Volume 198 — Michigan Reports

Bill' by Charles H. Williams against Fred N. Williams and another to set aside a deed. From a decree dismissing the bill, plaintiff appeals.

<p>Railroads — Crossing Accident — Evidence—Sufficiency.</p> <p>In an action by a pedestrian against a railroad for damages for personal injuries sustained as the result of being struck by one of defendant’s trains at a crossing while his foot was caught between a rail and a plank outside the rail, evidence held, to warrant a verdict for plaintiff. Fellows and Brooke, JJ., dissenting.</p>

, presiding. Bill by Frederic B. Stevens against Richard M. Garland, Sarah A. Garland, and the Webster & McCausey Lumber Company to foreclose a mechanic’s lien. Defendant lumber company filed a cross-bill to enforce a lien. Defendants Garland filed a cross-bill making James S. Galvin, mortgagee, and the Maryland Casualty Company, surety on the contractor’s bond, parties. From the decree entered, plaintiff, and defendants Garland and Webster & McCausey Lumber Company appeal.

<p>Error to Alger; Fead, J.</p> <p>Quo warranto proceedings by the people of the State of Michigan, on the relation of David E. Simmons, prosecuting attorney, against August A. Anderson to try the title to the office of school trustee. Judgment of ouster. Defendant brings error.</p>

Bill by John E. Rennells and Richard J. Prendergast, trustee in bankruptcy of the De Witt-Potter Company, against William H. Potter and others to set aside a fraudulent transfer of the assets of said company. From a decree for plaintiffs, defendants appeal.

<p>Error to Wayne; Hally, J.</p> <p>Case by Ellen R. Bischoff against Frank R. Harris for breach of promise of marriage. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Barry; Smith, J.</p> <p>Bill by James W. Pollock and others against Alonzo McCarty and others to set aside a deed. From a decree dismissing the bill, plaintiffs appeal.</p>

Joseph; Knowlen, J. Case by Alpha Jacobs, administrator of the estate of Crebillion Jacobs, deceased, against the HagenbeckWallace Shows for personal injuries to plaintiff’s decedent. Judgment for plaintiff; Defendant brings error.

<p>Error to Oakland; Smith, J.</p> <p>Case by Minnie Hopkins against Arthur R. Tripp for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case by John Sandstrom, administrator of the estate of John Morris Sandstrom, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

<p>Error to Wayne; Mandell, J.</p> <p>Case by John S. McNeal against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Divorce — Extreme Cruelty — Evidence—Sufficiency.</p> <p>On a bill for divorce by a husband against his wife, evidence held, sufficient to show extreme cruelty on the part of the wife.</p> <p>2. Same — Fraud—Evidence—Sufficiency.</p> <p>Evidence held, insufficient to show such fraud upon the part of the wife in procuring a deed to all of plaintiff’s property as would support a decree canceling and setting aside the conveyance, and to ¿iot justify a decree for di-. vorce, where the bill for divorce would not have been filed, but for the purpose of canceling the conveyance.</p>

<p>1. Witnesses — Credibility—Question for Jury.</p> <p>The credibility of witnesses is a question' for the jury.</p> <p>2. Evidence — Admissibility.</p> <p>In an action by a passenger against a street railway company to recover for personal injuries, evidence as to whether a witness for defendant in his search of the reports on file found any report of the accident is inadmissible.</p> <p>3. Trial — Remarks by Counsel — Evidence—Admissibility.</p> <p>In an action by a passenger against a street railroad company for personal injuries, it" is improper for counsel for the defendant to tell the jury that no report was made of any such accident to defendant by the crew, as evidence to such effect would be inadmissible if offered.</p> <p>4. Same — Conduct oe Court — Expert Witnesses.</p> <p>Where the cross-examination of a medical witness for plaintiff, in an action against a street railway company for personal injuries was, in some respects, of very doubtful propriety, the trial court committed error in expressing impatience at objections to the cross-examination of the witness and informing the jury that the mere fact that the physician possessed special knowledge did not warrant giving credence to his testimony, and emphasizing the right of cross-examination and credibility of witnesses.</p> <p>5. Street Railways — Personal Injuries — Negligence—Instructions.</p> <p>In an action by a prospective passenger against a street railway company for personal injuries alleged to be due to her hold upon the car and her clothing catching in the door of a folding step car, upon its being closed as she attempted to board the car, and her being dragged some distance, the contributory negligence of the plaintiff was involved warranting an instruction on the subject, where plaintiff testified that the conductor shut the door in her face, while she had one foot on the step, and rang the bell for the car to move, and then described what immediately occurred, involving her position, her actions, as well as the movement of the car, and the result.1</p>

<p>Error to Wayne; Van Zile, J.</p> <p>Assumpsit in justice’s court by William S. Allen against Frank E. Hook on a promissory note. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

Martha Kauri presented her claim for compensation against John Messner for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Deposit Company, insurer, bring certiorari.

Floyd Cook presented his claim for compensation against Charles Hoertz & Son for injuries received in defendants’ employ: On petition of defendants for an order discontinuing weekly payments. From an order denying the petition, defendants bring certiorari.

Louise A. Dove presented her claim for compensation against the Alpena Hide & Leather Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the ¿Etna Life Insurance Company, insurer, bring certiorari.

Mandamus by Harry J. Dingeman to compel the State board of canvassers to refrain from recounting the ballots in an election of circuit judges.

<p>Error to Lenawee; Hart, J.</p> <p>Case by Leo Guy against the Cincinnati Northern Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Compromise and Settlement — Payment—Admissions.</p> <p>Where the purchasers of steel claimed credit for labor in tagging the pieces in a letter inclosing a check for the balance, after deducting the amount of the claim, a letter in reply from the seller asking the purchasers to forward bills for the charges so that they could be passed upon and credited, if correct, did not constitute an admission that the check was received as payment</p>

<p>1. Injunction — Right to Relief — Permanent Structures — Equity — Remedy at Law — Damages.</p> <p>Where the owner of land bordering on a lake has had knowledge for a number of years of the Increased.height of the water due to a dam of a power company, has stood by and allowed the company to spend a great deal of money in acquiring flowage rights and in making other large investments, and, in two different actions, has recovered and been paid damages for overflow for a series of years, he is not entitled to an injunction to compel the lowering of the dam to its former height, but the case will be remanded to take proofs on the question of damages in full satisfaction for the damage, past and prospective.</p> <p>2. Waters and Watercourses — Flooding Lands — Damages, Measure oe — Permanent Injuries.</p> <p>The measure of damages for the overflow of land bordering on a lake, due to the increased height of a dam, is the difference in value of the property as it is and as it would be if the dam had remained without alteration.1</p>

<p>1. Automobiles — Liability of Owner — Negligence—Statutes.</p> <p>Under Act No. 302, Pub. Acts 1915, § 29 (1 Comp. Laws 1915, § 4825), providing that the owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle when it is being driven by another with his express or implied consent or knowledge, where the owner loans it to a company for use in its business and a wagon and team belonging to a third person are injured as the result of the negligence of the company's driver, the owner is liable.</p> <p>2. Same — Statutes—Constitutionality.</p> <p>Act No. 302, Pub. Acts 1915, § 29, relating to the liability of the owner of a motor vehicle for injury occasioned by negligence in operation while it is being driven by another by his express knowledge and consent, while safeguarding the rights of persons having occasion to use the streets, does not unreasonably infringe upon the rights of those able to own automobiles^ and is within the police power of the State.1</p>

<p>Error to Berrien; North, J., presiding.</p> <p>Case by Elmer E. Rouse against Frank W. Blair and others, receivers of the Pere Marquette Railroad Company for personal injuries to himself, his wife, and child. Judgment for plaintiff. Defendants bring error.</p>

<p>1. Boundaries — Documentary Evidence — Records of Surveys— Admissibility in Evidence.</p> <p>Surveys of State, but not Territorial, surveyors, are admissible in evidence under Act No. 196, Pub. Acts 1915, § 102 (1 Comp. Laws 1915, § 2486), providing that “records of surveys, field notes, and calculations made by any former county surveyor which has been, or shall be, on file in the office of the county surveyor, register of deeds or county clerk for a period of fifteen years or upward * * * shall be admissible in evidence of the facts they contain in any court of record.”</p> <p>2. Same.</p> <p>Records of surveys and other papers that have heen subject of statutory regulation are not admissible as ancient records.</p> <p>3. Evidence — Records of Surveys — Admissibility.</p> <p>Under Rev. Stat. 1846, chap, xiv, §§ 96, 97, 102, providing that certain records of surveys made by the county surveyors since the organization of the State government may be received in evidence, records of surveys are not competent evidence unless made by county surveyors.</p> <p>4. Same — Surveyors—Mistakes—Declarations of Deceased Surveyor — Admissibility.</p> <p>Declarations by a surveyor, since deceased, to his employer that he had made a mistake in a former survey are admissible where such mistake was discovered during the course of the second survey, but it is not apparent whether the surveyor made the declaration in the course of such second survey.</p> <p>5. Appeal and Error — Instructions—Chakge as Whole.</p> <p>Where the charge of the court, taken as a whole, correctly states the law as applicable to the particular case, and clearly defines the issue, the fact that sentences are objectionable, when considered independent of the context, does not constitute reversible error.</p> <p>6. Adverse Possession — Boundaries—Instructions — Ejectment —Government Surveys — Burden of Proof.</p> <p>In an action of ejectment, in which the boundary line between two tracts of land was in dispute, the charge dealing with the manner of making government surveys and their conclusiveness, the establishment of boundary lines by adverse possession, and the burden of proof, held, to be sufficient.</p>

Bill by Clark C. Otis against Byron Arntz, administrator, with the will annexed, of the estate of Norman L. Otis, deceased, and others to set aside said will as in violation of the statute against perpetuities. From a decree dismissing the bill, plaintiff appeals.

Frank A. Gardnier presented for probate the last will and testament of Esther J. Gardnier, deceased. The will was allowed in the probate court, and Henry Harvey Smith appealed to the circuit court. Judgment for proponent. Contestant brings error.

Cross-appeals from Hillsdale; Collingwood, J., presiding. Bill by Amariah F. Freeman against C. T. Mitchell and others, executors of the estate of William W. Mitchell, deceased, the Alamo Manufacturing Company and others to enjoin the foreclosure of a mortgage against defendant corporation. From an order dissolving a temporary injunction and denying a motion to dismiss, both parties appeal.

<p>Error to Sanilac; Beach, J.</p> <p>Assumpsit by Hugh McPhee against the Millers’ National Insurance Company on a policy of fire insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

<p>Error to Ingham; Collingwood, J.</p> <p>Case by Frank McLawson, administrator of the estate of Arthur I. McLawson, deceased, against the Paragon Refining Company for the negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

<p>1. Street Railways — Franchises—Forfeiture—Municipal Corporations.</p> <p>A municipality may not extrajudicially forfeit a street railroad franchise where the company has constructed its road after the time prescribed by the ordinance has expired, and such construction is carried on without interference by the municipality, and especially where the company entered upon the construction of the road in good faith, relying upon the grant.</p> <p>2. Same.</p> <p>Municipalities, in the performance of legislative functions involving discretion and judgment, can so act only at authorized meetings duly held, and the members of a township board granting a franchise to a street railroad cannot make a valid determination of forfeiture binding upon the municipality by their assents separately or individually expressed.</p> <p>3. Same — Franchises—Construction.</p> <p>Yihere an interurban railroad franchise granted by a township relating to the charge to be made was clear and unambiguous and provided for a rate of 1% cents per mile from any point within the township to any point within a city, and from any point within the city to any point within the township, with a minimum charge of 5 cents, and this construction of the franchise had been adopted by the various operating and owning companies during a period of 12 years, held, that the operating company was operating the interurban railroad under such franchise and that it was immaterial that the grantee of the franchise constructed the road only to a particular point in the city, and not to the interurban station,. and did not warrant the collection of a city 5 cent fare for the ride between such point and the interurban station over tracks of a street railroad under a city franchise, to the rights under which the operating company as lessee had succeeded.</p>

George Bloss presented his final account as executor of the will of Charles Rehfeld, deceased. The account was disallowed in part by the probate court, and the executor appealed to the circuit court. Judgment allowing the account in full on a directed verdict. Arthur E. Schreiter, a residuary legatee, brings error.

Bill by Anthony J. Andre and others against Timothy R. Donovan to restrain the erection of a building in violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.

<p>1. Trial — Conduct of Plaintiff — Discretion of Court.</p> <p>The fact that the plaintiff in an action of breach of marriage promise, aggravated by seduction, becomes hysterical during a recess, is not reversible error where the court cautions the jury with reference thereto.</p> <p>2. Breach of Marriage Promise — Seduction — Requests to Charge.</p> <p>In an action for breach of marriage promise, aggravated by seduction, a requested instruction that if the jury found that the only consideration for the promise, if any promise was made, of marriage, was a promise that, if plaintiff would submit herself to have sexual intercourse with, defendant, he would marry her in case she became pregnant, and that was the only consideration, the contract rested upon an immoral consideration and was void, was improperly refused.</p> <p>3. Same — Immoral Consideration — Validity.</p> <p>If a woman submits herself to the sexual embraces of a man solely in consideration of his promise to marry her if she becomes pregnant, such consideration is immoral and a promise based thereon is void.</p>

<p>Error to Sanilac; Beach, J.</p> <p>Assumpsit by Charles Fisk against the Liverpool & London & Globe Insurance Company, Limited, on a policy of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

Assumpsit by Chauncey M. Brown against Frank J. Hurt and another for services rendered. Judgment for defendants on a directed verdict. Plaintiff brings error.

, presiding. Assumpsit by the Grand Rapids Terminal Belt Railway Company against Dudley E. Waters and another, receivers of the Pere Márquette Railroad Company, and against the Pere Marquette Railroad Company for trackage service. By stipulation the cases were tried as one. Judgment for defendants. Plaintiff brings error.

Bill by William Saier and others against William H. Joy and another to enjoin the maintenance of an undertaking establishment in a residential neighborhood. From a decree dismissing the bill, plaintiffs appeal.

<p>Error to Wayne; Cross, J., presiding.</p> <p>Assumpsit by John M. Crossman against the American Insurance Company of Newark, New Jersey, on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Contracts — Gambling Contracts — Fraud—Public Policy.</p> <p>A scheme for the sale of groceries as an incident to the giving of certificates in a so-called advertising campaign, which certificates, at the end of the period, are to be counted to determine which one of 100 candidates should have a piano and other various articles, and which scheme is part of a contract of sale of the prizes, is illegal.</p> <p>2. Same.</p> <p>A contract for the purchase of a piano and other articles to be used to put in operation a so-called advertising campaign by a merchant, including an illegal scheme for the furtherance of such campaign which is the inducement to the contract, is void and unenforceable.</p>

Andrew Podkastelnea presented Ms claim for compensation against the Michigan Central Railroad Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Case by Stanley P. Donlin against the Detroit United Railway and anothe'r for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

Bill by William A. Weihe and another against the Macatawa Resort Company to restrain the erection of a hotel. From a decree dismissing the bill, plaintiffs appeal.

<p>1. Contracts — Terms and Conditions — Rescission.</p> <p>Where a person, accepts a contract and acts upon it he iso hound to know its terms and conditions, and he cannot accept its benefits, or a part thereof, and reject the balance, or plead ignorance of its conditions.</p> <p>2. Insurance — Life Insurance — Opinions—Fraud;</p> <p>Statements by an insurance company, which has reinsured a life policy, that dividends ought to operate to reduce very materially the charges against the policy, even though they did not entirely offset them, constitute merely an expression of an opinion as to what might occur in the future and cannot be made the basis of an action for fraud, nor for the recovery of the premiums paid.</p> <p>3. Same — Payment of Premiums — Voluntary Payments.</p> <p>Payments of premiums by an insured on a life policy are voluntary, where the insured is during all the period insured and has the benefits of the policy, and they cannot be recovered back.</p> <p>4. Payment — Voluntary Payments — Protest.</p> <p>Payment made under protest does not change a voluntary into an involuntary payment.</p> <p>5. Insurance — Life Insurance — Reinsurance—Statutes.</p> <p>A reinsurance contract is not within the provisions of 2 Comp. Laws, § 7217 (2 Comp. Laws 1915, § 9351), providing that life insurance companies shall not make any insurance contract with any citizen of the State which shall not state distinctly the amount of life benefits, manner of payment, period of continuance and amount of premiums, and that any person who may have paid money therefor may recover same back at any time within six years from date of payment.</p> <p>6. Same.</p> <p>Even if a reinsurance contract is within the provisions of 2 Comp. Laws, § 7217 (2 Comp. Laws 1915, § 9351), it complies with the statute where the original policy states n9t only the amount of ^insurance, but the monthly premium, and the insurer assumed all obligations of the policy, subject to the terms of a reinsurance contract between it and. a third insurance company with which the risk had been previously reinsured, and the legality of the contract is unaffected by a demand of a greater than the specified premium.</p> <p>7. Same — Life Insurance — Reinsurance — Noncompiiance with Statute — Estoppel.</p> <p>In an action against an insurance company, which had re-insured a life risk, to recover premiums paid, held, that plaintiff was estopped from invoking the provisions of 2 Comp. Laws, § 7217 (2 Comp. Laws 1915, 5 9351), relating to the requirements of life insurance policies and giving the right of action for recovery of premiums paid under policies not complying with the statute.1</p>

<p>Appeal from Lenawee; Hart, J.</p> <p>Bill in aid of execution by Clara C. Lipp against Carrie Jacobs and another. From a decree for plaintiff, defendants appeal.</p>

Assumpsit in justice’s court by Henry Dattner against Andrew Weisz for moneys had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

Assumpsit, by the township of Rockland against James W. Oxnam and others for the nonperformance of a road contract. Judgment for defendants. Plaintiff brings error.

<p>1. Master and Servant — Personal Injuries — Railroads — Evidence — Question eor Jury.</p> <p>In an action by a railroad switchman to recover for personal injuries due to being caught between the beam at the front of a switch engine and a post in a fence through which a side track passed into a building as he jumped off the footboard of the engine on which he had been riding, held, on conflicting evidence, that it was a question for the jury whether the engine was operated at an excessive speed.</p> <p>2. Same — Personal Injuries — Contributory Negligence.</p> <p>Recovery could not be denied on the ground of contributory negligence of plaintiff in riding on the footboard of the engine where the only evidence on the subject was that of the engineer that the supposition was that the footboard was a proper place for switchmen to be and that he had a right to expect them there.1</p> <p>3. Same — Personal Injuries — Negligence—Instructions.</p> <p>An instruction that the jury would be warranted in finding that it was the duty of the engineer to stop if steam was blowing in his face and obscured his vision for any considerable length of time; that it .was defendant’s claim that the engineer was exercising due care and was on the lookout for signals and did not see any; that he did not see any and that the engine was not being run at a negligent rate of speed, and that if this was the case, it was for the jury to determine whether it was his duty to stop until his vision was cleared, was correct.</p> <p>4. Appeal and Error — Excessive Verdicts — Denial oe Motion eor New Trial.</p> <p>Where the question of excessive verdict is raised in a personal injury action, by a motion for new trial, and the motion is denied, and the reasons therefor filed, but no exception is filed, the question will not be considered on appeal.</p> <p>Trial — Argument of Counsel — Harmless Error.</p> <p>The misconduct of counsel for plaintiff in a personal injury action, in referring to the circumstances of an accident to a passenger alighting from a train, and relating a conversation with counsel for plaintiff in another action as to the right.of recovery and the subsequent death of the plaintiff in such other action, is harmless error where the question of an excessive verdict has not been preserved for review.</p> <p>6. Same.</p> <p>Any misconduct of counsel for plaintiff in an action for damages for personal .injuries in referring to the fact that certain persons were fortunate enough tj receive their pay from the railroad company, meaning plaintiff’s attending physician in particular, is harmless error, where the testimony relating to who had paid plaintiff’s medical bill, on which the statement was based, was stricken out by the court and the jury warned to disregard it.</p>

<p>Corporations — Foreign Corporations — Bankruptcy—Receivers— Chattel Mortgages — Estoppel.</p> <p>The receiver in bankruptcy of the property of a foreign corporation which is engaged in business in the State without compliance with the law relating to the transaction by foreign corporations of business within the State, is es-topped to raise the question of the invalidity of a mortgage of corporate chattels in an action of replevin to recover such chattels, he having no greater rights than the corporation.</p>

Bill by Albert Rodenhouse against William E. De Golia, Henry H. D. Langereis and others to set aside a deed and sale on the ground of fraud. Defendant Langereis filed a cross-bill for the forfeiture of a land contract. From the decree rendered, defendant De Golia appeals.

Case by Amos J. Parsons, administrator of the estate of Verne Oscar Parsons, deceased, against the E. I. Du Pont De Nemours Powder Company for the negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Assumpsit by Claud R. Sparks and Jacob F. Schaefer, copartners as Sparks & Schaefer, against John S. Lord for a balance due upon a contract for the installation of a heating plant. Defendant filed a plea and notice of recoupment. Judgment for defendant. Plaintiff brings error.

Willis E. Hodgman presented for probate the will of John Sparks, deceased. The will was allowed in the probate court, and Esther Sears and others appealed to the circuit court. Judgment for proponent, Contestants bring error.

Case by Hugh C. Wilmarth against the Michigan United Traction Company for the negligent killing of plaintiff’s horses. Judgment for plaintiff. Defendant brings error.

Josephine Miller presented her claim for compensation against the Acme White Lead & Color Works for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Travelers’ Insurance Company, insurer, bring certiorari.

Florence Stombaugh presented her claim for compensation against the Peerless Wire Fence Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, insurer, bring certiorari.

Case by Ludwicka Bury, administratrix of the estate of John Rusala, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s decedent. Judgment for defendant. Plaintiff brings error.

Assumpsit in justice’s court by the Travelers’ Insurance Company against the Benjamin Douglas Company for the amount of premium on a policy of insurance. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Norman F. Wray against the Tilden Saw Company for salary earned. Judgment for plaintiff'on a directed verdict. Defendant brings error.</p>

, presiding. Mandamus by Daniel J. Campau to compel the board of county auditors of Wayne county to approve a plat. From an order denying the writ, plaintiff brings certiorari.

Separate actions of assumpsit by the Fletcher Paper Company and others against the Detroit & Mackinac Railway Company for excessive freight charges. Judgments for plaintiffs. All parties bring error.

<p>1. Master and Servant — Workmen’s Compensation Law — Acceptance by Employer — Retroactive Effect.</p> <p>An employer is within the operation of the workmen’s compensation aet, by the provisions of section 6, part 1, thereof (2 Comp. Laws 1915, § 5428), from the date of the filing of his statement of acceptance if the approval of the industrial accident board be subsequently given, such approval operating retroactively to accomplish this result.</p> <p>2. Same.</p> <p>The common-law defenses withdrawn by section 1 thereof are open to the employer under section 3, part 1, of the act (2 Comp. Laws 1915, § 5425), when he is under the act and the employee either voluntarily or involuntarily is not under it.</p> <p>3. Same.</p> <p>The purpose of the legislature in making the industrial accident board’s approval of the employer’s acceptance of the workmen’s compensation act operate retroactively so as to place the employer under the act from the date of the filing of'his statement was to prevent the penalising of the employer by the denial to him of his common-law defenses after he had indicated his desire to come under the act during the short period which must elapse between the filing of the acceptance and its approval by the board.1</p>

<p>Error to Wayne; Cross, J., presiding.</p> <p>Case by William Porth against the Cadillac Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Bill by Catherine Tattan against John A. Bryant for the specific performance of an alleged land contract. From a decree dismissing the bill, plaintiff appeals.

<p>Error to the superior court of Grand Rapids; Dun-ham, J.</p> <p>Lawrence Page was convicted of murder in the first degree, and sentenced to imprisonment for life in the branch of the State prison at Marquette.</p>

<p>Error to Calhoun; North, J.</p> <p>Mary E. Winsor presented her final account as executrix of the last well of Charles Pratt Brown, deceased. On order of final distribution, Calista R. Eastman petitioned for distribution to her as sole heir at law. On the death of petitioner, Joseph J. Kennedy, administrator with the will annexed, was substituted in her stead. The will was sustained in the probate court and an order of final distribution entered, from which order petitioner appealed to the circuit court. Judgment affirming the order of the probate court. Petitioner brings error.</p>

<p>1. Appeal and Error — Review—Presumptions.</p> <p>Where no bill of exceptions was settled, it will be presumed, upon appeal, that the testimony supported the findings of fact made by the trial judge.</p> <p>2. Principal and Agent — Knowledge of Agent.</p> <p>The knowledge of the agent is the knowledge of the principal.</p> <p>3. Same.</p> <p>The rule that knowledge of the agent is knowledge of the principal is applicable where a husband, as agent for his wife, makes a loan, and takes notes as collateral security therefor, the consideration for which is known and is illegal, for his principal, and latter subsequently claims to be a Iona fide holder of such notes.</p>

, presiding. Bill by George Raniak and another against Edward Pokorney and others to quiet title to land, to set aside certain deeds as fraudulent and for an accounting. From a decree dismissing the bill, plaintiffs appeal.

Bill by Ella L. Powell and others against Clara Pennock for an accounting for claimed assets of the estate of Asa B. Pennock, deceased. From a decree dismissing the bill, plaintiffs appeal.

, presiding. Bill by Charles C. Potter and another against the Dundee Hydraulic Power Company to restrain the maintenance of a dam at an excessive height, and for damages caused by flooding. From a decree for plaintiffs, defendant appeals.

<p>1. Evidence — Admissibility—Testimony on Former Trial.</p> <p>Evidence held, not to show that, plaintiff’s illness was so> severe and of such permanent character that he could not testify so as to render admissible his evidence in another case as to the validity of the claimed contract involved in each case.</p> <p>2. Same — Competency—Corporations—Officers—Admissions.</p> <p>Statements and admissions of the president and general manager, and the treasurer of a corporation, who constitute a majority of the directors and are both officially and actively engaged in the business, relative to the existence of a contract with plaintiff, are competent evidence, in a suit against the corporation by an agent for an accounting as to commissions on goods sold.</p> <p>3. Corporations — Officers — Authority to Make Agency Contract.</p> <p>Evidence held, to show that the president and general manager of defendant corporation had authority to make an agency contract.</p>

Bill by George E. Stotts and another against Elizabeth Stotts and another to quiet title to land and for an accounting. From a decree dismissing the bill, plaintiffs appeal.

Case in justice’s court by John E. McDonald against Mathew A. Young for the conversion of an automobile. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff. 'Defendant brings error.

<p>1. Street Railways — Crossing Accidents — Contributory Negligence.</p> <p>The driver of a one horse loaded coal wagon which is struck by a street car is not chargeable with contributory negligence where it appears that he was walking on the side of the wagon opposite that from which a street, car was approaching from the south on the further track on the street he was crossing, and just between the wagon box and the horse where he could see, and he made a careful observation just before starting across the nearer track and noted a car coming from the south over a block distant, and, at the rate his horse was traveling, decided he could safely cross, and twice as far, before the car arrived, provided it was run at the lawful speed, and he exercised' the judgment of an ordinarily cautious and prudent man under like circumstances.1</p> <p>2. Same — Excessive Speed — Question for Jury.'</p> <p>The question of speed of a street car is for the jury where the ' evidence as to the rate it is going when it strikes a wagon crossing the street is conflicting.</p> <p>3. Appeal and Error — Directed Ygrdict — tReview.</p> <p>Where an adverse directed verdict is contended for, the testimony introduced by plaintiff is to be taken as true and viewed in the light most favorable to his contention.</p> <p>4. Street Railways — Excessive Speed — Presumptions.</p> <p>The driver of a wagon proceeding across a street has the right to assume that the speed of an approaching street car does not exceed that allowed by law.2</p>

Case by James Mills against Dudley E. Waters and Paul H. King, receivers of the Pere Marquette Railroad Company, for personal injuries and damages to his automobile. Judgment for defendants on a directed verdict. Plaintiff brings error.

Bill by the Pellston Planing Mill & Lumber Company against Austin H. Van Wormer to set aside a sheriff’s deed, to restrain defendant from entering or remaining on the premises, and for general relief. From a decree dismissing the bill, plaintiff appeals.

<p>Error to superior court of Grand Rapids; Dunham, J.</p> <p>Assumpsit by Cyanea H. Ramsey against Child, Hulswit & Company for money obtained by fraud and deceit. Judgment for defendant. Plaintiff brings error.</p>

Assumpsit in justice’s court by Charles W. Harrison against John A. Grier on a promissory note. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Bill by Charlotte Flax against the Mutual Building & Loan Association of Bay County to set aside the foreclosure of a mortgage, and for an accounting. From a decree dismissing the bill, plaintiff appeals.

, presiding. Assumpsit by the township school district of the township of Wakefield against Albert D. MacRae and another for the noncompletion of a sewer contract. Judgment for defendant MacRae.. Plaintiff brings error.

, presiding. Bill by Joseph B. Howard against George Lovett, ’Elizabeth M. Crane and others to enjoin the use of a trade-name. Defendant filed a cross-bill to establish her right to said name. From a decree for plaintiff, defendant Crane appeals.

Bill by William J. Hartwig and others against the Grace Hospital to enjoin the violation of building restrictions. From a decree dismissing the bill, plaintiffs appeal.

, presiding. Assumpsit in justice’s court by Edwin J. Kruce against the Lakeside Biscuit Company for goods sold and delivered. From an order overruling a plea in abatement,, defendant appealed to the circuit court by writ of certiorari. Judgment for plaintiff. Defendant brings error.

, presiding. Sarah Hansen presented for probate the last will of Catherine Canterbury, deceased. The will was allowed in the probate court, and Hattie Manning appealed to the circuit «court. Judgment for proponent. Contestant brings error.

<p>1. Appeal and Error — Admission op Testimony — Harmless Error.</p> <p>In an action for damages for assault and battery, a question put to a physician as to whether in the treatment which he was required to give plaintiff it was necessary that he make any investigation as to whether or not the patient had a hernia and its answer was harmless error where the objectionable part of the question, as to whether it was necessary to make such investigation, was not answered.</p> <p>2. Evidence — Admissibility—Damages.</p> <p>In an action for damages for assault and battery, evidence of the conduct of plaintiff in attempting to do work after the assault is admissible to show the extent, nature and probable effects of the injury.</p> <p>3. Same — Admissibility—Opinions—Harmless Error.</p> <p>In an action for damages for assault and battery, the affirm- ' ative answer of plaintiff’s wife as to whether plaintiff after the injury had any pain about his head was harmless error, where the ruling was made by the court that the witness could state what she noticed, and she subsequently testified that while in bed he often moaned and groaned and rolled and tossed from side to side.</p> <p>4. Witnesses — Examination — Correcting Mistakes in Testimony — Question por Jury — Harmless Error.</p> <p>In an action for damages for assault and battery, it was harmless error to permit plaintiff’s counsel to take an answer of plaintiff upon redirect examination as to whether he understood a question put to him by defendant’s counsel and to correct his answer, where the court stated that it was for the jury to say whether he in fact misapprehended the question.</p> <p>5. Same — Expert Testimony — Hypothetical Questions — Appeal • and Error.</p> <p>In an action for damages for assault and battery, any error based upon a hypothetical question put to a physician, whose answer was not based upon an opinion and indicated a knowledge of the facts acquired as an attending physisian, cannot be complained' of by defendant, where no objection was made to the withdrawal of such question and plaintiff’s counsel examined the physician as to his actual knowledge of plaintiff’s condition, based upon his personal observation.</p> <p>6. Same.</p> <p>In an action for damages for assault and battery, it is not error to allow a physician testifying for plaintiff to answer a question as to whether, if plaintiff’s ear was filled with dirt, gravel and blood, as the witness found upon his examination, that would be the natural and most probable way of having germs introduced into the ear, where the answer of the witness was based entirely upon his personal observation and not upon hypothesis.</p> <p>7. Same.</p> <p>A physician who has examined a patient may, in an action for damages for assault and battery, state whether or not the patient is unable to hear.</p> <p>8. Same.</p> <p>It is the better practice to reduce a hypothetical question to writing where the facts are confusing or complicated.</p> <p>9. Same.</p> <p>There is no reversible error in the allowance of a hypothetical question not reduced to writing, where the facts are .complicated and confusing, where the jury is instructed that before they can consider a hypothetical question and its answer they must find that the assumed facts have been established by a preponderance of the evidence.</p> <p>10. Same — Instructions.</p> <p>It is harmless error to allow a hypothetical question not reduced to writing which assumes facts set forth in a prior question, where the jury was instructed after the giving of the prior question that before they could consider a hypothetical question and its answer they must find that the assumed facts have been established by a preponderance of the evidence.</p> <p>11. New Trial — Misconduct of Spectators.</p> <p>It was not ground for a new trial, in an action for damages for assault and battery, that the wife and daughter of plaintiff, witnesses in the case, wept when plaintiff’s counsel, in his closing argument, referred to the fact that plaintiff would permanently be affected in his hearing.</p> <p>12. Damages — Assault and Battery — Excessive Verdict.</p> <p>In an action for assault and battery, a verdict for $2,500 was not excessive where plaintiff lost some teeth as the result of the assault, was in bed for a week, and later went to a hospital and underwent an operation for hernia, suffered the entire loss of hearing in one ear and 50 per cent, loss in the other, and expended the sum of $337 for medical and hospital fees.1.</p>

<p>1. Appeal and Error — Motion for New Trial — Scope of Review.</p> <p>Where no request was made to the trial court to file its reasons for denying a motion for a new trial by defendant, and no reasons were filed by it, and no exception was taken to the denial of the motion, the propriety of denying the motion is not available on appeal.</p> <p>2. Damages — Personal Injuries — Pleading—Sufficiency.</p> <p>In a personal injury action, a declaration stating that by “means of the premises the said plaintiff was forced and obliged and did lay out and spend a large amount of money, to wit, ?200, in and about endeavoring to be cured of said sickness, lameness, nervousness, and disorders occasioned as aforesaid,” and that he will be forced to pay out further sums in the future, and that the disabilities were permanent in character, held, sufficient to support proof as to number of visits paid by plaintiff’s doctor and the amount of his charges.</p> <p>3. Same — Personal Injuries — Ability to Work — Evidence.</p> <p>The answer of plaintiff to the question as to how much time he could work because of his injury, that he could work probably four days in the week, was not objectionable as being speculative, uncertain, remote, and a mere guess, where plaintiff was carefully examined both on direct and cross-examination as to his ability to labor.</p> <p>4. Evidence — Automobiles—Collisions—Opinion of Witness— Conclusions.</p> <p>A question put to a witness, in an action by a bicycle rider against the driver of an automobile to recover damages for personal injuries, as to whether defendant appeared to have his car under control was not objectionable as calling for a conclusion.</p> <p>5. Same.</p> <p>The exclusion of the answer of a witness to a question whether defendant had his automobile under control, on the ground that it called for a conclusion, was harmless error, where, in later examination, the witness stated that the car did not run more than six feet after the collision and that defendant put his foot on the brake and the clutch at the same time and stopped the car almost instantly.</p> <p>6. Trial — Striking Out Testimony — Opinions.</p> <p>In an action by a bicycle rider against the driver of an automobile for personal injuries sustained in a collision, the testimony of defendant’s wife that she knew defendant was not looking back because he never did look back when driving was properly stricken out.</p> <p>7. Automobiles — Highways and Streets — Crossing Accidents— Collisions — Negligence—Contributory Negligence — Question for Jury.</p> <p>In an action by a bicycle rider against the driver of an automobile to recover for personal injuries received in a collision near a street intersection occurring after plaintiff had crossed the intersecting street and defendant had turned on the latter street to go in the same direction as plaintiff, held, that the questions of negligence and contributory negligence were for the jury.1</p>

Case in justice’s court by Albert Anders against Roll Clover for assault and battery. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Replevin by Samuel A. Robinson against Charles Taber, treasurer of Goodar township, and another, for property levied on for taxes. Judgment for defendants. Plaintiff -brings error.

Assumpsit in justice’s court by the Saginaw Milling Company against John Schram for breach of a contract for the sale of hay. There was judgment of recoupment for defendant, and plaintiff appealed to the circuit court. Judgment for 'defendant. Plaintiff brings error.

, presiding. Bill by Michael McNamara against Josephine Langguth and others to quiet title. From a decree dismissing the bill, plaintiff appeals.

Bill of interpleader by the People’s State Bank of Holland against Mrs. Fred Zuber and Fred T. Miles, administrator of the estate of Florence Miller, deceased, to determine the title to a deposit. From a decree for defendant Zuber, defendant Miles appeals.