street car track as the car in question approached the crossing, and that she signaled the car to stop; that when it stopped, she laid hold of the handle bar, placed one foot upon the step, and was about to board the car when the conductor asked her to wait a minute, whereupon two ladies left the car. She claims that she continued to hold onto the handle bar, and that as soon as the alighting passengers had left the car, she again placed her foot on the step in an effort to board the car. She was carrying some parcels in her left hand. It is plaintiff's claim that while in this position the car was started suddenly, jerking her violently backwards, and that it was as suddenly brought to a standstill, after moving from 6 to 10 feet. By this violent movement plaintiff claims she was thrown to the ground, and partially drawn under the projecting step of the car, receiving the injuries complained of. It was the defendant's claim that the plaintiff did not offer herself as a passenger for carriage at the time the car was standing still, but attempted to board the same after it was in motion. Plaintiff recovered a verdict of $2,000, which was afterwards reduced to $1,500 by the circuit judge when considering the motion for a new trial. This judgment is brought to this court for review.

Defendant assigns error upon the examination of the physician. He was examined in part as follows:

"Q. Well, what condition did you find her in?

"A. I found a great deal more of the external evidences of this trouble. She still complained of being unable to sleep, and being more or less

"Mr. Duffy: I move, if your honor please, that that be stricken out, 'still complained of being unable to sleep.' "The Court: This was after the third visit?

"A. This was after the third visit. I think the question was, I believe, after the third visit.

"The Court: Yes.

"Judge Beach (counsel for plaintiff): He said he couldn't give the exact time.

"A. I can't give you the exact days. I saw her a number of times since that.

"The Court: You say she still complained. You may state when she first complained of inability to sleep. "Mr. Duffy: Exception."

We are of the opinion that this question is ruled by the determination of this court in the case of Will v. Village of Mendon, 108 Mich. 251 (66 N. W. 58).

The second assignment likewise relates to the testimony of the physician to the effect that he could determine whether she was "tender at that point or not; " the objection being that the physician had not testified how he was able to make such determination, and that he might have reached his conclusions from statements made to him by the plaintiff rather than by a physical examination or observation. This objection is not tenable. Counsel for defendant could have ascertained the sources of the physician's knowledge by proper examination, had they so chosen.

The next assignment of error relates to the claim of the defendant that the verdict was against the weight of evidence. We have carefully examined the record, and we believe that the learned circuit judge was right in his disposition of this contention. We are of opinion that the record shows, by a fair preponderance of evidence, that the accident to the plaintiff happened in the manner described by her and witnesses on her behalf.

Further assignments of error are based upon the judge's charge. Taken as a whole, we think the charge fairly states the claims of the contending parties, and the law applicable thereto.

The record shows that the plaintiff was held down under the projecting step of the car, and that she could not be released after it was brought to a standstill until it was backed up some two feet; that after her release she was in a dazed condition, suffering from the shock; that she sustained a bruise over the left temple, another bruise over the left shoulder, and another over the left buttock and the lower portion of the back; that there was a swelling and abrasion of the skin over the back about one-half inch

in diameter; that the swelling was quite extensive. She was confined to her bed from 10 to 12 days, and at the date of the trial, several months thereafter, complained of recurring pains in the back. Under these conditions we are asked to say that a judgment for $1,500 is against the just rights of the defendant. We are unable to do so. Judgment affirmed.

OSTRANDER, HOOKER, MOORE, and MCALVAY, JJ., concurred.

LACY v. PIATT POWER & HEAT CO.

1. MECHANICS' LIENS—AMENDMENT OF Notice-ConstruCTION. Substituting the name of a wrong party as contractor in the statement of a mechanic's lien is fatal, and not open to amendment in the proceedings for its enforcement.

2. SAME.

Mechanics' liens, being in derogation of the common law, are strictly construed as to the question whether a lien attaches, but are construed liberally after the lien has been created. 3 Comp. Laws, § 10736.

Appeal from Ingham; Wiest, J. Submitted June 21, 1909. (Docket No. 58.) Decided July 6, 1909.

Bill by Philo E. Lacy against the Piatt Power & Heat Company and others to enforce a mechanics' lien. From a decree dismissing the bill, complainant appeals. Affirmed.

Morse & Davis, for complainant.

Rollin H. Person, for defendants.

BROOKE, J. In November, 1905, complainant furnished 110 loads of gravel and 55 barrels of Portland cement, which were used in repairing defendants' dam in the city of Lansing, or for filling in a hole below the dam caused by the falling waters. On January 12, 1906, he filed his sworn statement of lien, asserting therein that he furnished the said materials in pursuance of a contract between himself and the Hydro-Electric Development. Company, the contractor. On the 1st day of February, 1906, the dam was sold by the defendant the Piatt Power & Heat Company, to the defendant the Michigan Power Company, and on the 5th day of July following a bond was given to release said mechanic's lien. Some time after the filing of said claim of lien by the complainant, he learned that there was no such corporation as the Hydro-Electric Development Company, and that the contractor with whom he had done business was Frank McKean. In August, 1906, he filed his bill of complaint in the present cause, praying that he be declared to have a valid lien upon the property described in his statement of lien for the sum of $203.53. His fifth prayer for relief is as follows:

"That your orator may be allowed to amend his said statement of lien by striking out the name 'HydroElectric Development Company' now named therein as contractor and inserting in its place and stead the name 'Frank McKean' as contractor."

As authority for making the desired amendment, the complainant relies upon section 10736, 3 Comp. Laws, which reads in part as follows:

"This act is hereby declared to be a remedial statute and to be construed liberally to secure the beneficial results, intents, and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens herein before provided for, and to give jurisdiction to the courts to enforce the same. Amendments to any process, pleadings, or proceedings in such actions to enforce the liens given by this

157 MICH.-35.

act, either in form or substance, shall be allowed at any time before final decree is rendered, on application of either party upon such terms and conditions as justice may require."

In discussing the effect of the statute in the case of Smalley v. Terra-Cotta Co., 113 Mich. 141 (71 N. W. 466), this court said:

"It seems to me, however, that the rule is correctly stated in 2 Jones on Liens (2d Ed.), § 1554, where it is said:

"The rule of construction applicable to questions arising under these liens may be strict at one stage of the proceedings, and liberal at another. Mechanics' liens are in derogation of the common law, depending for their existence wholly upon statutes, and therefore, upon the question whether a lien attaches at all, a strict construction is proper.'

"Section 1556 of the same author reads:

"But, after the lien has once attached, a liberal construction should be put upon the statute for the purpose of fulfilling its objects. The statute is highly remedial in its nature, and should receive a practical and reasonable construction to effect its objects."

The last portion of section 10736, refers, in our opinion, not to the statement of lien, but by its very terms relates to the process, pleadings, or proceedings in an action for its enforcement. Again, in Waters v. Johnson, 134 Mich. 436 (96 N. W. 504), where the lienor claimant had named another person as the owner of the property, it is said:

"The statute, in our judgment, imperatively requires that said owner be named in the claim, save when his name is unknown, in which case it need not be stated, and that service be made upon said owner within 10 days. It follows, therefore, that when the lien claimants proceed against a certain person as the owner, and positively swear in their claim that he is the owner, they will not be permitted to excuse this mistake by pleading ignorance, unless, as hereinafter pointed out, that ignorance is justly chargeable to the owner himself."

Upon principle we are unable to distinguish the case of