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To compel the payment over of a certain sum deposited with the township treasurer to await the result of proceedings to enjoin the collection of a drain tax, after decree in favor of relators, where a motion had been made to set aside said decree.
Ordered that the money be paid into court to await the result of the motion to vacate decree, November 15, 1892, with costs. | [
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] |
To compel respondent to set aside the service of a writ of garnishment and to vacate an order requiring the production, for examination, of the officers and agents of a foreign corporation residing in another state, upon the ground that the service of the writ was not made upon any proper officer or agent; that the statute authorizing service upon foreign corporations is unconstitutional, and that the circuit judge has no power to compel officers of a corporation residing out of the state to appear before him for examination. .
Granted in part November 20, 1891.
Held (1) that service under How. Stat. Sec. 8086 as amended by Act No. 266, Laws of 1889, was not confined to a general agent of the corporation; (2) That How. Stat. Sec. 8061, does not apply to a foreign corporation when summoned as garnishee, and hence that the circuit judge had no power to- order the officers to appear and bring before him the boohs and papers of the corporation. | [
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To set asid© judgment on transcript from a justice of tbe peace.
Denied May 4, 1892, witb costs.
Relator insisted, that the affidavit, being made by an agent, was not made by one of the persons authorized by statute to make the same; that it did not state that “an execution may by law be issued upon” the same, nor that the judgment was “for $20 or over, exclusive of costs,” and did not set forth that the defendant “being the person against whom the execution may issue” did not have sufficient goods, etc.” Citing Act No. 173, Laws 1885.
Respondent insisted, that the terms “agent” and “attorney” are used interchangably; that an attorney is defined “as one who acts for another by virtue of an appointment by the latter;” that the statute does not require the affidavit filed with the justice to specify the amount due; that whether an execution might be issued appeared from the docket of the Justice, and that the language of the affidavit that ■“there is not sufficient goods,” etc., “belonging to any person or persons against whom such execution may issue” was sufficient, and further, that the transcript was filed September 10, 1890; that certain real estate had been levied upon and sold, and the time for redemption had expired; that relator was guilty of laches; Fowler vs. Circuit Judge, 31 M., 72 (943); that the petition does not set forth that relator has no other remedy; that relator has other remedies, Vrooman vs. Thompson, 51 M., 452; Wedel vs. Green, 70 M., 642; and that a motion is not the proper mode of reviewing the question, | [
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To compel the respondent to sign a bill of exceptions.
Denied April 14, 1895, the return setting forth that the bill as presented did not correctly set forth respondent’s action respecting a motion for a new trial. | [
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To compel respondent to vacate an order denying leave to relator, a stockholder, to intervene in a foreclosure proceeding, and defend in a case where the corporation itself had allowed an. order pro confesso to be entered.
Denied June 30, 1893, with costs, on the ground that, in his petition to the court below the charges of fraud and collusion were made upon information and belief and unsupported by other proof. | [
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] |
Error to Mecosta.
Tbe action of tbe Circuit Court in denying an application for leave to appeal from a justice’s judgment under How. Stat., Sec. 7005, on the ground that the appellant was prevented from taking an appeal within the statutory time by causes beyond his control, can only be reviewed by mandamus.
Writ dismissed December 28, 1889. | [
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Montgomery, J.
This is an application for a mandamus to require respondent to set aside an order granting a new trial in a condemnation proceeding. The petition in recorder’s court was filed under Act No. 124 of the Public Acts of 1883, authorizing cities and villages to take private property for public use, on the 14th of June, 1893. August 30, 1893, the verdict of the jury was rendered, finding necessity for the improvement, and awarding relators $13,398 as compensation for the property taken. The time to move for a new trial was extended from time to time. On February 26, 1894, a motion was made by the city for a new trial, and that the verdict be set aside. This motion was, on the same day, overruled, and an order entered confirming the verdict of the jury. The bill of exceptions was filed, to remove the case to this court, but on the 9th of October, 1894, the appeal to this court was dismissed by consent. On the 18th of October, 1894, an order was entered in the recorder’s court directing its clerk to certify the verdict to the common council. On the 24th of October, 1894, the verdict was certified to the common council. On the 2d of December, 1896, petition was filed in the circuit court for mandamus to compel the common council to pay the award. On the 12th of January, 1897, the order for mandamus against the common council was granted by the circuit court. On February 10, 1897, the city entered a motion in the recorder’s court that the verdict a,rid order of confirmation be set aside, and a new trial granted. On the 8th of March, 1897, an order was made setting aside the judgment of confirmation, and ordering a new trial.
Section 11 (3 How. Stat. § 3064k) of the act under which the proceedings were taken reads as follows:
“Motions for a new trial or to arrest the proceedings shall be made within two days after the rendition of the verdict, unless further time is allowed by the court; and if no such motion is made, or, being made, is overruled, the court shall enter an order or judgment confirming the verdict of the jury; and such judgment of confirmation, unless reversed by the Supreme Court, shall be final and conclusive as to all persons interested therein.”
We think this section marks out the exclusive course of procedure after verdict, and that when the application has once been made for a new trial, and denied, and the verdict of the jury confirmed by the court, the power to grant a new trial is exhausted.
The writ should issue as prayed.
The other Justices concurred. | [
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] |
To vacate an order directing a re-taxation of costs where the clerk struck out an item because the affidavit was defective as to that item, and the court set aside the taxation and gave leave to file a new bill with proper affidavits.
Order to show cause denied February 24, 1891. | [
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Grant, J.
(after stating the facts). This case is ruled by First Nat. Bank of Ionia v. Michigan Trust Co., 105 Mich. 107, unless the provisions of contract No. 3 bring the complainants without it. Neither the trust company nor any of the creditors of the Lansing Lumber Company had knowledge of the existence of this contract at the time the compromise was effected between that company and its creditors which resulted in the execution of the trust deed, nor did either know of its existence until after the fire. A committee of creditors was appointed to examine into the affairs, and report upon the assets and liabilities, of the company. They went to Dodge, the place where the mill plant and the lumber and logs were situated, and reported to the creditors. Among the assets so reported was an item of lumber amounting to $43,533, and logs amounting to $71,864.55, in which were included the lumber and logs in contro versy. The committee for the creditors, as well as the creditors themselves, made this settlement upon the basis that the lumber and logs in the mill yard and boom at Dodge were the property of the lumber company. The complainants stood by, knowing the situation, and made no claim to it, and did not inform the committee or any of the creditors of the existence of contract No. 3. The trust company obtained insurance upon this property as its own, and without any knowledge of that contract. After the property was destroyed, Mr. Fisher said to Mr. Withey, the president of the trust company:
“I sat by, and let the Lansing Lumber Company make this mortgage, and never said a word about my claim, because I always had a high regard for Mr. O. M. Barnes, and did not want to do anything that would stand in his way.”
Mr. Barnes was largely interested in that company. Complainants cannot therefore be now permitted to set up this contract as creating a lien upon the insurance money, as against other creditors. This is not the case of the ordinary assignee, who acquires no greater rights than his assignor. The trust deed was a compromise between the company and the creditors, made by the latter without knowledge of the complainants’ claim, and in reliance upon this property as constituting a part of the assets, and for a good consideration.
Decree reversed and bill dismissed, with costs of both courts.
The other Justices concurred. | [
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To compel respondent to cause notice of the election of two representatives from the' County of Houghton, regardless of the division of the county by the Apportionment act of 1891, and to give the notice under the law of 1885.
Granted in part, and respondent directed to give notice under the law of 1881, July 28, 1892. | [
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To compel a County Treasurer to permit the inspection of liquor bonds filed in his office, by a member of the Board of Review of the City of Ann Arbor.
Granted June 11, 1884, with costs. | [
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] |
To compel the vacation of an order changing a judgment entry.
Denied February 28, 1895, with costs.
Relator, a non-resident, sued S. in Justice Court. S. gave notice of set-off, and recovered a judgment of $87.00. Plaintiff appealed and had a verdict for $4.40. Judgment was entered for the amount with full costs. Upon application such judgment was vacated and a judgment without costs to either party was entered. The circuit judge returned that, in directing the first judgment entry he had overlooked the matter of •costs and had intended to deny costs to either party. | [
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To obtain the audit and allowance of certain claims.
Granted January 17, 1873.
The constitutional provision prohibiting appeals from the supervisors, has not made them independent of the laws in their action. They cannot lawfully allow illegal claims nor refuse to allow legal claims at the amount fixed by law, where the legislature has power to fix the amount. They are bound to consider all claims against the county lawfully presented, and to give the claimant an opportunity of presenting Ms case and proofs, and to allow for all services, legally and properly rendered, the amount-fixed by law, or if no amount is fixed, then such sums as they are reasonably worth. A mandamus will not lie to control their action when they have only used their lawful discretion, and have not refused to consider a claim which they were bound to determine. They are bound in all cases, when claims are presented, to act promptly in hearing or refusing to hear them, and to put their whole action on record, so- as to enable the claimant, in case of rejection, to have Ms rights determined by the courts. | [
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Mandamus for the payment of money can issue at the instance of one municipal corporation against another only when there are statutory or legal relations between them to authorize it and-the obligation to pay has been liquidated. An action for money had and received is the only proceeding by which to liquidate a demand against a municipal corporation for money belonging to the plaintiff and wrongfully in its possession. | [
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To compel a justice of the peace, in a replevin case, to enter upon his docket defendant’s waiver of a return of the property and a judgment for its value, instead of a judgment for return of the property.
Plaintiff’s suit was dismissed, and the justice’s docket shows a judgment for the return of the property, and the justice answers that defendant did not elect to waive the return until after the rendition of the judgment.
Order granted in alternative April 5, 1892. Answer filed April 30. Further return was ordered May 6, 1892, and filed May 17, 1892, after which nothing further was done. | [
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To compel respondent to pay over to relators the amount awarded to them as damages, in a street opening proceeding, or in case it shall appear that there is no money in any fund applicable to such payment, that the amount of said award may be included in the next tax levy.
The circuit judge denied the writ. Reversed and writ granted May 12, 1896, with costs. | [
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To compel respondent to observe the law respecting the assessment of property at its cash value, in equalizing the valuation of the respective townships for the purposes of a levy of state and county taxes.
Denied October 29, 1879.
Held, that the equalization of valuations for taxation is a political duty, and the power to equalize is exclusive in the supervisors. Held further, that affidavits in answer to an order to show cause cannot be assumed to be evasive, and if so in fact, respondent will be bound by them according to the interpretation individually intended. | [
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] |
To compel respondent to allow relator, an attomey-at-law, to examine the records and files in respondent’s office; to enter motions or orders in the motion and order books; to receive and file and record cases, and to grant to relator the rights and privileges to which he is entitled as an attorney.
Application filed August 2, 1894.
Order to show cause granted October 3, 1894.
Writ granted, in the absence of return, with costs, October 23, 1894. The petition set forth that the Circuit Court was not in session and that no term of court would be held in that county until January next. | [
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Long, C. J.
The bill in this case is filed to foreclose a mortgage made by William Watson to Thomas W. Cor-by, March 31, 1879. Mr. Watson purchased the land covered by this mortgage, paying $350 towards the purchase price, and giving the mortgage in controversy upon the land to secure the payment of $600, the balance due. Four months after giving the mortgage, and on July 38, 1879, Watson died, leaving five children and a widow, Caroline Watson, who married the complainant on the 3d day of April, 1880. Complainant, with his wife, took possession of the property, both real and personal, left by William Watson at his death. The mortgage above referred to was assigned August 2, 1879, by the mortgagee to Mary E. Barnard, of the State of Vermont, and on March 30, 1883, assigned by her to Caroline Finley, who on June 23, 1888, assigned it to her husband, the complainant, who now claims to be the owner, and is seeking the foreclosure.
After William Watson died, no proceedings were had in the probate court relating to his estate until February 26, 1887, when his daughter, Mary M. Dubay, filed a petition in the probate court for the appointment of an administrator, andón March 26,1887, David Trombly was appointed, and an inventory was then attempted to be made of the estate left by the deceased. That inventory shows that there were 14 acres of land valued at $1,400; 13 acres valued at $2,500; horses, cattle, and other live stock valued at $316; wagons and harnesses, $60; farming implements, $46.50; wood, $310.50; corn, oats, hay, and straw, $224; potatoes and beans, $44. The administrator says of this inventory, in a certificate annexed thereto:
“The above items of personal property are from the valuations given me by Mrs. Caroline Finley, widow of said William Watson, and are the amounts admitted to have been received by said widow after the payments of all expenses of harvesting and marketing said property; all of said property having been converted by said widow, and none of it having come into my hands.”
It is claimed by the defendants that, at the time the mortgage was assigned by Mary E. Barnard to Caroline Finley, the same was paid put of personal property left by William Watson at his death. The defendants set up, as another defense, that on the 28th day of May, 1887, the probate court for Wayne county appointed Richard Lamb and Christopher Damitio commissioners on claims in the estate of William Watson, deceased; that the commissioners had meetings as prescribed by law, the last being in November, 1887, and Caroline Finley and George Finley presented large bills against said estate, and endeavored to procure the allowance of the same by testimony introduced at that time; that the mortgage in controversy here, with the accompanying note, was one of the items which the parties sought to have the commissioners allow; that the items passed upon by the commissioners appear in their report, which was filed in the probate court on February 14, 1888. The defendants also insist that whatever claims were presented were disallowed by the commissioners upon the ground that the money had come from the sale of property belonging to the estate of William Watson, except only two small items for doctor’s and undertaker’s bills, which were allowed, and that this note and mortgage were disallowed upon the ground that they had been paid out of said estate.
The principal argument made in this court by defendants’ counsel is upon the last claim set forth; and it is contended that the commissioners on claims acted judicially in denying this claimed mortgage and note, and that the order made by the commissioners, not being appealed from, is res adjudicata. Upon the other hand, it is contended by counsel for the complainant that the note and mortgage were never paid out of the estate of William Watson, deceased, and that they were never presented to the commissioners for the purpose of allowance as a claim against the decedent’s estate, and were never passed upon by the commissioners, and that, if they were ever presented, they were withdrawn from the commissioners’ consideration, and not passed upon. The testimony was taken in open court, and a decree entered finding that the note and mortgage had never been paid, and awarding foreclosure. On the hearing the defendants called the two commissioners on claims, and they both testified that the note given with this mortgage was presented by Caroline Finley to them for allowance; that they heard testimony upon it, and disallowed it,—one of the commissioners stating that it was disallowed because Mrs. Finley testified that she had bought it with personal property belonging to Mr. Watson, her deceased husband. Other witnesses testified that the note was presented to the commissioners for allowance. It also appears from the commissioners’ report, which is dated November 30, 1887, that a note was presented for allowance, given by William Watson to William Corby, March 31, 1879, for $600, and that this note was disallowed. This report was filed in the probate court February 14, 1888. There is no controversy about the identity of this note. It was the note accompanying the mortgage here in suit. It also appears that this note and mortgage were at that time standing in the name of Caroline Finley, as her assignment to her husband was not made until June 23d following. It is true that the counsel for complainant testified that the note was withdrawn from the consideration of the commissioners, if ever presented to them for allowance. But, after a careful examination of the record, we are satisfied that the preponderance of the evidence is in favor of the defendants’ position. The record made by the commissioners is very strong evidence that the claim was presented and disallowed, and, with the other evidence offered by the defendants, is convincing that the note was presented to, and disallowed by, the commissioners. The commissioners were acting in a judicial capacity. They had jurisdiction of the parties and the subject-matter in controversy. Their decision was not appealed from, and is final. Shurbun v. Hooper, 40 Mich. 503; Green v. McCutcheon, Id. 244; Byrne v. Hume, 86 Mich. 546.
It follows that the decree of the court below must be reversed, the bill dismissed, and a decree entered here directing the discharge of the mortgage, with costs of both courts in favor of defendants.
The other Justices concurred. | [
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Where nothing remains but the enforcement of a legal duty, the remedy is by mandamus.
Decided June 23, 1887. | [
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] |
To compel the dismissal of proceedings instituted to disbar relator.
Denied January 7, 1891.
The petition, filed by the prosecuting attorney, contained three specifications:
. 1. That relator had obtained $20 from a person charged in the Recorders’ Court with keeping a house of ill-fame, falsely representing that for such sum he could and would get the prosecuting attorney to have an order entered dismissing the case against her.
2. That afterwards, relator caused to be written and sent to the said person so charged, a letter purporting to have been signed by the prosecuting attorney, stating that said case had been dismissed. That the name of the prosecuting attorney was affixed to said letter by relator and was a forgery.
3. That the reputation of said relator for truth and veracity “is so notoriously bad that he is not to be believed under oath.”
Relator moved to quash the proceedings, (1) because the Circuit Court had no jurisdiction, relator having been admitted to practice in the Supreme Court; (2) the case in the Recorders’ Court was a matter within the jurisdiction of that court; (3) the service upon relator of the order to appear was by the sheriff, and not by the clerk of the court, under How. Stat., Sec. 7184; (4) the copy of the petition of the prosecuting attorney contained no date for relator’s appearance (the order, however, gave the date); (5) private counsel was employed by the prosecuting attorney, without, the order of the circuit judge or the direction or employment of the county auditors; (6) the second specification is bad, in that it does not refer to relator’s general reputation in the neighborhood where he resides (see in re Mills, 1 M., 392); (7) the jurat to the petition omitted the words “being duly sworn” (the jurat set forth that on the date named “personally came before me, the above named” “J. V. D. W. and made oath,” etc.). | [
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Moore, J.
The, plaintiff recovered a judgment for injuries received because of a fall upon a defective sidewalk. The defendant appeals, and assigns as error the admission of testimony bearing upon the question of the extent of the injuries received by the plaintiff. It was alleged in the declaration that the plaintiff “ stepped into one of said holes, and was thereby thrown and fell to and upon the said sidewalk and the ground there, and thereby the spine of said plaintiff was severely and permanently injured, and she was otherwise severely hurt, bruised, and wounded, and she became and was sick, sore, lame, and disabled, and so remained,” etc. We think the declaration was sufficiently broad to warrant the introduction of all the testimony which was received.
The plaintiff was allowed to show the condition of the walk at and in the vicinity of the place where the accident occurred at the time of and prior to the accident. It is claimed this was error. The decisions of this court justified the admission of the testimony. Will v. Village of Mendon, 108 Mich. 251; Moore v. City of Kalamazoo, 109 Mich. 176.
The refusal of the trial judge to give some of the defendant’s requests to charge is assigned as error. In his general charge the court gave correctly the principles of law in relation to which he was requested to charge, and we have repeatedly held that it is not error to decline to give a particular request, if the general charge correctly states the law in relation to the subject-matter of the request.
This suit was commenced August 1, 1894. It was tried in November, 1895. The charter of Jackson contained a provision reading:
“The council shall audit and allow all legitimate claims against the city; and, when required by the common council, every account shall be accompanied with an affidavit of ■ the person rendering it, to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just; and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim. And every account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city, that it has never been presented to the council for allowance; or that the claim was presented without the affidavit aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”
Neither by the pleadings nor at the trial was any attempt made to defend against plaintiff’s claim for the reason that it had not been presented to the common council. In December after the trial the circuit judge was asked to grant a new trial because the plaintiff had not presented her claim to the common council before suing it. We do not think it necessary for us to decide whether the charter provision is to be construed as controlled by the case of Lay v. City of Adrian, 75 Mich. 442, or by Springer v. City of Detroit, 102 Mich. 303. The defense sought to be interposed was a legal defense. The city and its counsel must be presumed to know the law. No one knew better than they whether the claim of plaintiff had been presented to the common council or not. Whatever the facts were, they knew them at the time of the trial. The attention of the court was not. called to this defense during the trial of the case. It is too late now to seek to interpose it.
A second motion for a new trial was made on the ground of newly-discovered evidence. The motion was overruled. We think properly so. “A motion for a new trial, upon the ground of newly-discovered evidence, is not regarded with favor. The policy of the law is to require of parties care, diligence, and vigilance in securing and presenting evidence.” Elliott, App. Proc. § 857. To entitle one to a new trial upon this ground it should be shown: First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial. Hayne, New Trial & App. §§ 88-92, and many cases there cited; Gray v. Barton, 62 Mich. 186. Defendant failed to make such a showing as to entitle it to a new trial.
Judgment is affirmed.
The other Justices concurred. | [
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To compel payment of a State bounty to the relator.
Granted October 28, 1869. | [
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To compel respondent to issue to petitioner a 1,000 mile ticket in the name of himself and wife, as required by 3 How. Stat., Sec. 3323, as re-enacted by Act No. 90, Laws of 1891.
Order to show cause granted June 14, 1892, but a stipulation was filed July 29, 1892, discontinuing the proceedings. | [
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To compel the board to recognize relator’s right to sit and act as a member of said board.
Granted January 28, 1885.
The charter of the City of Eaton Rapids provides that the supervisor of the city shall, together with the mayor, represent the city in the County Board of Supervisors, and shall be entitled to the same rights, privileges and powers as any other member. | [
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Long, C. J.
This case was in this court at the April term of 1895, was reversed, and remanded for another trial. The opinion filed is found in 105 Mich. 462. Judgment was reversed upon the ground that the trial court did not properly instruct the jury upon the question of the plaintiff’s contributory negligence. Speaking of that charge, it was said in the majority opinion:
“This naturally tended to give the jury to understand that turning suddenly upon the track in front of an approaching car, so close that a collision would necessarily ensue unless the motorman, by extremely prompt and vigorous action, should prevent, would not be contributory negligence, unless the plaintiff knew that the car was only a few feet away, or unless he could have reasonably ascertained the fact from his seat in front of the barrels. In other words, the charge seems to imply that a man may place himself in any position that his convenience or the exigencies of his calling may require, and drive upon the track, without taking correspondingly greater precautions than would be necessary if in an open wagon; relying upon the proposition that he has the same right there that the car has, and that the motorman is required to avoid the collision. The evidence shows that the plaintiff made no effort whatever to ascertain whether a car was coming or not. In the case of a covered milk wagon this was held to be negligent, and the rule should be the same in this case. Whether or not this negligence contributed to the injury is another question, which we cannot determine, it being for the jury.”
Upon the second trial the case was submitted to the jury upon the theory stated in the opinion of this court.
It is contended by counsel for defendant that in the former record there was evidence that the car was run at a high rate of speed, and that the plaintiff was upon the track when the car was 100 feet away, but that in the present record it appears that the car was not moving at an unlawful rate of speed, but was going at a slower rate than the ordinance authorized; and, again, that there was no evidence given on the trial that the car was over 30 to 50 feet away when the plaintiff turned upon the track. It is conceded that the present record does not show that the car was being driven to exceed six miles an hour. This was the testimony given by the motorman, Johnson. But it is contended that that fact would tend more strongly to show that the plaintiff was not guilty of contributory negligence; for one might be negligent in driving upon the track when the car was approaching at the rate of 15 miles an hour, if the car was in close proximity, while, if the car was running at the rate of only six miles an hour, he might not be guilty of negligence in driving upon the track. We think there is great force in this contention. From the plaintiff’s testimony, it appears that he had traveled after turning upon the track, or at least within the line of the car on the track, something like 35 feet before he was struck. There was testimony on the present trial, given by Mr. Groskopf, that he saw the wagon turn towards the track, to go around Carbert’s buggy, and that at that time the car was from 30 to 50 feet north of the rear end of the wagon. It is apparent that this brought the wagon within the line of the car, and, if the defendant’s contention is correct, that the car was running at the rate of only six miles an hour, it would appear from the testimony of Mr. Johnson, the motorman, that it could have been controlled and stopped before it reached the plaintiff’s wagon. At least, these are questions which were proper to submit for the consideration of the jury. Mr. Johnson testified that he came down Bridge street, and turned up Canal street; that, when he came across the tracks onto Canal street, the wagon with the load of barrels was just about a wagon length ahead of him; that when he got across the track, and onto the west side of Canal street, the wagon was just two wagon lengths ahead of the car. He was then asked to state what took place from that time on, and testified: “Well, sir; we ran along side by side there— Well, the wagon was about a wagon length ahead of me, as I say, and we slowly gained on the wagon until we were side by side; pretty nearly side by side; and I thought I had room enough to go by the gentleman.” He testified further: “The team gradually pulled in towards the car, and the barrels rubbed against the windows, and that frightened the team.” He testified further that after he got across the street, and onto the west track in Canal street, he increased the speed of his car, and that at the time the wagon was struck he was running at the rate of six miles an hour.
The theory of the plaintiff on the first trial was that he was compelled to drive around Carbert’s buggy, and in doing so was obliged to pass within the line of the car on defendant’s track; and that, when he first so drove within the line, defendant’s car was -approaching, and was then 100 feet or more in his rear; and that, if the defendant had not been guilty of negligence, no injury would have resulted from the situation; but that defendant’s car was driven at an unlawful rate of speed, and overtook plaintiff’s wagon, and passed along by the side of it without an attempt being made to stop or retard it, and that on account of this negligence on the part of the defendant the plaintiff was injured; and it is insisted that this was precisely the theory of plaintiff on the second trial; that it was a question for the jury to say whether it was proper for defendant’s car to approach this wagon, under the circumstances, and pass partially by it, at the rate of six miles an hour, and whether that was not a high rate of speed considering the position of the wagon on the track, and whether such conduct was not careless and negligent. Counsel for defendant contend that the case is controlled by Graff v. Railway Co., 109 Mich. 77; Guilloz v. Railway Co., 108 Mich. 41. We think the present case plainly distinguishable from those, and that the court very properly submitted, not only the question of defendant’s negligence, but the plaintiff’s contributory negligence, for the consideration of the jury.
It is further contended by defendant’s counsel that the court erred in instructing the jury that it was the duty of the motorman in running the car to be cautious, diligent, etc., not to run it at a dangerous rate of speed, and to check or stop it when apparently necessary to avoid obstructions or collisions; and, if he observed an obstruction on the track ahead of his car, he had no right to recklessly run into such obstruction, and, if he did so, that that would be negligence on his part. The contention is that there was no evidence that the motorman was guilty of any negligence, or that he ran the car at a dangerous rate of speed, or that he recklessly ran into the wagon. We need but refer to the testimony of the motorman to answer these propositions. If his testimony is true, he had full control of his car when within a wagon length of the plaintiff’s wagon, but increased his speed so that he could pass. This testimony, taken in connection with that of Grroskopf that the wagon turned in towards the track while the car was from St) to 50 feet distant, shows that the motorman was reckless under the circumstances. We think there was no error in this part of the charge.
We have examined the other questions raised by defendant’s counsel, and think they must be overruled. The trial was fairly conducted, and the court charged the jury fully upon the legal questions involved; and, both questions being for the jury to determine, we find no error in the record.
The judgment is affirmed.
The other Justices concurred. | [
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Montgomery, J.
Respondent was charged with the offense of selling intoxicating liquor without having given the bond, as required by law. The testimony was furnished by two detectives, who had been promised a reward for the detection and conviction of persons engaged in the business in the village of Fenton. The respondent, among other requests, preferred the following:
“ The encouragement of criminals to induce them to commit crime, in order to get up a prosecution against them, is scandalous and reprehensible.”
All the other requests of respondent appear to have been given. The court did charge, at the request of respondent, that—
“ The fact that it is claimed that liquor was purchased with a view to institute prosecution, based upon the evidence of Hanley and Green, is a circumstance which affects the credibility of said Hanley and Green, and you should scan their testimony more carefully than you otherwise would.”
And, further:
“Under our laws, a person who induces^ another to commit a crime with knowledge that the same is about to be committed under such inducements as are held out by the person inducing the same, if the same would not have been committed except at the instigation and approval of such person, then the jury should look upon the person who admits that he caused the offense to be committed with disfavor.”
We think these instructions were as favorable as the respondent was justified in asking, unless it can be said, as matter of law, that the fact that the parties to whom the liquor was sold were detectives is in and of itself a defense; and we think this is not the law. The case falls within People v. Curtis, 95 Mich. 212; People v. Murphy, 93 Mich. 41; People v. Rice, 103 Mich. 351; People v. Liphardt, 105 Mich. 80.
Conviction affirmed.
The other Justices concurred. | [
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] |
Montgomery, J.
This is a bill filed to foreclose a mortgage made by Phillips to Adam W. Bogart, complainant’s intestate, on the 13th of October, 1887. About February 13, 1889, Bogart had brought suit against Phillips to recover about $300 interest then due, and, by appointment, Phillips was to meet Bogart at Port Huron and settle up this back interest. Phillips went to Noble, and borrowed $300 from him to pay Bogart, giving Noble his note and a deed of the land covered by the mortgage to Bogart. It was agreed between Phillips and Noble that Phillips should come to Port Huron and make the settlement with Bogart, and when that was done, and Phillips had deeded the land to Noble as security, Noble would telephone the First National Bank at Poi't Huron to pay the money over. Phillips came to Port Huron, made the settlement with Bogart, and Bogart advised him to go to one Hovey to have the deed to Noble drawn. They did so, Bogart being present. Either by mistake or at the instance of Bogart, Hovey inserted in the deed a clause by which Noble assumed and agreed to pay the Bogart mortgage. Phillips signed the deed, put it on record, telephoned Noble, and Noble directed the bank to pay over the $300; and it did so, and the money, or nearly all of it, was paid over to Bogart to satisfy past-due interest. Thex’e was no agreement between Phillips and Noble that Noble should assume the Bogart mortgage, and neither had any such understanding, and Phillips did not understand that Noble was assuming the mortgage when he signed the deed. After it was recorded, the deed was forwarded to Noble, who put it in his safe, not knowing of this clause in the deed until about March 2, 1889, when his attention was called to it. He then examined the deed and found it. He at once sent for Phillips, and they signed a paper by which it was agreed to alter the deed by striking out the words, “which said mortgage the said Noble hereby assumes and agrees to pay. ” This paper was sworn to, and in it Phillips says that this clause was inserted in the deed without his direction, knowledge, or consent, and that this clause was not read to him when he signed the deed. This paper was signed and sworn to by Phillips and Noble, March 3, 1889, and was recorded in the register of deeds’ office March 4, 1889, on the face of the page whereon was recorded the deed from Phillips to Noble, and a reference to the agreement was made by an insertion on the face of the record of the deed. Phillips remained in possession of the land until the last of September, 1892, when he abandoned it, saying to Noble he might take it and get what he could out of it. Phillips had not paid Noble any part of the note for $300, and, when he thus turned it over to Noble, Noble gave up his note, and from that on claimed title to the land. Subsequently Noble wrote letters to Goodale, Bogart, and Coe, asking for an extension of time on the principal, and agreeing to pay interest if it was extended. After Phillips turned tke land over to Noble, in September, 1892, Noble rented it, and made what he could out of it, and applied the proceeds on Phillips’ indebtedness to him. Subsequently Noble wrote to Bogart, repudiating his liability under the clause in the deed.
This bill seeks to hold the defendant Noble liable for any deficiency that may arise after a sale, and whether he can be so held or not is the only question in the case. Holden disclaims, and the bill was taken as confessed by Phillips. The circuit judge held, while recognizing the general rule that the person who purchases land covered by a mortgage, and, by an agreement incorporated in the deed, assumes and agrees to pay such mortgage, is individually liable in foreclosure proceedings, yet that that rule grows out of the contract relations between the purchaser and the mortgagor, and that where, by mistake or fraud, such an agreement is incorporated in the deed without the knowledge of the grantee, and is promptly disaffirmed by him, he cannot be held to the undertaking by the mortgagee. It appears to be conceded by complainant’s counsel that the circuit judge was not in error in this view of the law, and it is said that, if Mr. Noble had been consistent in disclaiming liability upon the mortgage under his deed from Phillips, there would be force in his contention that he is not liable, but that, after he caused to be made and recorded a paper disclaiming liability for this payment, he agreed to pay the $200 due October 13, 1889, and one year’s interest on the whole mortgage. But we discover nothing in the correspondence which shows any binding promise to pay. On October 17, 1890, Mr. Noble wrote that he would pay interest on the Phillips mortgage if time would be extended on the principal, and added: “What I am trying to do is to sell the place and let us all out, and I think I will do it before long.” On the 22d of October he wrote Mr. Moore, in whose hands the mortgage evidently was for collection: “I am only interested in- this matter in helping another man out. I expect to sell the place before long, and I will pay the interest if he will let the principal run along until the place can be sold, or something done. I think this the best plan for all parties interested.” On the 31st he wrote: “I cannot pay but the interest on the A. Phillips mortgage this fall. I do not own the place myself, and am doing what I can to help another man, and trying to sell the place, with a fair prospect of success.” It is true he had, previous to this, written to Mr. Coe, in whose hands the note was for collection, that he would pay the $200 and the interest on the mortgage. A statement was sent him, showing the amount, and he failed to make the payment. This was a new undertaking, upon no new consideration, and, we think, was not intended as a ratification of the deed in the form in which it was written.
We think the circuit judge reached the correct conclusion, in refusing a personal decree against Mr. Noble, and the decree will be affirmed.
The other Justices concurred. | [
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Grant, J.
For a statement of this case we refer to 106 Mich. 223. The present record is the same as that, except that it is now shown that the suit was authorized by the supervisor of the township. Section 40 of Act No. 206, Pub. Acts 1893, is as follows: “The taxes thus assessed shall become at once a debt to the township, ward, or city from the persons to whom they are assessed,” etc. The supervisor is the agent of the township for bringing suits. 1 How. Stat. § 737. We have, therefore, a valid debt due the township, and the proper officer authorizing the suit. The authorities cited by counsel for defendant involve the action of the township treasurer and his authority to bring the suit, and hold that he must follow the statute. Where the treasurer has failed to collect, and the taxes are made a debt due to the township, we see no legal objection to the institution of suit by the authority of the supervisor to enforce payment.
The judgment is affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is an action for a plumber’s bill. The plaintiff recovered, and the defendant brings error. The principal question is whether there was any evidence tending to show a contract made direct to the defendant, or whether, on the other hand, the evidence is open to no other construction than that the promise of defendant was collateral, and hence within the statute of frauds. The learned circuit judge submitted this question to the jury. Defendant contends that this was error. Plaintiff’s testimony was to this effect:
“Cyrus Johnston had some deal with a man by the name of Peoples, and he had some work to finish up for him, which I did for Mr. Johnston, and he told me that he would have some more work for me to do by and by. It was not direct for him, but for a man named Lake, I had the dealings with; and he told me Mr. Lake would call upon me and see me in regard to the work. Well, I received a postal card from Lake to meet him either at his house or Johnston’s office; and Mr. Lake and I went to the place, and I figured the work over, and gave him a price on it, and we came out to the Twenty-Fifth street houses, and I saw some excavating done on those. * * * I thought some one had started the work, and did not get his pay, and did not trust the man; so I was suspicious myself about it, and I went to Mr. Johnston, and told him that I looked up Mr. Lake’s' record, and I found that his credit was no good, and so Mr. Johnston told me, he says, ‘That is all right.’ He says, ‘I am putting $520 into this matter, and I am helping Lake along, and all the debts and money go through my hands, and I will pay you the money.’”
On cross-examination he repeated this statement, and added that he told Mr. Johnston that he would go ahead with the work if he (Johnston) said so; that nothing was said about charging it to Johnston, but that he (Johnston) told plaintiff that he would pay his bill. In answer to the question, “Didn’t he tell you then that there would be moneys going through his hands, if that went through, and he would try to get the money for you ? ” the plaintiff replied:
“No, sir; he did not say anything about that. He spoke about some deals they were making, but he said he let Mr. Lake have $520. * * *
“Q. What, then, did you understand?
“A. I understood that Mr. Johnston'was to fix up matters for Mr. Lake with his money. That is the way I understood Mr. Johnston.
“Q. That is, that Mr. Johnston was going to loan Lake $520?
‘ ‘A. He said that he let him have $520. I did not know whether Mr. Johnston was to pay me out of the $520 or out of some other money.”
The defendant’s testimony was opposed to this of the plaintiff, and it appeared that, upon the ledger of the plaintiff, the account was first charged to Lake; but the testimony of the plaintiff and his bookkeeper tended to show that the original charge on the day book was to Johnston, with Lake’s name added for the purpose of identification.
We are unable to say that, upon this testimony, there was no evidence of a direct promise. Defendant contends that the record shows a contract with Lake prior to the undertaking of Johnston, and fails to show that that contract was abrogated. The evidence was for the jury to construe. By the plaintiff’s testimony, no contract appears to have been completed with Lake, and the jury would be justified in construing the promise as a direct promise by Johnston.
Complaint is made of the charge of the court, but, as no novel questions are involved, we think it sufficient to say that the charge, in our judgment, fairly covered the case, and presented the issues to the jury.
It is claimed that the circuit judge misstated the evidence to the jury. The court, in opening his charge, in stating the plaintiff’s claim, said that—
“The contention of the plaintiff is that, after he had examined the work, he immediately proceeded to find out what the pecuniary responsibility of Lake was, and, having satisfied himself that Lake was not pecuniarily respon sible, he immediately went to Johnston, and said, ‘ Mr. Johnston, I am not going to give credit to Mr. Lake,’ and thereupon—”
Here he was interrupted by defendant’s counsel with the statement that the witness had made no such statement on the stand. Then the court added:
“I take that back. The contention of the plaintiff is that that was the effect of what was said between them, The contention of the plaintiff in this case, and the contention of his attorney, is that the conversation had between them, between himself and Johnston, was of that purport, although not in that language.”
We think there was no error in this.
Complaint is also made of submitting to the jury the question as to whether the plaintiff looked to Johnston as original promisor, but, as already stated, we think that the evidence was sufficient to justify the submission of this question to the jury.
There is also complaint of the language of counsel on the argument of the case to the jury, but we think, in view of the fact that the court immediately declared the remarks of counsel improper in the presence of the jury, that no presumption of injury to the defendant can arise.
While the case is evidently a close case upon its facts, and the testimony on the part of defendant, as it appears in the record, would seem to have been quite persuasive, yet we have not been able to agree with defendant’s counsel that there was no case for the jury; and, as we discover no damaging error in the case, the judgment will be affirmed.
The other Justices concurred. | [
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] |
Long, C. J.
This bill is filed for the purpose of obtaining an injunction restraining the defendants from interfering in any way with the Methodist Episcopal Church Society and the complainants in using a certain church edifice in which to hold religious services, and to prevent the defendants from interfering with the complainants in opening and entering said church for religious services. Upon the filing of the bill an injunction was issued and served upon the defendants in accordance with the prayer of the bill. The defendant the Pleasant Valley Congregation of the Brethren Church filed a general demurrer to the bill, setting out that the bill did not state a cause which entitled the complainants to any relief whatever. The other defendants answered the bill. The cause came on to be heard on the demurrer. The court overruled the demurrer, without costs, and gave the defendant 30 days to answer. The appeal to this court is from the order overruling the demurrer.
It appears by the bill that the Pleasant Valley Congregation of the Brethren Church is a corporation organized and existing under chapter 170, 1 How. Stat.; that in 1890 it owned a church building, which burned during that year; that subsequently negotiations were entered into between the members of that corporation and the members of the Methodist Episcopal Church Society, called the “Bethel Class, Vandalia Circuit,” and other persons in the neighborhood, to raise a common fund with which to rebuild such church edifice, and which it was agreed should be used, not only by the Pleasant Valley Congregation, but by other denominations in common with them,—that is, the Baptist, Disciple, Methodist, Congregational, and Presbyterian denominations. The Pleasant Valley Congregation then claimed to have $930, which had been obtained from insurance on the old building, and that, if $400 would be raised by the other parties who were interested in the erection of the church edifice, and not belonging to the Pleasant Valley Congregation, but belonging to the other denominations, the Pleasant Valley Congregation would build such church upon what was called “White’s Four Corners,” and that such church should be open to worship by the other denomi-' nations above enumerated. The bill further charges that Walter Clark, the minister in charge of the Pleasant Valley Congregation, represented to the complainant White and his wife, Ella White, that it would locate such church upon White’s Four Corners, on the land of said White, if the site could be obtained therefor, and that the complainant White stated that he would furnish the site and donate $100 for erecting the building on the express condition that it should be used only for church purposes, and that when erected, and when not in use by the Pleasant Valley denomination, it should be open for use by the Methodist, as well as the Baptist, Congregational, Presbyterian, and Disciple churches; that in that neighborhood there were people connected with said different denominations, either as members or in belief, and that they wanted a church in which they would be at liberty to worship; and that upon this condition, and no other, would he give said site and contribute the $100; that his proposition was accepted by said Walter Clark in behalf of said church; and that a deed was made and delivered on May 30, 1891. The deed expressed the consideration of “one dollar and other consideration hereinafter stated.” After the description in the deed, it recited : ‘ ‘ For and during the period or term that said land shall be used for church purposes, and no longer. Said church, when on said site, shall, when not in use by the party of the second part hereto, be open for use to the following orthodox denominations, to wit, the Baptist, Disciple, Methodist, Congregational, and Presbyterian, —together with all and singular the hereditaments,” etc. This deed was executed by Nathaniel White and wife to the Pleasant Valley Congregation of the Brethren Church, a body corporate under the laws of Michigan. The bill further alleges that in 1894 the quarterly conference of the Niles district authorized the pastor of the Vandalia circuit to hold meetings in this building, and then made it a part of the Vandalia charge, and called it the “Bethel Class;” that the trustees of the Pleasant Valley Congregation, then denying that the complainants and the Methodist society had any right to occupy the church, excluded them therefrom.
The bill contains the usual prayer for injunction, as above set forth, and further prays that the verbal agreement by which the contributions were made may be- decreed to be specifically performed, and that the deed be decreed to create a trust, and that such trust may be enforced. The injunction which was issued in the case contains the command to the .defendants that—
“ You do absolutely desist and refrain from interfering in any way with the said Methodist Episcopal church and society, and using said church to hold religious services therein, and preventing the said complainants from opening and entering said church in order that meetings may be held by the said church and society under the deed of conveyance of said church premises; and also restrained and strictly forbidden from preventing the Rev. H. H. Miller, or any other minister of said society, from entering-said edifice as the minister and said pastor of the same, and in any manner interfering with him in holding religious services therein, and in his discharge of his duties as such pastor and minister in charge of such society, and to refrain from interfering in any manner with the rights of the said Methodist Episcopal church and society, or with the complainants, to open said church; that the same may be opened, used, and occupied for religious services; that the said church should be opened; and that you and each of you shall refrain and absolutely desist against locking the doors of said church, from locking said church against said complainants and the Methodist Episcopal church and society, until the further order of this court.”
It is contended by counsel for the defendants:
(1) That, under the statute, a trust cannot be created or exist in real estate by parol; that the same must be evidenced by some writing.
(2) That the deed in controversy is not a trust deed.
(3) That the complainants cannot maintain this bill.
(4) That the injunction is too broad, as it, by its terms, takes the possession of the church property from the defendants, and turns it over to the complainants.
1. As to the first proposition, it may be said that the recitations in the bill simply show the surroundings and situation of the parties at the time of the execution of the deed, as well as the consideration for which the deed was given. Such consideration may always be shown by parol testimony.
2. We think the deed itself creates a trust in favor of the denominations named therein, which may be enforced in equity. Section 5573, subd. 5, 2 How. Stat., provides for the creation of a trust for the beneficial interest of any person, when such trust is fully expressed and clearly defined upon the face of the instrument creating it. No particular words are necessary to create a trust. Chadwick v. Chadwick, 59 Mich. 92. In the deed the trust is fully stated. Four hundred dollars was raised by the other denominations, and used in the building of the church edifice. The title to the property was taken in the Pleasant Valley society, but the deed expressly declares that “said church, when on said site, shall, when not in use by the party of the second part hereto, be open for use to the following orthodox denominations, to wit,” etc. No other interpretation could be given to this language than that it was the intent of the parties to the deed that these other societies should have the use of this church edifice when not in use by-the Pleasant Valley society; and the breach set out is that these other societies were denied absolutely the use of the church edifice at any and all times.
But it is said that a corporation has no powers except those conferred upon it by statute, and that the statute does not authorize it to act as a trustee in a trust, and that such power is ultra vires. We think it is now well settled that a corporation with legal capacity to hold property may take and hold it in trust, when authorized by law, in the same manner, and to the same extent, as private individuals may do. Congregational Society v. Atwater, 23 Conn. 34; Mason's Executors v. Trustees of M. E. Church, 27 N. J. Eq. 47; Maynard v. Woodard, 36 Mich. 423; 4 Am. & Eng. Enc. Law, 218.
The claim that is made that the beneficiary in .a trust for religious purposes must be a corporation organized under the laws of this State has no force. Section 4640, 1 How. Stat., refers to the legal title or interest in the grantee or trustee, and not to the beneficiary in the trust, as, under section 4637, the lands conveyed to any person as trustee may be held in trust for the use of any congregation or religious society organized within this State.
It is further contended that the beneficiaries named in the deed are indefinite, and that the trust, if sustainable at all, can only be sustained on the doctrine of charitable trusts, which is claimed to be founded on the English statute of charitable uses, and that this statute has never been adopted in this State. However this may be, trusts are enforceable in this State the same as they were at the common law, subject to the provision of our statute that they must be fully expressed and clearly defined upon the face of the instrument creating them. The beneficiaries here named are the members of the several specified denominations residing in the vicinity of the church. An unincorporated society or a voluntary association, like a religious society or denomination, is capable of taking as a beneficiary in a trust. Universalist Society v. Fitch, 8 Gray, 421; Smith v. Bonhoof, 2 Mich. 115. See, also, Tomlin v. Blunt, 31 Ill. App. 234.
3. The claim that the complainants are not proper parties to bring this bill has no force. They showed by their bill that they were the trustees and agents of the Methodist Episcopal Church, and were acting in behalf of- themselves and all other members of said church, and all having a like interest. That question was settled in Fuchs v. Meisel, 102 Mich. 367.
4. We think the injunction does not turn the Pleasant "Valley society out of the church building, but simply goes to the extent of preventing that society or its members from locking the doors of the church against the other societies, and their members, named in the deed.
The order of the court below overruling the demurrer will be affirmed, with costs against the defendant.
The other Justices concurred. | [
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Montgomery, J.
Relator filed an information in the superior court against one Fred Saunders, a resident of the city of Grand Rapids, charging that the respondent was engaged in the business of selling at retail spirituous liquors, etc., without first having made, executed, and delivered to the treasurer of the county the bond required by law; and that the failure to file such bond consisted in this: That the bond made and filed was not signed by two or more sureties who were not sureties upon two or more other similar bonds, but that the bond made, executed, and delivered by said Fred Saunders was signed by two sureties only, and that one of said sureties was, at the time he so signed said bond, a surety upon more than two other bonds required by the provisions of the liquor law. Upon motion, this information was quashed, and relator seeks to have the order quashing the information set aside, and the cause reinstated. The question presented is whether a bond approved by the common council of a city or village is, in all cases, a protection, or whether the party giving the bond must see to it at his peril that the bondsmen have the qualifications fixed by statute.
The statute (section 2283d1, 3 How. Stat.) reads as follows :
“Every person engaged in the sale of any spirituous, malt, brewed, fermented, or vinous liquors, except druggists, shall, before commencing such business, and on or before the 1st day of May in each and every year thereafter, make, execute, and deliver to the county treasurer of the county in which he is carrying on such business, a bond, the sufficiency of which shall be determined by the township board of the township, or the board of trustees, the council, or the common council of the village or city, in which such business is proposed to be carried on, to the people of the State of Michigan, in the sum of not less than three thousand nor more than six thousand dollars, with two or more sufficient sureties, who shall be male residents and freeholders of the township, village, or city in which such business is proposed to be carried on, neither of whom shall hold any elective or appointive office in any county, city, village, or township of this State, except notaries public, nor be a surety upon more than two bonds required by the provisions of -this act, and each of whom shall justify in real estate situated in the county in which such business is proposed to be carried on, in a sum equal to the amount of the bond, over and above all indebtedness and all exemptions from sale on execution.”
By section 2283d it is provided that—
“If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section one of this act, * * * without having made, executed, and delivered the bond required by this act, * * * such person or persons shall be deemed guilty of a misdemeanor,” etc.
It will be noted that the information does not allege that Saunders knew of the fact that the sureties whom he tendered, and who signed the bond approved by the common council, were sureties on other bonds, nor does it appear that the bond was, in any respect, informal, or that there was any failure to comply with the statute by causing to be annexed to the bond an affidavit in due form. The question, then, is whether, under the provision of the law last quoted, one who tenders in good faith a bond in proper form, purporting to be signed by sureties competent for the purpose, and who, in good faith, after filing such bond, with the approval of the common council, engages in the business of selling liquor, is liable to a criminal prosecution. We think this question should be answered in the negative. In the case of Goff v. Fowler, 3 Pick. 300, an objection was made that a license granted by the court of sessions was invalid because of irregularity in the proceedings anterior to the grant of the license. The court, by Chief Justice Parker, said:
“The objection to the license on the ground that the certificate of the selectmen was not conformable to the statute we think ought not to -prevail. The act of the court of sessions, in granting the license, is, we think, conclusive, and ought not to be vacated on account of the informality of anterior proceedings. It is the duty of that court to inspect such certificates and adjudicate thereon, and they are the proper judges of their sufficiency. It would be laying a. snare for persons who obtain a license and pay the excise thereon to leave them subject to prosecution for keeping an inn without license, by allowing any informer to unravel the proceedings of the court in order to detect some irregularity therein.”
It was held by this court in Amperse v. Winslow, 75 Mich. 234, that officers charged by statute with the approval or disapproval of liquor bonds act judicially. See, also, Parker v. Village of Portland, 54 Mich. 308. And, in Potter v. Village of Homer, 59 Mich. 13, it was held that the approving board have the power to-make inquiry beyond the averments of the affidavit of' justification, and that in this they have the same discretion, and no more, that is possessed by other persons called on to approve sureties.
The only authority cited by counsel for relator to-sustain his contention is a statement from Black on Intoxicating Liquors (section 197) to the effect that the giving of the liquor bond is an essential condition precedent to the validity of the license, and that a license-granted without the bond being given is no protection to the holder. The case upon which this doctrine rests is State v. Fisher, 33 Wis. 154, in which case no bond whatever was given by the respondent, and it was held that, under the terms of the Wisconsin statute, the council had no jurisdiction to grant a license. This, depending upon a construction of the law, was, of necessity, a fact as well known to respondent as to the board. We are not called upon to determine whether a dealer would be subject to prosecution in case the bond upon its face failed to conform to the statute, or in case it were averred and shown that on the face of the proceedings before the appi’oving board there was no jurisdiction conferred upon the board to approve the bond by reason of a failure to comply with the statute, as by the omission of the requisite justification. Such a state of facts would present a very different question. We confine our holding strictly to the case in hand.
It is contended by the respondent, upon the authority of Kuhn v. Detroit Common Council, 70 Mich. 534, that the provision of the statute which prohibits the acceptance of the same surety oh more than two bonds is unconstitutional. The authority of that case has been misapprehended. The holding in that case was that it was not lawful to preclude a person from becoming a surety on a bond because of-the fact that he was engaged in a particular business. This certainly does not go to the length of holding that it is incompetent for the legislature to limit the number of bonds of a certain kind upon which any one person may become a surety, treating all persons alike in that regard.'
For the reasons stated, we think the trial judge correctly ruled the case, and the application should be denied.
Long, C. J., concurred with Montgomery, J. | [
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Hooker, J.
The findings of fact in this cause state that the plaintiff Minear bargained with the defendant for a yoke of oxen, at the price of $100, to be paid for on delivery. The bargain was made on Sunday, and the defendant promised to deliver the oxen on the following Wednesday at Evart. On the day appointed the defendant did not deliver the cattle, but went to Evart, where a pew contract was made, whereby he agreed to let the plaintiff Minear have the cattle for $100, to be paid upon the following Tuesday, when Minear was to go-to the defendant’s place for them. Five.dollars was then paid and accepted upon the trade. Afterwards, and on the same day, the plaintiffs offered to pay more upon the cattle, but defendant said, “The cattle are yours now, and you can have them next Tuesday.” The plaintiffs replevied the cattle some days after the time set for delivery, and upon the trial a judgment was rendered for the defendant, for want of demand and tender of payment, and, return of the property being waived, his damages were assessed at $95. It is alleged that this is erroneous, it being claimed that the findings show that demand and tender were waived. The findings upon this subject are:
1. A day or two after the Wednesday bargain, the defendant returned, by registered letter, the five dollars which had been paid. The plaintiffs, suspecting the contents of the letter, refused to receive it.
2. On Sunday, two days before the time set for the delivery, the plaintiff Wells was at defendant’s house, talking about the oxen, and defendant said that he did not own the cattle, had no right to sell them, and that he had returned the money, and the trade must be called off.
8. A day or two after the time set for plaintiffs to call for the cattle, Minear went after them, and met the defendant in the road a mile and a half from his house. He told the defendant that he was, after the cattle, and had the money to pay for them. Defendant paid no attention to him, and passed on. The money was not produced and tendered, and no other demand was made at that time.
The writ in this case was then sued out, and afterwards, but before service, a tender of $95, and demand for the cattle, were made and refused. It is plain that no demand accompanied by lawful tender was made before suit. A demand unaccompanied by a tender, or, so far as appears from the findings, without present ability to pay the money, was made two days after the time set for pay ment, at a place 1% miles distant from the place where the cattle then were, which was received by silence on the part of the defendant. Standing alone, this was insufficient, for several reasons: (1) Not being at the appointed time, the defendant was under no obligation at that time to go home and deliver the cattle; (2) the money was not exhibited and offered; (3) there is nothing to show that Minear had any money. The question then gets to the point where, to sustain the plaintiffs’ contention, we must say that the return of the money, and the statement made on Sunday that defendant did not own the cattle and had no right to sell them, and that the trade must be declared off, constituted a waiver of the demand and tender, or, if it did not, so explained and colored defendant’s conduct as to justify the conclusion that his silence on the subsequent occasion was equivalent to a statement that no demand or tender need be made, for the reason that he should not deliver the cattle. The effect of the plaintiffs’ contention is the destruction of the defendant’s lien,' and to deprive him of the cattle without payment, leaving him to rely upon the personal responsibility of the plaintiffs for compensation. Under such circumstances, the court would not have been justified in lightly inferring a waiver of demand and tender. Up to the time that the parties met in the road, there had been no demand or tender, nor had there been a clear refusal to perform the contract. Potts v. Plaisted, 30 Mich. 149; Engle v. Hall, 45 Mich. 57. On that day the demand was not made at the proper place; nor was there any refusal to deliver at a proper time and place, upon tender. Furthermore, it does not appear that the plaintiff Minear had the money with him, i. e., “that he was ready and willing to pay the money.” The burden of proving the waiver was upon him, and we think the court was not in error in holding that it was wanting. By the waiver of return, and assessment of $100, or thereabouts, as damages, substantial justice has been done. The plaintiffs could easily have put this matter beyond question before commencing this action, but did not do so.
We are of the opinion that no error was committed, and the judgment is affirmed.
The other Justices concurred. | [
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Hooker, J.
On February 6, 1851, James G. Birney made a deed of the premises described in the declaration, of which the following is a copy of the important part, viz.:
“ And Lorainie Spicer, wife of Ezekiel Spicer, of the same place, of the second part, witnesseth, that, in con sideration of one hundred dollars paid by the said Ezekiel Spicer to the parties of the first part, they have bargained and sold and do hereby convey to the said Lorainie Spicer the lots known as numbered eight and nine (8 and 9) in square numbered forty-eight (48) in the village of Lower Saginaw, above mentioned, according to the lithograph map of it published by Green and McGowan. To have and to hold the said lots to the said Lorainie, to the children of her body begotten by the said Ezekiel, to her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, forever; and the said James G. Birney, for himself, his heirs, executors, and administrators, hereby covenant and agree that he will at all times defend the lawful title hereby conveyed, to the said lots, of the said Lorainie, to the children of her body begotten by the said Ezekiel, to her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, against the claim or claims of all persons whomsoever.”
The plaintiffs are three of four children of Ezekiel and Lorainie Spicer, two of whom were born after the deed was made, and, of two living at the time, one is a plaintiff, and one died leaving no issue; and it is claimed by the plaintiffs that they and Lorainie Spicer, their mother, inherited each one-fourth of this share, i. e., one-sixteenth of the entire premises, and they have joined as plaintiffs, claiming the undivided fifteen-sixteenths. The defendants are in possession under a deed purporting to convey the entire title, from Lorainie Spicer, made after the death of Ezekiel Spicer; and, she having married again, her husband joined in the conveyance. The claim of the plaintiffs is that this deed from Birney conveyed a life .estate to Lorainie, with remainder in fee to the children of herself and Ezekiel, while the defendants claim (1) that this deed attempted to create an estate tail, and therefore Lorainie took title in fee simple, by virtue of the statute (2 How. Stat. § 5519); and, failing in that contention, (2) that the land was conveyed in fee, and in moieties (or at least in fifths), to her and the children of her body, by Ezekiel, as a class.
We may dispose of this second suggestion first. It is noticeable that in its premises the deed makes Lorainie Spicer the only grantee, and the grant, being without words of inheritance or express limitation, would, if nothing further appeared in the deed, be construed as conveying to her a life estate. But the habendum is not silent, and was undoubtedly designed to qualify or supplement the premises in some way, which it may legally do, even to the enlargement of the estate granted, or the creation of new estates in new parties, who may be introduced by the habendum for that purpose. Brit it is said that a party thus introduced cannot take as grantee, being a stranger to the premises (i. e., not mentioned in the granting clause of the deed), but he may take by way of remainder. 3 Leon. 60, cited in Blair v. Osborne, 84 N. C. 420. If this is so, it would be conclusive upon the moiety question; for, although the habendum may be said to couple the name of Lorainie Spicer with the class called her ‘ ‘ children, ” the estate conveyed would be a remainder, and not, like her own, an immediate estate. Again, to sustain this theory we should have to make a change in the person and number of the personal pronoun, .in the words of inheritance, by substituting “their” for “her.” - But, again, we are of the opinion that it was not the intention of the grantor to dispose of the land in this way. We have no doubt that it was designed that Lorainie should have a life estate, at least, in the entire premises. Everything indicates it. First, we have the grant, which, standing alone, is clearly that; second, the clause in the habendum mentioning the children contains no words of inheritance, which would be necessary to give them a fee simple; and, third, it seems to have been contemplated that Lorainie and her husband might, in some contingency not clearly indicated, dispose of the premises, while such a provision as to the right of the children is significantly wanting.
So we may first inquire whether we may find a life estate in Lorainie, with a remainder, or must say that the deed was an attempt to create an estate tail, which, under the statute, vested the fee in her. If we should say that the effect of the grant was to convey a life estate to Lorainie, and that the habendum introduced the children for the purpose of giving them a remainder, it becomes important to know what the nature of that remainder is. If we should conclude that it was intended to give to the children an absolute fee after the termination of Lorainie’s life estate, it would be difficult to avoid the conclusion that an estate tail Was the object of the deed, and it could only be avoided, if at all, because they were introduced by the habendum instead of the grant. If, on the other hand, we can say that the estate conveyed to the children was not designed to be an estate of inheritance, it would strengthen the claim that theirs was a second life estate. There are two ways in which a design to give them an inheritance might appeal’: First, by the introduction of words of inheritance, following the words “children of her body begotten,” etc., distinctly applied to them, or, what would amount to the same thing, construing the words “her heirs” to mean “their heirs;” second, by construing the words “children of her body” to mean “heirs of her body,” or “issue.” There are no words of inheritance distinctly and clearly appearing to have been intended to apply to the “children,” and we think that there are obstacles to a construction of the words “her heirs ” that would supply the want of them. What, then, is meant by the words “children of her body begotten by the said Ezekiel ? ”
It seems to be conceded that whatever estate was conveyed to the children, intentionally or through the futile attempt at an entail, if it were such, was not to the exclusion of the children subsequently born. Counsel for the defendants necessarily take that view when they argue that this was an estate in tail. The plaintiffs’ counsel unqualifiedly admits it in his brief, and apparently supports it by the argument that inasmuch as their estate is not a grant, but a remainder, the rule that would have excluded them if described in the grant does not apply, and, as unborn children may take an estate in remainder with others, it follows that such must be the effect; citing 2 Bl. Comm. 170. Whether this necessarily follows when the terms used here appear in the habendum, we do not find it necessary to determine; but assuming, as counsel do, that all of the children shared in whatever estate followed Lorainie’s life estate, we will proceed to inquire concerning its nature.
As intimated, unless the word “children” is to be construed as synonymous with “issue” or “heirs,” they took no estate of inheritance. There might possibly be circumstances where “children of her body begotten” might be held to mean lineal descendants of any degree; but, without' words in the instrument or extraneous circumstances tending strongly to show an intention that such meaning should be given, it would do violence to the common understanding of both words “children” and “begotten.” The word “children” usually means “descendants of the first degree,” and “to beget” is to procreate, as a father or sire. The word ‘ ‘ children ” is usually confined to immediate descendants,—those of the first generation. It includes neither grandchildren nor more remote descendants. See authorities cited in 3 Am. & Eng. Enc. Law, 231. And it is said that “the word ‘children’ may acquire a more extensive meaning only from the context in which it occurs, or from its use in a case where the person using it must know that there neither then is, nor can afterwards be, any person within the first generation to whom it can be applied.” Willis v. Jenkins, 30 Ga. 167; In re Chapoton’s Estate, 104 Mich. 11; Tillinghast v. D’Wolf, 8 R. I. 69. The instances are perhaps more common where the word “heirs” or “issue” is construed to mean “ children.” Such a case is Tucker v. Tucker, 78 Ky. 503, cited by counsel, where the meaning is obvious from the context, though in these cases it is probable that •the same rule (i. e., necessity or obvious intent) applies. It has been said that: ‘ ‘ The word ‘ children, ’ being confined to issue in the first degree, consequently, when used in a deed or will, applies primarily to a specific and determina ble class. It is designatio personae, and indicates, not heritable succession, but individual acquisition. It is a word not only of limitation, but of purchase.” And to this rule it is said: ‘ ‘ There is no exception in the case of deeds. ” Therefore the term “children of her body” should not be considered “words of inheritance.” See 3 Am. & Eng. Enc. Law, 232, note 1. See, also, Ross v. Adams, 28 N. J. Law, 171, 172. In the case before us, if we have a conveyance to Lorainie Spicer for life, and to certain children of her body, not named, but classified, and, as already shown, there are no words of inheritance expressed, or that may be implied, which can make their estate one of inheritance, upon the death of Lorainie Spicer they would, come into possession, according to the terms of the deed, as life tenants. Such a case was Blair v. Osborne, 84 N. C. 420. There the grant was to Araminta Blair, habendum to her and the children begotten upon her body by S. M. Blair, forever. It was held that in such a case the children (of the first generation) took a remainder for life, as joint tenants. By referring to the deed in the present case, it may be said that Lorainie Spicer was granted a life estate. The children were introduced as life tenants in remainder, in the habendum, as was done in the case of Blair v. Osborne. The only difference would be that under our statute (2 How. Stat. §§ 5560, 5561) the children would take in common, and not as joint tenants. Mullreed v. Clark, 110 Mich. 229.
This brings us to the other clause of the habendum, viz.: ‘ ‘ To her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, forever.” We have indicated that we think that this refers to Lorainie Spicer. It is her heirs and her executors, and the assigns of herself and Ezekiel, who were apparently in the mind of the grantor. Were these words omitted, the conclusion that Lorainie, and the class described as her children, would have taken successive life estates, is irresistible; and that the donor would have owned the reversionary interest is plain. It is equally clear that, but for the provision regarding the children, the introduction of these words of inheritance would have enlarged the estate granted to Lorainie to a fee simple. So we have reduced the case to this narrow question,— whether they could have that effect, and thereby cut off the estate attempted to be conveyed to the children.
In determining the effect of a habendum upon a grant, we should do violence to the settled rules of construction were we not to determine the meaning of the conflicting provisions of the habendum by determining the intent of the grantor, as expressed in the habendum, so far as it could be determined from the instrument; and, having done this, we would then determine its effect upon the grant. To our minds, it is obvious that the first object was to secure to Lorainie Spicer an estate for life, and, second, that the children should enjoy a life estate in remainder; and we will not be justified in holding it to have been defeated by so technical a rule as that suggested above, unless it cannot be legitimately avoided. Following the discussion of the grantor’s intent into the realm of reasonable speculation, it would seem plausible that he wished to provide for a full enjoyment of the estate by Lorainie when the time should arrive (if it ever did) that the possibility of issue begotten by Ezekiel should be extinct. This might obviously happen through the death, or possibly the divorce, of Ezekiel without such issue living, or the subsequent death of such children. If the habendum had stopped at the word “heirs,” this deed would have created an expectant estate in fee simple in Lorainie Spicer’s general heirs (2 How. Stat. § 5544; Defreese v. Lake, 109 Mich. 415), to become operative upon the termination of the life estates of the children (see 2 How. Stat. § 5544; Defreese v. Lake, 109 Mich. 415), and could not be said to have been an enlargement of the life estate granted to Lorainie. This would have cut off the reversion. But apparently the grantor sought to do more, and convey an estate to Lorainie in fee after the possibility of the second life estate extinct, and, in addition to that, to allow Lorainie, with the consent of her husband, Ezekiel, to convey the expectant estate in fee to the exclusion of her general heirs.
There are two ways in which the plaintiffs can sustain their title: (1) By saying that Lorainie’s life estate and the estate in expectancy merged in her, to the exclusion of the intermediate life estate, which has already been discussed. (2) By saying that the deed from Lorainie Spicer conveyed nothing, as in such case her estate in expectancy, if she had one, descended to them, provided that they were her only heirs; and, if she had not, such estate came to them as her general heirs, under the terms of the Birney deed. We are of the opinion that it was competent to create an estate in fee in expectancy, and had the habendum read, “To said Lorainie Spicer, to the children of her body begotten by the said Ezekiel, to her, and her heirs, executors, and assigns,” we should have no doubt that the grantor had intended to convey to her the estate that would have otherwise reverted to him at the expiration of the life estates. This estate might be contingent under 2 How. Stat. § 5541; and it would be alienable and descendible under 2 How. Stat. § 5551. But the language was not that, and we must either hold that the intent failed, so far as she was concerned, and that the estate went to her heirs, or that the obvious intent was to convey to her, her heirs, executors, etc. This latter construction is supported by the fact that the deed professed to give to her the power to assign,—coupled with the requirement that Ezekiel Spicer should join, it is true, but dependent upon title. If she had no title, she would have nothing to assign, nor would Spicer. Upon the other hand, it may be said that, if she had title, Spicer certainly had nothing to assign, and it was therefore superfluous to mention him. This is perhaps true, though we should not overlook the fact that the married woman’s act was not in force at the time that the Birney deed was made, and that unSer the common law the husband, by virtue of the marriage, acquired a life interest in the property; and, furthermore, she was incapacitated by coverture, and could not convey her real estate by deed, except as she joined her husband in such conveyance. Again, 2 How. Stat. § 5770, which was in force at the time this deed was executed, made a radical innovation on the husband’s rights as tenant by curtesy. It does not appear whether Lorainie had children by a former husband, but, if she had, it was possible that she might at her death leave issue who would take the estate discharged of the estate by the curtesy, thus excluding Ezekiel, whose money actually paid for the property. These reflections suggest possible reasons for a supposed necessity for the mention of Ezekiel. It is true that we need not concern ourselves with these, for they do not strengthen the plaintiffs’ claim that the children took an estate in fee by way of remainder. To so hold, we must construe the deed as reading, “to the children of her body and their heirs,” and we would be obliged also to hold that this did not constitute Lorainie a tenant in tail. In our opinion, it was the obvious intent of the grantor to give to Lorainie Spicer the fee of this estate, subject to a contingent life estate in a certain class of her children. To more certainly accomplish this, and avoid the statute docking entails, the conveyancer sought to create two successive life estates, with an estate in fee in expectancy. In the ordinary course of events, it would be expected to go to Lorainie’s general heirs, if she did not convey the expectancy in fee; but, in case of her living after possibility of issue (by Ezekiel) extinct, this estate would merge with her life estate still existing, and give her the fee in possession. In this connection we do not overlook some provisions of the statute which might be of interest, notably sections 5533 and 5546, but they are unimportant under the view we take of the case.
It follows that the plaintiffs, or some of them, are own •ers of a life estate in these premises, while the defendants own a remainder in fee in expectancy.
The judgment must be reversed, and the plaintiffs allowed a new trial. Ordered accordingly.
The other Justices concurred. | [
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] |
Moore, J.
The relator is a domestic corporation organized under Act No. 187 of the Public Acts of 1887, as amended by Act No. 58 of the Public Acts of 1895. It has recently amended its original articles of incorporation, and has asked the attorney general to approve of the articles of association as amended, so that they may be approved by and filed with the insurance commissioner of the State. The attorney general has declined to approve of the amended articles of association, upon the' ground that they do not comply with the provisions of the law under which the relator is incorporated. This is a proceeding to compel the attorney general to approve of the amended articles of association. The amended articles contemplate the issuance of:
First. Whole life policies,—that is, policies issued for the life of the insured, upon which premiums are paid quarterly, semi-annually, or annually during life,—which policies are payable only in case of death.
Second. Term insurance,—that is, insurance for five, ten, fifteen, or twenty years, during which term the insured pays stated premiums; the insurance payable only in case of death.
Third. Advance payment insurance,—that is, policies upon which the insured pays a premium for a given number of years, and then ceases to pay; the insurance payable oniy in case of death.
Fourth. Insurance upon the joint lives of two or more persons.
It is the contention of the attorney general that the law does not authorize any of these forms of insurance, and that the issuance of certificates containing such provisions is contrary to pqblic policy; that it is not the purpose of the act to provide for the accumulation of a surplus fund in associations of this character, and that the law does not provide any safeguard for its management when it is accumulated.
Section 1 of the act of 1887 provides who may become a body corporate for the purpose of carrying on the business of insuring the lives of its members. Subdivision 4 of section 3 provides:
“In what manner and. amount assessments, premiums, or payments are to be required from the members, the purposes and objects to which the moneys so realized are to be appropriated, and the names and objects of each fund into which any of such money shall be paid.”
Section 11 of Act No. 58, Pub. Acts 1895, provides:
“That any such corporation may provide in its policy for the payment, at stated periods, of premiums or assessments for the purpose of accumulating and maintaining, and may accumulate and maintain, a mortuary, an emergency, and a reserve fund, and may provide in such policy that the members may receive the benefit of any surplus moneys not needed by such corporation. Nothing contained in this act shall be construed to permit any contract promising any fixed cash payment to any certificate or policy holder, excepting in the contingency of death or total permanent physical disability.”
A consideration of these provisions indicates very clearly that the legislature intended to provide for the accumulation and maintenance of a mortuary fund, of an emergency fund, and a reserve fund. The legislature also provided for the payment, not only of assessments, but of premiums and payments by the members at stated times to be fixed and determined by the articles of association. The legislature also provided by this legislation for the insurance of the lives of the members of the corporations which were incorporated under its provisions, and, if proper rules and safeguards are provided by the articles of association, we can see no good reason why a policy might not be issued upon joint lives as well as to members severally. There is certainly no affirmative restriction to the issuance of such policies.
It is urged that, if the several funds assume large proportions, no proper safeguards have been placed about them. In this connection it ought not to be forgotten that every holder of a certificate of insurance has a voice in the conduct of the business, and the policy holders may direct and control the business of the corporation, if they will. Should the legislation prove to be inadequate to protect the policy holders, the legislature can easily remedy it by creating additional safeguards. We. think the amended articles of association come within the provisions of the law, and should be approved.
The writ will issue as prayed.
The other Justices concurred. | [
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Moore, J.
This is an action of slander brought because of certain words spoken by defendant. The declaration contains the usual formal allegations in a declaration in slander, and has three counts. The first count charges defendant with declaring to plaintiff: “You are a damn thief; you are a damn robber. ” The second count charges defendant-with declaring of the plaintiff: “My professional driver did me up for over three hundred dollars.” The third count charges defendant with stating concerning plaintiff: “He robbed and beat me out of three or four hundred dollars.” The plea is the general issue, with notice that defendant would justify the speaking of the words, etc., and prove they were true; denying that plaintiff was a man of good character in his particular profession, as alleged in his declaration, and setting up specific acts of misconduct of plaintiff, committed by plaintiff in his business relations with his employers. The case was tried before a jury, who rendered a verdict for defendant. Plaintiff appeals.
The record shows that plaintiff’s business was training and driving horses; that in February, 1895, he entered into the employment of defendant, to train and take care of defendant’s mare called “Laundry Girl,” and was to receive pay for his work by the week, and that this arrangement continued up to August 10, 1895, when plaintiff and defendant settled up in full and a new agreement was made. Defendant wanted to sell the mare, and sent her away from Alpena for the purpose of selling her. Plaintiff was to train and drive her, and receive for his work $12 per weejr and expenses. The defendant was at the races at Port Huron and Detroit, and attended to the entering of the mare in races and drew her winnings. Defendant tried to sell the mare after the Detroit races, which occurred September 3, 1895. Plaintiff returned to the city of Alpena in October, 1895. He went to defendant’s office, and defendant, in his private office, declared the slanderous words set forth in count 1 of the declaration, and at other times in said city declared and published the words alleged in the other counts of the declaration. The trouble which resulted in plaintiff’s bringing this action grew out of the refusal of plaintiff to turn over to defendant the winnings of “Laundry Girl” won at races at several places after the 3d day of September, 1895. „ It was the claim of the plaintiff that defendant had tired of his experience as the owner of the mare, and gave her to plaintiff. The defendant denies this, and claims that plaintiff was to look after the mare, enter her in the races, sell her if he could, and keep track of his receipts and expenditures, and was to account to defendant for the proceeds. It is further claimed that plaintiff received winnings from the mare; that, when he was called upon to account for what was due defendant, he then claimed to own the mare, and refused to turn over her winnings or the amount for which she was sold; and that because of this the words were spoken, and that they were justified by the action of the plaintiff.
Defendant was allowed to show what the general reputation of the plaintiff had been in reference to honor and integrity in turning over moneys that came to him as earnings of horses he had driven. This is assigned as error. We think the testimony was competent as bearing upon the question of damages. It was not competent as bearing upon the question of justification, and the jury should have been so instructed, as requested by the plaintiff. Fowler v. Gilbert, 38 Mich. 296.
The court was requested to charge the jury that the burden was upon the defendant to prove the truth of his justification. This the court refused to do, and charged the jury two or three times over that the burden of proof was upon the plaintiff, not only to establish the speaking and uttering of the words alleged to be slanderous, but that the words, when uttered, were false. It is said by plaintiff that, to support a plea of justification, defendant must produce a record conviction of the crime, or else show plaintiff’s guilt by evidence sufficient to convict him if he were on trial for such crime. We do not think this contention, or the charge of the court, is a correct statement of the law. When the plaintiff has shown the uttering of the words that are slanderous, in the presence of other persons than the plaintiff and defendant, he has established his cause. The burden is then upon the defendant to prove his justification. If he establishes his justification by a preponderance of evidence, it will be sufficient. Peoples v. Evening News, 51 Mich. 12; Bell v. McGinness, 40 Ohio St. 204 (48 Am. Rep. 673), and cases there cited.
The other assignments of error do not require discussion. For the errors pointed out the judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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Hooker, J.
In a proceeding to extend a city street across the appellant’s railroad in the city of Detroit, it was claimed on behalf of the defendant that the opening of said street would necessitate a flagman and gates. Counsel for the city argued, in substance, that the jury were authorized to act upon their opinions based upon their view of the premises, in the exclusion of the testimony, or, at all events, that they must be “satisfied beyond reasonable doubt that there is an actual present necessity for gates at the crossing.” The court instructed the jury that, if they “believed from the testimony that a gateman or flagman was necessary, the company should be awarded a sum which, at 6 per cent, interest, would produce an amount adequate to the payment of such expenses.” It is evident that the jury did not award compensation for this item, and the defendant asks a reversal of the case upon this ground. The undisputed testimony shows that a flagman was necessary at the place, and that a sum equal to the interest upon $6,000, at 6 per cent., would be required to pay the expense thereof. The court refused to grant a motion for new trial. The jury viewed the premises.
The question for us to consider is whether the jury were authorized to disregard the undisputed opinion evidence, and the undisputed testimony as to the situation, viz.: That there were three tracks, upon which 42 regular trains, besides special trains, run daily; that the view of the track is hidden by houses and a high fence in close proximity to the track; that it is a thickly-settled and populous locality; and that, at two other crossings of the streets next adjoining this one, gates and flagmen have been kept for a long time. Counsel for the city contends, in effect, that the conclusions of the jury should not be disturbed, inasmuch as the court instructed them that they must award the sum named “if they believed a gateway necessary.” There was nothing that could justify such belief unless it was their view of the premises, and counsel for the city based his opposition to this item of damage on nothing else. Without saying that in no case would a view alone justify a jury in denying an item of damage when there was some evidence in support of it, we think that it does not in this case. The evidence is quite conclusive that public safety would require precautions for the safety of the public at this point, and the court might safely have told the jury so. That the view alone is not to be acted upon by the jury is settled in the case of City of Grand Rapids v. Perkins, 78 Mich. 93.
We think the verdict and judgment of confirmation are erroneous, and they are therefore set aside, and the cause remanded for a new trial.
The other Justices concurred. | [
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] |
Moore, J.
This is a proceeding commenced by the relator to compel the respondent to approve of the form of a policy containing, among others, upon certain conditions, provisions to—
First, issue a paid-up policy for such sum as the reserve will buy.
Second, pay one-half the reserve applicable for a surrender of the policy.
Third, pay one-half the face of the policy in case of total permanent disability.
Fourth, loan to the policy holder one-half of the reserve, to enable him to pay his premium. It is the contention of the respondent that these provisions should not be allowed in the policy, for two reasons: First, because not authorized by the law of its incorporation; second, because not authorized by its articles of association.
The relator company was organized under the provisions of Act No. 187, Pub. Acts 1887, as amended by Act No. 58, Pub. Acts 1895. The third subdivision of section 3 of said Act No. 187 requires the articles of association to state “the object of the incorporation, the number of classes or divisions of members therein, and the object or purpose of such classification or division, all of which shall be definitely and correctly stated.” The articles of association provide:
“Art. 3. The object of this incorporation is to insure the lives of its members, and thereby to secure to their beneficiaries a certain sum of money, payable at death; but only persons having insurable interest in the life insured shall be beneficiaries. There shall be only one class or division of members in this corporation, and each member shall be insured for a fixed sum, payable at death. Every applicant shall make and sign a written application for insurance, and shall undergo a careful physical examination by a physician of good repute, who shall make a detailed certificate thereof, and attach the same to such application, showing’ that the applicant is in good health, and recommending the issuing of the certificate or policy applied for.”
Article 4 reads as follows:
“A regular fixed premium shall be required of each member, the amount of which shall be the estimated cost of the insurance, and shall be proportionate to the age of the member at the time the insurance is effected. No other premiums, payments, or assessments shall be required of any member unless the same is necessary to meet the obligations of the company, in which case assessments shall be made on the members in proportion to their regular premiums per thousand, for a sufficient sum to pay such obligations. The purposes and objects for which the moneys realized from the members are to be appropriated are to the payment of death losses and the expenses of the corporation. There shall be two kinds of funds into which the money received by the corporation shall fee paid. One fund shall be known, together with its accumulations, as the ‘Reserve,’ and shall be used for the payment of death losses. The other fund shall be known as the ‘General Fund,’ into which all other moneys of the company shall be put, and from which may be used moneys for the payment of death losses in cases of excessive mortality, and for the payment of all other disbursements and expenses of the company.”
It will be noticed that there is no provision for the payment of the policies except upon the death of the insured. We do not think the articles of association authorize the issuance of policies payable upon the occurrence of total disability. It is not necessary to discuss the other question raised by the respondent.
The application is denied.
The other Justices concurred. | [
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Montgomery, J.
The sole question which need be discussed in this case is whether, under the tax law of 1893, a tax properly assessed against the executor of an estate may be recovered in a personal action against him, it appearing that he has distributed the estate after the assessment and before the action brought. The statute (Act No. 206, Pub. Acts 1893, § 14, subd. 5) provides that—
“The personal property belonging to the estates of deceased persons, in the hands of executors or administrators, shall be assessed to them in the township and in the school district where the deceased last dwelt, until they shall give notice that the estate has been distributed to the parties interested.”
Section 47 provides that—
“The township treasurer, if otherwise unable to collect a tax on personal property, may sue the person to whom it is assessed, in the name of the township, village, or city, and garnishee any debtor or debtors of such person. * * * Provided, that when any person having possession of the personal property of any other person or corporation shall be assessed for such property, and shall be obliged to pay the taxes thereon, such person so paying the taxes may recover, of the person for whose benefit the taxes were paid, the money so paid, with the interest thereon, in an action of assumpsit.”
The plain provisions of these sections leave little room for construction. Manifestly, the executor is “the person to whom the tax is assessed,” within the meaning of this section. Not only is this true, but there is no other person to whom the property can be assessed, in a case like the present, where no notice has been given that the estate has been .distributed to the parties interested. If, then, the tax cannot be recovered of the executor or administrator, it cannot be recovered at all; and such a legislative purpose is not to be inferred. It is idle to suggest that the township must resort to the method of filing a claim against the estate. First, this is not such a claim as constitutes a debt against the estate, within the statute requiring creditors to exhibit their claims before commissioners. See Crosw. Ex’rs & Adm’rs, § 428; Schouler, Ex’rs & Adm’rs, § 318. An equally conclusive answer to this suggestion is that the tax was not spread, in this case, until after the estate was distributed. The only way in which this statute can be made effective is to so construe it that the executor, when closing the estate, must provide for current taxes, or, being required to pay the taxes on the estate after distribution, must resort to the distributees for reimbursement.
The judgment of the court below, which accorded with these views, is affirmed.
The other Justices concurred. | [
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Grant, J.
The respondent was convicted of murder in the second degree.
1. Several assignments of error are directed to the admission and rejection of testimony. They were fully argued in the briefs of counsel and orally. We have carefully examined them, and find no error in the rulings of the court in this regard. A discussion of them would not be of value as a precedent or as a guide in future cases. There is no good reason for writing and publishing opinions which can be of no valuable aid in the trial of other cases.
A Two witnesses were called by the prosecution in rebuttal. Their names were not indorsed upon the information. An order had been entered by the court excluding all the' witnesses from the court room during the trial. These two witnesses had been in the room during a part of the time while the trial was in progress. The prosecuting attorney did not anticipate or know that they would be witnesses. There was no error in the admission of this testimony.
3. Complaint is made that the court did not correctly state the rule of law as to self-defense. The court did instruct the jury as follows:
“If you find from the evidence in this case that Piper killed the deceased in self-defense, honestly believing his own life to be in jeopardy, or that he was in imminent danger of receiving serious bodily injury at the hands of the deceased, and that he used no more force than was necessary to protect himself, then it would be justifiable homicide; and under such circumstances, of course, the respondent would not be guilty.”
This is a correct statement of the law. The respondent’s counsel requested the following charge:
“I charge you, as a matter of law, that if you find, as a matter of fact, that the respondent, John Piper, actually believed that William Doston, the deceased, made a motion to draw his revolver from his hip pocket, with the intention of taking the life of John Piper, or to do him great bodily harm, by shooting him, the respondent, John Piper, had a lawful right to kill his assailant, to save his own life or prevent the intended bodily harm; and if you believe, as a matter of fact, that the respondent actually believed his life was in danger, and fired the fatal shot to save his own life, it is your duty to render a verdict of not guilty.”
This was refused. Ifwas sufficiently covered by that portion of the oral charge above given.
At the request of the prosecution, the court also gave the following charge:
“Before a person can avail himself of the defense that he used a weapon in the defense of his life, he must satisfy the jury that that defense was necessary, that he did all he could to avoid it, and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger. Ill will of deceased, and former quarrels and affrays, could have nothing whatever to do with respondent’s peril, however hostile deceased may have been, and however many quarrels and affrays the parties may have had, if deceased, by his acts and cries, did not threaten peril to respondent. He would not be authorized by law to infer peril on account of ill will or prior contests.”
He further gave the following request of respondent:
“If you find, as a matter of fact, that the deceased, Doston, had the general reputation of a quarrelsome and dangerous man, and, further, that Doston was in the habit of carrying a revolver before and after he was a deputy sheriff, and that he had at one time made a brutal attack upon the respondent, and made threats against him, and that these threats came to the knowledge of the respondent, I charge you that, as a matter of law, you have a right to consider this testimony as bearing upon the question of whether they had an influence upon the mind of the respondent, and created fear in his mind as to the danger of receiving serious bodily injury, and whether he acted honestly and in good faith that he must fire the shot to save his own life, or to save himself from further great bodily harm.”
To this request the court added:
“You must.be satisfied, however, gentlemen, that the deceased had assailed him, or was about to assail him, and the respondent shot to protect himself.”
We think that these requests were more favorable to the respondent than he was entitled to under the facts of this case. It is very questionable whether the claim of self-defense should have been submitted to the jury at all. The affray in which the respondent had been beaten by the deceased and his brother occurred about three years before. The matter was amicably settled, the deceased and his brother paying the respondent damages for the assault, after which the respondent was employed by them in their saloon, and was so employed at the time he killed the deceased. The deceased, the respondent, and some others had been together during the night previous to the killing of the deceased. Neither had any weapons at the time the dispute began. The parties came into the saloon of the deceased and his brother about 8 o’clock in the morning. The deceased charged Piper with having taken a diamond pin from one Aldrich, who was with them during the night. Respondent denied having taken the pin, and, upon finding that the deceased was evidently in earnest in charging him with having taken it, he said, “If you say that I took that pin, I will kill you.” He then threw down his coat, went out of the room into the room where there was a cigar stand, passed around the cigar stand, went behind the bar, got his revolver, went back into the saloon, and flourished it at the deceased, striking his hand and knocking his cigar out of it. The deceased persisted in saying that he took the pin, and, while he was in the act of stooping to pick up the cigar, the respondent fired two or three shots at him, from the effects of which he died the same day. The respondent admitted getting the revolver and going back into the room. He claims that when he fired he thought that the deceased was making a motion to take a revolver from his pocket. When the respondent went out of the room, he was within three steps of the front door leading to the street, and could have gone out. He deliberately got his revolver and returned for the evident purpose of compelling the deceased to withdraw the charge. There was no occasion for arming himself with a deadly weapon. His counsel, in the oral argument, stated that he did not expect, even if a ,new trial were granted, to acquit the respondent of any crime. This was an admission that he was guilty of manslaughter. While this admission is not binding upon the respondent, it shows that'even in the opinion of his. counsel the claim of self-defense cannot be maintained, and in this opinion we concur. Where one kills another in self-defense, he is not guilty of any crime. The deceased had made no threat, and had shown no disposition to provoke an affray. The law does not recognize the right of one to assault another because he had accused him of a crime. Under his own testimony, the respondent was rightly convicted.
The conviction is affirmed.
The other Justices concurred. | [
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Long, C. J.
The defendant, on October 10, 1891, owned and operated a horse railway in the city of Detroit. The plaintiff went upon one of its cars on that date, for the purpose of being transported as a passenger. It was what is called a “summer car,” open on both sides, with a step or running board, consisting of one board, extending the length of the car. The plaintiff, being unable to secure a seat, stood on the running board, and claims that the conductor in charge of the car negligently pushed him off, causing the injury complained of. The defendant claims that the plaintiff was intoxicated, and either jumped or fell off. On the trial, before a jury, the defendant had verdict in its favor. Plaintiff claims that he was not intoxicated at the time of the injury, but that, even if he were, he had a right to ride standing on the running board, and that if he was guilty of no negligence, and was pushed off the car by the negligent conduct of the conductor, he was entitled to recover. Complaint is made of the admission of certain evidence, and of the refusal of the court to charge certain requests, and also of some portions of the charge as given.
It appeared upon the trial that the plaintiff had worked for the Union Depot Elevator Company in Detroit for seven years continuously,- and that he had severed his connection with that company between two and three years before the injury. The foreman of the elevator company was called as a witness by the defendant, and was asked why the plaintiff was discharged by that company, and, under objection, was permitted to testify that it was because of his intemperance. The superintendent of the elevator company was called as a witness by the defendant, and was permitted to testify, under objection, that the reputation of the plaintiff among the people in and about the elevator was that he was a drinking man. The defendant also was permitted to show that the plaintiff was under the influence of liquor at different times a year prior to the accident. One of the police officers was called,, and permitted to testify that he knew the plaintiff when he kept a saloon; that at one time there was trouble at the saloon, and he. went in and found the plaintiff and others pretty well intoxicated. Another police officer was called, and testified that in 1891 he had seen the plaintiff under the influence of liquor. He was then asked, “ Do you know what sort of a place he had?” and answered that he considered it rather tough. This testimony was objected to by counsel for the plaintiff. Counsel for defendant insist that this testimony was competent when the plaintiff’s story and demand are taken into consideration; that his story was that the conductor treated him in a negligent manner, whereby he was caused to fall from the running board of the car; that he did not do anything in whole or in part to cause the accident; and that he was entitled to recover from the defendant, not only for the direct physical injury he received, but also for the pain and suffering, loss of time, and for loss of work which he would have received had he not been injured; that the plaintiff was called as a witness on his own behalf, and therefore put himself in the way of an attack, not only upon his honesty as a party claimant, but also upon his credibility as a witness, both generally and in respect of his version of the occurrence resulting in his injury. Counsel contend, further, that the plaintiff’s own counsel put his sobriety'in issue, and that defendant’s counsel went into the matter on cross-examination.
We think it was proper examination to make inquiry as to the plaintiff’s condition"at the time of the injury complained of, and that the question was open to de fendant’s inquiry as to whether the plaintiff was or was not intoxicated at the time of the injury, and that the defendant had a right to call witnesses to show that the plaintiff was intoxicated at that time. The defendant’s conductor denied that he pushed the plaintiff off, or was in any way instrumental in his falling off the car. The defendant claimed that the plaintiff fell off by reason of his intoxication; and this was a proper subject of inquiry.
But the court was in error in permitting the defendant to introduce testimony showing that two or three or more years prior to that time the plaintiff was in the habit of becoming intoxicated. This evidence was undoubtedly prejudicial to the plaintiff’s case. It was proper matter of cross-examination of plaintiff to inquire what his past life had been, and what company he had kept in the past, as he was before the jury as a witness, and it was proper to inquire into his antecedents, as they had a direct bearing upon his credibility as a witness. The defendant, however, would be bound by his answers, as there is no rule which would permit the defendant to introduce direct testimony bearing upon those questions, thus raising a collateral issue. The general reputation of the plaintiff for truth and veracity was open to inquiry, but an attack upon his credibility, which would raise a collateral issue, was not open to the defense. In Williams v. Edmunds, 75 Mich. 92, it was held that it was proper to show whether the servant who was alleged to have committed the injury was or was not sober at the time the injury was committed, it being a part of the res gestee, but that it was not proper to show his intoxication at other times, as it was raising a collateral issue. In Fahey v. Crotty, 63 Mich. 383 (6 Am. St. Rep. 305), it was held that in a civil action the reputation of the plaintiff was not in issue. See, also. Pokriefka v. Mackurat, 91 Mich. 399; Klein v. Bayer, 81 Mich. 234; Culley v. Walkeen, 80 Mich. 443. It is apparent, therefore, that the court was in error in permitting the testimony showing the reputation of plaintiff as a drinking man prior to the time of the injury, as well as in permitting the defendant to show by witnesses called by it the character of the hotel which he kept. As we have said, these were matters proper for cross-examination, as bearing upon the plaintiff’s character and credibility as a witness, but they were not open to other proofs, as such issues are collateral and entirely foreign to the subjects of inquiry in the suit.
The court charged the jury:
“If you find that the time he was upon this place he was intoxicated, then he could not recover in this case, because in the case of an intoxicated man the company was not expected, and the law would not require of this company that it should guard an intoxicated man against injury, standing in the place he was standing.”
This charge was erroneous. It was asserted by the plaintiff that he was pushed off or thrown off by defendant’s conductor, and the fact that he was intoxicated would not give the conductor the right to push him off. The question of his intoxication was a matter to be taken into consideration by the jury in determining whether or not the plaintiff was in the exercise of due care in standing upon the running board while he was in that intoxicated condition; but his condition would be no excuse to the company if its conductor negligently and wrongfully pushed him off. In Thomp. Neg. p. 1174,it is said: “Intoxication on the part of the plaintiff at the time of the accident does not constitute negligence in law, warranting a nonsuit or a peremptory instruction for the defendant, but is a circumstance to go to the jury on the question of contributory negligence.” This seems to be the general rule. Stuart v. Machias Port, 48 Me. 477; Alger v. City of Lowell, 3 Allen, 402.
Defendant’s conductor testified that the plaintiff was intoxicated while standing on the running board. It was therefore his duty, and he was required, to exercise care in passing him upon that running board. 4 Am. & Eng. Enc. Law, 79, note 5, and cases there cited.
Some question is raised in reference to the charge of the court as to the preponderance of evidence; but, upon an examination of the whole charge, we are satisfied that that question was fairly submitted to the jury, or, at least, that the plaintiff’s rights were not prejudiced .by the charge.
For the reasons stated, the judgment will be reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Long, C. J.
The plaintiff commenced the present suit in the circuit court for the county of Bay, filing a declaration therein upon all the common counts in assumpsit, with the following bill of particulars annexed:
Bay City, Mich., Oct. 35, 1895.
The Jennison Hardware Co.
Sold to John Godkin.
1895.
June 37. 6 No. 5 dies for park swage, 75------------ $4 50
July 19. 3 53 ft. x 10 x Ga. 14 band saws, $183...$864
Less 50-10 per cent____________ —........ 168 80
Boxing saws------------------------------ 1 35
Prepaid express ........................ 11 45
$181 00
A copy of this account, together with an affidavit that the same was a correct account of the claim of plaintiff against the defendant over and above all legal set-offs, was served upon the defendant. To this declaration the defendant interposed a duly-verified plea in abatement, which recited that—
“Before the filing of the declaration in this suit, to wit, on the 10th day of October in the year 1895, this defendant commenced a suit against the above-named plaintiff, in justice’s court, before Alfred M. King, a justice of the peace in and for Bay City, in the county of Bay and State of Michigan, and this defendant, in that suit, which is an action in assumpsit, has declared against the defendant therein, being the plaintiff in this suit, in a cause of action the determination of which involves, and which suit will adjudicate, the cause of action as is set forth in the plaintiff’s declaration in this suit, by means of which there is in said justice’s court an action of assumpsit pending, in which and whereby the same cause of action will be litigated and adjudicated as in this suit; and this defendant further says that the parties in this and the said former suit are the same, and not other or different parties, and that said former suit, so brought and prosecuted, is still pending in the said court; and this the said defendant is ready to verify. Wherefore he prays judgment,” etc.
The plaintiff in this suit joined issue upon said plea by filing a replication thereto. The issue thus framed on the plea in abatement came on to be heard before the court without a jury, and, after hearing the evidence therein, the court found the said plea to be true, and that a determination of said suit involved and would adjudicate the cause of action set forth in the plaintiff’s declaration in this suit, except the claim of plaintiff in this suit on account of the item of goods sold at $4.50. The court further found that the action in justice’s court had been determined in favor of the plaintiff in that suit, and had been appealed by the defendant in that suit to the circuit court, wherein and whereby the same cause of action would be litigated in that suit as would be litigated and adjudicated in this suit, and that the parties in this suit are the same as in the former suit. The pleadings in the former suit are set out in the findings. In the declaration in that suit it is alleged that the defendant sold to the plaintiff a certain band saw, at and for the price of $92.75; that it was a part of the agreement with the plaintiff, in the sale of the band saw, that it should be 53 feet in length by 10 inches in width, and should be of even thickness, and of the thickness of 14 gauge, and suitable for, and of the quality and description to do, the work required of such band saws; that, after the purchase, the plaintiff received it from the defendant at Bay City, and shipped it to his mill in Chippewa county, paying for boxing, freight, and teaming the sum of $7.55; that the plaintiff put the same into his mill, and had proceeded to operate it in the proper manner, when he was compelled to take it down by reason of defects found therein. These defects are stated to be that it was thicker than agreed; was a 13 gauge, instead of 14; was of uneven thickness, and would not do the work that could be done with a 14 gauge. It is alleged that, by reason of its thickness and unevenness, it cracked in working, became useless, and plaintiff was compelled to shut down his mill, and lost the use of it for several days, by reason of such defects; that the plaintiff afterwards shipped said saw to Bay City, and tendered it to defendant, who refused to accept the same; and that by reason of the foregoing facts, and the breach of the conditions of the sale, he lost the price of said saw (which in this action he seeks to recover), and the sum of $7.55, incurred in taking the saw to his mill, and the sum of $12, in taking it from his mill to Bay City, and the sum of $15 in repairing said saw. A second count was added to the declaration, in which damages were claimed for the loss of time the mill was kept idle, and for the loss of time of men employed about the mill, and which also sets up an alleged offer to return said saw to defendant, who refused to receive the same, to the plaintiff’s dam age of $290. An amendment to the declaration was also made, alleging the loss of sawing 420,000 feet of lumber in the season of 1894; also, alleging that when the said plaintiff discovered the condition of said saw, and its defects, he notified defendant thereof, and that, upon defendant’s being advised that the saw was 13 gauge, instead of 14, the defendant refused to furnish the 14 gauge, by reason of which fact the plaintiff was compelled to and did order two additional saws, and was compelled to and did operate said saws at a disadvantage. To this declaration the defendant orally pleaded the general issue. Upon this finding the court below held, as matter of law, that the pendency of this former suit did not abate the present suit, and gave the defendant in this suit five days to plead to the merits. Such a plea was filed, and a notice was attached thereto that the defendant did not buy or accept or receive the saws described in the bill of particulars in this case; that said saws were worthless and of no value, and that prior to the commencement of this suit the defendant offered to return said saws to the plaintiff, and still offers to return said saws, and holds them for plaintiff; that the items of $1.25 and $11.45 in said bill of particulars are for boxing and freight payments on the same saws in said bill of particulars described. There was verdict and judgment for the plaintiff of $188.35.
The errors assigned, upon which the defendant' in the present suit relies, are:
1. That the court erred in finding and determining, as matter of law, that the pendency of the former suit referred to in the findings of fact and law was not a bar to the further progress of this suit, and did not abate said cause in the court below.
2. That the court erred in entering an order or judgment overruling the defendant’s plea in abatement.
3. That the court erred in entering final judgment in favor of the plaintiff.
The plaintiff’s contention is:
1. That the court below entered no final judgment upon the plea in abatement; that the order made did not finally dispose of the case, and is not reviewable by writ of error.
2. That no exceptions were taken to the findings of the court, either upon the facts or law, by the defendant, and that, therefore, the finding of law is not reviewable in this court.
3: That the findings of fact show that the matters involved in this and in the former suit were not the same; that the pleadings in the former suit are set out in the findings; that the first count is based upon the purchase by Godkin of a band saw in 1894, and that under that count, as amended, Godkin claimed as follows: Expense in taking the saw to the mill, $7.55; expense in taking it from the mill to Bay City, $12; repairing saw, $15; loss of sawing 420,000 feet of lumber (amount not stated); that the second count is based upon a breach of warranty with respect to two saws purchased by Godkin in July, 1895, and under this count his claim is: Freight and teaming on saws to mill, $10; putting them up and attempting to work them, $10; loss of time of mill, $50; lost time of men employed in mill, $50; expense of returning saws to Bay City, $12; loss and damages in attempting to operate saws (amount not stated); that, in the ad damnum clause in the declaration, damages in the sum of $290 were claimed. It is further insisted that it was not possible, under the pleadings in the former suit, for the Jennison Hardware Company, the defendant therein, to have recovered judgment for its claim as set forth in the declaration and copy of account in this case; that even if the claim might have been interposed as a defense to the former suit, by way of set-off, if due notice of set-off had been given under the plea of the general issue, it is certain that, under the plea of the general issue alone, the right of the Jennison Hardware Company to recover judgment upon its claim was not involved, and judgment in that case would not determine the right of the Jennison Hardware Company to recover the amount of its claim, and therefore would not be a bar to this suit.
4. That the Jennison Hardware Company was not bound to offset its claim against that made by Godkin in the first case.
We may pass the first, second, and third points made by counsel for the plaintiff, as we are satisfied that his fourth point is well taken. The Jennison Hardware Company was not bound to offset its claim against that made by Godkin in the first suit, and it appears that it was not so used. The Jennison Hardware Company pleaded the general issue only, and there is nothing in the record indicating that it attempted to prove any set-off. The general rule is that matters of set-off or counterclaim, which a party may set up or not, are not regarded as included in the definition of a defense to an action. If the matter of set-off or counterclaim is presented and passed upon in a suit, it is barred by the judgment; if not, the defendant may make it the subject of a separate and distinct action. 1 Herm. Estop. & Res Jud. § 266; Huntoon v. Russell, 41 Mich. 316; Mimnaugh v. Partlin, 67 Mich. 391; Seventh-Day Adventist Publishing Ass’n, v. Fisher, 95 Mich. 274. In the last case it was said:
“No set-off was pleaded in that case [referring to another suit which had been litigated between the same parties], but the association denied any liability, and rested upon that defense. In the present case the circuit judge finds as follows: ‘ None of the items involved in this claim were before the court by evidence; nor were the same, or either of them, considered, allowed, applied, or adjudicated on said trial.’ It is distinctly returned that the present bill of exceptions does not contain all the evidence, and also that there was evidence showing that none of the items claimed for in this action were included in the former case referred to. This finding is therefore conclusive, unless it be held, as a matter of law, that, through its failure to plead set-off, the plaintiff is concluded from afterwards bringing suit upon its counterclaim. Such is not the law,”—citing Huntoon v. Russell, supra, and other cases.
It was further said:
“The authorities cited by defendant’s counsel are cases in which the counterclaim was set up by the defendant, and was within the issue tried.”
We are therefore satisfied that the court below was not in error in holding, as matter of law, that the commence ment of the suit' by Godkin, and its trial in the justice’s court, was not a bar to thé plaintiff’s action in the present suit.
The judgment, therefore, will be affirmed.
The other Justices concurred. | [
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] |
Moore, J.
The plaintiff sued the defendant to recover for the loss of a hand, which was cut off by coming in contact with a buzz-saw. The case was tried by a jury, who rendered a verdict in favor of plaintiff. Defendant appeals.
When the plaintiff was insured by the defendant, be was cashier in a bank. Plaintiff testified that be wanted a cabinet for use in the bank, and went to a planing mill to have some cherry boards sawed off with which to make the cabinet; that be told Mr. Bloom, an. employé, what be wanted; that the employé started the cut-off saw, and cut off some boards for the shelves, and took them to the band saw, to put more work upon them; that, while the employé was doing this, plaintiff saw the ends of the cherry boards on the floor near the cut-off saw, and thought be could use them for bandies to the cabinet, and requested a 14-year-old boy to saw them off for him; that the boy started the saw, but did not saw off the blocks as plaintiff expected him to do; that the plaintiff thought be could do it himself, and that be did saw them off; that, after be bad sawed off the blocks, be stood close up to the table, watching the boy, who was about 20 feet away, piling lumber; that be was simply waiting by the side of the table. Plaintiff further testified that be could not say bow long be bad been waiting, that it may have been one minute, or it may have been five; that there were sawdust and little blocks of wood on the floor; that be stepped on something, and stumbled, and lost bis balance, and threw out bis arms to save himself from falling, when his wrist came in contact with the saw, and his hand was cut off. He further testified that, when he told the proprietor of the mill what he wanted done, he was requested by him to show Mr. Bloom how he wanted the work done, and that he went into the mill for that purpose.
One of the defenses interposed was that the plaintiff cut off his hand purposely. It will, not be necessary to discuss that defense, because the jury have found against the defendant upon that proposition.
The other defenses are that the injury occurred while the insured was doing what was forbidden by the policy. ( Its terms were: "The member is required and agrees to use all due diligence for his personal safety and protection;” that the insurance should not cover “voluntary exposure to unnecessary danger. ”
The policy also contained the following provision:
“ Inasmuch as eligibility to membership in this association is confined by -its charter to persons whose occupations are comprised within the classification commonly known as ‘Preferred Risks’ by casualty companies, a copy of which classification is printed upon the back of this certificate, it is therefore agreed that this certificate shall be wholly void as to all accidents occurring to the insured when engaged in any profession, employment, or exposure not herein rated as a preferred occupation.”
It is the claim of the defendant that the insured “was engaged in a profession, employment, or exposure not rated as a preferred occupation in the policy,” and for that reason cannot recover; and that, as a matter of law, the judge should have so determined, and directed the jury to return a verdict for the defendant,—citing a number of cases in support of that contention, all of which are distinguishable from the case here, except the case of Knapp v. Accident Ass’n, 53 Hun, 84. This case does sustain the contention of appellant, but it is contrary to the great weight of authority. In Nibl. Acc. Ins. & Ben. Soc. § 409, it is said:
“A change of occupation means ’an engaging in another employment as a usual business.’ It does not apply to temporary employments during leisure hours, to acts done outside of one’s usual and ordinary business, or to casual employment in a different business.”
A provision of a-policy limited the liability of the company to a less sum than that named in the policy if the insured should be injured in any occupation or exposure classed as more hazardous than that specified in the policy. It was held that the terms “occupation or exposure classed by this company as more hazardous ” referred to distinct, classified occupations or employments, and that, to bring a case within the provision limiting the liability of the company, the insured must be within one of such classes,—that is, engaged in one of the more hazardous occupations. Miller v. Insurance Co., 39 Minn. 550.
A case involving the same principles which should control the disposition of this case is Stone’s Adm’rs v. Casualty Co., 34 N. J. Law, 371, in which the court said:
“The injuries excluded from the compensations of the policy are described as those that are ‘received in any employment or by any exposure either more hazardous in itself, or classified by the company as more hazardous.’ These terms, literally rendered, require that the assured, to come within their effect, must, at the time of the injury, be in an employment more dangerous than his own.- The language has respect to employments, and not to individual acts. It is true that a certain degree of ambiguity is introduced by the expression ‘other exposure,’ but, looking at the body of the policy, we find these terms used in the sense of the risks arising from a business or occupation. By adhering to the literal signification of the terms employed, these indorsements prefixed to the several classes of employments lose all force as independent stipulations, and serve the simple purpose of graduating such employments for the service of that provision of the policy which prohibits the assured from passing, at his own option, from one business to another. Understood in this viéw, they are properly a part of the classification; but, if they are to be received as containing new terms of the con tract, they are entirely out of place. If the company intended to say to the assured that if he did any act which did not strictly belong to his own occupation, but was embraced more properly in some other business, and if thereby any harm to him accidentally resulted, that in such event he could claim nothing under his policy, it was easy for them to do so in plain language. Such a stipulation would obviously be one of a most important character, and we would expect to find it in the body of the instrument. A qualification of the agreement so restrictive of the rights of the party insured ought not to be admitted unless the terms of this indorsement will bear no other rational interpretation. If the terms used are imperfect or ambiguous, it is the fault of the defendants. It is their contract, and the construction of it must be most strongly against them.”
And it was held the plaintiff was entitled to recover.
The case of Union Mut. Acc. Ass’n v. Frohard, 134 Ill. 228 (23 Am. St. Rep. 664), is an instructive case. The opinion states:
“The principal contention of appellant is that the deceased was killed while engaged temporarily in an act or occupation classed as more hazardous than the one in which he was accepted, and that appellee is therefore entitled to recover only the amount provided for such hazardous risk and occupation. The contention of appellee is that there was no change of occupation within the meaning of the by-laws and certificate of insurance. The 'deceased was a hardware merchant. He did not follow the occupation of a hunter for hire or profit. He was killed while engaged in the act of hunting as a recreation, and it does not appear that he had hunted with a gun on any occasion since the issuance of the policy other than that upon which the accident occurred. The language of the policy is; ‘Any member receiving an injury while engaged, temporarily or otherwise, in an occupation more hazardous than the one in which he was engaged when insured,’ etc. ‘Occupation’ is defined by lexicographers to mean ‘ that which occupies or engages the time or attention; the principal business of one’s life; vocation; employment; calling; trade.’ The classification of hazards in the by-laws is made upon the basis of occupations. Merchants and those following other like vocations are placed in division A; grain measurers and others in division B. * * * The by-laws in question must receive a reasonable construction. It would be unreasonable and absurd to hold that the merchant who' at one time measured a few bushels of grain, at another hung a few rolls of wall paper upon his own premises, at another drove a team of horses in a carriage or wagon, and at still another rowed a skiff for exercise or recreation, became, within the true iñtént and meaning of these by-laws, at these several times, a grain measurer, a paper hanger, a teamster, and a boatman, respectively. The word ‘occupation,’ as found in these by-laws, must be held to' have reference to the vocation, profession, trade, or calling which the assured is engaged in for hire or for profit, and not as precluding him from the performance of acts and duties which are simply incidents connected with the daily life of men in any or all occupations. * * * It ’ is urged, however, that the contract of insurance contains the words, ‘in any act or occupation,’ instead of the mere words, ‘in another occupation,’ found in the by-laws; and that the words, ‘while engaged, temporarily or otherwise, in an act,’ cannot be ignored, but that they have a definite and clear meaning, and must be given legal force and effect. It is to be noted that the words used in the contract are words selected and used by the corporation itself, and are, therefore, to be interpreted most strongly against it; or that, at all events, they are to be construed according to their common and literal meaning in favor of the assured. * * * We have already seen that the classification of hazards made in the by-laws is predicated only upon occupations. There is not in the by-laws or in the record any classification of hazards in respect to acts. In other words, there is no act which is classified as more or less hazardous than another, and no act which is classed as more hazardous than the occupation designated in the certificate of insurance Issued to the deceased. The case, then, does not stand otherwise than it would if the word ‘act’ were not found in the contract.”
See, also, North American, etc., Ins. Co. v. Burroughs, 69 Pa. St. 43 (8 Am. Rep. 212); Tucker v. Mutual Ben. Life Co., 50 Hun, 50.
Upon the feature of the case just discussed, the court, correctly as wé think, charged the jury as follows:
“ It-is provided in the conditions printed in the policy or certificate of membership, among other things, ‘ Said policy shall be wholly void as to all accidents occurring when engaged in any profession, employment, or exposure not rated in the policy as a preferred occupation;’ and it is claimed* by the defendant that plaintiff was so engaged at the time he lost his hand. It is claimed by the plaintiff, however, that he was not- using the saw at all for any purpose at the time he lost his hand, and had not been for some time prior thereto. ■ The burden of proof to show that the plaintiff was using the saw at the time he lost his hand is upon the defendant, and, if you find that the defendant has failed to prove its contention in this regard by a preponderance of evidence, then you will have no further occasion to consider this branch of the case. In considering the question as to whether the plaintiff "was engaged in any profession, employment, or exposure not rated in the policy as a preferred occupation at the time he lost his hand, I charge you that engaging in an occupation on the part of the person insured against injury by accident does not mean a casual engaging such as most men do, or may do, or may resort to during the intervals of time when their usual employment does not engage them, but rather to- engaging in "such employment as a usual business; and, even though you find that the plaintiff incidentally engaged in sawing off blocks from boai’ds at the time he lost his hand, you would not, for that reason, be required to find that he was injured while engaged in a profession, occupation, - or exposure not rated in the policy as a preferred occupation. The language of this condition of the policy must meet'with a reasonable construction at your hands. If the plaintiff was actually engaged in sawing blocks at the time he lost his hand, it will then be a question of fact for you to determine whether this act was one -that pertained incidentally to his regular occupation, or whether it pertained to that more hazardous occupation not classed as preferred, with the burden of proof on this issue upon the defendant. In determining this question you can and should take into consideration whether, under the evidence,’ the plaintiff was engaged, if you find he was engaged, at the time of the injury, in sawing blocks for his own use, or whether he was • engaged in sawing blocks for some one else; and if you find from the evidence and circumstances surrounding the case, as shown to you here in the evidence, that the sawing off of these blocks was for his own use, and if you find that the plaintiff, sawing them off at the time he lost his hand, was incident to .his ordinary occupation, you will be at liberty still to find for the plaintiff. Nearly every man, whatever his occupation, in the ordinary affairs of life, occasionally does an act or thing in connection with his ordinary avocation which might also pertain to some other occupation. For instance, the man insured in this company as a bank cashier might, while engaged in chopping his own firewood, accidentally cut his foot with an ax, and still it would not necessarily follow that he had changed his occupation from a bank cashier to a wood chopper. This chopping his own wood could be an incidént to his occupation as a bank cashier, although it might also be an incident to the occupation of woodchopping. The same rule would hold in regard to sawing off blocks from a board. A man insured as a bank cashier might, for his own use, desire or engage in sawing off blocks from a board, and still it would not necessarily follow that for that reason he had changed his occupation, or was engaged in an act pertaining to a profession, occupation, or exposure not classed in- this policy as a preferred occupation. As I stated above, this is a question of fact for you to decide from all the evidence that has been introduced in the case. Of course, if you do not-find from the evidence that the plaintiff was engaged in the act of sawing when he lost his hand, you will have no occasion to inquire further on this branch of the case. It is claimed by the plaintiff that he had quit sawing a few minutes before the accident. If you find from the evidence that this was the case, then it would be entirely immaterial whether some time before the accident he had been engaged in an act of sawing. That question becomes material only in case you find that he was actually engaged in operating the saw at the time he lost his hand.”
We think the case in principle is like the case of John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 45.
This brings us to a consideration of the question whether, when the insured has shown the injury to be the result of an accident, the burden is then upon the defendant to show, by way of defense, that the accident was within the exceptions named in the certificate of insurance. We think this question must be answered in the affirmative. Freeman v. Insurance Co., 144 Mass. 572. In this case the court cited with approval from Piedmont, etc., Ins. Co. v. Ewing, 92 U. S. 377, as follows:
“In an action upon a policy which contains many provisos and conditions there is a practical wisdom, which courts have recognized, in compelling the insurance company to allege and prove the want of compliance with any particular proviso or condition on which it relies.”
See, also, Nibl. Acc. Ins. & Ben. Soc. § 366, p. 707, and cases there cited; John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 45.
It is urged that plaintiff cannot recover, because he voluntarily exposed himself to unnecessary danger, and his injury was the result of his own negligence. In relation to this defense, the judge charged the jury, after calling their attention to the provisions contained in the certificate of insurance:
“A member of this company must not be negligent; and if he receives injuries through his own carelessness or negligence, or rather contributory negligence, he could not recover under this policy, because he agrees to use all due diligence for his personal safety and protection. In other words, he must be ordinarily diligent in trying to protect himself. He cannot be negligent, and run into danger, and then charge the company, if he does it deliberately. Negligence, in its legal sense, is no more or less than a failure to observe fully that degree of care, precaution, and diligence which the circumstances justly demand whereby an injury is occasioned. It means the doing of something which a person of ordinary care, prudence, and discretion would not do under the particular circumstances, whereby an injury is occasioned. If you find in this case that there was negligence in such a degree as I have mentioned, negligence on the part of the plaintiff as I shall hereafter instruct you, he could not recover. * * * If an injury occurred within either of these exceptions I have read to you, there could be no recovery, because the terms of the policy exclude such injuries. For, if the person is injured under this policy while voluntarily exposing himself to unnecessary danger, it would not be accidental. * * * A condition of the certificate is to the effect that insurance under said policy or certificate shall not extend to or cover accidental injuries caused by the insured voluntarily exposing himself to unnecessary danger; and the defendant claims, under this condition and provision, the plaintiff cannot recover in this case. In order for the defendant to successfully defend under this condition, it must show by a preponderance of the evidence that the plaintiff did voluntarily expose himself to unnecessary danger at the time of the loss of his hand. I charge you, as a matter of law, that he did not voluntarily expose himself to unnecessary danger by going into Beckley & Austin’s planing mill. The mere going into the planing mill could not be such an exposure; and whether, while in there, he exposed himself voluntarily to unnecessary danger is a question of fact for you to determine, and the burden of proof is on the defendant to show that the plaintiff did so expose himself. Upon this question I charge you that the plaintiff had a right to go into the planing mill; and if, while in there, he conducted himself as a man of ordinary prudence and caution would conduct himself under like circumstances, then he cannot be said to have voluntarily exposed himself to unnecessary danger; and the burden of proof is upon the defendant to show that the plaintiff, while in the planing mill, did not conduct himself as a man of ordinary prudence and caution would or should conduct himself. It is claimed in this case by the defendant that the plaintiff purposely and intentionally sawed off his hand. If he intentionally and purposely sawed off his hand, of course he cannot recover in this case. This is, however, entirely a question of fact for you to determine; and I charge you also that, on this proposition, the burden of proof is on the defendant to show that the plaintiff did intentionally and purposely saw off his hand. It is for you to say whether, under the evidence in this case, the defendant has proved that question by a preponderance of the evidence.
“I also instruct you on the part of the defense: The plaintiff must prove by a preponderance of evidence that the injuries for which he seeks to recover were received from external, violent, and accidental means within the provision and outside of the exceptions of the policy upon which this suit is brought. He must satisfy you that he did not voluntarily expose himself to unnecessary danger, and'also that he was not injured while'doing or performing any act or thing pertaining to any occupation classed by the defendant association as more hazardous an occupation than the occupation under which the contract sued upon was issued, plaintiff having been insured as cashier of the First National Bank. If the plaintiff fails to prove ■either one of these elements, it will be your duty to render a verdict for the defendant. ■ If the plaintiff voluntarily exposed himself to unnecessary danger, your verdict must be for the defendant. By the words ‘ doing or performing ’ anything pertaining to an occupation classed by the defendant association- as more hazardous than the occupation under which the contract sued upon was issued, is meant any act naturally belonging to of done by a man engaged in that occupation. ’ It was not necéssary for the plaintiff to'be engaged in the' actual act of sawing. For the purposes of this case, any act naturally done by a man who acts as a sawyer, whether of preparation for the act of sawing or done after the act of sawing, is an "act pertaining to the occupation of a sawyer. Again, if the injury to the plaintiff resulted in whole or in part from his own negligence, then he cannot recover. Again, if the plaintiff stood leaning against the table, and his foot slipped, so as to throw him or his arm upon the table, causing this injury, he was- guilty of negligence, and cannot recover. The plaintiff must prove by a preponderance of the evidence that the injuries for which he seeks to recover were received from external, violent, and accidental means, within the provisions and outside of the exceptions of the policy upon which this suit is brought. That, you understand, would be the law governing this particular contract. This injury, if at all, must be external, it must be violent, and it must be by accident; and the plaintiff is bound to show that. If the plaintiff voluntarily exposed himself to unnecessary danger, of course your verdict must be for the defendant.”
He also charged the jury:
“Now, gentlemen, one very important question that arises for your consideration in this case is, Was this injury received by Mr. Hess because he voluntarily exposed himself to unnecessary danger? If you shall find in the affirmative of this proposition, that ends this case, and your verdict should be for the defendant, ‘No cause of action.’ And this question is for you to determine under all the evidence in the case. If you so find upon the affirmative qf that proposition, then the defendant should prevail. Was this act of Mr. Hess a voluntary exposure to unnecessary danger? To make him guilty of a voluntary exposure to unnecessary danger, he must intentionally have done some act which a reasonable, ordinary, and prudent person would pronounce dangerous. The undisputed evidence shows that he went into this planing mill on a matter of business between himself and the proprietor. The evidence also shows that other persons were at the time in thé mill, and there is some evidence that it was not an unusual thing for persons having business there to go into that mill, and transact business with the proprietors or their servants, as the case might be. Now, it is true that Mr. Hess voluntarily went into this planing mill, but there is a clean distinction between a voluntary act and a voluntary exposure to danger. The approach to an unknown or unexpected danger does not make the act voluntary' exposure thereto. The result of the act does not necessarily determine the motives which prompted the-action. The act may be voluntary, yet the exposure. may be involuntary. As I said before, these are matters for you to determine under all the circumstances surrounding this case, and in the light of the evidence as you find it.”
So far as the question of the negligence of the plaintiff is involved, the charge was quite as favorable for the defendant as it was entitled to have it made. See Nibl. Acc. Ins. & Ben. Soc. § 366; Freeman v. Insurance Co., 144 Mass. 572; Tucker v. Mutual Ben. Life Co., 50 Hun, 50; Providence, etc., Invmt. Co. v. Martin, 32 Md. 310; Fidelity & Casualty Co. v. Chambers, 93 Va. 138; Keene v. Accident Ass’n, 161 Mass. 149; Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201; Schneider v. Insurance Co., 24 Wis. 28 (1 Am. Rep. 157); Hess v. Van Auken, (Com. Pl.) 32 N. Y. Supp. 126; Manufacturers’ Accident Indemnity Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945; 2 May, Ins. § 530. It is urged that this charge is inconsistent with itself. So far as this criticism is well taken, it grows out of the-fact that the circuit judge gave some of the requests to charge on the part of the defendant which were more favorable to it than the law would justify. So far as there was error in the charge as given, it was in the defendant’s favor, and it cannot complain.
The error assigned in relation to the admission of testimony we do not think it necessary to discuss, as we are satisfied it is not well taken.
Judgment is affirmed.
Long, C. J., Montgomery and Hooker, JJ., concurred with Moore, J. | [
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] |
Per Curiam.
Defendant, cross-defendant Bryn Mawr Apartments of Ypsilanti, Ltd. (Bryn Mawr), appeals from entry of judgment of foreclosure of a mechanics’ lien in the amount of $18,969.43 in favor of defendant, cross-plaintiff Crawford Mechanical, Inc. (Crawford).
Crawford entered into an agreement with a general contractor, Bar-Har Investments, Inc. (Bar-Har), under which Crawford supplied labor and materials for a building project owned by Bryn Mawr. Labor and materials were furnished by Crawford between May 1, 1972, and December 1, 1972. On December 27, 1972, after already having served a notice of intent to claim a lien on Bryn Mawr, Crawford filed its statement of account and lien, notice of intent to claim a lien, and proof of service with the Washtenaw County Register of Deeds.
On June 18, 1973, the original plaintiff in this matter, Domenico Guerra, doing business as Guerra Construction Company (Guerra), filed its complaint to foreclose his own mechanics’ lien. Among the defendants named in Guerra’s complaint were Bryn Mawr, as owner, Bar-Har, as contractor, and Crawford, as putative lienor.
On October 18, 1973, Crawford filed a cross-complaint against Bar-Har for damages relating to breach of contract. This cross-complaint did not specifically seek relief from Bryn Mawr, nor did it specifically refer to Crawford’s mechanics’ lien.
On November 19, 1974, Crawford filed what it captioned as a "counter-complaint and cross-complaint” against Bar-Har and Bryn Mawr. This complaint sought to foreclose Crawford’s claimed mechanics’ lien.
Bryn Mawr filed an answer to Crawford’s November 19, 1974, complaint on December 11, 1974. This answer did not assert the defense of the statute of limitations, nor did it allege that the trial court lacked personal jurisdiction. Amended answers were filed on January 10, 1979, and on January 16, 1979.
In its written opinion, the trial court found that the November 19, 1974, complaint was an amendment to the October 18, 1973, complaint and that this amendment was made with the court’s knowl edge and the court’s leave. On appeal, Bryn Mawr does not challenge these particular findings by the trial court. The trial court went on to find that the November, 1974, pleading related back to the October, 1973, pleading and that Bryn Mawr could be added as a party under the relation back doctrine. Furthermore, the trial court found that under all the facts and circumstances of this cáse Bryn Mawr was not prejudiced by the amendment and, additionally, that Crawford’s action against Bryn Mawr was not barred by the statute of limitations.
On appeal, Bryn Mawr argues that because Crawford’s complaint to foreclose its lien was filed after the applicable statute of limitations period, MCL 570.9, 570.10; MSA 26.289, 26.290, the trial court lacked subject matter jurisdiction to adjudicate the claim. Alternatively, Bryn Mawr argues that if the trial court did have jurisdiction it erred in its application of the relation back doctrine to the instant case.
In support of its position that the trial court lacked subject matter jurisdiction, Bryn Mawr relies, primarily, on Fox v Martin, 287 Mich 147; 283 NW 9 (1938), and L J Mueller Furnace Co v Wayne Circuit Judge, 226 Mich 672; 198 NW 248 (1924).
We agree with Bryn Mawr that both in Fox and in Mueller, there is language to the effect that where a complaint to foreclose a mechanics’ lien is filed after the one-year statutory limitation period has run, the trial court has no subject matter jurisdiction upon which foreclosure proceedings can operate. However, we disagree with Bryn Mawr’s conclusion that Fox and Mueller are controlling as to the instant case and require a finding that the trial court lacked subject matter jurisdiction to adjudicate Crawford’s claim.
Neither Fox nor Mueller, as opposed to the instant case, dealt with amendments to a pleading where the original pleading was, arguably, filed within the limitations period. Furthermore, neither of these cases dealt with the application of the relation back doctrine found in GCR 1963, 118.4. In our view, as in the trial court’s, the critical question in the instant case is whether, under GCR 1963, 118.4, the November, 1974, pleading relates back to the October, 1973, pleading. If it does, the trial court had subject matter jurisdiction.
In determining whether an amendment to pleadings relates back to the earlier pleadings, the test is whether the amendment arose out of the same conduct, transaction, or occurrence alleged in the original pleadings. GCR 1963, 118.4. See also Matson v Soronen, 57 Mich App 190; 226 NW2d 52 (1974), lv den 394 Mich 762 (1975). The occurrence or transaction underlying both the October, 1973, contract complaint and the November 19, 1974, foreclosure complaint was Crawford’s inability to collect payment for labor and materials used for construction on Bryn Mawr’s property. Since both complaints relate to the same labor and materials supplied by Crawford and to Crawford’s inability to collect thereon, the trial court correctly found that the November 19, 1974, foreclosure complaint arose from the same transaction or occurrence as the October 18, 1973, breach of contract complaint. Because the foreclosure complaint relates back to the breach of contract complaint, which was filed within the statutory period, under the relation back doctrine the lower court possessed subject matter jurisdiction.
As an alternative to its lack of jurisdiction argument, Bryn Mawr contends that if the relation back doctrine is applicable to the instant case that doctrine does not extend to the addition of parties.
We agree that as a general rule the relation back doctrine does not extend to the addition of new parties. See Forest v Parmalee (On Rehearing), 60 Mich App 401, 406-407; 231 NW2d 378 (1975), aff'd 402 Mich 348 (1978). However, we find that this general rule is not applicable in the instant case since Bryn Mawr failed to raise the statute of limitations defense (which would have given the trial court an opportunity to address the applicability of the relation back doctrine) in a timely fashion. GCR 1963, 116.1. More importantly, Bryn Mawr failed to raise the defense of lack of jurisdiction over the person in a timely fashion. Thus, Bryn Mawr has waived this defense. GCR 1963, 116.2.
Affirmed. Costs to defendant, cross-plaintiff-appellee. | [
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] |
Per Curiam.
Plaintiffs appeal an order of summary judgment entered pursuant to GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted, in favor of defendant Laborers’ International Union of North America (hereinafter the international).
Summary judgment under this sub-rule is proper only if, after an examination of the pleadings, and accepting plaintiff’s well-pleaded allegations as true, a determination can be made that plaintiff’s claim is "so clearly unenforceable as a matter of law that no factual development could possibly sustain it”. Gartside v Young Men’s Christian Ass’n, 87 Mich App 335, 338; 274 NW2d 58 (1978).
Plaintiffs’ complaint alleged that in September of 1976, Alfred Sowels (hereinafter plaintiff), himself a member of defendant International Laborers’ Union, Local 465 (hereinafter Local 465), was employed by a contractor in a supervisory position at the Enrico Fermi plant in Monroe, Michigan. Local 465 assigned 20 workers to the construction site, including defendants Hammac, Gray, Ellison, and Raines. Local 465’s agent insisted that Sowels appoint Hammac as a foreman, and Sowels refused. Sowels warned Hammac about his refusal to continue working as instructed, to which Hammac exhibited a hostile and aggressive attitude. During the last week of September, 1976, Sowels laid off four of the workers from Local 465, including Hammac and Gray.
On October 1, 1976, as Sowels left his home, he was stopped and attacked by Hammac, Ellison, Gray, and Raines, who placed a blanket over his head and beat him. Among the injuries suffered by Sowels were extensive fractures of both legs, which left him permanently disabled.
Plaintiffs’ complaint sought to hold the international liable on at least two theories of negligence. Plaintiffs’ second amended complaint also sought to impose liability on the international on the basis that the international breached a contractual obligation owed plaintiff as a dues-paying member.
Plaintiff's allege that the international was negligent by first, failing to supervise and control Local 465 and its members, and second, failing to warn plaintiff of the violent propensities of members of Local 465. The issue here primarily involves whether the international owed plaintiff any duty to prevent the alleged harm. Whether such a duty exists is a legal question to be decided by the court and "is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person”. Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977) (footnote omitted). Where there is no legal duty, there can be no actionable negligence. Butrick v Snyder, 236 Mich 300, 306; 210 NW 311 (1926).
Plaintiffs’ burden of establishing this element of negligence becomes substantially heavier in the face of § 6 of the Norris-LaGuardia Act which states:
"No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” 29 USCA 106.
This section was held applicable to tort claims in state courts arising out of labor disputes in United Mine Workers of America v Gibbs, 383 US 715, 736-737; 86 S Ct 1130; 16 L Ed 2d 218 (1966). The policy underlying § 6 has been stated as follows:
"It has been clear to Congress for many years that imposition upon unions of vicarious liability for the unauthorized acts of individuals could easily mean the elimination of labor unions as a social institution in America. * * *
"Irresponsible or violent acts by individual workers (or by agents provacateur) if automatically attributable to the union on the scene could, of course, serve to destroy it. But such vicarious liability is repugnant to due process of law.” North American Coal Corp v Local 2262, United Mine Workers of America, 497 F2d 459, 466 (CA 6, 1974).
Given this policy and the broad definition of a labor dispute, 29 USCA 152(9), we find the section applicable here.
Plaintiffs seek to impose a duty on the international by alleging that the international had knowledge of the "dangerous propensities” of Local 465 members, and actual notice and knowledge of threats of violence made by Local 465 members toward the management of plaintiff’s employer. Assuming them to be true, these allegations fall far short of constituting participation in, authorization or ratification of, the assault on plaintiff by the named members of Local 465.
Significantly, plaintiffs did not allege that the international had knowledge that this particular attack would take place, let alone allege that the international knew of the dangerous propensities of, or threats made by, the specific members of Local 465 who perpetrated the assault. While making no reference to § 6 of the Norris-LaGuardia Act, this Court in Bescoe v Laborers’ Union Local No 334, 98 Mich App 389, 411-413; 295 NW2d 892 (1980), held that the employer bears the duty of providing a safe workplace, and absent a showing that the union had undertaken the employer’s duty, the union could not be held liable for an assault by one of its members, even though it knew of that member’s repeated threats of violence.
The duty of the international to prevent violent acts of its members cannot rest on the mere union-member relationship, since a union, its local affiliates, and individual members are distinct entities, and one cannot be held liable for the acts of another. United States v White, 322 US 694; 64 S Ct 1248; 88 L Ed 1542 (1944), Coronado Coal Co v United Mine Workers of America, 268 US 295; 45 S Ct 551; 69 L Ed 963 (1925). Plaintiffs did not seek in their complaint to impose liability on the international on a theory of agency, and even where agency is alleged, there must be a showing that the union participated in, authorized or ratified the tortious conduct. Kerry Coal Co v United Mine Workers of America, 637 F2d 957 (CA 3, 1981), James R Snyder Co, Inc v Edward Rose & Sons, Inc, 546 F2d 206 (CA 6, 1976), Gonzales v Oil, Chemical & Atomic Workers International Union, 77 NM 61; 419 P2d 257 (1966), United Brotherhood of Carpenters & Joiners of America v Humphreys, 203 Va 781; 127 SE2d 98 (1962).
Plaintiffs cite a number of cases in which a parent union was held liable for damages under Title VII of the Civil Rights Act of 1964, 42 USC 2000e, for the discriminatory practices of its local affiliates. In those cases, however, a direct link between the parent union and the unlawful discrimination was present. For example, in Kaplan v International Alliance of Theatrical & Stage Employees & Motion Picture Machine Operators of United States & Canada, 525 F2d 1354, 1359 (CA 9, 1975), provisions of the collective-bargaining agreement executed by the local affiliate were found to perpetuate discrimination. Because the bargaining agreement was subject to the approval of the international, and as the international was a signatory of the collective-bargaining agreement, liability was based upon the direct involvement of the international. Likewise, in Freeman v Motor Convoy, Inc, 409 F Supp 1100, 1108-1112 (ND Ga, 1976), liability of the parent union was based upon the discriminatory effect of provisions of the collective-bargaining agreement, and the bargaining agreement being executed and implemented on at least the implicit authority of the international.
Consistent with those decisions is Movement for Opportunity & Equality v General Motors Corp, 622 F2d 1235, 1245 (CA 7, 1980), where the alleged discrimination was not connected to the collective-bargaining agreement. Adopting the opinion of the district court, the circuit court of appeals held that the parent had no control over its local affiliate, and in the absence of a showing of the parent’s direct involvement it could not be held liable for the alleged discriminatory practices.
The preceding lines of authority unequivocally support the trial court’s ruling that, as a matter of law, the international could not be held liable for the assaultive conduct of its members, based upon allegations that the international had actual knowledge of the "violent propensities” of its members and actual knowledge of prior threats of violence made by its members. The international owed no duty to plaintiff either to protect him from violent acts of its members, or to warn him that its members may resort to violence if crossed. Had plaintiffs alleged that the international knew that this particular attack by the named members was impending, a cause of action may have been stated. Plaintiffs were twice given the opportunity to amend their complaint and were given additional time for discovery. We can only assume that allegations which would directly link the international with the assault upon plaintiff could not be supported.
Plaintiffs, for the first time on this appeal, seek to impose liability on the international under a theory of agency. By failing to raise this issue below, plaintiffs have waived it on appeal. Hayes v Booth Newspapers, Inc, 97 Mich App 758; 295 NW2d 858 (1980). Furthermore, plaintiffs’ claim of liability under this theory is not viable. Plaintiffs do not contend that the members who perpetrated the attack were acting as agents of the union, but that the international, as the agent of its members, including plaintiff, owed plaintiff certain fiduciary duties, including the duty to protect him from the violent acts of other members. The duty owed plaintiff by the international arises from the collective-bargaining relationship between them, and has been described as the basic duty to fairly represent the interests of all of its members in matters of employment. See Vaca v Sipes, 386 US 171, 177; 87 S Ct 903; 17 L Ed 2d 842 (1967). In the absence of any authority to the contrary, we refuse to expand this limited relationship to impose a duty on the international to protect its members from any harm which may be connected to the workplace.
Plaintiffs amended their complaint to allege that the international owed plaintiff, as a dues-paying member of the union, a contractual duty to protect him from violent acts of fellow members and breached that duty by failing to supervise and control its local affiliates. Plaintiffs’ failure to cite any authority in support of this novel proposition precludes our appellate review. Stanek v Bergeon, 89 Mich App 283, 285; 279 NW2d 296 (1979). Furthermore, plaintiffs base this contractual obligation on article II, § 1 of the international’s constitution, which sets forth the general goals and purposes of the union. Nothing in this document purports to bind the international to a contract with an individual member, obliging the international to protect that member from acts of violence by third parties, including the acts of fellow members.
As to the international’s contention that federal law preempts state adjudication of this matter, we defer to the analysis in Bescoe v Laborers’ Union Local No 334, supra, 411, which ultimately held that whether a union had the duty to protect workers from violent acts of its members was a question of state law and was not preempted by federal labor law.
The decision of the trial court is affirmed. Costs to defendant. | [
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Per Curiam.
Plaintiffs-appellants appeal pursuant to this Court’s grant of their delayed application for leave to appeal. The trial court entered an order on January 27, 1980, for separate trials on the issues of liability and damage. The plaintiffs-appellants appeal from this order. The sole issue presented is whether the trial court abused its discretion in ordering that the issues be tried separately.
The lawsuit arises out of a May, 1975, automobile accident. Plaintiff Paul DetlofFs automobile collided head-on with one operated by John Hickey. It is alleged that the Hickey vehicle crossed the center line and struck DetlofFs vehicle. Plaintiffs allege that the street surface on which Paul Detloff was travelling was covered with mud and dirt and that this condition impeded DetlofFs attempt to slow his own vehicle and take evasive action to avoid the collision. Defendants The Taubman Company, Inc., Sterling Garrett Construction Co., Inc., and Stage-Coach, Inc., are allegedly responsible for the mud and dirt on the road surface.
The trial court stated its reason for ordering separation as follows:
"* * * the court having determined that the plaintiffs face serious issues of liability against the present principal defendants, and that the plaintiffs will have extensive damage testimony,
"The court pursuant to GCR 1963, 505, upon motion of * * * counsel for Sterling Garrett Contracting Company does order that the liability issues of the pending cases shall be tried separately from the damage issues of each of the individual plaintiffs.
"The court therefore does order that in furtherance of convenience to the parties, and to avoid prejudice the court does order that at the time a jury is impanelled in the above actions, the issues of liability shall be tried first. If the jury finds against any of the defendants as to liability, then the case shall immediately proceed before the same jury panel as to issues of plaintiffs’ damages as against any of the defendants so remaining.” (Emphasis added.)
In denying plaintiffs’ motion for rehearing, the trial court further stated the reasons for ordering separation as follows:
"Plaintiffs’ counsel has indicated that he would present a considerable amount of 'damage’ testimony. Therefore, in furtherance of the convenience of the parties, and to avoid the unnecessary expense of the defendant’s or several of them having to partake of damage defense, this court did rule that the liability aspects of the case would be tried first. This court has not been presented with any reason to change its prior order.”
GCR 1963, 505.2, provides for separate trials to avoid prejudice and in furtherance of the convenience to the parties. The exercise of this power to separate trials rests within the trial court’s sound discretion. Fabbrini Family Foods, Inc v United Canning Corp, 90 Mich App 80, 88; 280 NW2d 877 (1979). However, this power should be exercised only upon the most persuasive showing that the convenience of all the parties and the court require such drastic action or that prejudice to a party cannot otherwise be avoided. See Osgerby v Tuscola Circuit Judge, 373 Mich 237, 241; 128 NW2d 351 (1964).
Under the existing case law, we conclude that the trial court’s reason for ordering separation was insufficient. In Peasley v Lapeer Circuit Judge, 373 Mich 222; 128 NW2d 515 (1964), the trial court’s reason for separation of issues was convenience and the saving of time and effort. The Supreme Court reversed the trial court’s order and stated: "The showing of compelling necessity for separation under such circumstances, in the interest of convenience or the avoidance of prejudice, would have to be very strong to justify interference with a party’s presentation of proofs in the customary fashion.” Id., 227. The convenience involved in this case is not sufficient to justify the separation.
The trial court also stated that the order was to avoid prejudice to the parties. We find this reason was also insufficient to support the trial court’s order. As this Court noted in Scott v Stacey Moving, Ltd, 95 Mich App 191; 290 NW2d 121 (1980), a plaintiff must prove damages as an element of a prima facie case in every negligence action. Where defendant fears proof of damages will prejudice him on the liability issue, the proper remedy would involve an objection under MRE 403, or a request for a limiting instruction under MRE 105. The possible prejudicial effect of the extent of damages does not meet the very strong showing of prejudice required to uphold an order of separation. Scott, supra, 192.
We reason, therefore, that the trial court abused its discretion in ordering the separation of the liability and damages issues in this case.
Reversed and remanded.
Costs to abide the final outcome. | [
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Bronson, P.J.
The sole issue raised in this case concerns the extent to which Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), should be accorded retroactive effect. In Serafin, the Supreme Court abrogated Lord Mansfield’s Rule in Michigan. This rule was a virtually irrebuttable presumption that a child born while the parties were married was the issue of the husband.
In the instant case, the parties were divorced November 19, 1971. Plaintiff was ordered to pay child support for three children, including Tyrone Thompson. Following the decision in Serafin, plaintiff moved for relief from the order of support requiring him to provide for Tyrone. Plaintiff contended that Tyrone was not his son, as he had at the time of the original divorce proceedings. Based on a hearing conducted before the Friend of the Court, the trial judge concluded that plaintiff was not Tyrone’s father. Consequently, the court discharged plaintiff from any further support obligation as to the boy. The court refused, however, to give the modification of the support order any retroactive effect. Defendant contends that he is entitled to the return of all monies paid for the support of Tyrone.
The trial court refused to order reimbursement of the monies already paid by plaintiff because it could adversely affect the child’s support. Plaintiff first argues that the trial court’s ruling should be reversed because defendant has received ADC benefits since the time of the parties’ divorce. As such, plaintiff’s child support payments have gone to the Department of Social Services (DSS). Consequently, DSS, and not defendant, would be responsible for the reimbursement of plaintiff. By law, DSS could not refuse to extend defendant future benefits due to the necessity of reimbursing plaintiff. See Evans v Dep’t of Social Services, 22 Mich App 633; 178 NW2d 173 (1970).
We reject plaintiff’s first argument for full retro-activity for two reasons. First, this Court could not legally justify treating differently mothers who receive ADC benefits and those who do not for purposes of the rule announced in Serafin. Although a decision ordering full retroactivity in this case may have minimal consequences, there would obviously be severe results to a child whose mother was not on ADC and who was required to reimburse her ex-husband for years of child support. Second, the idea that no adverse consequences would befall the child in this case assumes that DSS is a deep pocket of infinite depth. However, as recent events show, this is not an accurate premise. Recently, across-the-board cuts were expe rienced by all ADC recipients. Any court ruling which requires DSS to expend monies for the purpose of reimbursement is going to result in less funds to meet current needs. It is within the realm of possibility, then, that every child in Michigan receiving ADC benefits would ultimately be adversely affected if we adopted plaintiff’s position.
Plaintiff next argues that the abolition of Lord Mansfield’s Rule in Serafin merely imposed a new evidentiary rule controlling procedure which has no bearing on remedy. He further argues that if Serafin is applicable to determine rights, it is equally applicable to the issue of remedy.
Whether or not a rule is one of substance or procedure is often open to dispute. However, assuming for purposes of this case that Serafin merely replaces one procedural rule with another, we nonetheless disagree with plaintiff’s analysis. Procedural rules changed by court rule or otherwise generally have prospective effect only. In re Donovan’s Estate, 266 Mich 362; 253 NW 552; 91 ALR 1418 (1934), Moore v Spangler, 401 Mich 360, 368; 258 NW2d 34 (1977). Since the original divorce judgment was actually rendered prior to the date Serafin was decided, the trial court might have refused to give the Serafin decision any retroactive effect. However, GCR 1963, 528.3(5) provides for relief from judgment where "it is no longer equitable that the judgment should have prospective application”. An order of child support has continuing, prospective effect. In light of Serafin, it would be inequitable to force an ex-husband who can prove that he is not the father of a child he was obligated to support due to Lord Mansfield’s Rule to continue making support payments.
Plaintiff’s brief does not analyze this issue in terms of the normal considerations generally deemed controlling when resolving an issue of retroactivity. These considerations are the purpose of the new rule, the reliance on the old rule, and the impact on the administration of justice should the change be given retroactive effect. Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), Stewart v Stewart, 91 Mich App 602; 283 NW2d 809 (1979).*
We hold that the reliance on the old rule and the possible adverse impact on the administration of justice were we to give the rule complete retroactive application weighs against plaintiff’s position. The new rule’s purpose is to avoid an injustice perpetrated on ex-husbands. However, any man considering marriage prior to Serafin had it within his power to find out what the law was concerning children born during the marriage. See Egbert v Greenwalt, 44 Mich 245; 6 NW 654 (1880). If Lord Mansfield’s Rule was deemed overly onerous by a potential husband, he could decline to marry or move to a state which did not follow the rule.
Affirmed.
R. M. Maher, J., concurred.
It could be argued, then, that we should at least order reimbursement of monies from October 24, 1977, the date of the Serafin decision. We disagree because we do not deem it inequitable to refuse plaintiff the benefit of the change of law where he did not seek relief from the support order until March, 1978. The modification of the order in dispute was made effective April 7, 1978.
In Stewart, one panel of this Court refused to give Serafin any retroactive effect and determined that a support order entered prior to Serafin could not be negated after Serafin. We note that defendant in this case did not file a cross-appeal contending that no retroactive effect should be accorded Serafin. Thus, we need not address this issue. It is unlikely, however, that we would adopt the strict nonretroactivity approach of Stewart in a case in which the issue was raised. As noted in the body of this opinion, GCR 1963, 528.3(5) provides authority for the proposition that the prospective aspects of a support order may be permissibly modified in light of Serafin. | [
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To compel respondent to meet with relator and act with reference to the construction of a bridge on line between townships.
Denied December 21, 1891, with costs.
The answer alleged that an agreement had been entered into some years agn between the townships, by the terms of which respondent was to keep in good repair a certain highway,,and in consideration thereof relator was to keep in repair and maintain the bridge, and that respondent had performed its undertaking. | [
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] |
To quash a capias, because of insufficient affidavit.
Order to show cause denied November 5, 1891.
The court below filed, and the same appears with the petition, a memoranda, showing a careful consideration of each allegation in the affidavit, and while the court found that certain of the statements were not sufficiently specific and others mere conclusions, he finds that the allegations, that relator’s horse was seized by the township treasurer for unpaid taxes; that said township treasurer conspired with one Frantz for the purpose of an unfair sale; that Frantz brought the horse to the place of sale; that the horse was struck off to the first bidder without waiting for others, who were present with a view of bidding, to bid, or giving them an opportunity to bid, and that Frantz immediately drove the horse away beyond reach or knowledge, were positive statements of a positive wrong^ and that relator was thus deprived of his property unfairly and illegally. | [
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To compel respondent to proceed to the trial of certain indictments for bribery, found in the Circuit Court for the County of Wayne, and quashed for want of jurisdiction.
Granted February 3, 1886.
Held, that while the Attorney General should represent the people in the Supreme Court, there is no rule of law preventing that court from considering an application by the prosecuting attorney of a county, to set a court in motion to proceed in a case under his control therein; that a decision quashing an indictment is reviewable, and mandamus is the more appropriate writ. | [
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] |
To vacate an order allowing an ex-sheriff fees for tbe personal •custody of attached property.
Granted June 6, 1890. | [
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To compel the vacation of an order directing service of process against the relator to be made upon one Edward P. Allen, the agent of the company in that county, issued upon an affidavit of the attorney for plaintiff, setting forth that the relator had no presiding officer, cashier, secretary or treasurer within the limits of that county.
Granted October 17, 1871, with costs against the plaintiff.
Held, that substituted service, under Oomp. Laws, Sec. 4835, on a domestic corporation located in this state, can be made only in the county where such corporation has its principal office. | [
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] |
To set aside an award of a contract for State printing.
Denied October 26, 1881. | [
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] |
To compel vacation of order setting aside judgment.
Denied February 3, 1892, without costs.
The case was tried in the thirty-first circuit, before the circuit judge of the sixteenth circuit, the judge of the former circuit being disqualified. In the absence of the attorneys for defendant, plaintiffs moved for judgment before the judge of the thirty-first circuit, and the same was entered, but afterwards the same judge, of his own motion, set aside the judgment entered, allowing the verdict to stand. | [
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To compel respondent, a supervisor, to include certain lands upon the assessment roll.
Denied April 21, 1891, without costs.
Despondent refused to include the lands because the same had by an act of the legislature, approved March 25, 1891, been detached from that township and formed into a separate township. Delator contended that said act was unconstitutional because it provided that the first annual meeting for the election of officers should be held on the first Monday of .May, 1891, and that in consequence the residents of that territory were deprived of the constitutional right to vote at the April election. | [
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To vacate an order granting a new trial.
Denied December 30, 1891, with costs. | [
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To compel respondent to find the facts and conclusions of law.
Order to show cause denied June 18, 1891.
Abandonment proceedings. Held, that the proceeding was a special one under the statute, and circuit judge was not required to present findings. An appeal lies as in any other chancery cause. | [
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] |
To compel respondent to permit relator, who is engaged in tbe business of making abstracts of titles to land, to inspect, examine and copy from file No. 8982, and from any other files in bis office.
Tbe circuit judge denied tbe writ. Affirmed, witb costs, July 28, 1896.
- Held, that until a case has been before tbe court for some judicial action, tbe files and records therein are not public records, and that th§re was no showing for such a necessity as established a legal right to inspect tbe record referred to. | [
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To compel the Board of Public "Works to approve a plat, and the register of deeds to record same.
Granted May 11, 1892, without costs. | [
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] |
To compel the vacation of an order appointing a receiver, upon judgment creditors’ bill filed, and directing judgment debtors to assign.
Order to show cause denied January 18, 1892.
Held, that relator had an adequate remedy by appeal. Perrin vs. Lepper, 56 M., 351. | [
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] |
To vacate an order of discovery, compelling the production of a party’s business books.
Granted February 1, 1879. | [
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To vacate an order requiring relators to file a bond as executors in the sum of $100,000, in a case where it is alleged that the real and personal estate disposed of by will is of the value of between $150,000 and $175,000, of which amount all is personal property, except about $25,000, and the probate judge declined to reduce the amount because of lack of power.
Order to show cause denied June 29, 1894. | [
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To compel the settlement of a bill of exceptions, where the party preparing same had done all in his power to comply with the various orders for its settlement and had completed and furnished the bill in due time.
Granted October 22, 1879. | [
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To compel the entry of an order requiring certain judgment debtors to appear at a time and place named, and make discovery, on oath, concerning their property and debts, under chapter 278 How. Stat.
Granted July 10, 1894, with costs against the judgment debtors.
Respondent contended that said chapter is invalid because, (1) it does not provide for the framing of an issue; (2) the statute is otherwise crude and imperfect; (3) because-the statute does not provide for a trial by jury; (4) because its object has been superceded by the subsequent statutes and repealed by implication; (5) because while it attempts to provide a remedy at law in lieu of a proceeding in chancery, it is wanting in means to accomplish its object; (6) because by Act. No. 125, Laws of 1861, parties were made competent witnesses, and the necessity for such proceeding ceased; (7) because the allegations in the petition are subject to the criticism made in Prescott vs. Peiffer, 57 M., 21; and (8) under óur practice, where, the distinction between law and equity proceedings- prevails, no such statute can he maintained, and the decisions under the code practice have no force. Citing Reed vs. Baker, 42 M., 272; Ehlers vs. Stoeckle, 37 M., 260; Risser vs. Hoyt, 53 M., 185; Brown vs. Circuit Judge, 75 M., 274 (723); Riopelle vs. Doellner, 26 M., 102; Sheldon vs. Walbridge, 44 M., 251.
Relator cited, Ex parte, 105 U. S., 647, and urged that a statute unconstitutional or inoperative or invalid in part, may be held valid as to other provisions. Citing Brooks vs. Hill, 1 M., 118; Smith vs. Adrian, Ibid., 495; Ames vs. Port Huron, 6 M., 266; People vs. Mahaney, 13 M., 481; Campau vs. Detroit, 14 M., 276; People vs. Richmond, 59 M., 570; Attorney General vs. Amos, 60 M., 372; Robison vs. Miner (Police Justice), 68 M., 549 (239). | [
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To vacate an order made by respondent, on the petition of the complaining witness, appointing a special prosecuting attorney to examine into a criminal complaint, and determine whether it. ought to be prosecuted by an examination before a justice.
Granted July 2, 1890. | [
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] |
To compel investigation by respondents of certain returns of the election of aldermen in the City of Detroit.
Denied January 11, 1889.
Ruled by Weston vs. Probate Judge, 69 M., 600, [1136], where it was held, that Act. No. 293, Laws of 1887, does not apply in those cases where the city council, by whatever name it is called, is made the absolute judge of the election and right to office of its members. | [
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] |
To compel respondent to convene as a board of canvassers, and canvass all tbe votes cast at a certain election held in said county, upon tbe question of tbe removal of tbe county seat, their prior determination, that said proposition bad not been carried, being based upon the rejection of tbe vote of a certain township.
Denied June 26, 1894, with costs.
Held, that tbe action of the board, under How. Stat., Sec. 491, is conclusive, and no judicial review thereof is provided by law. | [
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] |
To compel respondent to vacate an order permitting an appeal to be taken from an order admitting a will to probate.
Denied July 26, 1893, with costs. Rehearing denied Nov. 21, 1893.
After tbe final determination in No. 150, tbe contestant applied to the Circuit Court, which allowed an appeal under ITow. Stat., Sec. 6784.
Held, that a party ought not- to lose bis right to an appeal through tbe neglect or oversight of bis attorney. Citing Loree vs. Reeves, 2 M., 133; Capwell vs. Baxter, 58 M., 571. | [
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To compel respondent to set aside an order dismissing relator’s petition for the establishment of permanent dock, safety, sanitary and building lines along the shores of Grand River, as provided by Act No. 358, Local Acts of 1891.
Granted October 16, 1894, with costs against respondents in the court below.
The circuit judge held the act unconstitutional.
Held, that the failure of respondent to answer amounts to an admission, under Suprepie Court Rule No. .63, that all the material averments of the petition for the writ are true. | [
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To vacate orders extending time for settlement of testimony in chancery causes on appeal, where the testimony was taken in open court, the decrees entered May 10, 1895, time extended June 28, ninety days, September 2Y to December 1, 1895, and the only excuse offered was the stenographer’s refusal to transcribe his minutes until promised payment therefor by a responsible person.
Granted October 23, 1895, with, costs in each case against complainant in the chancery cases. | [
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To compel respondent to hear a motion for leave to amend a plea of the general issue, by adding a notice of justification on the merits, and to set aside a former order granting such motion on the payment of $1,000 costs.
Granted May 18, 1888.
Held, that the terms imposed were not just or reasonable. | [
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8
] |
To prohibit respondent from hearing an appeal from the dis-allowance of a claim against the estate of relator’s decedent, which had been transferred from the St. Clair circuit because of the disqualification of the judge of that circuit.
Denied April 19, 1882. See No. 293. | [
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To compel respondent to set aside an order denying relators leave to intervene in proceeding's instituted February 1, 1897, by a mortgagee of certain lands to set aside so much of a decree, entered in November, 1895, in tbe matter of tbe petition of Stanley W. Turner, Auditor General, for and in behalf of the State of Michigan, for the sale of certain lands for taxes assessed thereon, as directed the sale of said mortgaged lands and to cancel the bid of the State for said lands.
Denied, with costs, June 7, 1897.
Relators had deposited with the auditor general the amount of the State bid and were awaiting a deed. On filing the petition of said mortgagee, an order was made requiring the auditor general to show cause on February 12, 1897, why the prayer of the petitioner should not be granted.
Relators on the 9th of February, 1897, filed their petition for leavs to intervene, and gave notice to the attorneys for said mortgagee that the same would be brought on for hearing on February 12, 1897.
Counsel for relators resided at Lansing and did not reach Monroe until some time after the court had- convened, and was then informed that the matter of the mortgagee’s petition had been heard and the prayer of the petition granted. Counsel then called up the application for leave to intervene, and after hearing the parties the court denied the application. | [
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To compel respondent to give relator access to tbe files and records of all suits pertaining to real estate, to enable him to make abstracts of tbe same to use in bis business of making and selling abstracts of title. Tbe circuit judge denied tbe writ. Affirmed (September 25, 1894, with costs.
Relator sought to obtain privileges to which tbe general public are not entitled. | [
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To compel respondent to consider the claim of a coroner for fees and expenses incident to an inquest upon a view of the dead body of a stranger under How. Stat., Secs. 9593-9597.
Granted July 15, 1886. | [
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To compel respondent to hold valid an order of publication, and to proceed to hear and determine the cause, where the affidavit of non-residence was made at a late hour Saturday, and the' order for publication was obtained early Monday morning.
Granted December 4, 1893, with costs. | [
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] |
To compel respondent to grant a new trial.
Order to show cause denied June 15, 1892.
A trial had been had and a verdict and judgment for defendant therein, and plaintiff seeks to review the entire trial proceeding by this proceeding. | [
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To compel respondent to vacate an order entered Play 21, 1812, admitting a will to probate, on the ground that the testator, at the time that the will is alleged to have been executed, was insane and incompetent, and that relator had no knowledge of its probate, or the application therefor, and further, that the proofs on file do not show the proper publication of the notice of the application for probate.
Denied June 1, 1893, with costs.
Held, that the Probate Court.has no power to vacate the order, and that mandamus will not lie where the person to whom it is addressed has no power to obey its mandate. | [
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To compel respondent to pay relator’s bill of $25 for services as attorney appearing in behalf of the people, at the request of the circuit judge, and resisting a motion to quash a complaint and warrant and discharge the prisoner, the prosecuting attorney being disqualified.
Order to show cause denied November 18, 1891. | [
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] |
To compel respondent to indorse the names of certain witnesses for the people, upon an information.
Order to show cause denied November 18, 1891. | [
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To compel respondent to grant relator a re-count of the ballots cast for associate justice of the Supreme Court.
Order to show cause denied December 24, 1892.
Held, that the application to the Board of County Canvasser's for the re-count, under Act. No. 208, Laws of 1887, was not made in time. | [
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To compel respondent to reserve from sale certain designated swamp lands, appropriated to aid in improving the channel of a certain waterway, under Act No. 30, Laws of 1883.
Granted May 6, 1885. | [
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The duty of commissioners on claims in the Probate Court to report the proof of a contingent claim presented to them, is not judicial, but ministerial, and its omission cannot be remedied, rectified or redressed by appeal; its observance must be enforced by warrant (Comp. Laws 1871, Sec. 5200, How. Ann. Stat., Sec. 8544), or by mandamus, or by attachment, or the proof must be supplied, if necessary, in some special way. | [
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] |
To compel respondents to issue a third-grade teacher’s certificate to relator.
Denied January 14, 1891, with costs.
The petition avers, that such a certificate was issued to relator in 1887, again in 1888, and again in 1889; that on March 6, 1890, she again applied and was examined; that such examination was deemed satisfactory, and so determined, but the secretary of said board refused to issue said certificate.
The answer alleges that such examination was not deemed and had not been determined satisfactory; that relator failed to pass the examination in March, 1890, and thereupon a special certificate or license to continue teaching was granted to, and accepted by her, with the condition that she appear for further examination Apx*il 26, 1890; that said special license was extended to August 7, 1890, and again to September 20, 1890; then to October 18, 1890, and again to November 29, 1890, upon the like condition; that she did appear in August, 1890, but again failed, and did not thereafter appear, but filed the petition hex*ein November 11, 1890. | [
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To compel respondent, ex-officio treasurer of relator, to deposit "the school moneys in a bank which relator had designated as the -depository of its moneys.
Granted May 13, 1885.
The bank had applied, but the court had denied the writ, holding that mandamus does not lie to enforce a contract. But held that mandamus lies at the instance of the board; that the moneys as received are at once payable to the designated depository and that the treasurer could not go■ behind the records of the board, which on their face were valid action, for the purpose of avoiding the performance of his duty. | [
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] |
To compel respondent to enter upon the records of the township the proceedings of a meeting of the board.
Denied January 29, 1884, on the ground that the meeting at which the proceedings were claimed to have been had was not a legal meeting, as all the members of the board were not present and the proper notice of the meeting was not given. | [
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] |
To compel respondent to spread certain drain taxes upon the assessment roll of his township.
Granted October 10, 1890.
Held, that the township is liable to the county for drain taxes assessed under the township drain law (Act No. 39, Laws of 1869) and charged back to the county by the auditor-general on their being declared void by the court, where it has had the benefit, not only of the credit for such taxes on its settlement with the ■county, but of the money which.it has disbursed, and the township is also liable for the interest legally chargeable to the county on said taxes. | [
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] |
To compel assessment of the amount of a certain judgment.
Denied January 22, 1892, with costs to relator, on the ground that it is too late to issue the writ for any effect upon the tax roll of 1891, but held, that relator was entitled to have the tax spread upon the roll for 1892. | [
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] |
To compel respondents to sign an order for a sum awarded by the board of supervisors to relators for services rendered in preparing and furnishing plans for a court house. All proceedings in relation to the construction of said court house having been afterwards enjoined.
Granted February 19, 1896, with costs.
Respondents claimed that the injunction restrained them from complying with the demand made by relators. | [
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To compel the vacation of an order directing a return upon claim of appeal from a judgment rendered by a justice, where the fees of the justice had not been paid or waived.
Granted July 14, 1874.
Where in such a proceeding the circuit judge has determined that the justice had waived the payment of the fee for making the return, his decision is conclusive, and cannot be reversed on mandamus provided there be any facts stated by the justice having any tendency whatever to establish it; but in this case where no fact is stated having any'such tendency, the order of the circuit compelling a return is vacated by mandamus.
The appellee, in whose favor judgment has been rendered by the justice, having a right to have the pretended appeal dismissed for non-performance of anything made by the statute a condition precedent to the perfection of an appeal, has sufficient interest in the question of payment of the justice’s fee for making a return, especially where execution has issued upon his judgment and been satisfied, to entitle him to a review by mandamus of the decision of the circuit judge.
Mandamus is the proper remedy and the only adequate legal remedy for the review of the action of the circuit judge in such proceedings. A writ of error would not reach the wrong complained of, because the record would not include these collateral proceedings; certiorari, if it riould lie at all, could only be brought after the trial and judgment, and it is at least doubtful whether it would bring up such proceedings.
Where an inferior court has acted judicially in the determination of a question of fact, or a question of law properly involved in the case, in such shape as to give the power judicially thus to determine it, however erroneous the decision, it cannot be reviewed by mandamus; but where the case before such court does not, upon its facts or the evidence, legitimately raise the question of law or fact it has assumed to decide, so that the court •could act judicially upon it, or had the power judicially to make the decision it has assumed to-make, its action is not properly ‘judicial, and no assumed determination of it, nor any order resting upon it, will preclude the remedy by mandamus, provided the case be in other respects a proper one for that species of remedy. | [
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To restrain respondent from causing notice of election of senators under Apportionment Act of 1891, and compel Mm to give such notice under Act of 1885.
Granted in part July 28, 1892. | [
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] |
To compel respondents to prepare assessment rolls according to the requirements of Act No. 200, Laws of 1891, and in preparing said rolls:
(a) To assess the value of any land contract to the owner of such security as real estate;
(b) To assess as real estate to the owner thereof the value of any real estate mortgage executed before the tax law of 1891 went into effect;
(c) To assess to any savings bank or insurance company, as real estate the value of any real estate mortgage owned by such bank or insurance company executed since said tax law took effect;
(d) To assess the value of any real estate mortgage executed since said tax law took effect to the owner thereof as real estate;
(e) To assess the value of any real estate mortgage executed since said law took effect, and owned by a non-resident of the state, to such non-resident owner as real estate;
(f) To deduct tbe value of real estate mortgages owned by any savings bank or insurance company from the value of tbe capital stock of sucb bank or insurance company, as determined, for assessment purposes, by tbe statute in sucb cases made and provided.
Granted March 18, 1892, without costs. | [
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To vacate an order refusing to set aside a taxation of costs and order a re-taxation.
Denied, with costs, June 25, 1884.
The charges were for expenses incurred in the case of attached property consisting of eight barges.
Held, that the affidavit for the re-taxation was not sufficiently specific, and that it is doubtful if such expenses are, after the release of the property upon supersedeas bond, a lien upon the property. | [
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To compel the board to appoint a professor of homeopathy in the department of medicine.
Denied 1856.
Held, that as a general rule it is not competent for a private citizen, when not directly injured, to invoke the aid of the writ to compel a public board to the perf ormance of an omitted duty.
Again, that the interests of the university are committed to the judgment and discretion of the regents, and it is a sufficient answer to say, that they had commenced and were making the investigation necessary to the appointment. | [
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To vacate an order allowing temporary alimony and expenses in a divorce proceeding.
Order to show cause,denied January 14, 1896, as within the discretion of the Circuit Court. | [
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] |
To compel vacation of order allowing a general appearance in a civil suit to be withdrawn, and a plea in abatement to be filed, setting forth that the person serving the summons was an interested party, and therefore incompetent.
Denied October 27, 1894, with costs.
Relator cited Thompson vs. Ins. Co., 52 M. 522; Ogdensburg R. R. vs. Vermont R. R., 63 N. Y. 176; Handy vs. Ins. Co., 37 Ohio St. 366; Miller vs. State, 35 Ark. 276; Rowland vs. Coyne, 55 Cal. 1. | [
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To compel respondent to set aside judgments, where two makers were sued, upon a joint and several promissory note. One defendant signed a cognovit and judgment was entered against him. The other defendant appeared and pleaded the former recovery, and the court held it a bar. Relator asks for a mandamus to set aside both judgments.
Denied April 7, 1892, without costs.
Held, that the first cognovit might properly be treated as a default as to the defendant signing it, under How. Stat. Sec. 7355; that the plaintiff might properly proceed to trial against the other defendant; that the judgment first taken should stand, and that the-Circuit Court would'without doubt set aside the last judgment on proper application. | [
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To compel the issuance of a saloon license under the ordinance, the Mayor having vetoed the resolution of the Common Council granting the license and approving the bond.
Order to show cause denied June 23, 1893. | [
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To compel respondent to vacate order made in a Habeas Corpus, proceeding, discharging from custody two persons held on a body execution issued by a justice upon judgment for trespass, in cutting trees in the highway.
Granted January 22, 1892, with costs. | [
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