Volume 187 — Michigan Reports

Bill by Kate Helmer against Norwood Van Wormer and another to foreclose a mortgage. From a decree for complainant for less than the amount claimed, she appeals.

Case by Thomas Mackin against the Detroit-Timkin Axle Company for personal injuries. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.

Assumpsit by the Linderman Machine Company against the Shaw-Walker Company for the value of certain machinery. Judgment for plaintiff. Defendant brings error.

Garnishment proceedings by Barney Roof against Horace A. Steuard and others as garnishees of William I. Blake. Marietta Blake was interpleaded as party claimant of the fund, and from a verdict directed in her favor plaintiff brings error.

Bill by Symons Brothers & Company and others against Rolla W. Brink and another for an injunction, a receiver and other equitable remedies. From a decree sustaining defendants’ demurrer to the bill of complaint, complainants appeal.

, presiding. Case by Edward L. Price against Frederick A. Delano and others, as receivers of the Wabash Railroad Company, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

<p>1. Bastardy — Payment—Death cot Child — Criminal Law — Dismissal.</p> <p>Upon, the death of the alleged bastard in bastardy proceedings, the same do not end, hut respondent continues liable for expenses of the care and death of the'child and its maintenance during its lifetime.1</p> <p>2. Same — Evidence—Expenses.</p> <p>What the expenditures in any given case may have been is a proper and necessary subject of inquiry on the trial to enable the court to fix the amount to be ordered to be paid; if no proofs were taken to ascertain the actual expenses of care and support of the child, an order fixing the sum of $150 to be paid by respondent was unauthorized and must be vacated.</p>

<p>1. Fraudulent Conveyances — Debtor and Creditor — Preference —Mortgage.</p> <p>In this State, the right of a debtor to give one creditor a preference over others is unquestionable, if the purpose is plain and the instrument not in the nature of an assignment or fraudulent.</p> <p>2. Same — Trusts—Assignments—Delaying Creditors — Pro .Rata Distribution.</p> <p>But an instrument in the nature of a trust mortgage containing recitals that the debtor was insolvent and that several of the creditors had signified their intention of commencing action and that it was his desire and intention to treat them all alike, thereafter providing that those creditors who accepted the conditions of the mortgage should he entitled to share in the proceeds and that the receipt of pro rata proportion thereunder should operate as a satisfaction of all claims of consenting creditors, was void as tending to hinder and delay a creditor in the collection of his claim. (3 Comp. Laws, § 9533; 4 How. Stat [2d Ed.] § 11417).</p>

, presiding. Case by Charles Flaherty against the Maxwell Motor Company for slander. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

<p>Appeal from Hillsdale; Chester, J.</p> <p>Bill by Esther Cunningham against Isaiah Cunningham for divorce. From a decree for complainant, defendant appeals.</p>

Mandamus by Frederick E. McCain against Henry Mandell, one of the circuit judges for the county of Wayne, to compel respondent to vacate’an order setting aside default.

Mandamus proceedings by James A. Murtha against Kichard Lindsay, city clerk of the city of Detroit, to compel the respondent to receive a petition of relator as candidate for the office of judge of the recorder’s court of the city of Detroit.

Bill by the civil service commission of the city of Detroit against George Engel, city controller, to enjoin the payment of the salary of a clerk of the recorder’s court. From an order denying the injunction and dismissing the bill, complainant appeals.

Mandamus by the common council of the city of Detroit against George Engel, city controller, to compel respondent to issue certain bonds. An order granting the writ is reviewed by respondent on certiorari.

, presiding. Case by Dala Paskvan, as administratrix of the estate of Matt Paskvan, against the Allouez Mining Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Assumpsit by Thomas Doyle and another against Joseph Faust and others for work, labor, and materials. Judgment for plaintiffs. Defendants bring error.

Mary Spooner presented a claim against the Detroit Saturday Night Company for the death of her husband in defendant’s employ. From an order awarding compensation respondent brings certiorari.

Bill by Minerva Green, administratrix of the estate of James E. Green, deceased, against Frank B'urghardt and Anton Burghardt in aid of execution. From a decree for defendants, complainant appeals.

, presiding. Case by Ellen Snowden, administratrix of the estate of John Snowden, deceased, against the Detroit & Mackinac Railway Company for the unlawful killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.

Oliver W. Barney presented for probate the last will of Oliver Barney, deceased, which was contested by Fred W. Barney. From an order of the probate court denying the petition, proponent appealed to the circuit court. Judgment for proponent. Contestant brings error.

Bill by Victor Jackiewicz against John Siwka and others for an accounting and other equitable relief. From a decree for complainant defendant Siwka appeals.

Case by James B. Sumner against the Eastern Michigan Edison Company for injury to plaintiffs team and harness. Judgment for plaintiff. Defendant brings error.

<p>Certiorari to the recorder’s court of the city of Detroit; Connolly, J.</p> <p>The Detroit, Belle Isle & Windsor Ferry Company was convicted of violating an ordinance of the city of Detroit.</p>

<p>1. Master and Servant — Appeal and Error — Evidence—Presumptions.</p> <p>Odl writ of error to review a verdict and judgment for defendant under the direction of the trial judge, the evidence must be considered in the light most favorable to appellant, who is entitled to have any legitimate inferences drawn in his favor.</p> <p>2. Same — Set Screws — Proximate Cause.</p> <p>Evidence, in an action for injuries sustained by a servant while engaged in oiling machinery in defendant’s factory, yield, to present an issue for the jury, whether his injury resulted from an unguarded set screw striking his hand, forcing it against the revolving saw.</p> <p>3. Same — Burden—Evidence.</p> <p>He was not required to exclude the possibility that his injury might have occurred in some other way, but was entitled to recover if his proofs satisfied the jury, by a fair preponderance of the evidence, that it took place as he alleged and claimed.</p>

Assumpsit by the Standard Fashion Company, a foreign corporation, against Mary E. Cummings upon a special agreement. Judgment for defendant on a directed verdict. Plaintiff brings error.

Case by Edward C. Loose against the Township of Deerfield for personal injuries caused by an alleged-defective highway. Judgment for plaintiff. Defendant brings error.

<p>Error to Benzie; Lamb, J.</p> <p>Case by Thomas A. Anderson against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Carriers — Negligence—Contributory Negligence — Railroads —Evidence—Alighting erom Train.</p> <p>In an action for personal injuries received by plaintiff while alighting from defendant’s passenger train, the court was not in error in admitting evidence as to where the train stopped on former occasions, as to its position with reference to the station platform the night of the accident, and as to the condition of the right of way at the point where plaintiff alighted; such evidence being competent for the purpose of determining whether either or both of the parties was negligent.</p> <p>2. Same — Directed Verdict — Evidence.</p> <p>Where the evidence was conflicting, some of it tending to show that defendant was negligent and that plaintiff was free from contributory negligence,' the court was not in error in refusing to direct a verdict for defendant.</p> <p>3. Trial — Requests to Charge — Instructions.</p> <p>Refusal of the trial court to give requested instructions was not error, where the charge as given fully instructed the jury upon the law of the case.</p>

<p>1. Bills and Notes — Negotiable Instruments — Indorsement— Burden of Proof.</p> <p>A plaintiff suing on an indorsement of a negotiable note that was dishonored has the burden of proving notice of dishonor.</p> <p>2. Same — Notice of Dishonor — Evidence.</p> <p>Where the notary that protested the paper testified that he mailed notice of nonpayment within due time to the indorser, the witness being cashier of plaintiff’s bank, and the payee gave evidence that it received no notice of dishonor, and several days after the maturity there was no protest attached to it, the question whether notice was duly mailed became a question for the jury under section 107, Act No. 265, Pub. Acts 1905, providing that if addressed and deposited in the post office sufficient notice shall be presumed to have been given.</p>

Charles S. Abbott and others filed a petition for dissolution of the Chippewa Construction Company. John McBride and other creditors filed petitions to intervene. From a decree for interveners complainants appeal.

Bill by Charles M. Turner against the Calumet & Hecla Mining Company and another for an injunction and other relief. From a decree for complainant, defendants appeal.

Bill by Richard G. Lambrecht and others against Amos E. Gramlich and others for an injunction, etc. From a decree for defendants, complainants appeal.

<p>Principal and Surety — Municipal Corporations — Bonds—Public Buildings — Surety Bond — Extension of Time.</p> <p>A surety company having executed a statutory bond for a municipal contractor conditioned upon bis paying sub-contractors, laborers, etc., was not released from its obligation on the indemnity agreement wbicb was given for a money consideration, where the contractor paid for part of the materials furnished by a material man, and, the surety not consenting, gave a note for ninety days to plaintiff for the remainder of his account. Some evidence of injury to the surety is essential to such release.</p>

Assumpsit by the American Fidelity Company against the R. L. Ginsburg Sons’ Company for money paid out under a policy of indemnity insurance, to protect defendant against litigation. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by Daniel Hogan and others against Patrick M. Hogan and another for the specific performance of an oral contract. From the decree entered, both parties appeal.

Case by Henry A. Krolik and-others, a copartnership, doing business under the firm name of A. Krolik & Company, against John W. Lang for fraud and deceit. Judgment for plaintiffs. Defendant brings error.

Bill by Albert E. Andrews against the city of South Haven for an injunction and other relief. From an order sustaining a demurrer to the bill, complainant appeals.

Case by George A. Lake against the township of Springville for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by the Detroit Creamery Company against the Velvet Brand Ice Cream Company and others for an injunction, etc. From a decree for complainant, defendants appeal.

<p>1. Physicians and Surgeons — Malpractice—Skill Required— Evidence — New Trial.</p> <p>Plaintiff, a scrub woman, who needed medical attention, consulted defendant as her physieian, who advised her as he claimed that she required an operation, which, when performed, disclosed a diseased condition of the ovaries. Defendant removed the one of the ovaries which was in the worse condition, having obtained her consent, as he claimed, anticipating the condition discovered, to this form of operation. Afterwards a hernia developed at the point of incision and plaintiff was again admitted to the hospital and had a second operation by the defendant during which the remaining ovary was removed. Plaintiff claimed that defendant was negligent in failing to correct and cure the hernia by the second operation and that he was guilty of malpractice in performing the ovarian operation without her consent. It was plaintiff’s contention that defendant only advised her that the first operation was of a minor nature and that she objected to the removal of the ovaries and did not know that they had been so removed until after the second operation. Upon the trial the court submitted the case to the jury upon the issue of the necessity of the operations performed and whether plaintiff had in fact consented to them. No medical testimony was adduced by plaintiff to establish the claim that any act done by defendant was improperly done or that he omitted any treatment which would have cured her hernia. There was also testimony by experts that hernias frequently resulted from operations. Held that the court did not err in denying plaintiff’s motion for a new trial.1</p> <p>2. Same — Negligence—Malpractice.</p> <p>Where counsel in the course of his argument to the court disclaimed the right to recover for malpractice, in the absence of medical testimony tending to show the omission of any particular act or treatment, the court was not in error in declining to submit to the jury the question of negligence in causing the hernia or in failing to remedy it.</p> <p>3. Same — Due Cake — Evidence.</p> <p>All that the law requires of a medical practitioner is that he bring and apply to the case such degree of skill and care as are possessed by practitioners of the medical profession in the place where the operation was performed. The bare fact that full recovery did not result or that the operation was not fully successful is not evidence of negligence.1</p> <p>4. Same.</p> <p>Matters involving professional skill and alleged negligence or failure to do what ought to have been done arising in the course of a trial for malpractice must be shown by testimony of those who are learned in the profession.</p> <p>5. Same — Due Cake.</p> <p>And where physicians produced by defendant testified that the operations as defendant claimed they were performed were necessary and properly executed, that post-operative hernias were liable to develop after same and that the early removal of such condition was advisable, also, that the development of the hernia was not evidence of want of skill and plaintiff produced no evidence to contradict or dispute this, the court was not in error in limiting the issue to that of consent and the necessity or propriety of performing the operations.</p>

Clair; Tappan, J. Assumpsit by Morris M. Silverstone against the London Assurance Corporation and other defendants named in the title, by separate actions which were consolidated by stipulation. Judgment for plaintiff. Defendant brings error.

, presiding. Case by Kate Arfman, as administratrix of the estate of Reinhold Arfman, deceased, for the unlawful killing of plaintiff’s intestate. Judgment for defendant. Plaintiff brings error.

Bill by Annie Pritchard against Elizabeth Hutton and William Henry Hutton for the cancellation of certain deeds and for other equitable relief. Prom a decree for defendants, complainant appeals.

<p>Error to Ingham; Collingwood, J.</p> <p>Assumpsit by Daniel Edwards against Frederick Thoman for commissions on the sale of a land contract. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by the city of Monroe against the Detroit, Monroe & Toledo Short Line Railway to compel respondent to comply with the provisions of its franchise in running its cars through said city. From an order granting the writ respondent brings certiorari.

Bill by Max Weiss against Joseph F. Stein for an injunction restraining defendant from re-engaging in the shoe business in violation of contract. From a decree for complainant, defendant appeals.

<p>1. Divorce — Extreme Cruelty — Demurrer—Pleading.</p> <p>Where complainant’s bill for divorce alleged that defendant left her home without excuse, leaving complainant and their two young children, and was gone for several days at a time, on some of these occasions consorting with other men, in two instances giving th'e dates and the places where she went, defendant’s demurrer on the ground that there were no specific acts of cruelty with time, place, and circumstance alleged in connection therewith, cannot he sustained.</p> <p>2. Same — Condonation.</p> <p>Where a spouse repeats an offense after condonation, the original offense is revived.</p> <p>3. Same — Evidence—Admissions—Statutes.</p> <p>Evidence of admissions of defendant to complainant that she had, while away, been to rooming houses with other men is not competent to establish that fact but must be sustained by some other testimony. 3 Comp. Laws, § 10213.</p> <p>4. Same — Evidence.</p> <p>While the evidence shows that complainant was fond of his wife and made reasonable effort to get along with her, and that she was not without fault, yet the testimony was too meagre to justify the- granting of a decree.</p>

<p>Appeal from Bay; Collins, J.</p> <p>Bill by Henry W. Simms against the Bialy Hardware & Supply Company and others to set aside a transfer of the assets of said corporation. From a decree for complainant, defendant Robert C. Bialy appeals.</p>

<p>1. Accounting — Fiduciary Relations — Negligence.</p> <p>Where complainant and another conducted lumbering operations under the supervision of the latter, who permitted the parties with whom he dealt to' present accounts and charges that he paid without examination, and the business, being placed in the hands of a trustee, was continued in a correspondingly loose manner, on' an accounting between the persons in interest, the trustee was chargeable with losses sustained by reason of such negligence.</p> <p>2. Same — Trusts—Neglect.</p> <p>In examining the accounts of the trustee the court will not attempt to save him from the consequences of his want of care in keeping sufficient books, etc., and from the inaccuracies of his agent in keeping accounts of disbursements.</p>

<p>Error to Kent; McDonald, J.</p> <p>Assumpsit by the Wolverine Brass Works against the Southern Pacific Company for the recovery of an overcharge. Judgment for plaintiff. Defendant brings error.</p>

<p>Replevin — Possession—Animals—Process.</p> <p>In an action of replevin for a horse which had been taken in a former suit brought by plaintiff’s husband, and tendered back by the sheriff, the tender having been refused by defendant, the court erred in submitting the case to the jury; replevin did not lie against the defendant who was not in control of the animal.</p>

<p>Appeal from Ingham; Collingwood, J.</p> <p>Bill by Robert E. McCullough against Dora A. McCullough for divorce. From an order denying defendant’s motion to vacate her default and from a decree entered in complainant’s favor, defendant appeals.</p>

Case by Donald M. Harris, an infant, by his guardian, Charles W. Harris, against the Royal Oak Savings Bank for personal injuries. Judgment for plaintiff. Defendant brings error.

Mandamus by Charles S. Tolsma and another against George P. Codd, one of the circuit judges for the county of Wayne, to require respondent to enter an order taxing the costs of relators in certain partition proceedings.

<p>Error to the superior court of Grand Rapids; Stuart, J.</p> <p>Case by Euretta B. Sweetnam against Warren H. Snow for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by James Niblock against William G. Gage, one of the circuit judges for the county of Saginaw, to compel respondent to vacate an order denying petitioner’s motion for retaxation of costs.

Bill by Edward C. Bloss against Freda Bloss for divorce. Defendant filed a cross bill. From a decree for defendant granting her a divorce as prayed, complainant appeals.

, presiding. Assumpsit in justice’s court by Edward Degrandchamp against Mathew Slepski for broker’s commissions. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Mandamus by the Detroit Museum of Art and another against George Engel, controller of the city of Detroit, to compel respondent to sign a voucher to pay the salary of the acting director of relator from public funds. An order granting the writ is reviewed by respondent on certiorari:

Mandamus by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against George W. Bridgman, Berrien Circuit Judge, to require respondent to vacate relator’s default in an action in which the corporation aforesaid was defendant.

Mandamus by J. W. Cilley and another against Daniel F. Sullivan, drain commissioner of the county of Monroe, to compel respondent to a,ct with the commissioner of Lenawee county in levying a special assessment for a drain. An order denying the writ is reviewed by relator on certiorari.

Assumpsit by P. Albin Johnson, and Leo L. Wood, copartners as Johnson & Wood, assignees of the Title Guaranty & Surety Company, against the Federal Union Surety Company, a foreign .corporation. From a judgment for defendant on a verdict directed by the court, plaintiffs bring error.

<p>Error to Saginaw; Gage, J.</p> <p>Case by William A. Brown against Peter Mitts for damages to plaintiff’s automobile. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Case by Samuel W. Ude against Clayton W. Fuller for damages caused by personal injuries to plaintiff’s minor son. Judgment for plaintiff. Defendant brings error.

Case by Evelyn H. Rogers, as administratrix of the estate of John Rogers, deceased, for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

<p>Exceptions before sentence from Van Burén; Des Voignes, J.</p> <p>Albert F. Schelske was convicted of desertion.</p>

<p>1. Master and Servant — Statutes—Guarding Set Screws— Proximate Cause.</p> <p>In an action under Act No. 285, Pub. Acts 1909, for injuries to a servant caused by an unguarded set screw in tbe “chuck” of a veneer peeling machine, plaintiff’s act of selecting tbe “chuck” which he used in carrying on his work was not the proximate cause of the accident so as to relieve defendant of liability, although it was plaintiff’s duty to use the proper size for the work which he was doing, in which he also was shown to have made a proper selection. He "had the right to assume that the appliances furnished to him were reasonably fit for the intended purpose.</p> <p>2. Same — Negligence—Statutory Requirements.</p> <p>Act No. 285, Pub. Acts 1909, whereby it is provided that all cogs, saws, set screws, planers, etc., shall be guarded properly when deemed necessary by the factory inspector, was properly held by the trial court to apply to the portion of machinery which plaintiff selected, different sized parts being required to fit the various sized bolts or logs.</p> <p>3. Assumption oe Risk — Statutory Violation.</p> <p>The employee did not assume the risk of a violation by his master of the duty imposed by such statute.</p> <p>4. Same — Contributory Negligence.</p> <p>Evidence tending to show that plaintiff selected the “chuck” which had projecting set screws, though other “chucks” were at hand which had no set screws or were guarded properly, and in his inspection did not observe the screws and had not perceived them on any of the “chucks,” and that after turning on the machinery his attention was engaged by his work, cleared plaintiff of the charge of contributory negligence as a matter of law.1</p> <p>5. Same — New Trial.</p> <p>Held) also, that the verdict was not contrary to the weight of the evidence.</p>

Case by Bella McCormick against Ivor C. Bradbury for fraud. Judgment for plaintiff for an insufficient amount, and she brings error.

Mandamus by the Township of Clearwater against the Board of Supervisors of Kalkaska County to compel respondent to return to relator certain county road taxes. An order denying the writ is reviewed by relator on certiorari.

<p>Appeal from Muskegon; Sullivan, J.</p> <p>Bill by James F. Lowe against Estella A. Schuyler to restrain foreclosure of a mortgage by advertisement. From a decree for the complainant defendant appeals.</p>

Mandamus by Fred L. Small and others against Joseph Barton, circuit judge for the county of Newaygo, to compel respondent to enter an order authorizing relators to file an amended bond on appeal and vacate an order granting the motion to strike the appeal bond from the files.

<p>Error to Muskegon; Sullivan, J.</p> <p>Lafayette R. Coston was convicted of assault with intent to commit rape.</p>

Bill by Richard Kleinke and others agaist William R. Oates, as game and fish warden, for an injunction and other equitable relief. From an order sustaining a demurrer to the bill of complaint, complainants appeal.

<p>Error to Gratiot; Searle, J.</p> <p>Assumpsit by Orla J. Simmons against the National Live Stock Insurance Company upon a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by Edward N. Barnard, prosecuting attorney of Kent county, against Willis B. Perkins, one of the judges of Kent county, acting as judge of the superior court of the city of Grand Rapids, to require the respondent to vacate an order quashing an information against Charles A. Berry for violation of the corrupt practices act.

, presiding. Case by Wilbert Patterson against the Detroit United Railway for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Certiorari by Neal Alward against the board of supervisors of Oakland county and others to review the action of said board in suspending the operation of the general liquor law in Oakland county.

<p>1. Trial — Verdict—Surplusage—Judgment.</p> <p>If the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the unnecessary matter.</p> <p>2. Same — Joint and Several Verdict — Judgment.</p> <p>Where the jury returned a verdict for $10,000 against joint defendants and apportioned $6,000 of the amount against appellant, and $4,000 against the other defendant, and the court rejected the apportionment as surplusage and entered judgment for $10,000 against both defendants, the effect was to enter judgment against appellant for a larger amount than authorized by the verdict, and will be set aside by this court. Bird, J., dissenting.</p> <p>3. Carriers — Instructions—Degree of Care.</p> <p>In an action for personal injuries by a passenger against a street railway company, an instruction by the trial court that plaintiff “was entitled to such transportation to Port Huron, and to the use of the highest possible known care by the carrier,” followed later by the words, “the same character or degree of the highest possible degree of care is due to him,” is erroneous as requiring a higher degree of care than the law requires.</p> <p>4. Appeal and Error — Instructions—Presumptions—Harmless Error.</p> <p>Where variant intructions are given to the jury, some of which are proper and some improper, it must be presumed that the jury followed the erroneous instruction.</p> <p>6. Witnesses — Evidence—Adverse Witness — Statutes—Instructions — Appeal and Error.</p> <p>Where plaintiff called the officers of defendant railway as • witnesses to prove that defendant was operating the interurban line on which defendant’s car was running at the time of the accident, under Act No. 307, Pub. Acts 1909, permitting the calling of hostile witnesses for cross-examination, it was error for the court to refuse to instruct the jury, as requested by defendant, that plaintiff was bound by tbe testimony of sucb witnesses unless controverted. Jones v. Railroad Co., 168 Mich. 1.</p> <p>6. Same — Appeal and Erreor.</p> <p>And tbe fact that tbe issue raised by tbe question was not raised on appeal does not render tbe refusal of the court to properly instruct tbe jury error without prejudice, where plaintiff’s counsel, in bis argument to tbe jury, attacked tbe veracity of sucb witnesses although be bad offered no evidence to contradict them. Bird, J., dissenting.</p> <p>7. Damages — Excessive Verdict — New Trial.</p> <p>In an action for personal injuries by a passenger against a street railway company, where tbe evidence showed that plaintiff was in bis 77th year, and bad an expectancy of about 5 y2 years, that be was receiving an annual salary of $900, with tbe privilege of earning what be could outside, that tbe injuries consisted of a comminuted fracture of both bones of tbe right leg below tbe knee and tbe fracture of two ribs, that be made a good recovery, and at tbe time of tbe trial be was active and earning to some extent, tbe award of $6,000 damages by tbe jury was excessive, and defendant’s motion for a new trial should have been granted.1 Bird, J., dissenting.</p>

Case by Oscar A. Pruner against the Detroit United Railway for damages caused by injuries to plaintiff’s wife. Judgment for defendant. Plaintiff brings error.

Assumpsit by Edwin E. Judd, administrator de bonis non of the- estate of George E. Judd, deceased, against Peternella Judd to recover the amount due on a promissory note. -Judgment for defendant. Plaintiff brings error.

Case by Jacob Salo, administrator of the estate of Toivo Kaupinnen, deceased, against Samuel B. Martin for injuries resulting in the death of plaintiff’s decedent. Judgment for defendant on a directed' verdict. Plaintiff brings error.

Bill by James D. Balen and another against Andrew S. Burgeson for the foreclosure of a land contract. From a decree for complainants, defendant appeals.

<p>1. Descent and Distribution — Next of Kin — Kindred of Half Blood — Statutes.</p> <p>In a contest between paternal cousins on the one side, and a maternal half-uncle and cousins on the other, for the estate of an intestate, who left no issue, widow, father, mother, brother, sister, nor child of brother or sister, his estate, consisting of real property inherited from his father, descended to his half uncle, who was his next of Lin, according to the provisions of Act No. 286, Pub. Acts 1909; he being one degree nearer to intestate than are the paternal and maternal cousins, and not being excluded by the exception in section 9068, 3 Comp. Laws, hy reason of being a half blood, because there are no other persons of the same class as he who are of the full blood.</p> <p>2. Same — Rules of Civil Law.</p> <p>And the contention of appellants that the half-uncle is excluded, because only brothers and sisters of the half blood are included by the statute, cannot be sustained, as section 9068, 3 Comp. Laws, provides that the degrees shall be computed according to the rules of the civil law, which recognize the ascending as well as the descending line.</p>

Case by William Foster against William Krause and others for personal injuries caused by assault and battery. Judgment for plaintiff. Defendants bring error.

Bill by Katherine C. Atkin, administratrix of the estate of William L. Atkin, deceased, against William Van Sickle and another for an accounting of the proceeds of certain life insurance policies alleged to have been assigned to defendants as security. From a decree for complainant, defendant Van Sickle appeals.

Case by James E. Brown against the city of St. Johns for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings' error.

Case by Margaret Peklenk, administratrix of the estate of Mike Peklenk, deceased, against the Isle Royale Copper Company for the wrongful death of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

<p>1. Appeal and Error — Question of Pact — Railroads.</p> <p>In an action for personal injuries alleged to have been- caused by defendant’s engine and train frightening plaintiff’s horse, a disputed question of fact as to where the train stood in reference to the crossing was determined according to plaintiff’s claim by the verdict of the jury in her favor.</p> <p>2. Railroads — Negligence—Operation of Train — Question for Jury.</p> <p>In an action for personal injuries alleged to have been caused by defendant’s train and engine starting up and frightening plaintiff’s horse, when she was crossing a viaduct over the track, evidence to show that defendant operated its train in such an unusual and unnecessary manner as to cause the fright of plaintiff’s horse would raise a question of fact for the jury.1</p> <p>3. Same.</p> <p>A railroad company is not liable for the fright of horses resulting from the ordinary use, movement, or situation of its engines, cars, or trains, and it has a lawful right to make all such noises as are necessarily connected therewith.</p> <p>4. Same — Directed Verdict.</p> <p>Where plaintiff’s testimony failed to show that any unusual or unnecessary noises occurred in the starting of the train, defendant’s motion for a directed verdict should have been granted.</p> <p>5. Same — Instructions—Viaduct—Negligence.</p> <p>An instruction by the court below that it is the duty of a railroad company, before starting its train, to observe whether any one is crossing on the viaduct, and, if there is, to refrain from starting until the traveler has an oppor- ■ tunity to get across, is erroneous.</p>

Bill by Burton Howe and another against Edward H. Doyle, John W. Haarer, and Grant Fellows, constituting the Michigan Securities Commission, for injunction restraining defendants from .enforcing the provisions of Act No. 148, Pub. Acts.1913. From a decree for defendants, complainants appeal.

Assumpsit by the township of Forest against the American Bonding Company of Baltimore and Harry L. Sias on a surety bond. Judgment for .plaintiff. Defendant bonding 'company brings error.

Application by Emma Fitzgerald to the Industrial Accident Board for an award of compensation against the Lozier Motor Company for the death of her husband. A judgment for the applicant is reviewed by said motor company on writ of certiorari.

Bill by Daniel E. Fuller and Leonard H. Evarts, as executors of the will of Julia S. Newman, deceased, against Eunice M. McKim and others for construction of said will. From the decree entered, complainants appeal.

Assumpsit by Edward Hutchins against Henry J. Vinkemulder and Moses J. Dark, copartners as Vinkemulder Company, in justice’s court for goods sold and delivered. Judgment for defendants and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

Bill by Abilene Demerse and others against Elizabeth Mitchell and others for the cancellation of certain deeds. Defendants filed an answer in the nature of a cross-bill. From a decree for defendants, complainants appeal.

Case by Sarah Newell, administratrix of the estate of David Newell, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the unlawful killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.