ent, in his possession, and properly a part of his proper baggage. Prentice v. Decker, 49 Barb. (N. Y.) 21; Burke v. Railroad Co., 7 Heisk. (Tenn.) 451; Wheeler v. Railroad Co., 31 Kan. 640; Smith v. Abair, 87 Mich. 62, 63.

2. We have before us no question concerning the right of the husband (plaintiff) to recover for injuries to the ordinary wearing apparel of his wife. The contention relates entirely to articles of jewelry, lost or injured, which were not given or furnished by her husband. It is defendant's position that, these being the separate and sole property of the wife, the husband, under the circumstances shown, could not recover for their loss or injury. In his charge the court said to the jury:

"Some question has been raised by defendant's counsel to the effect that the articles contained in this trunk which had been previously given to the plaintiff's wife by others, and which were taken by her to Monroe on this trip as a part of her wardrobe, ought not to be included in your consideration. These articles are the cameo pin set in pearls, the silk liberty scarf, the set of gold beads, the emerald wreath set in pearls, and perhaps some other articles.

"But after some consideration (although not without considerable hesitation) I have concluded, under the circumstances admitted in this case, to submit that question to you in relation to these articles thus enumerated. I feel somewhat certain that the husband had such special property in these articles by reason of his possession that he would be entitled to recover their value, if lost, notwithstanding they were the special property of the wife. "I therefore instruct you as to these articles, which were the wife's property, and which you believe, under the evidence, were either lost or damaged, shall be taken into consideration by you in fixing the amount of damages sustained by the plaintiff.

* * *

*

* "

Error is assigned upon this portion of the charge, and is also assigned upon the refusal of the court to give defendant's eleventh request to charge, which was:

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"The plaintiff is not entitled to recover for the loss of

or damage to any article belonging to his wife which had not been purchased with funds furnished by the plaintiff."

Of this request it is said by counsel for plaintiff that—

"The defendant contends that in no case can any recovery be had, unless the plaintiff establishes an absolute title to the articles, notwithstanding that the plaintiff was the bailor and the defendant was the bailee, and undertook with the plaintiff to carry the trunks safely."

We do not so understand the position of counsel for defendant. No one will contend that in all cases a bailor must show absolute title to the thing bailed in order to maintain an action against the bailee for injury to the subject of the bailment. The question in this case is whether, under the circumstances shown, plaintiff, with respect to the particular chattels, had the interest necessary to enable him to maintain this action. I have been of opinion that upon the facts and the declaration, which avers a contract between the parties to transport plaintiff's baggage, of which baggage the articles in question are averred to have been a portion, it must be held that the plaintiff cannot recover the value of the particular property of the wife. My Brethren who sat in the case are agreed, and there is reason and authority to sustain them, that the verdict and judgment are right, and that the recovery may be and should be sustained upon the ground that the contract to carry plaintiff and his wife and their common baggage was a contract with the plaintiff. Jacksonville, etc., R. Co. v. Mitchell, 32 Fla. 77 (21 L. R. A. 487); Baltimore Steam Packet Co. v. Smith, 23 Md. 402. Analogous decisions are those in Blanchard v. Page, 8 Gray (Mass.), 281; Moran v. Packet Co., 35 Me. 55. See, also, Hutchinson on Carriers, § 724. It is not claimed that the articles in question were not proper baggage for the wife. In a sense, the question presented is one of general commercial law, in view of which I yield my own opinion to that of the majority.

3. It is necessary, in considering this proposition, for a

141 MICH.-27.

better understanding, to make further reference to the record. The plaintiff, his wife, and others were sworn as witnesses for the plaintiff. Each of them had made some examination of the articles about which they gave testimony. Excepting plaintiff's wife, each was permitted, over objection, to estimate in dollars the amount of the injury described by them, or to state the injury in fractions of the value before injury, as that the damage was one-fourth or one-half of the original value of the articles, or that for the purpose for which they were purchased they had no value. The witnesses Smith, Schwartz, Remington, and Berry, called by plaintiff, were treated by counsel as expert witnesses, and each gave answers to hypothetical questions. It is evident that, whether included in the hypothetical question or not, and it usually was, the answer of each witness as to amount of damage was based in part upon a personal inspection of the injured article. A witness with 25 years' experience in dry goods was asked by plaintiff's counsel:

Q. Assuming that that gown was made late in the fall of 1903 by Miss Remington, cost $85 when delivered, and was worn the second time, that it had been through a railroad collision, been to the cleaner's, and left after cleaning in the shape it is now, state what in your opinion would be the value of that gown in the present condition for Mrs. Withey's use and wear.

"A. The gown having been injured, the purpose for which it was made is absolutely destroyed. A gown which is made for a dressy dress, to be worn as a dress for dress occasions, when it has become soiled or spotted or injured so that it shows, its value for that is lost entirely; and it is not a gown that is adapted for ordinary uses. She did not buy it for a house dress or street dress.

Its value is gone. * * * I should not consider it had any money value for the purposes for which it was made. It has lost it by its damage."

Another witness, the dressmaker who made the gown, testified that in her opinion it was damaged one-half, or $42.50. These examples acquaint us fairly with the grounds of the exceptions taken. As to two rather ex

pensive dresses, an opera cloak, and the overcoat of the plaintiff, the injuries complained about were principally to the appearance of the garments, rather than injuries to the fabrics. Each witness had some knowledge, gained from observation, which the jury had not and could not have, except by seeing the injured property, although the witnesses attempted to describe conditions as they saw them.

Counsel for appellant contends that, whatever experience these witnesses may have had in their respective lines, and however competent they may have been to state cost and quality and to describe the injury, it was not competent to state to the jury an opinion of the amount of the damage expressed in dollars. It is a rule of the law of evidence that upon the question of the existence or nonexistence of a fact in issue, whether a main fact or an evidentiary fact, the opinion of witnesses is not admissible. What a witness has seen or heard or felt, he knows, and it is for him to put before the jury the facts as he has perceived them by his senses, and for the jury to form an opinion concerning the fact in proof of which the evidence is offered. But there are exceptions, apparent or real, to the rule which excludes opinion evidence. A real exception is that class of opinion evidence which is called 'expert evidence.' The apparent exceptions are not easily classified. They are sometimes treated as opinions admitted under exceptions to the rule, sometimes as matters of fact. The practical test for receiving or rejecting opinions of lay witnesses seems to be that, when the jury can be put into a position of equal vantage with the witness for drawing them-when by the mere words and gestures of the witness the data he has observed can be so represented that the jurors have those data as fully and exactly as the witness had them at the time he formed his opinion -he may not as a rule give an opinion or estimate. Wigmore on Evidence, § 1924.

3

It was said by Justice CAMPBELL, in Evans v. People, 12 Mich. 27, 35:

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Experience has shown that many cases exist in which it is impossible, by any description, however graphic, to explain things so as to enable any one but the witness himself to see or comprehend them as they would have been seen or comprehended, could the jury have occupied his position of observation. In such cases the witness must give his own impressions and conclusions, or his narrative is useless, adding, however, as full explanations as the nature of the case will admit, so that his capacity and truthfulness may be tested as far as practicable.”

In this State, testimony concerning the amount of damage, largely matter of opinion, has been held properly received in cases not to be distinguished in principle from the one at bar. Continental Ins. Co. v. Horton, 28 Mich. 173; Printz v. People, 42 Mich. 144; Enright v. Hartsig, 46 Mich. 469.

In City of Grand Rapids v. Railroad Co., 58 Mich. 641, cited and relied upon by plaintiff in error, the evidence held to have been wrongly admitted was not opinion as to value of premises merely, but opinion or judgment as to compensation to be awarded for taking premises in condemnation proceedings.

The court carefully instructed the jury. He said in part:

"Several witnesses have been permitted to testify as to their opinions as to value both before and after the alleged injuries to these articles. But I instruct you that you are to assess the plaintiff's damages according to your own best judgment of the evidence and as to the injury done to them; and the evidence that has been thus received may be followed or not, as you find that it is true or not, under the evidence as to the amount of damages the plaintiff has actually sustained.

"If you believe from the evidence in the case that the statements and estimates made by any witness are not warranted, you need not follow such statements. If you believe that they are warranted, you may, to the extent that you find they are warranted by the evidence. other words, the whole question of the amount of damages sustained by the plaintiff is for you to determine, and you alone, from the evidence, and you are not to be governed

In