Volume 215 — Michigan Reports

<p>Error to Wayne; Webster (Clyde I.), J.</p> <p>Assumpsit by William Peritz against Samuel Pelavin and another for breach of a building contract. Judgment for plaintiff. Defendants bring error.</p>

), J. Bill by the Holland Furnace Company against John Bodell and another to enforce a mechanic’s lien. From a decree dismissing the bill, plaintiff appeals.

), J. Bill by Benjamin E. Beck against Harry B. Keidan and others, judges of the recorder’s court of Detroit, and Charles W. Casgrain, clerk of said court, to enjoin plaintiff’s removal as deputy clerk. From a decree dismissing the bill, plaintiff appeals.

<p>1. Homesteads — Exemptions—Protecting Debtors.</p> <p>The purpose of the statute in exempting a homestead is to permit a debtor to have something beyond the. reach of his creditors; it is for the protection of debtors, since others do not need it.</p> <p>2. Same — Exemptions—Debtor and Creditor.</p> <p>Where one charged with the crime of murder deeded his •homestead to the sister of his attorney in order to insure him the payment of his fees and to provide means for a proper defense, the legal status of one who rendered services in connection with said defense, although with knowledge of the deeding of said homestead and its purpose, is that of a creditor and nothing more, which status became fixed by his recovery of a judgment in an action therefor.</p> <p>3. Same — Sale of Homestead With Intent to Puechase Another — Exemptions.</p> <p>Where one sells his homestead with the intention of purchasing another by way of life lease, he would have, under the law, a reasonable time in which to perfect his plan, and after the sale of the homestead and during a reasonable interval pending the purchase of another, debts contracted by him would stand no better than if incurred after the acquiring of the new homestead unless he fraudulently gained credit by holding out that his means of payment were not exempt.</p> <p>4. Same — Sale fob Purpose of Defense in Criminal Prosecution — Abandonment.</p> <p>The deeding of a homestead by one charged with a serious crime for the purpose of making a defense does not constitute an abandonment of his homestead rights, and any balance remaining, after he has again secured his liberty, is exempt if actually devoted to a homestead purpose at the earliest moment available.</p> <p>5. Same — Proceeds from Sale for Purpose of Defense Not a Trust Fund — Debtor and Greditoe.</p> <p>The conveyance of a homestead for the purpose of making a defense in a criminal prosecution did not create a trust fund constituting one who performed services in said defense a beneficiary thereunder entitling him to follow the fund and giving him rights superior to the exempt character thereof.</p> <p>6. Same — Proceeds from Sale for Purpose of Defense Exempt Y/hen Invested in Life Lease Homestead.</p> <p>Money received from the proceeds of the sale of a homestead, paid to defendant for a life lease to be used as a homestead, is exempt, and in an action by the receiver of the owner of the homestead to recover same in the interest of a judgment creditor, a verdict for defendant was properly directed.</p> <p>Clark, Bird, and Sharpe, JJ., dissenting in part.</p>

), J. Bill by William Munroe Company against Hugo Scherer, the Gregg Hardware Company and others to enforce a mechanic’s lien. Defendant Gregg Hardware Company filed a cross-bill to enforce a lien. From a decree dismissing the bill and cross-bill, plaintiff and defendant hardware company appeal.

, presiding. Case by the Grand Rapids Show Case Company against the Postal Telegraph-Cable Company for an error in the transmission of an interstate message. Judgment for defendant non obstante veredicto. Plaintiff brings error.

), J. Case by Paula Amedeo, administratrix of the estate of Leo Amedeo, deceased, against the Grand Rapids & Indiana Railway Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

), J. Bill by Jules J. Davis and another against William C. Steingass to enjoin the violation of a contract of sale and for damages. Defendant brought an action at law for the amount of a note. The cases were consolidated and heard as one. From the decree rendered, both parties appeal.

Burget), J. Bill by Adelbert Lober, administrator of the estate of George W. Bush, deceased, against Michael Dorgan, administrator with the will annexed of the estate of Sarah J. Bush, deceased, for an accounting. From a decree dismissing the bill, plaintiff appeals.

Edward B. Bradley presented for probate a copy of the lost will of James M. Bradley, deceased'. The will was disallowed in the probate court, and plaintiff appealed to the circuit court. Judgment for defendant, Jennie L. Steiner. Plaintiff brings error.

), J. Bill by William H. Anderson against W. Earle Chapman and another to remove a cloud upon title to land. Defendants filed a cross-bill in aid of execution. From a decree for plaintiff, defendants appeal.

. M.), J. Habeas corpus proceedings by Maggie Dahrooge to obtain tbe release of George Dahrooge from the Ionia State hospital. From an order denying the writ, plaintiff brings certiorari.

), J. Bill by Pearl P. Shimberg and others against the Risdon Creamery Company and others to enjoin an alleged nuisance. From the decree rendered, plaintiffs appeal.

Clair; Tappan (Harvey), J. Bill by Ephraim S. Frischkorn and another against Fred Fitzgerald for the specific performance of an Optional land contract. From a decree for plaintiffs, defendant appeals.

), J. Bill by William Holmes against Frank Holmes and others to quiet title to land. John M. Welsh, Jr.,, intervened, claiming an interest under a land contract. From a decree dismissing the bill, intervener appeals.

), J. Fred Van Every presented for probate the last will of Gem Walz, deceased. The will was allowed in the probate court, and Rue Van Every and others appealed to the circuit court. Judgment for proponent on a directed verdict. Contestants bring error.

Bill by Judson Bassett against the American Baptist Publication Society and others for the specific performance of a contract. From a decree for plaintiff, defendant society appeals.

<p>Appeal from Wayne; Lamb (Fred S.), J., presiding.</p> <p>Bill by Jones L. Risk against John P. Hehl for an accounting. From a decree for plaintiff, defendant appeals.</p>

), J. Steve Halveksz was convicted of violating the liquor law, and sentenced to pay a fine of $500 or to be imprisoned for 6 months in the Detroit house of correction.

), J. Case by Charles M. Krouse, administrator of the estate of Orpha A. Krouse, deceased, against the Southern Michigan Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J. Assumpsit by George Ginsberg and Hyman Parker, copartners as Ginsberg & Parker, against Sam Myers for work done and materials furnished for the plumbing and heating of defendant’s building. Judgment for plaintiffs. Defendant brings error.

<p>Mandamus by George B. Newell to compel George V. Weimer, circuit judge of Kalamazoo county, to vacate an order dismissing an appeal from probate court.</p>

), J. Habeas corpus proceedings by Thomas Ray to obtain his release from custody of the sheriff of Wayne county. From an order dismissing the writ, plaintiff brings certiorari.

<p>Appeal from Ingham; Wiest (Howard), J.</p> <p>Bill by James McKenzie against Jane Sutherland Murray to set aside a' deed. From a decree dismissing the bill, plaintiff appeals.</p>

Certiorari by John Eddy and others against Bert R. Walker, drain commissioner of Sanilac county, to review proceedings for cleaning out a drain. Judgment for defendant. Plaintiffs bring error.

M.), J., presiding. Bill by the International Mill & Timber Company against the Kensington Heights Homes Company and others to foreclose a mechanic’s lien. From a decree dismissing the bill, plaintiff appeals.

<p>Mandamus by Edward A. Newman to compel Ormond F. Hunt, circuit judge of Wayne county, to vacate an order denying a motion to set aside a default.</p>

), J. Bill by Ida M. Golly, administratrix de bonis non of the estate of Webster F. Armstrong, deceased, against the estate of Mary J. Armstrong, deceased, and others to re-open the estate of Webster F. Armstrong, and for an accounting. From a decree for plaintiff, defendants appeal.

), J. Hugo W. Schwartz was convicted of involuntary manslaughter, and sentenced to not less than 1 year in the State prison at Jackson.

Mandamus by the McGurrin Sales Agency to compel' James A. Parkinson, circuit judge of Jackson county, to vacate *an order denying a motion to set aside a default.

Error - to recorder’s court of Detroit; Keidan (Harry B.), J. Eugene Johnson was convicted of larceny, and sentenced to imprisonment for not less than 2% nor more than 5 years in the State prison at Jackson.

<p>1. Equity — Jurisdiction—Titles to Land.</p> <p>A court of chancery is not the appropriate tribunal for the trial of titles to land, and equity -will not aid in clearing a title to land when plaintiff’s remedy at law is complete.</p> <p>2. Same — Equity Without Jurisdiction When Ejectment Available.</p> <p>Where, in a suit to restrain a trespass, it appears that plaintiff claims a legal title to the premises, and defendant is in possession claiming adversely to plaintiff, and plaintiff’s real purpose is to evict defendant therefrom, an action of ejectment is the appropriate remedy, and not a suit in' equity.</p>

Burget), J. Bill by O. A. Gould, executor of the estate of Polly Shearer, deceased, against T.. Harley and another for the construction of a lease. From a decree dismissing the bill, plaintiff appeals.

), J. Gustave Neilson was convicted of receiving stolen property, and sentenced to imprisonment for not less than 2 nor more than 5 years in the State Prison at Jackson.

Burget), J. Quo warranto proceedings by the people of the State of Michigan, on the relation of Mathew T. Artis, against John W. Rann to try the title to the office of supervisor of Calvin township. Judgment for defendant. Plaintiff brings error.

<p>.Divorce — Alimony—Modification of Decree,</p> <p>On appeal by the husband from the amount awarded the wife as alimony in a suit for divorce brought by; her on the grounds of extreme cruelty, where it appears that at the time of the decree the property of defendant consisted of a farm valued at $9,000, personal property of the value of $2,732, and the household furniture, the decree awarding to plaintiff one-half of the farm in addition to $1,000, liberty bonds of the par value of $300, and the household furniture will be modified by reducing her interest in the farm from one-half to one-third.</p> <p>On husband’s prospects as basis for alimony, see notes in i L. R. A. (N. S.) 909; 44 L. R. A. (N. S.) 1003; 6 A. L. R. 192.</p>

), J. Assumpsit by William Reed and another against Philip Blum for an alleged breach of warranty in a deed. Judgment for defendant on a directed verdict. Plaintiffs bring error.

), J. Bill by Charles H. Warden against John W. Sawyer and another for the cancellation and foreclosure of a land contract. From a decree dismissing the bill, plaintiff appeals.

), J. Summary proceedings by Harry T. Miller and another against Charles A. Kelly for the possession of leased premises. There was judgment for defendant before the commissioner, and plaintiffs appealed to the circuit court. Judgment for defendant. Plaintiffs bring error.

), J. Bill by Perry E. Hillier and another against Edbert M. Carpenter and another to reform a contract for an exchange of real estate on the ground of misrepresentation and fraud. On appeal to the Supreme Court, the decree was modified so as to rescind the contract, and the case was remanded for an accounting. From a decree for plaintiffs, defendants appeal.

Frank Woodward was convicted of violating the liquor law. From an order granting a motion in arrest of judgment, and discharging defendant, the people, under Act No. 159, Pub. Acts 1917, bring error.

<p>Error to Wayne; Hosmer (George S.), J.</p> <p>Assumpsit by William Kutzner against Alexander J. Stuart for work and labor. Judgment for plaintiff. Defendant brings error.</p>

Mandamus and prohibition by the Detroit United Railway to compel Frank L. Covert, circuit judge of Oakland county, to vacate an order granting an injunction and to refrain from exercising jurisdiction in said case.

<p>Error to Shiawassee; Collins (Joseph H.), J.</p> <p>Case by Joseph Geeck against George Luckenbill and another for personal injuries. Judgment for plaintiff. Defendant Luckenbill brings error.</p>

<p>1. Slander — Pleading—Sufficiency of Notice — Defense of Privilege.</p> <p>In an action for slander, defendant’s notice, added to' the plea advising plaintiff that the defendant would insist in his defense that the “alleged slanderous communications =¡> * * were made, if made at all, either in whole or in part, under such circumstances as to make them" absolutely or qualifiedly privileged, held, sufficient to permit defendant to show qualified privilege.</p> <p>2. Same — Trial—Instruotions-*-Privilege.</p> <p>Where the alleged slanderous words were spoken at a meeting called by the minister of the church to which defendant belonged, in an effort to reconcile defendant and another member who had practically charged defendant with perjury because he had made said slanderous statements as a witness in a law suit some time previously, the trial judge properly instructed the jury that the occasion was one of qualified privilege, and that, in order for plaintiff to recover, she must show that the statements were untrue and that, they were made by defendant through express malice and ill-will toward plaintiff.</p> <p>8. Same — Privilege.</p> <p>The question of privilege in an action for slander is to he determined by the occasion and not the language used.</p> <p>4. Appeal and Error — Charge as Whole — Befusal of Bequests to Charge.</p> <p>Where the charge as a whole properly submitted the case to the jury, refusal of requests to charge which might properly have been given, held, not reversible error.</p> <p>5. Same — Damages Not Material Where Verdict Against Plaintiff.</p> <p>Assignments of error on the instructions to the jury on the question of damages are immaterial where the verdict of the jury was against the plaintiff.</p> <p>6. Slander — Evidence—Admissibility.</p> <p>Objection to testimony as to derogatory statements made by defendant about the family of plaintiff was properly sustained, where there was no suggestion that it would in any way concern the plaintiff.</p>

), J. Bill by George J. McQuade and others against Mary M. Wilcox and the Shelbourne Company to enjoin the violation of certain building restrictions. From a decree for plaintiffs, defendants appeal.

Bill by Walter J. Allen, trustee in bankruptcy of Isaac Hillman, against Isaac Hillman and others for the cancellation of certain deeds in fraud of creditors. From a decree for plaintiff, defendants appeal.

), J. John Depew was convicted of breaking and entering a store in the nighttime, with intent to commit the crime of larceny, and sentenced to imprisonment for not less than 5 nor more than 15 years in the State prison at Jackson.

), J. Steve Cahill was convicted of breaking and entering a store in the nighttime, and sentenced to imprisonment for riot less than 5 nor more than 15 years in the State prison at Jackson.

), J. Bill by Walter Dombrowski and another against Michael December to enjoin summary proceedings and establish an interest in a land contract. From a decree for plaintiffs, defendant appeals.

), J. Mandamus by Joseph Samuels to compel James Couzens, mayor of the city of Detroit, to grant a license to engage in business. From an order granting the writ, defendant brings certiorari.

), J. Bill by William T. Bowen and another against Emil Stocklin and another to rescind an exchange of real estate on the ground of fraud. From a decree for plaintiffs, defendants appeal.

<p>Appeal from Tuscola; Beach (Watson), J.</p> <p>Bill by Clara M. Fry against Nelson Fry for a divorce. From a decree for plaintiff, defendant appeals.</p>

), J. Replevin in justice’s court by Stuber-Stone & Company against Carl Ault, doing business as the Studebaker East Side Service Station, for the possession of an automobile. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

Assumpsit by the people of the State of Michigan, for the use and benefit of the People’s State Bank of •Imlay City, against William F. O’Connell and another as sureties on an official bond. Judgment for plaintiff. Defendants bring error.

Mandamus by Citarles L. Isbell to' compel Samuel G. Houghton, circuit judge of Bay county, to vacate an order denying a motion for the return of money deposited in lieu of bail.

), J. Bill by William E. Rice against the Atkinson, Deacon, Elliott Company to enjoin an interference with plaintiff's tenancy under a lease. From a decree for plaintiff, defendant appeals.

Bill by Samuel Holcomb against the Alpena Power Company, Limited, to enjoin the maintenance of a dam. Defendant filed a cross-bill to determine plaintiff’s past, present and future damages from such maintenance. . From the decree rendered, defendant appeals.

, presiding. . Bill by Jay Brink and others against Benjamin A. Shepard to enjoin the maintenance of a hospital in a residential district. From a decree for plaintiffs, defendant appeals.

Assumpsit by Pat Bone against the Grange Mutual Fire Insurance Company of Michigan, Limited, on a policy of insurance. Judgment for defendant. Plaintiff brings error. The defendant is a mutual fire insurance company, limited, incorporated under the provisions of Act No. 262, Pub. Acts 1895 (2 Comp. Laws 1915, § 9586 et seq.).

Bill by the city of Detroit against the Detroit United Railway to determine the rights of defendant in the streets of plaintiff city. From an order denying a motion to dismiss, defendant appeals.

), J. Case by .Nellie M. Randall, administratrix of the estate of Frank Hayner, deceased, against the Port Huron, St. Clair & Marine City Railway Company and another for personal injuries to plaintiffs decedent. Judgment for defendants on a directed verdict. Plaintiff brings error.

), J., presiding. Bill by Andrew C. Sisman Company against William H. Miller and others to enforce a mechanic’s lien. From a decree for plaintiff, defendant Miller appeals.

), J. Bill by Philip Rubenstine and others against Walter W. Powers and Neil J. Berston for the specific performance of land contracts. Defendant Powers filed a cross-bill against defendant Berston to have a certain deed and contract declared to be a mortgage. From a decree for plaintiffs and defendant Powers, defendant Berston appeals.

<p>1. Appeal and Error — Directed Verdict.</p> <p>In disposing of an assignment of error based upon the refusal of tbe trial judge to direct a verdict for defendant,, the Supreme Court must consider tbe evidence in the light most favorable to plaintiff’s claim.</p> <p>On failure of physician or surgeon to follow established practice as to method of treatment, see notes in. 37 L. R. A. 836; L. R. A. 1915C, 595.</p> <p>On degree of skill and care required of a specialist, see note in 20 L. R. A. (N. S.) 1030.</p> <p>2. Medicine and Surgery — Malpractice—Evidence—Identity.</p> <p>In an action for malpractice resulting in plaintiff’s losing the sight of the eye treated by defendant, claimed to have been caused by the latter’s brushing pus from a pustule on the lower eyelid into a fresh wound in the eyeball from which he had removed a small piece of steel, refusal of the trial judge to strike out testimony of another physician that he found germs on an analysis of the discharge from the eye, objected to on the ground of lack of identity when it developed on cross-examination that he could not recall whether he took the sample from the eye, held, not error, where another physician, who also treated plaintiff, testified that he had witness make an analysis of the pus from plaintiff’s eye and was advised of the results.</p> <p>3. Same — Evidence—Proofs Required — Inferences.</p> <p>Plaintiff was not required to prove to an absolute certainty that the infection in the eye was caused by the introduction of pus as claimed by him; establishment of facts from which such inference might fairly be drawn being sufficient.</p> <p>4. Same — Defenses.</p> <p>That the infection might have been due to another cause was a matter of defense.</p> <p>5. Same — Evidence—Sufficiency—Question for Jury.</p> <p>Plaintiff’s proofs held, sufficient to justify submission to the jury of the questions whether the loss of plaintiff’s eye was due to the action of the defendant in wiping the pus into the fresh wound on the eye, and if so, whether such action was malpractice on his part.</p> <p>6. Master and Servant — Workmen’s Compensation Act — Right of Injured Servant to Sue Third Party — Abatement of Action.</p> <p>Whether an injured employee's right of action against some person other than the employer to recover damages by reason of his injury will abate on his filing a claim under the workmen’s compensation act, is dependent upon the applicability of the statute and his right to enforce compensation thereunder.</p> <p>7. Same — Contracts.</p> <p>. Liability under the workmen’s compensation act rests solely upon contract.</p> <p>8. Negligence — Damages—Tort.</p> <p>Money received under a contract may not be considered in a suit for damages for a tortious injury though it may have afforded compensation for the loss sustained.</p> <p>9. Medicine and Surgery — Malpractice—Estoppel—Parties.</p> <p>Although plaintiff received compensation from his employer’s insurer on the theory that the loss of his eye was occasioned by an injury received while at work, he is not estopped from maintaining this action oil the ground that the loss was occasioned by defendant’s negligently brushing pus into the wound in the eye in treating a pustule on the lower eyelid after he had successfully removed the piece of steel from the eye, since estoppel is binding only on the parties to a transaction or their privies.</p> <p>10. Master and Servant — Liability of Employer for Results of Malpractice Limited to Treatment of Original Injury.</p> <p>Even though it he conceded that the employer is liable for resultant injuries, including malpractice, he would not he liable for the results of malpractice in treating an injury not rendered necessary by the original injury for which he was liable.</p> <p>11. Medicine and Surgery — Compensation Illegally Received Not to be Considered in Tort Action.</p> <p>That plaintiff recovered compensation from his employer's insurer to which he was not in law entitled, could not be considered by the jury in its award of damages.</p> <p>12. Same — Malpractice—Damages—Defenses.</p> <p>If defendant was guilty of the tort complained of, he may not relieve himself from liability by showing that plaintiff had received compensation on account thereof from any other source except through payment by a joint tort feasor.</p> <p>13. Same — Specialists—Degree of Skill Required.</p> <p>Defendant, holding himself out as an eye specialist, was</p> <p>obligated to bring to the discharge of his duty in treating an injured eye that degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge.</p> <p>14. Same — Evidence—Admissibility.</p> <p>While it was proper to allow another eye specialist to testify as to whether the treatment prescribed by defendant evidenced the exercise of proper skill and knowledge as a specialist, it was error to allow him to state the treatment he would have used.</p> <p>15. Same — Tbial—Instructions—Requested Instruction.</p> <p>In view of the fact that a witness had been permitted to testify that he would have prescribed a different treatment for the eye than that used by defendant, it was error for the court to refuse a requested instruction that plaintiff could not recover if defendant was guilty of negligence other than that charged, and that plaintiff must prove negligence in the respect charged, although in the general charge the jury were instructed that, to find for the plaintiff, they must be convinced from the proofs “that the infection complained of was thus caused solely by the negligent act” of defendant.</p> <p>16. Same.</p> <p>The court was also in error in refusing a requested instruction that there must be a preponderance of the proofs supporting the particular act of negligence charged, in order for plaintiff to recover.</p> <p>17. Same — Admissions—Evidence—Instructions.</p> <p>Where, nearly three months after this action was begun, plaintiff wrote a letter in the nature of an affidavit to the industrial accident board claiming that the loss of his eye was due to the injury received while at work, which is inconsistent with the claim made in this action, defendant was entitled, on request, to an instruction to the jury, that it might be considered by them as an admission on his part as to the cause of his injury.</p>

<p>1. Jury — Excusing for Cause — Discretion of Court — Appeal and Error.</p> <p>Error does not necessarily follow when the court, through abundance of caution to secure an impartial jury, excuses a juror on ground not technically sufficient to support a challenge for cause, as it would in retaining one who is challenged and ought to have been rejected.</p> <p>2. Same.</p> <p>While it may be contended that the excusing of a juror for cause because he held a policy in a certain automobile insurance company wag not tenable, where said insurance company was not a party to the action and defendant was not shown to have been insured in it, yet where defendant did not object to the juror called in place of the one rejected, and is not shown to have exercised all of his peremptory challenges, nor to have questioned the competency and impartiality of the jury as finally constituted, there was no reversible error; the court having discretionary power within the limit exercised.</p> <p>On the question of negligence of child in running in front of automobile, see note in 26 L. R. A. (N. S.) 435.</p> <p>On contributory negligence of children generally, see note in L. R. A. 1917F, 10.</p> <p>3. Same — Discretion of Court in Voir Dire Examination.</p> <p>Much latitude may be allowed by the trial court in examination of jurors on their voir dire to enable parties to intelligently exercise their right of challenge either peremptory or for cause.</p> <p>4. Same — Good Faith.</p> <p>In an, action for the negligent hilling of a girl at a street intersection by defendant’s automobile, it was not error for plaintiff’s counsel to interrogate jurors on their voir dire examination as to whether they had a policy in a certain mutual automobile insurance company, where no reference was made to the subject after the jury was selected, and it does not appear that the questions were not ashed in good faith or for prejudicial purposes.</p> <p>5. Negltgence — Crossing Accident — Infants—Death—Contributory Negligence — Directed Verdict.</p> <p>Where there was testimony that deceased, a girl 10 years old, was struch at a street intersection while on her way home from school, at a time when there was much traffic on the street, that a wagon was halted by the driver to allow deceased and her companion to cross, which she attempted to do, going at an ordinary walh, when she was struch by defendant’s automobile, which was traveling at a rate of speed of 20 miles an hour or more, it cannot be said, as a matter of law, that she was guilty of contributory negligence.</p> <p>6. Same — Evidence—Inferences.</p> <p>While direct, affirmative testimony that decedent loohed in the direction from which defendant’s automobile was coming, after she passed from behind a passing wagon, is meager, it cannot be said that there were no facts or circumstances from which a jury might reasonably draw a favorable inference.</p> <p>7. Same — Special Questions — Test as to Contributory Negligence — Duty to Have Car Under Control.</p> <p>Under the circumstances of this case, it cannot be said that an answer to the special question proposed by defendant’s counsel, as to whether deceased loohed after she passed from behind the wagon and while she was yet a safe distance away from tbe automobile would furnisb the test of her negligence, as a matter of law, since she had a right to expect any driver approaching such a busy corner would have his car under control, as was his duty under the statute.</p> <p>8. Same — Infants — Contributory Negugence— Question for Jury.</p> <p>Applying the principles governing the relative rights and duties of pedestrians and drivers at street crossings to this case, where the pedestrian is but a child, the question of deceased’s contributory negligence was fairly one for determination by the Jury.</p>

), J. Assumpsit by George H. Hunt against the Stromberg Motor Devices Company for breach of a contract of employment. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Appeal from Ingham; Collingwood (Charles B.), J.</p> <p>Bill by Flossie B. Mulkins against Jesse Mulleins for a divorce. From a decree dismissing the bill, plaintiff appeals.</p>

<p>1. Negligence — Pleading—Elimination of Charge Not Supported by Evidence.</p> <p>In an action for damages to plaintiff and his bicycle when he was run down by defendant’s automobile, driven by Ms son, while plaintiff was riding on a public street, where the charge of excessive speed was not supported by evidence, tbe trial court properly eliminated said question from the consideration of tbe jury.</p> <p>On liability for collision of automobile with bicyclist, see note in 28 L. R. A. (N. S.) 944.</p> <p>2. Same — Pleading — Sufficiency — Errors in Declaration — Effect.</p> <p>Altbougb tbe declaration carelessly charged that negligence “constituted” in failing to turn out to tbe left and pass plaintiff, instead of using tbe word “consisted,” as in tbe form prescribed in tbe new rules of tbe court promulgated pursuant to tbe judicature act, and also by a clerical error cited tbe wrong section of tbe compiled laws applicable, where no one would be misled by said Inaccuracies or fail to understand tbe negligence charged, they will not be regarded as fatal.</p> <p>3. Same — Contributory Negligence — Directed Verdict.</p> <p>Where plaintiff testified that be was riding near tbe center of tbe street, that there was room for defendant’s car, going in tbe same direction, to pass him on either side, and that be did not swerve to tbe left, as claimed by defendant, tbe court properly refused to direct a verdict for defendant on tbe ground that plaintiff was guilty of contributory negligence in turning to tbe left, altbougb, on cross-examination, in answer to tbe question as to which side tbe automobile would be required to pass him on, be answered, “on tbe right side.”</p> <p>4. Same — Motor Vehicle Law — Law of Road.</p> <p>While a bicycle is a vehicle, it is not tbe kind of vehicle mentioned in tbe motor vehicle law, and therefore tbe provisions of said statute are not applicable, but this case is governed by tbe law of tbe road.</p> <p>5. Same — Law of Road — Duty of One Passing.</p> <p>Where plaintiff was riding bis bicycle near the middle of tbe street, even if be was “wobbling along,” as claimed by defendant, it was tbe duty of the driver of tbe automobile approaching from tbe rear, in passing plaintiff, to exercise that degree of care to avoid an accident commensurate with such situation.</p> <p>8. Same — Evidence—Previous Offenses — Witnesses — Credibility.</p> <p>Testimony by defendant’s son, tbe driver of tbe automobile, who was a witness in defendant’s behalf, that be bad previously been arrested and convicted three times for fast driving was admissible for the purpose of testing his credibility.</p> <p>7. Appeal and Error — Argument op Counsel — Cueing Error.</p> <p>Comment by plaintiff’s counsel, in his argument to the jury, on the fact of defendant’s son’s previous arrest and conviction, when he was cut short by objection by defendant’s counsel, held not reversible error, where the court fully and correctly instructed the jury that the fact that the son had been previously arrested and convicted was no evidence of his guilt in this case, and that it could be considered by them only as bearing on his credibility as a witness.</p> <p>8. Same — Instructions—Issues Presented.</p> <p>Where the court repeatedly charged the jury that the only issue for them to decide was whether the plaintiff unexpectedly swerved to the left and by such negligent act caused or contributed to the accident, there was no reversible error in the charge, although in certain parts the court seemed to entertain the view, urged at times by both parties, that statutory rights and duties were involved.</p> <p>9. Negligence — New Trial — Weight op Evidence.</p> <p>The finding and conclusion of the court that the verdict of the jury in favor of plaintiff was not against the overwhelming weight' of the evidence, held, supported by the record.</p> <p>10. Appeal and Error — Miscarriage op Justice.</p> <p>Where, on examination of the entire record, it cannot be said that it affirmatively appears that the errors complained of resulted in a miscarriage of justice, the judgment will he affirmed.</p>

<p>Error to Sanilac; Beach (Watson), J.</p> <p>Case by Charles Ellsworth against Albert Massacar for conspiracy and assault and battery. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Pledges — Personal Property.</p> <p>Only personal property may be the subject of pledge or bailment.</p> <p>2. Same — Bailments.</p> <p>A pledge is a vadium bailment, or the delivery of personal property to another to be held as security for some debt or obligation.</p> <p>3. Same — Real Estate Mortgage as Pledge.</p> <p>A real estate mortgage before foreclosure is ranked as personal property and recognized as subject to pledge by the owner.</p> <p>4. Same.</p> <p>While a real estate mortgage as a direct contract between the original parties to it is governed by the laws of the jurisdiction in which the land it incumbers is located, its assignment and delivery with the note it secures in bailment as a pledge of personal property is a new and independent contract between other parties to be governed by the law of the place where it is made.</p> <p>5. Same — Equity—Jurisdiction to Foreclose Pledge.</p> <p>On proper showing, the chancery court has authority to entertain an application by a pledgee for determination of rights between him and his pledgor, to decree a sale of the pledged property under direction of the court, imposing proper restrictions, and after the sale to inquire into its fairness and the sufficiency of the amount bid, and to reject or affirm the same.</p> <p>6. Same — Showing—Sufficiency.</p> <p>The allegations of a bill by a resident of Michigan to foreclose a pledge consisting of a note secured by mortgage on land in North Dakota and held by him as collateral to a note given by defendant to a corporation in Chicago, and by it sold to plaintiff, which is past due and unpaid, held, sufficient to authorize the chancery court to assume equitable jurisdiction.</p>

<p>1. Insurance — Automobiles — Theft Insurance — Breach of Warranty — Pleading—Special Defense — Court Rules.</p> <p>In an action on an insurance policy against the theft of an automobile, where the defense of breach of warranty in giving the wrong number of 'the automobile in the application was not specially pleaded, as required by Circuit Court Rule No. 23, and no proof offered that the claimed misrepresentation resulted in any injury to defendant, said defense was not available.</p> <p>2. Same — Proofs of Loss — Waiver.</p> <p>If defendant, through its authorized agent, when plaintiff went to its office to report his loss, took charge of the case, asked such questions as it saw fit, and then promised to return the car or pay for it within 60 days,) but later denied liability and refused payment, it was needless for plaintiff to tender subsequent proof of loss, since defendant by its conduct waived same.</p> <p>3. Principal and Agent — Agency May be Inferred From Facts and Circumstances.</p> <p>While an agency cannot be proved by the statements, declarations, or admissions of an alleged agent, standing alone, yet, particularly in the ease of corporations, which can) act only through agents, the existence and extent of an agency may be inferred from attending facts and circumstances, and If there be in proof facts from which an agent’s authority may fairly and reasonably be inferred, the question becomes one for the jury.</p> <p>4. Same — Evidence—Sufficiency—Question for Jury.</p> <p>On an examination of the whole record, UeXcL, that there was sufficient testimony on the question of agency to take the case to the jury.</p> <p>5. Insurance — Principal and Agent — Inferences.</p> <p>Where defendant’s attorney, who assumed to act as its agent in dealing with plaintiff in respect to his loss, was not sworn as a witness, although available, it was 215 — Mich.—34. competent for the jury to infer that he was not sworn because his testimony would, have been detrimental to de< fendant.</p> <p>6. New Trial — Excessive Verdict — Weight oe Evidence.</p> <p>The motion for a new trial on the ground that the verdict was excessive and contrary to the evidence was properly denied.</p>

, presiding. Bill by Jenny May Von Hoene and another against William R. Barber and another to enforce a vendee’s lien. Edward Griesbach and another were allowed to intervene as subsequent purchasers of the property involved. From a decree transferring the cause to the law side of the court, plaintiffs appeal.

<p>1. Appeal and Error — Directed Verdict:</p> <p>Where a verdict was directed for plaintiff, the proofs, on error, should be considered in the light most favorable to defendant.</p> <p>2. Insurance — Hail .Insurance — Loss’ While Suspended — Reinstatement.</p> <p>Where plaintiff, a member of a mutual hail insurance company, suffered a loss by a hail storm while he was four years in arrears for assessments and under suspension by action of the secretary in accordance with the by-laws of the association, he was not entitled to recover, although after his loss, but without making known the same, he paid up and was reinstated. Moore, Wiest, and Bird, JJ., dissenting.</p> <p>3. Same — Waiver.</p> <p>Defendant, by accepting payment of the arrearage, waived no rights as to the loss sustained while plaintiff was. under suspension, since he had a right, under the by-laws, to be reinstated at any time, and, as to any future loss, would be protected. Moore, Wiest, and Bird, JJ., dissenting.</p> <p>4. Same.</p> <p>The doctrine of waiver is based on something said or done by the insurer or its failure to do some act which it was its duty to do to avoid a waiver by reason of which the insured is led to believe that he is still recognized as a member and entitled/ to rights under his policy.</p> <p>Authorities passing on the question of provisions as to payment of premiums in hail insurance policy, are collated in a note in 4 A. L. R. 1303.</p>

), J. Bill by William H. Smith against Sarah Smith to enjoin summary proceedings and for an accounting. From a decree for plaintiff, defendant appeals.

), J. Case by Charles Crawford against William Huber and others for malicious prosecution, false imprisonment and abuse of criminal process. Judgment for defendants. Plaintiff brings error.

), J. Anna Schonfield presented for probate the last will of Anna Walter, deceased. The will was allowed in the probate court, and August Gutt and others appealed to the circuit court. Judgment for proponent on a directed verdict. Contestants bring error.

), J. Case by Frederick A. Horn, an, infant, by his next friend, against Parke, Davis & Company for personal •injuries. Judgment for plaintiff. Defendant brings error. Defendant maintains in its business biological laboratories, having in connection therewith stables and buildings in which are kept animals large and small.

<p>Error to Houghton; O’Brien (Patrick H.), J.</p> <p>, Assumpsit by the Title Guaranty & Surety Company against Paul P. Roehm on indemnity bonds. Judgment for plaintiff. Defendant brings error.</p> <p>In September, 1912, one Thomas Drapeau was the successful bidder for the construction of a highway in Portage township, Houghton county, known as “the new Otter Lake road.” He entered into a contract with the township for its construction. Mr. Drapeau was required to and did execute two bonds aggregating $22,000, one for $11,000 running to the township, and the other for a like amount running to the people of the State of Michigan (see Act No. 187, Pub. Acts 1905, 3 Comp. Laws 1915, § 14827 et seq.). The present plaintiff signed both bonds as surety at the instance and request of this defendant. But before or cotemporaneous with such signing defendant executed a writing, to the surety company called an “indemnity bond.” In this undertaking it was recited that the surety company—</p> <p>“has signed and executed or is about to sign and execute * * * a certain bond or undertaking in the penal sum of twenty-two thousand ($22,000.00) dollars, on behalf of Thomas Drapeau, in favor of Portage township, Houghton county, Michigan, and the State of Michigan, and bearing date on or about the date hereof, reference to which said bond or undertaking is hereby made for the purpose of certainty, a copy of which instrument is or may be hereto attached.”</p> <p>And it was conditioned that defendant—</p> <p>“shall hold and keep harmless the company from and against any and all liability, loss, damages, suit or suits (whether such suit or suits be rightfully or wrongfully brought), costs, counsel fees, charges and expenses of whatever nature or kind which the company shall or may at any time incur, sustain or be put to, for, or by reason or in consequence of the company having given and executed the said bond or undertaking, then this obligation shall be void; otherwise to be and remain in full force and virtue.”</p> <p>It was further provided:</p> <p>“This bond of indemnity shall be liberally construed so as to fully protect and indemnify the company.”</p> <p>In June, 1913, Drapeau entered into another contract for an extension of the highway beyond the work contemplated by the first contract from which later contract it would appear that the township had the option of having such work done at the same average rate per unit. He executed two bonds in the sum of $3,100, one to the township and one to the people of the State of Michigan. These bonds were likewise signed by plaintiff as surety, and defendant gave to it an undertaking called an “indemnity agreement” which recited that he had requested the company—</p> <p>“to sign and execute a certain bond or undertaking which bond is given for the building of a portion of the highway from Superior City to Otter Lake in Houghton Co., Mich., reference to which bond or undertaking is hereby made for the purpose of certainty and a copy of which instrument is or may be hereto attached.”</p> <p>This undertaking contained among others the following provision:</p> <p>“That we will at all times indemnify and keep indemnified the company, and hold and save it harmless from and against any and all demands, liabilities, loss, damage or expense of whatsoever kind or nature, including counsel and attorneys’ fees, which it shall at any time sustain or incur by reason or in consequence of having executed the said instrument; and that whenever any claim or claims shall have been made upon the company under the said instrument, if in judgment of the company it is determined that such claim or claims should be paid, we covenant, promise and agree to pay over in cash to the company upon its demand therefor, the amount or amounts of said claim or claims, and if the company deny liability concerning any claim or claims and suit or suits be brought against the company under said instrument to recover the amount of said claim or claims, or any other proceeding or proceedings be taken thereon involving the company, whether the suits and proceedings be against the principal named in the said instrument and the company jointly, or against the company alone, whether such suit or proceeding or proceedings be rightfully or wrongfully brought or instituted we covenant and agree to defend said suits and proceedings to a conclusion at our own expense or to permit the company, if it so elect, to place the defense of said suits and proceedings in the hands of its own attorneys or counsel, in which latter event we covenant, promise and agree to pay over to the company upon its demand such sum or sums of money as may be required to retain said attorneys or counsel and to' defray the expenses of conducting the defense of said suits and proceedings and further, we covenant and agree to satisfy and discharge any and all judgments recovered against the company under said instrument as soon as the same, shall be entered or docketed unless an appeal be taken and bond or bonds to secure or stay the collection of such judgment or judgments be procured by the undersigned and filed as required by law.” * * *</p> <p>Mr. Drapeau died in July, 1918, and the contracts, were completed by his administrator. Defendant in three separate instruments in which he describes himself as “indemnitor of the bond of Thomas Drapeau issued by the Title Guaranty & Surety Company” consented that the township pay to Mr. Drapeau’s administrator an aggregate of $2,550 to be used for the payment of labor debts. Three parties who had furnished material used in the construction of the highway brought suit against the surety company, counting on both bonds which run to the people of the State of Michigan. Mr. Roehm was given notice of these cases and of all the proceedings therein, and a copy of the declaration in each case was served on him. He made no defense to any of the actions. The surety company urged all defenses apparently thought available but judgments were rendered in all the cases and were paid by the surety company. Thereupon this action was brought upon defendant’s undertakings. The case was tried by the court without a jury and findings of fact and conclusions of law in accordance with, plaintiff’s contention were filed, and judgment was thereupon entered. Defendant properly excepted to the conclusions of law but we do not understand him to question the findings of fact.</p>

), J. Assumpsit by the Superior Steel Spring Company against the New Era Spring & Specialty Company for a balance due. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Saginaw; Browne (Clarence M.), J.</p> <p>Case by Elmanzor B. Metcalf against the Peerless Laundry & Dye Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. Assumpsit by William Smalley Daniels against the Page Steel & Wire Company for commissions on the sale of certain windshields. Judgment for defendant non obstante veredicto. Plaintiff brings error.

), J. Case by William H. Tatro against the Baker-FiskHugill Company for the loss of an automobile while in defendant’s possession for repairs. Judgment for plaintiff. Defendant brings error.

), J. Bill by John W. McNair and others against Vard S. Raymond to enjoin a violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.

(Ormond F.), J. Bill of interpleader by Elmer W. Mulford, executor of the will of Hugo H. Stender, deceased, against William Stender and the Niles Invisible Boor Cheek Company to determine the title to a legacy. From a decree for defendant company, defendant Stender appeals.

), J., presiding. Bill by Joseph J. Henze and others against Nelson M. Saunders and another to rescind a land contract on the ground of fraud. From a decree dismissing the bill, plaintiffs appeal.

<p>1. Adverse Possession — Ejectment—Owner Deemed in Possession.</p> <p>Plaintiff in ejectment, having title of record to the land, is deemed in law to be in seisin and possession thereof and such seisin is coextensive with the right, and continues until the owner is ousted by the adverse possession of another.</p> <p>2. Same — Evidence oe Adverse Possession — Presumptions in Pavor oe .Owner.</p> <p>Evidence of adverse possession must be strictly construed, and every presumption is in favor of the true owner.</p> <p>3. Same — Possession Presumed to be in Subordination to Owner.</p> <p>Possession, as a presumption of law, is intended only in favor of the true owner and every presumption is in favor of possession in subordination to his title.</p> <p>4. Same — Ejectment—Burden of Proof.</p> <p>In ejectment by the owner of the title of record, the burden of proving adverse possession by. clear and cogent evidence was upon defendants.</p> <p>5. Same — Landlord and Tenant — Repudiation of Lease — Burden of Proof — Actual Notice Necessary — Constructive Notice.</p> <p>In ejectment by the owner of the title of record, where defendants claimed adverse possession under an instrument which they claimed to believe was a deed, but which according to plaintiff’s proofs was a lease, the burden of proof was upon defendants to show that their possession was hostile in its inception, or, if under a lease, that it had been repudiated and notice thereof in fact given to plaintiff; constructive notice being insufficient.</p> <p>6. Same — Notice—Sufficiency.</p> <p>This issue was not met by the denial of one of defendants of knowledge of permission granted by plaintiff to defendants to occupy the premises.</p> <p>7. Same — Permissive Possession.</p> <p>Where two are in occupancy of land, their holding is by permission and not adverse if either one of them has invoked and obtained permission from the owner for both.</p> <p>8. Same — Permissive Possession — Waiver.</p> <p>By becoming a 'lessee with his partner, one who claimed title by adverse possession thereby waived all claim of possession adversely to the lessor.</p> <p>9. Same — Actual Notice of Hostile Possession Necessary Where Entry Permissive.</p> <p>Required notice of hostile holding under a permissive entry could not be predicated upon claim of ownership by defendants, or understanding to such effect by neighbors or assessing officers, or the building of fences, clearing of land or payment of taxes; nothing short of actual notice to the owner being sufficient.</p> <p>10. New Trial — Evidence—Weight of Evidence.</p> <p>The verdict in favor of defendants being so clearly against the weight of the evidence, plaintiff’s motion for a new trial should have been granted.</p>

), J. Bill by William P. Purfield against Frederick G. Schleicher for the specific performance of a contract. From a decree dismissing the bill, plaintiff appeals.

), J. Assumpsit by Norman A. Kitchen against J. Price Hill and another for breach of a contract of employment. Judgment for plaintiff, defendants bring error.

<p>Appeal from Shiawassee; Collins (Joseph H.), J.</p> <p>Bill by Vvhlliam H. Rowley against the Laingsburg Cemetery Association to enjoin a forfeiture of burial rights. From the decree rendered, plaintiff appeals.</p>

Case by Catherine Budnick, administratrix of the estate of William Peters, deceased, against Albert M. Peterson, for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

), J. Bill by Bert Youngs against the Advance-Rumely Thresher Company for the cancellation of a contract, and for damages. From a decree for plaintiff, defendant appeals.

), J. Bill by the Towar Cotton Mills, Incorporated, against Perley Abbey and others to enjoin an execution levy and sale. From a decree dismissing the bill, plaintiff appeals.

Case by Bertha F. Kreft, administratrix of the estate of Frederick Firsch, deceased, against the Great Lakes Stone & Lime Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.