KALEMBACH V. MICHIGAN CENTRAL RAILROAD COMPANY...... 509 Negligence case-Jury who have found a verdict for the plaintiff notwithstanding erroneous instructions upon the law of negligence will not be presumed to have been prejudiced thereby in their assessment of damages -Permanent injury cannot be shown under averments that plaintiff has been put to great expense in procuring medicine, etc., specifying the amount, and that he was greatly and permanently injured, suffered great physical' and mental pain, and became sore, sick, lame, and languishing-Question of contributory negligence of the owner of a runaway team, who drives it into a railroad freight-yard, and close to tracks over which cars are liable to pass at any time, is for the jury.
KELLY, HOBSON V..
KING, WHITE V...............
KUHN V. FREUND...
Evidence-A witness to an assault cannot testify to his
own conclusions, or to those of other on-lookers, or to
the effect upon his mind of the assault, or to what "the
people there desired," or that "threats of personal
violence," were made by others against the assailant.
LEE V. MICHIGAN CENTRAL RAILROAD COMPANY.
Negligence case-Master is liable for injuries to servants
caused by such negligent acts of fellow-servants as are
due to their incompetency-When there is evidence
tending to show such incompetency, the question should
be submitted to the jury-Employers may be negligent
in the selection, as well as in the retention, of employés
-Proof that an employé who has been in the service
but two or three weeks was incompetent when employed
need not be supplemented by proof of employer's knowl-
edge of such incompetency, in the absence of any evi-
dence of the exercise of care in his selection-If an
Lee v. Michigan Central Railroad Co.-Continued.
employé becomes incompetent after being hired, or in-
dulges in a habit which renders him incompetent during
such indulgence, notice of such incompetency or habit
must be brought home to the employer, or it must be
so notorious as to charge him with knowledge.
Negligence case-Driving a fractious horse within five
feet of a moving locomotive, from which steam is
escaping, is such negligence as will bar recovery.
Libel and slander-Words actionable per se-Special dam-
⚫ages need not be alleged if words are spoken in regard
to plaintiff's profession or employment, and the imputa-
tion is so injurious as to raise a presumption of injury
to his reputation.
Logs and logging-Scale of deceased scaler who was
mutually agreed upon, if free from fraud or gross mis-
take, is binding upon both parties, and admissible in
evidence in a suit upon the contract upon proof of
scaler's death-If evidence is introduced tending to show
such a mistake, or that the scale is not correct, fair,
and honest, the burden is upon the party claiming
under it to establish its correctness-If scale is received
in evidence, witnesses who were present when it was
made may testify how it was made, and what they
did and knew about it, and what the scaler did and
said while making it-Scaler's declarations against the
correctness or honesty of the scale may be shown-If a
scaler's place is filled by another scaler by agreement
after he has scaled a portion of the logs, all of which
are scaled by the second scaler, evidence of the reputa-
tion of the first scaler is immaterial in a suit involving
the correctness of the latter scale-Non-delivery of logs,
because of low water-If accepted the second year with-
Malone v. Gates-Continued.
out objection, payment being refused because of disputed scale, such non-delivery is not a substantial breach of the contract-Gross mistake-Is one which is clearly shown to have left out a portion of the logs, or to have increased the scale by a mistake in the tally, or in the addition of the amounts on the tally-sheets, or something of that nature, and not an honest error of judgment in the scaler-Examination of witnessesNot an abuse of discretion to permit one of plaintiff's attorneys to complete the examination in chief of a witness after it has been commenced by the other attorney. MANNAUSAU V. WALLACE..
Replevin-Judgment for return of property-Defendant
may recover property by execution if within the juris-
diction of the court, and, if not, by replevin, even from
a good-faith purchaser.
MCARTHUR, AUDITOR GENERAL V..
MCCABE, VAN KLEECK V..........
Will-Legacy to niece in consideration of her care and
assistance towards the testatrix and her husband, to be
performed during their natural lives-Such performance
is not a condition to vesting of legacy-Willing entire
estate to husband for life, to be used in defraying his
necessary expenses, with right to use so much of the
principal as should be necessary if income proved
insufficient, and remainder, if any, to certain legatees,
is held not to give husband the whole estate absolutely.
Evidence - Of a custom among contractors to charge, for
each general employé working on a job taken by the
day, an advance over the price actually paid, is admissi-
ble-Partnership-Firm may recover on a contract made
entirely with one partner, bills being rendered in the
firm name-Not error for court to state to jury that the
uncontradicted testimony shows a certain payment, if
such is the fact.
Partnership-Appointment of partner's husband as her agent, with equal powers, who is to devote his time and services to the firm business in lieu of those of his wife, clothes him with the general authority of a partner-Costs-Incurred by log-owner in defending against an illegal claim of lien-Contractor not liable for, in the absence of an express agreement fixing such liability.
MICHIGAN CENTRAL RAILROAD COMPANY, FEHNRICH V....
MICHIGAN CENTRAL RAILROAD COMPANY, KALEMBACH V.---... 509
MICHIGAN CENTRAL RAILROAD COMPANY, LEE V...
MICHIGAN CENTRAL RAILROAD COMPANY, Palmer v...
Principal and agent-Equity has no jurisdiction of a suit
by an agent for an accounting where the account is
not mutual-Principal and surety-If surety receives an
agreed security for his indorsement of the principal's
notes, he must pay them before asking for additional
security-Under an agreement by a principal in her will
to pay the surety a specified sum upon her death,
which is declared to be a first lien upon her estate left
at the time of her death, and which sum the executor
is directed to pay therefrom, the lien only attaches to
the estate remaining at her death-Surety must exhaust
Nash v. Burchard -Continued.
his remedy at law before equity will compel the prin-
cipal to turn over his property to a receiver to secure
or satisfy the surety's debt-Bills and notes-Maker has
no right to be subrogated to the place of a second in-
dorser.
NICHOLS V. ANN ARBOR & YPSILANTI STREET RAILWAY COM-
PANY.
Street-railway act-Confers no power to construct a rail-
road along the side of the traveled portion of a public
country highway, with the consent of the township
authorities, upon a road-bed not conformable to its
grade, but made by means of cuts and fills, without
compensation to abutting land-owners-Equity will per-
petually enjoin the maintenance and operation of such
a road.
OGEMAW TOWNSHIP, PLUMMER V.
Libel and slander-If actual malice is shown, the jury may always give punitive damages-Words charging a person with being a liar, a thief, and a perjurer are actionable per se.
PALMER V. MICHIGAN CENTRAL RAILROAD COMPANY.
Negligence case-Loading steel rails lying along track onto moving flat-cars-Question of negligence of company in directing sectionmen to perform such labor is for the jury-Evidence of number of inexperienced men thus employed, of the severity of the work, and that loading rails onto moving cars is more dangerous than upon stationary ones, is admissible.
PARKHURST, HUNTINGTON V..
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