People ex rel. Esper v. Detroit & S. Plank-Road Co.

• Decision Date: 04 December 1900
• Citation: People ex rel. Esper v. Detroit & S. Plank-Road Co., 125 Mich. 366, 84 N.W. 290 (Mich. 1900)
• Parties: PEOPLE ex rel. ESPER v. DETROIT & S. PLANK-ROAD CO.
• Court: Michigan Supreme Court

84 N.W. 290

125 Mich. 366

PEOPLE ex rel. ESPER v. DETROIT & S. PLANK-ROAD CO.

Supreme Court of Michigan

December 4, 1900

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Quo warranto by the people, on the relation of Frank H. Esper against the Detroit & Saline Plank-Road Company. Judgment for plaintiff, and defendant brings error. Reversed.

James H. Pound (Thomas Mulvihill, of counsel), for relator.

Corliss Andrus & Leete (H. H. Hatch, of counsel), for respondent.

MOORE J.

This is a proceeding in quo warranto brought for the purpose of forfeiting the charter belonging to the defendant company. From a judgment in favor of the plaintiff, the case is brought here by writ of error. After the necessary pleadings had been filed to make an issue, an agreement was made between Esper, the relator, and the respondent. The respondent therein agreed to proceed with all due diligence and put the road in a reasonably safe and fit condition for public travel as required 'by the charter of said second party, and complete the same on or before October, 1898.' If respondent made default, then relator 'shall proceed with the suit' 'as though this agreement had not been made.' If the respondent kept and performed the agreement, then the suit was to be discontinued. The defendant claimed that it performed this agreement. The relator claimed that it did not do so, and brought the case on for a hearing. The defendant then interposed a plea puis darrein continuance, setting up the performance of this agreement as a defense. The question then arose as to the effect of this plea. The defendant claimed the right, in case it failed to establish the defense set up in the plea puis darrein continuance, to litigate the case upon the issue as it existed when this plea was interposed. The court ruled that the only issue which could be tried was the truth of the defense set up in the plea puis darrein continuance. When this ruling was made, counsel for defendant claimed the right to open and close the case, which right was given them by the court. The ruling of the court in relation to the effect of the plea is assigned as error. The occasion to interpose pleas of this nature does not often arise, and with no opportunity to investigate, it is perhaps not surprising that a busy nisi prius judge should make an error in deciding the effect of such a plea. The question, however, is now controlled by a rule of court which has received a construction in this court, and is now put beyond the realm of doubt. In Burt v. Judges, 90 Mich. 520, 51 N.W. 482, a plea puis darrein continuance was interposed subsequent to placing the cause at issue No replication was filed to this plea, and the default of plaintiff was taken, and judgment rendered in favor of defendant. The court in disposing of the case said: 'Under the practice at the common law, when a plea puis darrein continuance was filed it had the effect to eliminate all other defenses, as by that proceeding the defendant abandoned his former plea, and placed the issue of the suit entirely on the new plea. It therefore became the duty of the plaintiff to reply to such plea, and upon failure to do so his default would be taken.' The rule (now rule 9) is quoted at length, and the court adds: 'Under this rule, which was adopted prior to the bringing of this suit and the filing of the plea, the plea stands simply as a notice under the general issue, and required no reply. The court was therefore in error in treating it as a plea requiring a replication, and in entering default absolute for want of reply.' The court set aside the default which had been entered, and directed that the case stand for trial upon the declaration, the plea of the general issue, and the notice contained in the plea. The plea interposed in this case should have been treated as a notice, under the rule; and, if defendant failed to establish the defense set up in this plea, it was not precluded from litigating any defense it might properly interpose under the issue as it existed when this plea was filed. Nor did the interposition of this plea give the defendant the right to open and close the case.

It is claimed that the court erred in allowing witnesses to state conclusions instead of stating facts, when describing the roadbed. Some of them were allowed to give their opinion as to whether the roadbed was reasonably safe and fit for travel. This was improper, under the repeated rulings of this court. In Smead v. Railway Co., 58 Mich. 200, 24 N.W. 761, it was said: 'The following question was put to the plaintiff and several of his witnesses, viz.: 'In your opinion, was the cattle guard sufficient to prevent animals from getting on the right of way under circumstances ordinarily arising at those places?' This question and the one following it, of like nature, were permitted to be answered by the plaintiff and his witnesses, against the objection of defendant's counsel. This, we think, was error. The question called for answers giving merely the opinions of the witnesses, and established no facts. Really the facts stated by some of these witnesses, when given, tended strongly to contradict the opinion. It is quite elementary that a witness can only give his opinion in exceptional cases, and then only when his knowledge is such as to qualify him, to some extent, as an expert.' I think the rule is well stated in Best, Ev., where he says: 'This rule is necessary to prevent the other rules of evidence being practically nullified. If the opinions thus offered are founded on no evidence, or on illegal evidence, ...