"Q. 'She should have given me a part of the money. I find in the will that she has just gave me the house and lot.' That is true?

"A. Yes, sir.

"Q. "And that is the only interest you had. A. That is all the interest which she gave me in that will.' Is that true?

"A. Yes, in the will; yes.

"Q. "And what is your claim now, do you want the first will to stand? A. If any will stands, I want the first one, the first one.' Is that true?

"A. I want the value of the house and lot-that is what I want now-and the interest on the money, because it was mine."

From this it may be inferred that Amelia made two wills, in the first of which complainant was devised the premises in question. It also appears that in the will contest, in the circuit court, complainant, in consideration of $300, withdrew her objections to the probating of the will.

According to her own testimony, complainant never sought to have the deed returned to her after she had returned it to Amelia. She had no possession of the property and exercised no dominion over it. She heard, she says, that Amelia had sold it, but did not believe the report nor make any investigation. In its entirety the competent testimony upon the subject of the delivery of the deed with intent to vest title in complainant is not convincing. Beyond this, I am not satisfied that any connivance of defendants, any conspiracy, to induce Amelia to destroy the deed is proven, or that the testimony proves the destruction of a deed by Amelia or any one else. As is usual in cases like this one, the facts necessary to be established are interrelated so that, one essential fact being clearly established, other alleged facts appear to be more probable. Naturally, inferences from established facts are used to support others, not well established, but which established facts make probable. In this case, after a

careful consideration of all of the testimony, giving it its full probative value, it appears to me that complainant has not proven the facts asserted and relied upon by her. In this view, no legal propositions require discussion or statement.

The court below dismissed the bill, and in this action is affirmed. Defendants will recover costs of this appeal.

STONE, C. J., and KUHN, BIRD, MOORE, STEERE, BROOKE, and PERSON, JJ., concurred.

JOLMAN v. ALBERTS.

1. RES JUDICATA-JUDGMENT-APPEAL AND ERROR-PLEADING. A decision on appeal in a former suit between the same parties, that a count stated a cause of action, became and is the law of the case.

2. APPEAL AND ERROR-TRIAL

INSTRUCTIONS.

Where a question was raised by plaintiff's counsel in his opening statement, and the court, before any evidence was submitted, declined to instruct the jury on the question, saying it was dependent upon the proof that might be put in, and later, when evidence was offered, no objection was made by defendant, the latter was not prejudiced by the ruling of the court.

3. EVIDENCE-RES GESTA-COMPROMISE-ADMISSIONS.

In an action for personal injuries caused by defendant's automobile colliding with a buggy in which plaintiff was seated, evidence by plaintiff's husband that immediately after the accident defendant offered to pay for having "the rig" repaired was admissible as res gestæ.

4. APPEAL AND ERROR-LIGHTS EVIDENCE.

In such action, where the court ruled out questions permitting defendant to explain why he did not have his "big lights" on, and later withdrew from the jury the question as to lights entirely, instructing them that defendant's car was lighted in conformity with law, the rulings were either favorable to defendant or were correctly made.

5. NEGLIGENCE-AUTOMOBILES-LIGHTS.

Where defendant, who was a witness in his own behalf, claimed he could not see because of the intense lights of an approaching automobile, that he was driving at a speed of but four or five miles an hour, and did not see the buggy until he was within a few feet of it, when he thought he could pass it, it was a question for the jury, whether, under all the facts, defendant was negligent.

6. EVIDENCE-SECONDARY EVIDENCE-X-RAY PICTURE-EXPERT WIT

NESSES.

The court was not in error in rejecting testimony by a medical expert as to what an X-ray picture showed, where the absence of the picture itself was unaccounted for.

7. TRIAL-INSTRUCTIONS-NEGLIGENCE.

It was not error for the court to instruct the jury that the evidence was given to place them in the situation of the parties, and enable them to say whether, under all the circumstances, defendant was guilty of negligence.

Error to Muskegon; Sullivan, J. Submitted April 10, 1916. (Docket No. 46.) Decided June 1, 1916.

Case by Sadie Jolman against Frank Alberts for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed.

Clink & Farmer, for appellant.

Carpenter & Jackson, for appellee.

OSTRANDER, J. The testimony introduced on the part of the plaintiff tended to prove that plaintiff's husband had driven his horse to the curb on a paved

street in the cit

27

buggy were of the str

plaintiff was sity of Muskegon; the buggy in which stepped into ting being so close to the curb that she the buggy from the curb. Horse and headed south, and were on the west side et. It was about 9 o'clock in the evening, fest electric light was not burning, and the or shadow cast by nearby trees did not make fer very of the buggy on that account difficult. Dedant, going south on the street, ran his automobile gainst the buggy, and plaintiff was injured.

the nea

shade

disc

a

* *

*

The court excluded from consideration two counts of the declaration, leaving one, the first, to be considered. In that count it is alleged that defendant, riding in and driving an automobile along Peck, "a public street, negligently and carelessly drove and guided said automobile so that it ran into a buggy standing on the west side of said street near the curb," striking the buggy with such force as to break and crush it. It is contended, as it was when the cause was first before us (Jolman v. Alberts, 186 Mich. 643 [153 N. W. 11]); that this count states no cause of action. This contention we overruled, and the decision became and is the law of the case.

In his opening statement to the jury the attorney for plaintiff said, among other things, that a consequence of plaintiff's injury was that for three years (she was injured in August, 1912) she has not been able to do her work; "to have her own enjoyment; to go out in society as others go; to take care of her children as others do; to take her part in the family's life.

Counsel for defendant, no testimony having been offered, asked the court to instruct the jury that:

"Under no circumstances are they to take into account whether or not Mrs. Jolman is less able to take care of her children than she was before. If she is less able to take care of her children and damages ac

crue, they don't accrue to her, but to er husband, and he has an action pending now."

The court declined to pass at that me upon the measure of damages, saying it was dependent entirely upon the proof that might be put in. There was an exception. The proof, so far as we are referred to it, was upon this subject given in answer to the que "What have you been able to do as to taking car? of

the children?"

The answer was:

tion:

"I haven't done anything as far as taking care ofcombing the children's hair or helped them to dress, something of that sort."

No objection to the question was interposed, or to the testimony. The argument made in the brief for appellant in this court proceeds no further than did the objection made at the trial. I cannot imagine how the ruling excepted to prejudiced the appellant.

Plaintiff's husband testified that defendant said, in substance, that he would pay for having the buggy or "the rig" repaired or fixed up. The court refused to strike out the testimony. The argument is that this statement could relate to no more than compromise, and it is against public policy to allow plaintiff to use it as an admission of liability. This statement, according to the testimony for plaintiff, was made almost immediately after the collision occurred. In the charge the court said the testimony was admitted as res gestæ, to understand the transaction, and that the jury should give it such weight as they thought it was entitled to. It does not appear that appellant asked for any instruction upon the point. The exception must be overruled.

The headlights on defendant's car were not burning; only some small kerosene lamps being lighted. Such lights as were burning could be seen for a considerable