Volume 184 — Michigan Reports

<p>Error to Livingston; Miner, J.</p> <p>Case by Gertrude E. Wells against the Ann Arbor Railroad Company for personal injuries. Judgment, for plaintiff. Defendant brings error.</p>

<p>Error to Genesee; Wisner, J.</p> <p>Case by May Beagle against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the Cheboygan Paper Company against Morris Eichberg and another for goods sold and delivered. Judgment for plaintiff. Defendants bring error.

Mandamus by John P. Hayes against Oramel B. Fuller, auditor general of the State of Michigan, to require the respondent to issue a warrant upon the State treasurer for the salary of said Hayes as county agent of Kent county.

<p>Error to Livingston; Miner, J.</p> <p>Case by Mildred Sanford against James Houghton for slander. Judgment for plaintiff. Defendant brings error.</p>

Case by Adelbert M. Seger against the Northwestern Cooperage & Lumber Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Bill by Anthony Fassbender against Patrick M. Donohue and Hannah Gaboury for a decree in aid of execution. From a decree granting partial relief complainant and said defendant Gaboury appeal.

Bill by Sarah Guinon against Matthew Guinon and another to cancel a deed to defendant and life lease back to complainant, later modified by the written contract of the parties. From a decree for the defendants, complainant appeals.

Assumpsit by John L. Kinne against Jacob Clever, in justice’s court. The cause was certified by the justice to circuit court where judgment was rendered for defendant and costs given to plaintiff. Defendant brings error.

Assumpsit by Géorge Newton and another against the Consolidated Construction Company and Illinois Surety Company upon a surety bond securing the performance of a construction contract. Judgment for plaintiffs. Defendant Illinois Surety Company brings error.

Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J. Bernhardt Jacobs was convicted of obstructing an inspector of the dairy and food department in attempting to inspect the house of correction of the city of Detroit.

Jane E. Hopkins presented a claim against the Michigan Sugar Company for compensation for the death of her husband. An order granting compensation is reviewed by contestant on certiorari.

<p>1. Insurance — Mutual Benefit Policy — Husband and Wife— Divorce — Effect of Divorce Upon Beneficiary’s Rights.</p> <p>Where decedent was a member of a mutual insurance association, and after obtaining his certificate he returned home and gave it to his wife, stating that it was hers and she would have to keep it up, and where the wife continued to pay the dues for a number of years until she obtained a divorce from her husband, when she discontinued the payments, and where the insured after-wards married again and procured a reinstatement of his policy in favor of the second wife, the original beneficiary did not secure such vested rights in the policy, by virtue of the arrangement between herself and husband, as to prevent change of beneficiary under the rules of the society permitting such change at the instance of the insured member.</p> <p>2. Same — Mutual Benefit Association — Change of Beneficiary.</p> <p>The regulation of a mutual benefit association permitting members to change the beneficiary in their certificate or policy is a valid and reasonable one, and the fact that the original beneficiary had possession of the certificate would not affect the right of the insured to make the change so as to substitute his second wife in her place.</p> <p>3. Husband and Wife — Contracts — Insurance — Undue Influence.</p> <p>There is no rule of law or of morals which makes it unlawful or improper for a wife to use her wifely influence for her own benefit, or for that of others, unless she acts fraudulently or extorts benefits from her husband when he is not in a condition to exercise his faculties as a free agent.</p> <p>4. Same — Divorce.</p> <p>A divorced wife, after the second marriage of an insured member of a mutual beneficiary association, was not a member of his family so as to entitle her to claim the right of a beneficiary.</p>

<p>Error to Delta; Flannigan, J.</p> <p>Case by Otto Nelson against the Michigan Tanning & Extract Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by George C. Webber against Selden S. Miner, presiding judge of the circuit court for the county of Genesee, to require the respondent to vacate an order of sale of the property and franchise of the Fenton Power & Light Company.

<p>Error to Marquette; O’Brien, J.</p> <p>Case by Melvin Webber against James H. Billings for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by the Sandusky Grain Company against Watson Beach, judge of the circuit court for the county of Sanilac, to require respondent to issue an injunction.

Assumpsit by the Bank of Tustin of J. M. Perry & Company against the township of Burdell for the recovery back of taxes paid under protest. Judgment for plaintiff. Defendant brings error.

Clair; Law, J. Bill by Anna T. Miller and another as administrator against Roxana Peter and others, administrators of the estate of William Petér, deceased, for an accounting and to declare a deed to be a mortgage. The case was heard and an appeal taken by complainant to the Supreme Court which remanded the cause for an accounting. Miller v. Peter, 158 Mich. 336 (122 N. W. 780). From a decree for defendants complainant Albert Miller, administrator, appeals.

<p>1. Mortgages — Trust Deeds — Foreclosure — Cancellation of Instrument.</p> <p>Complainant exchanged his farm for property owned by the defendants in Chicago. Both properties were subject to mortgages. As a part of the consideration defendants executed promissory notes for one thousand dollars payable monthly. At the end of six years, defendants having paid upwards of seven hundred dollars, complainants filed a bill to foreclose the trust mortgage which had been executed as a part of the transaction to secure the payment and performance of the exchange contract. Defendants claimed that they executed the trust instrument, if at all, in ignorance of its contents; that the attorneys conspired together with complainants to defraud them and asked that the court cancel the trust deed. There was evidence tending to support complainants’ claim, on review of which, held, that the trust deed was understanding^ executed and that defendants were not entitled to the relief prayed.</p> <p>2. Foreclosure of Mortgages — Contracts — Validity — Stipulation for Attorney Fee.</p> <p>The courts of Michigan will decline to enforce a provision in a mortgage executed in the State of Illinois providing and stipulating for a solicitor’s fee of one hundred dollars if foreclosure should occur, provisions of such nature being held by the courts of this State to be contrary to public policy and therefore unenforceable.</p> <p>3. International Law — Conflict of Laws — Attorney Fees— Mortgages.</p> <p>Although, as a general rule, contracts valid in the State in which they are made are valid in the courts of any other State or country, contract provisions, which are in violation of public policy of the State in which the proceedings are commenced, are considered to be an exception to the general rule.</p>

Bill by William E. Boeing and Rudolph Ortmann, executors of the estate of Marie M. Owsley, deceased, against Joseph W. Fordney and others to correct an alleged mistake in certain written contracts and for an accounting. From a decree for defendants, complainants appeal.

Rachel Pinel presented her claim against the Rapid Railway System, a corporation, for compensation caused by the death of her son while he was employed by said company. An order denying an award of compensation is reviewed by claimant on certiorari.

Bill by Franklin E. Bushman against John J. Faltis for the specific performance of a contract for a lease and option to purchase real property. From an order overruling the demurrer to the bill of complaint defendant appeals.

Case by Sioux City Seed & Nursery Company against the Detroit & Mackinac Railway Company for damages for the closing of certain streets in the city of Alpena. Judgment for the plaintiff for nominal damages. Plaintiff brings error.

Bill by William Reid against George L. Heater and the Toledo Plate & Window Glass Company for an accounting. From a decree overruling a demurrer to complainant’s bill defendants appeal.

Assumpsit by Truman H. Newberry and another as executors of the estate of Helen H. Newberry, deceased, against the city of Detroit to recover back taxes paid under legal duress. Judgment for plaintiffs upon a verdict directed by the court. Defendant brings error.

Case by John L. Sweikhart against William A. Hanrahan for criminal conversation, alienation of affections and other alleged wrongs. Judgment for plaintiff. Defendant brings error.

Assumpsit by Clayton H. Hoffman and another against the Fidelity & Deposit Company of Maryland upon a statutory appeal bond. Judgment for plaintiffs. Defendant brings error.

Case by Millard F. Cottrell, as administrator of the estate of Ernest E. Clark, deceased, against the Michigan United Traction Company, for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

Donaíd McGraw was complained against for violating an ordinance of the city of Detroit. Respondent’s demurrer to the complaint was overruled.

George Hirschkorn presented his claim to the Industrial Accident Board against the Fiege Desk Company for injuries sustained in its employ. From an order awarding compensation contestants, Fiege Desk Company and Michigan Workmen’s Compensation Mutual Insurance Company, bring certiorari.

Proceedings in contempt by the Michigan Railroad Commission and others against the Detroit & Mackinac Railway Company and another for neglect to comply with a peremptory writ of mandamus.

Mandamus by Clarence M. Burton against Max C. Koch, treasurer of the city of Detroit, and others, to require the respondents to provide necessary ballots to submit to the electors of the city of Detroit the question whether Act No. 251, Pub.

Certiorari by John Bailey, one of the supervisors of Wayne county, against the board of supervisors of said county, to review proceedings taken by said board to organize a new township out of the township of Monguagon. Judgment for defendants. Plaintiff brings error.

Bill by the civil service commission of the city of Detroit against George Engel, city comptroller, to enjoin defendant from paying the salary of one Robert ■E. Lee. From a decree for the defendant, complainant appeals.

Quo warranto by Grant Fellows, attorney general of the State of Michigan, on the relation of Peter J. Danhof, against Joseph Renihan, to test the title of respondent to the office of judge of the superior court of Grand Rapids.

Assumpsit by Paul Wenzel against Felix F. Kieruj for the recovery of the value of labor and materials supplied to the defendant. Judgment for plaintiff. Defendant brings error.

Case by William Wells as administrator of the estate of Peter Jenison, deceased, against the Grand Rapids & Indiana Railway Company for the unlawful killing of said intestate. Judgment for plaintiff. Defendant brings error.

<p>1. Indemnity —• Insurance — Master and Servant — Compromise and Settlement.</p> <p>Where the defendant was insurer of plaintiff’s employees in the conduct of its laundry business, and the insured compromised a claim hy one of the employees who was injured working at a mangle, and who claimed that her injury was due to a defect in the feeder of the machine, the question whether the machinery was so dangerous to life and limh as to come within the provisions of Act No. 285, §11, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4019), forbidding females under the age of twenty-one years from being placed in employment dangerous to life and limb, and the point was properly submitted to the jury, in an action on the indemnity policy.</p> <p>2. Same — Trial—Minors.</p> <p>Held, also, that it was not erroneous to admit the report, prepared by defendant’s inspector, of the accident soon after the same, stating that there was no especially dangerous work connected with the business; that there were no dangerous points about the machinery left unprotected; and that the law relating to employment of minors was observed in plaintiff’s factory.</p> <p>3. Same — Trial—Charge.</p> <p>And held, that while defendant’s requests to charge were not submitted in their language, and it is objected that the points so presented were not given sufficient prominence by the court in his charge, the general charge was sufficient in this particular, fairly covered the case, and gave reasonable prominence to the issue.</p>

<p>1. Judgment — Res Adjudicata — Husband and Wife — Descent and Distribution — Pbobate Court.</p> <p>In a suit to quiet title to real property the complainant, who claimed title through the widow of the father of defendants, who had been married twice and who, defendants contended, had not been divorced from his first wife, was not barred from recovery by an order of the probate court in proceedings to determine the heirs, finding that the defendant children of decedent were the owners of real estate. 2 Comp. Laws, §§ 9469-9471 (4 How. Stat. [2d Ed.] §§ 11180-11182).</p> <p>2. Same.</p> <p>The order determining the heirs of deceased was not conclusive under sections 9469-9471 (4 How. Stat. [2d Ed.] §§ 11180-11182), which merely provides that a finding by the probate court shall be prima facie evidence of the facts so found; orders made pursuant to this section do not affect vested rights.</p> <p>3. Deeds — Estate in Common — Joint Tenancy — Estoppel—Parol Evidence Rule.</p> <p>Proof by parol that decedent and his joint grantee under a deed which conveyed property to two as husband and wife were not in fact legally married, was inadmissible in behalf of the heirs of the husband claiming under it and charging that the deeds in fact conveyed an estate in common instead of a tenancy by the entirety.</p> <p>4. Evidence — Parol Evidence Rule — Deeds—Marriage.</p> <p>By the principles of the common law the legal' effect of unambiguous words of a deed could not be contradicted by parties or their privies in any collateral matter by parol evidence and the rule is applicable to language in a deed whereby the grantees are described as husband and wife.</p>

Case by Edmund Blair against the Seitner Dry Goods Company for personal injuries sustained by his wife. Judgment for plaintiff. Defendant brings error. It is the claim of plaintiff that because of the negligence of defendant his wife sustained personal injuries. He sued to recover damages for his resulting injury.

Case by Charles W. Schneider against C. H. Little Company, a Michigan corporation, for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error. A statement of the facts (of what the testimony for plaintiff tended to prove) is taken from appellant’s brief, substantially as it there appears: The plaintiff is 50 years old, and has been engaged in the occupation of a tile setter for several years past.

Bill by William B. Lannin against William G. Lynn and Sarah F. Cochrane for conspiracy to defraud and for an accounting. From an order overruling a demurrer to the bill of complaint, defendants appeal.

Case by Lena Broudy as administratrix of the estate of Jacob Broudy, deceased, against the Detroit, Jackson & Chicago Railway, for the wrongful killing of decedent. Held: and now hold, that I don’t think there is evidence in this case which justifies me in submitting this matter to the jury; and therefore, Mr. Clerk, you may take the verdict of the jury in favor of the defendant.”

<p>Error to Houghton; O’Brien, J.</p> <p>Case by Emil Juntunen against the Quincy Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by Fredrika Moeller against Lena M. Notter for the recovery back of money paid to the defendant. Judgment for plaintiff. Defendant brings error.

, presiding. Case by Mike Mesich against the Tamarack Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Case by the Pennsylvania Fire Insurance Company against the Ann Arbor Railroad Company for negligent operation of its locomotives and the setting of a fire. Judgment for plaintiff. Defendant brings error.

Bill by Frank Marsac against Paul De Ford and Electa De Ford to cancel certain deeds and conveyances. Before his death complainant assigned his rights to William Marsac, who was substituted as party complainant. From a decree for defendants, complainant appeals.

Elizabeth Stetson presented to the probate court of Kent county a petition praying that a certain part of the income and property of the estate of George W. Stetson, deceased, be ordered transferred to her by the executor. From an order denying the prayer of the petitioner, she appealed to circuit court, which affirmed the order. Petitioner brings certiorari.

<p>Error to St. Clair; Law, J.</p> <p>Assumpsit by Catherine Johnson against the Fidelity & Casualty Company of New York upon a policy of accident insurance. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by Barbara Homann against the Allgemeiner Arbeiter Bund of the State of Michigan upon a certificate of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>1. Municipal Corporations — Bridges—Townships—Negligence— Highways and Streets.</p> <p>The liability of a township for failure to maintain a bridge in proper repair pursuant to the requirements of Act No. 283, Pub. Acts 1909; 2 How. Stat. (2d Ed.) § 2463, depends upon notice to the township, either actual or imputed, that defects, in fact, existed in the bridge which were the ultimate cause of plaintiff’s alleged injuries: it is not enough that the officers of the township might have discovered the defect or ought to have discovered it.</p> <p>2. Same — Trial—Charge.</p> <p>In a negligence action against defendant township for injuries which were sustained by plaintiff because of a defect in the flooring of the bridge which plaintiff attempted to drive across, defendant was entitled to an instruction that, to chargé the defendant township with constructive notice, plaintiff must establish by a preponderance of the evidence that the bridge was not reasonably safe and fit for travel on the date of the accident, and that its unsafe condition was such as to be obvious and to attract attention of persons passing over it; also that the township permitted the structure to remain in this condition for such an unreasonable length of time without repairing it, that it must be presumed notice of the defect had come to the officials.</p> <p>3. Same — Trial—Charge—Requests.</p> <p>The court also erred in modifying defendant’s requests to charge in such a way as to permit the jury to find that the officers of the defendant township ought to have seen the alleged defect or should have discovered it in the exercise of their duty, where no evidence appeared in the record tending to prove that any officer saw the defect or was present when the same was clearly apparent or must have been seen.</p>

Case by Fred W. Boesler, Jr., by his next friend, against the Copper Range Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.

Case by Mike Zap against the Newport Mining Company for personal'injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.

<p>1: Mortgages — Corporations — Promoters — Fraud — Fiduciary Relation.</p> <p>Where complainant owned real, property which was suitable for the manufacture of brick and made a contract with a promoter to convey his interest to the promoter, who in turn executed an assignment of his interest to the proposed corporation which the promoter attempted to and did organize, and where it was alleged that in the interest of certain stockholders of the company the promoter made untrue representations as to its value and the amount which had been subscribed to the stock, the representations being contained also in the articles of incorporation and tending to show that a majority of the capital stock had been subscribed and paid in, although in fact the promoter had only an agreement with complainant to transfer and convey the property to him or his assigns upon the payment of the price, evidence considered, and held, insufficient to establish complainant’s complicity in the alleged fraud.</p> <p>2. Corporations — Vendor and Purchaser — Contracts—Assignments.</p> <p>Where defendant corporation, in order to secure funds with which to carry on its business upon the security of property that complainant had transferred, or agreed to transfer, to it, executed a mortgage for four thousand dollars without any action of the shareholders so as to enable complainant to assign the mortgage and procure a loan of the amount agreed upon, the mortgage was valid without the action of the stockholders: borrowing funds for ordinary needs of a corporation does not require such action, and the execution of the mortgage to secure the loan by the proper officers of the corporation constituted a valid transaction.</p>

Case by Margaret Breen, as administrator of the estate of William J. Breen, deceased, for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Bert H. Grove presented his claim against the Michigan Paper Company for compensation to the Industrial Accident Board, which granted the award. Contestant and the Fidelity & Casualty Company of New York, its insurer, bring certiorari.

<p>1. Evidence — Landlord and Tenant' — Lease — Parol Evidence Rule.</p> <p>Where plaintiff leased premises of the defendant under a written contract containing the usual covenants, and on the trial of an action for damages because of the eviction of the tenant the lessor claimed that at the time of executing the lease she informed the plaintiff that an action was pending relating to the possession and control of the premises and that the plaintiff stated that he would take his chances, the evidence was inadmissible and the trial court committed reversible error in admitting the proof offered for the purpose of varying the terms of a written lease.</p> <p>2. Damages — Landlord and Tenant — Lease — Measure op Damages.</p> <p>As one of the elements of damages for breach of the covenant for quiet enjoyment, the lessee was entitled to recover his expenses for making alterations in the premises that were necessary to fit them for the purpose of a confectionery and tobacco shop, the purpose which the parties contemplated when the contract was entered into.</p> <p>3. Same — Covenants op Lease — Quiet Enjoyment.</p> <p>The damages recoverable for breach of the lessor’s covenant for quiet enjoyment include not only those which arise out of the difference between the rent and rental value of the property leased, but also the actual and necessary expenses, contemplated by the parties at the time of making the contract, of making the same suitable for the use which the tenant intended. It was erroneous for the trial court to limit the amount of recovery to the expenditure which might have been expressly agreed upon between plaintiff and defendant.</p>

Case by Maud Sturgis, as administratrix of the estate of Carl I. Sturgis, deceased, against the Mt. Clemens Sugar Company for the unlawful killing of the plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Case by Roy James, by next friend, against Marion Shores for slander and malicious prosecution. Judgment for plaintiff. Defendant brings error.

Assumpsit in justice’s court by Abram Knowlson against James Friar for money due plaintiff. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Bill by Alton J.- Hager against Frank C. Schliess and others to foreclose a mechanic’s lien. Defendants filed a plea to the bill. Plaintiff entered a replication, which the court struck from the files after hearing the testimony in support of the plea which the trial court held was insufficient in law. Defendants elected to abide by their plea and appeal.

Kate Vereeke presented her claim for compensation for the accidental death of David Vereeke while he was employed by the city of Grand Rapids. An order awarding compensation is reviewed by claimant upon certiorari.

Case by Emilie A. Schuetz, by next friend, against Fred Van Orman and another for personal injuries. Judgment for plaintiff. Defendants bring error.

<p>1. Evidence — Assault and Battery— Trespass vi et Armis — ■ Hearsay.</p> <p>Testimony of the plaintiff, in an action for assault and battery, tending to show statements made to a justice of the peace after the alleged occurrence and after plaintiff had traveled a considerable distance from the place thereof, was incompetent and hearsay, and should have been struck out upon motion of the defendant.</p> <p>2. Damages — Assault and Battery — Probable Result of Injury.</p> <p>Damages for personal injuries sustained as a result of an assault should be limited to such as are reasonably certain to result from the injury. The court should not permit the jury to award damages for such results as are only reasonably probable.</p> <p>3. Same — Permanent Injuries — Medical Expert — Opinion Evidence.</p> <p>In an action for. assault the court should have instructed the jury, as requested by the defendant, that there was no evidence of any permanent injury to the head of plaintiff, whose physician, who gave testimony in support of his claim, did not testify that the condition was such that a permanent injury to plaintiff’s head or ears would be likely or reasonably certain to develop.</p>

Bethany A. Porrett presented a claim against the estate of Andrew J. Lauer, deceased, for the amount of a judgment in an action of tort. The claim was disallowed by the commissioners, and claimant appealed to the circuit court, which entered judgment for claimant. Defendant brings error.

Replevin in justice’s court by Moses Solomon against Albert G. Stewart for two cows. From a judgment for defendant plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

The city of Detroit filed a petition, in a suit to dissolve the Hecla Company, for which a receiver had been appointed under an order of the court, to compel such receiver to pay taxes alleged to be due upon personal property of the corporation. Judgment for defendant. Petitioner appeals.

, J. Bill by Charles T. Reed and others, a copartnership, against Alfred Brown and others to set aside alleged fraudulent conveyances and in aid of execution. From a decree for defendants, complainants appeal.

Assumpsit by David Walker against the village of Brooklyn to recover back taxes paid under protest. Judgment for defendant. Plaintiff brings error.

Mrs. M. V. Edgar presented a claim against the estate of G. Franklin Parsell, deceased, for certain sheep and their increase. The commissioners on claims rejected the claim in part and claimant appealed to the circuit court. Judgment for defendant upon a directed verdict. Claimant brings error.

Assumpsit by Harry Wilson, as trustee in bankruptcy of Elizabeth A. Humphrey, against the Van Burén County Farmers’ Mutual Fire Insurance Company to recover insurance on the goods of said bankrupt. Judgment for defendant on a directed verdict. Plaintiff brings error.

Mandamus by Alfred R. Locke, prosecuting attorney of the county of Ionia, against Frank D. M. Davis, judge of the circuit court, to require respondent to set aside an order quashing the information in a prosecution against one D. J. Healey.

<p>Error to Washtenaw; Kinne, J.</p> <p>Assumpsit by Martha Simpson against the Ohio Farmer’s Insurance Company. Judgment for plaintiff, defendant brings error.</p>

Clarence E. Steere was convicted of deserting his wife. In September, 1914, respondent, who had been brought from the State of Illinois in extradition proceedings, was informed against, charged with deserting and abandoning his wife on October 13, 1913, at Mason township, Cass county, Mich., without providing necessary and proper shelter, food, care, and clothing for her.

Assumpsit in justice’s court by Central City Lumber Company against Andrew Weber for lumber and materials furnished to defendant. From a judgment for defendant plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>1. Master and Servant — Electricity — Warning Servant — Mines.</p> <p>Plaintiff, a young man of eighteen years of age, was employed by defendant mining company as a laborer and in the course of his employment, which was work upon the ground, he was ordered by his superior to climb a steel tower, upon which a crew were stringing electric Wires, for the purpose of releasing two of the wires upon the cross arm. After he had safely released one of the Wires he attempted to raise the second, upon which a team was drawing, above the arm, and was forced against the insulator, breaking his shoulder. He alleged in his declaration that the defendant failed to instruct him properly in the performance of his duties, and that he was required to go from the work which he was employed to do on the ground up the steel tower and to do work in which he had not been sufficiently instructed, and that defendant had failed to advise or warn him of the dangers connected with such employment and was negligent in failing to give proper signals and directions to other employees to loosen the wires and render his work safe: held, that evidence tending to sustain plaintiff’s claim presented a question of fact for the jury relative to the negligence of the defendant and questions of contributory negligence and assumed risk.</p> <p>2. Same — Assumed Risk.</p> <p>Where the servant understands the dangers of the increased risk or of the risks attendant upon the occasional act of servants, and he performs the act or attempts so to do, the master is not liable for any injury which he may sustain upon the sole ground of increased risk, or risk attending the temporary employment.</p> <p>3. Same.</p> <p>Where instructions to a servant are required, the instruction, to be adequate, should point out, not only the nature of the risk, but also the proper method of avoiding it, since the purpose of advising the servant how to do work that is accompanied by danger is to secure not only its performance, but his safety.</p> <p>4. Same — Fellow-Servants—Negligence.</p> <p>Nor could the claim of plaintiff be disposed of on the theory advanced by counsel for the defendant that the proximate cause of the accident was the failure of plaintiff’s foreman, who had immediate supervision of his work, to direct another servant to release the taut wire which a team was pulling on by decreasing the tension upon it.</p> <p>5. Same — Assumption op Risk — Change op Employment.</p> <p>Where the servant is engaged in doing work that he was employed to perform and is called upon to do work of a different kind, he assumes the obvious dangers incident to his changed employment.</p> <p>6. Same — Contributory Negligence.</p> <p>Held, also, that whether plaintiff was at fault in inferring that the work was going on as usual and that he could safely lift the wire and maintain his position oh the tower, fifty feet from the ground, was a question of fact for the jury.</p> <p>7. Same — Trial—Instructions to Jury — Charge.</p> <p>It was not error on the part of the court to instruct the jury under the peculiar facts of the case that if plaintiff’s assumption of risk was out of the case, the question of contributory negligence would also be out. Plaintiff was not required as matter of law to notify the foreman what conditions existed at the top of the tower or make an effort to ascertain the extent of the risk involved in lifting the wire over the arm, but if plaintiff recognized, or should have recognized and appreciated the risk of lifting the connection over the insulator, he assumed the risk: if he did not appreciate the risk it could not be said that he was guilty of contributory negligence.</p>

<p>1. Waters and Watercourses — Dams — Power Companies — Rivers — Flooding Lands- — Negligence.</p> <p>In the operation of a power dam in a river of this State the fact that the defendant owner and operator of the dam is a public utility engaged in furnishing electricity to the public, thereby becoming subject to the control of the authorities and subject to different rights and privileges from those acquired by ordinary corporations or persons in business of a similar character, was not sufficient to entitle it to flood the lands of riparian owners below its dam by discharging an unusual flow of water from its mill pond; and it could not be held, and the court did not err in refusing to charge the jury, that defendant had the right to discharge sufficient water at any time from the dam in question for the purpose of mating necessary repairs, notwithstanding damage or injury to lower riparian proprietors.</p> <p>2. Same — Riparian Rights — Reasonable Use.</p> <p>Persons or corporations who own or maintain dams acquire only the right to a reasonable use of the water in the stream subject to the rights of owners above and below them and are responsible for damages that accrue to upper or lower riparian owners from negligence in the operation of the dam.</p> <p>3. Same — Trial—Charge.</p> <p>Upon the trial of an action for negligently flooding the lands of plaintiff and plaintiff’s assignors, where the court failed to charge as fully upon the subject of what actually constituted negligence as the defendant desired, it was the duty of the defendant, if not satisfied, to present requests to instruct the jury in accordance with its views, and failing to do so it could not complain of a charge which fairly covered the general rules of negligence.</p> <p>4. Same — Trial.</p> <p>The court was not in error in refusing to charge the jury as requested by the defendant that it was the duty of the defendant to keep its waterwheels in repair and in condition to fulfill its contract regardless of the state of the water, and if the Wheels became out of repair, so as to threaten their efficiency, and it became necessary to> lower the water in the pond it had the right to discharge sufficient to lower it; that if in discharging a large volume of water in its tail race defendant had no intention to injure any person it was not liable; that it was not under obligation to hold the water at a point at or above the crest of the dam, but was absolutely entitled to discharge enough so as to maintain a constant head as demanded by its operations; that if an unusually large volume of water came into the pond and caused a freshet or discharge from their mill pond defendant had the right to allow it to escape so as to maintain a desired height or head; that the defendant was entitled to operate its wheels during high water as well as during low water, and therefore could discharge all such excess through its gates as might interfere with its operations, without incurring any liability.</p> <p>5. Same — Damages—Definition.</p> <p>Although taken by itself the definition of negligence given by the trial court to the jury in its charge that negligence consists in doing or omitting to do something which persons of ordinary prudence and care would not have done or would not have omitted to do under similar circumstances was not correct, when taken in connection with a definition and statement set forth in defendant’s request and given by the court, the error is held to have been cured so as not to require reversal.</p> <p>6. Same — Damages—Flooding Lands — Verdict.</p> <p>Defendant was not prejudiced by the action of the court in advising the jury to return a verdict for the separate amounts lost by plaintiff, or plaintiff’s assignors, together with the total amount which plaintiff was entitled to recover, unless there was ground for the claim that any amount or certain items were excessive: in the absence of such claim if there was any possible error it was not prejudicial.</p> <p>7. Same — Trial—Special Interrogatories — Jurt.</p> <p>Four special interrogatories presented by defendant to be given to the jury were not improperly refused by the court where the questions were not specific or limited to a definite time and the answers to the questions would not be controlling or conclusive; one question relating to the volume of water held properly refused because the volume of water referred to was not made clear, so that the interrogatory was ambiguous, and because interpreted in one possible way it referred to matters not in evidence.</p>

<p>1. Evidence — Carriers — Derailment — Operation op Trains— Opinions.</p> <p>In a personal injury action brought by a passenger for damages suffered in a derailment of one of defendant’s trains, plaintiff, who claimed injuries to his spine and to his back resulting in paralysis and other permanent injuries, being a practicing physician, was entitled to testify, although he admitted he became unconscious after his injury, that the cause of the loss of the use of his limbs was due to a concussion of the spine: the question did not depend upon what or how he struck, but upon the conditions which resulted from the injury to his person, the testimony tending to show that he had sufficient qualifications as a medical expert.</p> <p>2. Same — Witnesses—Conclusion.</p> <p>Testimony of a witness, who had been employed. by defendant upon a section or portion of the track on which the injury occurred, that, although he was not there at the time of the wreck, he went over the track and knew by the looks of the ties where the derailment occurred, and that the entire space there was in had condition, the ties being rotted and half of them defective, presented an issue for the jury as to the negligence of defendant, although upon cross-examination he was unable to state exactly the location of the wreck from the appearance of the ties and refused to state positively its exact location: a motion made to strike out the testimony of this witness was not improperly denied, since it clearly related to the place of the accident and to the time when the wreck occurred, and its weight was for the jury.</p> <p>3. Same — Expressions of Pain — Hearsay.</p> <p>Testimony of lay witnesses tending to show the manifestations, appearance and acts of the plaintiff after the accident, not occurring with anticipation that the witnesses would he called in the case, was properly received and was competent.</p> <p>4. Carriers — Negligence — Condition of Track — Directed Verdict — Proof of Loose Rails or Decayed Ties.</p> <p>The trial court did not err, in an action for injuries sustained by a passenger in a derailment, by refusing to direct a verdict for defendant upon evidence tbat tended to show a decayed condition of tbe ties at or about tbe place of tbe derailment and consequent loose condition of tbe rails and upon evidence tending to show tbat tbe train in wbicb plaintiff was riding was being operated at an unsafe rate of speed.</p> <p>5. Same — Degree oe Care — Question of Law and Pact.</p> <p>Tbe degree of care tbat must be observed by tbe carrier in tbe operations of its trains is a question of law for tbe court: tbe general rule is tbat carriers of passengers are required to exercise tbe bigbest degree of skill and vigilance.</p> <p>6. Same — Railroads.</p> <p>Considering tbe trial court’s instructions to tbe jury as a whole and as modified by other portions of tbe charge, it was not error for tbe court to state to tbe jury tbat it was tbe duty of defendant to exercise tbat bigb degree of care and caution wbicb tbe most prudent, careful and cautious man, engaged in similar business, exercises under tbe same circumstances, when it appeared tbat tbe court further advised the jury tbat such care must be consistent with tbe proper operation of its road to provide for tbe safety and security of plaintiff while transporting him, and tbat such care must be exercised in using and maintaining its roadbed with suitable ties so tbat they would be reasonably safe for tbe passage of passenger trains; tbe general effect of tbe charge being tbat tbe road and all instrumentalities for transporting passengers must be kept reasonably safe for tbat purpose, and there was no intention to inform tbe jury tbat defendant was an insurer of tbe safety of its passenger.</p> <p>7. Same — Instructions'—Safe Track.</p> <p>There was no error on tbe part of tbe court in charging tbe jury tbat it would make no difference whether derailment resulted from tbe spreading of tbe rails because tbe ties were .so defective that they would not bold tbe spikes or from the breaking of tbe T rail, for if they found such spreading or breaking was caused by the decayed and unsound state of tbe ties, where tbe declaration charged tbat tbe rails spread and broke and that by reason thereof tbe train went off tbe track, and where tbe plaintiff relied solely upon tbe unsound condition of the railroad ties and the charge of the court limited the jury to that specific issue.</p> <p>8. Same — New Trial — Verdict—Motions.</p> <p>Held, also, that the verdict was not against the weight of the evidence and that the damages were not so excessive as to require the court to grant a new trial.</p>

<p>1. Master and Servant — Weight of Evidence' — Negligence — Comparative Degrees.</p> <p>Evidence tending to show that plaintiff was a motorman of an interurban car which was ordered to follow a car upon the same route and which, obeying the rule of the defendant company, left the station three minutes behind the other car or section; that there was some fog which obscured the view of the motorman; that the car in advance ran past a station to which it was compelled to return to discharge passengers and that it stopped an unusual or unreasonable length of time; that plaintiff was unable to see the car in time to avoid a collision, with conflicting testimony relative to the speed of the second section: held, to sustain a verdict for the plaintiff upon motion for a new trial based upon the contention that the verdict was contrary to the overwhelming weight of the evidence.</p> <p>2. Evidence ■— Surrounding Circumstances — Negligence — Master and Servant.’</p> <p>Testimony relating to the speed of the two sections immediately prior to the collision, the length of delay of the first section at the crossing because it was compelled to back up, and as to delay in failing to leave the station after so doing, also, as to failure to throw out a fusee upon the track, the speed of the second car, and other evidence relating to the physical facts connected with the accident was material and relevant: the court did not err in the reception of the same and in submitting the case to the jury.</p> <p>3. Same — Appeal and Error.</p> <p>The Supreme Court will only reverse a judgment in reviewing the denial of a motion for a new trial when the verdict is clearly against the great weight of the evidence.</p> <p>4. Same — Expert Testimony — Witnesses—Conclusions.</p> <p>Testimony of two physicians, in a personal injury action, called to examine plaintiff for the purpose of giving evidence at the trial, that certain motions of the limb were very painful to the man. and were limited and indicated an apparent fracture was not objectionable on the ground that the testimony was incompetent as an improper conclusion.</p> <p>5. Same — Hypothetical Question.</p> <p>There was no error in declining to strike out the answer of a medical éxpert, in response to a hypothetical question whether plaintiff’s injury might have resulted from a collision in which the plaintiff was thrown some twenty feet to the ground, that the injuries to plaintiff’s hip and spine, described in the question, could have resulted from the accident.</p> <p>6. Master and Servant — Comparative Negligence — Contributory Negligence — Street Railways — Interurban Lines.</p> <p>Held, also, that there was evidence tending to establish plaintiff’s theory that his negligence was less in degree-than that of the defendant’s employees in charge of the preceding car. (Act No. 104, Pub. Acts 1909.)</p>

Bill by Germania Refining Company and the Independent Refining Company of Pennsylvania against Oramel B. Fuller, auditor general of the State of Michigan, and the State board of assessors to set aside a tax upon cars owned by the complainants. From a decree for defendants, complainants appeal.

Bill by Charles Powers against John Corry and another to set aside a tax title. From a decree for defendants, complainant appeals.

Bill by Romeyn Graham, as administrator of the estate of Adeline P. Graham, deceased, against Albert Graham and Salona Graham for an accounting. From a decree for complainant, defendants appeal.

<p>Mandamus by Hiram H. Hekkema against Nathaniel H. Stewart, circuit judge for the county of Kalamazoo, to compel .respondent to vacate an order opening a default and setting aside a decree of divorce.</p>

Bill by Joseph A. Cowan, administrator of the estate of Frederick W. Miller, deceased, ■ against Frank A. Anderson and others to set aside certain conveyances on the ground that they were in defraud of decedent’s creditors; From a decree for the defendants, complainant appeals.

<p>Appeal from Oakland; Smith, J.</p> <p>Bill by Carl B. Heliker against Merlin B. Heliker to enjoin waste. From a .decree for complainant, defendant appeals.</p>

Bill by John Layer,. David Layer, and Christian Layer against Jacob Layer and others for the cancellation of a certain contract and for .other relief. From a decree for defendants, complainants appeal.

Assumpsit in justice’s court by A. E. Wood & Company against the Michigan Central Railroad Company for negligent delay in delivering freight. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Case by George Sabela against the Newport Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Assumpsit by the city of Sault Ste. Marie against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for a special sewer tax. Judgment for plaintiff. Defendant brings error.

Appeal by the board of health of the city of Grand 'Rapids against Benjamin Vink to restrain the defendant from removing and disposing of garbage under an ordinance of the city of Grand Rapids. From a decree for the complainant, defendant appeals.

Bill by Henry F. Schwier against Howard C. Hurlburt and Henry C. Houghten and others, to set aside a purchase of a business property. From a decree for complainant, defendants appeal.

Assumpsit in justice’s court by Everett E. Ward against Margaret Dunnebecke, administratrix of the estate of Anthony Dunnebecke, deceased, for the price of certain work and materials under a special contract. From a judgment for plaintiff, defendant appealed to the circuit court where judgment was entered for defendant on a verdict directed by the court. Plaintiff brings error.