standing on my knees when that struck me, working at the pump.

"Q. Was that after you had heard the noise? "A. Yes, sir; it happened at the same time. "Q. You heard the noise and that happened? "A. Yes, sir.

"Q. And then you immediately started to go up? "A. No. sir; I did not.

"Q. How long did you wait?

"A. Probably about three or four minutes after. "Q. You waited there three or four minutes before you started to go up the hanging bolts?

"A. Yes, sir."

This testimony relates to a hurt which would have been received even though the ladder road and bell line were constructed and should have been withdrawn from the jury.

We do not think the other assignments of error call for discussion.

For the reasons stated, we are constrained to reverse the case and grant a new trial.

MCALVAY, KUHN, STONE, BIRD, and STEERE, JJ., concurred with MOORE, J.

BROOKE, C. J. I concur in the result for the further reason that no negligence of defendant was made out.

OSTRANDER, J., concurred with BROOKE, C. J.

SULLIVAN v. TRUSZKOWSKI.

1. EVIDENCE-SEDUCTION-OPINIONS-CONCLUSION OF WITNESS. Upon the trial of an action for seduction, which was brought by a Polish girl, who died after the trial, testimony of a relative to decedent, in answer to the question, what was the attitude of defendant toward her, that "they used to treat each other pretty nice," was rightly allowed to stand notwithstanding the objection of defendant's counsel that it was a conclusion, since it is frequently a question for the discretion of the court, in a doubtful case, whether the witness should be permitted to describe in the form of a conclusion the effect which certain transactions had upon the witness.

2. SAME-WITNESSES-CUSTOM OR HABIT.

Nor did the trial court err in excluding from the record the question asked by defendant's counsel whether defendant was in the habit of making presents to a child at any particular time of the year, the witness replying, "No, only on Christmas," offered as tending to show that defendant was at the home of the child on one of the occasions when it was alleged that he was with deceased: the proposed testimony was too indefinite and uncertain as to whether it was a custom of defendant's or of persons belonging to his religion.

3. SAME

PROOF OF ANOTHER ENGAGEMENT.

It was not permissible, in behalf of the defendant, to attempt to show that at the time of the alleged seduction he was engaged to marry another girl with whom he had frequently appeared in public, and to attempt to show that his relations with her were well known to neighbors, friends, and acquaintances: unless the testimony was brought home to the decedent before the time of the alleged seduction it would be incompetent to affect the question of her good faith.

4. SEDUCTION - PROMISE OF MARRIAGE

PEAL AND ERROR.

ABSOLUTE CONTRACT

AP

A merely conditional promise of marriage, based upon possible results of illegal relations, is insufficient as a basis 185 Mich.-2.

of an action for seduction, as such a promise has been held to have no tendency to overcome the natural sentiment of virtue or chastity: the trial court was in error in instructing the jury that in a seduction case the promise might be based upon the contingency that if the plaintiff became pregnant defendant would marry her. But, where it clearly appeared by the record that no promise of a conditional kind was shown by plaintiff's testimony or by other evidence in the case, the error was not prejudicial and will be treated as surplusage.1

5. SAME-TRIAL-ARGUMENT.

Held, also, that argument of counsel alleged to have been prejudicial was not so improper as to warrant a reversal of the judgment.

Error to Kent; Brown, J. Submitted January 5, 1915. (Docket No. 4.) Decided March 18, 1915.

Case by Alice Kopicka against Anthony Truszkowski for seduction. Upon the decease of the plaintiff her administratrix, Florence K. Sullivan, was substituted as party plaintiff. Judgment for plaintiff. Defendant brings error. Affirmed.

Dunham & Dunham, for appellant.
Hall & Gillard, for appellee.

KUHN, J. This is an action for seduction, in which it is claimed that plaintiff's decedent was seduced by the defendant under a promise of marriage. The trial resulted in a verdict and judgment for plaintiff. Plaintiff's decedent died after a writ of error was issued in this cause, and the plaintiff was duly appointed special administratrix of her estate to prosecute this action.

Plaintiff's decedent was a Polish girl, who came to this country from Russian Poland in October, 1911.

'As to the effect of promise of marriage conditioned on preg nancy in action for seduction, see note in 51 L. R. A. (N. S.) 809. On the question of offer of marriage as a defense to action for seduction, see note in 29 L. R. A. (N. S.) 421.

She met the defendant soon after arriving here, at which time she was 19 years of age and he 25. It was her claim that, after the defendant obtained her confidence, he committed two different and distinct acts of seduction, to wit, on Saturday night, December 21, 1912, and on Sunday afternoon, December 29, 1912, on both of which occasions defendant promised to marry her, and that she consented to the act relying on the promises made in each instance. These claims were denied by the defendant.

The first error relied upon and argued by appellant in his brief relates to the examination of the witness Valeria Duba, the wife of plaintiff's decedent's halfbrother, who was asked, "Just what was their attitude toward each other, as evidenced by their actions?" and answered, "They used to treat each other pretty nice." It is contended that the motion to strike out this answer should have been granted, for the reason that it stated a mere conclusion. The only justification for allowing the answer is found in an exception to the opinion rule of evidence which allows a witness to give his opinion or conclusion where it would be impossible to state the minor details going to make up his answer so that the jury could understand. It is sometimes difficult to determine exactly where the line should be drawn between the rule excluding opinion evidence and the exception referred to. And while it would seem that the witness, in the answer to the question here propounded, might have detailed more particularly what she actually saw that led up to the conclusion she arrived at, as stated in her answer, nevertheless we do not think it was prejudicial error to allow the answer to stand, as the trial court, who heard and saw the witness, was better qualified to determine whether under all the circumstances the witness should have been allowed to answer as she did. With reference to this rule, Jones on Evidence, vol. 2, § 359, states the following:

"But there are many cases so near the line between the rule and its exception that an appellate court should not be swift to reverse the rulings of the court below unless it is reasonably clear that a plain error of law has been committed. There is a wide difference in the ability of witnesses to describe what they have seen, and to narrate what they have heard. One witness may be able to make so graphic a word picture of the scene he has witnessed that those who hear it are in as good a situation to deduce a correct conclusion as he is; while another, who has observed the same incidents, may be utterly incapable of describing them, and can do nothing but state the impression or conclusion he drew from them. The trial court sees and hears each witness, and in doubtful cases is far better qualified than the court of appeals to determine whether a witness should be confined to the facts, or should be allowed to state his conclusions."

Appellant's fourth and fifth assignments of error relate to the following questions and answers propounded to the witness Amelia Zalewski, who was the mother of a child for whom the defendant had been named godfather, according to the custom of the Polish Catholic church. Witness was asked, "Do you know of Tony making any presents to the child because of his appointment?" The record discloses that notwithstanding the court sustained an objection as to the immateriality of the question, it was answered as follows: "I know of Tony making presents to the child." The answer was allowed to stand, and was not stricken from the record, so there cannot be any merit to this assignment of error.

Another assignment of error relates to the question asked of the same witness, "Was there any particular time of the year when he did that?" and the answer, "No, just on a Christmas," which answer, on motion of counsel, was stricken on the ground that it was too general, and also because "it assumes it was the custom, or something of that kind, which would be immaterial." It is appellant's claim that he was at an en