Chadbourne, 32 Minn. 126, 129, 19 N. W. | Yes, sir; he said a good deal to her; some I Rep. 647. This case is distinguishable from City of St. Paul v. Butler, 30 Minn. 459, 16 N. W. Rep. 362, and Morton v. Power, 33 Minn. 521, 24 N. W Rep. 194. The order sustaining the demurrer to the complaint is affirmed.

recollect. He told her at different times through their talk that day that she could get out of there; he wouldn't live with her; and he called her a damned bitch, a damned street-walker, and a damned whore. Q. Did he say anything in reference to her former character? A. Yes, sir. Q. What was it?

MITCHELL, J., took no part in this decision. A He said that she was a damned whore,

TAYLOR v. TAYLOR.

(Supreme Court of Michigan. Jan. 18, 1889.) DIVORCE-CRUELTY.

On bill for divorce on the ground of cruel and inhuman treatment, where the evidence showed that defendant habitually, and in the presence of third persons, called complainant lewd names, and accused her of criminal intimacy with other men, and at times handled her with roughness, made her sleep on the floor, and on one occasion threw her down-stairs, and threatened to kill her, the court erred in dismissing the bill.1

Appeal from circuit court, Berrien county, in chancery.

and had been from a little girl up.

Q. Did

he say anything in reference to her mother and grandmother in that connection? A. Yes, sir. Q. What did he say, if anything, about them? Court. Was this in her presence? Q. Was this while Hattie was by? A Yes, sir. Q. Did he say anything in reference to any member of her family? A. Yes, sir; he said her mother had been one, and her grandmother before her." The witness detailed other conversations and occurrences that took place in 1886. Complainant once said "he wouldn't live with her any longer." "He pushed her once or twice in the

·

chair," and he said he would "kill the damn Bill for divorce on the ground of cruel and bitch." Another testified that on one occainhuman treatment, filed by Harriet M. Tay- sion, while she was visiting complainant, delor against James T. Taylor. A witness for fendant "called her a damn bitch, and she the complainant testified that the parties got up and sat down in a rocking chair, and were married at his house. They lived with he took hold of the chair, and jerked her him for a short time, his wife being a sister around, then he stepped over and picked up of complainant. Afterwards they lived in a stick of wood, and said, By Jesus Christ, various places in that neighborhood, and for I will knock your brains out with it;' but he a time in Royalton, Berrien county, until in didn't strike her, and he told her then to leave the fall of 1883 they moved to South Board- the house, and she told him she would go man, Kalkaska county. In that fall of 1883 when she got ready. He says 'you will go bedefendant bought some potatoes of the wit-fore you get ready,' and he took hold of her, ness, and "he rode with me, and took them down to his place. Question. Did you have any conversation with his wife there, at that time, in his presence? Answer. Yes, sir Q. What did she say to you? A. She told me that he had been quarreling with her, and that the night before he had throwed her down-stairs, and showed me her neck where the hide was bruised up; and she said that he throwed her down-stairs the night before, and choked her. Q. She called your attention to her neck, did she? A. She did. Q. What did she say in that connection? A. She said that he had throwed her down-stairs the night before, and choked her Q. What did you observe upon her neck, if anything? A. I observed that the hide was ruffled up in two or three places, and was very red Q. Did she say anything in regard to herself and children in that connection? A. She said that she and the children had to lay on the floor behind the stove all night, without anything to sleep on or over them. Q. What did he say to that? A. He said she had to, by Jesus Christ, and would do it again. Q. Do you recollect that particularly? A. I do, sir. Q. Did he say anything else to her there in your presence, that you recollect of? A.

1As to what is extreme cruelty, warranting a divorce, see Lynch v. Lynch, (N. J.) 16 Atl. Rep. 175, and cases cited; Sharp v. Sharp, (Ill.) 6 N. E. Rep. 15, and note; McAlister v. McAlister, (Tex.) 10 S. W. Rep. 294, and note.

and shoved her towards the door, and she
caught the door-casing, and the little girl
commenced to cry, and he didn't drive her
out, and he turned to me, and says: Will
you stay here until I come back? I will put
Mart Patterson and her where they will have
to look through the iron bars.' I told him I
couldn't stay; my husband didn't know I
was going to stay. He went up-stairs, and
came back, and went out of doors, and I put
"Of course,
on my things, and went home.
one word brought on another. I cannot tell
you the minute that he said it, but he told
Mrs. Taylor she was a damned bitch, and she
was bringing her children up in her own
footsteps. Q. Were you at Mrs. Taylor's the
next morning? A. Yes, sir. Q. Did you
see Hattie? A. Yes, sir. Q. What was her
condition that morning? A. She was sitting
by the stove crying when her mother and I
went in." There was much other evidence
to the same effect. The court dismissed the
bill, and complainant appeals.

N. A. Hamilton, for appellant.
Totten, for appellee.

Wm. D.

CHAMPLIN, J. Complainant filed her bill of complaint for a divorce from the bonds of matrimony from the defendant on the ground that the defendant had treated her with extreme cruelty. Defendant answered, denying the charges contained in the bill of complaint, and setting up counter-charges

passed into defendant's hands after plaintiff came of age, without knowledge on her part that she was entitled to retain them, such payment was a mistake in law, and plaintiff was entitled to recover.

Error to circuit court, Wayne county; H. N. BREVOORT, Judge.

Assumpsit by Minnie Feiertag against Julia Feiertag. Judgment for plaintiff, and defendant brings error.

John G. Hawley, for appellant. E. T. Wood, for appellee.

against the complainant, and praying the benefit of the answer as a cross-bill, and for a divorce. The parties were married in July. 1878, and have two children,-one a girl named Eva, aged at the time the bill was filed about eight years, and a boy named Lewis, aged at that time about six years. The testimony was taken in open court, and the circuit judge dismissed both bills of complaint without costs to either party. The complainant alone appealed to this court. We have read the testimony with care, and are all of the opinion that the complainant CHAMPLIN, J. Minnie Feiertag is the has substantiated the charges set out in her step-daughter of Julia Feiertag, who is the complaint, and that the marriage should be divorced wife of Minnie's father. In 1870, dissolved, and a divorce decreed. As to the Minnie, then 15 years of age, learned the art care, custody, and maintenance of the chil- of dress-making, and has ever since followed dren, we decree the care, custody, and sup- that employment. At that time she lived port of Eva to the complainant, and the care, with her father and step-mother, and so concustody, and support of Lewis we decree to tinued until 1881, when her step-mother obthe defendant. The case is not one calling|tained a divorce, and thereafter she confor the allowance of any alimony. The costs of this court only will be decreed to complainant, and neither party will recover costs of the court below. The decree of the circuit court will be reversed, and a decree will be entered here as above. The other justices concurred.

FEIERTAG v. FEIERTAG. (Supreme Court of Michigan. Jan. 18, 1889.) MASTER AND SERVANT-EVIDENCE-INSTRUCTION. 1. Where a woman of 25 years of age lives for 6 years with her step-mother, from whom her father had been divorced, working as a dress-maker, and giving some of her earnings to her step-mother, and doing some of the household work, she cannot recover from her step-mother for services rendered.1 2. Plaintiff sued her step-mother for services rendered and money loaned. There was no evidence to support the item of money loaned. The court improperly permitted plaintiff's father to testify as to the arrangement with his divorced wife for plaintiff's support. After closing arguments of counsel, the court struck out the testimony, and ordered the jury to disregard it, and charged that plaintiff could not recover for services rendered. The jury found for the exact sum claimed by plaintiff for services rendered. There was some evidence as to money received by defendant from plaintiff's earnings. Held, that as the jury were undoubtedly influenced by the improper testimony, and the arguments based thereon, the harm was not remedied by striking it out.

3. In such a case, evidence that plaintiff did not know that she was entitled to her wages after she came of age was improperly admitted. 4. Evidence as to what plaintiff earned at dress. making before she came to live with her step-mother was improperly admitted.

5. In such case, an instruction that a party to an action on a contract of employment is as competent as any other witness, if he knows the facts, to testify to the value of the services, was inapplicable, and should not have been given.

6. So, also, an instruction that if defendant deceived plaintiff as to her legal rights, and thereby obtained possession of plaintiff's earnings, plaintiff is entitled to recover such money.

7. Also an instruction that, if plaintiff's earnings

1See, on the necessity of showing an express promise to pay for services rendered by one living as a member of the family of the person served in order to recover therefor, Bostwick's Estate v. Bostwick, (Wis.) 37 N. W. Rep. 405, and note; Cooper v. Cooper, (Mass.) 17 N. E. Rep. 892, and note; Havens v. Havens, 3 N. Y. Supp. 219.

tinued to reside with her step-mother until some time in 1887. It will be observed that at the time of the divorce the plaintiff was 25 years of age or over, and nothing appears in the testimony to show that she was not an intelligent young lady. When she commenced dress-making she served an apprenticeship of six months, and then commenced to earn wages. These wages as received she turned over to her step-mother, and she gave her back spending money, and sometimes money to buy her clothes with, and at others the step-mother purchased them for her. In May or June, 1880, the defendant desired the plaintiff to do dress-making at home, and she complied with the wishes of her step-mother, and gave to her the money which she received for her work. She also performed other duties around the house, such as making fires in the morning, and getting breakfast, as a common occurrence. The family consisted of Mrs. Feiertag, her daughter, a half-brother named Rudolph, and the plaintiff. In the dull season of the year she did sewing for defendant and her son. Out of the money which plaintiff received for dress-making while working at home she was allowed to retain two dollars out of every six dollars received.

With this she bought her clothing, and had deposited in the bank $150 or thereabouts. They lived as the members of one family, and no change was made in the manner of conducting affairs after plaintiff arrived at age. The plaintiff testified that she kept no account of the money she had earned or given to her mother, and had not the remotest idea of the amount she had earned in any given year; that the last two years prior to 1887 she did not do near the business that she did when she started into business, because she had everything to work against her. She testified that her earnings averaged from $3.50 to $8 per week. She also testified that she did not know that by law she was entitled to her own wages after she became of age, and her step-mother did not inform her upon the subject. The plaintiff left home in 1887, and on the 20th day of

July of that year brought this suit by decla- | Wallace, of Port Huron, for the like reason. ration containing only common counts in as- Also as to her ignorance that the law entitled sumpsit. She filed a bill of particulars as her to her own wages after she arrived at the follows: "To services rendered by the plain-age of 21. tiff for defendant, at her request, from No- The plaintiff was permitted to call her vember 30, 1881, to April 4, 1887, two hun- father, and prove by him that he gave his dred and seventeen weeks and six days, at earnings to defendant while he was her hus$6 per week, $1,667.24; to money loaned by band, and also that when the divorce was the plaintiff to the defendant, at her request, granted he conveyed to defendant two lots at various times between November 30, 1881, upon which there were dwellings which and April 4, 1887, $2,000." The defend-yielded a rental of $21.50. Plaintiff's counant pleaded the general issue, and offset for board, and also the common counts in assumpsit. A trial in the circuit court resulted in a verdict for plaintiff of $1,667.24.

sel also endeavored to show by this witness that the consideration of the conveyance was that Mrs. Feiertag had agreed to support plaintiff, but plaintiff's father testified that No testimony was introduced on the part he conveyed the land because he was comof the defendant, and at the close of the plain-pelled to do so by the court as alimony in tiff's testimony defendant's counsel requested the divorce suit. After the arguments of the court to instruct the jury to find a ver- counsel were concluded, the court struck out dict for the defendant. The court refused all of the testimony of this witness, and dithis request, but ruled that plaintiff could not rected the jury to disregard it. But defendrecover anything for services performed, but ant's counsel claims that the testimony was he should let the jury pass upon the question prejudical to his client, and the use of it whether she paid any money to her step-moth-made by the counsel in his argument to the er, and, if so, how much, and what she is entitled to recover, if any. This ruling is assigned as error.

jury could not be obliterated by the direction of the judge to the jury to disregard it. In this we are inclined to agree with counsel The only two facts in issue were those em- for defendant. We have no knowledge of braced in the bill of particulars,-one for the argument which was made before the services, and the other for money loaned. jury by counsel for plaintiff, but we have The item for services was rightly excluded his argument made before us, and printed in by the court, and there was no testimony in his brief, after the testimony upon which it the case which supported the item for money was based was stricken out, as follows: "She loaned. There was no item in the bill of par- sits in the shadow of her suspecting counsel, ticulars for money paid to defendant by plain- and says, by her silence, (which sometimes tiff at her request, and for her use, and it speaks louder than words:) Young woman, would have been error for the court to submit I don't deny the facts. You have stated that question to the jury. The court, how- them correctly. Your mother died when ever, in submitting the case to the jury, did you were a baby. I took you as soon as you so upon the theory of money had and received were old enough to become useful. I saw to by the defendant for the use of the plaintiff. it that for ten years you went daily to the As before stated, the bill of particulars limited shop, and afterwards to the house drudgery the claim of the plaintiff to two items, neither which I generously heaped upon you. I proof which were for money had and received by vided a room in my house where for six the defendant for plaintiff's use; and conse-years you toiled and slaved, making me rich quently a recovery could not be had upon that with your earnings. I did all this because theory. But, if the plaintiff were otherwise I had so shaped your life that you didn't entitled to recover the judgment which she know any better. You are no blood of mine, has obtained, we should be inclined to treat although I married your father. I got his the bill of particulars as amended so as to cov-earnings for 18 years, and his property in a er the proof made, and not send the case back for this error.

We think there was sufficient testimony to go to the jury, under the count for money had and received, to determine whether there was an implied promise on the part of defendant that she would receive the money from the step-daughter for her use, over and above what she was in justice and equity entitled to retain for board, lodging, room-rent, and such moneys as she paid out for plaintiff's use. But the court erred in admitting testimony in the case against defendant's objection, some of which he afterwards excluded. The testimony introduced showing what plaintiff earned at dress-making before she engaged in dress-making at home was irrelevant, and should have been excluded. Also the offer which she refused from Mrs.

bulk on divorce proceedings, which you know will go to my own dear children when I am done with it. I admit I deceived, imposed on, and robbed you. You were a member of my family. My lawyer knows, and he says the law protects me. No matter what your labor was worth, or what I agreed you should have, or what was agreed between your father and me when the property was turned over to me, you were foolish enough to keep right on without a settlement; you kept no account-book, and therefore I am not obliged to pay you anything.' The jury, although charged that the plaintiff could not recover for services rendered, yet returned a verdict for the exact sum claimed in the plaintiff's bill of particulars for services rendered. It is quite evident that the jury were influenced by the testi

bank, sloping east from the bluff or inclosed park. Along the west side of Main street, south of Port street, there has been maintained by the village for over 20 years a ditch or drain to carry off the surplus water. It crosses Port street, and continues on the west side of Main street until it reaches a point opposite a street running easterly from Main street, and called "Second Street." After what has been said, the plaintiff's Here it crosses Main street, and then is carattorney will doubtless deem it proper to ap-ried down to the river on the east side of ply for leave to amend his bill of particulars Main street. This drain was built of timbefore proceeding to another trial. The bers and plank about 20 inches deep. Where judgment is reversed, and a new trial grant-it passes on the west side of Main street it is ed. The other justices concurred.

covered with plank five feet wide, and used as sidewalk. It was sunk beneath the surface of the street, and covered with plank, and was on a level with the road. This gutter, drain, or ditch was built and has been maintained by the village, as was also the sidewalk. On the night of March 27, 1886, Where a ditch used to carry off the surplus water of a village runs along the side of a street, the about 9 o'clock, the plaintiff, following this fact that it is covered for the purposes of a side- sidewalk cover of the drain, to his home or walk does not constitute it a culvert, within the boarding place, stepped into a hole in the meaning of Laws Mich. 1879, providing for the re-planking, and was injured. This hole was covery of damages sustained from defective streets, bridges, cross-walks, and culverts.

by him; and it was also competent to ask the total amount charged for his services in either or all of the suits, the reasonableness of this amount being one of the questions before the jury.

5. An attorney is not an insurer of the result in a case in which he is employed without a special skill, care, and diligence be required of him withcontract to that effect, nor can more than ordinary out such contract; and where an attorney has act ed in good faith, and with a fair degree of intellimust be so gross as to render wholly improbable implied contract, any error which he may make any disagreement among good lawyers as to the manner of the performance of the services in the given case, before the attorney can be held respon6. Where, after settlement procured by the attorney, a second suit is brought against defendant through no fault of the attorney, defendant's answer to a question as to the damage sustained by reason of bringing the second suit is properly excluded.

sible.

one side to the other of the road. Where this ditch crossed Port street, or Main street, it became, perhaps, and most likely, a culvert. In such places it would meet the common understanding of a culvert. But where it ran along the side or on the outer edge of the street, where it served the purposes of a gutter or ordinary road-side ditch, the fact that it was covered, and used and main-gence, in the discharge of his duties under the usual tained as a sidewalk, could not make it a culvert. An examination of a large number of scientific dictionaries confirms us in the view here taken. A culvert is said to be, like a bridge or viaduct, an arched drain to carry water under a road from one side to the other; and Webster defines it as "an arched drain for the passage of water under a road or canal." It is not often, if ever, that such a drain runs under the road or canal, and in 7. A party has the right to have the law of his case the same direction. The drain in question it is properly embodied in a request in that form, go to the jury in its plainest, simplest form, and if here ran along-side the Main street on the prepared by counsel, and furnished to the court, west side, to carry the surplus waters to the it ought to be thus given, and, unless the substance river. Where it crossed Port street it was of the request has been as well given by the court in its own language, its omission is error. undoubtedly a culvert, and one falling into 8. Defendant requested the court to submit speit, and injured thereby, upon that street, cial questions in writing to the jury for their special could recover. The same may be said where findings as to the value of plaintiff's services, it crosses Main street. whether he had been paid sufficient amounts of But where it ran money and produce to compensate him in full, and along Main street, on either side of it, the whether he had been paid certain specified village authorities were not obliged to cover amounts. Held, that the requests being for the it, or maintain it covered, for street pur-finding of questions of fact, their refusal was erposes. The traveling public could not have found fault had it been kept as an open gutter. It was planked for sidewalk purposes, and not as a culvert. It cannot be considered as a "culvert" without enlarging the meaning of that word, as commonly used and known, not only by the general public, but by engineers and other scientific authority. The judgment of the court below is reversed, with costs of both courts. A new trial is not deemed necessary, as in no event can the plaintiff recover under his declaration.

2. Evidence that the attorneys for the other side

charged less than plaintiff, in the same causes, and that their services were of as much or even greater value than plaintiff's, is properly rejected, since those services might have been undervalued, or even performed gratuitously.

3. Plaintiff, in describing the services performed, testified that he had consultations with a great many witnesses, which service was not specifically stated in the declaration or bill of items. Held admissible as descriptive of the character of the services for which he charged.

4. Plaintiff was properly interrogated as to the amount involved in the five suits, or in any one or more of them, for the purpose of showing the value of his services and the responsibility assumed v.41N.w.no.7-27

ror.

9. The court, when speaking of the duty of plaintiff while in the service of defendant as her attorney, said: "Now, an attorney is obliged to do the very best he can. In this case here, it has been * I don't think you are warranted by the testimony in saying that B. [plaintiff] was in any way negligent. Held error, the statement having a tendency to prejudice defendant's rights.

done.

*

*

Error to circuit court, Wayne county. Samuel W. Burroughs, for appellant. Conely, Maybury & Lucking, for appellee.

SHERWOOD, C. J. This action is brought by plaintiff to recover of the defendant the value of services rendered for her as attorney and counselor at law in the prosecution of a suit in the circuit court for the county of Washtenaw, in chancery, wherein Isaac N. Bumpus was complainant, and Myron M. Bumpus was defendant,-a partition case, for the division of 80 acres of land. The plaintiff appeared in the case for defendant and disclaimed, Myron having, before the suit was commenced, quitclaimed his interest in the land to defendant; and nothing further seems to have been done in the case. Also for services in a suit in the Wayne circuit court, in chancery, wherein the defendant and Samuel R. Bumpus were complainants, and Isaac N. Bumpus was defendant, for the purpose of obtaining title to certain lands held by Isaac, who was a son of Mrs. Bumpus. The complainant's bill was dismissed on the hearing, and complainant appealed to this court, and the decree was affirmed; plaintiff being their solicitor therein. See 59 Mich. 95, 26 N. W. Rep. 410. for retainer and services in a suit in the circuit court for the county of Washtenaw, in chancery, wherein Isaac N. Bumpus was

Also