Held, that the question was not objectionable as I will was made. A jury found that the inleading. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. $$ 795, 837-839, 841-845; Dec. Dig. § 240.*] 4. EVIDENCE (§ 471*) - OPINIONS - FACTS OR CONCLUSIONS. The question was objectionable as calling for a conclusion. [Ed. Note. For other cases, see Evidence, Cent. Dig. 2149-2185; Dec. Dig. § 471;* Witnesses, Cent. Dig. §§ 833-835.] -- 5. EVIDENCE (§ 558*) EXPERT WITNESS CROSS-EXAMINATION. It is not proper cross-examination to ask a medical expert if he is acquainted with a certain book, and, calling his attention to a paragraph and reading therefrom, to ask him his opinion with reference thereto, and so indirectly getting the passage read in evidence. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2377, 2379; Dec. Dig. § 558.*] 6. TRIAL (§ 90*)-RECEPTION OF EVIDENCEMOTION TO STRIKE. Where a witness did not answer a question which had been objected to, but answered another question not asked, which, if asked, would have been unobjectionable, and the answer was only subject to the objection that it was not responsive, its admission was proper in the absence of a motion to strike it out. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 235, 236, 238-240; Dec. Dig. $ 90.*] 7. WILLS (8 324*)-UNDUE INFLUENCE-EVI DENCE. In a will contest, evidence held to justify the withdrawal of the issue of undue influence from the jury. [Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 667-770; Dec. Dig. § 324.*] 8. APPEAL AND ERROR (§ 688*)-RECORD MISCONDUCT OF COUNSEL. Where an objection is made to alleged misconduct of counsel in argument, the bill of exceptions should contain enough of the argument and proceedings to show prejudice and that the misconduct was not cured; mere detached statements of counsel alleged to be prejudicial being insufficient. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2896; Dec. Dig. § 688.*] Error to Circuit Court, Tuscola County; Watson Beach, Judge. Application for probate of the last will of Isaac Du Bois, deceased, to which George D. Du Bois and Mary E. Lewis file objections. From a decree admitting the will to probate objectors bring error. Affirmed. Argued before BIRD, C. J., and OSTRANDER, HOOKER, MOORE, and STONE, JJ. W. J. Spears, Harry G. Kimball, and Ellwood P. Morey, for appellants. Frank L. Fales, for appellees. strument was the last will of the deceased, and contestants ask us to review the proceedings had at the trial. The errors assigned will be considered in the order in which they are presented in the brief for appellants. 1. One of the subscribing witnesses to the will was sworn and examined as a witness. He was asked: "Q. From what you observed and discerned of Mr. Du Bois at the time he requested you to sign this as an attesting witness, in his presence, this will, did you form any conclusion as to whether he understood and comprehended the will? A. I paid no further attention any more than I would to any other customer that I was waiting on in the bank. Q. I do not ask you to tell the conclusion, but did you arrive at any conclusion as to whether Mr. Du Bois understood and comprehended this particu lar will? (An objection was made to this question by counsel for contestants, on the ground that it is not a proper question and on the ground that witness had not laid sufficient foundation, which said objection was overruled by the court. Contestants excepted.) A. I should think he fully understood what he was doing. Q. From what you observed and discerned, state whether or not the testator, Mr. Du Bois, appeared to be under any restraint or undue influence? A. Not to my knowledge." It will be noticed that the question called for no opinion or conclusion, and could, and should, have been answered by yes or no. Assuming that the objection raises the question which is argued in the brief, namely, that the witness had not testified to such observation of the testator or to such acts or circumstances as entitled him to express an opinion concerning his mental competency, it is still apparent that the answer to the question imported no less and no more than the signature of the same witness to the will imported, which was that so far as appearances were noticed by the witness the testator appeared to understand what he was doing at the time of executing the will which the witness at tested. 2. A witness for the contestants had tesunder his observation, and that he noticed, tified that the deceased, in August, 1906, was among other things, that he told long stories. Upon this subject the examination proceeded as follows: "Q. Can you give us any idea of those stories, what would he say? A. All of his early life; talked a great deal of his OSTRANDER, J. The probate court for pony, told us his hunting trips and fishing, the county of Tuscola admitted to probate and how he lived while in the woods. Q. an instrument proposed as the last will and State whether or not the stories were reatestament of Isaac Du Bois, deceased. The sonable, connected stories?" Counsel for procontestants appealed to the circuit court, con- ponents objected upon the ground that the tending that deceased had not sufficient tes-question was leading, and the objection was tamentary capacity to make the will, and sustained. The argument which is made for that he was unduly influenced by relatives appellants is that a witness may often state and those surrounding him at the time thea conclusion or give an impression when he We is unable to describe appearances. We see | witness, even upon cross-examination. nothing in the question which would indicate have no opportunity for redirect examinathat the witness was expected to answer the tion upon this authority. (Objection sustainquestion in a particular way. The questioned. Exception for contestants.)" It was objectionable as calling for the conclu- is conceded by counsel for appellants that sion of the witness. While this was not the scientific books cannot be introduced in eviground of the objection, it appears to have dence, but contended that it is competent on been the ground of the ruling. Later, the cross-examination to base questions upon the witness was denied the privilege of answer- contents of them or upon extracts from them, ing the question, "Did they have a point to so long as the testimony is rigidly confined them?" referring to the stories, and the to the one purpose of testing the competency question, "Were these reasonable stories?" of the expert, or the value of his opinions. the court saying that those were questions Assuming the rule to be as stated, we are for the jury. Still later, the witness at- not convinced that counsel was denied the tempted to describe the stories. The ruling benefit of it. We do not know what counsel of the court was correct, and the jury had proposed to read, or did read. The point is the benefit of the description of the stories not ruled in appellants' favor by Pinney v. which the witness gave and of the testimony Cahill, 48 Mich. 584, 12 N. W. 862, because tending to prove that the stories were fre- the witness had not referred to the medical quently repeated. They also had the bene- work as supporting his opinion, or professed fit of the opinion of other witnesses for con- any acquaintance with the work beyond its testants who testified, without objection, that general reputation. We find no reason for decedent told long stories, without point, refusing to apply the rule of Marshall v. not reasonable or connected, repeating them Brown, 50 Mich. 148, 15 N. W. 55. without apparent reason. 4. The same witness, on redirect examin3. A medical witness, called by the propo-ation, was asked: "Q. Can you answer now, nents, testified upon direct examination as predicating your answer upon what you saw follows: "Q. Do people ever die of arterio of him from the 20th of October to the 9th sclerosis standing by itself, except they have either apoplexy or an attack of the heart? A. Not in my experience. Q. Do you know of any instance laid down in the authorities, except it is one or the other of the causes named that would immediately precede death? A. I do not. Q. Are there any authorities, with which you are familiar, that lay it down that death may ensue from that disease, except one or the other of these immediate causes obtain? A. No. Q. State whether you know in your own experience, or know of any instance laid down in the authorities, of a person dying of arterio sclerosis or inanition due to that, where the capacity to transact ordinary business is questioned, for a period of two months prior to the death? A. No, I don't." On cross-examination, he testified as follows: "Q. Does that have an effect on the mentality of the patient? A. Arterio sclerosis? Q. Yes. A. I never heard of a case where it did. Q. Is Church & Peterson a good work on this? A. On what? Q. Church & Peterson on Nervous and Mental Diseases? A. Supposed to be. Q. A standard authority? A. It is one of them. I don't know how late an edition you have got there; it might have been an authority a number of years ago, and not authority now. It would be well enough to know the edition. Q. Church & Peterson, 1903. A. That is quite recent. Q. Is that a good authority on it? A. I should say so. Q. Do you know whether it has any effect on cerebral activity? A. Well, it will after a while, undoubtedly. Q. On page 197 of Church & Peterson it says (reading from book). Mr. Wixson: We object to reading from the medical book and substituting the of November including the intervening visits, as to whether from your first visit on October 20th to November 9th the last, he had the capacity to make a will? Mr. Kimball: Same objection. Court: The objection is sustained to the latter portion of the question. Mr. Wixson: What particular portion, if the court please, if you will direct my attention to it? Court: Under your own objections haven't we confined it to the question of the will in question in this case? Mr. Wixson: If the court please, I think the 134th Michigan decided that we are not obliged to confine it to the will in this case. My objections to the testimony of the contestants-perhaps the court and counsel misunderstood one another-was as to the question involving what would constitute legal testamentary capacity. Now, I don't ask the doctor here as to his knowledge-without reference to what may or may not constitute capacity-I ask him predicating it solely upon what he observed upon these several visits. I cite the 134th Michigan, page 51. Court: He may answer. Q. Predicating your answer solely upon what you observed of Isaac Du Bois on the occasion of your first visit, the last visit, and the intermediate visits, between those dates did you, or could you now, have an opinion as to the capacity of Mr. Du Bois to transact and handle his ordinary business affairs? (Same objection. Objection overruled. Exception for contestants.) A. Yes; I have an opinion. Q. What is that opinion? A. That he was perfectly sane and competent to make a will." It will be noticed that the witness did not answer the question over which the colloquy occurred. The question he did answer was not permitting an answer was not erroneous. | Missouri estate seems to have been received The answer given was subject to the objec-in May, 1905. With money from that source tion, on the part of proponents, that it was decedent purchased a farm of 100 acres, not responsive, and, on the part of the contestants, that it was really an answer to the question first put and subject to the objection which was debated. But no motion was made to strike it out. 5. At the close of the testimony, the court withdrew from the jury the question of undue influence, and this is assigned as error. The examination of the record which this assignment makes necessary has been made. The will was executed October 23, 1906. The testator died December 12, 1906, at the age of 62 years. He left no widow and no children; his kindred being three brothers, a sister, and the two children of a deceased brother. The sister lived in Washington, D. C., one brother at Vassar, Mich., two brothers in California, and the nephews in Maine and New York, respectively. The legatees and respective bequests made are: To George, his brother, $1,000; to Charles, his brother, $3,000; to Mary, his sister, $2,000; to Edward, nephew, $1,000; to Nettie, widow of John, $1,000; to Matilda, wife of his brother, Samuel R., $3,000. Samuel R. is made residuary legatee. It seems to be conceded that of the property immediately disposed of by the will the residuary legatee would take very much the largest portion. These provisions, and the one for payment of debts, etc., are found in the first eight numbered paragraphs of the will. In the ninth paragraph is a recital of decedent's interest, as legatee, in an estate in Missouri, "which will be paid at intervals and in different amounts for a term of twenty years from the date of such will." Such sums as shall, after his death, be derived from this source the testator gives to Frank North, in trust, to hold and invest until the said 20 years shall have elapsed and the Missouri estate is closed, then to distribute, after paying taxes and expenses, to his brothers and sisters living at the time of the distribution, share and share alike, and if any are dead leaving descendants living at that time, such descendants to take the portion which would otherwise have been distributed to the ancestor. Frank North, who is appointed executor and trustee, is cashier of, and a considerable stockholder in, a bank at Vassar. The law yer who drew the will is the attorney of the bank and a personal friend of said North. Decedent formerly lived in and around Vassar, then at some point in the northern part of Michigan, then in Wisconsin, where he was a homesteader and where he lived alone. In 1904, he went to Hastings, Mich., where his brother Charles then resided, living with his brother, and from there to Vassar in February, 1905, to the home of his brother Samuel R. Du Bois, and lived with him the remainder of his life, some 22 months. erected some buildings thereon, and placed it in charge of an agent. The necessary inference from the testimony is that decedent had accumulated very little property, had very little education derived from schools and books, was addicted to the intemperate use of liquor, which intemperate use increased with prosperity. That his intemperance frequently made him incapable of transacting business and had an effect upon his general condition which hastened his death are facts which may be said to be established by the testimony. The certificate given at his death stated the cause of death to be "inanition due to arterio sclerosis." To what extent his mental and his physical capacity had been affected at the time the will was made is the subject of much of the testimony presented to the jury. Some facts are established. He went to Medina, N. Y., and to Washington, D. C., visiting, in February, 1906, remaining until about April 1st. In September, 1906, he attended the fair in Toronto, Canada, and on his return, after a day's absence in Saginaw, he attended the state fair in Detroit. There is much conflicting testimony, professional and other, concerning his physical condition in October, 1906, and thereafter. He applied to Frank North to draw his will and was referred to Mr. Fales, who did draw it, and, according to his testimony, it was drawn to express what the testator desired to have expressed therein. The circumstances were presented to the jury. We do not find any testimony which tends to prove the act, or fact, of solicitation of the decedent, or argument or persuasion, to make a will containing the provisions found in this one. Considering that each of his brothers and his sister profited equally with himself out of the Missouri estate, none of the provisions of the will clearly offend what is sometimes called natural justice or feeling. Undoubtedly, undue influence may be proved by other than direct testimony that it has been exerted and circumstances disclosed by the will itself and the manner of procuring it to be made may raise the presumption that undue influence has been exerted. Cooper v. Harlow, 128 N. W. 259. Although it is contended by the appellants that the residuary legatee, the trustee and the lawyer who prepared the will were interested, each in a different way, in the preparation of such a will it is not claimed that the interest and relations disclosed, and the will itself, give rise to the presumption referred to. It may be said here, as it was said in Hibbard v. Baker, 141 Mich. 124, 128, 104 N. W. 399, that if decedent was competent to make the will there is involved no distinct question of undue influence. The court did not err in the ruling complained about. petency of the decedent the verdict of the jury was taken. Upon this subject the charge is not criticised. 7. The portions of the arguments of counsel for the proponents which appear in the record evidence a trial somewhat bitterly contested. The practice of sending to this court in the bill of exceptions single and detached statements made by counsel in argument is not calculated, generally, to materially aid the court in determining whether the consequences should be a reversal of the judgment. Though such a penalty is sometimes imposed upon the client for misbehavior of counsel, it is for conduct prejudicial to the defeated party, not excused or palliated by the conduct or statements of counsel upon the other side, and not evidence merely of bad taste. Upon this record it appears that counsel for proponents improperly characterized the contestants and their counsel, and was rebuked by the court. We are not satisfied that contestants were prejudiced by the statements, since a jury is quite as likely to resent as to applaud unfair reasoning and vituperation. The judgment is affirmed. KONIESZNY v. DETROIT & M. RY. CO. (Supreme Court of Michigan. Dec. 22, 1910.) 1. EVIDENCE (§ 5*)-JUDICIAL NOTICE-FOREST FIRES-DANGER. The court takes judicial notice of the desperate situation in which the rural population and inhabitants of the new and small villages in the country near Alpena, Mich., were placed by the forest fires of 1908. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 5.*] 2. CARRIERS (§ 316*)-INJURIES TO PASSENGERS-NEGLIGENCE-BURDEN OF PROOF. In an action against a railroad for death of a passenger killed through the destruction of a train alleged to have been negligently run through a forest fire, plaintiff had the burden of proving that defendant's engineer was negligent in attempting to proceed after discovering the fire. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1283-1292; Dec. Dig. § 316.*] 3. CARRIERS ($ 320*)-INJURY TO PASSENGER -INTOXICATION-QUESTION FOR JURY. Where, in an action against a railroad for death of a passenger through the alleged negligence of defendant's engineer in running his train into a forest fire, there was no evidence that the engineer's judgment was in any way affected by liquor, or that it had anything to do with his conduct or ability to intelligently comprehend his dangers, the court properly refused to submit the question of the effect on him and his crew of having drank liquor. [Ed. Note. For other cases, see Carriers, Dec. Dig. 320.*] 4. CARRIERS (§ 318*)-INJURIES TO PASSENGER-NEGLIGENCE-SUFFICIENCY OF EVI DENCE. In an action against a railroad for death of a passenger on a train run into a forest fire, evidence held insufficient to show that defendant was negligent. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 318.*] Error to Circuit Court, Presque Isle County; Frank Emerick, Judge. Action by John Konieszny, administrator, against the Detroit & Mackinac Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed. Argued before OSTRANDER, HOOKER, MOORE, MCALVAY, and BROOKE, JJ. I. S. Canfield (Charles F. Hull, of counsel), for appellant. James McNamara, Charles R. Henry (Griffin Covey, Jr., and Guy D. V. Henry, of counsel), for appellee. HOOKER, J. The plaintiff and his wife were residents of the village of Metz near Alpena, previous to its destruction by the forest fires, which swept and desolated that region in 1908. We may take judicial notice of the desperate situation in which the rural population and the inhabitants of the new and small villages of that section were placed. It is also plainly shown by this record. It appears beyond and without dispute that on October 15, 1908, the village of Metz was in great danger of destruction, and that in spite of vigorous efforts to prevent, the fire from the wood burned it up, leaving not a shanty standing. This occurred toward night, and a short time after the train of the defendant departed from the village. The defendant's railway from Detroit to Mackinac passes through Metz. On the day mentioned messages were sent from Metz and other stations to Mr. Luce, the superintendent of this railroad, advising him that the inhabitants of Metz were in imminent danger. The south-bound local freight was at La Rocque, a station five or more miles north of Metz, and its conductor received the following message from Luce: "Take your engine and way car and go to Metz at once to assist people in danger from fire. C. W. Luce." He immediately released his engine and “ran light" to Metz with his crew of engineer, fireman, and two brakemen. On their arrival the engine was coupled to several cars, including a gondola. Some of the railroad property was hastily put into a box car, and some of the citizens loaded on some of their personal property. Many persons climbed into the gondola, and the train was started south to Posen, distant about 10 miles. The conductor was at the rear of the train. At Nowicki's crossing, a mile and a half from Metz, the train encountered fire, the rails warped or spread, and the train was destroyed with about 20 persons, among whom were the engineer, fireman, and the plaintiff's wife and three children. The plaintiff was a saloon keeper at Metz, and at the time was engaged in the attempt to prevent the fire from reaching Metz. This action was brought by him as administrator of his deceased wife to recover damages for her loss to him. Negligence is charged. The jury found a verdict for the defendant, and plaintiff has appealed. the case of Underhill v. Grand Trunk Ry., 81 Mich. 43, 45 N. W. 508. There is not only such a presumption here, but the burden is upon the plaintiff to affirmatively prove that the engineer was negligent in attempting to proceed. It is common knowledge that engineers sometimes find themselves in situations with trains when they must decide between two dangers, and not only that, but must decide instantly. We do not know, and plaintiff has offered no testimony tending to show, that the engineer was negligent, or that he did not do the best thing to be done from the information he had. His own life was in the balance, and he lost it. Apparent The negligence alleged, as set forth in plaintiff's brief, is: “(1) That defendant allowed its engineer and other trainmen to drink intoxicating liquors and thereafter to run and manage the train in question. (R. 7.) (2) That defendant was negligent in employing an engineer and other trainmen, and put them in charge of said train who would and did drink intoxicating liquors to excess or at all. (R. 7.) (3) That defendant was neg-ly plaintiff's counsel relied principally on the ligent in not giving plaintiff's decedent warn- fact that the engineer drank some beer and ing that it was about to run the train on whisky while at Metz. There is no proof which she was riding between the piles of that the engineer's judgment was in any way burning forest products. (R. 7.) (4) That affected by liquor or that it had anything to defendant was negligent in not leaving her in do with his conduct or ability to fully and a place of safety. (R. 8.) (5) That defend- intelligently comprehend his dangers, and deant was negligent in running its said train cide upon the proper thing to do. No one while plaintiff's decedent was riding thereon, testified that he showed signs of intoxicainto a place where the track was covered by tion, and several witnesses testified that all fiercely burning flames of fire. (R. 10.)" of the crew were sober. In short there is The brief states that: "The errors assign-nothing to justify an inference that the beer ed cover four grounds: First. (a) That de- or whisky was in any way the cause of or fendant was allowed to show that, shortly contributed to this unfortunate outcome of before the trial, plaintiff had remarried. (b) a charitable and heroic effort to save life. That the court did not strike out all testimony relating to plaintiff's subsequent marriage. Second. That the court refused to submit the question of the effect on the engineer, fireman, and brakeman of having drank intoxicating liquors and afterwards in the running and management of the train. Third. The charge of the court in submitting the case to the jury in effect that they must find, before plaintiff could recover, that defendant's engineer was guilty of having acted recklessly, wantonly, and willfully in running the train between the burning piles of forest products. Fourth. That the court used the words 'recklessly, wantonly, and willfully,' in charging the jury, without defining and explaining their legal meaning and import." The defendant's counsel were allowed to show by cross-examination of plaintiff that he had married again since the accident. The suggestion that it was negligence to take these people from a place of safety, or not to leave them in a place of safety, or to warn them of the danger ahead, is without force. A verdict might properly have been directed for defendant. The judgment is affirmed. HARTLEY v. MILLER et al. (Supreme Court of Michigan. Dec. 22, 1910.) 1. APPEAL and Error (§ 567*)—Record—Case TIME FOR SETTLEMENT EXTENSION STIPULATION. BY for an extension of time in which to settle a The attorneys of the parties may stipulate case. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2519; Dec. Dig. § 567.*] 2. APPEAL AND ERROR (§ 567*)-CASE-MADETIME FOR SETTLEMENT EXTENSION BY STIPULATIONS. Where an order extending the time to settle a case-made was entered at the term when the suit was tried, and stipulations between attorneys extending the time, as authorized by circuit court rule 47 were filed from time to time, and the proposed case was agreed on and signed by the judge within the time as extended and on the last day of the year after the rendition of the judgment, and the case-made was filed on that day, in the office of the clerk, who, on the following day, made the proper indorsements thereon, the case was made in time. There is no testimony in the case that tends to prove negligence on the part of any of the crew. The testimony shows that they had no personal knowledge of the condition of the forest fires south of Metz, except what could be seen as the train proceeded. It was through a country filled with smoke. The engineer slowed down his train as he approached the place of the catastrophe, apparently having it under control. We cannot tell what he saw or why he proceeded. Were his own administrator a party plaintiff in an action against this defendant, the presumption of the law would be that he was not negligent under the rule laid down in [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2519; Dec. Dig. § 567.*1 Action by William Hartley against Frank P. Miller and another. From a judgmen |