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been asked by the court if he had anything to say why the sentence of the court should not be pronounced, and having been heard in response to said inquiry, is sentenced by the court, he being now of the age of twenty-four (24) years, to be committed to the branch of the State prison at Marquette, in the county of Marquette, and therein confined for a term of not less than seven (7) years nor more than fourteen (14) years, with the maximum recommendation of fourteen (14) years.
Warrant and commitment papers issued.
"JAMES PHELAN, "Recorder of the City of Detroit.”
It is apparent that the commitment describes no offense, upon conviction of which the sentence may be lawfully imposed. The entry of the verdict is also, and in the same respect, defective. It is contended, in substance, that the verdict does not support the judgment; that it is, in legal effect, a verdict of acquittal, because necessary elements of the substantive offense are not enumerated therein. The petitioner having personally presented his case, orally and by a brief, we would not willingly neglect to consider such argument as his main contention suggests. Such suggestions in his favor as are made, and such as occur to us, are answered by saying that it appears he was charged with the commission of an offense for which the punishment which was imposed may be lawfully imposed. He was tried and sentenced in a court of competent jurisdiction. The judgment of the court is not a nullity, and such mistakes, if any, as were made by the court ought to be asserted in a court of errors. In re Casey, 27 Wash. 686 (68 Pac. 185); In re Eckart, 166 U. S. 481 (17 Sup. Ct. 638); In re Ellen Bushey, 105 Mich. 64, 70 (62 N. W. 1036); In re Lewis, 124 Mich. 199 (82 N. W. 816). The error of recital, or rather the want of a complete recital, of the statute offense in the commitment is not, in view of the facts disclosed and above stated, reason for enlarging the petitioner.
A contention is made, based upon the conduct of the trial court in first releasing petitioner upon probation and later
imposing sentence. It is evident that the court proceeded in accordance with provisions of Act No. 91, Pub. Acts 1903, as amended by Act No. 32, Pub. Acts 1905, known as the probation law. It is alleged that one of the judges of the recorder's court consented in writing that the petitioner might leave the State of Michigan; that he did leave it, and was later brought into the State from St. Louis, Mo., and sentenced. It does not appear from the transcript of the record that the finding of the trial court that petitioner had violated the terms of his parole was based upon his absence from the State. It is alleged that petitioner was forced to return from another State. The contention is answered by what has already been said. The court, respondent being then in custody, exercised the discretion reposed by the statute in the court. The judgment of the court was not a nullity.
We do not find petitioner entitled to be discharged from custody, and it is the order of the court that he be remanded to the custody of the warden who produced his body in court.
BIRD, HOOKER, BLAIR and STONE, JJ., concurred.
ROUSE v. MICHIGAN UNITED RAILWAYS CO.
1. ABATEMENT AND REVIVAL-DEATH-NEGLIGENCE-PERSONAL INJURIES-PARTIES-EXECUTORS AND ADMINISTRATORS.
A right of action for personal injuries not resulting in the death of the injured person, survives after his death, and a suit for his damages, begun by him, may be continued by his personal representative after his death, with the same effect, according to the same rules, and to recover the same damages, as if he were living and prosecuting his action in person. (3 Comp. Laws, § 10117.)
2. SAME-SURVIVAL OF ACTIONS-DEATH ACT-STATUTES. Neither the death act (3 Comp. Laws, § 10427) nor Act No. 89, Pub. Acts 1905, affects such right of action or has any application to the manner in which it shall be pursued.
3. NEGLIGENCE-STREET RAILWAYS-CONTRIBUTORY NEGLIGENCE -INSTRUCTIONS TO JURY.
In an action for personal injuries caused by a collision of defendant's street car with the wagon of decedent, who claimed to have looked and perceived a car approaching at a suffi. cient distance to give him time to cross, if it had not been running at an excessive rate of speed, the trial court erred in stating to the jury that deceased saw the car approaching, where the plaintiff's testimony on that point was disputed.
Where plaintiff offered evidence that deceased could do no more during the second year after his injury than the first, and his testimony on a prior trial tended to show the extent of his damages, and where the court charged that no recovery could be allowed for the period after the death of dece. dent, or for disability caused by his last sickness, which did not result from his injuries, or for shortening his life, or for pain and suffering caused by his last sickness, it was not error to permit the jury to determine the loss subsequent to the first trial of the cause.
Error to Ingham; Wiest, J. Submitted January 4, 1911. (Docket No. 22.) Decided February 1, 1911.
Case by Jennie Rouse, administratrix of the estate of Albert Rouse, deceased, against the Michigan United Railways Company for personal injuries. Judgment for plaintiff; defendant brings error. Reversed.
Sanjord W. Ladd (Merriam, Yerkes, Simons & Ladd, of counsel), for appellant.
Frank L. Dodge (Rollin H. Person, of counsel), for appellee.
OSTRANDER, C. J. Albert Rouse sued the defendant to recover damages for personal injuries. A judgment in his favor was reversed. Rouse v. Railways Co., 158
Mich. 109 (122 N. W. 532). While the cause was pending in this court, on May 19, 1909, Albert Rouse died intestate. His death was not a result of the injuries inflicted by defendant. His widow, Jennie Rouse, was appointed administratrix of his estate, a suggestion of the death of the plaintiff was made, and an order entered reviving the suit. The cause was again tried, and resulted in a verdict and judgment for the plaintiff.
Accompanying the bill of exceptions are 142 assignments of error, the most of which present the proposition, asserted by the defendant, that the right of action accruing to Albert Rouse in his lifetime did not survive his death. The proposition is asserted in various ways. It is not important that the reasoning which is claimed to support it shall be recited. A right of action for personal injuries not resulting in the death of the injured person survives his death (3 Comp. Laws, § 10117), and a suit for his damages begun by him may be continued by his personal representative after his death, with the same effect, according to the same rules, and to recover the same damages, as if he were living and prosecuting his action in person. Neither the death act, so called (3 Comp. Laws, § 10427), nor Act No. 89, Public Acts 1905, affect such a right of action or have any application to the manner in which it shall be pursued. In the decisions of this court no different conclusion has been stated or intimated.
With this statement, we dispose of all of the alleged errors which are relied upon, except those predicated upon a statement made by the court in the charge to the jury, to the effect that Albert Rouse, the injured person, saw the car coming, and those relating to instructions for measuring the damages of the plaintiff.
To understand the significance of the first of these contentions, it is necessary to refer to the declaration and to some of the testimony given at the trial. Albert Rouse was driving south on the east side of Washington avenue, in the city of Lansing, with two horses and a wagon, the box or rack of which was 16 feet long. He had thus proceeded
for a considerable distance. He attempted to drive from the east to the west side of the street, and while crossing, driving in a southwesterly direction, his wagon was struck by defendant's car, also going south, between the front and rear wheels of the wagon. Rouse was jolted or fell from the wagon, and was injured. In each count of the declaration it is alleged that, before attempting to cross the street, Rouse looked for and discovered the car approaching from the north, but at such a distance that, if it had proceeded at a lawful rate of speed, he had abundant time to cross the street as he undertook to do. It is alleged that the car was run at a speed of 30 miles an hour without giving warning by gong or bell of its approach. It is the claim of the defendant, and was stated to the jury by the court, that Rouse did not look for the car, but, when it was within a few feet of him, he drove upon the track, and was struck. At the last trial of the cause, the testimony of Albert Rouse given at the first trial was read to the jury. He said:
"Well, as I came up north of Madison street, about the center of the block, I looked around, and I thought I would cross up there at that street or along there, and I turned and looked north on the track, and I didn't see any train, any car, and I thought I would go across, and there was some one coming on the west side of the street and was going north, and I don't know who it was. They were trotting their horses so I drove on a little further until I came to the intersection of Madison street and the avenue, and I there looked back, and I saw the car at a little north or at about that street.
"Q. What street was that, the next street north of Madison?
"A. The next one north-I think it is Jefferson. I then turned and went diagonally across the track, or started, and got across the track with my horses and at that time-or my horses and the front part of my wagon, and at that time I felt a shock, and was taken very rapidly up the street.
"Q. Now, you say you crossed diagonally, which way was that, going southwest?