> <p>The requirement that plaintiff’s counsel shall make a full and fair statement of his case and of the facts that he expects to prove (Circuit Court Rule 24), is directory only: in a prosecution for murder, the prosecuting attorney did not commit reversible error in omitting to make an opening statement.</p> <p>2. Homicide — Conspiracy—Murder—Intent.</p> <p>While it is a general rule that the several conspirators engaged in the commission of a felony are chargeable with a murder which one of them commits in the process of carrying out the purposed offense, even though homicide was not planned, the same rule does not apply to conspirators engaged in a misdemeanor which results in unpremeditated homicide.</p> <p>3. Same.</p> <p>The trial court, in a murder case, committed error in charging the jury that “where several persons are concerned in the commission of a felony or of any unlawful act,” and in the execution of a common purpose any one of them commits a murder, all who were present aiding or abetting in the unlawful purpose were guilty of the murder, the testimony having tendency to prove that the offense which the accused conspired to commit was simple assault, — a misdemeanor.</p>

<p>1. Negligence — Contributory Negligence — Street Railways— Trial — Instructions to Jury.</p> <p>In the absence of any evidence' that would tend to show negligence on plaintiff’s part in trying to turn off defendant’s tracks in advance of a moving car, which struck the end of his vehicle, plaintiff being delayed in his efforts to escape from the tracks by snow and ice banked up on either side, the court committed reversible error by leaving to the jury the question of contributory negligence, in plaintiff’s failing to clear the track in time to avoid the collision.1</p> <p>2. Street Railways — Duty to Persons on Track.</p> <p>The duty of defendant’s motorman, when he saw that the driver of a vehicle on the tracks was making an effort to escape, and was impeded ,by slipping of his wheels on the snow banked at the side, was to delay until the wagon had left the track, and it was the duty of the plaintiff to leave the track. with reasonable expedition after he discovered the presence of the car.</p> <p>3. Same — Requests to Charge — Snow and Ice — Removal.</p> <p>Plaintiff’s requests to charge that defendant corporation was liable if it left piles or ridges along the street so as to create obstructions to free use of the streets, was properly refused by the court.</p> <p>4. Same — Personal Injuries.</p> <p>Defendant’s motorman was, however, bound to operate his car with reference to all circumstances known to him, including the liability of the wheels of a conveyance to slip or slide along the rails and on the obstruction created by the snow.</p>

<p>1. Insurance — Indemnity Policy — Mutual Benefit Associations. ■ ‘</p> <p>Under a' policy of indemnity against loss of employment occasioned by discharge of the insured or his suspension as a penalty or method of discipline, containing a condition that knowingly disobeying orders or rules should not be included among the insurable causes of discharge, and that the insured must show by his notice of claim and accompanying proofs that his suspension or discharge was strictly within the terms of the certificate or policy, and that the cause assigned by the employer should be the sole basis of determining liability, such assigned cause must be taken as a basis or general reason for the discharge, and could not be contradicted, but it would be an unreasonable construction to hold that plaintiff could not recover unless his employer stated as cause of his discharge all the stipulated conditions or provisions essential to liability.1</p> <p>2. Same.</p> <p>Both application and policy must be construed together as constituting the contract, and plaintiff is presumed to have read and understood both.</p> <p>3. Same — Discharge—Master and Servant.</p> <p>And under its conditions plaintiff could only recover if his discharge or suspension was in the nature of a penalty, the word discharge presumptively meaning that the employer no longer needs or desires the servant’s services and terminates the contract relation.</p> <p>4. Same — Contracts—Construction—Penalty.</p> <p>Penalty indicates punishment for doing or failing to do a required act.</p> <p>5. ' Same — Disciplíne.</p> <p>But the word discipline as employed in the contract signified instruction, or the communication of knowledge and training to observe and act in accordance with rules or orders and was used in the sense of correction, chastisement, or punishment inflicted by way of training.</p> <p>6. Same — Conditions Precedent — Notice to Insurer.</p> <p>Where plaintiff’s notice of claim given to the insurer did not indicate that his suspension or discharge was a penalty or measure of discipline, and not for knowingly disobeying orders or rules, and the policy required specifically that his statement must show that he was within the provisions of the certificate, he could not recover, and a verdict was properly directed for defendant.</p>

<p>Error to Charlevoix; Mayne, J.</p> <p>Case by Carl Cummins against the Boyne City Tanning Company for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Logs and Logging — Contributory Negligence — Flooding Lands — Waters and Watercourses.</p> <p>In an action brought by plaintiff for causing his lands to be flooded by a jam formed by defendant’s logs that obstructed the river, plaintiff was not chargeable with contributory negligence for permitting a birch tree to remain in a leaning position over the stream so as to obstruct defendant’s drive.1</p> <p>2. Same — Rivers—Navigation—Negligence.</p> <p>That defendant suffered a jam to form of logs which its employees were driving down a stream, filling the banks for a considerable distance up the stream past plaintiff’s property, that none of defendant’s men were within five miles when the conditions arose, and from one and a half to two and a half days elapsed before the men arrived to break the jam which caused plaintiff’s land to be flooded and washed out, furnished evidence of negligence.</p> <p>3. Same — Riparian Rights — Driving Logs.</p> <p>No liability would arise from a jam produced by natural causes, unless, by the exercise of due care, the formation of the jam could have been avoided, but the law requires persons so engaged in driving logs to use due diligence and to employ such number of men and means as will accomplish the object of breaking any jam that may form, without undue delay.</p> <p>4. Same — Damages—Weight oe Evidence.</p> <p>But a judgment for $1,057 was excessive, on testimony tending to show that the total value of the land damaged was $275, that the cost of diking the river amounted to $550 and other damages did not exceed $20 in all.</p> <p>5. Same — Real Property — Measure oe Damages.</p> <p>The measure of damages would be the diminution in value of plaintiff’s farm through the effects of defendant’s negligence.</p>

<p>1. Insurance — Indemnity Bonds — Fidelity Contract — Liability.</p> <p>Plaintiff, a fidelity insurance company, furnished to the employer of one Maile a bond of indemnity against loss by reason of the default of its employee. As security, defendants gave a bond to plaintiff to save it harmless against damage or loss on' the fidelity obligation, in which it was provided that the contract should be void as to claims that might arise subsequent to any default, if the employer should fail to notify plaintiff, the obligor, immediately, or as soon as practicable, thereafter. Maile rendered a monthly account in which a deficiency of $27.26 appeared. He was notified of the irregularity and advised to correct it in his next report, which, however, showed an additional shortage, and plaintiff was required to reimburse the employer. In a suit on the collateral contract defendants contended that their obliga- ■ tion was no more extensive than that of plaintiff and that it had been released by the employer’s failure to report the first shortage.' Held, that ‘the requirement of the fidelity bond as to notice of default did not necessitate a report of an apparent error or honest mistake, and defendants were liable on their undertaking.</p> <p>2. Appeal and Error — Trial—Charge.</p> <p>Apparently contradictory instructions did not prejudice appellants, against whose contention the point raised should have been determined as matter of law, instead of submitting the case to the jury.</p> <p>3. Same — Saving Questions for Review.</p> <p>Points not sufficiently brought to the attention of the trial court will not he determined on error.</p>

Bill by Louisa Poli against Abraham Jacobs and Julius Stroh for a decree of interpleader. Certain claimants intervened. From a decree for defendant Jacobs, said Stroh appeals.

Bill in the nature of an information by William H. Andrews, prosecuting attorney of Berrien county, on the relation of Judson Webber and another against Rupert Auer for the revocation of a liquor license. From a decree for defendant, complainant appeals.

<p>Error to superior court of Grand Rapids; Stuart, J.</p> <p>Case by William M. Kimble against Joseph R. Gillard and George W. Weeks for fraudulent representations. Judgment for plaintiff. Defendant Gil-lard brings error.</p>

Case by Russell E. Coke against the Michigan Central Railroad Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

<p>1. Mortgages — Deed as Security — Presumptions.</p> <p>In construing an instrument claimed to be a mortgage, but appearing on its face to be an absolute deed, tbe proof ought to be sufficient to overcome tbe presumption that tbe instrument is what it purports to be; evidence that it was intended merely as security should be clear and convincing.</p> <p>2. Same — Evidence.</p> <p>Conflicting proofs relative to tbe intention of decedent grantor to execute a deed to bis son as security for an indebtedness reviewed, and held, to support the trial court in finding tbat tbe deed was absolute.</p>

<p>1. Railroads — Crossing Accident — Negligence.</p> <p>Evidence that plaintiff was struck by a locomotive at defendant’s crossing, that he looked both ways, and, owing to smoke and darkness, was 'unable to see any train coming, that a freight had just passed on an adjacent track and a passenger train went by making considerable noise, smoke, etc., and plaintiff was unable to hear or see the approaching locomotive, which gave no signal and was running backwards without a headlight and with only small red and white lights displayed, sustained the trial court in refusing to direct a verdict for defendant.</p> <p>2. Same — Contributory Negligence — Directed Verdict.</p> <p>It is proper to submit to the jury the question of plaintiff’s contributory negligence, if candid' and intelligent men might reach different conclusions upon the question, or the testimony is conflicting.</p> <p>3. Same — Lights—Warning.</p> <p>Nor did the court err in charging the jury that if the defeudant operated its engine without lights after it was so dark as to obscure approaching objects, defendant was guilty of negligence.</p> <p>4. Same — Appeal and Error — Saving Questions eor Review.</p> <p>Having requested no instructions on the issue as to darkness, etc., defendant could not review the court’s failure to charge as error.</p> <p>5. Same — Evidence—Charge.</p> <p>And evidence tending to show that an engine was seen near the place of injury shortly after the accident, running backwards without lights, was not incompetent, where the court instructed the jury not to consider the evidence unless they found that the engine was the one which injured plaintiff.</p> <p>6. Damages — Humiliation—Suffering.</p> <p>It was not erroneous to permit the jury to determine what damages plaintiff should receive for future pain and suffering and mental anguish for the loss of an arm and a leg though no evidence other than his physical condition was offered on the subject.</p>

Case by John Sykes as administrator of the estate of John Sykes, Jr., deceased, against the village of Portland and Citizens’ Telephone Company for the wrongful killing of intestate. Judgment for plaintiff. Defendants bring error.

Bill by Leah Appenzeller against William H. Appenzeller and wife for the cancellation of certain deeds. From a decree for defendants, complainant appeals.

Assumpsit in justice’s court by S. Wightman Stewart against Francis Terwilliger for broker’s commissions. Plaintiff appealed to the circuit court from- a judgment for defendant. Judgment for defendant. Plaintiff brings error.

Assumpsit in justice’s court by Charles B. Ensign against Frank M. Fogg on a promissory note.- From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>1. Contracts — Public Policy — Trial—Cross-Examination—Physician and Patient.</p> <p>Since an agreement between defendant’s family physician and a surgeon called in for the purpose of an operation, that the surgeon, should divide his fees with the physician, is against public policy and void, in a suit for the expense of the operation, defendant was entitled to wide latitude in cross-examination of plaintiff, and was entitled to show a tacit understanding, as claimed, growing out of previous dealings in similar cases between the two practitioners.</p> <p>2. Physicians and Surgeons — Contracts—Assumpsit.</p> <p>In an action by a surgeon as plaintiff for services performed in certain operations on defendant and his daughter, the court should have given a request preferred by defendant, that the plaintiff could not recover for services of defendant’s family physician who assisted in the operations and who called plaintiff in to perform them, under an express arrangement or tacit understanding to divide the fees, to be charged by plaintiff; and a judgment that might, under the court’s charge, have included the value of such services, was erroneous, since the other medical advisor, who was not a witness or party to the case, could not be bound or estopped, and might bring a separate action for his services.</p>

Bill by Mary E. Parkinson against Charles A. Parkinson for separate maintenance. From an order overruling a demurrer to the bill of complaint defendant appeals. ■

<p>1. Customs and Usages — Evidence—Sufficiency.</p> <p>Testimony of a carpenter and cabinet maker, who did not have general knowledge, of a custom in the community to use a guard on a universal saw, and who gave testimony covering merely his experience, should have been withdrawn by the court from the consideration of the jury, by an instruction that there was no competent evidence of a custom in that vicinity to use guards on such machines, in a personal injury action against. his employer.</p> <p>2. Master and Servant — Assumption of Risk.</p> <p>Where plaintiff had used the saw at which he was injured on occasions previous to his injury, and knew how to operate it, the court erroneously instructed the jury that there was no contract of hire to do the machine work; plaintiff assumed such risks as were or ought to have been obvious to him, in the exercise of reasonable care.1</p> <p>,3. Same — Defective or Unguarded Machinery — Risks Assumed —Negligence.</p> <p>Where defendant claimed and ofEered evidence tending to prove - that its superior servant had told the plaintiff to lower the saw, and that plaintiff had failed to comply with the instructions, defendant was entitled to have its request given, that if plaintiff was hurt because he did not lower the saw, and the other facts were found as claimed by the defense, he could not recover.</p> <p>A. Same — Obvious Defects — Sawdust.</p> <p>Upon testimony having a tendency to show that an accumulation of sawdust under the machine might have caused plaintiff’s injury, the court did not err in refusing to instruct the jury that plaintiff could not recover on that claim, since it appeared that he was not the regular operator of the saw.</p>

<p>Error to Presque Isle; Emerick, J.</p> <p>Assumpsit by the National Surety Company against Fred O. Grant for money had and received. Judgment for defendant. Plaintiff brings error.</p>

Bill by Sarah I. Ultz against Charles Upham and others for the construction of a deed. From a decree for complainant, defendants appeal.

Exceptions before sentence from Ingham; Wiest, J. William Smith was convicted of selling intoxicating liquor to an habitual drunkard contrary to statute.

<p>1. Master and Servant — Employment—Negltgence—Evidence.</p> <p>A verdict for injuries sustained by plaintiff, wbo claimed be was burt while in tbe employ of defendant corporation, is affirmed on bis testimony tending to show tbat be was employed by defendant’s president and another agent, and that defendant admitted tbe existence of tbe relation in a certain letter or exhibit, though defendant offered proofs to show that be was in the service of an independent contractor. Tbe evidence presented a question of fact for tbe jury.</p> <p>2. Same — Tbiai>-Argument.</p> <p>Where plaintiff’s counsel, in his argument to the jury, said that if they thought plaintiff was entitled to recover, he believed they would take the burden of his support off the taxpayers of the county and place it upon defendant, where it belonged, and no ruling on the objectionable language was secured from the court, whose attention was not directed to it, a new trial was correctly denied on motion of defendant alleging the improper conduct of counsel.</p> <p>3. Same — Personal Injuries — Termination of Employment.</p> <p>Nor was it erroneous to instruct the jury that if, as plaintiff claimed, he was engaged by the president of defendant company, who was also general manager, and received his pay from the corporation, and, so long as he worked there, he had no notice or information that his employment had terminated or changed to that of and under an independent contractor, the relation of employee and’ employer continued to exist.</p> <p>4. Same — Charge—Inspection—Mines and Mining.</p> <p>In charging the jury relative to the duty of plaintiff’s employer to inspect the face of the cliff which the men were engaged in blasting, the court correctly instructed them that it was the custom after a blast was fired to examine the face of the cliff and warn any of the workmen who might undertake to work at or near the place of the blast or within dangerous proximity thereto, before defendant had inspected it, and that under the undisputed evidence the plaintiff had received no warning on the occasion of the accident and the charge was not misleading or open to the objection that it left the jurors to infer that a custom had prevailed to inspect the entire face of the cliff, instead of the portion likely to be affected by the blast.</p> <p>5. Same — Weight of Evidence — New Trial.</p> <p>A verdict must be clearly against the great weight of the evidence to require the Supreme Court • to reverse the decision of the circuit judge in denying a motion for a new trial.</p>

<p>1. Trial — Cross-Examination — Recross-Examination — Marriage — Evidence.</p> <p>On recross-examination in a negligence case, defendant’s counsel was rightly permitted to ask plaintiff about her marriage and to show that it was a common-law relation, where he had been prevented from inquiring into the matter in his cross-examination, hut plaintiff’s attorney had shown on redirect that she was recognized by the courts in certain litigation as the common-law wife of a decedent.</p> <p>2. Witnesses — Cross-Examination.</p> <p>The extent of cross-examination to show the true character of a witness, being left mainly to the discretion of the trial court, there was no prejudicial error in permitting defendant’s counsel to show that plaintiff had conducted a house of doubtful reputation. The examination was not open to the objection that counsel was attempting to impeach the witness by showing unchastity.</p> <p>3. Negugence — Damages—Injuries to Person.</p> <p>Evidence that plaintiff, who sustained injuries in boarding a street car, had at one time lived in a house of ill repute, but had suffered no infection or other disease from which her injuries might have arisen, was insufficient to justify the court in charging the jury that plaintiff could not recover if her former mode of life and not the fall caused the condition from which she suffered.</p>

Bill by Frank Gorman and others against the Patrick Hirsch Company, the Toledo, Ann Arbor & Detroit Railroad Company and others for the enforcement of mechanics’ liens and other equitable relief. On petition of James L. Hosier and other creditors for distribution of funds derived from a sale under the order of the court a decree of distribution was entered. Defendant railroad company, certain intervening creditors and complainants appeal.

Bill by the Pittsburgh Plate Glass Company against the Charles Klein Company, Gertrude M. Baldwin, the Detroit Lumber Company, and others, for the enforcement of a mechanic’s lien. From a decree for complainant and other lienors, said Baldwin and the Detroit Lumber .Company appeal.

Assumpsit in justice’s court by Walter Carver against Gustow Bieleke for rent. From a judgment for plaintiff defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.

Assumpsit by Fred R. Eaton and Bernice E. Eaton against Chauncey Hope for breach of warranty in the sale of a mare to plaintiffs. Judgment for defendant. Plaintiffs bring error.

<p>Error to the recorder’s court of the city of Detroit; Connolly, J.</p> <p>Chauncey W. Hammond was convicted of larceny.</p>

<p>1. Mandamus — Equity—Pending Suit.</p> <p>On mandamus to compel the holding of a special election, as appointed by the charter commission of the city of Saginaw, the remedy will not be withheld because another suit in equity is pending wherein the validity of the “home rule” statute is attacked, the chancery court having issued no injunction or restraining order to' prevent proceedings thereunder.</p> <p>2. Same — Municipal Corporations — Elections.</p> <p>The claim of respondents that there is insufficient time to comply with all the statutory requirements is not a defense, but the provisions as to time for registration, etc., not being mandatory in their character, respondents will he compelled to act as near as may he in accordance with law.</p>

Assumpsit by Edward Young and wife in the name of the people of the State of Michigan against George H. Reissman, principal, and Joseph Nederlander, surety, on the bond of Reissman as a notary public. Judgment for plaintiff. Defendant Nederlander brings érror.

<p>1. Evidence — Negligence—Customs and Usages — Machinery— Children — Duty to Guard Machinery.</p> <p>On the trial of a personal injury action, wherein plaintiff claimed that defendant neglected to guard or protect one of his pulleys, used in moving a building, and that a child of two years caught his hand in it as a result of defendant’s negligence, testimony that defendant employed the usual appliances of persons moving buildings, was not incompetent or inadmissible in evidence.</p> <p>2. Same — Personal Injuries — Infancy.</p> <p>The custom of defendant’s employees -in protecting children was not a proper subject of testimony: the error committed in receiving such, evidence was not, however, prejudicial, where the witnesses testified in detail what they did on the day of the accident to protect children.</p> <p>3. Same — Appeal and Error.</p> <p>And any error that the court may have committed in receiving testimony that the infant was in the charge of a ten-year old boy, who said he lived with the family to care for the children, was cured by the charge of the court that plaintiff was not chargeable with contributory negligence on account of his extreme youth, and that the negligence of his parents could not be imputed to him.</p>

Assumpsit by George Dahrooge and Maggie Dahrooge against the Rochester-German Fire Insurance Company upon a policy of insurance. Judgment for defendant on a verdict directed by the court. Plaintiffs bring error.

'- Assumpsit by the People of the State of Michigan on relation of Roger I. Wykes, attorney general, against the Quincy Mining 'Company for certain taxes. Judgment for plaintiff. Defendant brings . error.

Bill by John F. Quigley and wife against Gustave A. Wolf for an injunction to restrain the defendant from foreclosing a mortgage by advertisement. From a decree for defendant, complainants appeal.

Case by Frances Wisniewski, administratrix of the estate of Ignatz Wisniewski, against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent killing of plaintiff’s decedent. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Assumpsit by the Fidelity & Deposit Company of Maryland against William H. Hibbler and Frank B. Hibbler for a loss sustained under an indemnity bond. Judgment for defendants. Plaintiff brings error.

Bill by Willard H. Face against Eugene H. Hall, Clarence M. Hall, and Blanche R. Mott for cancellation of an exchange of property. From a decree for complainant and in favor of defendant Mott, defendants Hall appeal.

Albert L. Williams presented a claim against the estate of Anna Johnson, deceased, for breach of a covenant in a deed. From the allowance of the amount claimed, Philip W. Kniskern, administrator, appealed to the circuit court. Judgment for claimant. Defendant brings error.

Bill by Enos L. McMillan and Neil McMillan, Jr., against Theodore Miller and others. From an order sustaining defendants’ demurrer to the bill of. complaint, complainants appeal.

<p>Negligence — Contributory Negligence — Street Railways.</p> <p>In an action for personal injuries sustained by plaintiff in driving bis automobile across defendant’s tracks without observing a lighted car which collided with the motor car, evidence held, to warrant the trial court in directing a verdict for defendant. because of plaintiff's contributory negligence.</p>

Case by Edward B. Nelson against the LeszczynskiClark Company, John G. Clark and John Ryan for the recovery of money paid under duress. Judgment for plaintiff. Defendants bring error.

Case by Victor Molin against the Wisconsin Land & Lumber Company for personal injuries. An order sustaining defendant’s demurrer to the declaration is reviewed by plaintiff on writ of error.

<p>1. Master and Servant — Trial—Charge.</p> <p>On the trial of an action for injuries sustained by a miner in defendant’s employ, the court did not err in stating to the jury the claim of plaintiff in detail, in part as follows: That plaintiff claimed he was working in a</p> <p>stope with a partner; that the mine was working a day and night shift; that the plaintiff and another employee were running a drilling machine, and the rock was being excavated from between other strata of stone, which were known as the hanging wall and foot wall; that it was not part of plaintiff’s duty to put in timbers and if they considered such work necessary to support the wall the men applied to the shift boss who was the proper person to cause the timbers to be put in by workmen employed for that purpose; that plaintiff called the attention of the shift boss to a point that looked dangerous and told the boss that plaintiff thought it ought to be timbered; that the place, in fact, needed support, and the boss who examined it told plaintiff he would send men to do it either that afternoon or the next day and directed plaintiff not to bar down any more rock from the place because they would make more descend; that on the following Monday when plaintiff went to work he again complained of the danger to the shift boss who informed him that he would have the place timbered as soon as possible and for plaintiff to go to work, he would be all right; the plaintiff relying on his promise and' assurance, etc., the court also stating the claim of defendant and informing the jury that they were the sole judges of the facts. The charge was not improperly argumentative.</p> <p>2. Trial — Leading Questions.</p> <p>■ No reversible error was committed in permitting his attorney to ask leading questions of the plaintiff who was a foreigner and understood English with difficulty. The ruling was a matter for the discretion of the trial court.</p> <p>3. Master and Servant — Mines and Mining.</p> <p>Although a specified danger is patent and is known to the servant, the master may be liable for injuries resulting therefrom if he has lulled the servant into a sense of security by insisting that there was no danger, or promising to remedy it. And, accordingly, if the Injured employee regarded the hanging wall as so dangerous that it needed timbering to make it safe, but did not regard the danger as so imminent as to justify him in disregarding the assurance and direction of his superior servant, he was entitled to recover:1</p>

<p>Appeal from Washtenaw; Kinne, J.</p> <p>Bill by George J. Feldkamp against Christian Ernst for an injunction. From a decree for complainant, defendant appeals.</p>

<p>Mandamus by Ernest E. Pratt and another against Orien S. Cross, Allegan circuit judge, to compel respondent to quash, a writ of capias ad respondendum.</p>

Mandamus by Jennie Coatsworth against P. J. M. Hally, one of the circuit judges of Wayne county, to compel the respondent to set aside an order quashing service of declaration in an action commenced by relator against one George Jasperson.

Case-made from Delta; Flannigan, J. Assumpsit by Eva Rousseau against the Brotherhood of American Yeomen on a benefit certificate. Judgment for plaintiff on a directed verdict. Defendant brings error.

Emil Gumtow and others presented for probate the last will of August Foerster, deceased. Anna Janke, Marie Remus, and Gustave Foerster contested the allowance of such instrument. From an order denying the petition proponents appealed to the circuit court. Judgment for proponents, contestant Janke.brings error.

Assumpsit in justice’s court by John Patterson against Chester Gore for breach of warranty. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Bill by Roland A. Nichols against John Burcham, Albert Burcham and Mott Hicks for the specific enforcement of a contract to convey land. From a decree for complainant, defendant Hicks appeals.

<p>Cancellation of Instruments — Life Estate — Deeds—Contracts —Consideration.</p> <p>Although the finding of the circuit court in chancery that the defendants obtained a valid title to complainants’ farm by a deed conveying the land subject to a life estate in complainants and in consideration of their support upon the premises, is affirmed, the decree should be modified so as to permit complainants, at their election, to waive the right to support on the premises, retaining the use thereof as life tenants.</p>

Bill by Frank B. Griffin against Gertrude F. Griffin for divorce. Ida Evans was appointed guardian ad litem. From a decree for complainant, defendant appeals.

Bill by Frank Weiland and others against Morris P. Hogan and others for an injunction and other relief. From a decree for complainants, defendants appeal.

Mandamus by the Baltic Mining Company and others against Patrick H. O’Brien, circuit judge for the county of Houghton; to compel respondent to vacate an order dissolving a preliminary injunction.

Case by John Buck against the Western Concrete Bridge Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Case by Charles Clark, administrator of the estate of William F. Clark, deceased, against William Goldie and William Goldie, Jr., copartners, for the unlawful killing of deceased. Judgment for plaintiff, and defendants bring error.

Assumpsit by Jacob L. Marx and Eugene H. Kopple, copartners, as B. Marx & Son, against Johanna King, executrix of the estate of Joseph King, deceased, for goods sold to decedent. Judgment for defendant. Plaintiffs bring error.

<p>Error to Gogebic; Cooper, J.</p> <p>Case by Jacob Panela against the Castile Mining Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

<p>Error to Gogebic; Cooper, J.</p> <p>Case by John Moronen against Patrick McDonnell for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.</p>