does not arise, because the doctor was absent from the jurisdiction of the court, and plaintiff is not shown to have been responsible for his absence. The jury was not told that plaintiff was responsible for failure to take his deposition or to produce him at the trial, but was told they might consider "whether or not the plaintiff knew that he was going to be absent," and, in substance, that under the facts in this case a presumption would arise from the unexplained absence of his testimony that, if produced, it would be adverse and the jury might so consider it. As applied to the situation disclosed here, we think the principles embodied in this instruction find support in Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075); O'Connor v. City of Detroit, 160 Mich. 193 (125 N. W. 277); Dowagiac Manfg. Co. v. Schneider, 181 Mich. 539 (148 N. W. 173); Cooley v. Foltz, 85 Mich. 47 (48 N. W. 176).

Serious complaint is made of the court permitting defendant to show that in June, 1911, plaintiff was an inmate of the psychopathic ward of the hospital at Ann Arbor, which is urged as error particularly prejudicial to plaintiff's claim for damages, because unfairly tending to minimize his testimony before the jury by the implication that he was mentally incompetent to testify rationally as to his injuries.

The evidence upon this subject was developed in connection with plaintiff's cross-examination. Both he and his son had testified that prior to the accident his general health was good. He also testified that his memory was impaired as one of its results, while it was pretty good before. In that connection he was asked in cross-examination if he had been in the psychopathic ward at Ann Arbor in 1911. He replied that he was at Ann Arbor for treatment in 1911; he did not know what for; that he was in the hospital eight or nine days and then his sons brought him

home. He denied being taken there by the sheriff on commitment by the probate court of Genesee county, or that he was in the probate court in connection with any such proceedings. Following his denials and while upon that subject counsel for defendant introduced in evidence the files of the probate court relating to his commitment, as bearing generally "on the condition of health prior to the accident and impeachment of plaintiff's own testimony of that condition." All testimony upon that subject was allowed over the objection that the same was "incompetent and immaterial."

This testimony was not introduced for the purpose of showing plaintiff of unsound mind and incompetent as a witness at the time of the trial, because previously so adjudicated. Neither would the fact that he was an inmate of the psychopathic ward of the Ann Arbor hospital for a short time, for observation under the law, be evidence that he was then of unsound mind. Such was not defendant's claim or the avowed purpose of the proof. His sanity at the time of the trial and competency to testify were not questioned. In view of his and his son's testimony as to his previous good health, memory, ability to work and manage his farm, it was not incompetent to interrogate him on cross-examination as to any matters which might tend to throw light upon his former physical or mental condition as affecting his general health, efficiency, ability to work, and accuracy of memory formerly or at the time he was testifying. A reasonable latitude, in the discretion of the court, is always permissible along those lines in cross-examination of plaintiffs for damages ex delicto, particularly where the witness is evasive or irresponsive, and we do not find the discretion of the court was abused in the particular complained of.

The compensatory damages to be awarded in cases

of this nature are contingent on the extent, nature, and permanency of the injuries suffered, peculiarly appropriate for the estimation and determination of the jury according as they find the facts to be. No question is raised as to the charge of the court upon the measure of damages. Dr. Stuart was the only medical witness with personal knowledge of the injuries. He cared for plaintiff immediately after the accident, and attended him until his condition was such that he saw no further occasion to do so. He testified that he was neither hired nor discharged by plaintiff, but attended him professionally, and quit because he thought he had rendered such services as were necessary; not being aware Dr. Jickling was visiting him also. He stated that upon examination of plaintiff shortly after the accident, at his son's home, he found a scalp wound, which was a cut or incision with some contusion around it, a redness near the point of the right shoulder of which plaintiff complained on lifting his arm, and a little evidence of an injury or bruise on his leg near the knee; that he dressed his wounds, took him home, and on visiting him in the morning found him sitting in a chair in as good condition as could be expected; that he fixed a sling around his neck in which to carry the arm of which he complained, prescribed massage, a stimulating liniment and rest, and had no idea plaintiff sustained any permanent injuries. Plaintiff's neighbors testified to his being out and around his place soon after the accident, apparently as well and as able to work as before. A neighbor who lived about 20 rods west of him and had called to see him on the day following the accident testified that four days later he went over there and saw him driving some chickens around with a small fishpole, using it with both arms; that he did not have his arm in a sling, and witness never saw him with his arm in a sling after the first day he

visited him, following the accident. Plaintiff's testimony was in the extreme to the contrary. So many things, often of minor importance, which he denied, were proven by other and apparently disinterested witnesses that misgivings naturally arise as to the accuracy of his testimony upon the extent and permanency of the pain and suffering which he asserts. For those there is no definite, legal standard of damages. The foundation facts of the injury are for the jury, and with them decided it is their further province to make such award as in the light of all the evidence seems in their united judgment adequate. The trial court was not able to find on a motion for a new trial that the verdict was perverse, or inadequate. In 6 Thompson on Negligence (2d Ed.), § 7362, it is said:

"In cases where the amount of the award is attacked on the ground of inadequacy, the court will grant a new trial only where it clearly appears that the jury must have been influenced by passion, prejudice, partiality, corruption or mistake as to the law or facts."

This record, considered in its entirety, fails to show that the jury was influenced by any of the elements above stated, or actuated by any malign or improper motives in arriving at their verdict.

The judgment is affirmed.

KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, BROOKE, and FELLOWS, JJ., concurred.

GROCHULSKI v. PORATH.

MASTER AND SERVANT-PERSONAL INJURIES-DEATH-EVIDENCENEGLIGENCE.

In an action against a master to recover damages for personal injuries resulting in death sustained by plaintiff's intestate, an employee, while hauling dirt to a certain dumping ground, due to the tipping over of the wagon at such grounds, evidence held, insufficient to show actionable negligence on the part of defendant.

Error to Wayne; Hally, J. Submitted January 11, 1917. (Docket No. 97.) Decided May 31, 1917.

Case by Michalina Grochulski, administratrix of the estate of Stanislaus Grochulski, deceased, against Julius Porath, for the negligent killing of plaintiff's decedent. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed.

Leonard Szynanski, for appellant.

John E. Maloney, for appellee.

STEERE, J. Plaintiff's intestate suffered fatal injuries on August 17, 1913, while in defendant's employ, resulting from the capsizing of a dirt wagon of which he was the teamster. Upon trial of the case in the circuit court of Wayne county, a verdict was directed for defendant at the conclusion of plaintiff's testimony, on the ground that the evidence failed to disclose any actionable negligence on his part.

Defendant was a contractor engaged in excavating a sewer along Thirty-Second street in the city of Detroit, removing the dirt as excavated to a dumping ground located between McGraw avenue on the south,