Volume 189 — Michigan Reports

Bill by John H. Prentis and another against George H. Prentis and others to quiet title to certain real property. From a decree for defendants, complainants appeal.

Mandamus by John W. Blodgett against John S. McDonald, one of the circuit judges for the county of Kent, to require respondent to vacate his order denying the motion of petitioner to strike from the files the replication of the Grand Rapids Trust Company, as trustee, in a chancery proceeding in which petitioner is one of the defendants.

, presiding. Case by Jacob Dams against the Vinton Company ■for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Appeal from St. Clair; Law, J.</p> <p>■ Bill by Charles K. Dodge against the North End Improvement Association and others for an injunction. From a decree for defendants, complainant appeals. Affirmed.</p>

Assumpsit in justice’s court by William J. Sproat ■against Lou Hall and wife, for an indebtedness evidenced by a writing. Judgment for plaintiff; defendants appealing to the circuit court. Judgment for plaintiff. Defendant Lou Hall brings error.

<p>Insurance — Indemnity Policy — Loss oe Employment — Breach oe Conditions.</p> <p>Under a mutual benefit certificate providing for insurance against loss of employment in cases other than discharge for absence from engine, use of liquors and similar reasons, and referring to the application which contained the clause, “that the cause assigned by my employer for suspension or discharge shall be the sole basis of determining the liability of the association,” plaintiff was not entitled to recover on his own showing that the employer discharged him for being absent from his engine and visiting saloons, and lie was properly prevented at the trial from attempting to prove that the assigned cause was untrue; that he had been absent with leave and visited certain saloons on a mission of his superintendent.</p>

Assumpsit by Louise A. Germain, as executrix of the estate of Edward Germain, deceased, and another, against Henry N. Lond and others, copartners, doing business as Henry N. Loud & Sons, for money had and received, etc. Judgment for defendants on a directed verdict. Plaintiffs bring error.

, presiding. Case by John E. Henry, by his next friend, against; the Michigan Central Railroad Company for personal, injuries. Judgment for plaintiff. Defendant brings, error.

<p>Error to Delta; Flannigan, J.</p> <p>Case by James Smedley against the Mashek Chemical & Iron Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Petition by Charles F. Norton and wife for writ of certiorari against L. Chester Williams, drainage commissioner for Calhoun county, to review certain drain proceedings in probate court. Judgment for respondent. Petitioners bring error.

<p>1. Damages — Verdict—Amount.</p> <p>Upon somewhat conflicting testimony, a verdict of the jury, in a personal injury case, for $500 damages, was not excessive for a broken rib, pain in the side and leg, and a bruise on the hip, causing plaintiff to be absent from work and confined to the bed five weeks, and to pay out $40 in expenses, so as to require the granting of a new trial.</p> <p>2. Same — Extent oe Injuries — New Trial.</p> <p>Held, that plaintiffs proofs were sufficient to support a verdict for that amount, on motion for a new trial, the testimony relative to the loss of time and the extent of physical injury sustained by plaintiff in dispute.</p>

Bill by Martin Donohue against Benjamin Vosper, Fred H. Abbott, Maurice J. Tonkin and the Buffalo Iron Mining Company, to quiet title to real property. From a decree for defendants, complainant appeals.

Petition by Oramel B. Fuller, auditor general, against Thomas M. Nelson, and other delinquent taxpayers, for the sale of lands for taxes thereon. From a decree for petitioner, defendant Nelson appeals.

Bill by Frederick Osborn and another against the city of Ann Arbor and others for an injunction. From a decree overruling defendants’ demurrer, complainants appeal.

Frank Maynard presented for probate the alleged will of Alice Maynard Keene, deceased, and Gust Keene, contestant, appealed to the circuit court. Judgment for proponent and contestant brings error.

<p>1. Malicious Prosecution — Probabee Cause — Evidence.</p> <p>In an action for malicious prosecution, the question of want of probable cause is for tbe court if tbe facts are undisputed.1</p> <p>2. Same — Criminal Prosecution — Want of Probable Cause.</p> <p>Probable cause is such reasonable ground of suspicion, supported by known circumstances, or by information of sufficient character, to justify an ordinarily cautious person in believing that tbe accused is guilty of tbe alleged crime.</p> <p>3. Same — Evidence—Directed Verdict.</p> <p>Where tbe defendant displayed in tbe presence of plaintiff, a stranger, a large roll of money which be placed in an\ unlocked trunk in tbe lower part of tbe bouse, plaintiff being in a position to see tbe act, and where there was evidence that be was informed by a roomer that some one, crept stealthily downstairs in tbe night and after moving about went outside, that tbe person coughed like one of tbe roomers with whom plaintiff was friendly, and that tbe dog belonging to defendant bad been put outside in tbe night, that plaintiff and tbe roomer bad entered tbe bouse together, where, also, defendant related all tbe facts to a justice of the peace who issued- a warrant, tbe question of probable cause, upon uncontradicted evidence, was for tbe court, which rightly held that there was no proof of a want thereof.</p> <p>Ostrander, J., dissenting.</p>

Assumpsit by Frederick F. Spiegel against James Barrett, drain commissioner of the county of Saginaw, and another, for breach of contract and for a balance due thereon. Judgment for defendants. Plaintiff brings error.

Case by Julia Morrison against the city of Iron wood for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by the Story & Clark Piano Company against G„ J. Hilderink, one of the supervisors of the county of Ottawa, for an injunction. From a decree for defendant, complainant appeals.

<p>1. Negligence — Licensee—Evidence—Elevators.</p> <p>Evidence that plaintiff, who was lawfully in the store of defendant, entered its elevator to be carried up, when it dropped about four feet, causing a passenger on the point of entering to fall against and injure plaintiff, who was unable to produce any testimony to establish the cause of the accident except proof of a statement by defendant that the car fell because Some one jostled the arm of the operator, and made the machine descend, was not sufficient proof of a negligent cause to require the court to take the verdict of the jury.1</p> <p>2. Same — Res Ipsa Loquitur — Presumptions.</p> <p>No presumption of negligence arose by reason of the mere falling of the elevator; proof of negligent conduct of the proprietor was necessary to raise an issue for the jury.2</p>

<p>Error to Muskegon; Sullivan, J.</p> <p>Case by Emily F. Gungrich against Mary E. Anderson for assault and battery. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Release —Contract — Construction — Evidence — Parol Evidence.</p> <p>A release is to be construed from tbe standpoint of tbe parties at tbe time they executed it; extrinsic evidence is admissible to explain tbe circumstances under which it was entered into and tbe nature of tbe transaction to which it was designed to apply without .adding to or subtracting anything from tbe words used. It embraces all demands to which its provisions apply, whether contemplated or not, and direct parol evidence that a certain claim was not in-eluded or contemplated in the preliminary negotiations is inadmissible.</p> <p>2. Same — Contribution—Evidence—Notes—Defenses.</p> <p>Plaintiff and defendant indorsed jointly with others the notes of a manufacturing corporation that subsequently became insolvent. In consideration that plaintiff would continue to act as indorser certain securities were deposited with him to cover his indorsement and protect him from liability, and at the same time, he executed to defendant a release in general terms “from all actions, causes of action, suits, controversies, claims and demands, whatsoever, for or by reason of any matter, cause, or thing from the beginning of -the world down to the 6th day of April,” etc. No other contractual obligations subsisted between them. Two months later, in order to renew one of the notes, defendant indorsed new paper, on which plaintiff sued for contribution. Held, that defendant was not liable; that the new note had been given for the indebtedness existing when they executed the release, and no new debt was created, that the release barred any liability upon the previous indebtedness, or a renewal thereof.</p>

Bill by the city of Ann Arbor against the Goodspeed Real Estate Company and others for an injunction. From a decree for complainant, defendants appeal.

Clair; Tappan, J. Case by John Newell against James Reid and another for breach of warranty of a quantity of bran. Judgment for plaintiff. Defendants bring error.

Bill by H. Nelson Loud, Charles Wallace, and Culver Van Alstyne against Frank Deacon, Louis Clouse, John W. Ferguson, George Sampson, Charles Aldrich, and James Aldrich to restrain defendant Deacon from laying out a highway. From a decree for complainants, defendants appeal.

<p>Ejectment — Bound aeies — Aluey—Desoei-ption.</p> <p>Where plaintiffs in ejectment had conveyed to the defendant a parcel of land described as lots 15, 17, and land lying east thereof, bounded on the northwest by Michigan avenue, east by Milwaukee street, formerly Albany street, on the south by Wesley street and on the west by an alley contiguous to lot 17, and no alley appeared in the original plat, as prepared for filing by the owner, and lot 17 did not have the alleged alley but included said land, described by metes and bounds, that the plat had never been filed in the office of the register of deeds and was at an early date lost, the deed from plaintiffs to defendant carried with it all the property purporting to be transferred, including the alleged' alley, which did not show upon the premises and which was not in actual use, and which defendant, who had been in possession as tenant, occupied with the rest of the realty; plaintiffs’ contention and evidence that because an abstract furnished to defendant after entering into a contract' for the purchase of the land, contained a map with parallel lines that they alleged represented the alley across the lot, is held to be insufficient to prove title in the grantors who admitted that no open and used alleyway had ever existed on the lot, — no public or private way existing in fact. And a reservation did not result from describing the parcel as bounded on the west by an alley.1</p>

Assumpsit by William T. Hoey and Henry D. Franks, copartners as the Western Cedar & Lumber Company, against John C. Ross and Norris R. Went-worth, copartners, etc., for goods sold and delivered. Judgment for defendants on a directed verdict. Plaintiffs bring error.

Case by Benjamin M. Morton against Henry Roth and another for unlawful sales of liquor to a minor whereby plaintiff claimed to have suffered personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

Assumpsit by Samuel Stevens against the Lakewood Utilities Company for a balance claimed to be due on a contract to fill defendant’s ice houses. Judgment for plaintiff. Defendant brings error.

<p>Sams — Warranty—Evidence.</p> <p>Evidence, in a suit for breach, of warranty of a motor truck, considered and held, insufficient to support a recovery, and not tending to show a breach, or that the seller had warranted the truck in any way differently than the manufacturer whom he represented had warranted it.</p>

Assumpsit in justice’s court by Israel Weingarden against the Folly Theatre Company for a balance claimed to be due for rental of theatrical equipment. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>Error to Wayne; Hally, J.</p> <p>Assumpsit by Israel Weingarden against the Folly Theatre Company for a balance on open account. Judgment for plaintiff. Defendant brings error.</p>

Bill by David P. Merriman, administrator of the estate of Lewis Brooks, deceased, against Stewart 0. Vandemark to set aside a conveyance, executed in the lifetime of decedent, for the benefit of a judgment creditor of the estate. From a decree for complainant, defendant appeals.

<p>Evidence — Bills and Notes — Accommodation.</p> <p>Where plaiDitiff brought suit on a promissory note that defendant charged had been executed for the accommodation of the plaintiff, who, on his part, claimed that the note was given him for professional services as an attorney, the question at issue was one of fact, upon irreconcilable testimony; the trial court erred in directing a verdict for plaintiff.</p>

, presiding. Case by Frances Sikora, as administratrix of the estate of Adam Sikora, against the Fellowcraft Club and others for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.

Assumpsit in justice’s court by Abraham Lerner against Fred C. Harvey for broker’s commissions. From a judgment for plaintiff defendant appealed to the circuit court, where plaintiff obtained a judgment. Defendant brings error.

, presiding. Assumpsit by Adolph Sloman and another, as co-partners in the name of Sloman & Sloman, against Frederick Bender on open account. Judgment for defendant on a directed verdict. Plaintiffs bring error.

, presiding. Bill by William W. Barber and others against Robert L. McMicking and others in aid of an execution at law. From a decree overruling a demurrer to the bill of complaint, defendant appeals.

<p>1. Divobce — Criminal Law — Separate Maintenance — Husband and Wife.</p> <p>Punitory proceedings for contempt of tAe court of cAancery against a AusAand wAo neglects to pay alimony awarded Ay a decree of divorce are contingent upon Ais being found witAin tAe jurisdiction of tAe court. TAe effect of sucA decree is also to deprive tAe wife of Aer remedy Ay criminal proceedings under a charge of abandonment..</p> <p>2. Same — Equity—Absolute Separation.</p> <p>It was erroneous for the court to grant a divorce to complainant who filed a bill to obtain support and maintenance pursuant to Act No. 243, Pub. Acts 1889, 3 Comp. Laws, §§ 8686, 8687, and who did not desire an absolute divorce; where the defendant husband filed a cross-bill and the court in reviewing the evidence held that his charges had not been sustained by the evidence, finding, also, that the complainant’s bill was sustained by the proofs, which showed, among other things, that the husband had frequently desired her to secure a divorce, and she had declined.</p> <p>3. Same — Statutes—Alimony.</p> <p>Where the wife expressed her willingness to renew marriage relations and was ready to do so for the sake of their infant, it was not in the interest of the public that an absolute divorce should be granted against her consent.</p>

Case by William W. Hooker against Frank W. Blair and others, as receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for plaintiff. Defendants bring error.

<p>1. Automobiles — Negligence—Law oe the Road — Personal Injuries.</p> <p>In an action for injuries sustained in a collision with defendant’s automobile, language of the trial court, in the charge to the jury, that plaintiff was “bound to use every reasonable means to avoid a collision,” read in connection with other instructions, held, cured or modified so as to avoid prejudice.</p> <p>2. Same.</p> <p>Held, that the testimony warranted a verdict and judgment for the defendant on the theory of contributory negligence.</p>

<p>Street Railways — Interurban Road — Crossing Accident — Negligence-Personal Injuries — Lights—Signals.</p> <p>Plaintiff was struck and injured as he attempted to drive across defendant’s interurban track, on a dark night. He testified that he stopped, looked, and listened before he drove on the tracks, that he neither saw nor heard the approaching car, that no whistle or other signal was sounded, and that the car did not display a headlight. He discovered the car when it was about seventy-five feet away and • did what he then could to avert an accident. He claimed to have been two rods from the track when he made his first observation, and admitted that he did not look again until his horses were nearly across- the track, which his team crossed about at a right angle. The track lay along the street on which he was traveling and crossed to the north side at the point of the collision, the car coming from the direction in which he was going. Held, that the testimony warranted an inference that if a headlight had been in place on the car he would have been able to discover its approach, that the evidence was sufficient to sustain a verdict for plaintiff, who could not be held chargeable with contributory negligence as a matter of law.1</p>

<p>1. Waters and Watercourses — Adjacent Landowners — Flooding Lands.</p> <p>The right to drain, or dispose of surface water on land cannot be exercised by concentrating and pouring it, by means of an artificial ditch or drain, in unusual quantities and velocity greater than would be natural, upon adjacent property.1</p> <p>2. Same — Prescription.</p> <p>Prescriptive rights can only be exercised in the manner and to the extent that they have been used during the prescriptive period. ■</p> <p>3. Same.</p> <p>Evidence, in a suit for an injunction to restrain a defendant from maintaining a drain, reviewed, on appeal, and held,. to warrant the trial court in entering a decree restraining: the flowing of complainant’s real property.</p>

Case by Joseph Sceba, as administrator of the estate of Rosalia Sceba, deceased, against the Manistee Railway Company for the wrongful death of plaintiffs intestate. Judgment for plaintiff for an inadequate amount. Plaintiff brings error.

Assumpsit by Frank R. Poss, in justice’s court, against Squire M. Meader on certain promissory notes. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Bill by Art Hicks against Meyer Finbarg and the People’s Savings Bank for the enforcement of a mechanic’s lien. From a decree for complainant, defendant bank appeals.

<p>Error to Luce; Fead, J.</p> <p>Assumpsit by Moses Pentland against John K. Jacobson for the purchase price of certain potatoes. Judgment for defendant. Plaintiff brings error.</p>

Assumpsit in justice’s court by Julius J. Patek against William Ryskewiecz on an undertaking to secure plaintiff against the costs of an actioh. Defendant appealed to the circuit court from an adverse judgment. Judgment for defendant. Plaintiff brings error.

Bill by John Dallavo and wife against Henrietta Dallavo and another to set aside a contract and certain instruments of conveyance. From a decree dismissing the bill, complainants appeal.

Blanche Miller presented her claim against the Riverside Storage & Cartage Company and another for compensation for the death of her brother. From an award granted by the accident board, respondent brings certiorari.

<p>Error to Hillsdale; Chester, J.</p> <p>Ejectment by the Lake Shore & Michigan Southern Railway Company against John S. Sterling. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by Frederick J. Baldwin and others against the board of supervisors of Alger county to compel respondents to amend their return of a recount of the ballots cast at a local option election. From an order denying the writ, relators bring certiorari.

<p>1. Appeal and Error — Divided Court — Res Judicata — Law of Case.</p> <p>While a decision by an equally divided court may not be conclusive in other subsequent causes, having different parties, it operates as a rule of law binding upon the same litigants in a later appeal; hence, after such opinion sustaining the trial court which overruled a demurrer to plaintiff’s declaration, the Supreme Court will treat the parties as concluded by the determination in the former appellate proceedings upon a review of the evidence offered in support of plaintiff’s averments.</p> <p>2. Insurance — Burden of Prooi> — Want of Consideration — Evidence.</p> <p>In an action upon an insurance policy the burden was not upon plaintiff to show a consideration for attaching a loss payable clause stating that the insurance should be payable to the insured or his vendor as their interests might appear; it rested upon the defendant to establish its contention if it relied upon lack of consideration, — an affirmative defense.</p>

Case by Margaret H. Littlewood, as- special administratrix of the estate of Charles F. Littlewood, deceased, against the Detroit United Railway for the unlawful killing of the plaintiff’s intestate. Judgment for plaintiff. Defendant brings error. The following is the blueprint referred to in the opinion.

Mandamus by Charles J. Carlson against Thomas IB. Wyman and others to compel the respondents to approve the bond and liquor license of relator. From an order denying the writ relator brings certiorari.

<p>Criminal Law — Evidence—Larceny—Harmless Error.</p> <p>Where a witness, in a prosecution for the larceny of a cow,, had positively identified respondent as the man who sold him a cow answering the description of the one lost, evidence as to his conversation with the sheriff and the circumstances leading up to his identification of respondent by a photograph, was harmless error.</p>

Assumpsit by St. Joseph’s church against the city of Detroit to recover back taxes paid under protest. Judgment for plaintiff. Defendant brings error.

Exceptions from Ingham; Wiest, J. Rosetta Plummer was convicted of unlawfully selling intoxicating liquor in a county in which prohibition was in force.

Jacob Shevchenko presented his claim for an award under the workmen’s compensation act. From the award made, the Detroit United Railway brings certiorari.

Bill by James A. Shaw, as trustee of St. John’s Court, No. 949, and others, against John P. Hehl and others for an accounting and reconveyance of certain lands. From, a decree for complainants, defendant Hehl appeals.

<p>Error to Ingham; Wiest, J.</p> <p>Assumpsit by the Hydrex Silent Exhaust Works against the Seager Engine Works for breach of a contract of purchase. Judgment for plaintiff. Defendant brings error.</p>

Rose Papinaw presented her claim against the Grand Trunk Railway Company of Canada for compensation for the killing of her husband. From an award made, the respondent corporation brings certiorari.

Maryanna Matwiczuk presented her claim for compensation under the workmen’s compensation act against the American Car & Foundry Company for the death of her husband. From the award entered, contestant brings certiorari.

Case by Esther M. Cook, as administratrix of the estate of Frank J. Cook, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by Gustavus Otto against the Ann Arbor Railroad Company for the negligent killing of a horse. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal,from Barry; Smith, J.</p> <p>Bill in aid of execution by the Michigan State Bank of Eaton Rapids against George W. Kern and Nettie A. Kern. From a decree for complainant, defendants appeal.</p>

Case by Russell R. McPherson against the Western Union Telegraph Company for damages for failure to forward a message. Judgment for plaintiff. Defendant brings error.

Assumpsit by Grant E. Martindale against the Lob-dell-Emery Manufacturing Company, a Michigan corporation, for damages for breach of contract. Judgment for plaintiff. Defendant brings error.

Bill by Eugene Brooks against Austin R. Parks and others for the construction of the will of Polly Robinson, deceased. From a decree for defendants, complainant appeals.

<p>1. Divorce — Cruelty—Evidence,</p> <p>Testimony pro and con in a suit for divorce tending to show a miserly disposition on the part of the husband, and harsh or cruel treatment, held, to warrant a decree for the complainant wife.</p> <p>2. Same — Presumptions—Witnesses.</p> <p>Where the questions involved in a suit for divorce are questions of fact and the witnesses are greatly at variance as to the circumstances, the opportunity to observe their hearing and manner upon the witness stand is of great importance, and before reversing a decree the Supreme Court must be fully persuaded that it would necessarily have reached a different conclusion had it occupied the position of the court appealed from and been favored with all the advantages of that court for judging rightly.</p>

Bill by Jacob Ferie against the city of Lansing and others for an injunction restraining the defendant city from paying a lumber bill. From a decree for complainant, defendant Rikerd Lumber Company appeals.

Albert F. Parmalee presented his claim for services-against the estate of Fidelia Wigent, deceased, which, was not allowed by the commissioners on claims, and claimant appealed to the circuit court. Judgment for defendant of no cause of action. Claimant brings-' error.

Proceedings by Clarence L. Cline, under the workmen’s compensation act, against the Studebaker'Corporation and another for the partial loss of an eye. From the award entered, said corporation brings certiorari.

<p>Error to Kent; Perkins, J.</p> <p>Assumpsit by Philo C. Fuller against Samuel H. Metcalf for use and occupation of certain premises. Judgment for plaintiff. Defendant brings error.</p>

Petition by Frederick Haselo, to secure the appointment of a guardian of Orilla Haselo Chappell. From a judgment in the probate court finding her incompetent, respondent appealed to the circuit court. Judgment for petitioner. Respondent brings error.

Case by H. Chris Jorgensen, as administrator of the estate of Emil Ingmanson, deceased, against the Grand Rapids & Indiana Railway Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

Mandamus by William W. Gifford as administrator and trustee of tbe estate of Charles K. Perrine, deceased, against Edward F. Kinne, circuit judge for the county of Washtenaw, to compel the respondent to vacate an order reinstating an appeal from probate court of Albion College and another.

Mandamus by the Wisconsin Chair Company against Joseph Barton, presiding judge of the county of Charlevoix, to require the respondent to vacate a judgment and afford an opportunity to file proposed amendments to the findings of the court.

Mandamus by the Trumbull Motor Car Company against Patrick J. M. Hally, one of the circuit judges for the county of Wayne, to require respondent to vacate an order denying relator’s motion to quash service of process in an action in which it was defendant.

Summary proceedings by Vance McCreery against Frank E. Roff and another for the possession of real property. Judgment for complainant, which defendants removed by certiorari to the circuit court. Judgment for complainant. Defendants bring error.

Bill by Annie McQuillan against Frederick Ayer for an accounting, contribution, etc. From a decree for complainant for partial relief she appeals.

Assumpsit by Isaac Hecht against Frank Ebers and Avery Ebers, before a justice of the peace, for breach of a contract of sale. From the judgment rendered, an appeal was taken to the circuit court, in which judgment was rendered for plaintiff against defendant Frank Ebers and in favor of defendant Avery Ebers. Defendant Frank Ebers brings error.

Assumpsit by Charles A. Sauer and another against the McClintic-Marshall Construction Company for breach of a special agreement. Judgment for plaintiffs. Defendant brings error.

Case by Edward Brown against the township of Byron and others for personal injuries. From an order sustaining a demurrer to plaintiff’s declaration he brings error.

<p>1. Insurance — Fraternal Beneficiary Associations — Evidence —Trial— Directing Verdict.</p> <p>Where the testimony of defendant’s examining physician showed, on cross-examination, at the trial of an action on a benefit certificate, although he had stated affirmatively in his direct examination that decedent answered a question in her application relating to pregnancy by “No,” that he did not’recollect definitely actually asking the question, the trial court did not err in submitting the issue of decedent’s alleged fraud to the jury.</p> <p>2. Same — New Trial — Weight of Evidence.</p> <p>Held, also, on motion for a new trial, that the verdict was not so opposed to the weight of the evidence as to require the court to grant a new trial.</p>

Assumpsit by the American Brass Company, a foreign corporation, against John G. Emery, Jr., and others, to enforce the statutory liability for failure to file the annual report of a corporation, of the directors of the American Electric Fuse Company. From an order sustaining a demurrer to the declaration, plaintiff brings error.

Assumpsit in justice’s court by Leo Feist against Frank M. Root for goods sold and delivered. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>1. Evidence — Automobiles—Speed—Sufficiency — Incompetency.</p> <p>In a personal Injury case, for being run down by defendant’s automobile, in the dark, testimony of an eyewitness, that from the exhaust of the car it appeared to be going 30 miles an hour, was immaterial and should Rave been struck out, since the speed of a car has no necessary relation to the rapidity of the exhaust if the clutch is out; but the witness having expressed his opinion that the rate of speed, independently of the exhaust, was about 20 miles an hour, the error in admitting the testimony was harmless.</p> <p>2. Same — Opinion Evidence — Speed.</p> <p>The opinion of a witness who had been an engineer, and whose qualifications were established to form such judgment, that an automobile which he only saw move over a space of 20 feet before it struck plaintiff was moving at the rate of 20 miles an hour, was properly admitted, and its weight was for the jury.</p> <p>3. Same — Rebuttal—Affirmative Proof.</p> <p>While testimony that there were no lights on defendant’s automobile was not properly rebuttal, the court did not err in the exercise of its discretion by receiving the evidence.</p> <p>4. Same — Ordinance.</p> <p>Where the plaintiff’s contention was that he was riding along the street on a bicycle when defendant approached from the rear without lights and ran him down, and the contention of the defense was that plaintiff turned from the side and ran into the car, it was not error to exclude from the evidence an ordinance of the city wherein the accident occurred requiring vehicles that move slowly to keep as close as possible to the curb, on the right, allowing more swiftly moving vehicles free passage to their left; as the issues were such as to render the ordinance immaterial, the contributory negligence of plaintiff not being in issue if plaintiff’s evidence was believed, and the fact of being on the wrong portion of the road not affecting the claim of the defense that plaintiff without excuse turned into the moving automobile.1</p> <p>5. Trial — Charge—Requests.</p> <p>Where counsel for defendant, in response to an inquiry of the court at the close of the charge, orally ashed the court to instruct the jury in relation to defendant’s contention and claim that plaintiff turned out of his course and ran into the side of defendant’s automobile, and the court declined to instruct further, but the charge failed to cover the point referred .to by defendant’s attorney, the error was reversible and prejudicial although no request in writing was preferred; if such request was desired, counsel should have been given time in which to prepare it.</p>

<p>1. Intoxicating Liquors — Criminal Law — Minors — Unlawful Sale.</p> <p>Where respondent owned a building that was occupied by him in his business, being the headquarters oí a fishing club, whose members kept liquor stored upon the premises and drank there, and beer was shipped to his place in cases with the owner’s name attached, and where the practice in purchasing the liquor was to have the owner sign an order for the beer, and the respondent placed the order with the wholesaler, who held him responsible for the price, and in supplying club members with the liquor it was obtained by means of a service card on which a record of the liquor supplied was kept by a series of punches, respondent controlling and delivering the beer as wanted, he was guilty of furnishing liquor to a female minor who came to the club quarters with a member and two companions, to whom respondent brought in four bottles of beer and glasses for each person, and where all four were present in the parlor, when he brought in the beer, and it was charged or punched on the service card of the member; under the statute (Act No. 160, Pub. Acts 1909) the fact that the club member owned the beer was no excuse.</p> <p>2. Same — Joint Offense.</p> <p>That the club member was also guilty did not relieve the respondent from responsibility: there may be a joint furnishing of the liquor.</p> <p>3. Same.</p> <p>Under section 2, Act No. 160, Pub. Acts 1909, intent is not made an ingredient of the offense and ignorance of the fact that the female was a minor did not constitute a defense. It was his duty to see to it that there were no minors in the party before furnishing them with liquor.</p>

Case by Peter Dugas against the Munising, Marquette & Southeastern Railway company for personal injuries and damages to team and sleigh. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by Francis R. Shumway and others against Almira Mason and others for partition. From a decree for complainants, defendants appeal.

<p>Error to Wayne; Mandell, J.</p> <p>Assumpsit by Hugh L. Minds against George H. Keyes on a contract to divide broker’s fees. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by Charles Millar against Francis A. Hil- . ton and I. G. Hilton upon a promissory note. Judgment for plaintiff against Francis A. Hilton and for defendant I. G. Hilton on a verdict directed by the court. Plaintiff and defendant F. A. Hilton bring er- . ror.

Bill by Samuel Falls against the Grand Rapids, Grand Haven & Muskegon Railway Company for an injunction and other relief. From a decree for defendant, complainant appeals.

Willis M. Clark presented his claim for compensation for injuries received in the employ of David S. Clark. From an award rendered said respondent and the Union Casualty Insurance Company bring certiorari.

Lizzie G. Deem presented her claim for compensation for the death of her husband while employed by the Kalamazoo Paper Company. From the award entered the respondent brings certiorari.

<p>Divorce — Extreme Cruelty — Alimony.</p> <p>Helé, in a suit for divorce, that the complainant’s testimony showing cruelty of her husband sustained the granting of a divorce, and that an award of alimony of $4,000 worth of realty, out of property worth $11,000, and $800 cash, with a solicitor’s fee of $150, was not excessive.</p>

Mandamus by Thomas D. Kearney and by George B. Horton against the Board of State Auditors to compel respondents to audit payrolls of relators in accordance with an act increasing their salaries.

Bill by Ellis Kennedy and others against George Mutchler, drain commissioner of Van Burén county, and others, for an injunction and other relief. From a decree dismissing the bill of complaint, complainants appeal.

Case by Christ Aphoresmenos, as administrator of the estate of Frank Aphoresmenos, deceased, against Alexander McIntosh, for injuries resulting in the death of plaintiff’s decedent. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Assumpsit by Peter R. Voorhees. against Clinton Nelson and others for the recovery of money paid under duress. Judgment for plaintiff against defendant Nelson, who brings error.

Bill in aid of execution by the Union Banking Company against the Truscott Boat Manufacturing Company1 and others. From a decree overruling a demurrer to the bill, defendants appeal.