MUNICIPAL CORPORATIONS-Continued.
13. Where a franchise is granted to use the streets of a mu-
nicipality, and thereafter the territorial limits of the
municipality are extended, the franchise immediately at-
taches without any further action on the part of the
municipality to the newly acquired territory. City of
Bay City v. Saginaw-Bay City Railway Co., 419.
See CONSTITUTIONAL LAW (2); RAILROADS (2-5); STREET
RAILWAYS (2, 3).
MUTUAL MISTAKE-See TRUSTS (8).
NATURE OF ACTION-See ASSUMPSIT (1).
1. In an action for personal injuries caused by defendant's
automobile to plaintiff when it backed upon him and
struck him as he was crossing defendant's private drive-
way on the sidewalk on a public street, his testimony
that he looked and did not see any automobile coming,
although the day was clear, his eyesight and hearing were
good, there were no obstructions in the way, and the
garage was 92 feet from the sidewalk, held, although
improbable, to present a question of fact for the jury.
Ottaway v. Gutman, 393.
2. That plaintiff looked in the direction of the automobile
so indifferently as not to see it coming, did not make him
guilty of contributory negligence, as a matter of law, nor
does the improbability of his testimony produce such
result. Id.
3. In an action for personal injuries caused by a collision
between defendant's automobile and plaintiff's buggy,
where there were controverted questions of fact, the ques-
tions of defendant's negligence and plaintiff's contributory
negligence were properly for the jury. Simmons v. Peter-
sen, 508.
4. In an action for the destruction of plaintiff's houseboat
by fire caused by an explosion on defendant's premises,
any inference that plaintiff's husband appreciated the dan-
ger and was guilty of contributory negligence that could
be drawn from his testimony that he had been aware for
a few days that gasoline was escaping from defendant's
premises onto the ground and a scum was forming on
the surface of the water around his houseboat, and that
he was looking for another location, held, for the jury
rather than the court. Woods v. Chalmers Motor Co., 556.
5. In storing upon its premises and handling for its pur-
poses large quantities of gasoline, defendant was bound
to exercise such reasonable care to avoid accident as was
commensurate with the apparent dangers attending such
use. Id. 557.
6. While the burden was upon plaintiff to prove facts from
which it might be fairly inferred that defendant's negli-
gence was the proximate cause of the explosion, the evi-
dence need not be direct and positive; proof sufficient to
give room for a reasonable inference, or permissible pre-
sumption, of negligence on the part of defendant being
sufficient to carry the case to the jury. Id.
7. Contradictory testimony as to whether defendant per-
mitted gasoline to overflow and run at large, and to what
extent, rendered the question of its negligence one for
the jury. Id.
8. Even if there were no conflict in the testimony, if differ-
ent inferences might reasonably be drawn as to its im-
port, the question as to whether there was negligence
would still be for the jury. Id.
9. In an action by plaintiff for the wrongful death of his
wife, claimed to have been caused by an overdose of
arsenic due to the negligence of defendants, the owners
of a drug store, in substituting the word "teaspoonful"
in the label on the bottle, for the words "three drops" in
the doctor's prescription, the testimony of a reputable
physician, in answer to a hypothetical question stating
the facts and describing her symptoms thereafter, that
such symptoms are caused by an excessive dose of arsenic
and probably would result in her death, held, sufficient
to warrant the drawing of an inference favorable to plain-
tiff sufficient to warrant presenting the disputed question
of fact as to the cause of her death to the jury. Marx
v. Schultz, 655.
See CARRIERS (3-5); DEATH (3); RAILROADS (1, 6, 8, 13, 14);
TRIAL (4).
NEGOTIABLE INSTRUMENTS-See BILLS AND NOTES (3, 4).
NEW TRIAL.
Where it appeared from an affidavit offered in support of a
motion for a new trial, that affiant was in the court room,
without being subpoenaed, waiting to testify as a witness
for defendant who was charged with assault with intent
to commit the crime of rape, when he was informed by
a former deputy sheriff that he would not be allowed
to testify because he had been in the court room, and that,
believing this, he left at once without being sworn; that
he had no opportunity to tell defendant's attorneys what
he could testify to in detail; and it appearing that his
testimony would have contradicted the complaining wit-
ness, and, if believed by the jury, would have strongly
supported defendant's story and the theory of the de-
fense, held, under all the circumstances of the case, that
the trial court was in error in not granting the motion.
People v. Moore, 686.
See DEATH (5); PLEADING (4); RAILROADS (15).
NEWLY-DISCOVERED EVIDENCE-See NEW TRIAL.
NO PROGRESS-See DISMISSAL AND NONSUIT.
NON OBSTANTE VEREDICTO-See PRINCIPAL AND SURETY (8).
NOTICE-See BILLS AND NOTES (3); PRINCIPAL AND AGENT (1);
WARRANTY (3).
NOTICE OF AWARD-See MASTER AND SERVANT (14)
1. Equity courts ought not to prohibit the conduct of a lawful
business by a defendant on his own unrestricted premises
except as a last resort to restrain an otherwise unavoid-
able nuisance existing in violation of a complaining party's
rights. Mackenzie v. Frank M. Pauli Co., 456.
2. On appeal from a decree perpetually enjoining defendant
from continuing its woodworking mill in the vicinity of
plaintiffs' homes, on the ground that the same constituted
a private nuisance, there being a showing that the ob-
jectionable features constituting a nuisance can largely
be avoided by alterations, etc., the decree is modified to
imposing correction of, and enjoining, the offensive fea-
tures in the conduct of defendant's business. Id.
OPENING STATEMENT-See CRIMINAL LAW (2)
OPERATION OF RAILROADS BY GOVERNMENT -
DENCE (10); RAILROADS (11); WAR.
OPINIONS-See WARRANTY (1).
ORAL AGREEMENT-See CONTRACTS (10); FRAUDS, Statute of.
ORDINANCES-See MANDAMUS; MUNICIPAL CORPORATIONS (1,
8); RAILROADS (5); STREET RAILWAYS (3).
PARENT AND CHILD-See HABEAS CORPUS.
PARKS AND BOULEVARDS-See MUNICIPAL CORPORATIONS (3).
PAROL EVIDENCE-See BILLS AND NOTES (1); EVIDENCE (8).
PART PERFORMANCE-See FRAUDS, STATUTE OF.
1. Under 3 Comp. Laws 1915, § 12362, an attorney who acted
as a go-between in the procurement of a trust agreement,
and who was to receive part of the compensation to be
paid to the trustee for his services, had such an interest
in the subject-matter of the litigation as would give him
the right to intervene in a proceeding involving the right
of the trustee to recover under the contract. Chandler
v. Preston, 245.
2. Where suit was commenced against the Grand Trunk Rail-
way System, under the erroneous impression that it was
a corporation, while in reality it was only an operating
name used by the real defendant, the Grand Trunk Rail-
way Company of Canada, a motion to amend the pleadings,
after plaintiff had made its case on the merits, by substi-
tuting the name of the real defendant for the one named
was properly denied, in the absence of evidence that ser-
vice was made upon an officer of the real defendant.
Parke, Davis & Co. v. Grand Trunk Railway System, 388.
3. It cannot be said that defendant's counsel waived the
defect by pleading the general issue, where it nowhere
appears that he was in court on that particular occasion
representing the real defendant; the plea being filed for
the defendant named in plaintiff's declaration. Id.
See EQUITY; MASTER AND SERVANT (11).
PARTIES IN INTEREST-See CONTRACTS (12, 13).
PARTIES TO CONTRACT-See PRINCIPAL AND AGENT (4).
1. In a partnership accounting the finding of the court
below that the action of one of the copartners in fur-
nishing money and bidding in lumber sold to satisfy a
judgment against the copartnership was not open to criti-
cism, but that it safeguarded its interests, held, sustained
by the record. Munroe, Boyce & Co. v. Ward, 370.
2. Amounts expended for lawyers and other expenses in-
curred by one of the copartners, in an effort to protect
the interests of the copartnership, held, reasonable and
proper charges to be allowed in a partnership accounting.
Id.
3. Where money was advanced to a copartnership by one
of the partners with the intention that it should be a loan
and not a contribution to the capital, interest was prop-
erly allowed thereon in a partnership accounting. Id.
PAVING See MUNICIPAL CORPORATIONS (12).
PEDESTRIANS-See RAILROADS (1).
PERMANENT INJURIES-See DAMAGES (5).
PERSONAL INJURIES-See CARRIERS (3-5); DAMAGES (4, 5);
EVIDENCE (9, 11); MASTER AND SERVANT (1, 4, 7, 10); NEGLI-
GENCE (1, 3); RAILROADS (1, 13); TRIAL (4).
PERSONAL PROFIT-See FRAUD (3).
PERSONAL PROPERTY-See WILLS (5).
PHYSICIANS AND SURGEONS-See NEGLIGENCE (9).
1. In ejectment for a strip of land, where the case was tried
upon the merits and no objection raised to the insuffi-
ciency of the description in the declaration until after
judgment was entered for plaintiffs, the court properly
allowed an amendment under 3 Comp. Laws 1915, §§ 12478,
12480, to correct the imperfection in affirmance of the
judgment. Ford v. Bailey, 77.
2. Where a chancery cause was brought on to be heard in
open court, without objection by either party, upon the
supposition and theory by both court and counsel that
the pleadings were perfected and the cause at issue as to
all parties, but it was discovered after conclusion of the
proofs and submission of the case that it was not in fact
at issue as to all parties, the court was authorized under
section 1, chap. 16, of the judicature act (3 Comp. Laws
1915, 12478), to grant a motion perfecting the pleadings
nunc pro tunc, where no new elements or issues were
brought into the case, and was for the furtherance of
justice. Bennett v. Fleming, 278.
3. Averments in a bill of complaint, among others, that
plaintiff advanced to defendant a sum of money for the
purpose of purchasing certain shares of bank stock, that
defendant accepted the money with the understanding that
he was to use it for said purchase for the account of
plaintiff, and agreed to deliver said stock to plaintiff,
and that while defendant has held said stock in his own
name he really held it in trust for plaintiff, held, to sus-
tain plaintiff's contention that an express trust is pleaded
and that relief should be granted upon the theory of a
trusteeship. Backus v. Backus, 690.
4. The defense that a contract was made subject to delay
or failure caused by fires, strikes, riot, the act of God or
the public enemies should be specially pleaded, and comes
too late when urged for the first time upon motion for
new trial. Meeuwsen v. Clough & Warren Co., 697.
See DEATH (4); FRAUD (10); PARTIES (2, 3).
POISONS-See NEGLIGENCE (9).
POLICE COURT OF DETROIT-See APPEAL AND ERROR (6).
POLICE POWER-See STREET RAILWAYS (2).
POSSESSION OF DEVISED LANDS SUBJECT TO DEBTS—
See EXECUTORS AND ADMINISTRATORS.
POWER OF ATTORNEY, REVOCABILITY-See WILLS (8).
POWER OF LEGISLATURE-See CONSTITUTIONAL LAW (1).
POWERS-See MUNICIPAL CORPORATIONS (7); WAR (3).
PRACTICE-See TENDER.
PRESENTMENT-See CRIMINAL LAW (1).
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