understood it, and left it to the jury. We are asked to hold that he erred in limiting the jury to acts done after plaintiff entered between the cars. The defendant claims that the plaintiff as conductor had authority, and that it was his duty, to set out the high car from the train, and should not have attempted the coupling for that reason; also, that he knew of the broken car the day before the accident, being informed thereof by his brakeman from whom he took its number; further, that with this knowledge he should have discovered the difference between the couplers, and the defective coupler, before entering between the cars, and that the jury should have been allowed to find that it was negligence on his part to go between the cars, where he would be compelled to attempt the coupling or take serious risks of injury.

It also contends that it was negligence for plaintiff to enter between cars, one of which was approaching the other and in close proximity to the other, without ascertaining whether they were in a condition of good repair, and that in this case by not attempting to ascertain the condition of the cars, and without signaling the engineer and stopping the train, he was guilty of contributory negligence, and therefore the court erred in instructing that:

"I believe it to be the law, and now charge it to you as the law, that when a railroad company is required to equip cars of this class that I have spoken of with the automatic coupler, and they fail to do it, that then the entrance of the conductor between the two cars for the purpose of trying to make the coupling is not such an act on his part as assumes the risk connected with the danger involved in that work. The statute steps in and releases him from assuming the risk incident to that work, but, if he gets in between the cars, then a duty devolves upon him, and that duty is to use such care, such reasonable care and precaution in endeavoring to make the coupling, as is incident to the danger involved. While he has the right, as I have said to you, without assuming the risk connected with it, to enter in between the cars for the purpose of making the coupling, the law still devolves upon him the duty of using care in the performing of that work. And,

if his injury in this case was occasioned in consequence of any carelessness on his part while he was endeavoring to make this coupling, then he cannot recover in this case. He is guilty of what we term in law 'contributory negligence."

The effect of this was to preclude the jury from finding that there was any contributory negligence except such as occurred after plaintiff's entry between the cars. It is obvious that this cannot be the correct rule. The jury might have found that it was negligent to go between these cars, in view of the patent want of uniformity of couplers and the depressed drawbar, without stopping the train to ascertain conditions, or raising and supporting the low drawbar before allowing the cars to collide.

We are therefore constrained to reverse the judgment and direct a new trial. It is so ordered.

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

BIRDSALL v. SMITH.

1. MALICIOUS PROSECUTION-PROBABLE CAUSE.

An employé of the dairy and food department, who makes a complaint, at the direction of the commissioner and on the faith of a certificate of analysis, against a milk dealer for selling adulterated milk, and who had no connection with the case prior to making the complaint, has probable cause to institute the prosecution, in the absence of malice or oppression.

2. SAME-STATUTES-CERTIFICATE OF ANALYSIS OF ADULTERATED

FOOD.

No duty rested on such employé to make a further investiga

tion of the facts; the certificate being prima facie evidence of adulteration under 3 Comp. Laws, § 11424, and Act No. 268, Pub. Acts 1899.

3. SAME-MALICE.

A citizen who sends suspected milk to the State dairy and food commissioner, and who has no further part in a prosecution for selling such milk, performs his duty, and is not chargeable with a malicious prosecution, although it appeared that he had ill feeling toward the plaintiff.

4. CONSTITUTIONAL LAW-MALICIOUS PROSECUTION DER UNCONSTITUTIONAL STATUTE.

ACTION UN

Malicious prosecution does not lie for instituting criminal proceedings under a statute which has not been judicially declared unconstitutional.

5. MALICIOUS PROSECUTION-PLEADING GENERAL ISSUE.

Want of probable cause is put in issue by a plea of the general issue under Circuit Court Rule 7

Error to Kent; Perkins, J. Submitted June 23, 1909. (Docket No. 77.) Decided October 4, 1909.

Case by Martin P. Birdsall against Eldon Smith, Ormond C. Howe, and Edward A. Havens for malicious prosecution. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error. Affirmed.

Elvin Swarthout (Clapperton & Owen, of counsel), for appellant.

John E. Bird, Attorney General, Thomas A. Lawler, Assistant Attorney General, Moses Taggart, City Attorney, and R. M. Ferguson, Assistant City Attorney, for appellees.

HOOKER, J. The plaintiff, a vendor of milk, was prosecuted upon the complaint of defendant Howe for selling adulterated milk. Being acquitted upon a trial, he brought this action for malicious prosecution against Howe and two other defendants. The learned circuit judge directed a verdict for defendants upon the grounds:

(1) That the plaintiff had failed to prove a want of probable cause for the complaint.

(2) That there was no evidence tending to show a conspiracy between the defendants to wrongfully prosecute.

(3) That, there being no proof of a want of probable cause, the question of defendant's motives was unimpor

tant.

Defendant Howe was employed in the office of the dairy and food commissioner at Lansing, the other defendants were local food inspectors acting under appointment by the commissioner. Howe had no acquaintance with either of the other defendants. His connection with the case began with a direction from the dairy and food commissioner to go to Grand Rapids and make a complaint against plaintiff, based upon a report of an analysis of a certain quantity of milk sold by the plaintiff, and stated in the report as contained in a half-pint bottle, which said report, made by the State analyst, showed to be adulterated. His action in the matter ended by his drawing, subscribing, and swearing to the complaint and filing it with the justice, who presumably took such testimony as may have been presented, and issued the warrant upon which plaintiff was arrested. There is an absence of testimony tending to show Howe's connection with any conspiracy to wrong plaintiff, and there is no testimony indicating that he did any further or other act in the premises than as herein before stated, or that he had or took any personal interest in the matter. As to him, the only question that need be considered is whether the undisputed evidence shows that there was probable As there is no conflict in relation to the facts, this was a question for the court to decide, and he correctly held that it failed to show a want of probable cause. See Rankin v. Crane, 104 Mich. 6 (61 N. W. 1007); Fine v. Navarre, 104 Mich. 93 (62 N. W. 142); Rogers v. Olds, 117 Mich. 368 (75 N. W. 933). Moreover, it conclusively appears that Howe did not act maliciously or oppressively. James v. Sweet, 125 Mich. 132 (84 N. W. 61).

cause.

It is contended that the report of the analyst was based upon a half-pint bottle of milk, while the proof shows that plaintiff's milk submitted to him was contained in a pint bottle; that Howe, being employed in the dairy and food commissioner's office, should have ascertained these facts. We do not think so. In the first place, while the report does state that the sample was submitted in a half-pint bottle, it states that it was under a seal numbered H. 696. Havens, Smith, and the analyst agree that the sample so numbered and sent was a pint bottle that was procured from Birdsall. Birdsall says it was a pint bottle, and he does not testify as to the number, except as he produces a receipt bearing a different number, which he said he received from Havens for one bottle. The evidence is clear that an error was made in the report as to the description of the bottle analyzed. But, furthermore, the law requires an analysis to be made, and 3 Comp. Laws, § 11424, makes the certificate prima facie evidence of adulteration. See, also, Act No. 268, Pub. Acts 1899, § 6. We are of the opinion that, in the absence of information or belief to the contrary, such a certificate justifies an officer in making a complaint under these statutes.

The only act done by Havens and Smith was the procuring and sending of the two bottles of milk for analysis. This was lawful under the statute. There is no testimony indicating any bad faith in this on the part of Havens. Counsel do claim, however, that Smith was actuated by spite, the only reasons alleged for it being plaintiff's refusal to advertise in a certain newspaper when requested by Smith, and an alleged controversy over the alleged unsanitary condition of plaintiff's premises and milk cans. If it be admitted that Smith caused samples of milk to be obtained and sent for analysis, he did no more than the law required, if he knew, believed, or suspected it to be impure, whatever his feelings toward plaintiff may have been. There is no testimony tending to prove that he did more than this, and therefore no evidence that he had any part in the prosecution, which appears to have been