Volume 208 — Michigan Reports

), J., presiding. Rehearing denied April 10, 1920. Bill by Rolandus A. .Garber and others against Frank P. Town and others for an accounting. From a decree for plaintiffs, defendants appeal.

Bill by Maurice Bollstrom against the Duplex Power Car Company and others for an accounting. From a decree dismissing the bill, plaintiff appeals.

), J., presiding. Bill by Albert Gundick against Martha Gundick for a divorce. Defendant filed a cross-bill asking for a divorce. From an order denying a motion to set aside an amended decree for defendant, she appeals.

Case-made from Kent; Brown (William B.), J. Case in justice’s court by Anna Maloney and another against Arthur Webber and another for trespass upon land. There was judgment for defendants, and plaintiffs appealed to the circuit court by writ of certiorari. Judgment for defendants. Plaintiffs appeal.

Alexander Lupu was convicted of an assault with intent to commit rape, and sentenced to imprisonment for not less than one nor more than ten years in the Detroit house of correction.

<p>Error to Grand Traverse; Mayne (Frederick W.), J.</p> <p>Assumpsit by Albert G. Kyselka against the Northern Assurance Company of Michigan for breach of an agency contract. Judgment for plaintiff. Defendant brings error.</p>

), J. Bill by Henry Spitzley and another against Earl D. Garrison and others to set aside a sale on execution, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.

Certiorari by Fred C. Zimmerman and another against Samuel L. May, circuit court commissioner of Wayne county, to review an order denying a motion to dismiss summary proceedings for want of proper service.

), J. Assumpsit by the people of the State of Michigan, for the use and benefit of Otis H. Ryan, against David W. Boyes and others on a contract for excavating for a water main. Judgment for plaintiff. Defendants bring error.

<p>1. Principal and Surety — Liability of Subcontractor’s Surety to Principals for Liens Under Their Contract.</p> <p>The surety on two separate bonds of a subcontractor, given to indemnify the principals for any loss accruing to them under their contracts, is liable for the amount of a judgment secured against them jointly on their bonds for labor liens by an employee of said subcontractor; no separate account of the work done under each subcontract having been kept.</p> <p>2. Same — Action—Joining Separate Claims — Separate Proof.</p> <p>In an action by one of the principals on his own account and as assignee of the claim of the other to recover the amount of said judgment, which they had apportioned between themselves, from the surety of the subcontractor, he had the right, under 3 Comp. Laws 1915, § 12309, to join both claims, nor was it necessary for him to make proof under each claim as though separate suits had been brought.</p> <p>3. Same — Miscarriage of Justice — Statute.</p> <p>Even if proof of damages in each claim should have been made separately, it is not reversible error under 3 Comp. Laws 1915, § 13763, since it in no way increased defendant surety’s liability, and therefore cannot be said co have resulted in a miscarriage of justice.</p> <p>4. Same — Release of Surety — Weight of Evidence.</p> <p>Testimony supporting defendant surety’s contention that it was released because defendant subcontractor was paid more than 80 per cent, on completed work in violation of the terms of his contract, held, not so conclusive as to justify setting aside the verdict of the jury.</p>

<p>Error to Wayne; Mandell (Henry A.), J.</p> <p>Case by DeWitt C. Benjamin against William E. McGraw for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

<p>1. Insurance — Change of Title — Voiding Policy — Mutual Insurance.</p> <p>The risk assumed by a mutual fire insurance company on plaintiff’s property was not terminated by a deed and assignment of a land contract of sale of the same by her to a broker for the purpose of securing a purchaser and with no intention of conveyance to him, although a clause in the policy provided that any change in the title of the property should terminate the risk.</p> <p>2. Same — Deeds—Delivery—Change of Title — Intent.</p> <p>There being no intention of presently passing the title to the broker, there was no such delivery as conveyed a present interest in the property.</p> <p>3. Appeal and Error — Estoppel—Consent to Directed Verdict.</p> <p>Defendant is foreclosed from claiming in this court that another issue should have been submitted to the jury, where, on the trial, it conceded that the only question for the jury was the one of plaintiff’s damages.</p>

<p>Error to Wayne; Murphy (Alfred J.), J.</p> <p>Case by Letitia Jonescu, administratrix of the estate of Laker Jonescu, deceased, against John Orlich for the negligent killing of plaintiffs decedent. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Libel and Slander — Letter Accusing Crime — Publication.</p> <p>The writing and. sending of an unsigned letter by defendant to plaintiff, a boy about 15 years of age, accusing him of larceny, was no such publication as would support an action for libel, although the letter was received, opened, and read by plaintiff’s mother.</p> <p>2. Same — Privileged Comimvnication, What Constitutes.</p> <p>Where a party makes a communication and such communication is prompted by a duty owed either to the public or to a third party, or the communication is one in which the party has an interest and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice.</p> <p>3. Same — Letter to Father of Accused — Discharge of Moral Duty — Qualifiedly Privileged.</p> <p>Where defendant believed that a hoy related to him had taken his children’s hanks and money and wrote to him to return the same, but, receiving no reply, wrote the facts to the hoy’s father, such communication was qualifiedly privileged, being written in the discharge of a moral duty.1</p> <p>4. Same — Privilege—What Determines.</p> <p>It is the occasion, and not the language used, "which determines whether a communication is qualifiedly privileged.</p> <p>5. Same — Libelous Per Se — Malice Presumed.</p> <p>A letter to a father imputing the crime of larceny to his son is libelous per se, and malice will be presumed.</p> <p>6. Same — Presumption Rebutted Where Communication Privileged — Burden of Proof.</p> <p>But where it appeared that such communication was privileged, the presumption of malice was rebutted, and the burden of proving actual malice or a lack of good faith on the part of defendant devolved on plaintiff.1</p> <p>7. Same — Evidence—Intrinsic—Extrinsic—Proof.</p> <p>The evidence to prove same may be either intrinsic, being shown by the nature of the language used and the manner and extent of its publication, or extrinsic, consisting of facts which show previous ill-feeling or personal hostility, or that the letter was written without the defendant’s having made reasonable inquiry and investigation and not in good faith.</p> <p>8. Same — Absence of Malice — Directed Verdict.</p> <p>Where the record shows that plaintiff’s counsel,, at the close of the proofs, and also on motion for new-trial, conceded that there was no evidence of malice, either in law or in fact, in the writing of the letter sued on, the trial judge properly directed a verdict for defendant.</p>

<p>Appeal from Wayne; Hosmer (George S.), J.</p> <p>Bill by Albert E. Smith and others against Dennis Byrne and others to enjoin the violation of building restrictions. From a decree for plaintiffs, defendants appeal.</p>

<p>1. Appeal and EJrrob — Evidence—Admissibility — Saving Question por Review.</p> <p>Assignments of error based on tbe admission or exclusion of testimony will not be considered by tbe Supreme Court, where there was no objection; the error must appear on the face of the record.</p> <p>2. Criminal Law — Rape—Evidence—Admissibility — Harmless Error.</p> <p>In a prosecution for statutory rape, testimony by a police officer that he saw the complaining witness and ashed her what the trouble was, but that she did not answer, fteZd,. not prejudicial.</p> <p>3. Same — Lesser Oeeenses — Instructions—Trial.</p> <p>In such prosecution, the trial judge properly instructed the jury as to the lesser offenses, viz., assault with intent to commit rape, and assault and battery, and instructed them that they might convict of either in the event that they did not find defendant guilty of rape.</p> <p>4. Same — New Trial — Jurisdiction—Statutes.</p> <p>Two terms of .court having elapsed since the denial of a motion for a new trial, the trial court was without jurisdiction to entertain a motion to set the same aside under 3 Comp. Laws 1915, § 15836.</p>

), J., presiding. Case by Mary V. Candler and another against George W. Heigho and others for fraud and deceit in the sale of corporate stock. Judgment for defendants on a directed verdict. Plaintiffs bring error.

<p>1. Carriers — Street Railways — Duty to Intended Passenger— Negugence — Question eob Jury.</p> <p>In an action for personal injuries, testimony by plaintiff that, intending to take defendant’s interurban car, he went upon the platform at the small waiting room, signaled the car to stop, and was answered by a signal by the motorman, advising him that it would stop, that he stood near the edge of the platform expecting the car to stop, when, instead of doing so, it went by at a rate of speed of from 50 to 60 miles an hour, that he was caught in the suction of the car and. seriously injured, and by the motorman that no signal nor answer thereto were given, held, to present a question of fact for the jury as to defendant’s negligence.</p> <p>2. Same — Relation of Carrier and Passenger — Intended Passenger.</p> <p>It is the general rule that the relation of carrier and passenger commences when a person with the good-faith intention of taking passage, and with the express or implied consent of the carrier, places himself in a situation to avail himself of the facilities for transportation which the carrier offers.1</p> <p>3. Same — Trial—Instructions—Duty of Carrier.</p> <p>An instruction by the court that if the jury believed plaintiff’s testimony, it was the duty of defendant in all ways to exercise a very high degree of care for his safety or protection in the operation of its car, held, not erroneous.</p> <p>4. Same — Negligence—Evidence—Sufficiency.</p> <p>Testimony held, sufficient to justify a finding by the jury that plaintiff was injured in the manner claimed by him, and that defendant's negligence was the proximate cause of his Injury.</p> <p>5. Same — Contributory Negligence — Question of Pact.</p> <p>Where plaintiff was in a position of safety when he gave the signal to stop and received the answer thereto, had the car stopped as he had a right to expect it would, and he had but little time after discovering that it was not . going to stop before it rushed by, it cannot be said, as a matter of law, that he was guilty of contributory negligence because he failed to step back or because he acted in a manner not afterwards found to be in the interest of his personal safety.</p> <p>6. Same — Trial—Instructions—Theory of Defense.</p> <p>An instruction by the court that if the jury found that plaintiff stood on the platform with an arm extended so close to the track that the car struck it and caused the accident, plaintiff would be guilty of contributory negligence and could not recover, held, to fairly present to the jury defendant’s claim as to the cause of plaintiff’s injury.</p> <p>7 Same — Appeal and Error — Trial—Instructions—Issues.</p> <p>Where the charge of the court clearly submitted to the jury plaintiff’s claim that the negligence complained of was the running of defendant’s car past the platform at a high rate of speed after signaling an intention to stop, an objection that plaintiff’s action was based on mere failure to stop for a passenger is untenable.</p> <p>8. Appeal and Error — Trial—Instructions—Charge as Whole.</p> <p>The charge should be considered as a whole, and the portion objected to should be read and considered in connection with all other portions of the charge given bearing upon the same subject.</p> <p>9. Carriers — Appeal and Error — Trial—Instructions — Charge as Whole.</p> <p>The giving of plaintiff’s requested instruction as to defendant’s duty to a passenger, stating a broad proposition of law applicable to such cases, but making no application to the particular facts, while unfortunate, held, not prejudicial, in view of the fact that in other portions of the charge the court properly instructed the jury as to the duty defendant owed to plaintiff as an intended passenger,</p> <p>10. Appeal and Error — Refusal to Give Requests Covered in Charge.</p> <p>Refusal of the court to give certain requests proffered by defendant, which might well have been given, but which merely stated negative propositions whose force and effect were fairly covered in the charge as given, held, not erroneous.</p> <p>11. Trial — Argument of Counsel.</p> <p>Although plaintiff’s counsel, in his argument to the jury, discussed matters which the court later in his charge withheld from their consideration, this court will assume that the jury realized it was their duty to be governed by the instructions of the court as to the law and not by the argument of counsel, where it appears that defendant was not prejudiced.</p> <p>12. New Trial — Overwhelming Weight of Evidence.</p> <p>The verdict of the jury in favor of plaintiff held, not so overwhelmingly against the weight of the evidence as to call for a new trial.</p> <p>13. Damages — Excessive Verdict — Personal Injuries.</p> <p>A verdict for $13,800, held, not excessive on a showing that plaintiff received, serious and painful injuries which are permanent, that his usefulness as a physician is impaired, that he will never be able to do any surgical work, that at the time of his injury he was 52 years old, that his income previous to his injury was more than $300 a month, that he was unable to practice for eight and one-half months, and was confined to bed for eight weeks.1</p>

<p>1. Trial — Conduct of Counsel — Instructions — Saving Questions fob Review.</p> <p>A remark by counsel for plaintiff that he would stipulate that witness for defendant, who was with difficulty giving testimony through an interpreter, would say what counsel for defendant wanted her to say, where, upon objection, the trial judge instructed the jury to pay no attention to the remark, in view of uncertainty in the appellate court as to the intended and accepted meaning of the remark, and the manner in which it was treated by the trial judge, held, not reversible error.</p> <p>"2. Appeal and Error — Argument of Counsel — Instructions— Trial.</p> <p>In an action for breach of marriage promise, where counsel for plaintiff, in his argument as to the measure of damages, said “She is entitled to the same share in his property” — when he was interrupted and the judge stated that he would attempt to define the measure of damages when he got to it, and no complaint is made of the charge of the court thereafter given, there was no reversible error, although counsel finished his remarks as to his understanding of the measure of damages, stating that if he was wrong he would stand corrected.</p> <p>3, Trial — Argument of Counsel — Opinion Based on Testimony.</p> <p>In an action for breach of marriage promise, where plaintiff’s damages were aggravated by her seduction, her counsel did not exceed the limits of proper argument dn stating to the jury that he was impressed, and that he thought the jury ought to be, that upon the record plaintiff was shown to be a virtuous woman, where his expressed opinion was based upon testimony.</p> <p>4. Same.</p> <p>It was error for the court to refuse to counsel the right to comment in his argument upon certain alleged contradictions in the testimony given upon the former and upon this trial without producing a transcript of the testimony given upon the last trial or having the reporter read what was desired from his notes.</p> <p>5. Appeal and Error — Argument of Counsel — Limiting Argument.</p> <p>Error in limiting the argument of counsel, where prejudice did not result, held, not reversible.</p> <p>On Rehearing.</p> <p>1. Appeal and Error — Assignments oe Error — Sufficiency.</p> <p>An assignment of error to the charge of the court without pointing out any specific erroneous statement therein, held, not sufficiently specific.</p> <p>2. Trial — Argument of Counsel — Based on Testimony.</p> <p>The argument to the jury should he based on the testimony ‘submitted at the trial.</p> <p>S. Same — Right to Comment on Contradictory Testimony Given at Formes Trial.</p> <p>Counsel had the right during the new trial to interrogate witnesses as to the testimony given by them on the former trial, either from a transcript of such testimony, or from notes taken by him, or from his personal recollection of what they then testified to, and if the witnesses admitted the giving of such testimony and it is contradictory, counsel may comment on it in his argument to the jury without producing a transcript, or he may submit to the jury his recollection of the questions asked and answers given, and he should not he prevented from doing so, unless on objection, tbe trial judge is convinced that counsel is mistaken in bis statement of such testimony.</p> <p>i. Appeal and Error — Comment on Contradictory Statements Not in Record.</p> <p>Counsel cannot complain of not having been permitted to comment on contradictory statements of witness on the former trial, where he neglected to call her attention to them when she was on the stand.</p> <p>5. Same — Errors Appearing in Record.</p> <p>The Supreme Court can only consider the errors which appear on the printed record.</p> <p>6. Sasde — Conduct of Court — Prejudice.</p> <p>Alleged error in the use o£ the word “rebuke” by the trial judge when commenting on the contradictory nature of the testimony, where not alluded to in the brief, held, not prejudicial in view of the fact that the verdict was less than on the former trial.</p>

), J. Assumpsit by ,the Dow Chemical Company against the Detroit Cheinical Works for breach of a contract of sale. Judgnient for defendant on a’directed verdict. Plaintiff brings error.

<p>1. Intoxicating Liquors — Trial—Instructions.</p> <p>In an action against a saloon keeper and his bondsman for an illegal sale of liquor to plaintiff’s minor son, where defendant saloon keeper admitted that part of the liquor was drunk when plaintiff stepped around the partition to the bar, and denounced the sale, an instruction to the jury that plaintiff was so near to said minor son at the time that he could have prevented his drinking the liquor, but did not do so, held, erroneous and prejudicial.</p> <p>2. Same — Bar to Action — Acquiescence—Inferences.</p> <p>Where there was nothing in the record from which an inference could be drawn that plaintiff acquiesced in the furnishing of liquor to his minor son, an instruction to the jury that plaintiff could not recover for an illegal sale of liquor that he acquiesced in, was erroneous.</p> <p>3. Same.</p> <p>Where the minor son had drunk part of the glass of liquor before plaintiff entered the bar, he was under no obligation to snatch the glass from his son’s hand, and his failure to do so cannot be construed as acquiescence in the illegal sale.</p> <p>4. Same — Minors—Illegal Sales — Good Faith — Defenses.</p> <p>Under the provisions of the act (2 Comp. Laws 1915, § 7050), the good faith of the defendant in selling the liquor to a minor is no defense, and while it might have been considered by the jury in its award of damages, it was error for the trial court to submit it as a fact which, with others, would bar recovery.1</p> <p>5. Same — Evidence—Motive—Trial—Instructions.</p> <p>The trial court was in error in submitting to the jury-testimony of defendant that he had had trouble with an older brother of the minor who was with him when the illegal sale was made, as tending to furnish a motive on the part of plaintiff for prosecuting the action, since there is nothing in the record to show that plaintiff knew of the incident.</p>

<p>1. Municipal Cop.pop.ations — Highways and Steeets — Townships —Negligence—Question foe Juey.</p> <p>In an action against a township' for personal injuries alleged to have been received by reason of defendant’s negligence in maintaining tlie highway in a reasonable state of repair under section 4586, 1 Comp. Laws 1915, testimony 7teM, to present a question of fact for the jury.</p> <p>2. Same — Contbibutoby Negligence — Riding on Defective Highway — Question of Law.</p> <p>It cannot be said that plaintiff was guilty of contributory negligence, as a matter of law, because he rode down a hill, on a defective highway; upon a load of straw, since the highways are made for farmers as well as others.</p> <p>3. Same — Trial—Insteuctions—Contbibutoby Causes.</p> <p>Where plaintiff used no breeching on his horses, and the testimony as to the need of same’.was very conflicting, instructions by the court to the effect 'that'the lack of breeching would not be important unless the jury found that it was one of the contributory causes of the injury, held, not misleading because negative.</p> <p>On the question of burden of proof of contributory negligence in action against township on account of defects in highway, see note in 13 L. R. A. (N. S.) 1219.</p> <p>4. Same — Imputable Negligence.</p> <p>Negligence of the son, who was driving the team, would be imputable to plaintiff, who was riding on the load.</p> <p>5. Trial — Opinion op Trial Court — Credibility op Witnesses— Instructions.</p> <p>It is not for the trial court to intimate that an interested witness might not be truthful and accurate, or to express an opinion as to which witness was entitled to credence, in his instructions to the jury, where the conflict in testimony was very sharp.</p> <p>6. Same — Urging Jury to Reach Verdict.</p> <p>Where the jury returned for further instructions, after having been out for a long time, the court was not in error in instructing them that it was desirable for them to reach an agreement if they could do so without violating their convictions and judgments, that they should reason together and-it was just possible they might arrive at a verdict.</p> <p>7. Same — Conflicting Testimony — Questions fob Jury.</p> <p>Where the case was full of conflicting testimony upon the controlling facts, held, that it was properly submitted to the jury.</p>

), J., presiding. Bill by Annie E. MacLachlan against the city of Detroit and another to enjoin the collection oí a paving fax. From a decree for plaintiff, defendants appeal.

), J. Mandamus by Charles Flowers, executor of the will of Jane Armstrong, deceased, to compel Edward Command, probate judge of Wayne county, to vacate an order denying an appeal. From an order granting the writ defendant brings certiorari. Reversed, and order vacated. Plaintiff also filed a motion to dismiss the writ of certiorari.

), J. Bill by Archie Wilson against James Running and another to set aside a deed, and for an accounting. There was a decree dismissing the bill. Pending an appeal, plaintiff died and William McQuinn was appointed administrator, and perfected the appeal.

), J. Assumpsit by the Copper Range Company against the township of Adams for taxes paid under protest. The State board of assessors, the board of State tax commissioners, the St. Mary’s Mineral Land Company, and the South Range Mining Company intervened as parties defendant. Judgment for defendant. Plaintiff brings error.

Bill by Caroline Ebert against Anna Corning, executrix of the last will of William Coming, deceased, for the discharge of certain mortgages. Defendant filed a cross-bill for a reformation of said mortgages and to foreclose the same. From a decree for plaintiff, defendant appeals.

), J. Summary proceedings by Joseph Romeo against Mathew Lupo and another for the possession of a store building. There was judgment of restitution before the commissioner, and defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

), J. Assumpsit by Morris Beckovsky against the Burton Abstract & Title Company for negligence in extending and certifying an abstract. Judgment for plaintiff. Defendant brings error.

<p>Exceptions before judgment from Oakland; Rockwell (Kleber P.), J.</p> <p>William F. Hassell was convicted of transporting intoxicating liquor in violation of Act No. 338, Pub. Acts 1917.</p>

), J. Summary proceedings by Samuel Feldman and another against Fred C. Zimmerman and another for the possession of certain real property. There was judgment of restitution, and defendants appealed to the circuit court. Judgment for defendants. Plaintiffs bring error.

), J. Case by Amariah F. Freeman against Egbert G. Hoag for a breach of a contract for the division of the proceeds of a promissory note. Judgment for defendant. Plaintiff brings error.

), J. Mandamus by the city of Kalamazoo to compel Albion B. Titus, justice of the municipal court, to issue a warrant for the violation of an ordinance. From an order denying the writ, plaintiff brings certiorari.

<p>1. Mandamus — Return to be Taken as True Unless Traversed.</p> <p>On mandamus against a circuit judge, the return of the judge unless traversed must he taken as true.</p> <p>2. Process — Default—Regularity — Circuit Court Rule — Setting Aside Default.</p> <p>The service of a copy of the rule to plead, instead of a ' notice thereof, on defendant, at the time of service of the declaration, was not such a defect in the proceedings as to affect the regularity of the entry of default, and thus toll Circuit Court Rule No. 32, § 4, providing that where personal service shall have been had, and proceedings taken after default on the strength thereof, the default shall not be set aside unless the application shall be made within six months after such default is regularly filed.</p>

<p>Mandamus by the Grocers, Incorporated, to compel Orien S. Cross, circuit judge of Allegan county, to vacate an order dismissing a cause of action.</p>

), J. Bill by Philip E. Goodman, by his attorney, against Harry Diamond and another to enjoin the violation of a lease, and to declare the same forfeited. Defendants filed a cross-bill asking affirmative relief. From the decree rendered, plaintiff appeals.

<p>Usury — Bonus Included in Note — Principal and Agent.</p> <p>In proceedings to foreclose a real estate mortgage, where the notes given therewith, included a ten per cent, bonus in addition to the amount actually loaned, and also provided for seven per cent, interest, the highest legal rate, the same were usurious under 2 Comp. Laws 1915, § 5998, and the assignee thereof with notice was not entitled to receive any interest thereon, and it is unimportant whether the mortgagee or her husband, who acted as her agent in negotiating the loan, received the ten per cent, bonus.</p>

), J., presiding. Case by David Goodman, administrator of the estate of Aaron Ostrow, deceased, against the Detroit United Railway for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J. Assumpsit by Edna M. Judson, administratrix of the estate of Fred Judson, deceased, against William Pratt upon certain promissory notes. Judgment for plaintiff. Defendant brings error.

<p>1. Evidence — Pedigree—Baptismal Certificate — Admissibility.</p> <p>In. ejectment, where the question of defendant’s pedigree was involved, a certificate of baptism issued by a church according to its custom and kept by the alleged parents in the family bible until their death, is admissible, where verified by an eyewitness to the baptism, and its weight is for the jury, although it is not a church record, nor, in a legal sense, an ancient document implying an age of over 30 years.</p> <p>2. Same — Statements of Parents.</p> <p>Proof of statements and admissions of the alleged parents that defendant was their child, held, admissible.</p> <p>3. Same — Positive Testimony — Secondary Evidence.</p> <p>Testimony of a witness that she knew that the alleged mother of defendant was not her mother, where full of inconsistencies and contradicted by other witnesses, held, not such positive testimony as to exclude secondary evidence, and its weight was properly for the jury.</p> <p>4. Same — Statements of Mother at Time of Birth of Chud.</p> <p>Statements of the alleged mother as to the birth of defendant, made about the time she was born, the mother now being dead, held, admissible.</p> <p>5. Parent and Child — Living Together — Prima Facie Evidence.</p> <p>The existence of the relation of parent and child is a question of fact, and is established prima facie where it is shown that the parties lived together, and recognized by their acts the existence of that relation.</p> <p>6. Witnesses — Cross-Examination — Reputation in Community as to Being Daughter of Alleged Parents.</p> <p>Where a witness had testified that defendant grew up in a certain community and was always known by the name of her alleged parents, it was not error to allow, on cross-examination, questions as to whether she was known as their daughter, and as to whether they held her out as their daughter.</p> <p>7. Trial — Argument of Counsel — Curing Error.</p> <p>In ejectment, where the question of defendant’s pedigree was involved, argument by her counsel that plaintiff was seeking to “bastardize this girl,” and that her good name was involved, held, not reversible error, where the trial court sustained plaintiff’s objections, and stated that defendant’s legitimacy was not involved, but only the question as to whether the alleged father and mother were her parents.</p>

<p>1. Trusts — Passive Trusts Abolished — Executed by Statute of Uses.</p> <p>Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust, the statute on uses and trusts (3 Comp. Laws 1915, § 11565 et seq.) executes it by forthwith passing the title to the beneficiary.</p> <p>2. Same — Title Remains in Grantor if Beneficiary Dead When Executed.</p> <p>If the beneficiary in a deed attempting to create a passive trust was dead at the time it was executed, said deed was void and the title remained in the grantor.</p> <p>3. Escheated Estates — Presumption of Death.</p> <p>Under 1 Comp. Laws 1915, § 329, if any person shall disappear and his whereabouts remain unknown for the space of seven years, etc., he shall be presumed to be dead.</p> <p>4. Trusts — Deeds—Construction—Intent.</p> <p>In a deed from a father to his son, the words designating him as “trustee for Katherine Smith of Chicago, Illinois,” held, to import an intent on the part of the grantor to invest her with some beneficial interest in the property conveyed.</p> <p>5. Same — Written Acknowledgment of Trust by Grantee — Frauds, Statute of.</p> <p>Written acknowledgment of said trust by the grantee supplements and confirms said deed, and satisfies the statute of frauds by the harmonious evidence in writing from both grantor and grantee of a passive or naked trust, which the statute executes by placing the legal estate in the beneficiary if then living.</p>

Case by Edward Jewell, administrator of the estate of Raymond Jewell, deceased, against the township of Rogers and the Michigan Limestone & Chemical Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.

), J. Case by Elmer L. Smith, administrator of the estate of Arthur H. Smith, deceased, against Fred T. Hyne for the alleged negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

Assumpsit) in justice’s court by the Park Building Company against the George P. Yost Fur Company for the amount of a Federal income tax paid upon •rentals received from defendant. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

), J. Assumpsit by the Oscar Daniels Company against the city of Sault Ste. Marie for taxes paid under protest. Judgment for plaintiff. Defendant brings error.

, presiding. Bill by Henry A. Krolik and others, copartners as A. Krolik & Company, against Joseph Kaczmarek and Valentine Adamaszek to set aside a sale of goods in violation of the bulk sales law. Defendant Adamaszek filed a cross-bill to set aside the assignment of a land contract and for the cancellation of a note. From a decree granting the prayer of the cross-bill, defendant Kaczmarek appeals.

), J., presiding. Bill by Charles Vyse and others against Mary A. Richards and another to impress a trust upon real estate and for an accounting. From an order overruling a motion to dismiss, defendants appeal.

Beplevin by Hugh Morris against Joseph Alexander for the possession of certain tools and machinery. Judgment for defendant. Plaintiff brings error.

), J. Bill by Elnora Jones against Leon F. Titus and another to set aside a mortgage on the ground of fraud. Defendant Titus filed a cross-bill for the foreclosure of the mortgage. From a decree for defendants, plaintiff appeals.

, presiding. Bill by James McBride against Dayton W. Closser to enjoin an action of ejectment and to quiet title. From a decree dismissing the bill, plaintiff appeals.

), J. Case by Carrie E. Peacock, administratrix of the estate of Frank Peacock, deceased, and personally against the Detroit, Grand Haven & Milwaukee Railway Company for damage to fruit trees by fire. Judgment for plaintiff. Defendant brings error.

<p>Error to Wayne; Hunt (Ormond F.), J. Submitted</p> <p>Case by Walter Wilson against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. Bill by A. Louis O’Connor against John P. Scallen, executor of the last will of John A. O’Brien, deceased, and others for an accounting. From a decree dismissing the bill, plaintiff appeals.

), J. Case by Robert E. Anderson against the Chicago, Milwaukee & St. Paul Railway Company for failure to furnish cars for the transportation of logs. Judgment for plaintiff. Defendant brings error.

), J. Bill by Norman Carpenter and another against William H. Dennison to quiet title to land, and to enjoin an action of ejectment. From a decree for plaintiffs, defendant appeals.

<p>Error to Wayne; Hunt (Ormond F.), J.</p> <p>Assumpsit by Josephine Clifford against the Catholic Mutual Benefit Association on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Houghton; O’Brien (Patrick H.), J.</p> <p>Assumpsit by John J. Michaels against Philip J. Pinten for a balance due upon a building contract. Judgment for defendant. Plaintiff brings error.</p>

M.), J. Bill by Edwin Z. Albright against Amos Stockhill and others to set aside and rescind an exchange of properties on the ground of fraud. From a decree for plaintiff, defendants appeal.

), J. Bill by the Washtenaw Mutual Fire Insurance Company against Norris Budd, executor of the last will of Abraham D. Budd, deceased, and the Ann Arbor Railroad Company for subrogation to the amount of a judgment against defendant company. From a decree dismissing the bill, plaintiff appeals.

), J. Bill by Jelle Veenstra against William E. DeGolia to restrain an action at law and for an accounting. Defendant filed a cross-bill for an accounting. From a decree for plaintiff, defendant appeals.

<p>1. Trial — Requests to Charge Covered by General Charge.</p> <p>Where the substance of requests to charge was given in the general charge, there was no error in refusing such requests.</p> <p>2. Same — Evidence—Architects—Contracts—Conversation with Disinterested Party.</p> <p>In an action by a firm of architects for services in preparing plans and specifications for the construction of a building which was never erected because of difficulty In financing same, testimony of defendant as to an interview with a former member of plaintiff firm, who is not a party to the suit, in so far as it related to the terms of the contract which was afterwards entered into, held, properly stricken out.</p> <p>3. Same — Withdrawal of Question — Curing Error.</p> <p>Asking a question of defendant’s wife, on cross-examination, as to whether she had given the matter a great deal of thought during the past week in order to help win the case for her husband, which was withdrawn, on objection, held, not reversible error.</p> <p>4. Same — Compromise Verdict — Verdict for Less Than Amount Asked.</p> <p>Where plaintiffs sued for $6,000 and offered testimony that their services were worth that sum, but they had rendered a bill to the defendant of $3,000, a verdict for $2,500 cannot be said to be a compromise verdict, there being nothing to indicate that the jury did any “splitting of differences.”</p> <p>5. Appeal and Error — Trial—Defendant Cannot Complain of Smallness of Verdict.</p> <p>That the verdict was less than the evidence would have justified, is a matter of which defendant cannot complain.</p> <p>6. Same — New Trial — Great Weight of Evidence.</p> <p>It is only where the verdict is clearly against the great weight of the evidence that the Supreme Court will overrule the trial court and grant a new trial.</p>

), J., presiding. Bill by Perry Schurtz against the city of Grand Rapids to enjoin the acquisition of a public utility. From a decree dismissing the bill, plaintiff appeals.

), J. Case by George A. Flintoff, administrator of the estate of George N. Flintoff, deceased, against the Muskegon Traction & Lighting Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant. Plaintiff brings error.

<p>Error to Kalkaska; Lamb (Fred S.), J.</p> <p>Case by Wakeman L. Sherwood against Edgar B. Babcock for malpractice. Judgment for plaintiff. Defendant brings error.</p>

<p>X. Mandamus — Judicature Act — Issues Formed by Plea to Return — Determination.</p> <p>Under section 4, chap. 36, of the judicature' act (3 Comp. Laws 1915, § 13440), which supersedes sections 9970, 9971, 3 Comp. Laws 1897, the person prosecuting the writ of mandamus may plead to any or all of the material facts contained in the return, and such issue of fact shall be determined as in other cases; but all material facts stated in said return not speciflcally'denied shall be taken to be admitted as true.</p> <p>2. Same — Reference to Circuit Court to Take Testimont on Issues.</p> <p>Where plaintiff's plea denied all of the material statements in defendant’s answer, but the material facts necessary to the disposal of the issues thus formed are not available to this court, the case will be referred to the circuit court to take testimony thereon and return same to this court with the opinion of the court thereon.</p> <p>3. Same — Affidavits in Support of Return.</p> <p>Ex parte affidavits in support of the return, filed- four or five months after it was filed, cannot be considered by this court, since affidavits of others than the defendant, attached even to' the return, are properly no part thereof.</p>

), J. Case by Robert P. Graves against the townsnip of Dorr for personal injuries. Judgment for defendant on a directed verdict after a disagreement of the jury. Plaintiff brings error.

), J., presiding. Bill by Eph Meredith against William H. McCormick to enjoin the building of a garage. From a' decree dismissing the bill, plaintiff appeals.

<p>Error to Wayne; Webster (Clyde I.), J.</p> <p>Case by James M. Roy against Alfred Kirn and another for personal injuries. Judgment for plaintiff. Defendant Kirn brings error.</p>

), J. Oscar H. Williams was convicted of violating section 15505, 3 Comp. Laws 1915, and sentenced to imprisonment for not less than 5 nor more than 10 years in the State prison at Jackson.

Assumpsit in justice’s court by Hartley E. Hendricks against Ira Cobb for a broker’s commission. There was judgment for- plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

. Mandamus by Arthur L. Baxter to compel Kleber P. Rockwell, circuit judge of Oakland county, to set aside an order refusing to tax certain term fees.

M.), J. Assumpsit by Minnie Briggs against the township of Ronald for the care of an alleged indigent person. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Appeal and Error — Immaterial Issue — Harmless Error.</p> <p>In an action for the breach of an oral contract of employment as hotel manager, where the issue, i. e., the terms of the contract, and whether defendant had the right to terminate same on 30 days’ notice, was properly submitted to the jury, and decided by them in plaintiff’s favor, the submission also of the question as to whether a previous contract made with plaintiff by defendant’s manager was binding upon defendant, although immaterial, held, not prejudicial to defendant.</p>

<p>Bills and Notes — Checks—Failure op Consideration — Directed Verdict..</p> <p>In an action on. a check given as part of the purchase price of a farm, where plaintiff’s testimony failed to make out a case, there being a failure of consideration, a verdict for defendant should have been directed.</p>

), J. Bill by Melbourne E. Truitt and another against the city of Battle Creek and Samuel A. Howes, guardian ad litem, to remove a cloud upon title to land. From a decree for plaintiffs, defendant Howes appeals.

<p>Error to Bay; Houghton. (Samuel G.), J.</p> <p>Case by Herman A. Hardy against the Pere Marquette Railway Company for damages to an automobile truck by collision. Judgment for plaintiff. Defendant brings error.</p>

), J. Albert Rajona was convicted of murder in the second degree, and sentenced to imprisonment for life in the State prison at Jackson.

Jacob Byle presented Ms claim for compensation against the Grand Rapids Blow Pipe & Dust Arrester Company for the accidental death of his son in defendant’s employ. From an order awarding compensation to Minnie Byle and others, partial dependents of the son, upon the death of the father, defendant and the Fidelity & Casualty Company of New York, insurer, bring certiorari.

), J. Mandamus by the board of education of the union school district of Owosso to compel William R. Goodrich, secretary of said board, to give proper notice of a special meeting and election. From an order granting the writ, defendant brings certiorari.

<p>Insurance — Accident Insurance — Evidence—Sufficiency.</p> <p>In an action on an accident policy, on the issue as to •whether insured’s death was the result of an accident within the terms of his policy, evidence held, by a divided court, sufficient to take the question to the jury.</p> <p>Previous diseased condition as affecting liability for death or injury from accident, see notes in 34 L. R. A. (N. S.) 445; 52 L. R. A. (N. S.) 1203; 6 B. R. C. 530.</p> <p>Arterio sclerosis as affecting right to recover under accident policy, see note in 3 A. L. R. 1304.</p>

<p>Error to Wayne; Lamb (Fred S.), J., presiding.</p> <p>Assumpsit by Edna S. Abbott against the Fidelity & Casualty Company of New York on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

Cross-appeals from Ottawa; Cross (Orien S.), J. Bill by Charles E. Misner against Claus H. Stange, Walter I. Lillie, and Anna Wegner for the foreclosure of certain liens. Defendants Lillie and Wegner filed separate cross-bills asking affirmative relief. From the' decree rendered, defendants Lillie and Wegner appeal.

), J. Bill by Alonzo D. Harrison and another against Mary Eassom for the specific performance of a land contract. From a decree dismissing the bill, plaintiffs appeal.

), J. Bill by William T. Parks against Arthur Sherman for subrogation to rights under a trust deed. From a decree for plaintiff, defendant appeals.