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Grant, C. J.
(after stating the facts). The sole question is: Does the transfer of shares in a corporation at an execution sale take precedence of a previous bona fide sale and transfer not entered on the books of the corporation? The authorities are in conflict. In 30 Am. Law Rev. 223 et seq., the decisions in the various States are collected. In that article the author argues forcibly for the execution creditor, and reaches the conclusion that the weight of authority supports that theory. He, however, says: “As a theory, this ground is opposed by most of the text-writers, including Cook, Morawetz, Lowell, and Pomeroy.” Counsel for the defendant have given us the benefit of an able and exhaustive examination of the decisions in the States where the question has arisen. We deem it unnecessary to discuss or to distinguish them. We think our own court has settled the question. Mandlebaum v. North American Mining Co., 4 Mich. 465; Newberry v. Detroit, etc., Manufacturing Co., 17 Mich. 141; McLean v. Charles Wright Medicine Co., 96 Mich. 479. In the Newberry Case it was held that a transfer of stock, though unrecorded, conveys the interest of the holder, and is valid, except as against persons having equities; and that a judgment creditor buying at an execution sale, with notice of the transfer, can get no better title than his debtor had. One Russell was the owner of the stock, as appeared by the books of the corporation, but had sold and transferred his shares to two other parties before Newberry’s levy was made. Chief Justice Cooley said: “The levy was entirely ineffectual.” Justice Campbell said: “No title passed under the execution sale, as Russell’s rights had been already divested.” In the Mandlebaum Case it was held that these certificates of stock are “not commercial paper, in the strict sense of the term, but that the holder is entitled to every right respecting them, as against third parties, which the law confers upon the holder of commercial paper.” In the McLean Case we cited with approval the Mandlebaum Case, and held that the transfer upon the books is not essential to the validity of the purchaser’s title. An execution creditor has no prior equities, nor are we able to see that he has any existing equities in consequence of his levy. He has parted with no interest or right, and is in no worse condition by the failure of the levy than he was before. If his debtor has no title, he can acquire none by a levy and sale, any more than he could by a levy and sale of land, the title to which, upon the record, stood in the debtor, but with which he had parted, or by a levy and sale of personal property in his possession, but to which he had no title. Cook, Stock, Stockh. & Corp. Law, §§ 486, 487; 1 Mor. Priv. Corp. §§ 193-195.
The decree is affirmed.
The other Justices concurred. | [
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Hooker, J.
The plaintiffs commenced proceedings in garnishment against the wife of their judgment debtor; and, after disclosure and answer to special interrogatories were filed, the cause came to trial before a jury upon the statutory issue, and a verdict was rendered for the plaintiffs, from which the garnishee defendant has appealed.
In support of the plaintiffs’ claim, it is urged that there was evidence tending to show that the principal defendant disposed of his property, by deed, assignment, and mortgage, to his wife (the garnishee defendant) and other persons, for the purpose of defrauding his creditors. It was contended upon the trial, by plaintiffs’ counsel:
“1. That these instruments, taken collectively,-amounted to a ‘constructive assignment;’ that it was intended that they should amount to an assignment with preference to certain creditors; that there was a resulting benefit to Mr. Hayes from the entire transaction; and that certain creditors were left out.
“ 2. That the papers transferring the personal property to the wife amounted to a mortgage, and that they were fraudulent as a mortgage, because not filed before the proceedings in this case were instituted.
“3. That, if it was a bill of sale, it w;as presumed fraudulent, because no such possession as the law requires was given and sustained by Mrs. Hayes after it was claimed by her that she took the property into her possession. -
“4. That the general purpose of giving the papers to Mrs. Hayes was to defraud creditors, and that she participated in the fraud, and that, although she might have been a creditor in good faith, Mr. Hayes could not prefer her, by acts of fraud in which she participated, to the exclusion, detriment, delay, and hindrance of other creditors.”
Among the more important questions raised by the defendant are the following:
1. That there was no evidence tending to connect Mrs. Hayes with any attempt upon the part of her husband to hinder, delay, or defraud his creditors.
2. That, if there was, the statute which permits the validity of conveyances of property (especially real property)to be questioned, .and tried by jury, and to form the basis of a garnishee’s liability, is unconstitutional and void.
3. That the undisputed evidence negatives the theory of a constructive assignment for the benefit of creditors, and the question should not have been left to the jury.
At the threshold of the case lies the question raised upon the garnishment statute (2 How. Stat. § 8059, as amended in 3 How. Stat. § 8059). It provides that — •
“From the time of the service of the writ, the garnishee shall be liable to the plaintiff to the amount of property * * * under his control belonging to the principal defendant, * * * and for all property, personal and real, * * * of the principal defendant, which such garnishee defendant holds by conveyance, transfer, or title that is void as to creditors of the principal defendant, and for the value of all property, personal and real, * * * of the principal defendant, which such garnishee defendant received or held by a conveyance, transfer, or title that was void as to creditors of the principal defendant.”
The conveyances to Mrs. Hayes of some of this propT erty, both real and personal, were absolute in form. ■ We understand it to be contended that conveyances of this character, especially of real estate, cannot be overturned in garnishment proceedings. As to real estate, this may be the general rule, where the statute does not provide ,that it may be- done. Rood, Garnish. § 177; 2 Shinn, Attachm. § 468, and note. The rale seems to be different as to personal property. 2 Shinn, Attachm. §§ 587, 588. We have, therefore, no hesitancy in holding that onr statute is valid, so far as it relates to personal property.
The statute was before the court in the case of Fearey v. Cummings, 41 Mich. 383. At that time the statute was not as broad as it is now, and the court held that, where the garnishee had parted with the possession of the property before being served with process, he could not be held liable; but there is no hint that the act was invalid, and the opinion distinctly states that the fraudulent character of the transaction was a question for the jury. That was a proceeding involving personal property; but we are aware of no impediment to the application of the same practice to real estate, where authorized by the legislature. As said in the case last cited, garnishment is a proceeding against the property, and therefore the bona fides of the transaction is open to question. Kansas has a similar statute, and, while it has been before the courts of that State, its validity seems not to have been questioned. Boston Loan & Trust Co. v. Organ, 53 Kan. 386. Apparently few States have applied this remedy to real estate, and we are cited to no case which holds such legislation unconstitutional. The ground upon which counsel place the proposition is that the setting aside of a conveyance of real estate, for fraud, has always been confined to courts of equity. But, whatever we may think of its expediency, we know of no obstacle to the exercise of a similar .jurisdiction by courts of law, if the legislature authorizes it in furtherance of a legal remedy theretofore existing, or created at the time the jurisdiction is conferred. It is not a case where equity is deprived of jurisdiction, or where the nature of a court of chancery is sought to be changed, as in the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226, 13 Am. St. Rep. 438). Nor is it, in our opinion, a departure so radical as to deprive a party of a constitutional right to an equitable remedy. The case of Meigs v. Weller, 90 Mich. 629, involved real estate; and, while the constitutional question was not raised, the finding of fraud in the conveyance was sustained by this court.
It is obvious that an important question was whether this transfer of property to the wife was void because made with the intent to hinder, delay, or defraud creditors. Involved in it were questions relating to the consideration, the motive and intent of Hayes, and Mrs. Hayes’ knowledge of such motive and intent, and design to aid her husband. These were questions of fact, and there was evidence in the case which required their submission to the jury. But counsel seem to have contended that if the jury should find that the claim of Mrs. Hayes was valid, and that she was not a participant in an attempt by her husband to hinder, delay, or defraud his creditors, the property conveyed to her might still be reached, although conveyed to her in payment of debts, or mortgaged to secure valid claims, both of which may be done, as we have repeatedly held. We say, “seem to have contended,” because, unless they did so contend, there was nothing to be gained by the presentation of the constructive assignment theory, inasmuch as the conveyances, if otherwise fraudulent, would have been set aside upon the ground of common fraud, regardless of the nature of such fraud, or the means by which it was perpetrated. To do this (i. e., to reach the property, though no actual fraud were shown), it was only necessary that the instrument be attacked; for, while the wife might be paid or secured by deeds and mortgages, an attempt to provide for her by an instrument known in the law as a “common-law assignment for the benefit of creditors” would fail, unless such instrument should conform to the statute regulating such instruments.
' It was first necessary to build up a common-law assignment, and then proceed to demolish it by the application of the statute; and this has been attempted, as in the case of Austin v. First National Bank, 100 Mich. 613. This statute does not purport to provide a remedy against all sorts of fraudulent conveyances, but does attempt to regulate common-law assignments, which had previously well-settled characteristics. By referring to the statute (2 How. Stat. § 8739), we shall find that it invalidates such assignments where they create preferences between creditors, or where some of the debtor’s property not exempt from execution is omitted from the instrument. In the present case there is no instrument which bears the semblance of a common-law assignment for the benefit of creditors, but a large number of instruments, of different kinds, running to different persons, executed at different times, in addition to which it appears that not all of the property was covered by instruments made before the suit was begun, and that some property was omitted from all of the instruments. The decisions upon this statute are numerous, and they clearly show that, before there is an opportunity for its application, it must appear that there is something in the nature of a common-law assignment to be attacked; some instrument the terms of which, but for the statute, would vest the debtor’s title in another in trust for one or more creditors, whereby other creditors would be precluded from any remedy against the title or equity of the debtor. In short, attempts to provide for a portion of one’s creditors by assignment to a trustee, or when confined to a portion of the debtor’s property, are forbidden; but it does not follow that every attempt to dispose of property fraudulently will be construed to be a void common-law assignment for the benefit of creditors. Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329; Armstrong v. Cook, 95 Mich. 257; National Bank of Oshkosh v. First National Bank, 100 Mich. 485; Austin v. First National Bank, Id. 620. There was, therefore, no occasion to submit this subject to the jury.
A letter from George Hayes, the son of Mr. and Mrs. Hayes, written to a friend, was admitted, upon the theory that he was a. co-conspirator with his parents. It was not inti’oduced by way of impeachment, nor was it a letter so connected with the transaction as to be a part of the res gestee. It was hearsay, and no more admissible than the statements of an agent made after or during the pendency of a transaction, but not in connection with or furtherance of it.
The court very properly criticised the practice of card-playing in the jury-room between counsel and members of the jury; but, as the case must be reversed on other grounds, we need not discuss the subject.
As the cause went to the jury upon an erroneous theory, we are constrained to reverse it. The record contains many assignments of error that we do not pass upon, as we are of the opinion that the trial of the actual merits of the case should be attended with little difficulty or danger of error.
We notice a growing practice of citing Michigan cases in foreign publications. There is no objection to this, but we must insist upon the citation, also, of our own edition of the Reports, where cases have been reported.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Hooker, J.
The relator and one Reynolds were opposing candidates for the office of supervisor of one of the wards in the city of Manistee at the last election, held in April of the present year. The inspectors of election determined that the relator had received 187 votes, and his competitor 186 votes, and that the relator was elected. Upon a recount had at the instance of Reynolds, the common council determined that each candidate received 186 votes, and against the protest of the relator, who refused to take any part in the proceedings, determined by lot that Reynolds was elected. The relator now asks a mandamus to compel said council (which is the lawful board of canvassers) to issue a certificate of election to him.
The result hinges upon two ballots, — one which the council counted for Reynolds, and one which it refused to count for the relator. The only marks upon the former consisted of two parallel horizontal lines across the circle at the head of the Citizens’ ticket. A similar ballot was held unlawful in the case of Attorney General v. Glaser, 102 Mich. 405. As the effect of a rejection of this ballot would,have given the relator a majority, it is unnecessary to consider the propriety of the rejection of the other ballot. The writ should issue, but without costs. As the old council is functus officio, the certificate may issue by the present council.
The other Justices concurred. | [
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WlEST, J.
December 16, 1923, while working at common labor in defendant’s employ, plaintiff, in lifting a plank, sprained his back. He quit work for three and one-half weeks and then returned and worked at lighter labor until early in March when he decided to take a rest and left defendant’s employ. He changed his mind about taking a rest and wanted to return to work for defendant but was not taken back, and, after seeking other employment and declining two offers because the work was too' heavy, he secured work in a restaurant May 17, 1924, and was working there at the time of his first and second hearings for compensation. April 28, 1924, he made application fsor compensation, stating therein that the injury to. his back caused him to lose three weeks’ time, he was then suffering with his back a great deal and asked $28 for two weeks’ compensation and such other relief as he was entitled to have under the workmen’s compensation law. This petition was heard by a deputy commissioner May 20, 1924, and testimony taken. Plaintiff then claimed his injury incapacitated him from performing heavy labor. At that hearing he testified:
“Then I went to the first aid several times and then it stopped hurting, and I went back to work and it has been settling in my back, since I left the Ford Motor Company. It is hurting a little now, so far as that goes. * * * All I know is that I suffered with my back from lifting that plank, and have been suffering practically ever since. My back is hurting right now from it. That is, it has not got well since.”
He also stated that his claim was limited to $28 for lost time and about $1.75 for liniment, etc. He was awarded compensation for two and one-half weeks at $14 per week, and $1.75 for medical expenditures. This award was paid by defendant and receipt given by plaintiff.
August 27, 1924, plaintiff filed another petition in which he alleged the same injury and the award mentioned, and:
“Your petitioner further represents that since March 25, 1924, he has been disabled in the employment in which he was engaged at the time of the said injury and is entitled to- further compensation.
“Your petitioner further represents that he worked as best and as long as he was able considering the condition of his back, but that on or about the 25th day of March, 1924, he became no longer able to continue in the heavy work at which he was then employed, and that he was promised lighter work, but was never assigned same.
“That since said time he has had several opportunities to obtain other employment but could not accept same because of the condition of his back caused by the original injury on December 16, 1923; that, as a result thereof he was entirely out of employment since the 25th of March, 1924, to May .17, 1924, and that from May 17, 1924, to date he has been making $13 per week doing light work at a restaurant.”
Upon a hearing, and over objection, he was awarded $7.80 per week from May 21, 1924, to September 16, 1924. The order suspended payment after September 16th because defendant had offered plaintiff a job which it was admitted he could perform. This petition on its face was for a rehearing pure and simple, and should not have been acted upon. The board may neither grant or hold a rehearing. Harris v. Castile Mining Co., 222 Mich. 709; Levanen v. Seneca Copper Corp., 227 Mich. 592. There was no evidence that his physical condition was worse than it was at the time of the first hearing. The evidence of plaintiff brought no new subject-matter before the board, for the reasons he gave for further compensation all existed at the first hearing and were then presented. His physical condition was the same at the first as at the second hearing. He left defendant’s employ March 6, 1924.
We quote from his testimony at the second hearing:
“I told my foreman the reason I was leaving that I was not feeling so well, and my back was not well, and that I was going home, I thought I would take a rest for a while. * * *
“Q. Now, just what is it that troubles you?
“A. Well, it seems that I have a strained back, and if I lift anything heavy, or if I bend over, it hurts me quite a little bit, and if I lean to one side it hurts, and in working in the restaurant, a little pail of garbage, I cannot carry that out by myself. * * *
“Q. Now, Mr. Anderson, the pains that you experience now, on lifting something heavy, are those the same pains, or similar pains that you received immediately after the injury?
“A. Yes, sir.
“Q. The same kind of pains?
“A. Yes, sir.
“Q. And you say they occur in the small of the back on both sides of the spine?
“A. Yes. * * *
“Q. How is your condition, improving?
“A. Well, I don’t think it has improved very much since I got hurt. At times, I felt pains in my back, and when I get, — after I lift something, it makes me feel awful weak, and some nights I can hardly rest in bed on account of pains I have in my back. * * *
“Q. Anderson, what is your condition at the present time comparing it to what it was at the time of the last hearing?
“A. To what it was ?
“Q. What is your condition at the present time comparing it to what it was at the time of the last hearing?
“A. Well, at the last hearing, why, I stated up here, and also in the petition that I sent to Lansing that I was not well, and was still suffering with my back and have been all along ever since.
“Q. Well, is it better, worse, or the same?
“A. It is practically the same. * * *
“Q. Have you ever claimed you have entirely recovered from the back injury at any time?
“A. No, sir.
“Q. Since the last injury?
“A. No, sir, it has not been well at all. * * *
“Commissioner Beattie: Well, my question was at the time of the last hearing, if you claimed you had recovered at that time?
“A. No, sir, I did not. It was in that petition that I sent to Lansing that I was suffering greatly with my back and have not recovered.”
The award is vacated, with costs to defendant.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. . | [
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Bird, J.
Plaintiff filed his petition under 3 Comp. Laws 1915, § 11417, praying to be relieved from further compliance with a decree for alimony made in the Wayne circuit court in 1908. The parties were married in 1893, and lived together until some time in 1908. There were two daughters born to them. In 1908 their disagreements culminated in a decree of divorce to the wife on her cross-bill. The terms of alimony were agreed upon by the parties and incorporated in the decree. It gave the custody of the young daughters to the mother, gave her all the household furniture, and provided that plaintiff should transfer to her 100 shares of stock of Parke, Davis & Company, subject to an incumbrance of $25 a share. It provided a payment of $125 a month, and further provided that plaintiff should take out a life insurance policy for $3,000, payable to defendant, at an annual cost of $60. These provisions were complied with until January, 1910, when plaintiff applied to the court for a modification of the provision for alimony. This petition was contested on the ground that the young daughters, who were of the ages of 13 and 16, were in school in Europe, and that defendant was in poor health and unable to support herself. At that time plaintiff was employed by Parke, Davis & Company as an expert chemist, and was receiving $3,000 a year. About a year after the divorce plaintiff was remarried. After taking into consideration all of the circumstances the trial court refused to modify the decree. On appeal to this court the monthly payment of $125 was reduced to $90, and the remainder of the decree was allowed to stand (166 Mich. 248).
Plaintiff filed this petition in December, 1924, claiming the circumstances had so changed since 1910 that he ought to be relieved altogether from the payment of alimony. Defendant contested the petition, and after a very full hearing the trial court granted the prayer of plaintiff’s petition. Defendant has appealed from that order, and claims that the amount of alimony should be increased rather than diminished, as plaintiff is now receiving $375 a month, and she is in poor health and is unable to support herself, and needs medical attention. Plaintiff shows that when the decree was granted their two daughters were in school in Europe and had to be reared and educated; that defendant is now relieved of that duty, as both of the daughters were married and had homes of their own, in the city of Baltimore; one of the said daughters, however, is now deceased. Plaintiff further shows that defendant is a woman now 47 years of age, and that he is 16 years older, with a wife to support and a son, 15 years of age, to support and educate. It is further shown that defendant resides in the city of Baltimore, is in good health, is well educated, is able to speak French and German, and is well qualified to earn a comfortable living for herself. It is further shown that she has received during the years the sum of $19,385 as alimony; that she has received $2,000 in cash dividends from the Parke, Davis & Company stock and that had she conserved the stock and stock dividends they would now be worth $13,500. Besides this plaintiff has paid $600 in insurance premiums for her benefit. Defendant replies to this that she was obliged to sell the stock to educate the children. Plaintiff also shows that he is now nearing the age of retirement, and will receive, when retired, from $1,200 to $1,800 a year; that his home is only partially paid for, and that the bulk of what has been paid thereon was paid by his present wife; that he has no other property, and that he has some physical troubles which will require an operation in the near future.
Considering the financial circumstances and earning power of plaintiff, we are of the opinion that defendant has received a bountiful share of plaintiff’s income during the last 17 years. Had defendant educated her children in America, and saved the expense of ocean voyages, lived within her means, and conserved her shares in Parke, Davis & Company, she would now be in comfortable financial circumstances. While the testimony as to her health is somewhat in conflict, we are satisfied that she is now in reasonably good health, and with, her acquirements she is able to earn a comfortable living for herself. Plaintiff is getting to be an old man, with practically nothing laid aside for his declining years. He is desirous of aiding his boy to a college education, and is anxious to get his modest home paid for. In 1908 he gave her practically all the property he had, and since has paid her $19,385. If her income from the stock be added to this she has realized about $2,000 a year since 1908. The trial court was persuaded that plaintiff could not well pay more without impoverishing himself. We are inclined to the same opinion and, therefore, will not disturb the conclusions of the trial court.
The order of the trial court is affirmed.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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] |
Wiest, J.
' About 1 o’clock the afternoon of December 30, 1922, defendant Lynch, in the employ of the defendant Reo Motor Car Company of Illinois, was driving an empty passenger bus south over a paved highway in the country and Arthur N. Sirrine was driving a Ford touring car north over the same highway. There was a collision between the bus and auto, and Mr. Sirrine received injuries causing his death within a few hours. This suit was brought to recover damages under the claim that the collision was caused by the negligence of the driver of the bus in crowding the road. The paved part of the road was 17 feet wide, with a gravel shoulder about a foot and then sod slightly higher and for about 3 feet to a descent into a ditch. The bus, over all, was 7 feet wide, and it was alleged, and the jury evidently so found, that the bus driver was proceeding with the left wheels of the bus a foot over the center line of the pavement, and with the overhang of the bus still further over and this led to the collision, even though Mr. Sirrine was driving with two wheels of his auto a foot or more off the pavement. Plaintiff recovered a judgment of $4,000, and the case is here by writ of error, and we are asked to reverse for errors claimed in rulings and in instructions to the jury.
A witness for the plaintiff, living near the place of accident, heard the crash of the cars coming together and immediately went to the scene of the accident and stated that he could see the tracks of the Ford car and the tracks of the bus and,
“We could trace the marks of the bus wheels from where it stopped back of the place of the accident. We could see them. And the bus was about — his left wheels were from a foot to a foot and a half over the center of the road that would bring them on the east side of the center — and those other tracks, at the point of the accident they was out on the east side of the road, the right side was on the grass line.”
It is claimed:
“It was not for the witness to say that a certain track was a Ford track and that a certain other track was a bus track. When these witnesses went out to observe the road andi observe the tracks cars had been coming and going and it was for the witness to describe the tracks, describe the marks made and then describe the kind of tires that were on the Ford car and the tires that were on the bus, from which the jury might make their own observations and reach their own conclusions.”
We find no merit in this. With the cars there and the marks on the pavement visible and traceable, we think the witness might well say he could see the tracks of the Ford car and the tracks of the bus.
This witness was asked:
“Right at that time when you didn’t know whether he (Mr. Sirrine) was dead or alive and you had to wait for Mr. Lynch to start getting him into the house, were you more interested in his condition or in looking at some tracks on the road?”
and an objection thereto sustained. The court might well have admitted an answer, but exclusion thereof does not constitute reversible error.
A witness some time before the trial made and signed a statement, and, during the course of his cross-examination at the trial, he was asked about the statement, and then this question was put to him:
“And it was vivid in your mind at that time what occurred, was it not?”
An objection to the question was sustained.
It is said:
“His testimony as given at the- trial was seriously in conflict with his statement given much earlier and counsel was endeavoring to find out if in the mind of the witness the occurrences of the day of the accidént were more vivid when he gave the statement than when he was giving his testimony.”
Again we say the court might well have admitted the answer, but we find no reversible error in the ruling.
The court instructed the jury:
“The burden is upon the plaintiff to satisfy you by a fair preponderance of the evidence of these facts: 1. That the driver, James Lynch, was negligent in operating the bus at the time and place alleged in the declaration. ' 2. That the plaintiff’s decedent, Arthur N. Sirrine, was free from contributory negligence.”
It is claimed it is improper to use the words “fair preponderance,” because there is, in law, no degrees of preponderance; citing Tyler v. Wright, 188 Mich. 561. Technically, counsel is right, but defendants cannot assert prejudice because the court imposed upon plaintiff a greater burden than the law requires.
The court also instructed the jury that:
“It is the duty of the driver of every motor vehicle to keep his vehicle to the right of the center line of the highway when- he is meeting or about to meet another vehicle approaching from the opposite direction.”
Also,
“If you find that the defendant’s motor bus was at the time of the accident being driven on the wrong side, or partly on the wrong side of the center of the highway, then the defendant Lynch was presumably guilty of negligence.”
This was followed, however, by the instruction:
“The defendant, Lynch, had a right to drive his car upon any part of the highway provided he kept his car under such control that he could seasonably turn to the right side of the road when meeting another vehicle.” . »
Also,
“The fact that one does not give the other the full half of the road to which he is entitled is not conclusive evidence of negligence, and even if negligent it still must be established by a preponderance of the evidence that this part failure was a proximate cause of the injury.”
We do not think that the instruction left the jury to plant verdict upon the presumption to the ignoring of the disclosed circumstances. See, on the question of presumption arising from failure to keep to the right of the center of the road, Winckowski v. Dodge, 183 Mich. 303; Black v. Parke, Davis & Co., 211 Mich. 274; Corey v. Hartel, 216 Mich. 675; Russell v. Twiss, 224 Mich. 532.
It is insisted there was no evidence justifying the following instruction:
“A party suddenly in peril is not required to do that which after the period is ended it is seen he might have done and escaped; the law makes allowances for lack of coolness in judgment incident to such peril. A person is not expected to exercise the coolness and forethought that an uninterested bystander might show; nor is he required to take the same precaution which it might appear afterwards might have avoided the injury.
“In this case, if you find that Arthur Sirrine was driving his car in a proper, prudent and careful manner and suddenly found himself confronted with a choice of risking a collision or going into a ditch he was not guilty of contributory negligence by reason of the fact that he did not turn his car into the ditch to avoid the collision.”
The evidence relative to- the tracks of the Ford ear disclosed that Mr. Sirrine, at the time of the accident, was driving with the two right wheels off the pavement and on the sod, and to give much more of the road would have placed him in the ditch. The instruction complained of was sufficiently supported by the evidence.
The speed at which Mr. Sirrine was driving and the progress of his car, before and after the collision, made the question of his exercise of care or of want thereof a question of fact for the jury. Defendant’s requests to charge, having merit, were sufficiently covered in the instructions to the jury.
In the brief counsel for defendant assert error in the following instruction to the jury:
“If you reach the question of damages, the plaintiff is entitled to recover, if entitled to recover at all, the same damages that Arthur Sirrine would have been entitled to had he brought the action in his lifetime.”
They also point out the failure of the court to instruct the jury to award only the present worth of future damages, and omission to give the rule relative to the ascertainment thereof. We find no assignment of error or request to charge bringing such questions before us and, therefore, may not consider the same. Circuit Court Rule No. 66; Morgan v. Railway Co., 138 Mich. 626 (70 L. R. A. 609); Lamb v. Lamb, 161 Mich. 80; Webber v. Billings, 184 Mich. 119.
We find no reversible error. The judgment is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, and Fellows, JJ., concurred. Moore, J., did not sit. | [
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Steere, J.
Appellant seeks by mandamus to compel defendant to set aside an order made April 13, 1925, in the circuit court of Baraga county, refusing to “sign a case made or extend the time in which said case on appeal may be settled and the record may be signed,” in a chancery suit begun and heard in said court, entitled Grand Rapids Trust Company, a Michigan corporation, as trustee of Charles E. Cartier and Edward M. Holland, copartners trading under the name of Cartier-Holland Lumber Company, v. John O. VonZellen and John O. VonZellen and Oscar Von Zellen, copartners under the name of Arvon Lumber Company.
The bill in that suit was filed to foreclose a mortgage on lands in Baraga county. It was heard and submitted the latter part of April, 1924. A decree of foreclosure was rendered in plaintiff’s favor dated May 10, 1924, and filed on May 12, 1924. On.May 19, 1924, Walter M. Nelson of Detroit was substituted as counsel for appellant in the place of the previous attorney of record. On that date appellant’s, claim of appeal in said suit was filed and served. Within the. time required by law the clerk’s fee on appeal was paid and a costs bond in the sum of $250 filed. The stenographer’s certificate showing that transcript of the testimony had been ordered was filed on May 29, 1924, a consent order was entered extending time for perfecting the appeal to August 29, 1924. A transcript of the testimony was furnished appellant’s counsel July 8, 1924. On August 19, 1924, a consent order was made on appellant’s motion further extending the time to perfect his appeal to September 29, 1924. Within the time so extended appellant’s appeal was not perfected. No cost or stay bond on appeal was approved by the judge who heard the suit, nor presented to him for approval after notice to plaintiff’s counsel of time and place, nor was any case containing the evidence for review presented to the judge for settlement in compliance with Circuit Court Rule No. 66 on or before September 29, 1924. No further application was made to extend the time until April 13, 1925, when the motion in question here was presented to the trial judge, after proper notice to opposing counsel, by attorney George Barstow, of Menominee, who had recently been substituted as counsel in place of Attorney Walter M. Nelson, of Detroit. This motion was not noticed for hearing until after plaintiff’s counsel had caused the circuit court commissioner of Baraga county to advertise a foreclosure sale of the mortgaged premises to. be held on February 16, 1925, pursuant to the decree of foreclosure in said suit. The sale was adjourned at the request of appellant’s counsel to March 16, 1925, and on that day again adjourned at appellant’s request to April 16, 1925.
Affidavits of the respective sides were presented in support of and against this motion. That granting or denying the same nearly a year after the decree had been on due notice settled, signed and filed, and over six months after the last extension of time had expired, was discretionary with the judge who heard the case is well settled. Ostrander v. Alpena Circuit Judge, 211 Mich. 575; Laphurn v. Wayne Circuit Judge, 231 Mich. 449, and cases there cited.
The only question before us is whether appellant’s protracted delay was excused and good cause for extension of time so clearly shown on April 13, 1925, that the circuit judge can affirmatively be found guilty of an abuse of discretion in denying said motion.
It appears by the affidavit of Attorney Nelson that in the months of August and September, 1924, he prepared a case made for review and caused the same to be printed in the form of galley sheets, one set of which he sent to plaintiff’s attorneys in Grand Rapids who acknowledged its receipt; that he thereafter received from them suggestions for alterations and modifications of the same which he incorporated in the galley sheets, and so corrected had the record of the case for appeal printed; that later certain omissions were noted, information for which was furnished by plaintiff’s attorneys, and by agreement inserted by him in said record; that “the record of the case made was agreed upon by attorneys for the parties hereto a considerable period before the 29th of September, 1924.”
The version of plaintiff’s counsel as to that transaction is that without previous arrangement Attorney Nelson sent them so-called “galley proof” of the proposed record without any transcript of the testimony, which they thereupon requested and received from him. They then made certain corrections in the proposed record; but there were yet certain blanks in the galley proofs for which they did not have the information ; there was at no time any intention of treating said printed record received and partially corrected by them as a record of the case on appeal without the same having been first submitted to the court and approved by it, and they at no time consented that the same “be printed and filed before it was agreed to by counsel for plaintiffs and approved by the court,” nor to extension of time to settle the same beyond September 29, 1924.
Between May 27th and September 13, 1924, there was some correspondence between the judge who heard the suit and appellant’s counsel. It is argued as a ground for holding defendant abused his judicial discretion in declining to grant appellant’s motion presented on April 13, 1925, for settlement of the case or further extension of time, that in a letter of May-31, 1924, to Attorney Nelson, advising that the $250 cost bond filed with the clerk of Baraga county had not been presented for approval, he indicated that a suitable stay bond would be required “for the purpose of settling the case and perfecting your appeal.” In the connection used we see nothing misleading in this quotation. First referring to. the cost bond the judge said no application had been made to him to designate the penalty or approve form and sureties, cited the sections of the statute relative to bonds on appeal, and said:
“I shall be satisfied with a bond in the penal sum of $5,000, but in order that you may have a stay for the purpose of settling the case and perfecting your appeal and that the appeal may operate as a stay, you must have the condition of the bond comply with the statute above cited.”
On June 3, 1924, appellant’s counsel replied, saying among other things, “It is the desire of the defendants that the bond approved by you shall operate as stay until the determination of the case.” He also submitted on that subject the “two propositions” that a bond for security for costs alone would be sufficient because the value of the lands against which foreclosure was decreed “amply covers the amount found due” and in event the judge felt “the bond should secure not only the payment of costs but should provide a duplicated security for the payment of the principal sum with interest” he respectfully submitted that the bond “should be only a reasonable sum — more than the total found due, as for instance $3,750 or $4,000.”
On June 6, 1924, the judge replied, referring to and repeating in part the statements in his previous letter, again cited the statute and advised that the cost bond filed could not operate as a stay bond, he considered $5,000 as a reasonable amount for such bond, and suggested a bond in that amount conditioned as required by statute could be prepared, “and either give notice of its presentation for appeal to me, or secure-the consent of counsel for the plaintiffs.”
Certainly a cost bond on appeal does not operate as a stay bond. We find nothing in these letters but helpful suggestions with reference to the requirements of the statute and designation of the amount of the bond to be given as the statute requires for a bond which, as appellant’s counsel wrote was desired, “shall operate as a stay until determination, of the appeal.”
Defendant’s answer upon order to show cause states in part:
“That since September 12, 1924, this defendant heard nothing more from said Nelson regarding his appeal. That the last extension of time granted by him expired September 29, 1924. That no application was ever made to extend the same until application of April 13, 1925. That thereafter, this defendant was in Detroit from December 8, 1924, to December 22, 1924, holding court in the Wayne circuit. * * * That on said occasion 'this defendant did see said Nelson and called his attention to the fact that nothing had been done by said Nelson regarding the matter, and that the cost bond had never been noticed for approval or approved by stipulation, and that no stay bond had been filed and noticed for approval or was such notice ever waived or was such approval ever consented to or was such bond ever approved, and no case settled on appeal; * * * of all of which defendant had previously notified him in writing by the correspondence. * * * That between September 29,1924, when the last extension of time expired, and April 13, 1925, when plaintiff’s motion to settle a case or for an extension of time was made, this defendant had held terms of court in Baraga county as follows: October 22, 23 and 25, 1924, and January 12, 13 and 14, 1925. * * *
“That in denying plaintiff’s motion to settle a case on appeal or to extend the time, defendant acted in the exercise of his best discretion and believed and still believes that from July 8, 1924, the date when the transcript of testimony was furnished to defendant in that suit, until September 29, 1924, when the last extension of time expired, defendant therein had ample time to perfect his appeal; and that no showing whatever was made in support of said motion sufficient to warrant this defendant, after more than six months additional delay had occurred, without plaintiff having made any effort to secure an extension of time or settle a case on appeal, 'and on the eve of the foreclosure sale, in signing the case made or granting an extension of time at that late date.”
We are unable to affirmatively find that this record establishes the abuse of judicial discretion charged.
Writ denied.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Sharpe, J.
Plaintiffs bring this action to recover the amount due them on a contract entered into with defendant whereby they agreed to furnish the material and do the painting and finishing of a store and apartment building in the city of Muskegon. They recovered judgment for $561.50. Defendant concedes a liability of $310.
The contract provided that plaintiffs should use a specified kind of varnish. As the work progressed, defendant discovered that plaintiffs were using a different kind. The controversy was settled by an agreement that defendant’s agent should purchase the varnish, and that it should be charged to plaintiffs. This was doné. The work, when finished, was accepted by defendant; $251.50 worth of the varnish furnished had not been used. The parties differed as to whom it belonged. Finally, the company from whom it was purchased agreed to accept its return and refund the amount paid for it. Defendant insists that plaintiffs agreed to return it, while plaintiffs contend that the burden of doing so rested on defendant. The dispute in this respect was submitted to the jury in a charge of which no complaint is made. They found for the plaintiffs. Defendant’s motion for a new trial, for the reason that the verdict was “contrary to the great and overwhelming weight of the evidence,” was denied. The only assignment of error is the denial of such motion.
Defendant, his architect, Mr. Allen, and his agent in charge of the work, Mr. Buck, testified that plaintiffs agreed to return the varnish. This was denied by both of the plaintiffs. The trial court saw the witnesses, and heard them testify. It will serve no useful purpose to review the evidence. It does not disclose such a preponderance in favor of defendant’s claim as required the trial court to set the verdict aside or as justifies us in doing so.
The judgment is affirmed.
McDonald, C. J., and Clark, Bird, Moore, Steeke, Fellows, and Wiest, JJ., concurred. | [
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] |
Wiest, J.
Defendant was convicted of murder in the first degree, under a charge of having administered strychnine poison to Zelon Lake at the village of Jonesville, Hillsdale county, on the 26th day of December, 1922, and she prosecutes review by writ of error. Defendant is in middle life, passed at times as the wife of Zelon Lake, although they were not married and, at the time of the alleged killing, was on a holiday trip with him at the home of her niece in the village of Jonesville. It is the theory of the prosecution that defendant administered the strychnine poison in a dish of oatmeal or a cup of coifee she carried to the deceased in a bedroom shortly after the noon meal. Mr. Lake did not partake of the noon meal but, shortly thereafter, complained of not feeling well and retired to a bedroom. His death occurred about 4 o’clock in the afternoon. So far as the evidence discloses the relations between defendant and Mr. Lake were agreeable, and they were making Christmas time visits to his mother in Marshall and to her relatives.
It is claimed no motive was shown. Although sometimes confused, motive and intent are not synonymous terms. A motive is an inducement for doing some act; it gives birth to a purpose. The resolve to commit an act constitutes the intent. The motive inducing the resolve, while illuminative of the intent, is necessarily merged therein and is not an essential element in proving commission of crime. The essential element of intent is not at all dependent upon motive. If the intent appears the motive inducing the design may be shown but if not shown the design remains and, as the intent governs, the inducement creating the intent is not essential. A motive is a relevant but not an essential fact in proof of murder. - It is true it exists whether disclosed or not. If disclosed it may aid the prosecution, but if not disclosed, or only faintly discernible, its absence or hidden character does not abort the charge if the intent is established. The evidence of motive was meager but what there was of it went to the jury, and properly so, on the question of intent.
It is said the law requires a record to be kept of all purchases of strychnine and the prosecution failed to show any purchase by defendant. True, but while this might have been, and probably was urged to the jury, it presents no question of law. Proof of purchase by defendant might have strengthened the prosecution, but the absence of such proof does not nullify the conviction. The prosecution called all eyewitnesses of the death bed scene and they gave testimony that Mr. Lake’s death was peaceful and without convulsions. The jury evidently found that strychnine was given in oatmeal or coffee at least two hours before death, caused death, and notwithstanding the testimony of all eyewitnesses, death was preceded by convulsions. A fatal dosé of strychnine, if it does not cause immediate death, produces severe convulsions ending in death. If the poison found in the organs of the body was given about two hours before death the doctors agree there must of necessity have been convulsions. This uncontroverted medical evidence was directly opposed to the testimony of the eyewitnesses and presented an issue of fact for the jury. The medical evidence was also to the effect that the accepted minimum fatal dose of strychnine is about one-half grain, and may be slightly less. It is quick in action, goes to all parts of the body, because it is taken up from the stomach and intestines and carried through the blood stream everywhere the blood circulates, and a fatal dose causes death from almost immediately to three hours, though it may be extended to six or seven hours, and, if an analysis of a well sampled one-half of the stomach of a dead body, one-half of the liver and one-half of the kidneys disclosed 26/100 of a grain of strychnine there would be sufficient in the system to cause death, for there would be approximately the same amount in the other half of the organs mentioned, and if those organs contained 52/100 of a grain of strychnine it would of necessity have produced convulsions and was sufficient to have caused death.
Charles L. Bliss, a chemist and toxicologist, made a chemical analysis of a well sampled half of the stomach, liver and kidneys, and found therein 26/100 of a grain of strychnine and, over objection, was permitted to say there was, of necessity, an equal amount in the unexamined portions of the same organs. His qualification to give such conclusion is attacked. The qualified medical testimony relative to the nature of strychnine and the method of its operation in a human body through the circulatory system rendered his conclusion true beyond question. His testimony was supplemented by uneontroverted competent medical testimony showing the correctness of his statement and, without passing upon the question of his qualifications, we can discover no harm done defendant by his statement of a fact conclusively established by medical expert testimony. This record fully supports the finding that the death of Mr. Lake was caused by strychnine poison.
Some little time after death the body was exhumed, the brain sectioned, the spinal cord examined, the heart sectioned and a complete examination made to determine whether there was any cause of death other than by strychnine poison, and none found.
It is insisted the evidence failed to show death was caused by crime. This has led us to make a critical examination of the evidence, in response to the duty placed upon us by the statute, relative to review, in this court, of the denial of the motion in the circuit for a new trial on the ground the verdict is against the weight of the evidence.
This involves only the question of whether the finding that the strychnine was given Mr. Lake by defendant was against the weight of the evidence. Upon this question we need to consider the relations ■existing between defendant and Mr. Lake, and the circumstances surrounding his death. Mr. Lake and defendant were residents of the city of Jackson. His mother, and a sister lived in the city of Marshall and, in company with defendant, he visited them .two days before his death and appeared in good health. From Marshall Mr. Lake and defendant went to the village of Janesville to the home of a niece of defendant, reaching there a little after midnight, visited until near daybreak, when they retired. The niece had children and a Christmas tree was prepared for them and presents contributed by Mr. Lake and defendant. They remained at the home of the niece Christmas night, occupying the same room and bed. The day following Mr. Lake was up and around the house but complained of not feeling well, and, shortly after the noon meal, retired to a bedroom. Some time between 2 and 3 o’clock that afternoon defendant took him a dish of oatmeal and a cúp of coffee, and about 4 o’clock he died. The night following his death defendant drove to the city of Jackson, had some repairs made to the automobile, claimed to be the wife of Mr. Lake and had the cost charged to him, and, again before the funeral, went there and made inquiry of the secretary of the Moose lodge about the insurance carried by Mr. Lake, found he was in arrears and offered to pay without divulging the fact he was dead. Mr. Lake held only a burial benefit in the order of Moose. His property consisted of an old Ford automobile and a violin. He had $50 due him where he worked. The record is barren of any trouble between Mr. Lake and defendant. At the time of his death he and defendant were on a holiday visiting trip to his and her relatives. . At this point it is proper to observe the want of motive leading defendant to form the design to commit murder. It seems incredible that a desire to get Mr. Lake’s worldly possessions induced defendant to kill him. The burial expenses probably exceeded the value of the old automobile and violin. Any possible theory of hope of pecuniary benefit from the estate of Mr. Lake is punctured by the fact that defendant was not his wife and, therefore, could not take any part thereof. She appears to have known of his insurance in the order of Moose and, in the absence of anything to the contrary, it is but fair to assume she was aware it was no more than a burial benefit.
We have not overlooked the trouble between de fendant and Mr. Lake’s relatives over the automobile after Mr. Lake’s death, the claim she was his widow, collection of his small back pay, the asserted tubercular suffering of Mr. Lake, ending in his death, and all else tending to show the commission of the crime charged. True, defendant had opportunity to administer the poison, but did she give it? Upon consideration of all the evidence we are persuaded the verdict of the jury, finding defendant administered the strychnine to Mr. Lake, was against the weight of the evidence, and a new trial should have been granted.
The conviction and judgment are reversed, a new trial granted, and defendant remanded to the custody of the sheriff of Hillsdale county, to await such further proceedings as may be proper.
McDonald, C. J., and Bird, Sharpe, Steere, and Fellows, JJ., concurred. Clark and Moore, JJ., concurred in the result. | [
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] |
Moore, J.
The plaintiffs are owners of a large farm and considerable personal property. On June 1, 1918, a policy for $5,500 insurance was issued on the interest of Ferdinand Dietzel in the property, and a like policy was issued to Herbert Dietzel on his interest in the property. These policies were issued by a company which we will call the Flint company. June 1, 1920, the defendant company issued to the two plaintiffs a policy of insurance for $19,600. In the application mention was made of the two policies carried by the Flint company, and it was expected they would both be canceled. Shortly thereafter the Flint company was requested in writing to cancel the two policies. Through some mistake only the policy issued to Herbert Dietzel was canceled.
December 20, 1920, the plaintiff sustained a fire loss. The Flint company paid the loss on articles not covered by the policy of defendant company. The defendant paid the other loss and by the advice of an attorney the plaintiffs assigned their claim against the Flint company to the defendant company.
February 28, 1921, the defendant company issued another policy to the plaintiffs for $3,900 representing in this application that they did not carry any other insurance. All of the policies had what is known as a pro rata clause in the case other insurance was taken.
April 17, 1922, a fire caused by lightning destroyed buildings and personal property which plaintiffs claim were of the value of $6,375.12. On the same day plaintiffs sent a telegram to the defendant advising it of the loss, and asking it to send an adjuster. On May 3d, the secretary of the company and Mr. Christie visited the scene of the fire for the purpose of adjusting the loss. On May 19th, Mr. Christie notified plaintiffs that the loss had been adjusted at the sum of $3,657.10. The plaintiffs claimed this amount should have been $1,680.03 larger, and gave notice of an appeal to the board of arbitration.
After a considerable delay for which both parties were responsible the board of arbitration made an award allowing the plaintiffs the sum of $2,022.59, and the defendant tendered plaintiffs that amount. This reduction from the amount of the adjustment was made because the arbitrators learned that the policy of the Flint company issued to Ferdinand Dietzel had not been canceled and insisting upon the right of the defendant company to prorate the insurance, though the Flint company insisted its policy was suspended automatically by the fact of insurance in the defendant company. The Flint company policy had a provision that it should be suspended in case other insurance was obtained unless consent thereto in writing by the secretary of said company was given, and that such consent had never been given.
The defendant appellant raises many questions in the brief, but its counsel states that the real question is whether the defendant company had a right to prorate the insurance. In considering this question it may be stated that it is unnecessary to decide just what the status is between the Flint company and Ferdinand Dietzel. If that policy was still a valid one it covered only his interest in the policy and did not inure to the benefit of the Dietzel brothers.
In the recent ease of Lubeisky v. Insurance Co., 217 Mich. 654, Justice Bird, speaking for the court, said:
“The rule applicable in such cases is stated in 14 R. C. L. p. 1310:
“ ‘A provision in a policy that in ease of any other insurance on the property insured, made prior or subsequent to the policy, the assured shall be entitled to recover no greater proportion of the loss than the sum insured bears to the whole amount so insured therein, applies only to cases where the insurance covers the same interests, and can have no application to insurance obtained upon another distinct insurable interest in the property, citing Traders’ Ins. Co. r. Pacaud, 150 Ill. 245 (37 N. E. 460, 41 Am. St. Rep. 355); Home Ins. Co. v. Koob, 113 Ky. 360 (68 S. W. 453, 58 L. R. A. 58, 101 Am. St. Rep. 354); Ætna Fire Ins. Co. v. Tyler, 16 Wend. (N. Y.) 385 (30 Am. Dec. 90); Niagara Fire Ins. Co. v. Scammon, 144 Ill. 490 (28 N. E. 919, 32 N. E. 914, 19 L. R. A. 114).’ * * *
“See, also, 4 Joyce on Insurance, § 2490; 4 Cooley’s Briefs on Insurance, p. 3105; Johnson v. Insurance Co., Holmes (U. S.), 117 (13 Fed. Cas. 776); Fox v. Insurance Co., 52 Me. 333.”
December 20, 1923, the plaintiffs filed the bill of complaint in this case setting out in detail its version of what occurred, and praying that the adjustment and the award might be set aside and also praying:
“That said court determine the amount of the loss sustained by the plaintiffs under the terms and conditions of said policies of insurance, caused by lightning which destroyed the buildings and property of said plaintiffs oni April 17th, A. D. 1922, in the township of Mason in said county of Arenac, as aforesaid.
“That the plaintiffs may have such other and further-relief in the premises as equity may require and to this honorable court shall seem meet.”
The defendant answered and a hearing was had. The trial judge was of the opinion that the board of arbitration had no right to prorate the insurance, and that the value fixed by the adjustment was fair and made a decree accordingly. We think it must be said the board of arbitration had no right to prorate the insurance. A reading of the record has not satisfied us that the decree is wrong as to the amount of loss.
Counsel for the plaintiffs appellants now ask, we-quote from the brief:
“Plaintiffs in their bill of complaint prayed the court to determine the amount of the loss sustained by plaintiffs, for the purpose of showing the inadequacy of the amount awarded by said company as aforesaid, but did not ask for a judgment and execution therefor. Plaintiffs represent that on a trial in the circuit court where the sole question involved would be the amount of damages sustained by plaintiffs by reason of such loss, plaintiffs would recover a larger verdict than that found by said court. Also there may be a question as to the right of the court to order execution to issue on such a determination on the issues involved in this suit, for which reason plaintiffs also claim benefit of appeal from the decree therein.”
We do not think this contention of counsel is tenable. They have appealed to a court of equity. We have already quoted a portion of their prayer.
The court having jurisdiction of the parties, and of the subject-matter, there is no reason why it should not dispose of the whole controversy. See C. H. Little Co. v. L. P. Hazen Co., 185 Mich, at p. 325 et seq.; Tessler v. Rothman, ante, 62.
The decree is affirmed. As both parties appealed to this court neither will recover costs in this court, but plaintiffs will recover costs in the court below.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
John B. Redhead owned land in Crawford county along the Au Sable river. Over 20 years ago he opened a way over his land from the public highway to his home and a shingle mill he operated for a time. This way was used by a person to whom he sold a parcel of land and, to some extent, kept in repair by persons having occasion to use it, and for several years a public school was located thereon. The public authorities never worked the way and, although it was frequently used by campers, sightseers, fishermen and pleasure seekers, it did not become a public highway. Included in one of Mr. Redhead’s holdings was a three-acre island in the Au Sable river, opposite the land he sold to plaintiff. In August, 1919, Mr. Redhead sold the island to defendants for a summer home, making no mention of right of way to reach it. Defendants have since made the island their summer home and have improved it. The way maintained by Mr. Redhead over his land, and used by another of his grantees, was along and near the river bank, opposite the island, and defendants, wanting to use such way and have means of reaching their island from the public highway, in the summer of 1920, built a bridge from the island to Mr. Redhead’s land at a convenient point to connect with the apparent and long-existing way. This was agreeable to Mr. Redhead who' recognized the right of defendants to a way over his land to their island, and he acquiesced in the location of the bridge and assisted in its construction. Defendants used the bridge and way across Mr. Redhead’s land in 1920 and 1921. High water damaged the bridge in the spring of 1922, leaving, however, the center stone-filled crib. When the bridge was out, and in April, 1928, plaintiff purchased from Mr. Redhead the land opposite the island. At the time of his purchase plaintiff knew of this way along the river bank, that it had existed for upwards of 15 years, was used by the owners of the island, and the owner of another parcel to whom Mr. Redhead had sold, and knew of the existence of the bridge. This knowledge led plaintiff to inquire of Mr. Redhead whether he had given defendants any rights in the property he was purchasing, stating that if he had he did not want the property, and claims he was informed by Mr. Redhead that no. rights had been given defendants. Plaintiff thereupon searched the records to see if there was any grant of rights to defendants, found none and made the purchase. In the summer of 1923 defendants started to rebuild the bridge at the old location, and this bill was filed by plaintiff to restrain its rebuilding and use of the way. At the hearing plaintiff offered to consent to the construction of a bridge from the island to the quarter line of his property. At that point, however, the river bank of plaintiff’s land is about 14 feet above water level, and the land on the island opposite is low, and abutments, would have to be built on the island approximately 14 feet high, and the bridge at such point would be 185 feet long; while the bridge at the old location was only 75 feet long and the abutments 4 or 5 feet high. Defendants, by answer, asserted right of way to their island over the land then owned by Mr. Redhead, and now owned by plaintiff, by necessary implication in their deed from Mr. Redhead, and location of right of way by subsequent agreement with Mr. Redhead and user of the same to the knowledge of plaintiff at the time of his purchase, and asked that plaintiff be restrained from preventing them from using such way along the river bank. From a decree restraining the rebuilding of the bridge at the old location, and the use of the way along the river bank, and granting defendants right to construct a new bridge at the location consented to by plaintiff at the quarter line, defendants appealed.
Mr. Redhead’s deed to defendants granted, by implication, a way of necessity across the land he retained. Moore v. White, 159 Mich. 460 (184 Am. St. Rep. 785); Bean v. Bean, 163 Mich. 379; Gilfoy v. Randall, 274 Ill. 128 (113 N. E. 88). This implication is one of necessity, for the island, without a way thereto, could not be reached by the grantees except over the land of their grantor, or by purchase of a way over lands of others.
In Gilfoy v. Randall, supra, it was held, quoting from the syllabus:
“Where the owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way of necessity exists over the remaining lands of the grantor.”
The law, therefore, required a right of way to be accorded by Mr. Redhead, either by designation of a convenient way, or by agreement. When the right so impliedly granted has been once fixed by the consent of the owners of the dominant and servient estates it cannot be altered by either party without the consent of the other. Powers v. Harlow, 53 Mich. 507 (51 Am. Rep. 154); Jennison v. Walker, 11 Gray (Mass.), 423; Nichols v. Luce, 24 Pick. (Mass.) 102 (35 Am. Dec. 302).
We are persuaded that Mr. Redhead and defend ants fixed upon the way, as it then existed, across Mr. Redhead’s lands, by construction of the bridge and user of the way, and so placed it beyond the power of Mr. Redhead, or his grantee, to change the way without the consent of defendants. Mr. Redhead, in the first instance, had a right to designate a convenient way across his lands or to agree upon the way with defendants. If a grantee is not content with a way designated by his grantor, and an agreement cannot be reached, a court of equity has power to designate a convenient way, but, when a way has once been fixed by the parties, capable of making such a determination, a court of equity may not, thereafter, upon the application of the grantor, or of his grantee of the servient estate, change the way and require the owner of the dominant estate to accept any other way in substitution thereof.
When plaintiff purchased he was aware that a bridge had been built to provide a way from the island to the open way across the property purchased, and he is bound by the way so used to the same extent his grantor was bound thereby. Murphy Chair Co. v. American Radiator Co., 172 Mich. 14. See, also, Lever v. Grant, 189 Mich. 273; Ives v. Edison, 191 Mich. 461.
It is stated in 19 C. J. p. 939:
“One who purchases land with notice, actual or constructive, that it is burdened with an existing easement, takes the estate subject to the easement. * * * He has no greater right than his grantor to prevent or obstruct the use of the easement.”
Plaintiff knew the lay of all this land, was aware of the bridge, its purpose and use, knew of the way it led to from the island and had actual notice of the rights of defendants, but evidently thought such rights could be cut off if not expressly granted by terms in a deed or of record in some form. Defendants’ rights came to them by deed and were rendered certain and measured by subsequent selection of the way. ’ Plaintiff knew, at the time of his purchase, the defendants had no way to their island except over the land he was buying. If plaintiff knew no more than this he had constructive notice of the rights of defendants and was in no sense an innocent purchaser. Higbee Fishing Club v. Atlantic City Electric Co., 78 N. J. Eq. 434 (79 Atl. 326). The right of defendants to a way, their use of a long-existing way across the lands of Mr. Redhead, with his acquiescence and active co-operation in rendering the same available, fixed and established such way as one of right under implied grant in their deed, and is in no sense a mere license revocable at the will of their grantor, or ended by his grant of the servient estate to plaintiff.
Under the evidence we must hold that the way was fixed by Mr. Redhead and defendants; that plaintiff, when he purchased from Mr. Redhead, was aware of this way and of the rights of defendants; and the court had no jurisdiction to decree a different way. It follows that the decree entered should be reversed and plaintiff’s bill dismissed, and upon defendants’ answer, claiming affirmative relief, that plaintiff be enjoined from interfering with the rebuilding of the bridge and defendants’ enjoyment of the way over his land. Such a decree will be entered, with costs to defendants.
McDonald, C. J., and Clark, Bird, Moore, Steere, and Fellows, JJ., concurred with Wiest, J. | [
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Moore, J.
In 1890 Julius Myers was the owner of real estate upon which there were mortgages for $6,000, on which he was paying interest at the rate of 7 and 8 per cent. He claims he was told by the officers of the defendant association that he could obtain money from them so it would not cost him more than 5 or 6 per cent., and that the loan would have to be made through his son, Moses C. Myers, who was then a member of the association. He then conveyed the property to his son, and a loan was procured, secured by 77 shares of stock and a mortgage upon the real estate. The property was after-wards so conveyed that Julius Myers and his wife are now the owners of it. August 10, 1897, defendant commenced foreclosure proceedings by advertisement, claiming there was due $3,968.35. November 5, 1897, complainants filed a bill and obtained an injunction restraining said sale. After a hearing in open court, a decree was rendered by the circuit judge finding there was due upon the mortgage $3,307.37. From that decree the defendant appeals.
The defendant association was organized under Act No. 50, Pub. Acts 1887 (3 How. Stat. § 3981a et seq.). From the facts disclosed by the record, the transaction should be treated as though Julius Myers became a member of the association, and the loan was made to him. It was for the purpose of accomplishing this result that the various transactions occurred. The record shows that it was represented to Mr. Myers that he would get his money for a less rate of interest than he was then paying, and that the shares of stock would attain the full value of $100 each in five or six years. He was also told that the defendant sold its money at auction at its stated meetings, and would not accept a bid for less than 20 per cent, premium, and that it frequently obtained a much higher premium. June 10, 1890, 77 shares of stock were obtained by Moses C. Myers, acting for his father, at a premium of 20 per cent., which was figured upon the face value of the stock; and the mortgage in question was given for $7,700, though there was paid to the complainant but $6,160. The principal of the mortgage was to be paid at the rate of $38.50 each month, and the interest on the principal sum at 8 per cent., amounting to $51.33 each month, until the shares of stock attained the value of $100 each. Complainants made these payments promptly until October, 1896, when they amounted to $5,081.69. Up to March, 1897, the shares of stock in the company had been issued in series, — 13 series in all. The association had collected from its members, and loaned on real estate and on its stock, nearly $150,000, at an average premium of upwards of 30 per cent. It had sustained some losses, through the defalcation of one of its officers, and through the depreciation of real estate, but, according to the record, it had made large profits. In the spring of 1897, without the consent of complainants, the association voted to return to all the borrowing members the premiums they had bid for their respective loans, and this was done. At the same time the keeping of the stock in series was abolished. The accounts of all the members were readjusted, and interest was figured on the amount of the mortgages at 8 per cent., and credited upon the dues paid at 6 per cent. At the same time the practice of loaning money in open competition to the highest bidder was abolished, and the subsequent loans have been made either at a nominal premium or without any premium.
It is the claim of the complainants that the representations made to them were fraudulent, and for that reason the contract is void. It is also claimed that the subsequent acts of the association were unlawful, and deprived them of vested rights, and made it impossible for the original contract between the parties to be carried out. They filed their bill to have the original contract set aside, so far as the amount of. the mortgage, the time of payment, and rate of interest are concerned, and to be allowed to treat the transaction as a direct loan, and pay the defendant the amount of money they received, with 6 per cent, interest. The circuit judge granted complainants this relief, except that he computed the interest at 8 per cent.
It is claimed on the part of the association that the statements of its officers as to how soon the shares of stock would attain their full value, and how low the rate of interest to the borrower would be, are but matters of opinion, and cannot be treated as fraudulent representations. We think this contention is sustained by the following authorities: Lake v. Security Loan Ass’n, 72 Ala. 207; Hammerslough v. Loan & Savings Ass’n, 79 Mo. 80; American Building & Loan Ass’n v. Bear, 48 Neb. 455.
Section 11 of the act (3 How. Stat. § 3981/c) provides that no premiums, fines, nor interest on such premiums shall be deemed usurious. It has already appeared that the mortgage was for $7,700, upon which interest was to be computed monthly at 8 per cent., though the complainants received in money but $6,160. Under the general laws of the State, a like transaction would be usurious, and is saved from being so only by the provisions of this statute. To entitle these associations to the privilege of charging more than the rate of interest fixed by the general law of the State, they must comply with the provisions of the law under which they are organized. Section 8 of the act (3 How. Stat. § 3981 A) provides that the money to be loaned shall be offered for loan in open meeting, and that the stockholder who shall bid the highest premium for the preference or priority of loan shall be entitled to receive a loan for the amount stated in the by-laws. It has been repeatedly said that the primary purpose of these organizations was to encourage people of limited means to procure homes, and to make it possible for them to do so by advancing money to them to build their homes, secured by their stock and real estate. There are two classes of shareholders, — those who borrow, and those who do not. The shareholder whose necessities require him to borrow is entitled to have the money loaned to him, if the security offered by him is good, if he is the highest bidder. The rule to require a bid of 20 per cent, minimum premium was in contravention of this right. It is in the interest of the nonhorrowers, at the expense of the borrowers, and is contrary to the provisions of the act under which this organization exists. Stiles’ Appeal, 95 Pa. St. 122.
It is evident that the right to charge a borrower fines, premiums, and interest on money he has never received gives him the reciprocal right, as a member of the association, to share in the profits growing out of these fines, premiums, and interest on premiums. The complainant had been a member of this company and made his payments for nearly six years, when it was decided to return to the borrowing stockholders the premiums bid by them. The complainant had a right to share in the profits derived from these premiums. It is evident that to return to one stockholder a premium of 60 per cent., and to all the stockholders their premiums, which would average upwards of 30 per cent., while there was returned to the complainant but 20 per cent., is to deprive him of a portion of the profits to which he is entitled. The practical effect of the act of the association is to compel the complainant to pay 8 per cent, interest, computed monthly, on $7,700, when he has had but $6,160, and at the same time to deprive him of any portion of the profits of the business.
The circuit judge, in computing the amount found due by the decree, figured the interest each month at 8 per cent, on the amount of money received by the complainant, added it to the principal, and deducted each monthly payment. From this decree the complainant has not appealed. The appeal of the defendant is not well taken. The decree is affirmed, with costs.
The other Justices concurred. | [
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] |
Per Curiam.
One Haack filed a bill in chancery March 2, 1896, against the relators. They appeared and answered March 9, 1896. Replication was filed March 25th. No demand to examine witnesses in open court was made. On February 21, 1898, Haack filed a petition for an order enlarging the time to take testimony, and setting forth as his reason for neglecting to introduce testimony at the proper time that his then solicitor informed him that the delay was due to the fact that the court was not ready to take up the matter, and that his said solicitor had left the State of Michigan several months before, and had not returned. The court entered an order granting the prayer of the petition. Relators ask to have this order set aside.
We think the circuit court acted within its jurisdiction, and exercised a proper discretion.
The order to show cause is denied. | [
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] |
Wiest, J.
The secretary of State levied a tax on the Detroit & Windsor Ferry Company under Act No. 85, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11361 [1-14]), as amended by Act No. 233, Pub. Acts 1923. The company claimed it was an illegal tax, and appealed to the corporation tax board. That board sustained the tax, and the company reviews by certiomri.
The Detroit & Windsor Ferry Company operates^ its ferries to Windsor and Bob-La, Canada, and to Belle Isle, in the State of Michigan. The company made the report required by the act, and the secretary of State computed its tax, as prescribed by the act.
Section 4 of the act, as amended, prescribes that:
“Every corporation organized or doing business under the laws of this State, excepting those hereinafter expressly exempted therefrom, shall, at the time of filing its annual report with the secretary of State of this State, as required by section seven hereof, for the privilege of exercising its franchise and of transacting its business within this State, pay to the secre tary of State, an annual fee of two and one-half mills upon each dollar of its paid-up capital and surplus, but such privilege fee shall in no case be less than ten dollars nor more than fifty thousand dollars.”
It is further provided in section 5 that:
“None of the property or capital, of any corporation subject to paying the privilege fee prescribed in section four, which is located without the State of Michigan, and none of the capital or surplus of such corporation represented by property exclusively used in interstate commerce, shall in any case enter into the computation of the net amount of the authorized capital, or the capital and surplus, as the case may be, upon which the computation of the privilege fees shall be made.” * * *
The company assails this act as unconstitutional, for the reasons (1) Because the act is in violation of article 1, § 8, of the Constitution of the United States (tiie commerce clause), and (2) Because the act as to the corporation contravenes the 14th Amendment to the Federal Constitution (equal protection of the laws).
1. The ferry company is a Michigan corporation, and its property is located in Michigan. Its principal business is foreign commerce. The tax imposed is a specific tax — an excise tax. Union Steam Pump Sales Co. v. Secretary of State, 216 Mich. 261. It is not a property tax. It in no way interferes with interstate or foreign commerce.
The act makes reference to the capital and surplus and takes them into account in fixing the tax, but the reference is not for.the purpose of taxing the property but to determine what is a fair price to charge for the franchise privileges. The owners of the company are at liberty at any time to operate its boats in foreign commerce as individuals without the payment of this tax. How and in what manner does this interfere with foreign commerce?
The questions presented have been ruled adversely to the company in Kansas City, etc., R. Co. v. Kansas, 240 U. S. 227 (36 Sup. Ct. 261). There the annual fee was graduated according to the amount of paid-up capital stock. The company was a Kansas corporation with its railway extending into several States. The railway company claimed the tax was a direct burden upon interstate commerce and laid upon property outside the State. It was stated:
“The supreme court of Kansas sustained the tax, thus defining its nature: ‘The fee collected is a tax upon the right of corporate existence — the franchise granted by the State to be a corporation — to do business with the advantages associated with that form of organization.’ Kansas City, etc., R. Co. v. Sessions, 95 Kan. 261 (147 Pac. 791).”
This was approved. The same principle appears in Maine v. Railway Co., 142 U. S. 217 (12 Sup. Ct. 121, 163); Flint v. Stone Tracy Co., 220 U. S. 107 (31 Sup. Ct. 342, Ann. Cas. 1912B, 1312); Kansas City, etc., R. Co. v. Stiles, 242 U. S. 111 (37 Sup. Ct. 58); Hump Hairpin Manfg. Co. v. Emmerson, 258 U. S. 290 (42 Sup. Ct. 305), and represents the uniform holding of the Federal Supreme Court.
In the last named case it was said by Mr. Justice Clarke:
“While a State may not use its taxing power to regulate or burden interstate commerce (United States Express Co. v. Minnesota, 223 U. S. 335 [32 Sup. Ct. 211] ; International Paper Co. v. Massachusetts, 246 U. S. 135 [38 Sup. Ct. 292, Ann. Cas. 1918C, 617]), on the other 'hand it is settled that a State excise tax which affects such commerce, not directly, but only incidentally and remotely, may be entirely valid where it is clear that it is not imposed with the covert purpose or with the effect of defeating Federal constitutional rights. As coming within this latter description, taxes have been so repeatedly sustained where the proceeds of interstate commerce have been used as one of the elements in the process of determining the amount of a fund (not wholly derived from such commerce) to be assessed, that the principle of the cases so holding must be regarded as a settled exception to the general rule. Maine v. Railway Co., 142 U. S. 217 (12 Sup. Ct. 121,163); Wisconsin & Michigan R. Co. v. Powers, 191 U. S. 379 (24 Sup. Ct. 107); Flint v. Stone Tracy Co., 220 U. S. 107 (31 Sup. Ct. 342, Ann. Cas. 1912B, 1312); United States Express Co. v. Minnesota, supra; Baltic Mining Co. v. Massachusetts, 231 U. S. 68 (34 Sup. Ct. 15); Kansas City, etc., R. Co. v. Stiles, 242 U. S. 111 (37 Sup. Ct. 58); United States Glue Co. v. Oak Creek, 247 U. S. 321, 326, 327 (38 Sup. Ct. 499, Ann. Cas. 1918E, 748). The turning point of these decisions is, whether in its incidence the tax affects interstate commerce so directly and immediately as to amount to a genuine and substantial regulation of, or restraint upon it, or whether it affects it only incidentally or remotely so that the tax is not in reality a burden, although in form it may touch and in fact distantly affect it.”
The rule forbidding a tax on interstate commerce applies with equal force to foreign commerce, but this does not aid the company, for the tax in question is not one upon interstate or foreign commerce, but a privilege tax imposed as an incident to the right to be a corporation, and exercise corporate functions by means of paid-up capital and surplus. The rule is too well settled that a State may not impose a tax upon interstate or foreign commerce to require the citation of authority. It is equally well settled that the privilege tax here involved is not one upon interstate or foreign commerce. The yardstick employed to measure the privilege tax scales the charge for corporate privileges granted and not to measure mere receipts from interstate or foreign commerce.
The objections are without force and the determination of the corporation tax appeal board is affirmed, with costs against plaintiff.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Bird, J., did not sit. | [
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Steere, J.
This case was formerly here on appeal from a decree dismissing plaintiffs’ bill for the reason it presented no grounds for equitable relief, and their remedy was trial of title to the office of trustee by quo warranto proceedings on the law side of the court (218 Mich. 481). This court there held something more than trial of title to office was involved under the issues made by the pleadings and reversing the order dismissing the bill remanded the case for a hear ing on the merits. A hearing was thereafter had resulting in a decree dismissing the bill and plaintiffs have appealed therefrom.
In 1907 a community of emigrants of the Ukranian race from southeastern Europe who had located in Detroit organized a religious association of their faith and incorporated it pursuant to Act No. 209, Pub. Acts 1897 (3 Comp. Laws 1915, § 10889 et seq.), under the name “St. John’s Greek Catholic Church.” Bylaws were adopted as the act requires providing among other things for a president, vice-president, secretary, treasurer and vice-treasurer to be elected at the annual meeting of church members, their terms of office to be one year “and until their successors are elected and qualified.” A board of trustees to “conduct the business of the church” was provided for, to consist of the five officers named and three other members to be annually elected as trustees, five of the eight to constitute a quorum. The pastor of the church was to be an ex-officio member without the right to vote, and made subject to removal by the board of trustees, “at any time for any cause,” upon 90 days’ notice. The place of worship was to be “located in the city of Detroit, county of Wayne, Michigan.” Title to all property of the corporation both real and personal was to be “held in the name of St. John’s Greek Catholic Church.”
A suitable site for church purposes was purchased consisting of five lots on Cicotte avenue conveniently located for that community, upon which the corporation established a church edifice, parsonage, parish hall and school building, employed a pastor of their race and faith, and a teacher, attained a membership of about 400 and there harmoniously maintained for nearly ten years an apparently prosperous parish of their denomination, accepted by and submitting to the jurisdiction of Bishop Ortinski in whose diocese its location placed it. The parish was always self-sustaining and at the time these troubles developed had reduced its indebtedness to a mortgage of $1,500 on its church property, which is admitted to be worth $40,000.
Although no mention is made in its articles of association of nationality or race, it appears undisputed that in race and religious affiliations it was known to the laity and recognized by ecclesiastical authorities as a “Ukranian Greek Catholic Church,” and the first of the kind established in Detroit. As such it differs radically both from the older Orthodox Greek Church and the Russian Greek State Church, being neither subject to the Orthodox Greek Church patriarchate nor the Holy Synod of Russia, but recognizes allegiance to and is in communion with the Latin or Roman Catholic Church, subject in essentials of religious belief to its Pontiff, being of the Greek Church order known as “Uniate Churches.” Such churches are united with the Roman Catholic Church and subject to the jurisdiction of its Pope in the fundamentals of religious belief and faith, accepting its doctrines and dogmas, but conceded by it a distinctive church organization and name, served by their own clergy under bishops appointed by the Pope. They retain their “rites,” of ritual or liturgy, discipline, permission for their clergy to marry and other distinctive Greek Church usages, more or less modified as'found requisite for harmonious union.
Development of this uniate branch or auxiliary of the Roman Catholic Church, until recently but little known in the west, began centuries ago in the Eastern Europe and Western Asiatic countries, where the Orthodox Greek and Roman Catholic churches occupied the field in religious rivalry. The Ukranians are and were a numerous people of the Slavic race inhabiting southeastern Europe, mainly north of the Black sea within the confines of that portion of the former Russian empire which was known as Southern or Little Russia, as distinguished from Northern or White Russia. In recent years many people of that race who were uniates immigrated to this country and in the communities where they settled established uníate or Greek Catholic churches in sufficient number for the United States to be created a diocese under a bishop appointed from the clergy of that faith and form of worship by the Roman Pontiff.
The period of prosperity and development of the St. John’s Greek Catholic Church on Cicotte avenue was during the administration of the “Rt. Rev. Father Lord Bishop Ortinski” who died some years ago, apparently early in 1916, although the date of his death is not positively shown. On April 11, 1916, the Apostolic Delegate of the Roman Catholic Church, located at Washington, D. C., appointed the “Rev. Lord Peter Poniatishin, priest,” of Newark, N. J., to be “Administrator of the Ruthenian Faithful in the United States of North America until the Apostolic See shall be pleased to dispose otherwisefurther informing him that his “jurisdiction must only be exercised within the limits of the ordinary administration of the diocese,” admonishing him that at the time his “administration of this office shall cease you will be held to render a strict account of your office to the Right Reverend Father Lord Bishop who may be chosen by the Apostolic See for the Ruthenians of this country;” and commanding him that his “gift and office must be restricted solely within the limits of the Ruthenian clergy and people of the Galician nation.” It was shown without dispute that in the connection used, “Ruthenian” and “Ukranian” are interchangeable names, the Ruthenians of Austria and Ukranians of Russia being of the same Slavic race.
Early in the interregnum of Poniatishin as administrator over this diocese differences had developed amongst the members of this Detroit Greek Catholic Church over retention of their pastor, Father Sterniuk, who was sent to them during the administration of Bishop OrtinsM and had been their pastor for several years. Several members, how many is in dispute, demanded his removal, while the officers of the church and controlling members insisted on his retention. The faction opposed to his pastorate was insistent and made complaints against him to Father Poniatishin who, as he states, “after admonishing him many times,” removed Father Sterniuk from that pastorate and put him under sentence of suspension for “contumacy and disobedience.” The controlling officers and members of the church insisted on retaining Father Sterniuk and he thereafter remained for some time as their pastor in disobedience of Father Poniatishin’s mandate, supported by the officers of the corporation and most of the congregation, as plaintiffs claim, denying the administrator’s authority under their rights and privileges of clergy as a Greek Catholic Church to remove against their wishes a pastor who had been sent them by the Bishop of their diocese.
Early in 1917 the opposing faction began a suit in the Wayne county chancery court to restrain Father Sterniuk from performing any religious services as pastor of the church. While that suit was pending those of that faction withdrew from participation in the affairs of the church under its duly elected officers, and formed a separate church organization, secured a site on Clippert avenue but a few blocks from the Cicotte avenue church, and in 1919 they had erected a church there, procured a pastor assigned to them by Father Poniatishin and started a rival parish of the same denomination, separately incorporated under the same act as the other, giving it the corporate name of the “Ukranian Greek Catholic Church of St. John the Baptist.” They apparently were active in securing members and pretentious church temporalities beyond their revenues until they had accumulated an indebtedness against their church of some $70,000 as admitted by them, and of $90,000 as claimed by plain tiffs. They in the meantime aggressively essayed to obtain possession of and title to the Cicotte avenue church property. Amongst other hostile efforts, though out of possession and separately incorporated, they assumed by some separate organization the right to represent the' old corporation and in its name deeded the Cicotte avenue church property to Father Poniatishin, in trust, later mortgaging it for $7,500 most of which went to their then attorneys for fees in their extensive litigation with plaintiffs, as the latter claimed and they do not deny.
On November 19, 1919, in a suit entitled “St. John’s Greek Catholic Church v. Ukranian Greek Catholic Church of St. John the Baptist,” a decree was granted plaintiffs by the Wayne county circuit court, in chancery, declaring the deed to Father Poniatishin void and ordering the defendant to surrender the same for cancellation.
In a suit instituted by the Clippert church faction under the title “St. John’s Greek Catholic Church v. Rev. Myron Sterniuk” a decree was rendered on February 25, 1921, restraining him from longer acting as pastor of the Cicotte avenue church or occupying its pastor’s residence. It is claimed this decree was with his consent under some tentative agreement for adjustment of the trouble, but whether so or not he left the church, and Detroit, before April 1, 1921, and was later assigned to another pastorate in the diocese by Father Poniatishin. Plaintiffs’ counsel there, but defendants’ here, asked a writ of assistance for possession of the Cicotte church property which was refused by the court. The property was then in the possession and under control of plaintiffs as trustees of the corporation, regularly elected as such pursuant to its bylaws and so -far as shown not made parties to that suit. Father Sterniuk’s residence in the parsonage was only as a pastor serving the parish, subject, under the by-laws of the corporation, to removal by its board of trustees at any time for any cause on 90 days’ notice. Its then board of trustees, including the five officers provided for in its by-laws, were the board elected in 1920, some of them having been annually elected officers of the parish for many years.
Since the hegira of those who organized the Clippert avenue church in the latter part of 1917, elections of officers had been annually held as before on a designated day in April, after proper notice as their by-laws provided. The usual church activities of such a parish were maintained by those who remained, with regular Sunday services and other religious observances according to the Greek Catholic faith until Father Sterniuk left. The parish was self-supporting during that time, as it always had been, they restored the church building which was partially destroyed by fire, paid the salaries of their pastor and teacher, with all other expenses of maintenance, and the corporation was then in sound financial condition as such with a membership of about 400, as plaintiffs’ witnesses testified. It was the original Ukranian Greek Catholic Church of Detroit, founded under the auspices of Bishop Ortinski to whose diocese it admittedly belonged, and who had supplied its pastors, including Father Sterniuk. The Clippert avenue church was organized some ten years later under the administration of Father Poniatishin who in reply to a direct question said he would not assign a separate priest to the Cicotte avenue church, giving as a reason, “There is no room for two separate priests.”
After refusal of the court to grant them a writ of assistance, parties affiliated with the Clippert avenue faction several times demanded of plaintiffs and unsuccessfully attempted to take possession of the Cicotte avenue church property, and on April 2, 1921, a formidable processional led by defendants’ then attorney armed with a hammer, and Father Lysiak, the recognized pastor of the Clippert avenue church who had also been designated by Father Poniatishin as pastor of the Cicotte avenue church, marched there from the Clippert avenue church and demanded possession. On being refused they invaded the premises, broke open the church door and forcibly took possession of the church property both real and personal. Those in charge were unable to successfully resist and called for police assistance. Some 16 of the invaders were arrested but were later released. Details of the assault and capture were curtailed by admission of defendants’ counsel that they took possession of the property by force and had since retained it.
After breaking open the church they entered and Father Lysiak conducted some religious services there, after which he turned to temporal affairs and declared all offices of that church corporation vacant except his own as pastor, and as such proceeded to fill the so vacated offices by appointment because, as he testified,—
“the persons who claimed to act as trustees and who would not recognize me as pastor ceased to be members of that church. * * * And then I being the only remaining trustee in good standing of that church appointed trustees to fill the vacancies. That was on the 2d of April. Then the board of trustees designated a meeting, annual meeting of that church. That was the 3d of April, 1921. That meeting was held after services. At that meeting the president and board of trustees were elected.”
The parties so elected at that meeting are the defendants here, and were then admittedly “attending members of the Clippert avenue church.”
Father Lysiak, who served and received his salary from the Clippert avenue church, said he held services at the Cicotte avenue church also a few times after that seizure but there were not enough people coming to church on Cicotte' avenue and he determined that two churches were not necessary. The only disclosed further activity on his part in matters relating to the Cicotte avenue church trouble was a suit by him for $50,000 against Komarynski, the president of that corporation, whom he deposed at the time of the forcible seizure of its property. After getting possession defendants dismantled that church of its equipment, removed much of its personal property and again deeded the realty to Father Poniatishin.
In justification of this summary elimination of all the elected and acting officers of that corporation at the time the property was forcibly taken from their possession by defendants, their counsel cite section 3 of article 2 of its by-laws, relating to “Members,” reading as follows:
“Section 3. A member shall continue to be a member in good standing upon performance of all of the requirements imposed upon the members by the board of trustees and upon complying with the rules and requirements of the Greek Catholic Church. In case of failure to comply with said requirements he shall not be entitled to any of the benefits hereinbefore mentioned and shall cease to be a member.”
Article 5 of the by-laws which provides for a board of trustees to conduct the business of the corporation contains no provision that they must be “members,” but assuming it to be implied, that article specifically provides:
“Section 6. Any member of the board of trustees or officer may be removed from office by a two-thirds vote of the board of trustees at a meeting called for that purpose, for conduct unbecoming a Greek Catholic and for a continued neglect in the performance of his duties.
“Sec. 7. Written charges against such member or officer must be filed, with the secretary at least two weeks before any action can be taken thereon and a copy of such charges must be furnished to the accused at least one week before the meeting during which action will be taken thereof.”
We find nothing in the articles of association or bylaws of this corporation, or in the jurisprudence of this State, to sustain this summary ipse dixit removal of all of its apparently de jure and unquestionably de facto trustees by forceful seizure of its property from their possession, followed by a deed divesting the corporation of its title thereto. The very by-laws to which they appeal for vindication expressly provide that all property of the corporation both real and personal “shall be in the name of the St. John’s Greek Catholic Church.”
This case appears to have been disposed of in the court below on the two assumptions that plaintiffs had foreclosed all right of this corporation to possession or ownership of the property it had ¡acquired by an allegation in one of its lengthy pleadings in another case wherein it is denied that the Sti John’s Greet Catholic Church was under the rules and regulations of the church of Rome and alleged it was under the supervision of the Russian Greek Catholic Church, anc that they had in a subsequent meeting of the opposing factions settled their differences by an agreement tc abide the decisions of the administrator of the diocese
Plaintiffs deny entering into any such claimed agree ment. Their version of the transaction is that in ai effort to settle the controversy they offered to freelj submit it to the administrator’s jurisdiction and con trol as a faithful parish of his diocese provided the; were permitted to retain their church organization an< property as a Greek Catholic Church parish served b; a separate priest assigned to it by the administrator offering to give bonds to pay his salary and to b self-sustaining, which was refused them. This offe was renewed in substance at the hearing when di fendants’ claim of settlement was gone into. Bi even if as defendants contend, there was nevertheles no official action taken which legally affected the pro] erty rights of this corporation.
As to plaintiffs’ statement in a pleading in another suit between the parties wherein it is urged they irrevocably read themselves without the pale of the Greek Catholie Church by denying its jurisdiction and alleging they were under the supervision of the Russian. Greek Catholic Church, they emphatically repudiated such thought or purpose, or having intentionally subscribed to any such statement, or understanding that the lengthy writing they signed as prepared by their attorney so alleged. The attorney who drafted it also drew the bill, in this case, which refers in terms of disavowal to that unfortunate allegation and explains that it “was erroneously dictated upon the misconception of the Reverend Myron Sterniuk.” Plaintiffs positively testify that they were and are true adherents of the Greek Catholic Church/ in religious belief, observances and confession of faith, recognizing themselves and their church organization as belonging to and under the jurisdiction and control of the diocese of that denomination in which they are located in all spiritual and ecclesiastical matters, their only offense, if such, being in supporting their pastor who had been assigned to them by the bishop of their diocese, in contesting the authority of the administrator to remove him. As he has since been assigned to another pastorate of that faith, such “contumacy and disobedience,” does not seem to be necessarily counted an unpardonable sin.
In matters of church polity purely ecclesiastical civil courts do not interfere, but when property rights are involved they are to be tested in the civil courts by the civil laws. As presented here this religious feud has been so manipulated and litigated as to be decidedly of the world worldly, being in effect an attempt by one church corporation to obliterate another of the same faith and denomination, which in church governmental polity may possibly involve something of ecclesiastical import, and to also assimilate its temporalities by a forceful seizure of its corporate property, which is decidedly a matter for the civil courts to deal with.
“When civil rights or property are involved the civil courts will insist that an accusation be made, that a notice may be given, and an opportunity to produce witnesses and defense be afforded, before they will give effect to an expulsion or suspension of the kind here attempted. Hoffman, Ecclesiastical Laws, 276. West Koshkonong Congregation v. Ottesen, 80 Wis. 62 (49 N. W. 24)Russian Orthodox All Saints Church v. Darin, 222 Mich. 35.
This ill-advised seizure of plaintiffs’ property by force was without color of civil law, and the subsequent pretended election of trustees of that corporation was in violation of its charter and, from every legal point of view, a nullity.
The relief asked as to title to realty is indirectly against those not made parties to this suit and cannot be considered, but as between the parties to this suit plaintiffs are entitled to the injunctive relief asked restraining defendants, their successors or substitutes from assuming to act as trustees of the St. John’s Greek Catholic Church, from withholding from the possession of plaintiffs or interfering with them in the management and control of its corporate property, both real and personal, including the seal, books and records of said corporation. Plaintiffs’ claim for an accounting is not properly presented either in pleadings or proofs and is dismissed without prejudice.
The decree heretofore' entered herein. is reversed, with costs to plaintiffs.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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] |
Moore, J.
This is an injunction bill filed to restrain defendants from opening a private right of way across complainant’s lands, from the Fenton road, so called, to land on the shore of Long Lake, purchased by the defendants from the complainant. From a decree dismissing the bill of complaint and establishing the private way, the case is brought here by appeal.
Omitting the formal parts of the bill of complaint, it avers the making of a deed between the parties containing the words:
“Also conveying the right of way from the Fenton road to the grove back of Fred J. Pierson’s property; thence north along the east line of said grove to the north line of said farm.”
We quote from the bill of complaint:
“Your oratrix, further complaining, says that about one year ago said grantees in said deed demanded a road, according to said paragraph in said deed contained, and proceeded to open and construct the road; that the Fenton road, so-called, runs in a northerly and southerly direction on. the east side of complainant’s farm, and that there is and has been a road,running from the so-called Fenton road running in a westerly direction to Long Lake, situated west of said property; that said defendants started about 80 rods west of the so-called Fenton road without the consent of your oratrix, and tore down her fences between the lands of said Pierson and your oratrix, and construct ed a road running northerly between the land of said Pierson and your oratrix as. far as they desired, and constructed the same, taking for the construction of said highway a portion of the land of your oratrix to which they had no title; that for the purpose of avoiding litigation she did not interfere in the construction of said highway or road, and that said defendants have used and occupied said lands as a highway from the time they constructed it up to the present time, and they have, as this complainant alleges, a complete highway to their premises, and have full egress and ingress to their premises, and said highway was built and constructed, is at the present timé open and used by them and the public, as they may desire, giving them full access for ingress and egress to their premises and compares in every respect to the paragraph in said deed hereinbefore set forth.”
The bill proceeds to say that defendants are about to open another right of way from the Fenton road to their lands through her farm, to her great injury and without right, and prays that they may be enjoined from doing so.
The answer is at length, but the substance of it is that the opening of the way mentioned in the bill of complaint was a temporary expedient to avoid destroying the crops of complainant’s tenant, and it was so understood when it was opened. The answer is accompanied by the affidavits of the two men who opened the right of way, which affidavits sustain the averments of the answer. It is further averred that the defendants have a right to open a private way where they purpose to open it by virtue of a deed from complainant to them wherein 20 acres of land and a private way is granted for a consideration of $5,000. The answer prayed that the bill of complaint might be dismissed; but it did not ask for affirmative relief.
The accompanying plat will help to explain the situation : -
The initials F. J. P. indicate the location of the Pier-son land.
The complainant’s contention is that she granted a right of way as now constructed from A to D to C, and having agreed on the location thereof and the width thereof, and the defendants having constructed and fenced a permanent road in this place, they cannot now change the location against her wishes and over her objection.
The defendants’ contention is that the deed conveys a right of way from the point C to the Fenton road, and therefore from C to B, and it cannot be otherwise because she had no right to give a right of way from A to D: First, because that right of way had been deeded by her to the Woodhull Land Park Company, Limited, and others, and that this right of way to the defendants would be increased servitude; second, that the right of way to the Woodhull Land Park Company, Limited, and others, from A to D was exclusive; third, that if the right of way from A to D was a public highway, as claimed by complainant, she had no right to deed it to defendants; and, fourth, that the opening of the right of way from C to D was a temporary expedient, and was not intended to be permanent, but it was intended that the right of way conveyed was from B to C and then north.
Before the replication was put in a motion was made to dissolve the injunction, when the trial judge decided to hear the case upon its merits. With the exception of one witness who was sworn out of the usual order of proofs that he might attend a funeral, no testimony was put in on the part of the defendants.
The three deeds which had been made by complainant were introduced in evidence, and witnesses were sworn in her behalf. Two deeds besides the one given by complainant to defendants were given to other parties. One of them was executed in July, 1898, and is a conveyance from the complainant to William A. Paterson and William R. Hubbard of certain land on Long Lake, and contains the following provision:
“Together with the right of way from Fenton road, as now so called, to the above-described property; said right of way to be of sufficient width to be used as a wagon road.”
The other is a conveyance made in 1900 from complainant to the Woodhull Park Land Company, Limited, conveying to it certain property on Long Lake with the following provision;
“First party also conveys a right of way of suitable width for driving with carriages from the Fenton road, so-called, to above-described premises, said right of way to be perpetual and to belong to the parties of the second part, their heirs and assigns.. It is hereby understood and agreed that the first party conveys the above-described, land to second party, and, first party having heretofore sold five lots, the roadway to said lots and the ingress and egress to said lots sold are to be and remain as at the present time, unless said second party make other and different arrangements with the parties to whom said lots were sold, and this deed does not convey or cut off any right of the parties who have heretofore purchased lots on said premises.”
At the close of defendants’ testimony the trial judge expressed himself as follows:
“The Court: I don’t care to hear from the other' side. It is impossible to escape the conclusion that the complainant has made an absolute conclusive case against herself. In the first place, she has deeded this old right of way from the Fenton road to the Woodhull Park property on two different occasions, as I have it, by a deed absolute in terms which convey to the grantors the exclusive right to use the right of way. ■ Following that the proofs on her part show that the right of way has been used as a public highway for a long time. Taking that as true, and the court is bound to take it as true, as the proofs stand in her behalf, she cannot be heard to say here that she granted any rights in that passageway. She is precluded from saying that under both theories; First, that she had previously twice conveyed it to private persons; and, finally, as she herself declares, it was a public highway, so she could not convey any interest in it.
“Now, she conveyed in clear language a right of way to property for which she received $5,000. The language of the instrument is plain- — ‘also conveying the right of way from the Fenton road, to the grove back of Fred J. Pierson’s property; thence north along the east line of said grove to the north line of said farm.’ Now, that indicates clearly and conclusively where the right of way she granted is, and it is from the Fenton road to the grove back of the Pierson land. The map which she submitted shows where the Pierson land is, and she granted the right of way from the Fenton road to the Pierson land, and that is north of the right of way which she is claiming to be public. Then she says, and that precludes herself, from thence north along the east line to the north line of the farm. There is no escape from it. She granted a right of way there in plain terms and unambiguous language. I say there is no escape; there is no escape under this bill and the issues as framed here; the only escape for her is a bill to correct alleging fraud and establishing it. The bill is dismissed.
“It isn’t right-and it isn’t necessary that she should be cut off from access to this land north of this right of way, and I have no idea' that these parties want to cut her off from that access to it, and I suggest that they draw some kind of a document giving her ready access to that land which she ought to have, and, if you will do that, it may be done before the decree is signed.
“Mr. Farley; We consent it to be inserted in the decree.
“The Court; That would do it.-
“Mr. Farley: I would like to have the decree specify the width. It seems to me that it ought to be laid out so as to let automobiles pass. We think 30 feet would be sufficient. If the court thinks that is. too much, and we can get along with less, we don’t want to take any more than is necessary.
“The Court: My impression is that 30 feét is more than is necessary. I will find out. My impression is 25 feet is enough.
“Mr. Farley: There can be no objection to having it run along the line fence.
“The Court: The deed indicates where it is to run. The bill is dismissed, with costs against the complain ant for the reasons, stated, and the defendants must submit to having inserted in the decree.a provision which will give the complainant ready access to that portion of her farm which is to be cut off by this proposed highway, or right of way, which may be 20 feet wide. The decree shall provide further that the defendants shall restore that portion of the right of way which they have worked from the intersection of the old right of way north to the point where the new right of way intersects the one formerly worked by defendants, in the same condition practically that it was before the defendants took possession of it for the purpose of a passageway.”
A decree was entered in accordance with the above. Before it was entered objection was made because the answer only asked that* the bill of complaint be dismissed, and did not ask for affirmative relief.
It would profit no one to set out the provisions of the various deeds and the testimony, further than has already appeared. We are satisfied the trial judge gave to the deeds a proper construction, and, if the answer had prayed for affirmative relief, we should be satisfied with the decree.
The solicitors for the defendants say as to the affirmative relief granted defendants that it was designed as much for the protection of the complainant as for the defendants, and suggest that the trial judge followed the course pursued by this court in Moore v. White, 159 Mich. 460 (124 N. W. 62, 134 Am. St. Rep. 735). It does not appear in that case that objection was made to the course pursued.
In the instant case objection was made, and counsel did not ask to amend the answer. The objection is renewed here, and we think it has much force. We have no doubt, however, of our right to direct the pleadings to be amended so as to conform with the proofs so as to ask for affirmative relief, and we will treat the answer as so amended. But because of this we will not give costs of this court.
The decree should be affirmed as made, but without costs to either party in this court.
Stone, C. J., and Person, J., concurred with Moore, J.
Ostrander, J.
The decree should be limited to one dismissing the bill with costs. As so modified, it is affirmed.
Kuhn, Steere, and Brooke, JJ., concurred with Ostrander, J.
Bird, J., did not sit. | [
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] |
Per Curiam.
Defendant and two co-defendants were charged with robbery armed in violation of MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797). All three were found guilty by a jury in Genesee County Circuit Court. Defendant was sentenced to prison for a term of 20 to 40 years.
In this case, Orvel F. Simmons filed an application for leave to appeal grounded on an issue identical to that decided in People v. Merrell (1969), 20 Mich App 391, which consequently controls this case.
Having granted leave by order dated February 24, 1970, it is ordered, on motion of the Court, that the conviction and sentence of the lower court be affirmed. | [
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] |
Per Curiam.
Lewis and Ida Albert, plaintiffs in the present case, brought action against the State of Michigan in the Court of Claims on July 10, 1968. The facts which culminated in litigation are as follows :
Plaintiffs are the owners of approximately 30 acres of land located in Delhi township, Ingham county, Michigan. On September 2, 1964, plaintiffs entered into a contract with the state highway department termed a “Borrow Agreement and Permit”. Under, the terms of this agreement, defendant was granted the right to enter upon the land and remove rock, gravel, stone, and/or earth in any quantity. Plaintiffs allege the existence of an oral promise whereby defendant agreed to construct a 15-acre lake in return for the use of the land. It is claimed that the state failed to comply with these agreements.
Plaintiffs contend that the claim accrued on May 4, 1967. On November 16, 1967, six months and twelve days after accrual of the claim, plaintiffs filed a notice of intention to sue and on July 10,1968, a complaint was filed. Defendants moved for accelerated judgment, the basis of which was that the claim was barred as tbe notice of intention was not filed within six months as required by statute. The motion was granted and an order of dismissal was entered by the court.
The sole issue with which we are faced concerns a determination of the nature of plaintiffs’ claim. Specifically, we must determine whether the claim was for contractual damages or whether it was based on damages to property. Our ultimate determination necessitates a review of MCLA § 600.6431 (Stat Ann 1962 Rev § 27A.6431), which sets forth limitations on actions before the Court of Claims as follows :
“(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damages alleged or claimed to have been sustained, which-claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.”
# #
“(3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.”
Defendants argue, and the trial court held, that since plaintiffs’ claim alleged damages to property, there must be compliance with the six-month notice requirement set forth by subsection (3) of the statute, supra. It is further averred that plaintiffs have not so complied inasmuch as more than six months have elapsed between the date the cause of action accrued and the date upon which notice of intention was filed.
A review of plaintiffs’ pleadings, as well as their notice of intention to file a claim, reinforces the argument of a contractual relation and subsequent breach which resulted in the enumerated damages. The only apparent reference to property damage is located in count I, paragraph IX, wherein the words “plaintiffs’ property has been damaged and injured substantially” are found. These appear as conclusory words and surplusage in a complaint which patently lies in contract and pleads damages for the resulting breach.
An examination of State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1968), 381 Mich 318, which was cited by the defendants and relied upon by the trial court, is clearly not controlling under the facts of the instant case. We are not faced in the pleadings with damage to person or property. Instead, we are faced with breach of a contract for failure to construct an artificial lake and the concomitant taking of property without compensation and for loss of economic expectation due to failure to construct the lake. These allegations can only lead us to an interpretation that this is a contract action. See Schenburn v. Lehner Associates, Inc., (1970), 22 Mich App 534. Subsection (3) of the statute cited, supra, is not applicable and the case, being in the nature of damages for breach of contract, comes within the purview of subsection (1) of the same statute. In light of these findings, we hold that plaintiffs’ notice of intention was timely filed as it was submitted within one year of the date such claim accrued.
Reversed and remanded for further proceedings. Costs to appellants. | [
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Quinn, P. J.
March 29, 1964 at about 5:10 a.m., on the eastbound Edsel Ford expressway in Detroit, a motor vehicle accident occurred in which Samuel Washington was severely injured. Mr. Washington was a guest passenger in an automobile owned by defendant Jones and driven by defendant Sanders with the consent of Jones. As required by CL 1948, § 257.401 (Stat Ann 1968 Rev §9.2101), Samuel Washington’s action for damages and his wife’s derivative action for damages were founded on the alleged gross negligence of Sanders.
At the close of plaintiff’s proofs, defendants moved for directed verdict on the basis that the proofs did not present a jury question on the issue of gross negligence or willful and wanton misconduct. This motion was denied. It was renewed at the close of proofs and again denied. Substantial verdicts were returned for plaintiffs and judgments were entered thereon. Defendants’ motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, was denied and these appeals followed.
Viewed in the light most favorable to plaintiffs, this record discloses that defendant Sanders was driving 60 miles per hour on a three-lane expressway which had a maximum speed limit of 55 miles per hour, in light traffic and in clear weather, after she had consumed five drinks over a period of 10 or 12 hours duration. That she swerved to the right from the center lane of traffic and sideswiped another vehicle in the right lane of traffic. The record also discloses facts from which the jury could infer that defendant Sanders was drowsy at the time, but there are no facts, or facts from which an inference may be drawn, to indicate that defendant Sanders drove after she became aware of drowsiness.
Does the sum total of these factors amount to a showing that defendant Sanders had an affirmative reckless state of mind, Brooks v. Haack (1965), 374 Mich 261, 265? Does that sum total demonstrate a willful and wanton disregard for public safety on the part of defendant Sanders, McKenzie v. McKenzie (1965), 374 Mich 320, 324? Either by fact or inference, the sum total of these factors establishes no more than negligence, and this is insufficient for jury submission of a question of gross negligence.
This conclusion obviates discussion of the other issues raised on appeal.
Reversed and remanded for an entry of judgment notwithstanding the verdict for defendants with costs to them.
All concurred. | [
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Clark, J.
Action for damages for fraud! in the sale of a car load of lambs. Plaintiff had verdict and judgment. Defendants bring error. The parties live at Saline. Plaintiff owns a farm. Defendants are engaged in farming and in dealing in live stock. In July, 1922, defendants bought lambs in Chicago, shipped them to Saline, and sold them to plaintiff. Plaintiff claims that he purchased relying upon representations made to him by defendants that the lambs “were all Western lambs, and that they were good feeding lambs, and that they were a dandy good lot of western lambs.” Defendants claim that plaintiff purchased after inspection, relying upon his own judgment.
1. At or about the time in question, defendants sold other like lambs to other purchasers in that vicinity. Testimony of other similar acts and representations of defendants in selling said lambs to such third persons was admitted over objection, and this presents the principal question in the case. The testimony was admitted and was admissible to show a scheme or intent to defraud. It was competent as proof of scienter, “admissible in evidence with a view to the quo animo.” The question has been considered many times by this court, and what has been said need not be repeated.
See Beebe v. Knapp, 28 Mich. 53; Stubly v. Beachboard, 68 Mich. 401; Shipman v. Seymour, 40 Mich. 274; Shrimpton & Sons v. Rosenbaum, 106 Mich. 68; People v. Seaman, 107 Mich. 348 (61 Am. St. Rep. 326); French v. Ryan, 104 Mich. 625; J. B. Millet Co. v. Andrews, 175 Mich. 350; Morain v. Tesch, 214 Mich. 699; Radloff v. Ruggles Motor Truck Co., 229 Mich. 139.
See, also, 22 C. J. p. 748; 27 C. J. p. 60.
2. The market price of Western lambs in Chicago at the time the lot in question was purchased there by defendants as compared with the then and there market price of other lambs was of importance. It was not error to admit in evidence issues of the Chicago Daily Drovers’ Journal, showing the market quotations of the time. Tri-State Milling Co. v. Breisch, 145 Mich. 232.
3. It is urged that the court erred in receiving evidence of loss of profits to plaintiff because of the diseased condition and inferior quality of the lambs. When the sale was made, defendants knew plaintiff’s purpose in buying. He bought to feed. The lambs were sold as feeders. The evidence of such damages was certain enough. They cannot be estimated with exact certainty. But counsel insist that this action is ex contractu, and that—
“The party complaining can recover such damages only as are shown to be the natural and proximate consequence of the breach complained of, and not such as arise from circumstances so far out of the ordinary course of nature of human affairs that they could not fairly be presumed to have been anticipated by the parties at the time of the making of the contract,” citing Frederick v. Hillebrand, 199 Mich. 333, and cases there cited.
The declaration sounds in tort and it also claims right to recover for breach of warranty. But the issue actually tried out was whether fraudulent representations were made by defendants and relied on by plaintiff to his damage, not whether warranties were made. The action is in tort. Respecting such damages a more liberal rule is applied in tort actions than in actions ex contractu. This question has been considered very fully in Allison v. Chandler, 11 Mich. 542, and in Ludwigsen v. Larsen, 227 Mich. 528. Under the rule there stated, and which need not be restated, the evidence was admissible.
4. It is said that the trial judge went outside the evidence in stating to the jury plaintiff’s claims respecting the representations claimed to have been made by defendants of the kind and quality of lambs. He followed in substance the evidence and defendants’ first request to charge. Therefore error will not be found.
Other questions discussed have been considered. We think they do not require reversal.
Judgment affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Steere, J.
Jantje Bulthuis, a widow about 73 years of age, died on March 17,1923, in the city of Muskegon, leaving a last will and testament, dated September 11, 1922, disposing of her estate consisting of real and personal property in said city valued according to the probate inventory at about $11,000. She was survived by two sons and one daughter, all of middle age and married, and the children of a deceased daughter who are not mentioned in her will. Plaintiff Henry Bulthuis is her youngest son, who was named executor of her will. Defendants Ryan Bulthuis and Pauline B. Schutter are her daughter and other son and contestants of her will. They first unsuccessfully contested the will in the probate court. On their appeal to the circuit court the case was tried by a jury and the will held invalid, from which plaintiff has appealed to this court by writ of error.
In taking their appeal to the circuit court defendants allege as grounds of invalidity mental incompetency on the part of testatrix, and undue influence. During the trial they abandoned the claim that their mother was of “unsound mind and disposing memory,” and the case was submitted to the jury on the issue of undue influence.
Deceased and her husband were of Holland nationality and lived in Muskegon for many years, during which time they had raised a family and accumulated some property which, so far as shown, became hers when he died on May 30, 1921. Plaintiff and defendants were then “grown up a long time ago,” had long since left their parental home, married and were living in homes of their own with their families. Mrs. Schutter testified that she was 39 years old and the youngest of the family. The ages of her two brothers Ryan and Henry were not shown, but Ryan testified he was the oldest of the three, and incidentally admitted that his brother and sister “probably aren’t fixed quite as well as I am.” Ryan had a disagreement with his father some time before the latter’s death, how long is not disclosed, which resulted in an estrangement between them continuing during the remainder of his father’s life.
Deceased made two wills before the one .at issue here, the first not long after her husband’s death while she was yet living alone in their old home. In that will Ryan was left one dollar. The second was made after her daughter, Pauline, and her husband were living with deceased in the old home. In that will she also left Ryan but one dollar. The will involved here was made while she was living with her son Henry, because of whose undue influence it is claimed! to be void. In this she left Ryan a half interest with his sister in the old family homestead.
The only direct testimony of anything ever said by Henry which could be construed as an attempt to influence his mother in making her will is that of his sister, Pauline, who testified bitterly against Henry in various particulars. She asserted that he told their mother how to make her second will, and the last. When asked if she ever heard anybody tell her mother how to make a will she said:
“Yes; sir; I heard Hénry tell her when the first will was made. He was running down Ryan. He and Henry and Mr. Schutter and the boy, we was all there. He told mother before you come, ‘This will is not the way father wanted it.’ ”
Of an occasion while deceased was living with Pauline and her husband, and expressed a desire to make a new will dividing her property more equally between her children and leaving Ryan part of it, she said:
“To my mind Henry influenced her not to do it,' because there were times he would come over and tell her right in the presence of me and Mr. Schutter, ‘Don’t you do it, wait until you die and then we can give Ryan a little.’ ”
In her third will, made while deceased was living at Henry’s home and under his influence, as Pauline claimed, she acted directly contrary to that advice, if given, and left Ryan an undivided half interest in the old homestead. At the time of her husband’s death deceased was left alone in their old home and Henry was the only one of her children so far as shown who offered her a home with them. Pauline imputed a sinister motive to this offer and cautioned her mother against it as follows:
“I said ‘Mother, watch out what you do, you have lived thirty-eight years in that place, as old as I am, and now be careful what you do,’ ” — suggesting that she go with Henry a few days and see if she liked the neighbors.
Deceased then went home with Henry but in a few days had him take her to Pauline’s house where she stayed a short time and then went to her own place, saying, “Pa told me never to leave my old home.” After living there alone for five or six months she made an agreement with Pauline and her husband to move there and be with her, or she with them. She paid them for her board. They stored her furniture upstairs as it was not so good as they had and out of date, and used their own. Henry occasionally visited his mother there and was apparently not a very welcome guest to his sister and her husband, because of his conduct, as she related.' She complained of his “raising trouble” from the start, particularly featuring his asking his mother for certain household effects. Her testimony is tuned with reminiscences and accusations of the following type:
“Henry and his wife was doing the grabbing, * * * When we wasn’t even living with mother yet he wanted a lawn mower that father used to use. It was a one-wheeled little lawn mower. I told mother, ‘It is funny; it seems if father wanted him to have it why didn’t father give it to him?’ From that time on he asked for some of the household goods that belonged to mother, * * * and then mother went over to visit over to Henry’s house and when mother came back mother said Henry’s wife said to her ‘Why can’t we have the coal stove?’ I said, ‘They want to see you die.’ That is the words I said to mother. * * * We had trouble, but it was always caused by Henry. He would want different things and I thought, ‘Mother isn’t even dead’ ”—
Pauline and her husband went on a visit to Montague the latter part of July, 1921, and left their boy at home with deceased, who, Pauline said, “could get around and cook things” and to whom “it was all agreeable.” While they were absent Henry called to see his mother, but once as he states. A neighbor called by plaintiffs testified he saw him go there oftener but could not tell how many times. This witness stated he had no knowledge of any one exercising any influence over deceased in making her will. Of their return from Montague and her mother going to live with Henry, Pauline testified:
“When we got home mother seemed to be happy, but I noticed she didn’t act like she did when we went away, and the first thing I said, ‘Mother, was you lonesome when we was gone?’ She said, ‘No.’ It was Saturday at 11 o’clock when we come in and we noticed she acted strangely. I said, ‘Mother, don’t you feel well?’ She said ‘Yes.’ On Sunday morning I said to her, ‘You didn’t even sweep the kitchen floor; here it is Sunday and all the work is left for me.’ That is the only disagreement I had with her, but she seemed to be all right all day Sunday, and Monday in the afternoon she said, T guess I will go over to Henry,’ and _we thought she was just going there for a visit. I said, ‘You had better wait and go in the morning; and then it was on Tuesday and I was busy ironing and there to my surprise in the bed room she had pillow cases and everything out that she was going to take over. I said, ‘Whát are you going to do?’ She said, T am going over to Henry.’ That was the first day of August. Then all she took with her was a few pillow cases and some of the clothes, and on the 10th day of August at 8 o’clock in the morning there come Henry and his wife and mother with an express cart and a great big trunk. Mother said ‘Good morning’ to me. I said, ‘So you intend to leave, do you?’ I said to Henry and his wife, ‘You have got just exactly what you have been looking for; as long as we have been living with mother you have been looking for this.’ ”
Later Henry went there with his mother to get some more of her effects; they were met at the door with the mixed welcome that deceased could come in but Henry had “got to keep out.” Pauline’s husband stood guard against Henry and an exchange of uncomplimentary views between them led into Schutter’s going “after him.” Schutter’s son was sent for Ryan who, on being told by the boy that they were fighting over there and he was wanted, says:
“I run over and my brother-in-law had him down in front of the house. My mother was standing there, and I said, ‘Mother, what did you take him along with you for? Why didn’t you come to me and I would have gotten you with the car and taken your stuff back with you and I would have taken you back home and there wouldn’t have been any trouble.’ I said, ‘Come on in the house and get what you want and let’s talk this thing over. The neighbors will be thinking pretty soon that this is getting pretty terrible.’ So I went in the house with her. I took her by the arm and led her in the house and she sat down and she started to cry. I said, ‘What is the matter, ma?’ She said, ‘It is trouble, trouble all the time,’ she said, ‘they are skinning me alive now, I can’t do as I want to, I have got to do this and I have got to do that or I am kicked out, I can’t stand it,’ she said. ‘Well,’ I said, ‘What is the matter; what do you want?’ She- said, ‘You know, Ryan, what I told you in July, how I wanted this. ' Now,’ she said, T have had to make another will again, since I talked with you in July, but, Ryan, you know what I want; I want my children all to share equal, and I don’t know what to do.’ ”
This testimony in connection with the proof of opportunity, viewed in the light of other shown facts in the case, is especially urged for defendants. Henry is not shown to have been mentioned during that conversation. She did not say that he was but that they were skinning her alive. The only proof approximating any one being “kicked out” was what befell Henry when he went with his mother on a peaceable mission to get some of her own personal property from her own house. When that event was terminated by Ryan, Henry was down, if not out. Ryan had been estranged from his father and thereby to a degree, as the testimony fairly indicates, from the rest of the family. Though not shown to have been unfriendly towards his mother or sister and brother, he did not visit his home or parents following the estrangement during the remainder of his father’s life, and seldom visited any of them thereafter. His knowledge of their family affairs was most of it pure hearsay. He tells of once being called by his mother to come to the old home as she wanted to talk over matters there and she then told him in the presence of Pauline and her husband that she wanted to change her former will and divide her property more equally between her children and leave to each one of the three houses she owned; that they talked the matter over for a while and he then asked her when she wanted that done, to which she replied, “Just as soon as you can.” He answered that he was “kind of busy just now” and suggested that it be put off until “we will be back from the lake” the latter part of August or the first of September, to which she assented, but when they got back from the lake in September Henry had got her over to his house. The next time he tells of going to the old home was when he was called over there to stop a fight between his brother and brother-in-law staged in front of the house in the presence of his mother.
From his knowledge of his mother he expressed the opinion that she was easily influenced and summed up his views in part by saying:
“I don’t claim she was insane or irrational or anything like that. * * * She knew enough to know what she wanted to do. * * * What I think is, that somebody influenced her to do something she otherwise would not have done.”
One thing she did do which she had not before done was to leave him a half interest in the old home by her last will.
When deceased died her estate as inventoried consisted of cash in. bank $1,424.55, a mortgage of $303.03, currency in the house $55, some household effects appraised at $10, and three houses and lots appraised at $9,200, the old homestead at 42 Delaware street being valued at $3,000. By the will involved here she left $200 to her grandson, Harold, son of her daughter, Pauline, her old home at 42 East Delaware street to her son Ryan and daughter, Pauline, in equal parts, and the balance of her estate to her son Henry. The unfairness of the will seems to have been sounded in the case, by defendants’ witnesses at least, as indicating undue influence. It is true such influence is not usually exercised openly and may be inferred from the facts and circumstances surrounding the testator, including opportunity for the beneficiary to exercise it. But there must be more than mere opportunity, unequal distribution of property or previous statement by the testator as to intended disposition of his estate from which the will departs, to constitute undue influence. In re Haslick’s Estate, 195 Mich. 432 (Ann. Cas. 1918D, 466); In re Fay’s Estate, 197 Mich. 675; In re Carlson’s Estate, 218 Mich. 262; In re Allen’s Estate, 230 Mich. 584.
Discarding Henry’s direct denial of having ever attempted to direct or persuade his mother in making her will and other issues raised as to surrounding facts and circumstances by conflicting testimony, defendants’ claims rest unduly on suspicions rather than substantial proof. The fact that Henry invited his mother to go to his home after her husband’s funeral and live with him and her doing so could scarcely be called even a suspicious circumstance. He took her to his sister’s home when she wanted to leave his place for her old home, and after his sister and family moved there to live with her, he visited her occasionally. His calling upon her when she was left there alone with the boy while they went on a visit was not strange nor unnatural. . Neither is it altogether strange that she left there for Henry’s home after Pauline returned and had a “disagreement” with her over her housekeeping while they were away, and complained that she “didn’t even sweep the kitchen f[oor * * * an(j an the work is left to me.” What she said to Ryan when he escorted her into her own house after Henry’s efforts in that direction had resulted disastrously was not, even if as he states, proof of undue influence, but is only admissible to show her state of mind resulting from undue influence of which there is other substantive proof. Henry was not present when she tearfully told Ryan of her troubles and desires on the evening of the hostilities in her front yard between her son and son-in-law. When that talk took place she was in her own house with defendants, who were agreeable to what they say she wanted to do. There was nothing to prevent her remaining there and making another will disposing of her estate in any manner she desired. Yet she left of her own accord and went back to Henry’s home. They had with them that evening a boy’s cart borrowed by Henry from a neighbor, in which to take back the articles of her personal property which deceased wanted. She returned it not long thereafter. The neighbor, who had known her for years, said he never heard her say anything to indicate she did not know just what she was talking about, that he knew they went over there to get some goods and in their talk she said “they had better watch out,” also “that she had better watch out.” He supposed she referred to Pauline.
“Q. All you can tell us is that she made the remark that one of them had better watch out?
“A. Yes, sir,
“Q. This was some days after Henry had borrowed the cart?
“A. Yes, sir.”
It is significant that so far as shown her three wills were all made on her own.initiative. They were drawn by an old experienced attorney of her own choosing, for whom she sent on each occasion. He had long lived in Muskegon and formerly been judge of that circuit. He testified of the last occasion that Henry told him she wanted to see him and he went to the house to see what she wanted. No one was listening when he interviewed her because, as he said, “I took particular pains to talk with her when she could tell me just what she wanted to without any interference, the same as I would in any case. * * * I was particularly careful about that, in view of the making of the other will.” He then went back to his office and prepared the will in accordance with what she said to him, as he believed, had it written out on a typewriter and returned to her with it, read it over to her, made one change on her suggestion, with a pen, which he pointed out when identifying the instrument. The will was then duly executed, the attorney taking it with him for safe keeping as he recollected.
Deceased was under no legal or moral obligations to leave any of her property to any one of the parties to this action. They were adults of middle age, living their own lives with their families in their own homes, apparently in comfortable circumstances. No ill health or other misfortunes are shown to have befallen any of them especially appealing to her bounty. She could make such disposition of it as she saw fit. She had the legal right to bestow her bounty where and as she desired, to favorites in her own family or to others. No question is raised as to her mental competency to do so. The only direct evidence of any effort by Henry to influence her in making her will contrary to her wishes was disregarded by her when she made this will while living in his home. The circumstances shown do not in our opinion have inferential probative force beyond mere suspicion. They furnish no legal basis for an ultimate inference that deceased’s free agency was destroyed to the point where she was under such restraint and compulsion that it can be found by a preponderance of evidence this will was not dictated by her as she of her own will concluded she desired it to be.
The judgment is reversed, with costs to appellant, and a new trial granted.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
This is an action of replevin brought to recover an automobile or its value, which plaintiff claims belonged to him. After the plaintiff rested his case the trial judge directed a verdict in favor of August Fengler, the other defendant not appearing in the case. The case is brought here by writ of error.
The plaintiff bases his appeal upon two grounds:
(1) That no demand was necessary.
(2) That the demand made upon defendant Joseph E. Weisenberger was a sufficient demand.
We think it necessary to consider only the first ground. It is said the plaintiff was upwards of 80 years old at the time of the trial. It was his claim that prior to June 27, 1914, he sold one of two properties he owned on Jay street, Detroit, and followed his wife to the home of their daughter, Mrs. August Fengler. That he gave Mrs. Fengler $50 and paid for the board of himself and wife. That he and his wife concluded to buy an automobile. “I said I would buy it, but they were to pay the oil, license and gas.” His grandson George and his mother saw the agent who demonstrated the machine.
“I showed him the money and said when you bring the automobile you get the money, so he got the automobile and I had the money, but gave it to my wife to look it over, and my wife handed it over to the oldest daughter. They handed it to the agent then. I told him my name was Charlie Kophal. I got no receipt. * * * My wife and I * * * went back to our cottage on Jay street and she died there. When I moved I went there to get the automobile out of the barn. * * * I got a man to drive it, but it was gone.”
At the time the money was paid Mrs. Fengler signed a written order for the machine in the name of her husband, August Fengler, and the bill of sale was made out to him. It is the claim of the plaintiff that he did not authorize this to be done and knew nothing of it. On his cross-examination he said:
“The property on Jay street that we sold in the name of myself and wife. After we sold that property my wife wanted an automobile so we could drive around and get some fresh air.
“Q. You wanted your daughter to have it, so your son could have it to drive around?
“A. Yes; the boy.
“Q. Your grandson?
“A. Yes, sir.
“Q. Your boy is your grandson?
“A. Yes, sir.
“Q. For that purpose you gave the money to Mrs. Fengler to buy the machine?
“A. Yes, sir. They took us out two times; they did not take out my wife alone at all; the third time they would not take us any more.”
It is claimed this indicates that he bought the machine for his daughter. The old man caused inquiries to be made and traced the machine to the garage of defendant Weisenberger, where it had been left by the son of August Fengler, payment being made for its storage. The plaintiff authorized his son to look up and get the machine. The son had an interview with Mr. Weisenberger. It is not very clear just what was said. Mr. Weisenberger's version is:
“Q. You are one of the defendants served with process in this cause, are you not?
“A. Yes, sir.
“Q. I call your attention to — stand up Mr. Robert Kophal — I call your attention to the gentleman in the second seat, do you recognize him?
“A. íes. * ■ * * Witness (continuing): The car was left in my garage by the young man, Mr. Fengler, who is not the defendant in this cause, August Fengler, but his son George and a grandson of plaintiff. He did not say to whom the car belonged; he just brought it and paid the storage on it.
“Q. Was there a demand made upon you for this car by any one else?
“A. There was a couple of days before by a gentleman, by Robert Kophal.
“Q. State whether that was before you were served with a writ of replevin by the sheriff?
“A. Just before.
“Q. How long before?
“A. Perhaps two days; I could not say for sure.
“Q. In response or in answer to that demand by Robert Kophal, for the car, what did you say to. him?
“A. I could not say much because, the car was not— because it belonged to Fengler and it could not go out to any one else but him.
“Q. Did you as a matter of fact refuse to give him the car?
“A. Refused it and always had to.
“Q. You say you refused?
"A. Yes, sir.”
Cross-examination by Mr. Wilkinson:
“Q. What did Robert Kophal say when he asked you for the car?
“A. He said that the car belonged to him and made-some statement, I can’t just kemember the whole lot of talk.
“Q. Robert Kophal said the car belonged to him?
“A. He said it in a way; yes.
“Q. Then so far as you rémember the conversation was that Robert Kophal came in there and said this car belonged to me?
“A. Yes; he said it belonged to him and a dirty deal had been done, that is all; I did not pay any particular attention.
“Q. That is the demand made, that the car belonged to him?
“A. Yes; and he was going to get it.
“Q. Those are the words he used, the car belongs to me and I am going to get it?
“A. Yes, sir.”
By Mr. Dohrman:
“Q. Do you remember enough of the circumstances to recollect now whether he said the ear belongs to me or belonged to his father?
“A. I don’t remember that part. I don’t remember whether he Said it belonged to him or to his father.”
There was much more testimony than we have quoted, including the testimony of the agent who sold the machine to the plaintiff and received his money, but who took the order and gave the receipt as before stated, but why it was so done he does not know. After Eobert Kophal saw the garage man this suit was instituted. Defendant Fengler gave to the sheriff the statutory bond and the automobile was delivered to him. He caused his appearance to be entered and has interposed the only defense made.
Counsel for defendant say that the possession of August Fengler was lawful, and that a demand should be made upon him before replevin would lie, citing Darling v. Tegler, 80 Mich. 54; Becker v. Vandercook, 54 Mich. 114 (19 N. W. 771); Campbell v. Quackenbush, 33 Mich. 287; New Home Sewing Machine Co. v. Bothane, 70 Mich. 443 (38 N. W. 326), and other cases.
A reference to those cases will show them unliké the instant case. It is the claim here that plaintiff bought and paid for the machine intending to. take the title in himself. While it is claimed that his cross-examination gives rise to the inference that he intended to give the automobile to his daughter, when this cross-examination is taken in connection with the rest of the testimony the inference is not conclusive. There is not a suggestion in the record that plaintiff knew the title was put in August Fengler. Defendant Fengler was not present when the sale was made or when the order and receipt were given. If the Fenglers were acting in good faith it is difficult to account for the disappearance at the time the plaintiff moved, of the automobile from where it was ordinarily kept, and its 'being placed in storage in a garage.
The case is within Whitney v. McConnell, 29 Mich. 12; Carl v. McGonigal, 58 Mich. 567 (25 N. W. 516); Breitenwischer v. Clough, 111 Mich. 6 (69 N. W. 88, 66 Am. St. Rep. 372) ; Congdon v. Bailey, 121 Mich. 570 (80 N. W. 369) ; Schoolcraft v. Simpson, 123 Mich. 215 (81 N. W. 1076).
Judgment is reversed, with costs to appellant, and a new trial ordered.
Stone, C. J., and Kuhn, Ostrander, Steere, Brooke, and Person, JJ., concurred. Bird, J., did not sit. | [
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Moore, J.
Stated in the language of the solicitor for complainants:
“This bill was filed in 1890, to restrain the collection of water rates as assessed, on the ground that the basis of the assessment was and is radically inequitable and contrary to law.
“1. That if' the defendant has the right to include in the assessment of rates the expenses of extension and construction, and the payment of the bonded debt, as well as the operating expenses:
“ (a) It must assess for public uses as well as for private.
“(b) It has no right to discriminate between consumers, or to exempt any uses.
“ (c) It has no right to furnish water free to the public, to the ■ board of education, or to charitable institutions.
“ (d) It has no right to use the moneys collected as water rates for uses not directly associated with the subject of furnishing a water supply.
“2. That the water plant was constructed and exists for public as well as private use. The capacity of the plant is enlarged because of the public demands upon it for fire protection, park, and other public uses, and because of the probability of increased demands upon it in the future. Hence, in any event, a large part of the cost of the plant, and of additions thereto, should be borne by the general public.
“3. That the plant belongs to the municipality, and not to the private consumer, and its cost, including the payment of the bonded debt, should be made a general city charge.
“4. That the charter of the city, and the acts under which the bonds were issued, contemplate the payment of the bonded debt and the interest thereon, as well as the cost of extension and construction, by the city, and not by the private consumer.”
Testimony was taken before a commissioner, who found, among other things, as follows:
“ (1) I find the total sum charged against said complainants from July 1, 1890, to January 1, 1897, to be the sum of $1,172.64; and if no deductions are to be made on account of the use by the public of water, the free use of water by certain private individuals, the use of water hy other private individuals, corporations, or charities, for which a nominal charge only has been made, and the ■cost of construction and extension of the works, the expenditures for the payment of interest and bonded debt, as well as the operating expenses, are to be made a charge •against the consumers of water, then I find the above-named sum of $1,172.64 to be due from the complainants named.
“ (2) I find that table No. 1, as the same appears in Ex-Mbit A, hereto attached, is a correct statement of the -amounts expended by the defendant for construction, the payment of interest, the payment of bonds, and the operating expenses of said board, together with the total water .rates assessed and collected from July 1, 1890, to January 1, 1897, and that the total expenditures for construction, interest, bonds, and the operation during said period were 83,557,545.39.
“ I find that the board of education, from July 1, 1890, to July 1, 1894, paid the nominal rate of $1,000 per annum, whereas, if charged as other private consumers, it ■should have paid $7,000 per annum; and that from July 1, 1894, to January 1? 1897, the schools were metered, and the board of education was charged and paid at the rate of two cents per thousand gallons, whereas the rates charged on other consumers of water were six and two-thirds and two and two-thirds cents per thousand gallons; and that the difference between what the board actually paid and what it should have paid is the sum of $27,031. I find that from July 1, 1890, to January 1, 1897, the board expended, from sums collected as water rates, on account of the Hurlbut fund, $66,014.60 in excess of the receipts from the Hurlbut estate. I find that up to 1888 or 1889 the board had charged to consumers having hose connection four dollars per annum each, and there were 6,500 hose connections in the city of Detroit; that in 1888 the board ceased to charge for hose connections, and since said time the number of hose connections has more than doubled; that the amount consumed for lawn sprinkling purposes from hose connections amounts to one-thirteenth of the entire pumpage, and, therefore, that the persons using said hose connections should pay one-thirteenth of the entire water rate imposed.
“I find further that the public uses four per cent, of the amount of water actually used, which would be about six and two-tenths per cent, of the entire pumpage; and that the municipality, if it paid its proper share for the use of water, should have paid for the period named six and two- tenths per cent, of the entire water rates, or $164,904.10. I find that the amount actually paid by the city of Detroit as water rates for all public purposes, from July 1, 1890, to January 1, 1897, in all departments except the house of correction, as appears by Exhibit B, hereto attached, was the sum of $5,518.04; and the city should have paid $164,-904.10 less $5,518.04.
“These sums are correctly tabulated in table No. 2 of Exhibit A, hereto attached, and the total thereof equals eighteen per cent, of the total rates; and, if they should be deducted, then eighteen per cent, should be deducted from the amount claimed from said complainants, leaving the balance $961.57.”
The circuit judge filed a written opinion in the case. The essential part of it reads as follows:
“But it is claimed by complainants’ counsel that the manner in which water rates are determined, whether by meter or otherwise, is inequitable, and not within the power of the board of commissioners. The charter provides that the commissioners shall cause to be assessed water rates upon such basis as they shall deem equitable; and the question to be determined in this case is whether the commissioners have the power to assess water rates in the manner they are now doing. The water rates collected by the board of commissioners is the only source of revenue provided for the running expenses of the waterworks. This, of course, includes all that is paid out by the commissioners in labor, fuel, and such other expenses as are necessary to supply all the water that is consumed for all purposes in the entire city, and the whole of this expense is paid for by those consumers of water upon whom the water rates are assessed. The following use large quantities of water, and pay either no water rates, or nominal rates, entirely disproportioned to the amount of water used:
“Public institutions, or those in which the entire public is interested.
“Board of education pays $1,071, about one-seventh of what it would have to pay if charged at the rate as that charged consumers who have meters.
“Board of public works pays nothing for water used by it.
“Municipal buildings pay a nominal rate.
“ Park board pays no rates.
“All public fountains are furnished water free.
“Police department is charged nothing.
“ Fire department pays no water rates.
“Markets pay nothing.
“All private charities and hospitals are furnished water by the board on the city paying the nominal sum of §1,000.
“Cemeteries pay nothing.
“The question now presents itself whether the board of commissioners, under the power given them to assess water rates upon such basis as they shall deem equitable, have the right to give water away to a certain class of consumers, and make another certain class of consumers pay for it. This is not my idea of what is equitable, and the fact that the commissioners may deem it equitable will not prevent the courts from interfering when the act done is clearly and manifestly inequitable. All water that is used by the city, the fire department, board of public works, park commission, and all other public institutions, is used for the benefit of the general public. A man who owns a vacant lot is as much interested in having water in the streets, fire protection, clean streets, and public fountains as his neighbor who owns a house and has a water tap in it, for all these things increase the value of his vacant property; and there is no justice or equity in his reaping these benefits, and having his neighbor pay for it, because he has built a house beside his vacant lot, and uses water. It might as well be argued that if the city owned a public lighting plant, and was authorized to furnish light to the houses of citizens on payment of proper rates, the users of electric lights should alone be charged with the expense of lighting the streets and vacant property of the city. The equitable power given the water commissioners should be so exercised as to assess rates on all alike. Those institutions which are private should pay the same as other private interests do, and those that are public should pay, and whatever it costs the public can be assessed as a general tax, and thus the burden for these public benefits will be borne alike by all taxpayers. The expense of maintaining the police department, fire department, schools, parks, etc., is borne now by the general taxpayer; and why should he not pay for the water they use which is necessary to their successful maintenance ? I think the board of water commissioners have no authority to give water to one person, and make another one pay for it.”
Acting upon the report of the commissioner, the circuit judge decided the water board was charging the complainants a portion of the expense of the free pumpage of water, and decreed their rates should be reduced 18 per cent.; that is, from $1,172.64, as charged, to $961.57. From this decree, all parties appeal.
The questions involved in this record are new. Our attention has not been called to any case where the right to manage a water plant belonging to a city, in charge of a board of water commissioners, in the way this plant has been managed, has been challenged. The legislature created the board of water commissioners in 1853. After the oi’iginal organization of the board, its members were appointed by the council. They were authorized, for the purpose of establishing a water plant, to borrow, upon the credit of the city, $250,000. The money was borrowed, and the city issued its bonds for that amount. The construction of the water plant was entered upon. In 1855 another loan of $250,000 was authorized, for extending and improving the works. A like amount was authorized for the same purpose in 1857, and again in 1869. In 1873 a loan of $1,000,000 was authorized. The original act (Act No. 90, Laws 1853) creating this board provided section 9):
'“.Said commissioners shall, from time to time, cause to be assessed the water rate to be paid by the owner or occupant of each house or other building having or using water, upon such basis as they shall deem equitable; and such water rate shall become a continuing lien, until paid, upon such house or other building, and upon the lot or lots upon which such house or other building is situated.”
Section 13 provides for a sinking fund from the surplus ■water rates or other sources to pay the interest and principal of the bonds issued for the money borrowed. The section in full is as follows:
“Whenever the receipts of said board, from water rates or other sources, shall accumulate so there shall be a surplus amounting to a sum of not less than five hundred dollars, not needed for the payment of the current expenses or the extension of said works, it shall be the duty of the commissioners, together with the auditor of said city, who shall be associated with them for that purpose, to invest the same in some safe stocks, or upon other real or personal securities. Such investment shall be made in the name of said board, and in such manner as to make the same available for the payment of interest and principal of the bonds issued as aforesaid, as soon as may be. It shall be the duty of said commissioners to pay the interest on such bonds, and as fast as such surplus fund will permit; also the principal, as the bonds become due, as funds for such purpose shall from time to time accumulate. The said commissioners may, when they have funds for that purpose, purchase the bonds so issued as aforesaid, whether the same have become due or not; and in case the said commissioners shall at any time not have funds on hand sufficient to meet any of the said bonds at the time when they shall become due, they shall have the right to issue new bonds for such amount and on such time as they shall deem expedient, in the place of bonds so becoming due as aforesaid; the said old bonds to be canceled in the registry thereof, and the said new bonds to be recorded in the manner hereinbefore provided.”
Section 24 provides for a water tax on the taxable property of the city for such sum annually as may be needed to meet any deficiency in the revenues of the board. The whole section reads:
“It shall be the duty of said commissioners, at least thirty days before the time fixed by the ordinance of said city for assessing city taxes, to make a special report to the common council of said city, what, if any, sum will be needed by said commissioners, over and above the revenue of said board, to meet the payment of interest or principal of the bonds issued as aforesaid, and it shall be the duty of the common council to raise said amount by special tax in the same manner as general taxes, to be designated a water tax; and the said amount shall be paid over to said'board by the treasurer of said city.”
The act of 1873 (Act No. 302) had this provision (section 2):
‘ ‘ It shall be the duty of the common council, and said council is hereby empowered, to cause to be levied and assessed annually, upon the taxable property in said city, the sum of seventy-five thousand dollars, the same to be included in each annual tax assessment levied on said city, and the same shall not require or be conditioned upon the vote of the freemen of said city. The said sum shall be collected the same as other general taxes, and shall from time to time, as received, be paid over to said board by the treasurer of said city; and the moneys so paid over by said treasurer to said board shall be used and appropriated by said board, first, in payment of the interest of said bonds; second, if there be any surplus after payment of the interest accruing during the year, said moneys shall be paid into and form part of the sinking fund of said board, and used and appropriated to the payment of said bonds when due, or to the purchase of the same, or of any other of the bonds heretofore issued by said board, as the said board may, from time to time, think expedient.”
It is evident from the _ reading of all these provisions it was thought, when the city paid, by direct tax, $75,000 a year, the plant would not only pay for its necessary extension and operating expenses, but would eventually pay for itself, even though the rates charged the water takers were reasonable and equitable. Ever since 1873 a levy of $75,-000 each year has been made, and the proceeds of the levy paid over. It has not been necessary during that time for the water board, in order to meet its expenses, to ask for any further direct tax. It is now urged that the water ought to be furnished the users at its cost, and that the interest account, the extension account, and the cost of the plant should be borne by the property of the city. Is there any equity in this contention ? It is not an unusual thing for cities and villages to confer a franchise upon a private corporation to do what is being done by the board of water commissioners. The right to do this has never been questioned so far as we know, though the policy of doing it has often been questioned. Had this been done, would it be unreasonable for the private corporation to expect ultimately to get back from its patrons the cost of its investment, including its extensions, with a reasonable profit ? If the legislature may confer upon the municipality the right to grant such a franchise, why may not that right be exercised by means of a board of water commissioners in the interests of the municipality, so the municipality shall ultimately own the property ? In the exercise of the franchise by a private corporation, the rates fixed must doubtless be reasonable and equitable. What more can be required of the rates fixed by the water board ?
The record does not show the financial transactions for all the period covered by the existence of the board. It does show, however, that from 1882 to 1895, inclusive, there was received from water rates $4,952,959.30. During the same period there was paid by the city $1,036,-532.81. It also shows there was paid of the bonds issued by the city $569,000. The board of water commissioners has now existed nearly 45 years. Bonds of the city issued for money expended upon the water plant for upwards of $1,000,000 are still unpaid. These figures indicate very clearly the water board is making a very liberal rate to the water taker, and is not compelling this generation to pay all the expenses of the construction of the plant. The record also shows, as will appear more fully later, the rates fixed are equitable and reasonable.
It has already appeared that the free use of water given is only to institutions in which the city and all its citizens are interested, and, where a partial rate is charged, the recipient is a charitable institution or an educational institution in the maintenance of which the public is more or less interested. It is shown by the record that the making of the use of hose free was simply an adjustment of the rates, so as to make them more equitable; the user of the hose invariably being a water taker for other purposes, for which he paid according to the established rate, which was large enough to include the use of free hose without making the rate disproportionably low. The rate charged the complainants since 1890, for the first 3,000 cubic feet, is two-thirds of a cent for each 100 gallons, and, for all quantities over that amount, one-third of a cent for each 100 gallons. This is the same rate charged all users of water when the water passes through a meter, and, according to the testimony, it is approximately the same rate charged those whose premises áre not metered. The board is very properly given wide discretion in the management of the water plant. City of Detroit v. Board of Water Com’rs, 108 Mich. 494 (31 L. R. A. 463). There is nothing in the record to show it has abused this discretion in fixing the rates. We think it is not accurate to speak of these water rates as taxes. All property except that which is exempt by law is subject to the payment of taxes, but the use of water is not compulsory. If the owner of property prefer to dig a well and construct a cistern instead of connecting with the system of waterworks, he, in most instances at least, would be at liberty to do so. It is true, if he is in the water district, he is entitled to the usé of the water by complying with the regulations of the water board; it is also true these regulations must be reasonable; but it is not true they must be uniform, or that they must be based upon the value of the property where the water is used. “ The water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity, just as similar rates are payable to gas companies.” Jones v. Board of Water Com’rs, 34 Mich. 273. It would be manifestly inequitable to require valuable premises, where from their character no water was used, to be charged with a water tax based upon values, while an adjoining piece of little value might, because of the character of its occupancy, use large quantities of water. When property has paid its proportion of the taxes growing out of fire protection and other uses in which property and the public in general have an interest, it has discharged its share of the burden.
The testimony discloses the water used by the fire department, the park commission, and for all other purposes which may be called “free water,” for which property should pay, constitutes but 4 per cent, of the entire pump-age. It also appears by the record that for years an assessment of $75,000 annually has been made upon the property of the city to apply upon the interest account and other expenses of the water plant. From 18 to 25 per cent, of the receipts of the water board have been derived from the city through a tax levied upon all of the property of the city. If any persons have a right to complain because the water rate paid by them is disproportionately larger, it is not the complainants.
The decree should be reversed, and the bill dismissed, with costs of both courts.
The other Justices concurred. | [
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] |
Montgomery, J.
Plaintiff, who was at the time five years of age, sustained injuries which he alleges were caused by the defective condition of a sidewalk on Michigan avenue. The injury was sustained on the 30th of June, 1894. The testimony offered on behalf of plaintiff tended to show that on the occasion in question he was walking with, and a slight distance in advance of, his mother, who was going to market; that an excavation had been made opposite a lot fronting Michigan avenue, and a temporary walk built outside the location of the regular walk. It is claimed by counsel for the plaintiff that the testimony shows that, as this excavation was approached, the barrier which had been erected was insufficient, in that it did not extend across the sidewalk fully, but left a space of two to three feet next to a building which marked the line of the street. There was also testimony tending to show that the walk which plaintiff traveled over before reaching this barrier was composed of loose boards laid endways, and that the end next the excavation was not supported underneath; that plaintiff, in walking on this place, stepped on one of these loose planks or boards, and was thrown into the cellar.
Defendant contends that the testimony conclusively shows that the excavation had been left barricaded two hours before the accident occurred; that the case falls within Welsh v. City of Lansing, 111 Mich. 589; and that, therefore, the circuit judge should have directed a verdict for the defendant. No other point is discussed in the brief of defendant’s counsel, and none other can be considered. We think this case is clearly distinguishable from Welsh v. City of Lansing. In this case the primary cause of the injury would appear to have been the bad condition of the walk as the barricade was approached. While a barricade, properly constructed, might have arrested the fall, and the injury might have been lessened thereby, it is manifest that the primary -cause was the defective walk. We think, also, in view of this condition of the approaching walk, that the question as to the sufficiency of the barricade was one for the jury.
Judgment affirmed.
Grant, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit. | [
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] |
Long, J.
March 26, 1888, defendants Dowling executed and delivered to Walker & White, of St. Johns, a mortgage of $300, due in five years, with.interest at 7 per cent., payable semi-annually. There was a commission mortgage also, and the whole debt evidenced by one principal and 10 coupon notes, payable at the office of Walker & White. ' July 13, 1888, this mortgage was assigned to ■complainant; but the assignment was not put on record until February 6, 1894, and the mortgagors continued to pay the interest to Walker & White until 1889, when the firm of Walker & White was merged into the Michigan Mortgage Company; and interest thereafter was paid by the mortgagors to that company. At each of those payments of interest, the coupon notes were marked “Paid,” and surrendered to the mortgagors, either by Walker & White or by the Michigan Mortgage Company. The mortgage became due in March, 1893, and the Dowlings borrowed the money from the defendant bank to pay it. To secure this loan, the Dowlings gave to the bank a mortgage on the same lands. The bank sent the money forward to the Michigan Mortgage Company, and it was receipted for by the company. This money the Michigan Mortgage Company credited up to complainant on its books of account at the time it was received, in March, 1893. No discharge of the mortgage was ever made. In February, 1894, the Michigan Mortgage Company failed; and a receiver was appointed, who took charge of the business. The Dowlings supposed, at the time this mortgage was paid by the loan from the bank, that Walker & White or the Michigan Mortgage Company owned the mortgage, as they had never heard of the assignment, and their coupon notes were always canceled by one or the other, and returned. About one year after the Michigan Mortgage Company failed, the complainant wrote Mr. Dow- ling, asking him to pay the mortgage. This was refused; and this proceeding was commenced to foreclose it, the complainant claiming that no interest had been paid upon it since September, 1892. The defense to the mortgage is:
1. That the Michigan Mortgage Company was the agent of complainant, and received the moneys on the mortgage for him.
2. That the complainant ratified the action-of the Michigan Mortgage Company in receiving this money in discharge of the mortgage.
3. That the complainant is estopped by his own conduct from claiming that the mortgage has never been paid.
The court below filed a written opinion, in which he discusses several of the questions raised. On the question of agency that court says:
“During all the years from the time the mortgage was given until it was paid, the mortgage company was doing a large amount of business for complainant, and during that time handled for him over $100,000. Some of this money belonged to the complainant, and some to clients of his. During all this time the mortgage company collected large amounts of money, both of principal and interest, for complainant, and often reinvested it for him at discretion, with his full approval and consent. Sometimes these collections and reinvestments were made by order of complainant, and often without it; but, as far as the evidence discloses, whatever the company did was cheerfully ratified and approved by complainant. He wrote the company and Walker many letters during the period of five years from March, 1888, to March, 1893, concerning his mortgages, urging their prompt collection, and inquiring as to their status and the probability of payment being promptly made. At times he urged the company to collect in money on any of his mortgages generally, alleging that he was in need of money. On September 12, 1892, he wrote the company:
‘ ‘ ‘ Inclosed find for collection the following coupons, amounting to $450.20. I shall be glad to have a remittance now when anything is collected, as I am unusually short. I would like to have a little pushing done on some old delinquents, to get the pay or the land, or to have live renewals.’
“On July 6, 1891, he sent several coupons for collection, and then says:
“‘The principal of several of these are due, and I should like other securities, or payment and discharge.’
“ In another letter he writes:
“ ‘I am obliged for your favor of the 31st, covering statement of' new securities for 89,864.80.’
“In September, 1890, he writes:
“ ‘Will you please send me memorandum showing whether the following mortgages are foreclosed or not.’
“Again:
“ ‘In case of S. L. Eandall mortgage, have you any record of a discharge, as I have in my hands the note, mortgage, and assignment ? I ask the same question with reference to Thomas Dowling. ’
“On November 20, 1893, he wrote:
“ ‘If paid this week, or before December 1st, I should be glad to have them.’
“Shortly before the failure of the company, he wrote:
“ ‘You will notice that there are in this list ten that are past due [mentioning among them the Dowling mortgage]. I shall hope on my return to have notice that a good share of them are either paid or renewed or foreclosed. Any collections that can be made between now and the 10th of February I shall be very glad to have promptly.’
“This letter was written after the Dowling mortgage had been paid to the company.
“I cannot attempt to set forth in this opinion all the letters introduced in evidence. There was a very large number of them, of about the same general tenor as those above quoted, and copies are hereto attached.
‘ ‘ The mortgage company kept an account with complainant on its books, crediting him with all moneys received from him or collected by it, and charging him with all securities taken. This account showed a balance in complainant’s favor of from sis to thirteen thousand dollars for a long time prior to the failure of the mortgage company. The complainant says he knew,nothing of this account, and this is true in the sense that he had never seen it. But he certainly knew that an account was being kept, for in one of his letters he says:
‘“I have your letter with the Mayville papers, §500 to the New-ell estate. I assume that the difference between it and the §350 of the Olds mortgage will be charged to our account.’
“Bissell was informed, a few days before the failure of the company, as to the situation, and obtained from the company a deed of lands valued at $6,000, which he accepted and had credited to his account. The Michigan. Mortgage Company paid complainant money collected by it for him at the rate of about $1,000 per month, both before and after the Dowling mortgage was paid to the company. Between January 1,1892, and February 6, 1894 (the date-of the failure), the mortgage company collected for Bis-sell $23,900 of the principal of mortgages, besides large-amounts of interest. It was more than a year after he discovered that the company had received payment of this, mortgage before complainant made any claim that Dowling must pay it again to him, and after failure he filed a. petition in the circuit court at St. Johns, asking that the-amount of money received on this mortgage be paid to-him as a trust'fund in the hands of the receiver.”
We think this statement is in the main borne out by the record, and from which the court below was of the opinion that the Michigan Mortgage Company was the general agent of the complainant for the purpose of collecting money and investing it again, and consequently dismissed complainant’s bill. We do not overlook the fact that the letter of January 26, 1894, referred to an inclosure of coupons. In this, we think, the court was not in error.
But, aside from this, it appears that, after complainant knew that Dowling had paid the mortgage to the Michigan Mortgage Company, and the moneys had been credited to him in his general account on the books of the-company, he took a deed of $6,000 worth of property from the company, and applied that amount upon the account with the company. Complainant also thereafter-filed a claim in the circuit court for Clinton county, in chancery, in the receiver proceedings, asking that this money which the Dowlings had paid be declared a trust fund in the hands of the receiver. This claim must have been based upon the proposition that the Dowlings had paid the money to the proper parties, and was a recognition of the agency of the Michigan Mortgage Company.
It is claimed by the complainant’s solicitor that complainant at all times held the notes and mortgage after the assignment to him. We are not satisfied that the record shows this; but, if that were true, still we think the evidence was quite conclusive that the mortgage company was the general agent of complainant, and authorized to receive this money, and that that action was ratified.
This case is not governed by Church Association of Michigan v. Walton, 114 Mich. 677, as suggested by counsel for complainant. In that case the moneys received by the mortgage company were credited on the company’s books to the mortgagor, and did not go into the general account of the mortgagee, as in the present case. There are many other points of difference in the two cases. We think the case is governed by Wilson v. La Tour, 108 Mich. 547.
We think the court below was not in error in his findings, and the decree there entered must be affirmed.
The other Justices concurred. | [
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] |
Per Curiam.
The relator, as garnishee defendant, filed a disclosure, and was afterwards examined upon special interrogatories. After this testimony was filed in the cause, the attorney for the plaintiff informed defendant’s counsel that no further steps would be taken to hold the garnishee, but took no formal steps to dismiss the proceeding. Relator then appeared, and moved to dismiss the proceedings, which motion was granted. The court allowed relator an attorney’s fee of $15 and other costs. The object of this petition is to compel the allowance of a greater attorney’s fee. The judge acted under section 8098, 2 How. Stat., and, having fixed such costs as he deemed reasonable, thi^ court will not interfere.
Order to show cause denied. | [
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R. B. Burns, P. J.
Defendant was convicted by a jury and sentenced for entering without breaking, MCLA § 750.111 (Stat Ann 1970 Cum Supp § 28.306).
On appeal, defendant alleges (1) that the trial judge erred by allowing the prosecutor to introduce into evidence certain photographs taken of the defendant shortly after his arrest at the police station; (2) that the trial judge’s statement that “one of the defendants was already disposed of” constituted prejudicial error; and (3) that defendant’s trial counsel made a serious mistake by stating that two other persons arrested had pleaded guilty to certain charges, thereby denying defendant his right to effective counsel.
(1). The defendant was arrested during the Detroit riots in the afternoon of July 24, 1967. The defendant and six other men were apprehended while a liquor store was being looted. Defendant has consistently denied that he was in the liquor store, and there was a conflict in the testimony of the two police officers as to whether the defendant was apprehended inside the store or on the sidewalk outside the store. The men were arrested and taken to police headquarters. At the police station the defendant and the other men arrested were photographed together with the arresting officer, a procedure used by the police department because of the large number of arrests. During defendant’s trial the prosecution introduced this group photograph into evidence to corroborate the testimony of the arresting officer, who had previously identified the defendant. Photographs are admissible to corroborate the testimony of witnesses. People v. Carey (1901), 125 Mich 535.
(2) . The trial court in its instructions referred to one of the men named on the information as “being disposed of.” The comment did not suggest the manner of the disposition and the comment is as consistent with innocence as it is with guilt. This court finds no reversible error on this issue.
(3) . Defendant’s trial counsel stated to the jury that “two other persons arrested have pled guilty.” Defendant contends that this remark denied him the right to a fair trial and effective counsel. This remark by itself did not deny defendant his right to effective counsel. People v. Degraffenreid (1969), 19 Mich App 702.
Affirmed.
All concurred. | [
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Levin, J.
John C. Carpenter was killed when his motorcycle was struck by an automobile driven by Bobbie Lovins.
Plaintiff commenced this action,
(1) as administrator of Carpenter’s estate, against Lovins for wrongful death, and
(2) as guardian of Carpenter’s wife and child, under the dramshop act against two taverns, Joe’s Tavern and De-Jo Tavern, Inc., and their sureties.
Plaintiff settled the wrongful death action against Lovins for $9,500 and the dramshop act action against De-Jo Tavern, Inc. for $5,000. The jury returned a verdict against Joe’s Tavern of $47,500 for the widow and of $27,500 for the child. These verdicts were reduced $1,500 each by agreement of counsel because a judgment for $3,000 was being entered against the surety. Post-trial motions for judgment notwithstanding the verdict and a new trial were denied, hut the judge ordered a remittitur; a judgment was entered for $44,000 in favor of the widow and $20,000 in favor of the child, and $3,000 against the surety.
Joe’s Tavern appeals, claiming:
(a) evidence of a urinalysis should not have been admitted because the specimen was not properly traced and identified;
(b) there was insufficient evidence that it sold intoxicating beverages to Lovins while he was intoxicated ;
(c) the judge erred when he communicated with the jury after it had retired to begin its deliberations without the knowledge or presence of counsel for the parties;
(d) during Ms closing jury argument the plaintiff’s attorney repeatedly suggested, without any supporting evidence in the record, that Lovins returned to Joe’s Tavern between the time, many hours before the accident, he and others said he left it and the time of the accident;
(e) while the trial judge informed the jury of the $5,000 settlement with De-Jo’s Tavern, Inc., he erred in refusing to advise it of the $9,500 settlement of the wrongful death action; and
(f) the verdict was contrary to the great weight of the evidence and a new trial should have been granted.
We affirm.
In an action under the dramshop act, the plaintiff has the burden of proving that the defendant tavern sold intoxicating beverages to a person who, at the time of sale, was already intoxicated, and that there is a causal connection between the unlawful sale and the injuries for which the plaintiff seeks to recover.
The fatal accident occurred sometime between 10 and 10:30 on the night of July 2, 1964. Lovins began to drink 10 or 11 hours earlier. He was a construction worker. Because of bad weather he and other workers left a job site and arrived at Joe’s Tavern sometime between 11 a.m. and 12 noon. They had lunch and each had three or more beers. The men left the tavern sometime between 2 and 3 p.m., cleaned np the site and went home.
The foreman testified that Lovins did not appear intoxicated and had the weather permitted he would have allowed him to continue to work on scaffolding which was 40 feet above the ground. Lovins’ luncheon companions testified that Lovins and they left the tavern around 2 o’clock and that Lovins did not appear to be drunk.
Lovins testified that after he left the job site he purchased a six-pack of beer at a grocery store, put it unopened in the trunk of his car and that he then drove to his uncle’s home which is located 30 to 45 minutes traveling time from the job site.
Lovins’ uncle testified that Lovins. arrived sometime between 3:30 and 4:30 p.m. and that he was so deeply intoxicated he fell to the floor, and that, although he had nothing to drink at the uncle’s house, an hour later the uncle and a neighbor had difficulty assisting him into an automobile and that, because of his condition, the uncle drove him home.
Lovins said he did not return to Joe’s Tavern after he left it and that he did not have anything to drink between the time he left the tavern and the time he arrived at his uncle’s home. At the trial he had no recollection of having had anything to drink on the day of the accident other than at Joe’s Tavern, but conceded the truth of his earlier pretrial deposition testimony that he drank one beer at his uncle’s house and three beers after he arrived at his own home and one beer at his father-in-law’s home later on in the evening and might have drunk some beer at the De-Jo Tavern shortly before the accident.
Police officer Bullock testified that he had an independent recollection of the accident, but that he was somewhat dependent on an accident report which he and another officer prepared to refresh his recollection of what he did following his arrival at the scene of the accident. He said that Lovins was intoxicated at the time of the accident; another police officer who was at the scene also testified that Lovins was intoxicated at that time.
While at several points during his testimony Bullock said that he had an independent recollection of taking a urine specimen from Lovins, at other times he said he had no independent recollection of taking the specimen and that, in testifying that he had taken such a specimen from Lovins, he was relying on the written report and his modus opercmdi in such cases. His attention was then directed to the fact that the accident report, while mentioning that a breathalyzer test had been taken, did not say anything about a urine specimen. Bullock acknowledged this to be true, but said that in all suspected drunk cases it was his invariable procedure to take a urine specimen as well as a breathalyzer test and on that basis he was sure he had done so in this case.
Lovins recalled voiding urine into a glass jar. Bullock testified that such a specimen jar would be tagged, he would sign the tag and place it in a locked cabinet which no one other than the laboratory technician could open, and he was sure he followed these procedures in this case.
The laboratory technician testified that he removed from the locked cabinet a urine specimen tagged “Bobbie Lovins,” bearing Bullock’s name and a date which he originally interpreted as July 7, 1964, but which he subsequently reinterpreted as July 2, 1964, and that, upon analysis, the specimen showed a blood alcohol content of 0.24%.
Both the laboratory technician and a toxicologist stated that a person with 0.24% blood alcohol would be extremely drunk. The toxicologist added that considering the food consumed by Lovins at Joe’s Tavern he would have had to have drunk in excess of ten beers to have become so inebriated that he could not stand up at 4:30. And that, while it would have been difficult to drink as many as ten beers in two hours’ time, in four hours’ time some men could do so.
We think that the taking and transmission to the laboratory technician of the urine specimen was adequately established. Lovins testified that he gave such a specimen and, while Bullock had no independent recollection of taking it, his testimony that he invariably took a urine specimen adequately supports his statement that he did so in this case.
Bullock testified that the accident report refreshed his recollection and that he independently recalled two groups of facts. Firstly, that there was an accident, that he found Lovins at the scene and he was intoxicated, and that he, Bullock, dealt with Lovins in accordance with the procedures he consistently followed in dealing with suspected drunk-driving cases. Secondly, that the procedure he always followed in such a case included the taking of a urine specimen and tagging and placing it in the laboratory technician’s locker. The silence of the accident report regarding a urine specimen or urinalysis tends to support Bullock’s claim that he independently recalled Ms asserted habit of invariably taking such a specimen.
There are many tasks that are performed routinely, and while, as held in Bauer v. Veith (1964), 374 Mich 1, 3, it may not he presumed that because an official is obliged to take a specimen that he in fact did so, where, as here, the witness testifies that he always follows a particular procedure, he may on that basis testify that he did so in the case at hand. We stress that Bullpck testified as to the standard procedures which he followed, not merely the procedures generally followed in his department.
Any other rule would make it difficult, if not impossible, in many cases to prove that what is routinely done has been done in a particular case. It is understandable that where a task has been performed on countless occasions the actor cannot recall doing it on a specific occasion.
In Interstate Life & Accident Insurance Company v. Whitlock (1965), 112 Ga App 212 (144 SE2d 532), in response to the objection that since the witness couldn’t “remember the disposition of this particular sample, the testimony as to what he routinely does is inadmissible” [emphasis by the Court], the Court of Appeals of Georgia responded (p 220):
“Although the medical examiner was unable to recall the disposition of the specific sample in question due to the large number of cases his office handles, he testified that he did not recall ever having departed from the established routine and there is no evidence of such departure, either in this particular case or any other. The evidence indicates that the sample was handled according to established procedures and was not subjected to any delays in processing. In our opinion it would be entirely unrealistic to expect or require a specific recall of each individual case where the volume of cases is so large and, in most instances, there is nothing out of the ordinary about any given case which would make it subject to special recollection.” (Emphasis supplied.)
In Martin v. Smith (1896), 108 Mich 278, an action on a promissory note, an assistant cashier of a bank testified that (p 281) “I mailed a notice of protest in this case on that day [to the maker of the note]. I do not remember of mailing it, but testify from my habit of mailing letters notifying indorsers when I make a protest on a note, as I did in this case.” In response to the contention that the record did not show that notice of dishonor was given, the Michigan Supreme Court said (p 282):
“In our opinion, the effect of the testimony of [the assistant cashier] is that he does not remember of [sic] mailing the notice, and that he testified that he did so from his memoranda and his habit of mailing notices when, as in this case, he made certificate of protest. It was equivalent to saying that, from the certificate of protest made by him, which recites the fact, he had no doubt that he mailed the notice as therein stated. This was evidence tending to show notice.”
Similarly, see Michigan Universal C.I.T. Credit Company v. Schaefer (1968), 10 Mich App 604, 608.
It was for the jury to decide whether to credit Bullock’s testimony regarding his habit of taking a urine specimen and whether Bullock did so in this case and, also, whether the specimen found in the locker by the laboratory technician was the specimen which Lovins provided on the night of the accident. The jury could reasonably conclude on the basis of Bullock’s testimony regarding his asserted habit and the other evidence that Bullock did in fact take a urine specimen from Lovins on the night of the accident and tagged and placed it in the laboratory technician’s locker.
In deciding the disputed issue, the jury could properly consider as negating Bullock’s testimony the fact that the report mentioned the breathalyzer test and did not say anything about a urine speci men or a urinalysis and also the laboratory technician’s original misinterpretation of the date. However, it could also reasonably conclude that the failure of the report to mention the urine specimen was an oversight and that the numbers 7 and 2 are sufficiently similar so that one might have been misread for the other.
The plaintiff was not bound by Lovins’ testimony that he had only three or four beers in Joe’s Tavern. By calling Lovins as one of his witnesses, the plaintiff vouched for him to the extent that he could not introduce an inconsistent statement or impeach his credibility. But the plaintiff was, nevertheless, free to show by other evidence that the true facts were different than those testified to by Lovins.
The favorable-to-the-plaintiff’s view of the evidence is that Lovins left Joe’s Tavern at 3 o’clock, that it took 30 to 45 minutes to drive to his uncle’s home and that he arrived within an hour after he left the tavern without having had anything to drink in the interval. That, nevertheless, he was falling-down drunk when he arrived at his uncle’s house and to have become so deeply intoxicated he would have had to have drunk in excess of ten bottles of beer in the preceding three or four hours.
The jury could reasonably conclude on such a record that Lovins had nothing to drink before reaching his uncle’s house other than at Joe’s Tavern and that he had drunk more than ten beers at the tavern and that the tavern sold him beer at a time when he was already intoxicated.
Under the dramshop act, a tavern which, by an unlawful sale, “contributes” to a particular intoxication is liable for damages caused during that intoxication by the intoxicated person. Accordingly, even if Lovins would not have remained intoxicated at the time of the accident hut for the drinks he consumed after he left the tavern, the liability of the tavern continues as long as there was no break in the intoxication between the time preceding the illegal sale through the time of the accident.
The toxicologist testified that once Lovins reached a state of intoxication, consumption of only one bottle of beer per hour thereafter would cause him to remain in the same state of intoxication. Having in mind the advanced state of intoxication testified to hy Lovins’ nncle, the number of beers Lovins admitted consuming between arrival at his uncle’s home and the time of the accident and the absence of any evidence that he had become sober before the accident, the jury could justifiably conclude that the state of intoxication which it found he was in when he left Joe’s Tavern continued until the time of the accident.
After the jury had been deliberating for a period of time the bailiff reported to the judge that it had arrived at a decision and that it wished to see a list of possible verdicts. The judge was then trying another case, and, without notifying counsel for the parties, in response he wrote on a slip of paper, “No cause of action or judgment of X dollars for the widow and judgment of X dollars for the child”, which was then delivered to the jury.
After the jury’s verdict was announced the defendant moved for a mistrial. The judge agreed that responding to the communication from the jury without the knowledge and out of the presence of counsel for the parties “was irregular and was a practice which should not be condoned but it was merely a list of the verdicts given to the jury at the close of the instructions and could not possibly prejudice any of the parties in any way”.
In People v. Kangas (1962), 366 Mich 201, the Michigan Supreme Court condemned communications with the jury after its retirement for deliberation in the absence of the parties or their counsel and suggested, but did not hold, that such communications are grounds for a new trial without a showing of prejudice. We are persuaded that an inflexible rale requiring a new trial whenever there is any kind of communication, however innocuous, with the jury, without regard to the circumstances, has not been adopted.
In Wilson v. Hartley (1961), 365 Mich 188, the Court ruled that the transmittal of a communication relating to the form of the verdict from the judge to the jury in the absence of counsel was irregular but did not constitute prejudicial error.
In People v. Schram (1966), 378 Mich 145, 159, the Court reviewed the Kangas opinion; it is apparent from what was said in Schram that the observations of the Kangas Court must be read in the context of the facts there presented of an oral, off-the-record communication or instruction, “the contents of which was never fully reported”, regarding a disputed issue in the sanctum of the jury room while it was still deliberating its verdict. We are satisfied that what occurred in this case did not prejudice the defendant and that a new trial on this ground is not warranted.
During cross-examination Lovins was asked by the defendant’s attorney if he remembered stopping at the Blue Note Bar, a bar close to Joe’s Tavern. It was also brought out that two other bars, the Hide-A-Way and Tom & Chuck’s Tavern, are located near the job site where Lovins had been working. In response to a question from the defendant’s attorney, Lovins said he hadn’t stopped at the Hide-A-Way bar for “a couple of beers.”
During closing jury argument, plaintiff’s attorney argued over objection that it was just as likely that Lovins returned to Joe’s Tavern as to the Hide-A-Way har or some other bar. The defendant contends that the argument was improper as there was no evidence that Lovins returned to Joe’s Tavern. There was no error. Not only did the defendant fail to request a corrective instruction or a mistrial, but, also, we think the argument was permissible under the circumstance that the defendants’ attorney by his questions had suggested during the examination of Lovins and one other witness that Lovins had done some drinking at other bars. Just as there was no evidence that Lovins had returned to Joe’s Tavern, so too there was no evidence that he drank at the Blue Note or the Hide-A-Way or Tom and Chuck’s; the plaintiff’s argument was entirely legitimate.
In accordance with the rule of Larabell v. Schuknecht (1944), 308 Mich 419, the jury was informed that, if it should decide that the plaintiff was entitled to recover damages, the amount of any award for the widow and the child should be reduced by the $5,000 amount paid in settlement by the De-Jo Tavern, a joint tortfeasor. The trial judge did not err in refusing to give a similar instruction in regard to the $9,500 paid the plaintiff by Lovins to settle the wrongful death action.
Plaintiff’s right of action as administrator of Carpenter’s estate under the wrongful death act is separate and distinct from the widow’s and child’s rights of action under the dramshop act. The wrongful death action could not have been brought by the wife and the child, and the dramshop actions could not have been brought by the administrator of Carpenter’s estate.
While the widow and the child may be the ultimate beneficiaries of all or a substantial portion of the $9,500 paid the administrator in settlement and there is some similarity between the kinds of damages compensable under the wrongful death and the dramshop acts, the administrator could additionally recover for pain and suffering of the deceased person and the reasonable medical, hospital, funeral and burial expenses for which his estate is liable.
No basis has been suggested for allocating the $9,500 settlement between the pecuniary loss of the widow and child and the other elements of damage for which the administrator could seek to recover. Additionally, the verdicts of the widow and child were reduced a total of $8,000 by remittitur. For the reasons stated, we have concluded that the failure to bring to the jury’s attention the amount of the settlement was not reversible error. We intimate no opinion whether the concept applied in Larabell v. Schuknecht would be applicable to the portion of a wrongful death action settlement allocable to the pecuniary loss of a particular dramshop-act plaintiff in his action against joint tortfeasors who contributed to one, indivisible injury.
The trial judge did not abuse his discretion in deciding that the verdict was not contrary to the great weight of evidence. Affirmed. Costs to appellee.
All concurred.
MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993). In Ruediger v. Klink (1956), 346 Mich 357, 366, the Michigan Supreme Court held that claims against the intoxicated consumer and the tavern which sold him the beverages may be joined and tried in one action.
Davis v. Terrien (1961), 364 Mich 82; Juckniess v. Supinger (1949), 323 Mich 566, 572; Schratt v. Fila (1963), 371 Mich 238, 246.
One of the co-workers said that he had possibly as many as five beers to drink. He didn’t know how many beers Lovins had. He said Lovins may have drunk “a couple when we were bowling, I can’t say.”
The other co-worker said he drank three or four bottles of beer, that he didn’t know how many beers Lovins drank but it could not have been as many as ten.
Lovins said he only had three or four beers at Joe’s Tavern; he also testified that he did not recall precisely how much he drank there.
See Schratt v. Fila, supra, p 244.
A toxicologist testified that to register 0.24 at the time of the accident Lovins would have had to have consumed a minimum of 18 bottles of beer.
In Higdon v. Kelley (1954), 339 Mich 209, 215, the Michigan Supreme Court took judicial notice that the consumption of 10 to 12 glasses of beer in an afternoon was sufficient to cause intoxication. In Schratt v. Fila, supra, pp 241, 247, the Court said there was sufficient evidence of intoxication to go to the jury where the testimony tended to show consumption of 7 or 8 bottles of beer in an afternoon.
McCormick on Evidence, § 9, p 14. Cf., as to past recollection recorded, McCormick on Evidence, ch 31, p 590; Fisher v. Kyle (1873), 27 Mich 454; People v. Hobson (1963), 369 Mich 189.
In the cited case the Michigan Supreme Court held that the various steps in the keeping and transportation of a specimen from the time it is taken until analysis must be traced or shown by evidence, and that the presumptions that official duty is properly performed and public records are correct will not supply missing links in the chain.
See Alpena National Bank v. Hoey (1937), 281 Mich 307, 311, 812, where the Court commented on a process server’s t estimony regarding his “practice in serving papers”: “having served thousands of legal papers, [he] could not remember this particular service. Without explanation, it would have been suspicious if he had claimed remembrance of a service nine years before.”
See, also, Commonwealth v. Torrealba (1944), 316 Mass 24 (54 NE2d 939) ; Baldridge v. Matthews (1954), 378 Pa 566 (106 A2d 809).
“Evidence of habit is admissible to show like conduct on the occasion in question.” Hoffman v. Rengo Oil Company, Inc. (1969), 20 Mich App 575, 576 (that deceased habitually followed a set pattern in crossing the highway to obtain the daily paper). See, also, Sisson v. Lampert (1910), 159 Mich 509, 512; Merrill v. Tinkler (1910), 160 Mich 575, 577; Churchill v. Mace (1907), 148 Mich 456, 458; Beasore v. Stevens (1909), 155 Mich 403.
In negligence actions evidence of a litigant’s habit has been admitted for the purpose of showing whether he exercised due care at the time of the accident. Missouri P. R. Co. v. Moffatt (1899), 60 Kan 113 (55 P 837) and Stone v. Boston & M. R. Co. (1903), 72 NH 206 (55 A 359) (plaintiff’s habit of exercising care at a railway crossing to show that he was not contributorily negligent); Jaquith v. Worden (1913), 73 Wash 349 (132 P 33) (the defendant’s habit of leaving his automobile unlighted on the street as a circumstance tending to prove that he did so on the night of the accident); Mahoney v. New York C. R. Co. (CA 2, 1956), 234 F2d 923 (evidence of a practice to tie cargo to a railroad car with wire when the car is loaded to show that such wire was on the car at the time of the accident); Hodges v. Hill (1913), 175 Mo App 441 (161 SW 633) (habit of rider of horse to ride it at a rapid rate of speed along the road where the accident occurred).
On the issue whether a carload of goods was delivered, evidence of the custom of the railroad company to place carload lots consigned to the defendants on the spur traek immediately adjacent to their plant is admissible. Austin v. Knell (1915), 188 Mich 100. Cf. Werney v. Reid (1922), 219 Mich 257, 264, 265.
See, generally, on the admissibility of testimony regarding a person’s habit, McCormick on Evidence, § 162, p 340; 1 Wigmore on Evidence (3d ed), § 92, p 519; Model Code of Evidence, § 307, p 189; 1 Jones, Law of Evidence (5th ed), § 191, p 332.
See 5 Callaghan’s Michigan Pleading & Practice (2d Ed), § 37.217, p 574.
Osborn v. League Life Insurance Company (1969), 20 Mich App 19, 21.
See, also, Schratt v. Fila, supra, fn 2.
Intoxication can be established by circumstantial evidence. See Grinstead v. Anscer (1958), 353 Mich 542. See, also, Fletcher v. Flynn (1962), 368 Mich 328; Eisenzimmer v. Contos (1967), 379 Mich 656. See, also, the eases cited in footnote 6.
Kaminski v. Grand Trunk W. F. Co. (1956), 347 Mich 417, relied upon the plaintiff, dealt with alternative causal theories. Here, it is undisputed that the accident was caused by Lovins’ negligent driving and it is not seriously disputed that he was intoxicated at the time of the accident. Nor is it contended that the tavern was relieved of the legal responsibility that would have attached by reason of an unlawful sale because of Lovins’ beer drinking after he left Joe’s Tavern. (See footnote 15 and accompanying text). The principal disputed factual question is whether the tavern sold the defendant beer at a time when he was already intoxicated and, on this record, that presents a question of the reasonableness of the inference that Lovins was intoxicated before the tavern sold him the last bottle of beer that he purchased from the tavern, not of choice between alternative causal theories.
See footnote 1 for citation of act; Larabell v. Schuknecht (1944), 308 Mich 419, 423. See, also, Fletcher v. Flynn (1962), 368 Mich 328; Hylo v. Michigan Surety Company (1948), 322 Mich 568.
See Johnson v. Johnson (1894), 100 Mich 326, 327.
A tavern owner is not liable if the intoxication to which he contributed is “separate and distinct” (Merrinane v. Miller [1909], 157 Mich 279, 283; Barks v. Woodruff [1882], 12 Ill App 96) from — if his unlawful sale “in no way contributed” (Jewell v. Welch [1898], 117 Mich 65, 66) to — the injury-causing intoxication.
In Larabell v. Schuknecht, supra, the Court reiterated the controlling principle (p 423) :
“It is true that if each one of the tavern keepers was responsible for the intoxication or for contributing to it and the intoxication caused decedent’s conduct resulting in death, suit could be brought against all who contributed to the same intoxication for all damages resulting to the plaintiff -within the purview of the statute. 1 Cooley on Torts (3d ed), p 527, citing Johnson v. Johnson, 100 Mich 326; Jewell v. Welch, 117 Mich 65.” (Emphasis supplied.)
Generally, see 45 Am Jur 2d, Intoxicating Liquors, § 582, p 872.
Cf. McCormick on Evidence, § 309, p 642, n 8; 1 Jones, Law of Evidence, (5th ed), §66, p 117; Cowgill v. Boock (1950), 189 Or 282 (218 P2d 445).
No opinion in this case was signed by as many as five justices. However, Justice Otis Smith’s opinion was concurred in by two other justices and Justice Kelly, writing a separate opinion in which Justice Dethmers concurred, stated that he was in complete agreement with Justice Smith’s opinion. Thus, a clear majority of the sitting Michigan Supreme Court limited the scope of the Kangas dictum.
See Scripps v. Reilly (1877), 35 Mich 371, 390; Hayes v. Coleman (1953), 338 Mich 371, 382; Kujawski v. Boyne Mountain Lodge, Inc. (1967), 379 Mich 381.
See Keopel v. St. Joseph Hospital (1968), 381 Mich 440; Kujawski v. Boyne Mountain Lodge, Inc., supra.
Similarly, see Chunko v. LeMaitre (1968), 10 Mich App 490, 497.
See Genesee Merchants Bank & Trust Company v. Bourrie (1965), 375 Mich 383, 389, 390. Cf. Ruediger v. Klink, supra, fn 1.
Compare Virgilio v. Hartfield (1966), 4 Mich App 582, where it was held that a tavern owner does not have a right of contribution against the intoxicated person because there is no common theory of liability of a tavern owner and of an intoxicated person to the plaintiff. See, also, Duncan v. Beres (1968), 15 Mich App 318, 324.
Under the dramshop act a plaintiff wife, child or other person may recover for injury to person or property, “means of support or otherwise.” MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993). Under the wrongful death act the decedent’s administrator may bring an action for the benefit of the surviving spouse and next of kin to recover for them damages “with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered, and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death.” MCLA § 600.2922 (Stat Ann 1970 Cum Supp § 27A.2922).
Carpenter lived for five hours after the accident.
Humphrey v. Swan (1968), 14 Mich App 683, 689. | [
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Per Curiam.
Defendant, with retained counsel, was tried by the court sitting without a jury and found guilty on the charge of attempted breaking and entering with intent to commit a felony contrary to MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305) and MCLA § 750.92 (Stat Ann 1962 Rev § 28.287).
On appeal it is contended that the evidence was insufficient to support the verdict of guilty beyond a reasonable doubt. Second, it is alleged that the lower court erred in allowing defendant to be cross-examined relative to previous felony convictions. The people have filed a motion to affirm the conviction.
A complete review of the entire lower court record leaves no doubt that the evidence was sufficient to support the verdict. Moreover, the defendant having taken the witness stand, his credibility was in issue. Evidence of prior convictions is admissible for this purpose. MCLA § 600.2158 (Stat Ann 1962 Rev § 27A.2158); People v. Roney (1967), 7 Mich App 678, 683. The questions presented are unsubstantial.
The motion to affirm is granted. | [
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Per Curiam.
The defendant was convicted on his plea of guilty of the charge of breaking and entering. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). On appeal he asserts that the trial judge did not by direct questioning of the defendant, as required by People v. Barrows (1959), 358 Mich 267, 272, ascertain the crime and the defendant’s participation in its commission. The people have moved to affirm.
In response to questioning by the judge the defendant said that at approximately 11 or 12 o’clock at night he entered a business establishment through a window and that his purpose in doing so was to steal some money. It was not, however, established in the questioning of the defendant that the window was closed or that it was necessary to move it so that the defendant could enter. See People v. White (1908), 153 Mich 617. There is, however, no reason to believe that the window of this business establishment had been left open at that hour of the night. Nor is it claimed on this appeal that the window was closed.
During the examination the defendant said that Timothy McLean and Theodore Dingman were with him when he entered the building. Dingman and McLean were also charged and also pled guilty at the same hearing during which the defendant Fronius pled guilty. In response to a question from the court, Dingman said he opened the window and explained how he did so.
It would, of course, have been better had the trial judge questioned the defendant on this aspect of the matter. Under all the circumstances we are not prepared to say that the questioning was so incomplete as not to provide an adequate factual basis for the acceptance of a plea of guilty to this offense. See People v. Bartlett (1969), 17 Mich App 205. See, also, People v. Seifert (1969), 17 Mich App 187; People v. Melvin (1969), 18 Mich App 652.
The motion to affirm is granted. | [
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] |
J. H. Gillis, P. J.
On June 4, 1968, defendant Paul Cook was tried by a jury and convicted of kidnapping, MCLA § 750.349 (Stat Ann 1954 Rev § 28.581). He was sentenced to prison for a term of 20 to 40 years. On appeal, defendant alleges an illegal search and seizure and trial error.
The proofs adduced at trial depict a familiar scene: While on her way to Holy Family school, Grand Blanc, on the morning of February 8, 1968, Polly Farney, a 9-year old, was told by a stranger that her classes had been cancelled for the day. The stranger, identified by Polly at trial as defendant Cook, was seated in a car parked near the school. He offered to drive Polly home; he also offered her a candy bar. Polly entered the car; she was not taken home, however. At one point, Polly opened the car door and ran from the defendant. She was caught by the arm, taken back to the car, and instructed by defendant to keep her eyes shut. According to Polly’s testimony at trial, defendant Cook unzipped his clothes and began pulling on Polly’s leotard. Polly testified that the stranger eventually returned to the school and released her.
After Polly’s return to school, the state police were called. Trooper Robert Kelly interviewed Polly and she described the man who had picked her up. Polly also described the car driven by the stranger. It was a white vehicle with a black interior and bucket seats. The car was smaller than a full-sized-car — a compact model.
Unknown to defendant, a passing motorist, one James Britz, had observed defendant’s “unusual” presence at the school on the morning of February 8. Mr. Britz had taken his children to Holy Family school on the morning of the offense. He thoug’ht it strange to see a car parked near the school with an unfamiliar male occupant. Britz observed the car’s color and make; he also jotted down the car’s license number, KF 1863. Later that day, Britz discovered from his children that a stranger had picked up a little girl in his car and had taken her from school. He immediately called the police and informed them of the license number of the car seen earlier. A police registration check revealed that the car was registered in the name of Paul Cook.
On February 10, 1968, state police troopers Kelly and James Collins went to defendant’s home to arrest him. Upon arrival, they observed a white compact car bearing license number KF 1863 located in the garage adjacent to defendant’s house. The car was seen through an open garage door.
The troopers learned from Mrs. Cook that her husband was not at home. Trooper Collins informed Mrs. Cook that the state police were investigating a kidnapping and that her husband was a suspect. Mrs. Cook was told that the car would be taken as evidence. A police wrecker was called and the car was towed to a state police garage where it was secured and marked, “protect for prints.”
Defendant Cook was located at his place of business on the afternoon of February 10, 1968. He voluntarily accompanied state troopers to the Flint police station where both Polly Farney and James Britz identified defendant Cook in a lineup. Cook was then arrested.
Cook’s automobile remained secured in the state police garage until February 12,1968. On that date, two days after defendant’s arrest, fingerprint experts from the state crime laboratory unlocked the car and dusted its interior for latent prints. Fingerprints were found inside the car which matched those of Polly Farney.
Defendant filed a pretrial motion to suppress people’s exhibit 7, an enlargement of a print found on the right front inside door handle of defendant’s car, on the ground that such evidence was the. product of an unlawful search and seizure. Defendant relied principally on Preston v. United States (1964), 376 US 364 (84 S Ct 881, 11 L Ed 2d 777). The trial court denied defendant’s motion following an evidentiary hearing. At trial, an expert witness testified for the people that exhibit 7 matched prints made by the right little finger of Polly Farney.
I
Defendant contends that admission of people’s exhibit 7 as evidence against him was constitutional error. He alleges that the warrantless search of his car for latent fingerprints violated his rights under the Fourth Amendment, as applied to the states through the Fourteenth Amendment, of the United States Constitution. See Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933). Defendant reiterates reliance on Preston v. United States, supra.
The people contend that under Cooper v. California (1967), 386 US 58 (87 S Ct 788, 17 L Ed 2d 730), the taking of defendant’s car and the subsequent search of the car for latent fingerprints was valid without a warrant.
The basic question we must answer is whether the actions of the police were reasonable under all the circumstances. As noted in People v. McDonald (1968), 13 Mich App 226, 232:
“Where a warrant has not been obtained, the validity of the search depends on the law’s appraisal of the reasonableness of the search, only unreasonable warrantless searches and seizures being barred.”
And see, People v. Gonzales (1959), 356 Mich 247, 253; People v. Zeigler (1960), 358 Mich 355, 375; People v. Herrera (1969), 19 Mich App 216, 229. For reasons which follow, we hold that the warrant-less conduct of the police in taking defendant’s car and subsequently dusting it for fingerprints was reasonable in constitutional terms.
The facts presented at the evidentiary hearing on defendant’s motion to suppress support the trial court’s finding that the police had probable cause to arrest defendant Cook for the kidnapping of Polly Farney. This finding is not contested by defendant on appeal. Having probable cause to arrest defendant, the police were entitled to go to defendant’s residence to arrest him; they were lawfully on defendant’s premises. MCLA § 764.15(d) [StatAnn 1954 Rev § 28.874(d)], People v. Eddington (1970), 23 Mich App 210. Once lawfully on the premises, Troopers Kelly and Collins were not required to disregard objects falling in plain view, including defendant’s car.
“It has long been settled that objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States (1968), 390 US 234, 236 (88 S Ct 992, 993; 19 L Ed 2d 1067, 1069).
Accord, People v. Orlando (1943), 305 Mich 686; People v. Kuntze (1963), 371 Mich 419; People v. Tetts (1967), 6 Mich App 254; People v. Hopper (1970), 21 Mich App 276; People v. McDonald, supra.
It is undisputed that defendant’s car was in plain view; it was parked in an open garage. Moreover, the car observed in defendant’s garage matched descriptions of the vehicle used by the kidnapper given by both Polly Farney and James Britz. Under these circumstances, the state police had reasonable cause to believe that the car had been used to effectuate the crime. The car itself was evidence of defendant’s guilt. It was an instrumentality of the crime. Since the police had good reason to believe that the car seen parked in defendant’s open garage was used as an instrumentality of the kidnapping, they were justified in preserving the car itself as evidence of defendant’s guilt. Being in plain sight, no search was required for its discovery. Harris v. United States, supra. And,' once seen, the car was subject to warrantless seizure. Cooper v. California, supra; State v. McCoy (1968), 249 Or 160 (437 P2d 734); People v. Nugara (1968), 39 Ill 2d 482 (236 NE2d 693), cert den 393 US 925 (89 S Ct 257, 21 L Ed 2d 261); State v. McKnight (1968), 52 NJ 35 (243 A2d 240); State v. Russell (1969), 282 Minn 223 (164 NW2d 65); People v. Teale (1969), 70 Cal 2d 497 (75 Cal Rptr 172, 450 P2d 564); State v. Carter (1969), 54 NJ 436 (255 A2d 746); State v. Thompson (1970), 285 Minn 529 (173 NW2d 459).
We agree with the trial court’s determination that Preston v. United States, supra, is distinguishable. In Preston, defendant had been arrested on a charge of vagrancy. The warrantless search of his automobile while he was in custody produced evidence used to convict defendant of conspiring to rob a federally insured bank. It was held that the evidence was inadmissible becáuse the warrantless search was too remote in time or place to have been incidental to the arrest and therefore made in violation of the test of reasonableness under the Fourth Amendment.
The later decision of the United States Supreme Court in Cooper v. California, supra, however, makes it clear that not every warrantless search of an automobile made after a defendant’s arrest is unlawful. In Cooper, it was held that the search of an automobile is reasonable within the meaning of the Fourth Amendment if it is closely related to the reason the accused is arrested and the reason the car is impounded and being retained. Mr. Justice Black noted, 386 US at 61 (87 S Ct at 790, 791, 17 L Ed 2d at 733):
“While it is true, as the lower court said, that ‘lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,’ ibid, the reason for and nature of the custody may constitutionally justify the search. Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston’s convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston’s car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car. This case is not Preston, nor is it controlled by it. Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car — whether the State had ‘legal title’ to it or not — was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained.” (Emphasis supplied.)
Likewise, in the present case, the state police seized defendant’s car because of the crime for which they arrested him. His car had been used to kidnap Polly Farney. It was properly seized as an instrumentality of the crime. Their subsequent search of the car for Polly’s fingerprints was closely related to the reason defendant was arrested, the reason his car had been impounded, and the reason it was being retained. The search was therefore valid without a warrant. Cooper v. California, supra; People v. Sims (1970), 23 Mich App 194.
Finally, we are of the view that it is plainly within the realm of legitimate police investigative technique to subject objects properly seized as evidence of crime to scientific testing and examination and that defendant cannot reasonably contend that the dusting of his car for fingerprints was in derogation of his Fourth Amendment rights. On this point, we are in accord with the reasoning expressed by Chief Justice Weintraub in State v. McKnight (1968), 52 NJ 35, 57, 58 (243 A2d 240, 253):
“We think it sound to say that an automobile, seized as an instrument of crime, may be examined or searched without a warrant. * * * Surely a search warrant is not necessary to examine or to test a weapon, or to open the brown bag or valise seized as an instrument used in a bank robbery to see if the stolen money is there. There is no reason to treat an automobile differently from any other chattel employed to commit crime. The question is whether such a search is ‘unreasonable,’ the final standard under the Fourth Amendment. * * * We see nothing unreasonable about it. There is no threat to the values protected by the Fourth Amendment when the vehicle that is searched was used to accomplish a crime and was seized on that account.” (Citations omitted.)
See also, People v. Teale, 70 Cal 2d 497, 507-510 (75 Cal Rptr 172, 178-180; 450 P2d 564, 570-571).
We conclude that people’s exhibit 7 was lawfully introduced in evidence. The conduct of the police in securing defendant’s car as evidence and subsequently dusting it for fingerprints was reasonable under all the circumstances. We recognize that the continuing validity of Cooper is open to debate in light of the United States Supreme Court’s decision in Chimel v. California (1969), 395 US 752 (89 S Ct 2034, 23 L Ed 2d 685). Whether the police practices approved in Cooper remain constitutionally sound is a question we need not decide, however. The search here occurred on February 12, 1968. Since Chimel was decided on June 23, 1969 and this Court has not given it retroactive application, see People v. Herrera (1969), 19 Mich App 216, 232, Chimel is inapplicable to the facts in this case. Cf. People v. Sims, supra.
II
Defendant did not testify at trial. His counsel suggests that defendant was forced to remain silent because of an allegedly erroneous ruling by the trial judge — specifically, that the people would be permitted to impeach defendant’s credibility by use of his prior criminal record.
We find no error requiring reversal of defendant’s conviction. By statute, MCLA § 600.2158 (Stat Ann 1962 Rev § 27A.2158), the people had the right to cross-examine defendant concerning his criminal convictions, the purpose being to assist the jury in determining the credibility of defendant as a witness in his own behalf. People v. Finks (1955), 343 Mich 304; People v. DiPaolo (1962), 366 Mich 394; People v. Roney (1967), 7 Mich App 678; People v. Koontz (1970), 24 Mich App 336. Defendant does not argue that the trial court should have foreclosed use of a particular conviction on the ground that its prejudicial effect far outweighed any probative relevance to the issue of defendant’s credibility. Compare People v. Eldridge (1969), 17 Mich App 306, 312, 313; People v. Eddington, supra. Rather, relying on Luck v. United States (1965), 121 App DC 151 (348 F2d 763), defendant urges that we enunciate a broad rule barring use of all prior convictions for impeachment purposes, regardless of their nature. Neither the District of Columbia Circuit, see Gordon v. United States (1967), 127 App DC 343, 347 (383 F2d 936, 940), nor any other jurisdiction has gone so far. We likewise decline to embrace such a novel position.
Affirmed.
All concurred.
Defendant contends in his brief that: “The combined cogencies of historical reasons and logical reasons and ideas of fair play now seem to require this Court to enunciate the rule that a defendant in a criminal case may take the stand in his own defense without fear that he will be cross-examined on his past criminal record and that it shall not be introduced through other records unless the defendant chooses to put his character in issue by claiming good character or that he had never been convicted of any crime.” | [
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Long, J.
Plaintiff brought suit upon a promissory note given by defendant. Defendant gave notice of set-off for the alleged conversion of certain certificates of stock of 100 shares each in the Iron Silver Mining Company, which were pledged with plaintiff as collateral security for the note sued upon. It appears that the plaintiff tendered back to .the defendant certificates of shares of stock in the same company, but not the identical certificates received as such collateral. It was shown that the plaintiff sold from time to time certain of the shares of stock so deposited with him by defendant, and received certain moneys therefor. The record contains the admissions of the parties made during the trial, as follows:
‘ ‘ Defendant admits that, if the plaintiff is not chargeable with the amounts received by him on the sale of the certificates of stock deposited with him by defendant, evi denced by certificates A14,664, A14,665, A14,666, sold by him October 16, 1889, and certificate A8,608, sold by him January 14,' 1890, and certificate A13,639, sold by him July 18, 1892, there is due plaintiff the sum of $787.75.
“Plaintiff admits that, if he is chargeable with the amount received by him upon the sale of said stock above mentioned, there is due to the defendant the sum of $867.20.”
The court below directed the verdict in favor of defendant for $867.20. Plaintiff brings error.
The only question raised here is whether the plaintiff is bound to return the identical shares of stock he received from the defendant. It appears that the plaintiff had on hand at all times^ a sufficient number of shares of the same stock to meet the pledge. It is contended by counsel for plaintiff that, inasmuch as one share was exactly like every other share of the stock, the defendant did not and could not suffer any damage by having returned to him other certificates of stock than those deposited, and therefore no action would lie. It appeared in the case that the five certificates for which the defendant was allowed a set-off against the note were fully identified. It is not contended that these certificates ever became the property of the plaintiff. He never had authority to sell them, and yet he did sell them at the price for which the defendant was permitted to recover in this action. These (certificates were indorsed in blank, but several of them stood upon the books of the company in the name of the defendant. The others stood on the books in the names of the parties from whom defendant received them. They passed from hand to hand, and any holder could have them entered on the books of the company in his own name. It has been held by this court that, where a party wrongfully sells a certificate of shares of stock in a corporation under such circumstances as to make him liable in trover, it is the shares of stock he is to be considered as having converted, and not merely the paper certificate which represents those shares; and that an action for the conversion will lie. Morton v. Preston, 18 Mich. 60 (100 Am. Dec. 146). That trover will lie for shares of stock) was held also in Daggett v. Davis, 53 Mich. 36 (51 Am. Rep. 91).
The shares being identified in the present case, so that the defendant .could state specifically what shares were deposited, we think it is well settled that he is entitled to have the identical shares returned, and that, if not returned, the plaintiff would be liable for their value. It is/ true that, in. the absence of any such designation, the law will presume that the shares so on hand from time to time were the shares deposited, because the parties have not reduced the shares to any more certainty. Allen v. Dykers, 3 Hill, 598. It was held in Fay v. Gray, 124 Mass. 500, that, if' a certificate of stock in a corporation pledged as collateral security is transferred by the pledgee to a creditor of his own, the pledgor may treat this as a conversion, and the fact that the pledgee has a greater number of shares standing to his own credit on the books of the corporation is immaterial. In Atkins v. Gamble, 42 Cal. 86 (10 Am. Rep. 282), the other view was taken, and it was held that the identical shares need not be returned ; but we think the great weight of authority is the other .way. Counsel seem to think that the numerous cases are conflicting; but we think it will be found upon /" examination that where the stock pledged as collateral can be identified, and separated from the other stock, the pledgor is entitled to have a return of his identical shares.f In .many of the cases cited, the courts were treating of the rights between a broker who buys stock, and holds it as security for moneys advanced, and the parties for whom he purchases. In that class of cases it is held that the broker may satisfy his contract by turning over any shares he holds, and the only requirement is that he keep a sufficient amount on hand in his own name, and subject to his absolute control, to enable him to restore the shares purchased for the customer. But when stock is pledged as collateral,.security,....and... the stock is identified, the pledgor is entitled to a return of the shares pledged, Any _ other rule than this would be at variance with the settled rule in this State that trover will lie for the conversion of such certificates of shares.
The court below very properly directed verdict in favor of defendant. The judgment must be affirmed.
The other Justices concurred. | [
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] |
McDonald, C. J.
The purpose of this bill is for an accounting and to impress a trust on an 80-acre farm in the township of Shelby, Macomb county, Michigan. On January 13, 1910, Frederick Bliss, the plaintiff, then an infant, was injured in an accident. A suit for damages followed in which his mother, Melvina Bliss, one of the defendants here, was his next friend. Settlement of this suit was made by the payment of $2,000 to Melvina Bliss, which amount was reduced by lawful expenditures to the sum of $1,000, which she thereafter held for the use and benefit of the plaintiff and with his consent invested it in real estate in the city of Detroit. The mother, Melvina Bliss, was a widow, and the plaintiff lived with her until his marriage. In 1912, Lawson Collier came into the home. He had been married twice and at that time had a wife living from whom he was not divorced. He persuaded Mrs. Bliss, to allow him to live with her in a relation that he termed a common-law marriage. He quickly acquired an influence over her which he used in manipulating the trust property for his benefit. In November, 1916, he paid up some indebtedness on the Detroit property which. Melvina Bliss held on a contract, and secured a deed in which he and Melvina Bliss were the grantees. In April, 1920, they traded this property for the farm in question, the title to which was taken in the name of Lawson Collier. In August, 1918, the plaintiff began a suit in chancery in Wayne county against his mother for an accounting, for a discovery as to the trust fund and for a determination of the amount due to him. Melvina Bliss, the defendant, filed an answer but did not appear at the hearing and the plaintiff was given a decree for $1,000. , In July, 1922, Lawson A. Collier died, and in November, 1922, this suit was begun for an accounting and to impress a trust on the farm. All of the defendants except Melvina Bliss and the Mt. Clemens Savings Bank are heirs of Lawson A. Collier, deceased. After hearing the testimony the circuit judge denied an accounting against the estate because of the plaintiff’s laches, but gave him a lien upon the farm for $1,000 subject to the mortgage of the Mt. Clemens Savings Bank. From this decree both parties have appealed.
The plaintiff contends that notwithstanding the decree against his mother in the Wayne circuit, he is entitled to follow the trust fund into the Macomb county farm and to have an accounting as to Collier’s dealings with that fund. On their part the defendants claim that the plaintiff is not entitled to a lien on the farm for $1,000; that all of his rights were adjudicated in the suit against his mother; that having elected to sue her alone he cannot now in this action assert a claim involving the same matter against the Collier estate.
The testimony shows beyond question that Melvina Bliss came into' possession of $1,000 belonging to the plaintiff and that she invested it in various Detroit properties with his consent before and after he became of age, and that this fund through the manipulations of Lawson Collier was put into the Macomb farm, the title to which Collier took in his own name. Collier was not a good faith purchaser for value, but took the title with full notice of the trust estate and with the fraudulent purpose to defeat it. Under these circumstances he took the property subject to the trust. The cestui then had a choice of two remedies. He could repudiate the trust as to the property and hold the trustee personally accountable for the breach or he could pursue Collier and ask a court of equity to subject the property to the trust. He chose the latter remedy and began this suit. He was clearly entitled to this remedy unless estopped by the previous suit and decree against his mother, Melvina Bliss, in the Wayne circuit court. That suit was not against the trustee personally and was not instituted and maintained because of a breach of the trust. The bill asked for an accounting and for the location of the trust fund, the legal title to which at that time was still in the trustee. The court made an accounting and by its decree fixed the amount of the estate in the hands of the trustee but did not terminate the trust. In fact, it established the trust which under the pleadings was in dispute. So that when the property into which the trust fund had been invested was exchanged for the farm, this plaintiff was still the equitable owner of the fund and could rightfully insist that the farm be subject to a trust to the extent of his interest as fixed in the former decree against his mother. In so holding we have not overlooked the rule that by taking a judgment against his trustee for the price of trust property wrongfully sold, a cestui que trust thereby ratifies the sale and waives his right to pursue the purchaser. 25 R. C. L. p. 1351; 39 Cyc. p. 535, note 10, and cases cited.
The reason for the rule is found in the fact that when there has been a breach of the trust by wrongful sale, the cestui has a choice of two remedies. He may hold the trustee personally accountable or may pursue the fund in the hands of the purchaser. If, with full knowledge of the facts, he elects to sue the trustee, he thereby ratifies the sale and waives his right pursue the purchaser. In the instant case, at time the plaintiff began the former suit against mother, there had been no sale of the trust property; there had been no misappropriation or breach of trust and the plaintiff had no action against Collier and no action against his mother, except for accounting. He had no choice of remedies and could not therefore make an election; What he did that time is not at all inconsistent with his action beginning the present suit. In our .judgment he not estopped from asserting his right to have a trust impressed upon the farm in question, but that reason of the former decree it is limited to the amount therein allowed, including interest at the legal
The question of laches is not involved and therefore not discussed.
The decree of the circuit court is modified as to the disallowance of interest. In all other respects it is affirmed. A decree will be entered in this court in accordance with this opinion. The plaintiff will have costs.
Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred with McDonald, C. J. | [
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] |
Clark, J.
Plaintiffs had decree for specific performance of an oral agreement to convey. Defendants appealing contend:
“(1) That the making of any such contract as that alleged was not proved with the degree of certainty required in such cases.
“(2) That the acts of performance alleged and relied upon to take the case out of the statute of frauds do not with sufficient certainty and exclusiveness point to the alleged contract.”
Frederica Haise lived alone on a 40-acre farm in Montcalm county. She was “seventy some” years old. Her husband had been dead eight years. She had no children. She had a brother and two sisters living in Michigan. There had been other brothers, and perhaps sisters, of whom nothing had been heard since the known members of the family left Germany about 40 years ago. Mrs. Haise owned 20 acres of the farm in her own right. Her husband had had the title to the other 20 acres. There had been no administration of his estate, being the 20 acres. Mrs. Haise was entitled by inheritance to a third of such estate, the remainder belonging to- children of Mr. Haise by a former marriage. Such children asserted no rights in the land during the life of Mrs. Haise. Her land, including the distributive share, was appraised at about $2,800 and her personal property at about $3,500. She owed practically nothing.
Plaintiff Leta Denevan was a granddaughter of a sister of Mrs. Haise. The other plaintiff is her husband. At the time in question they had been married about one year. It is established clearly on the record that Mrs. Haise was, and for years had been, fond of Mrs. Denevan, and that for a long time before her death she had desired and intended that, at her death, her property should go to Mrs. Denevan. In the fall or early winter of 1923, an oral agreement was made between Mrs. Haise and the plaintiffs, by which plaintiffs left their home and with some goods and equipment moved to the farm and lived in the farm house with Mrs. Haise. In behalf of plaintiffs it is claimed that the agreement was that they would care for and support Mrs. Haise while she lived, work the farm, give her annually a part of the products, and in return therefor all of her property was to go and belong to Mrs. Denevan. Mrs. Haise died intestate a few months later. Mrs. Denevan sought conveyances from the heirs, but was unable to get title in that manner. At the instance of heirs an administrator was appointed. Plaintiffs filed this bill making the administrator and the heirs, as far as known, defendants. Witnesses for defendants, more numerous than for plaintiffs, gave testimony based chiefly on claimed declarations or admissions of plaintiffs themselves, tending to show that the agreement in question was to work the farm on shares, and nothing more. Plaintiffs, not disputing that there was a share agreement, in support of their further claim had testimony some of which we quote.
Mrs. Denevan’s father testified of a conversation with Mrs. Haise:
“Q. She say anything about how long Leta was going to stay?
“A. She said she was going to stay with her all the time and take care of her.
“Q. Was that all she said about it?
“A. She said if she stayed with her she was going to give her the property she had.
“Q. When was such conversations?
“A. The first I knew of it was along in October.
“Q. In 1923?
“A. Yes, sir.”
A brother-in-law of Mrs. Denevan testified of another conversation with Mrs. Haise:
“Q. Was there anything said about the terms and conditions upon which Lester and Leta were living there with her?
“A. Yes, sir.
“Q. What did she say about that?
“A. She said they were going to stay with her.
“Q. They were going to stay with her?
“A. Yes, sir.
“Q. How long?
“A. All the while.
“Q. What did she say. about her property?
' “A. She said they were to have it.
“Q. Have it all?
“A. Yes, sir.
“Q. What were they to do besides stay?
“A. They were to care for her.
“Q. Care for her and they were to have all her property?
“A. Yes, sir.”
Mrs. Louisa Haling, 82 years of age, sister of Mrs. Haise, grandmother of Mrs. Denevan, testified. We quote a part as to a conversation with her sister:
“Q. Whether or not she told you that Leta was going to stay with her all the while?
“A. She said she gave her the place, she give her everything she had.
“Q. Just listen to this question. Did Mrs. Haise tell you Leta was coming to stay with her for good?
“A. Yes.
“Q. Did she tell you that?
“A. Yes, she said so; she say, ‘Leta take care of me as long as I live I give her everything.”
We recognize the rule that a contract such as is claimed must be established by clear and convincing evidence. It is also true that evidence to establish such contracts generally consists, in chief, of declarations made by the deceased to third persons which evidence is regarded as weak and unsatisfactory, and it must be scrutinized with care. 36 Cyc. p. 692. Appellants say that this court by a quotation found in Kinney v. Kinney, 220 Mich. 311, at page 316, is committed to the further rule that such a contract can be established only by the testimony of disinterested witnesses, and that plaintiffs' witnesses are interested because related to Mrs. Denevan. If that be the rule we think it does not apply to the witnesses whose testimony has been quoted. An interested witness is one whoi has a pecuniary interest, having prospect of gain or loss. State v. Easterlin, 61 S. C. 71 (39 S. E. 250); 3 Words and Phrases, 2104. Of course the relation of the witness to the parties is to be considered as regards credibility.
The trial judge had these rules in mind when, in an opinion filed, he reviewed the evidence and found for plaintiffs. He had the advantage of seeing the witnesses and hearing their testimony. A first impression in these cases, under the rules, and in the light of experience, is likely to be hostile to the claim. But in this case as reflection becomes mature it brings conviction that the trial judge has reached the right conclusion. The agreement is equitable. It contravenes no will. It is in keeping with a purpose, long cherished by the deceased. It is sufficiently supported by evidence. The testimony of the sister, Mrs. Haling, is especially convincing. And we quote from the opinion of the trial judge:
“This arrangement would be in accordance with the long cherished wish of the deceased and would explain, as no other theory does, why the plaintiffs, young people, as they were, should be willing to go into this home and upon this farm and undertake the care of this old person, as they did during her lifetime. If they wished merely to rent a farm, it would have been easy for them to have done so without assuming any burden of responsibility in the way of providing a home and support for an old person and assuming the risk of her whims, caprices and other disagreeable peculiarities and without undertaking the labor and sacrifice incurred in becoming obligated for her care.”
See Prendergast v. Prendergast, 206 Mich. 525.
Upon the second point we are in accord with the opinion of the trial judge:
“It is an undoubted fact that the plaintiffs moved upon the premises in question and looked after the live stock and did what work, if any, that was necessary at that season of the year upon the farm. They left their former home for that purpose and surrendered the quiet and retirement of the same for the purpose of complying with the wishes of the deceased and furnishing her that care and companionship which she apparently desired and which she entirely lacked, and furnished such care and companionship, comfort and aid as long as she continued to live. It is true that but little time elapsed between the date of the plaintiffs’ removal from the farm and the death of Mrs. Haise, and during that brief period of time but little opportunity was afforded for any outstanding act of part performance. However, it is likewise true that the plaintiffs did all that time and opportunity permitted them to do during the few weeks that they were in the home of the deceased. Accordingly they are entitled to the benefit of the contract, if such contract was entered into, and if they have performed it to the extent that circumstances permitted, the deceased received what she bargained for, and for which she was willing to compensate the plaintiffs by giving to them all of her property that remained after death. Her heirs are all collateral heirs and ought not now to be heard to complain because the length of plaintiffs’ services may not have been as long as contemplated by the parties. Harlan v. Harlan, 102 Iowa, 701 (72 N. W. 286); Lothrop v. Marble, 12 S. D. 511 (81 N. W. 885, 76 Am. St. Rep. 626).
“In those cases, as in the case at bar, money was not made the standard of compensation for the services performed, and likewise the term of service being dependent upon the length of a human life, was in those cases, as in the case at bar, a matter of uncertainty. If the term had extended over many years instead of only a few weeks, the defendants doubtless would not be here complaining. They have no greater reason to complain because Mrs. Haise died very much sooner than could be or was anticipated by any one.”
The decree is affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, FeLlows, and Wiest, JJ., concurred. | [
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Kuhn, J.
The plaintiff, accompanied by her daughter, Lulu Lake, on November 12, 1912, was riding in a buggy, driving a single horse, in the township of Lee, Calhoun county, Mich., going northerly toward her home in Brookfield, Eaton county, Mich. The highway was an ordinary country road, and they met the defendant and his wife ip an automobile. The view along the road was unobstructed for a distance of at least 15 or 20 rods, and the horse which the plaintiff was driving was 23 years old, and was not afraid of automobiles, having been accustomed to meeting them on the highway. As the horse and automobile met, according to the plaintiff, the horse jumped to the right, away from the automobile, then swung back again to the left, tipping the buggy over, throwing the occupants out on the right side of the road, causing injuries to the plaintiff for which she brought this suit. The negligence relied upon was in driving the automobile at an excessive rate of speed, causing the horse to take fright. A verdict of $800 was had in the court below, and judgment was rendered thereon.
But two points are raised and discussed by counsel in their briefs, viz.: (1) The admissibility of the testimony of- the witnesses Faulkner and Lake as to the rate of speed at which defendant’s car was traveling when it approached the horse and- buggy of the plaintiff; and (2) the admissibility of the evidence of the plaintiff that she “suffered lots of pain in every way.”
.It is the contention of the defendant’s counsel that the witnesses who testified as to speed had not shown sufficient knowledge or experience to qualify them to testify as they did. Mrs. Faulkner, who was about 62 years of age at the time of the accident, testified that she had been in the habit of meeting automobiles on the road for years, that she had been driving horses all her life, had ridden on railroad trains, and had observed the rate at which the ordinary vehicles traveled, and stated that she first saw the defendant when he was about 10 or 12' rods away. Witness Lulu Lake, who was about 45 years of age, testified that in her opinion the defendant's automobile was being driven from 25 to 30 miles an hour at the time of the accident. She stated that she had driven horses all her life, had ridden in automobiles, had ridden on trains, and knew something about the speed which trains of cars made. She stated that she had an opportunity to observe the machine as it was approaching her in such a way as to enable her to form a reasonable judgment as to how fast it was going.
The accident occurred in broad daylight, at a point where the respective parties could observe one another as they approached for a distance of from 15 to 25 rods. As was said by Mr. Justice Person for the court in Harnau v. Haight, 189 Mich. 600 (155 N. W. 563, 566):
"Such testimony should not be rejected unless it is clearly apparent that it can be of no value to the jury. Its weight is, of course, to be determined entirely by them,” citing cases.
See, also, 2 R. C. L. p. 1202, and note to Tecklenburg v. Light & Water Co., 34 L. R. A. (N. S.) 784. See, also, Matla v. Motor Vehicle Co., 160 Mich. 639 (125 N. W. 708). In that case the case of Wright v. Crane, 142 Mich. 508, 510 (106 N. W. 71), cited by counsel for.appellant in his brief, is distinguished, and it is likewise easily distinguishable from the case now before us. For in that case the accident happened when it was dark, so that an approaching vehicle could not be seen for any considerable distance; and it was nob claimed that the automobile was seen by the plaintiff until it was within 20 feet of where the plaintiff stood coming directly toward him. It was held that there was not a reasonable opportunity given under these circumstances to judge the speed, and that therefore it was obvious that the witness was not in a position to estimate the speed. In the present case, however, the witnesses had ample opportunity to judge of the speed, and therefore there was no error in submitting their testimony for the consideration of the jury.
There is also no merit in the contention as to the admission of testimony of the plaintiff concerning her suffering and pain, as the declaration alleges:
“Plaintiff has, by the negligent, careless, and improper conduct of the defendant, during all of the time from the happening of said injury to the present time, suffered great pain,” etc.
We discover no error.
Judgment is affirmed.
Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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] |
Wiest, J.
In this suit plaintiff seeks to recover taxes it claims defendant illegally exacted under Act No. 297, Pub. Acts 1921 (Comp. Laws Supp. 1922, §§ 4002, 4003), and paid by it under protest. On motion of defendant the suit was dismissed in the circuit and is here by writ of error.
No trial upon the merits having been had, we must accept the averments of fact in the declaration as true. Briefly stated, the issue is whether the bona fide and unconditional debts of the company should be deducted from its taxable credits irrespective of consideration of tax exempt securities held by it. This involves the validity of the following italicized provision of the act of 1921:
“For the purpose of taxation personal property shall include: * * * All credits of every kind belonging to inhabitants of this State, whether such indebtedness is due from individuals or from corporations, public or private, and whether such debtors reside within or without the State, except such as are expressly exempted from taxation by law. * * *
“The following personal property shall be exempt from taxation, to wit: * * * So much, of the debts due or to become due as shall equal the amount of bona fide and unconditional debts by the person owing: Provided, That if such person shall be the owner of credits that are exempt from taxation such proportion only of his indebtedness shall be deducted from debts due or to become due as is represented by the ratio between taxable credits and total credits owned, whether taxable or not.”
At the time of the tax in question (1923) the company had $6,541,620 in credits outside of its tax exempt securities, and its bona fide debts amounted to $9,391,045. It, therefore, claimed it should pay no tax upon its “taxable credits” because its bona fide .debts exceeded such credits.
Acting under the provision of the statute mentioned, the assessor, finding plaintiff’s total credits, taxable and nontaxable, amounted to $18,814,094, determined there should be deducted from its taxable credits only that portion of its debts represented by the ratio which its taxable credits bore to its total credits, taxable and exempt, and in assessing the taxable credits deducted only 34.8% of its debts; in other words, of its $9,391,045 of debts only allowed $3,268,083 in reduction of its taxable credits, leaving $3,273,537 of its credits of $6,541,620 subject to tax. By this method plaintiff claims it was illegally assessed and made to pay $73,552.80. This suit is to recover that amount.
The provision under which this tax was levied and collected is void. The tax here involved is a property tax. Cases involving franchise, inheritance and succession tax have no application. Tax exempt credits cannot be taxed, directly or indirectly. In laying a tax on property, tax exempt credits must be treated as nonexistent. The legislature may not make use of, or permit consideration to be taken of, tax exempt credits as a factor in determining taxes to be paid by holders thereof. To do so would attach a condition to the enjoyment thereof wholly incompatible with the issuance thereof and impair the underlying contract. The purpose of this statute is manifest, and the effect thereof touches tax exempt credits; not to directly tax them, but to make the holders pay more in taxes by reason of having them. This cannot be done. Farmers & Mechanics Savings Bank v. Minnesota, 232 U. S. 516 (34 Sup. Ct. 354). This provision offends against the rule of proportion, intended to insure uniformity of contribution and a just apportionment of the burdens of government, by way' of rating the tax upon a consideration of tax exempt credits as well as upon taxable credits and unconditional obligations. Tax exempt credits may not be considered at all by assessing officers in the matter of determining a property tax, and they are considered when used as a factor in apportioning the right to set off unconditional obligations against taxable credits. Most of the tax exempt credits held by plaintiff are obligations of the United States Government.
It was said in Home Savings Bank v. City of Des Moines, 205 U. S. 503, 513 (27 Sup. Ct. 571):
“The State cannot by any form of taxation impose any burden upon any part of the national public debt.”
Confessedly this statute imposes a greater burden of taxation upon a holder of tax exempt credits, along with taxable credits with unconditional obligations, than upon others with taxable credits and unconditional obligations without tax exempt credits.
Suppose this statute had provided that one holding tax exempt securities should be deprived of right to reduce his taxable credits at all by his unconditional debts? It would indicate no plainer purpose to indirectly place a burden of taxation on tax exempt credits than the provision in question, which, after fixing a right of reduction, based on and governed by a consideration of tax exempt credits, brings the tax exempt credits within the administration of the taxing law.
In Farmers & Mechanics Savings Bank v. Minnesota, supra, it was stated:
“It is, however, further suggested that the judgment under review does not sustain a tax upon the bonds as property, but only a tax upon the surplus of the savings bank, computed by taking into the account all of its assets, amounting to about $12,000,000, of which the bonds were only about $700,000, and deducting therefrom its liabilities. But as the surplus is treated as property and taxed as such, it is obvious that some portion of the burden of the tax is attributable to the ownership of the municipal bonds. In Bank of Commerce v. New York City, 2 Black (U. S.), 620, it was held that the State of New York in taxing the capital of banks according to its valuation must leave out of the calculation that portion of the capital invested in stocks, bonds, or other securities of the United States not liable to taxation by the State. And see Bank Tax Case, 2 Wall. (U. S.) 200; Home Savings Bank v. City of Des Moines, 205 U. S. 503, 509 (27 Sup. Ct. 571).
“It results that the inclusion of the bonds now in question in the list of the assets of plaintiff in error, in ascertaining its surplus for the purpose of imposing a State property tax thereon, was repugnant to the Constitution of the United States.”
The provision of the act, requiring consideration of tax exempt credits in laying the tax, interferes with the power and facility of the government of the United States to raise money by issuance of tax exempt obligations ; impairs the right of freedom from taxation accorded government obligations by the Constitution of the United States, and is void.
The judgment is reversed and a trial granted, with costs to plaintiff.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Per Curiam.
The defendant herein was tried and convicted of armed robbery, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797), and from this verdict he appeals.
On January 23, 1968, a party store in Detroit was robbed of $125. Present during the robbery were the owner and her daughter. The daughter selected the defendant from a pretrial lineup, and again positively identified him in court. Although the owner selected the defendant from photographs shown to her, she was unable to select the defendant from the lineup. However, she did make a positive in-court identification of the defendant.
Defendant on appeal contends that the store owner’s pretrial identification was tainted in that she selected the defendant by photograph, which therefore resulted in a tainted identification. Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247). Simmons did not hold that the mere selection of photographs prior to trial taints the in-court identification. The Court therein held that “each case must be considered on its own facts,” and that “convictions based on eyewitness identification at trial, following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons, supra, 390 US 384 (88 S Ct 967, 19 L Ed 2d 1253).
The defendant herein makes the bare assertion that identification by photograph necessarily taints the in-court identification. This contention is without merit.
This Court finds that sufficient evidence was presented to the trier of fact which, if believed, would sustain the conviction herein. People v. Floyd (1968), 15 Mich App 284, 285.
Conviction affirmed. | [
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Per Curiam.
Defendant was charged with first-degree murder, MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). He pled guilty to an open charge of murder and the court took testimony to determine the degree of homicide. The facts indicate that defendant had been drinking, he put his rifle into his car, drove five or six miles to a tavern, walked in, shot and killed one Rudolph Maurin. The gun was taken from defendant by customers and during the scuffle, he was hit over the head with a whiskey bottle by one of the patrons. Defendant was apprehended at the scene. The trial judge concluded that defendant was guilty of murder in the first degree and sentenced him to life imprisonment.
On appeal, defendant presents three issues: (1) Was defendant so under the influence of liquor at the time of the commission of the crime that he did not have the mental capacity necessary for a convic tion of first-degree murder? (2) Do the facts warrant a conviction of first-degree murder? and (3) Did the trial court exceed its authority at the degree hearing by eliciting facts rather than have the prosecuting attorney do so ?
A complete review of the transcript of the plea examination discloses that the court committed no error in accepting the guilty plea. Defense counsel was present. There were no objections to the acceptance of the plea, nor was the question of intoxication interposed. In the absence of manifest injustice, we do not consider objections raised for the first time on appeal. People v. Willis (1965), 1 Mich App 428; People v. Bradford (1968), 10 Mich App 696. A plea of guilty is itself a conviction. Like a jury verdict it is conclusive. People v. Collins (1968), 380 Mich 131.
The evidence of defendant’s guilt is overwhelming. At the degree hearing, witnesses, including a doctor, testified that defendant was alert and in possession of his faculties, able to walk, climbed stairs without falling, staggering or lurching. The trial judge found that defendant understood the events surrounding the death of the victim and that the killing was wilful, deliberate and premeditated. The record supports this conclusion. There is no indication of any miscarriage of justice. People v. Fred W. Thomas (1967), 7 Mich App 519; People v. Gill (1968), 12 Mich App 383.
It is for the court to determine the degree of murder. MCLA § 750.318 (Stat Ann 1954 Rev § 28.550). After a guilty plea has been accepted, the proceeding to determine the degree of murder is not a trial. People v. Case (1967), 7 Mich App 217. In such a proceeding, it is not error for the trial court to elicit information from the defendant.
Affirmed. | [
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Per Curiam.
On March 14,1966, plaintiff Richard Maki, while working as a stope miner for the defendant National Steel Corporation, fell on his right shoulder, injuring his arm and hand. National paid him compensation until he returned to work on April 4,1966. On that date, plaintiff requested that he be returned to the mines to work as a stope miner— a job he had held without cotaplaint for 36 years. As a stope miner, plaintiff’s average weekly earnings were $186. National refused and assigned plaintiff to work as a lunchroom attendant, earning $101.24 per week. On December 10, 1966, plaintiff was given work as a fuse cutter, again earning $101.24 per week.
Plaintiff filed a claim for workmen’s compensation and asserted that residuals to his right shoulder, right arm, and hand prevented him from working as a stope miner; and that, as a result of his fall, he had been transferred to his new tasks, suffering a loss of wages. His claim was for differential compensation benefits. Before the hearing referee, plaintiff testified that his right hand was numb as a result of the fall; and that this condition interfered with his work as a fuse cutter. There was also testimony which tended to show that because of such numbness plaintiff would have been unable to work as a stope miner, had defendant given him the opportunity to do so.
The hearing referee found as a fact that plaintiff had suffered a reduction in wage-earning capacity., as a result of injuries sustained on March 14, 1966. Accordingly, plaintiff was awarded compensation benefits. The workmen’s compensation appeal board affirmed the award, and defendant appeals.
On appeal, defendant seeks reversal of the award on the ground that plaintiff failed to establish a causal connection between the injuries sustained on March 14, 1966 and plaintiff’s disability for work as a stope miner. Defendant argues that plaintiff was transferred to lesser paying jobs for reasons wholly unrelated to the accident of March 14. We are told in its brief that plaintiff was assigned to less hazardous work “because of previous loss of sight of one eye, loss of hearing in one ear and other age disabilities and not because of any disability due to personal injury.”
Whether plaintiff’s loss of earnings was causally related to the accident of March 14, 1966, is a question of fact for determination by the fact finder. As stated in Scroggins v. Corning Glass Company (1969), 382 Mich 628, 630:
“Proximate causality is a determination within the province of the fact finder. We are constrained by the Constitution [Const 1963, art 6, § 28] and statute [MCLA § 413.12 (Stat Ann 1968 Rev § 17.186)] to accept the findings of fact by the workmen’s compensation appeal board if supported by any evidence in the record.”
In this case both the hearing referee and the appeal board specifically rejected defendant’s contention that it transferred plaintiff for reasons unrelated to his fall. We quote the relevant portions of the opinion of the appeal board written by member Mahinske:
“Although it is defendant’s position that the incident of March 14, 1966, in no way bore on its decision to remove plaintiff from underground work, I note with interest that it was not until such incident came to pass that defendant took the action it has taken in removing plaintiff from underground work. It is difficult for me to disassociate the compensable incident of March 14,1966, from plaintiff’s subsequent reduction in classification and wage loss. It is my opinion that the fact of the happening of the incident of March 14,1966, was a material consideration, if not the moving consideration, in defendant’s subsequent downgrading of plaintiff’s work classification.
“With this position, the referee below appears to have agreed. Referee Gregory found that plaintiff’s reduction in wage-earning capacity was a result of the injury he sustained on March 14, 1966. With such finding, I agree.”
Since the appeal board’s finding of proximate causality is based upon record proof or permissible inference from the testimony presented, we are powerless to change the result. Scroggins v. Corning Glass Company, supra; Mitchell v. Metal Assemblies, Inc. (1967), 379 Mich 368; Johnson v. Vibradamp Corporation (1968), 381 Mich 388.
Affirmed. Costs to plaintiff. | [
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Steere, J.
Defendant was complained of, arrested, tried, convicted, and sentenced in the circuit court of Otsego county to State prison for not more than 10 nor less than 5 years for the crime of feloniously assaulting and carnally knowing one Gladys L. Allen, a female under the age of 16 years. When brought before the committing magistrate he stood mute and.offered no testimony upon the preliminary examination there had. When arraigned in open court he also stood mute and on trial introduced no testimony except that of a physician as to the period of gestation. The assignments of error most strenuously urged and argued are absence of evidence of date and venue before the committing magistrate, and amendment of the information after arraignment.
■In the complaint and warrant under which he was arrested it is charged that he did,—
“On the 19th day of May, A. D. 1923, at the township of Livingston, and in the county aforesaid * * * with force and arms at the township aforesaid, in the county aforesaid, in and upon one Gladys L. Allen a female under the age of 16 years to wit of the age of 15 years, then and there being, violently and feloniously did make an assault, on her the said Gladys L. Allen, then and there by force and against her will feloniously did ravish and carnally know; contrary to the form of the statute,” etc.
At the close of the examination before the magistrate defendant’s counsel moved for his discharge on the ground that the complaint and warrant stated separate and distinct offenses under the statute requiring different proof in order to convict, and that neither offense had been properly proven.
The information on which he was arraigned in the circuit court charged him substantially in the language found in the complaint and warrant. Upon his arraignment he stood mute and a plea of not guilty was entered by order of the court, whereupon his counsel moved that the information be quashed and he discharged on the same ground as urged before the committing magistrate, arguing that while the latter had certified in his return it was made to appear to him that the crime was committed as charged, the testimony taken on preliminary examination and returned by the magistrate was devoid of evidence of the venue as stated in the complaint, warrant and information, or that said Gladys Allen was under 16 years of age when the alleged offense was committed, and that the two offenses of statutory assault and common-law rape could not be combined in one information. After some discussion the court suggested to the prosecuting attorney that the words “with force and arms against the will” and “ravish” be stricken out, to which the prosecutor did not object and the court so ordered. After a jury had been accepted and sworn and a witness called to testify, defendant’s counsel moved that all testimony under the information be excluded for the reason that defendant had no preliminary examination upon the charge in the information as it then stood, and the testimony taken upon the preliminary examination furnished no ground for the magistrate holding him for trial. Without further detail it can be said that defendant’s counsel by abundant objections, motions and exceptions saved for review all questions of error urged here.
Our applicable statutory provision relating to the offense commonly spoken of as rape is as follows:
“Section 20. If any person shall ravish and carnally know any female of the age of sixteen years, or more, by force and against her will, or shall unlawfully and carnally know and abuse any female. under the full age of 16 years, he shall be punished by imprisonment in the State prison for life, or for any such period as the court in its discretion shall direct, and such carnal knowledge shall be deemed complete upon proof of penetration only.” 8 Comp. Laws 1915, § 15211.
It is urged for defendant that the two kinds of offense stated in the statute cannot be jointly charged in one count of the information. In support of this Tiffany’s Criminal Law is cited, as giving separate blank forms for each, and the suggestion that “it is better to treat them as distinct offenses and draw the indictment accordingly,” is quoted from McLean on Criminal Law. And the contention is made that after eliminating the language essential to a proper indictment for rape at common law, it was not only error to proceed with the trial without arraigning defendant under the amended information, but by so changing the wording “the prosecution amended its case out of court,” because it was not shown on the examination that the prosecutrix was under 16 years of age at the date of the alleged intercourse.
Our statute has consolidated the two so-called forms, or methods, of committing rape into one paragraph, as an offense of the same kind and magnitude whichever way committed, punishable by imprisonment for life or such period as the court in its discretion may determine. They are not distinct offenses. Although that exact word does not appear in the statute, both are rape in principle under the common law.
“The word ‘rape’ has no technical value which renders its use in such case imperatively necessary, and if words be employed which describe such offense, they will be taken according to their legal import. If they charge the crime in the language employed by the statute to define rape, they will be taken to charge the crime of rape; and if they charge an assault with intent to do the act denominated rape, the con struction will be the same/' People v. McDonald, 9 Mich. 150.
Of a like statute in essentials it was said in People v. Crosswell, 13 Mich. 427 (87 Am. Dec. 774) :
“This statute does not change the nature of the offense as it stood at the common law, nor does it describe two distinct offenses, but the carnal knowledge of the female child under the age of ten years is held to be rape, on the ground that, from immaturity and want of understanding, the child must be deemed incapable of assenting, and the act presumed to be the result of force.”
In the latter case the crime is complete under the statute whether the intercourse is had with force or by consent (People v. Smith, 122 Mich. 284). The information as filed was not duplicative as to the offense charged. The defendant was fully informed of the nature of the accusation against him and of the essential facts within the scope of the statute which the prosecution might introduce proof of to sustain it. Under that information the prosecution could successfully maintain the charge of rape by showing force or not according to the available proof. Striking out the allegations of force and non-consent did not change the issue but only narrowed the proofs of the prosecution to intercourse and nonage.
The case of People v. Donovan, 228 Mich. 151, cited by defendant, is not in point. The court there found that the information did not as filed charge the crime of rape at all, but only alleged “unlawful intercourse,” omitted important elements of the crime sought to be proven and “charged no offense known to the law.” For those reasons it was held that after trial had begun and the jury sworn the prosecution could not amend an information which charged no offense known to the law to one charging rape and, without even calling upon the defendant to plead, proceed with the trial to a legal conviction of a crime for which he had been given no preliminary examination and never been arraigned. No such situation is shown in the instant case.
In a plain and impartial charge advising the jury of the safeguards the law throws around the accused and issues of fact for them to decide the trial court concisely pointed out the facts for their determination were whether defendant had sexual intercourse with Gladys Allen as alleged within the limits of Otsego county, and was she then under the age of 16 years. There was abundant proof upon those propositions to carry the case to the jury and to support their verdict.
Defendant Perry and Gladys Allen both resided at the time of the alleged offense in the village of Gay-lord which is located centrally in and the county seat of Otsego county. She was living at home with her parents and attending school, being then in the tenth grade. She was born in Otsego county on May 27, 1907. The record shows that the complaint was made on information and belief by the girl’s father and that she was also examined on oath before the warrant issued. Such examination is not required to be reduced to writing and the warrant is only required to recite the substance of the accusation.
The return of the committing magistrate shows that when brought before him on return of the warrant defendant “stood mute” when the charge contained in the complaint and warrant was read to him and thereafter an examination was held in the presence of the accused who was represented by counsel, but offered no testimony. Three witnesses were sworn by the prosecution: the girl, Gladys Allen, and her parents. Her father and mother had no personal knowledge of the circumstances of the alleged offense and in substance briefly testified to their daughter’s age, that in May, 1923, she lived at' home with them, was attending school, etc-. Gladys testified that defendant met her near the depot in Gaylord on an evening between the middle and last of May, 1923, about 9 o’clock on Saturday night as she thought, when she was on her way home and he asked her to take a ride with him in his automobile; that she at first declined but he “coaxed” her and she finally consented to go. He told her to go to the next crossing where he met her with his car. They rode a short distance west to a crossing, then turned north, and then went straight north into the country some distance. They talked about her school work and different things as they were going and after they had gone some distance he drove his car to the side of the road and stopped. He persuaded her to get into the back seat of the car with him, and then made improper proposals. On her refusal he overcame her resistance by force and had intercourse with her. As a result of that intercourse she became pregnant. On discovery of her condition she unsuccessfully appealed to him for help. This examination was not held until a short time after she had been confined. There were two Saturdays between the middle and last of May of that year, the 19th and 26th. While positive that the intercourse took place between the middle and last of May, to the best of her knowledge on one of those Saturdays, and that they went north from Gaylord that night, she failed to definitely testify as to date or place of the intercourse, her replies when further pressed for more definite answers being that she could not remember or did not know. The justice found and returned that an offense had been committed and it was made to appear to him there was probable cause to believe defendant guilty of the offense as charged in the complaint and warrant.
Defendant’s counsel admit in their brief “that the defendant had a preliminary examination upon the charge alleged in the amended information,” but contend that “an examination upon a dual charge which does not inform him of what crime he is charged with does not give him the information the law requires.” Not only does the information, following the complaint and warrant, clearly advise of the crime he was charged with, but he was further advised by the preliminary examination where both the questions of force and nonage were gone into by the prosecution in direct-examination of the girl and followed up by defendant’s counsel in a rigid cross-examination.
It is also earnestly urged that defendant’s motion to quash the information and discharge the accused should have been granted because no venue was proved on the examination and the magistrate had no jurisdiction to hold him for trial, as the girl testified in reply to the direct question that she did not know whether or not the spot where they stopped by the side of the road that night and the intercourse took place was in Otsego county.
The offense is charged in the complaint and warrant to have been committed in Livingston township, Otsego county. The jurisdiction of the justice was coextensive with the body of the county. The parties all resided at Gaylord, the centrally located county seat of Otsego county. Complaint was made before a justice of the peace at the county seat where the parties lived and from which they drove north out into the country that evening after dark, stopping by the roadside where the intercourse took place, and from there returned to Gaylord. ■ Gladys testified that she knew Livingston township lay north of Gaylord but did not know what township was north of Livingston. She was familiar with the village and knew that after driving a short distance west defendant turned north while they were yet in the village and “went straight north,” how far she did not know. They left Gaylord about 9 o’clock in the evening. She did not know what time she got home but thought it was before midnight. Courts may take judicial notice of political boundaries, such as counties, cities and townships. The testimony shows that the parties went north from the village into the township of Livingston. The township of Corwin lies north and the township of Elmira west of Livingston. All three of those townships, each six miles square, lie within the boundaries of Otsego county. Under the conditions disclosed it would seem fairly inferable that defendant had in mind to drive out from the village far enough to find a secluded place to park his auto by the roadside, rather than to enjoy the scenery or take a sufficiently long drive through the country in the nighttime to get out of the county.
With the inferences which may be legitimately drawn from the undisputed facts as applied to the facts of which the court could take judicial notice we are unable to hold that the magistrate was without jurisdiction because of a total absence of evidence of venue.
After a careful examination of this entire record we conclude that the case was fairly tried and plainly submitted to the jury on its merits. We find no prejudicial error demanding reversal.
The judgment will stand affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moorej Fellows, and Wiest, JJ., concurred. | [
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Per Curiam.
By his plea of guilty, defendant was convicted of attempted sale of a narcotic drug in violation of MCLA § 335.152 (Stat Arm 1957 Rev § 18.1122) and MCLA § 750.92 (Stat Ann 1962 Rev § 28.287). He appealed as of right. The people have filed a motion to affirm the conviction. GCR 1963, 817.5(3).
On appeal, defendant contends that the lower court failed to examine him sufficiently to establish the crime and his participation therein. See People v. Barrows (1959), 358 Mich 267, 272 and People v. Perine (1967), 7 Mich App 292.
Our review of the record satisfies us that the court’s examination of defendant was sufficient.
Motion to affirm is granted. | [
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Levin, J.
Defendant Elijah Johnson appeals his conviction of murder of the second degree.
On July 9, 1966, the defendant shot and killed his brother, Absolon Johnson. The defense was that the shooting was accidental.
At the trial a witness testified, over objection, that a year or two before the shooting she had observed the defendant and Cora Johnson, wife of the victim, engaged in sexual intercourse. On the facts of this case we find no error in the admission of this testimony.
In a homicide case evidence of adulterous relations between the accused person and the victim’s spouse is, as a general proposition, admissible to show the state of mind of the accused. Such evidence will, however, be excluded where it relates to remote or isolated incidents.
The factors to be weighed in deciding whether such evidence should be admitted are discussed in a well-reasoned opinion, State v. Flett (1963), 234 Or 124 (380 P2d 634, 94 ALR2d 1082). There the defendant, the wife of the victim, was charged with second-degree murder. She claimed in defense that the killing was accidental, but was convicted of manslaughter. On appeal, the Oregon Supreme Court indicated that evidence of the defendant wife’s recent marital infidelity (spending two nights the week of the killing with another man) might be admissible in the sound discretion of the court after weighing its tendency to prove an issue in dispute against its tendency “to produce passion and prejudice out of proportion to its probative value”. The conviction was reversed, however, because the people had been permitted to prove a more remote incident — that several months before the killing the defendant had spent the night in a motel with an unidentified man. The court observed:
“The reason for permitting the state to prove acts of marital infidelity is the supposition that such evidence may have some slight probative value. In a first-degree murder case, which this is not, such evidence is thought to be relevant to prove motive. Where the killing is not alleged to be a premeditated affair, but where ill will toward the deceased spouse ' may be an issue, the evidence is thought to be relevant to prove ill will. In this case, ill will was an issue. However, the connection between isolated acts of marital infidelity and the purposeful slaying of a spouse is extremely tenuous in any case. Here the record reveals that excessive drinking and quarreling were routine weekend activities. There is no evidence that the hostility, if any, of one spouse toward the other had anything to do with marital fidelity. Under those circumstances, while it may not have been an abuse of discretion to permit the state to show the misconduct that occurred a day or two before the killing, it was clearly an abuse of discretion to let the district attorney roam out over the countryside with his proof of remote acts of indiscretion that could have had nothing to do with the issues the jury was called upon to decide.”
In Commonwealth v. Burke (1959), 339 Mass 521 (159 NE2d 856, 77 ALR2d 451), evidence of a two-week affair between the defendant husband and another woman nearly seven months before the death of the defendant’s wife was held to be too remote since this evidence was not connected with later events of a like nature. The court emphasized that there was nothing to show that the illicit affair had continued to a later period and said that where such evidence had been held admissible it appeared that the relationship was less remote in time.
In the case now before us there is, contrary to the defendant’s assertion, evidence that would justify the conclusion that the sexual relationship between the defendant and Cora Johnson continued to a date not long before the shooting. The defendant lived in his brother’s home. There was testimony that in May or June, 1966, one month before the shooting, the defendant said that Cora was pregnant and he thought the baby “might be his” and had taken her to a doctor. The day before the shooting the defendant’s brother had ordered both his wife, Cora, and the defendant from his home. There was also testimony that shortly after the shooting the defendant was heard to say to Cora, “You made me do this.”
It is true that there was no direct evidence that the victim was aware of his wife’s infidelity or that the relationship between the defendant and Cora was a source of enmity between the brothers. However, the state of the defendant’s mind was of much greater relevance than the state of his brother’s mind. The question before the jury was whether the shooting was intentional or accidental. On that question it was not an abuse of discretion for the trial judge to admit evidence tending to show an illicit relationship between the defendant and the victim’s wife continuing until a short time before the charged offense. The judge could properly conclude that the probative value of such evidence outweighs its prejudicial impact.
The other assignments of error were not properly preserved. The people impeached the testimony of a witness by means of a prior inconsistent statement; the defendant’s trial lawyer specifically stated that he had no objection to this line of inquiry.
It is claimed that the judge’s jury charge regarding the defense of accidental killing was incomplete. Although the defendant’s trial lawyer expressed satisfaction with the charge, since the claimed defect concerns the principal issue in the case, we have read the entire charge to determine whether it adequately presented to the jury this disputed issue. The judge informed the jury that the defense was that the shooting was accidental and that it should acquit the defendant if it found the shooting was accidental. More specific instructions not having been requested, there was no error.
Affirmed.
All concurred.
MCLA § 750.317 (Stat Ann 1954 Rev § 28.549).
2 Warren on Homicide, § 207, p 436; 40 Am Jar 2d, Homicide, § 280, pp 546, 547; Templeton v. People (1873), 27 Mich 501; People v. Burkhart (1911), 165 Mich 240.
People v. Randolph (1922), 220 Mich 617, 619. See, also, People v. Wright (1904), 144 Cal 161 (77 P 877).
Adams v. Commonwealth (1938), 274 Ky 714 (120 SW2d 237).
See authorities collected in People v. Hall (Levin, J., dissenting) (1969) , 19 Mich App 95, 102, nn 4 and 8. See, also, People v. Oaks (1970) , 24 Mich App 7.
The court cited and commented on its earlier decisions as follows (p 864):
“See Commonwealth v. Howard (1910), 205 Mass 128 (91 NE 397) (relationship continued to the time of wife’s death); Commonwealth v. Mercier (1926), 257 Mass 353 (153 NE 834) (relationship continued until about three weeks before wife’s death); Commonwealth v. Bonomi (1957), 335 Mass 327 (140 NE2d 140) (relationship continued until day wife disappeared). See also Commonwealth v. Abbott (1881), 130 Mass 472. We intend no suggestion that proof of hostility between the defendant and his wife in February and March would not have been competent. On the contrary, we think it would have been.”
Cf. State v. Needham (1952), 235 NC 555 (71 SE2d 29), where there was evidence that the deceased had acquiesced in his wife’s adultery.
See People v. Burkhart (1911), 165 Mich 240, 242, where the Supreme Court emphasized that the illicit relations between the defendant and the victim’s wife continued until the time of the shooting.
The defendant’s trial lawyer stated: “Your honor, if I may say this, it hardly matters to us. We are aware of the fact that he [the witness] has made inconsistent statements and, as a matter of fact, it is our intention to show that he has made some incon sistent statements whether [the assistant prosecuting attorney] does it or not.”
See People v. Guillett (1955), 342 Mich 1, 7; People v. Liggett (1967), 378 Mich 706, 714. | [
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Stone, C. J.
This case grows out of the same ac-' cident that was involved in the case of Martha Walter against the same defendant, ante, 181 (157 N. W. 414). All of, the witnesses, except one, sworn in that case, were sworn in this, and the testimony of the witnesses, common to both cases, is substantially the same on all material points in each. As the reported case contains a full statement of the occurrence, a brief statement here will suffice.
About noon, on June 28, 1913, the plaintiff and her daughter, Martha Walter, were riding west, in a light market wagon drawn by a single horse, on Michigan avenue, through the township of Dearborn, Wayne county. It was a bright, clear day. Michigan avenue was paved with concrete at the place in question. Lying immediately north of the concreted way, and running parallel thereto, and about three feet distant therefrom, was the track of the defendant. Both highway and track were straight for a considerable distance east and west of the scene of the accident. The plaintiff was driving the horse, which was on the north side of the concreted roadway. Approaching from the west at a rapid rate of speed, and likewise on the north side of the concreted way, was an automobile. As it came toward the plaintiff’s rig it was directly in front. It continued to proceed thus, until within a few feet of the rig, when it swung suddenly to the south and passed. The manner of its approach, or its passing, or both, caused the horse to take fright and precipitately turn toward and proceed upon the defendant’s track. At this time one of defendant’s freight cars was approaching from the west at a rate of speed estimated to be from 35 to 40 miles an hour, and, although the plaintiff tried to get the horse back off the track, it was struck and killed by the car, and both women were thrown from the wagon and injured. The plaintiff brought suit, and on the trial recovered a verdict and judgment for $1,000. A motion for a new trial, on the grounds that the verdict was contrary to law and against thé weight of the evidence, was made, and denied. To this denial the defendant filed exceptions, and has brought the case here assigning errors.
As to the negligence of the defendant charged, the two declarations are identical. Upon the questions of the negligence of the defendant, and the proximate cause of the injury, we are of the opinion that the instant case is governed and controlled by the opinion in the case of Martha Walter.
By the assignments of error some questions are raised upon rulings in the admission of evidence. We proceed to consider those.
The plaintiff called the motorman, Denio, for cross-examination under Act No. 307, Pub. Acts 1909 (3 Comp. Laws 1915, § 12554), and the following occurred :
“Q. In what distance could you stop that car on that track at that place under those conditions with that load on, going at the rate of 35 miles an hour towards the east?
“Mr. Fitzpatrick: I object to that as incompetent, as calling for a conclusion, and an opinion. The question in this case is: What distance did he stop the car in? Then the question further may be whether that was a reasonable or proper or improper' stop, but I claim that the witness cannot be asked to give his opinion or a conclusion as to the distance in which he could have stopped that car on that morning.
“The Court: I think he may answer it.
“Mr. Fitzpatrick: Exception.
“Q: Do you desire the question read, Mr. Denio?
“A. Please.
(The question was repeated by reporter.)
“Mr. Fitzpatrick: I add the further objection that it does not yet appear the weight of the car, a question that would obviously be of importance, almost controlling bearing, if the question is to be treated as a hypothetical or expert one.
“Mr. Dohany: The question refers to that identical car, your honor.
“The Court: Does he know the weight of it?
“Q. Did you hear Mr. Hugh Savage testify concerning the weight of that car?
“A. No, sir; I did not.
“Q. You never weighed it yourself?
“A. No, sir.
“Mr. Dohany: I insist upon an answer, your honor.
“Mr. Fitzpatrick: Perhaps I have not made the point that I intend to raise, your honor, sufficiently clear. It is this: That it is never competent in a case of negligence or claimed negligence to put the actor, the man who is really charged with the negligence, upon the witness stand, and by a hypothetical or expert opinion or question draw from him a statement which amounts to an opinion or conclusion, which opinion or conclusion comprehends the vital issue in the case as to whether or not there was or was not negligence in the doing or refraining from doing the things that were done or that were refrained from. That was what I had in mind. That, in this case, ultimately the jury must determine from all the facts and circumstances whether the actual stop that this man made of the car was a negligent or a nonnegligent stop, and to ask him hypothetically, in advance of a showing of all the facts and circumstances, to say within what distance he could stop the car, is an invasion of the province of the jury.
“The Court: It is true that is a question for the jury to find on. As I understand it, witness, you had driven this car for some time?
“A. Yes, sir.
“The Court: Or similar cars?
“A. Yes, sir.
“The Court: I think he may answer the question.
“Mr. Fitzpatrick: I may have an exception?
“The Court: Yes.
(The question was read by reporter.)
“Mr. Fitzpatrick: I also have an exception on the proposition that the question does not include the weight of the car?
“The Court: Yes.
“A. About 400 feet.”
It is urged by appellant that the question was not competent; that it in effect called for an opinion, and yet in form it was not hypothetical, and if treated hypothetically it did not contain within itself some of the material facts in the case — notably the question of the weight of the car. In our opinion the question put to the witness was not a hypothetical question. There were no assumed facts or circumstances. The fact that the witness did not know the weight of the car was unimportant, as he testified that he had operated it many times, and had been .in the employ of the defendant between 16 and 17 years at the time of the occurrence. The question called for his judgment founded on his experience. We do not think that the court erred in its. ruling in that regard.
The third assignment of error is to the effect that the court erred when it permitted, over the objection of the defendant, the plaintiff to call the witness Sullivan under the provisions of said Act No. 307 (3 Comp. Laws 1915, § 12554); it appearing that the witness had nothing to do with the operation of the car in question at the time of the accident, and that he was not in the employ of the defendant at the time of the trial. What occurred at the trial was as follows:
“Mr. Dohany: I will say, your honor, this witness is called under Act No. 307 of the Laws of 1909. He was in the employ of the defendant, at the time the accident occurred.
“Mr. Fitzpatrick: Unless he was an agent or servant in connection with the operation of this car, I want the record to disclose my objection to his being called under the statute.
“The Court: As I understand it, you claim he was an employee of the company at that time?
“Mr. Dohany: Yes, your honor.
“The Court: All right. Exception for defendant.”
Counsel for defendant contends that, to warrant calling a' witness under the statute, such ex-employee must have been an actor in, or directly connected with, the happening of the transaction out of which the suit or proceeding grew.
We do not so understand the language of the statute. It provides that (3 Comp. Laws 1915, § 12554):
“Hereafter, in any suit or proceeding in any court of law or equity in this State, either party, if he shall call as a witness in his behalf the opposite party, employee, or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party,” etc.
We cannot agree with this contention of counsel. It places too narrow a construction upon the language quoted. If called by the opposite party, plaintiff would have had the right to cross-examine the witness upon any material matter. Counsel further contends that such witness could not be examined as an expert witness. We decline to discuss or consider that question, for the reason that his objection did not cover it. In his objection the point was not made that this witness could not be called under the statute to testify as an expert.
We cannot consider an objection not brought to the attention of the trial court, or based on an exception. Baker v. City of Detroit, 166 Mich. 597, 600 (132 N. W. 462).
The fourth assignment of error is to the effect that the court erred in permitting the witness Sullivan to answer the hypothetical question as to the distance in which a car could be stopped, under certain assumed conditions of weight of load, speed, condition of track, and braking equipment, for the reason that it did not appear that the witness had familiarity with the particular car in question because of having operated it, and for the further reason that the question did not include the weight of the car itself, and for the further reason that the distance in which the witness could have stopped the particular car was not controlling, either hypothetically or. actually. Upon this question what occurred at the trial was as follows:
“Q. It appears here, Mr. Sullivan, that on June 28, 1918, one of these freight cars that you have operated, and which Mr. Denio has described as No. 7800, was going eastward on the company’s tracks about 80 rods east of the Bender switch.- This car had passed over the switch and had not made a stop after crossing the River Rouge bridge. It had about 11 or 12 tons of freight on it, 11 tons, I think, 12 tons, and it was in charge of motorman Denio. It was going at the rate of about 35 or 40 miles an hour, somewhere about 35 miles an hour, and it was a bright, clear day; in fact, a warm day. The track was in good condition; the air brakes were in good condition. It became necessary to make a stop, using the air brake in making the stop. Will you state to the jury in what distance you could stop that car, going at that rate of speed, under those conditions?
“Mr. Fitzpatrick: I object to the form of the question as incompetent: First, for the reason that it assumes that this witness has familiarity with, because of having operated, this particular freight car; second, for the reason that it does not include the weight of the car itself, which would be an important factor; and, third, and finally, for the reason as to its materiality or relevancy, because the distance in which this witness could have stopped the car is not controlling, either hypothetically or actually. ■
“The Court: As I understand it, it was that he had operated this particular car?
• “Mr. Dohany: Yes, your honor, the witness has said that he operated all of the freight cars, but he does not identify this one by that No. 7800; that is, they had different numbers before the Detroit United Railway began to control them.
“A. I say, if this car, before they renumbered them, was 7, 8, 9, 10, or 12—
“Mr. Fitzpatrick: He had operated it.
“A. I operated it.
“Mr. Fitzpatrick: You do not undertake to say this car was one of those cars?
“A. I am .not positive, no, but they renumbered those cars, and they are still in the freight service. Whether this 7800 was one or not, I don’t know.
“The Court: There would have to be some showing then?
“Mr. Dohany : Well, I will just ask Mr. Denio what number was this car, Mr. Denio, before it was changed to 7800?
“Mr. Denio: I could not say.
“Mr. Dohany: Well, was it one of the 5, .6, 7, 8?
“A. 7, 8, 9, 10—
“Mr. Dohany: 7, 8, 9, 10, or 12; was it one of those?
“Mr. Denio: It was one of the old cars built by the old company. It was not 12, but it may be one of the others.
“Mr. Dohany: It was one of those with the number changed afterwards?
“Mr. Denio: Yes, sir..
“Mr. Dohany: Well, I guess that covers it, your honor.
“The Court: He may answer then.
“Mr. Fitzpatrick: Give me an exception.
“A. Now, what is the question?
“Q. The question is the distance in which you could stop it?
“A. If it was running, you said—
“Q. Between 35 and 40 miles an hour?
“A. And how much freight on it?
“Q. Twelve tons.
“A. I would say about 400 feet.”
In the light of the testimony of the witness D,enio above quoted, we think there was evidence as to the identity of the car, and that Sullivan had operated it, and that there was no error in permitting the witness to answer the question.
While his testimony may not have been controlling, it was material and proper to go to the jury.
The tenth assignment of error complains of the following part of the charge:
“I charge you that if the plaintiff and her daughter were in a position of peril on or near the tracks' of the defendant, and that the motorman of defendant’s car in question saw and realized that the plaintiff was in such position of danger, and knew, or had good reason to believe, that the plaintiff could not extricate herself from such position of peril or reach a place of safety, and that great injury to the plaintiff would be inflicted unless the car was stopped, and that said motorman, after so observing and realizing the peril of plaintiff, could, by the exercise of due care or reasonable diligence, have stopped his car with the brake mechanism in the condition they were then in, and by so doing could have avoided injuring the plaintiff, and that said motorman did not immediately apply his brakes and stop his car, and in failing to do so was guilty of negligence which caused the injury to the plaintiff 'complained of, and that the plaintiff was free from contributory negligence, then you should find a verdict for the plaintiff.”
It is urged that the case was erroneously made to turn on the point that there was an appreciable period of inaction on the part of the motorman in applying the brakes, and that the jury was instructed that if the “motorman did not immediately apply his brakes and stop his car, and in failing to do so was guilty of negligence, which caused the injury to the plaintiff, * * * then you should find a verdict for the plaintiff.”
In this connection, we think the following language of the charge should appear:
“You are instructed that, when to avoid an impending collision the motorman is obliged to choose instantly one of two appliances or methods provided for stopping the car or averting the collision, he is not guilty of, and his company is not chargeable with, negligence, because the event proves that the one he chose and used may not have been efficacious, or the best to meet the exigency. Whether the one or the other means provided for stopping the car should have been adopted was a matter for the exercise of the motorman’s judg ment, and for an error in Ms exercise the defendant could not be held responsible. It is not claimed in this case that the motorman was negligent in deciding to use the brake instead of reversing the current. The claim is that he was negligent in not applying the brakes as soon as he saw the danger to the plaintiff.”
The question whether, at that point, the motorman was guilty of negligence in not immediately applying his brakes was, we think, properly submitted to the jury. Fairly, the charge may be said to mean only that at the time he perceived, or ought to have perceived, the perilous position of plaintiff, the motorman should have immediately applied his brakes. We do not think that the rule here stated conflicts with the doctrine of Rathbone v. Railway, 187 Mich. 586 (154 N. W. 143), and Pearl v. Railway, 188 Mich. 84 (153 N. W. 1062), as contended by counsel.
The other questions urged by appellant are, we think, all controlled and governed by the opinion in the case of Martha Walter, ante, 181 (157 N. W. 414).
Finding no reversible error in the record, the judgment below is affirmed.
Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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Stone, C. J.
This case is brought here upon exceptions by the respondent, after conviction, and before sentence, for an alleged violation of section 14 of Act No. 109, Pub. Acts 1913 (1 Comp. Laws 1915, § 3841), entitled:
“An act to regulate and limit nomination and election expenses, to define and prevent corrupt and illegal practices in nominations and elections, to secure and protect the purity of the ballot, and to require accounts of nomination and election expenses to bé filed, and providing penalties for the violation of this act.”
The accusation set forth in the information reads as follows:
“That heretofore, to wit, on the 1st day of April, A. D. 1914, at the city of Lansing, and in the county aforesaid, one Jacob Gansley, being then and there an official, director, and manager of the Lansing Brewing Company, a Michigan corporation, and acting for said Lansing Brewing Company, a Michigan corporation, did pay, give, and lend to a certain political committee, to wit, the Personal Liberty League of Lansing, Michigan, the sum of five hundred ($500.00) dollars, in money belonging to the said Lansing Brewing Company, for the payment of election expenses incurred in opposing local option at an election to be held and which was held on the 6th day of April, A. D. 1914, in the said county of Ingham, to ascertain the will of the electors of said county, whether or not the manufacture of liquors and the liquor traffic should be prohibited within the limits of said county, the said Lansing Brewing Company being then and there a corporation incorporated and existing under the laws of the State of Michigan and doing business at the city of Lansing in said State, and not being a corporation formed for political purposes; the said Personal Liberty League then and there being a. committee opposing local option at the election to be held and which was held in said county of Ingham on the 6th day of April, A. D. 1914, to ascertain the will of the electors of said county, whether or not the manufacture of liquors and the liquor traffic should be prohibited within the limits of said County — contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
Upon arraignment the respondent stood mute, but moved the court to dismiss the information for the reason: That it set forth no offense known to the law. That said section 14 is unconstitutional and void because :
(1) Said section is not within the title to the act, and is in conflict with the provision of the Constitution of this State requiring the object of an act of the legislature to be set forth in its title.
(2) That said section 14 is in conflict with the provisions of the Fourteenth Amendment of the Constitution of the United States, that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. That corporations are persons within the meaning of the Fourteenth Amendment of the Constitution of the United States, and said section 14 denies to all corporations, domestic or foreign, other than corporations organized for political purposes, the right secured to natural persons by section 3 of said act to make expenditures of money for nomination or election expenses.
(3) That the title of said act confines it to the nomination and election of candidates for office, and it can have no application to local option elections in the several counties of the State, under the local option prohibitory liquor laws of this State.
(4) That said section 14 is in conflict with section 4 of article 2 of the Constitution of this State.
(5) That the act is indefinite, uncertain, and vague, and the intent and meaning of the same cannot be interpreted.
(6) That it is class legislation, especially section 14 of the act.
The trial court overruled the motion, to which ruling respondent duly excepted, and thereupon a plea of not guilty was entered by order of the court. The assignments of error are to the effect that the court erred in overruling respondent’s motion to dismiss the information, which motion was made at the time said respondent was arraigned, and renewed after the evidence had been submitted; also in adjudging the re spondent guilty, contrary to the objections to said information. In this court counsel for respondent argued the questions presented under the following heads:
(1) Whether the act has any application to elections under the local-option prohibitory liquor law.
(2) That section 14 of the act is unconstitutional and void, first, because it denies to corporations, as artificial persons, the right granted to natural persons to make the legitimate expenditures authorized by section 3 of the act; and, second, it denies to corporations the right to make such lawful expenditures as may be necessary to protect their interests in contests to be determined by the people at the polls.
(3) That section 14 is also in conflict with the provision of the Constitution of this State, which (section 4, art. 2) reads:
‘Every person, may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of such right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”
(4) That the whole act should be declared unconstitutional and void.
It may be said at the threshold of this opinion that the construction and validity of the act in question, in so far as it affects the conduct of the respondent, are here involved.
1. As we understand the first position of counsel for the respondent, it is that this act, which is generally spoken of as the “Corrupt Practices Act,” has no application to what may be termed local-option elections; “that, looking at the title and body of the act together, neither should be construed as applying to local-option elections.” We have with some care made an analysis of this act, copying such sections as are particularly relevant, and, as this is the first time we have been called upon to examine the act, we include such analysis here:
Section 1 of the act (1 Comp. Laws 1915, § 3828) limits the sum of money to be paid, or expenses authorized or incurred, by or on behalf of any candidate, to be paid by Mm in order to secure or aid in securing his nomination to any public office or position in this State. It also provides that no sums of money shall be paid, and no expense authorized or incurred, by or on behalf of any candidate who has received a nomination to any such office or position, in excess of a stated amount; further, that no sum of money shall be paid, and no expense authorized or incurred, by or on behalf of any candidate contrary to the provisions of the act.
Section 2 (1 Comp. Laws 1915, § 3829) provides that every political committee shall appoint a treasurer, who shall receive, keep, and disburse all sums of money which may be collected or received by such committee, or by any of its members, for election expenses; and unless.such treasurer is first appointed, it shall be unlawful for a political committee or any of its members to collect, receive, or disburse money for any such purpose.
Section 3 (1 Comp. Laws 1915, § 3830) provides that no candidate, and no treasurer of any political committee, shall pay, give, or lend, or agree to pay, give, or lend, either directly or indirectly, any money or other valuable thing for any nomination or election expenses whatever, except for the 11 purposes therein specified. It also provides, that none of the provisions of the act shall be construed as relating to the rendering of services by speakers, writers, publishers, or others, for which no compensation is asked or given.
Section 4 (1 Comp. Laws 1915, § 3831) provides that every candidate and every treasurer of a political committee shall file within the time specified a full, true, and detailed account and statement of all money received or disbursed by him for nomination or election expenses, and specifies what such statement 'shall contain.
Section 5 (1 Comp. Laws 1915, § 3832) makes it unlawful to administer the oath of office, or to issue a commission or certificate of nomination or election, to any person nominated or elected to any public office until he has filed an account as required by the act, and provides that no such person shall enter upon the duties of his office until he has filed such account, nor shall he receive any salary or fees for any period prior to the filing of the same.
Section .6 (1 Comp. Laws 1915, § 3833) provides that such accounts shall be open to public inspection.
Sections 7, 8, 9, and 10 (1 Comp. Laws 1915, .§§ 3834-3837) relate to the statement, and what may be done in case it is not filed, or is not conformable to the statute.
Section 11 (1 Comp. Laws 1915, § 3838) is as follows:
“No person who is not a candidate, or the treasurer of a political committee, shall pay, give or lend, or agree to pay, give or lend, any money whether contributed by himself or by any other person, for any election expenses whatever, except to a candidate or to a political committee.”
Section 12 (1 Comp. Laws 1915, § 3839) provides that no money paid shall be credited to any person other than the one furnishing it.
Section 13 (1 Comp. Laws 1915, § 3840) makes it unlawful for any candidate, or treasurer of a political committee, or person acting as such treasurer, to disburse money received from any anonymous source.
Section 14 (1 Comp. Laws 1915, § 3841) is the section which respondent is charged with having violated. It reads as follows:
“No officer, director, stockholder, attorney, agent or any other person, acting for any corporation or joint stock company, whether incorporated under the laws of this or any other State or any foreign country, except corporations formed for political purposes, shall pay, give or lend, or authorize to be paid, given or lent, any money belonging to such corporation to any candidate or to any political committee, for the payment of any election expenses whatever.”
Section 15 (1 Comp. Laws 1915, § 3842) makes it unlawful for any employer to threaten employees, etc.
Section 16 (1 Comp. Laws 1915, § 3843):
“No publisher of a newspaper or other periodical shall insert, either in its advertising or reading columns, any paid matter which is designed or tends to aid, injure or defeat any candidate or political party or organization, or measure before the people, unless it is stated therein that it is a paid advertisement. No person shall pay the owner, editor, publisher or agent of any newspaper or other periodical to induce him to editorially advocate or oppose any candidate for nomination or election, and no such owner, editor, publisher or agent shall accept such payment.”
Sections 17 and 18 (1 Comp. Laws 1915, §§ 3844, 3845) deal with false statements against candidates, and penalties for violation of the provisions of the act.
We quote from section 19 as follows:
“Terms used in this act shall be used as follows, unless other meaning is clearly apparent from the language or context, or unless such construction is inconsistent with the manifest intent of the law; * * * ‘Political committee/ or ‘committee/ shall apply to every combination of two or more persons who shall aid or promote the success or defeat of a candidate, or a political party or principle or measure.”
It is clear that while most of the provisions of the act relate to the conduct and duties of candidates and political committees, yet that it was intended to regulate and control all elections and election expenses, wherever the electors are called upon to decide any measure or measures that may be before the people to be voted upon, is, we think, equally clear. The statute (2 Comp. Laws, § 5420; 2 How. Stat. [2d Ed.], § 5024 [2 Comp. Laws 1915, § 7087]) provides that the registration of the qualified electors, the manner of voting, and of holding and conducting an election under the local-option provisions, shall be the same in every respect as in case of annual township elections, or the election of members of the board of supervisors, except as otherwise provided. In our opinion the voting upon a proposed constitutional amendment, or upon the question of local prohibition, is as much an election, as is the voting for candidates for office. The supposed abuse to be corrected is as apparent in one case as the other. The fundamental principle involved in construing a measure of this kind is to carry out the legislative intent.
To ascertain that intent, we should consider, not only the remedy expressed, but the evil sought to be reached. That partisan zeal and spirit are as intense, when canvassing and voting upon the question of local prohibition of the liquor traffic, as when canvassing and voting for candidates for office, is too evident to need discussion. The legislature probably deemed such reasons sufficient. The expression, “measure before the people,” in section 16, and the definition of “political committee,” in section 19, aid us in reaching the conclusion that the act was intended to apply, and does apply, to elections other than those at which only candidates for public office are to be chosen.
It is contended, however, that the matter of canvassing, discussing, and voting on local option cannot be regarded as acting with reference to “a political party or principle or measure,” and counsel say:
“The local option forces in any county are not political parties, and to vote for or against county prohibition is not to vote for a political principle or measure.”
We think this too narrow a view of the question. When the word “political” is used as it is in this act, even if held to qualify the words “principle or measure,” it is a narrow construction to hold that it applies to one or more of the recognized political parties only. The word has a much broader meaning, and often refers to matters of public policy. The first three definitions of the word as given by Webster are:
“1. Of or pertaining to polity, or politics, or the conduct of government, referring in the widest application to judicial, executive and legislative branches; of or pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of government; relating to the management of affairs of State; as, political theories.
“2. Having, or conforming to a polity, or settled system of administration; as a political body or government.
“3. Of or pertaining to the exercise of the rights and privileges or the influence by which the individuals of a State seek to determine, or control its public policy; having to do with the organization or action of individuals, parties or interests that seek to control the appointment or action of those who manage the affairs of State; as, his political affiliations were with the Republicans.”
The word “political” is defined by Bouvier to be pertaining to policy or the administration of government. People v. Morgan, 90 Ill. 558, 563. See, also, Black’s Law Dictionary, defining “Political.”
The supreme court of New York, in the case of In re Lance, 55 Misc. Rep. 13 (106 N. Y. Supp. 211), in considering the corrupt practices act of that State, referring to the word “judgment,” said:
“The legislature must be presumed, in the framing of the statute, to have employed the word with knowledge of its meaning, and with intent that full effect be given thereto.”
We think that language is applicable here. See, also, upon this subject, the following cases cited by counsel for the people: Winspear v. District Township, 37 Iowa, 542, holding that a school district township is a political corporation, within the meaning of their constitution referring to political or municipal corporations. See, also, McConaughy v. Secretary of State, 106 Minn. 392 (119 N. W. 408), defining what is meant by “political” question; State v. Shanks, 178 Ind. 330 (99 N. E. 481) ; State v. Goodwin, 169 Ind. 265 (82 N. E. 459). The last two cited cases relate to the construction of statutes.
In State v. Patterson, 67 Fla. 499 (65 South. 659), the corrupt practices act of Florida (Acts 1913, chap. 6469, 6470), were before the court for construction. It was said:
“The object .of the law is to prevent corruption, fraud, and deception of all kinds, and the statutes should be enforced to accomplish the legislative purpose.”
This court has frequently stated the rule to be applicable in construing a legislative enactment. Whipple v. Circuit Judge, 26 Mich. 342; Board, of Regents v. Auditor General, 167 Mich. 444 (32 N. W. 1037); Rohde v. Circuit Judge, 168 Mich. 683, 689 (131 N. W. 523, 135 N. W. 457) ; Mackin v. Axle Co., 187 Mich. 8 (153 N. W. 49). No reason is suggested why local option elections should have been omitted. We are of the opinion that the safeguards established by the act were intended for the protection of all elections.
It is next urged by counsel for respondent:
“That local option elections and activities are not within the title of the act, and if the body of the act is construed to apply to them, it is to the extent of such application unconstitutional and void.”
We understand that counsel here invoke the first sentence of section 21 of article 5 of the Constitution of Michigan, which provides, that:
“No law shall embrace more than one object, which shall be expressed in its title.”
The specific objection seems to be that section 14 of the act is not within the scope of the title or germane thereto. The title is broad in its scope. It was plainly designed to safeguard and protect the ballot by forbidding certain acts and imposing certain regulations and requirements. Among other things, it was:
“To define and prevent corrupt and illegal practices in nominations and elections; to secure and protect the purity of the ballot.”
As counsel for the people have said:
“Under such title it was competent to include in the act any provision calculated to aid in accomplishing such object and thus carry out the purpose of the legislature. Presumably, it was the view of the lawmaking body that the practices indulged in by certain corporations of making contributions for campaign purposes had become objectionable, and subversive of good government, and consequently of .the public welfare. Therefore, and as incidental to the protection sought to be attained for the ‘purity of the ballot,’ such practice was prohibited.”
The courts in a long series of cases have enunciated the principle that the presumption is in favor of the constitutionality of a statute. This principle has been expressed in many different forms. It has been declared that in no doubtful case should the courts pronounce legislation to be contrary to the Constitution. It has been said that every intendment is in favor of its validity, and that it must be presumed to be constitutional unless its repugnancy to the Constitution clearly appears. See collection' of authorities in 6 R. C. L. p. 97; Rouse, Hazard & Co. v. Circuit Judge, 104 Mich. 234, 239 (62 N. W. 359, 27 L. R. A. 577, 53 Am. St. Rep. 457) ; Sears v. Cottrell, 5 Mich. 251, 259. The clause of the Constitution here invoked has been repeatedly before this court. In Kurtz v. People, 33 Mich. 279, Justice Campbell, referring to this provision, said:
“It is a very wise and wholesome provision, intended to prevent legislators from being entrapped into the careless passage of bills and matters foreign to the ostensible purpose of the statute as entitled. But it is not designed to require the body of the bill to be a mere repetition of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to secure the object indicated by the title.”
See, also, the language of Judge Cooley in the seventh edition of Constitutional Limitations, page 205; also, Conn. Mutual Life Ins. Co. v. State Treasurer, 31 Mich. 6; Mackin v. Axle Co., supra.
Our attention has been called to the case of State v. Paris, 179 Ind. 446 (101 N. E. 497). The corrupt practices act of Indiana (Acts 1911, chap. 121) is entitled:
“An act concerning corrupt practices at elections, caucuses and primaries, and the collection and disbursement of campaign funds.”
It was held in the case .last cited that such a title was sufficient to cover the criminal features of the act, within the provisions of the constitution of that State, which requires the subject of an act to be expressed in its title. We are of the opinion that this objection is untenable.
2. This brings us to the objections raised under the Fourteenth Amendment to the Federal Constitution. Respondent’s counsel urge that corporations are “persons” within the meaning of the words of this amendment that:
“No State shall deprive any person of life, liberty or property without due process of law; nor shall' any State deny to any person within its jurisdiction the equal protection of the laws.” '
They refer to Covington, etc., Turnpike Co. v. Sandford, 164 U. S. 578 (17 Sup. Ct. 198), and Smyth v. Ames, 169 U. S. 466, 522 (18 Sup. Ct. 418), and claim that these cases are decisive of the instant case. They concede that:
“Classification for the purposes of legislation under the police power is permissible, provided all persons or things within the class are treated alike.”
We are dealing here with a statute relating to elections, and the exercise of the police power of the State. In Cooley on Constitutional Limitations (7th Ed.), ■p. 907, it is said:
“All such reasonable regulations of the constitutional right which seem to the legislature important to the preservation of order in elections, to guard against fraud, undue influence and oppression, and to preserve the purity of the ballot box, are not only within the constitutional power of the legislature, but are commendable, and at least some of them absolutely essential.”
No class of questions has ever arisen more difficult of solution than those concerning Federal limitations of the police powers of the State. Mr. Justice Clifford, in Tennessee v. Davis, 100 U. S. 257, 300, observed that this power in its widest sense comprehends the whole system of internal regulations by which the State seeks, not only to preserve the.public order and to prevent offenses against her authority, but also to establish for the intercourse of one citizen with another those rules of justice, morality, and good conduct which are calculated to prevent a conflict of interests and to insure to every one the uninterrupted enjoyment of his own, as. far as it is reasonably con-i sistent with a like enjoyment of equal rights by others.’ And he further said:
“Acts of Congress cannot properly supersede the police powers of the State, nor can the police powers of the State override the national authority, as the power of the State in that regard extends only to a just regulation of rights with a view to the due protection and enjoyment of all; and if the police law of the State does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State and its exercise for the regulation of the actions of the citizens can never constitute an invasion of national jurisdiction or afford'a basis for an appeal to the protection of the national authorities.”
Justice Brown, in Lawton v. Steele, 152 U. S. 133, 136 (14 Sup. Ct. 499, 500), said of the police power:
“It is universally conceded to include everything essential to the public safety, health, and morals.”
After citing many instances of proper restraint and interference, he said:
“Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. * * * To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.”
The administration of justice, civil and criminal, within the State, is wholly under the control of the State, where there is no conflict with the Federal Constitution. The phrase “law of the land,” in a State, in this regard, means the law of the State, and due process of law in the State is regulated by the law of the State. The power of the State in dealing with a crime is not limited by the Fourteenth Amendment, provided that particular persons or classes are not deprived of equal and impartial justice. Regular administration in the State courts constitutes dué process, when operating on all alike. Leeper v. Texas, 139 U. S. 462 (11 Sup. Ct. 577). The extent to which the State may go under the police power, in declaring acts to be criminal, is very far-reaching, and is well illustrated in the following cases: Commonwealth v. Franklin, 4 Dall. (U. S.) 255; Moore v. State of Illinois, 14 How. (U. S.) 13; Cummings v. Missouri, 4 Wall. (U. S.) 277; Hawker v. New York, 170 U. S. 189 (18 Sup. Ct. 573).
The equality clause of the Fourteenth Amendment has received a broad interpretation by the courts. A classification of particular kinds of corporations, property, or trades is sustained provided it is reasonable in the view of the courts, and not merely arbitrary, and a wide latitude is allowed td the States- in respect of classification, without criticism, by the Federal Supreme Court. Bank of Redemption v. Boston, 125 U. S. 60 (8 Sup. Ct. 772); Palmer v. McMahon, 133 U. S. 660 (10 Sup. Ct. 324); Crowley v. Christensen, 137 U. S. 86, 91 (11 Sup. Ct. 13) ; Clark v. Kansas City, 176 U. S. 114, 119 (20 Sup. Ct. 284). The general principle is that equal protection is not denied where the law operates alike upon all persons, corporations or property similarly situated. Walston v. Nevin, 128 U. S. 578 (9 Sup. Ct. 192); Barbier v. Connolly, 113 U. S. 27, 32 (5 Sup. Ct. 357); Minneapolis, etc., R. Co. v. Herrick, 127 U. S. 210 (8 Sup. Ct. 1176); People v. Phippin, 70 Mich. 6 (37 N. W. 888) ; Kuhn v. Common Council, 70 Mich. 534 (38 N. W. 470).
A State may control a corporation which it has created, if constitutional provisions do not stand in the way, and in like manner it may control natural persons. Boston Beer Co. v. Massachusetts, 97 U. S. 25. Corporations, like the Lansing Brewing Company, are generally created under general' laws passed by the legislature, and providing for articles of association. The Federal Supreme Court observes that such articles .are in a sense ex parte, that their formation and execution frequently do not take place under the supervision of any official authority. Oregon Railway, etc., Co. v. Railway Co., 130 U. S. 1 (9 Sup. Ct. 409). The powers of such corporations have been considered and strictly construed by the same court, and it has been held that the powers are simply such as the statute confers, and that the enumeration of them implies exclusion of all others. Thomas v. Railroad Co., 101 U. S. 71; Pennsylvania R. Co. v. Railroad Co., 118 U. S. 290, 309 (6 Sup. Ct. 1094).
The charter of corporations so formed consists of the statute under which the corporation exists and the articles of association by which it is formed. Van Etten v. Eaton, 19 Mich. 187. The police power of the State is exercised over such corporations with great freedom for the general good. The development of the law touching the police power over corporations, and concerning the doctrine announced in Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, came under review in the decisions holding that there is implied in the grant to a carrying corporation of the right to construct and operate a railroad, a grant of right to collect such tolls as will enable the company to successfully operate and return some profits to the investors. That there is such an implication has been fully determined. Reagan v. Loan & Trust Co., 154 U. S. 362, 393 (14 Sup. Ct. 1047); Smyth v. Ames, supra.
But it does not follow that because a corporation is by statute prohibited from contributing' to a campaign fund that it is deprived of any property right. It has been held that a provision of a similar act, prohibiting persons at the polls from persuading any voter to vote or refrain from voting for any candidate or any political party, or on any measure submitted to the electors, should be liberally construed, with a view to its enforcement in the public interest, as tending to aid the purity of elections, and that the principle involved in the law was a salutary one, and that such statutes are closely connected with those prohibiting bribery. Nelson v. Gass, 27 N. D. 357 (146 N. W. 537, 541, Am. & Eng. Ann. Cas. 1915C, 796).
In Cooley on Constitutional Limitations (7th Ed.), p. 829, it is said:
“The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.”
While our republican government guarantees the right to preserve one’s own happiness, yet that government is charged with the duty of protecting others than appellant in the pursuit of their happiness, and hence the inalienable right to pursue one’s own happiness must necessarily be subject to the same right in all others. Hence when that right is asserted in such a manner as to conflict with the equal right to the same thing in others, it is not an inalienable right, nor a right at all, but is a wrong.
The instant case, in our opinion, does not present an instance of deprivation of property, nor of fanciful or unjust classification for purposes of regulation. The expenditure of the money of the Lansing Brewing Company for election purposes cannot be deemed to be a property right within the meaning of the Fourteenth Amendment. Such corporations have no right to participate in the elective franchise. We are not dealing with a measure that deprives a corporation of any of its property, or that impairs the value of that property. Neither are we dealing with the deprivation of any right or privilege granted by the laws under which such corporation was created and exists, as was the fact in the cases cited, and relied upon by counsel for respondent. In the case of Covington, etc:, Turnpike Co. v. Sandford, supra, the general assembly of Kentucky by an act made it unlawful to demand, charge, collect, or receive tolls in excess of certain rates specified, and it was held that the rates were unjust and unreasonable, and such as to work a practical destruction of rights of property of the company, and that such legislation was not due process of law, and the doctrine contended for by respondent’s counsel was announced. Smyth v. Ames, supra, was a suit by stockholders of the Union Pacific Railway Company and others, and dealt with the constitutionality of an act of the legislature of Nebraska to regulate and fix certain railroad freight rates. Both cases dealt directly with the property rights of the respective companies within the sphere and scope of their organization.
Not so in the instant case. The Lansing Brewing Company was created under our statute, for the purpose of manufacturing beer. The privilege was not conferred upon it of using its funds for the purpose of influencing public sentiment in connection with any election. It is probable that the legislature had in mind the fact that it is matter of history that corporations have in many instances used their funds (acting through and by their officers) to influence elections, and that body believed that such practice was an abuse and menace to good government, which it sought to remedy by this legislation. The record, in our opinion, is a justification for the legislation complained of. We agree with counsel for the people wherein they say:
“If the respondent in this case, or the stockholders and officers of the Lansing Brewing Company desired, as individuals, to contribute to the campaign fund, it was their privilege so to do, subject to the regulations imposed by the statute. This artificial person, however, that was created for the purpose of manufacturing beer, has no such right; and it lies within the power of the legislature of this State to say that its funds should not be used for such a purpose.”
It was for the legislature to say, in the exercise of the police power, whether such use of corporate funds opened the door to corruption and tended to destroy safeguards sought to be placed around elections to “protect the purity of the ballot.” Does the statute deprive the respondent of any property right without due process of law? We answer this question in the negative.
3. It is further claimed that section 14 of the act is in conflict with section 4, art. 2, of the State Constitution. The individual activities of the officers of corporations are not prohibited. They may freely speak, write, and publish their views as provided for in the last clause of section 3. Section 11 provides how they may make their contributions, thus distinguishing Louthan v. Commonwealth, 79 Va. 196 (52 Am. Rep. 626). The corporation is not embraced within the provisions of section 4, art. 2, of the State Constitution. That section, in our opinion, relates to natural and not to artificial persons, as does also the Fourteenth Amendment of the Federal Constitution in protecting the privileges and immunities of citizens from being abridged. Western Turf Ass’n v. Greenberg, 204 U. S. 359 (27 Sup. Ct. 384), and cases cited.
4. Finally, respondent's counsel contend that the whole act should be declared unconstitutional, that the act unduly and unreasonably restrains the political activities of the people, and “that it is one of those fool enactments that occasionally get through the legislature.” Of the wisdom or folly of this legislation we are not called upon to speak. Measures of this kind have been enacted by the legislatures of many other States. Believing that such an enactment is a reasonable and valid exercise of the police power, that property rights are not interfered with, and finding no error in the record, the conviction of the respondent is affirmed, and the court below advised to proceed to judgment.
Moore, Steere, and Person, JJ., concurred with Stone, C. J. | [
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] |
Steere, J.
Plaintiff was injured on the 19th of June, 1910, by falling from one of defendant’s cars at the corner of Chene street and Harper avenue in the city of Detroit. The negligence charged consisted of suddenly starting the car while he was trying to alight, without giving him reasonable time in which to safely do so. Plaintiff, who resided in the vicinity of the accident, was a passenger on a north-bound Baker street car, which ran along Chene street past his home, and on nearing Harper avenue gave a signal to stop the car. It stopped on the north or farther side of Harper avenue, at just what point is in dispute. Plaintiff and his witnesses testified the stop was very short; that other persons got off while he was alighting, and just as he attempted to do so with all reasonable expedition, standing with one foot on the running board and holding with one hand to a handle on the car, in the act of stepping off, the conductor gave a signal and the car started suddenly, with a jerk, while he was in an unstable position either for alighting or remaining upon the car, to which he clung for a distance, and, being.unable to continue his hold, fell, or was thrown, striking his head upon-the brick pavement, where he lay unconscious until carried to his home, being seriously and permanently injured. He describes the accident as follows:
“I got hold of the handle, and one .foot on the step or running board, and tried to get off the car. ' When I was ready to put the other foot down, the car started and I fell. * * * I held onto the handle with one foot on the running board while the car went a distance of 75 feet; then I was lying on the ground unconscious.”
Defendant’s contradictory evidence and explanation of the accident were that plaintiff tried to alight from the car before it stopped, or had reached its regular ■stopping place, which was farther north, beyond a switch on a curve in the track at that corner, and that he fell in attempting to alight as the car swung upon the curve before stopping; the accident being wholly attributable to his own negligence in attempting to leave the car before it stopped.
A verdict and judgment were rendered in plaintiff’s favor for the sum of $2,000. Defendant seeks a reversal under the following assignments of error:
“(1) The court erred in permitting the following question and answer over objection:
“ ‘Q. Mr. Pawlicki, the last time you were employed before this accident, how muck did you earn per day or week?
“ ‘A. $12 per week.’
“ (2) The court erred in denying the motion to strike out such answer.
“(3) The court erred in overruling the motion of defendant for a new trial.”
The claimed errors in permitting and refusing to strike out plaintiff’s testimony as to what he earned per week when last employed before the accident is predicated on his testimony that he was idle at that time, had not been employed since coming to Detroit, and did not contemplate working at his trade as an employee again. His evidence upon that subject disclosed that he was about 65 years of age when injured, up to which time he was always in good health and never had a doctor; that previous to removing with his wife to Detroit, some six months before, where their children were located, he lived in Stamford, Conn., and worked in a shoe factory for $12 per week; that- he removed to Detroit because he had children there and to better his condition, then having a little money and intending to open a shoe store there, for which he expected his son, who worked for the Packard Automobile Company, would build an addition to the place where plaintiff lived, and run, or help him run, the business; that he first visited his children for a time, and then was waiting and looking for a place of business until the accident from which he never recovered, and as a result of which he had since been unable to work or engage in business.
Impairment of plaintiff’s ability to earn money was a proper element of damages, and, although not then earning anything, what he had been able to earn when last at work, if the period was not too remote, might well tend to throw some light on his loss in that particular. It is seldom in tort actions, and particularly for personal injuries, that exact data can be furnished or found by which to accurately measure the various elements recognized as composing adequate compensation for the loss or injury sustained. The law does not require impossibilities, nor demand a higher degree of certainty than the nature of the case admits. Reasonable latitude is therefore necessarily allowed in the range of inquiry as to damages in actions ex delicto, for which no fixed rule of exclusion or inclusion can be formulated; but it is recognized as a general proposition that where the damages, or any part of them, cannot be ascertained with certainty, it is permissible to lay before the jury “all the facts and circumstances of the case, having any tendency to show damages, or their probable amount; so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit.” Allison v. Chandler, 11 Mich. 542. And as bearing .upon the destruction or impairment of plaintiff’s earning powers his previous trade or vocation and what he was last able to earn while following it, his age, physical condition, and ability to work when injured, with any other facts which might tend to throw light upon that question, were admissible, “not as furnishing an arbitrary measure of damages, but as a guide or assistance in enabling the jury to exercise a sound and just discretion in determining the proper amount,” if any. 13 Cyc. pp. 202, 203.
Defendant’s counsel quote and urge as error the following excerpt from that portion of the charge relating to the elements of damage which it was per missible for the jury to consider if they found plaintiff entitled to recover:
“Any material loss that he has sustained, wages, his ability to work during the time, his ability to work in the future,” etc.
We think the propriety of this reference to wages, of which particular complaint is made, goes with the admissibility of plaintiff’s testimony as to the wages he was earning when he last worked.
It is contended that it was error to tell the jury they could consider as an element of damages plaintiff’s former rate of wages, because his testimony showed that he had quit his trade and was a “retired shoemaker,” with no intention of again working for wages. He testified that his health was good, and.it was his intention to open a shoe business to better his condition, so that he would not have to work as before. His prospective profits in a contemplated business were manifestly not open to proof. He had voluntarily quit his previous employment, which was of such a nature that he could in all probability resume it. His fitness for that vocation and what he had recently been able to earn in it were the only available evidence from which his loss by reason of destruction of earning capacity could be weighed, and we think was clearly competent for the jury to take into consideration, for whatever light it might throw on the question of damages. In Peterson v. Traction Co., 23 Wash. 615 (63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586), it was held that, although there was no claim plaintiff intended to return to a former calling, which he had not followed for three years previous to his injury, proof of the wages he had earned when engaged in it was admissible' as bearing upon his damages by reason of impaired ability to earn; the court saying:
“It was proper to show what wages would be open to the plaintiff in a business he understood, and which he would have the right to resume, were it not for the injuries which prevented him from again entering that business.”
See, also (to’ the same effect), Grimmelman v. Railway Co., 101 Iowa, 74 (70 N. W. 90), and (as to remoteness) Sias v. Reed City, 103. Mich. 312 (61 N. W. 502).
It is further contended that defendant’s motion for a new trial should have been granted on the ground that the verdict was against the evidence and excessive, and particularly as—
“the weight of the medical testimony was overwhelmingly in favor of defendant, but by the verdict was evidently disregarded by the jury, and because of the plaintiff’s appearance, caused by a complication of serious diseases, an excessive verdict was awarded.”
Both sides introduced medical testimony. The physician who attended plaintiff gave evidence in his behalf. He testified that he. found plaintiff had a contused wound in the back of the head, with a hemorrhage from the ear, some broken ribs, bruises on the elbow, which he thought might be a fracture, a ruptured eardrum, and had suffered a nervous shock the effects of which would be permanent; that the injuries were serious and painful, requiring his constant attention for several weeks. This witness had, however, made a report of plaintiff’s injuries to defendant shortly after the accident, for which he was paid, describing them as bruises on various parts of the body, not mentioning the ruptured eardrum, fractured ribs, or serious nervous shock, stated 'the treatment he had prescribed was “rest” and “probable results good.” His impertinent answers and lame explanation of these discrepancies, as to which all that defendant contends may be conceded, were, however, matters for the jury rather than the court.
The expert testimony of the physician called by defendant, who first made an examination of plaintiff over two years after the accident, was to the effect that he was suffering from Bright’s disease, to which all his other ailments were attributable, and which could not be,.and was not, due to the accident. Eliminating the comparative intelligence and veracity of the medical experts, which it was for the jury to weigh, plaintiff’s own testimony as to how the accident occurred is supported by that of his wife and granddaughter, who were with him on the car, and a butcher, who saw it from his store on the corner and helped carry him home. Members of his family testified to the seriousness of his injuries, and that while a healthy man before the accident he had been unwell in various ways, in declining health, unable to work or entirely take care of himself. His wife testified that he was in bed six weeks, had three physicians, has since been troubled with dizziness and nervous attacks, could not even do little things around the 'house, and she had to assist him to walk around. He testified to the effect of the accident upon him as follows:
‘T have done no work since, because I cannot; I am too nervous. My wife has to lace my shoes. I can’t bring coal to the stove; my hands are shaking, and I am nervous; when I try to lift anything, I can’t, for I am nervous. I have today pain in my side; right after the accident I had these pains, and before I was always well. -I suffer continually, and I put plasters on my side, for it always pains me there. When I stop I get dizzy. Right after the accident I had vomiting spells. I had no other injuries, only my head, side, and arm. * * * I was always healthy. * * * I never had a doctor attend me. My first doctor was at the accident.”
The credibility of all these witnesses was for the jury, and there is abundant testimony, if believed, to support the verdict, both as to the nature of the acci dent and amount of damages awarded. We are not prepared to say from this record that the verdict is, as a matter of law, excessive or against the overwhelming weight of evidence.
The judgment is affirmed.
Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred. | [
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Steere, J.
This suit was brought to foreclose a lien for material furnished under the lien law for mechanics and others (3 Comp. Laws 1915, § 14796 et seq., as amended by Act No. 140, Pub. Acts 1919 [Comp. Laws Supp. 1922, § 14796 et seq.]). The property against which it was filed is situated in the village of Brooklyn in Jackson county. Plaintiffs are a firm engaged in the retail lumber and building supply business in Brooklyn, and defendant International Corn Products Company is a Michigan corporation engaged in collecting, preparing and marketing pop-corn, with its plant and principal place of business in that village. The plants and places of business of the two companies are on adjoining properties. The amount of indebtedness for which plaintiffs claim a lien does not appear to be in dispute. Defendant’s secretary and treasurer testified: “So far as I have been able to ascertain all the material that the Neelys are claiming a lien for has actually been furnished to our company.” Plaintiffs’ total claim with interest was $3,832.55. The trial court deducted interest on the accounts up to time of filing the lien, amounting to $175, and items for material not satisfactorily shown subject to a lien, amounting to $80.90, and decreed foreclosure of the lien for the balance.
Defendant’s counsel on appeal urge invalidity of the lien on the three grounds, that there was no contract between the parties “sufficiently definite enough in terms on which to base a valid lien,” the claim of lien was not seasonably filed, and the transaction between the parties “was merely an open account and, therefore, forming no basis for a lien.”
Prior to 1920 plaintiffs sold defendant the land on which its first factory building was erected, furnished it building material and became well acquainted with its executive officers and manager in charge of the business. Those transactions were all satisfactorily closed and are only material here as introductory to the friendly business relations which followed without written agreement.
Defendant’s officials desired to enlarge the capacity of their plant and purchased adjacent land for that purpose, tore down the line fence and graded the ground as a part of their factory site. They made plans for building another factory building to be mostly located upon it, dug the cellar for it and early in the spring of 1920 its executive officers in charge went to plaintiffs with their plans and blue prints to see if they could furnish the building material. The interview resulted in plaintiffs agreeing to do so and they did, beginning to furnish material in April, 1920. Plaintiffs’ lumber yard directly adjoined defendant’s plant site and the first material furnished when construction of the second factory began was two cars of lumber which defendant unloaded and took directly from the cars on the track as it wanted it and it often thereafter selected and took material from plaintiffs’ yard as the work progressed with plaintiffs’ knowledge and consent, account being kept of it.
In the enlargement and improvement of its plant defendant also built a corn-crib in 1921 directly in the rear of the new factory, with a capacity of from 45,000 to 50,000 bushels and plaintiffs furnished the building material for it. The work of enlarging and unifying this plant after the first factory was built and paid for was continued until not long before plaintiffs’ Men was filed in 1922 for material furnished by them and used by defendant in those buildings. The first factory was 52x100 feet, the second 48x100 feet with 24-foot posts and the corn-crib was 50x75 feet with 12-foot posts. The three buildings were near together and connected by passage-ways, tunnels, conveyors, etc., and used in combination as a single plant unit in the business of drying, shelling, culling, putting it up in sacks or packages and in various ways preparing pop-corn for the market, one process being making in quantity and putting in packages what was called “candy-pop.” The equipment and process in the three buildings were co-ordinated to that end, with one power operating the machinery in all the buildings. That all the land on which this plant was located was in one parcel is admitted in defendant’s answer. All the material involved here went into those buildings in their construction and adjustment to the purposes for which they were intended and used and was furnished by plaintiffs as defendant wanted it, pursuant to a conceded verbal contract described in paragraph 3 of plaintiffs’ bill as follows:
“3. That said contract or agreement was not in writing, but by parol, and negotiated and entered into by said defendant, by and through its president and its secretary and treasurer, with plaintiffs, trading as Neely Brothers, as aforesaid, and the terms of said contract or agreement, in substance, were that plaintiffs were to furnish unto defendant lumber, timbers, shingles, roofing, lath, doors, windows, mouldings and other like merchandise and building material, for the erection, construction and repair and alteration of certain warehouses, cribs and other buildings on said lands and premises, suitable for the uses and purposes of defendant, in the operation of its business; that plaintiffs should, from time to time (and monthly periods were discussed), render to defendant, bills for all materials or other things thus far furnished or supplied, for such purposes; and upon the rendition of said bills, defendant should make payment for the same. The substance and purport and effect of said negotiations and agreements being that plaintiff should render bills to defendant every 30 days, and defendant thereupon promptly make payment therefor; and such to apply to all materials or other merchandise furnished or supplied to defendant by plaintiff, from time to time, in the construction, alteration, repair, or in any other way, of buildings on the lands and premises then and now owned by defendant, and as hereinbefore described.”
This agreement is admitted in paragraph 3 of defendant’s answer as follows:
“3. This defendant admits the allegations contained in paragraph 3 of said bill of complaint but denies that bills were rendered to this plaintiff every 30 days.”
Section 1 of the law under which this claim of lien was filed and is sought to be foreclosed, as amended by Act No. 140, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 14796), provides in part as follows:
“Every person who shall, in pursuance of any contract, express or implied, written or unwritten, existing between himself as contractor, and the owner, * * * furnish any labor or materials in or for building, altering, improving, repairing, erecting, ornamenting or putting in any house, building, machinery, * * * shall have a. lien therefor upon such house, building, * * * and other structures, and its appurtenances, and also upon the entire interest of such owner, part owner or lessee in and to the lot or piece of land, * * * upon or around or in front of which such improvement is made to the extent of the right, title and interest of such owner,, part owner or lessee at the time work was commenced or materials were begun to be furnished * * * and in case of the construction of a number of buildings, foundations, cellars, basements, walls or walks under one contract upon, around or in front of, the same lot or contiguous lots for the same owner, part owner or lessee, of any interest in the real estate upon which said buildings are situated or upon, around or in front of which said well, walk or walks are built or repaired, such lien for such material or labor so furnished shall attach to all of said buildings, foundations, * * * the same as hereinbefore provided in case of a single building.” * * *
Under the conceded terms of this general contract and the facts and circumstances attending the furnish ing of the material, and the use made of it by defendant, we see no occasion to further consider defendant’s contention that the contract was not sufficiently definite to afford a basis for a lien.
Defendant’s further contention that the claim of lien was not filed within the 60 days’ statutory limitation finds its strongest color of support in the fact that the two buildings were practically finished as such and in use much more than 60 days before the last material was furnished by plaintiffs. The statement of claim was filed July 21, 1922. The books and testimony of plaintiffs show that items of material which defendant procured from them and used in those improvements were furnished, by them on May 23, 25 and 27, on June 6, 7, 9, 14, 15 and 20, 1922.
Whether labor and material furnished within the statutory period but after the contract had been substantially completed were in good faith and for the purpose of completing the contract, or colorably to revive the lien is a question of fact. Turner v. Wentworth, 119 Mass. 459.
That rule of good faith has often been applied as the test in cases where the question of belated work or delivery of material sustaining a lien has arisen. A recent case well in point is Ypsilanti Lumber & Coal Co. v. Leslie, 218 Mich. 664, where a late order and delivery of some lumber for a coal bin was held to sustain a lien of over $2,000. This court there said, speaking through Chief Justice Fellows :
“It is also urged that the last item of plaintiffs’ bill was furnished a considerable time after the furnishing of the great bulk of the material, and it seems to be claimed that this was not furnished in good faith. If we were satisfied that the furnishing of this material was not in good faith, for use in the building, but was made to circumvent the limitation of the statute another question would be presented. But we are not so satisfied. The lumber was ordered for a coal bin in the basement of the house and was delivered on the premises and Mr. Leslie signed the ticket for it.”
In the instant case defendant itself, by its agents and employees, went for these questioned deliveries of building material, took them to its own premises and used them there in completing and making the buildings “suitable for the uses and purposes of defendant in the operation of its business.” No time limit was fixed in this oral contract. Frequent deliveries were made as called for running through the preceding months. Plaintiffs were never notified there would be no further requirements. Defendant made monthly payments at first, and some payments later from time to time but failed eventually of full payment, while plaintiffs continued to furnish the material, carrying the indebtedness as it increased to the amount shown, and only filed this lien when defendant’s disclosed financial embarrassment jeopardized collection of the account. We find no occasion to disagree with the conclusion of fact by the trial court, that “there can be no question that the several items of material were furnished in good faith.”
The decree will stand affirmed, with costs to plaintiffs.
Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. McDonald, C. J., did not sit. | [
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] |
STONE, C. J.
This suit was brought to recover damages for an injury which the plaintiff claims to have sustained by reason of a gunshot wound in his left leg, between the ankle and knee, inflicted by the defendant about 10 o’clock of the night of November 30, 1912. On that occasion defendant was the village marshal of the village of Trenton, Wayne county, and plaintiff and several companions were engaged in a conversation on one of the principal public streets in front of the Commercial Hotel in said village. The undisputed evidence shows that the plaintiff was there using obscene language, the exact nature of which was in dispute, the defendant claiming that the language used was of the most disgusting and obscene character.
The plaintiff had been in the hotel, with companions, drinking, as he claimed, not to exceed two glasses of beer. There was a sharp conflict in the evidence at the trial as to whether plaintiff was intoxicated or not at the time. The plaintiff claimed and testified that he did not know, and was not informed by defendant, that the latter was an officer. This was denied by defendant,, who testified that plaintiff knew that he was the village marshal, and that he had been on a former occasion introduced to the plaintiff as such. It was undisputed that at the time the plaintiff had in his hand a quart bottle of whisky, which was sealed. The plaintiff, among other things, testified as follows:
“I did not know who it was that spoke up. The voice came from a point in the dobrway, about 20 feet away from me. He says, ‘Why God damn you, you have got to cut that out.’ I says, T am sorry I insulted you, if I did I didn’t mean to.’ He says, ‘It makes no damned difference whether you mean to or not.’ I says, ‘What occasion have you to control then?’ He says, ‘That is none of your damn business.’ I says, ‘All right,’ and off I started, off to the boys again, and paid no more attention. I paid no more attention to Labo and we hadn’t said any more, no vile words of any kind, just nicely started to talk when he says, ‘Here, God damn you, move along’; and he stepped out from the door and came to me and grabbed me right on the shoulder, and turned me half around. I says, ‘What authority have you?’ He says, ‘That is none of your damned business.’ I says, ‘According to that, .then, I don’t know that I will move on.’ He says, ‘You will move on’; and with that he hit me with the heel of his hand under the chin that way (illustrating) ; I think it was his right hand. I says, ‘Friend, you try that again and I think you and I are going to come together, you have no authority to phase me off the public highway and I don’t intend to move.’ * * * After he hit me on the chin, I*says, if he tried that again he' and I might _ come together. With that he came back a second time, struck me with his right hand, and I noticed in his left hand he had some object of some kind, coming up toward me. As near as I can figure it out he pulled that object from his hip pocket; I actually didn’t know what it was; it was dark; I saw a kind.of dark object; it occurred to me it might be a billy. It turned out to be a billy. He was hitting me with one hand, and pulling his billy out to hit me with the other, and I reversed my bottle from my right hand to my left hand — which I am left-handed — and 1 hit him with the bottle. I broke the bottle and I started to run away from him. He came after me; I imagine I had run about 35 or 40 feet, I guess, and I fell; I tripped; I had a big pair of felt boots on, with rubbers, and I could not run very fast, so I fell, and Labo right behind me, on top of me, and he tried to hit me with his billy at the time when I was down, and I kicked him off with my feet. I noticed he had hit my boot very hard with some object; with that I happened by luck to catch him in the stomach, as near as I could judge it, and kicked him, I should judge about 8 or 10 feet, which gave me time to get up. While I was on my back I kicked up at him, I had my feet in the air, to prevent him getting near me with the billy, and he was trying to hit' me. I think he broke the billy. I got up finally and ran again, and I imagine I ran about 50 or 60 feet and he came right behind me, he followed up about half way round the circle, as I ran around the post there, and just as I got back on the sidewalk, or very near the sidewalk, I felt something strike me in the leg, and I says, ‘Possibly I am shot.’ With that I fell, all doubled up, and I heard him say, ‘There, damn you, take that.’ ”
The plaintiff gave testimony showing that the tibia of the leg was broken, and the injury a very serious one; it appearing that the leg is now more than three-quarters of an inch shorter than the other leg. The evidence is undisputed that the plaintiff was disabled for many months and suffered a good deal of pain from the injury.
The defendant, after testifying to the nature of the language used by the plaintiff upon the public street, which language as described by him is too obscene for publication, .testified as follows:
“I says, ‘Here, Captain, you have got to cut that kind of thing out, you cannot use that kind of language on the street.’ He says, ‘What damned business is that of yours?’ I says, ‘That is what I am paid for, to tell such kind of fellows as you to cut out that kind of language.’ I knew Rohmer at that time; I knew him for a short time after I was appointed to the office. He knew I was village marshal. The proprietor of the hotel, Dohlka, gave an introduction to me. * * * After I told him it was my business to see that fellows like him should keep the peace, or refrain from using such language, he says, ‘What kind of damned business is that of yours?’ I says, T am not to ask, I want you to take a walk down the street.’ He says, ‘That is no damned business of yours.’ And with that I put my hand over on his shoulders and gave him a shove, and says, ‘You go down the street. He says, T don’t think of anything why you could make me move’; * * * and I caught him by the coat, and I put my hand in the pocket and pulled a billy out. He says, ‘You have a billy here.’ I says, ‘Yes’; and he struck me over the head with the quart bottle of whisky he had in his hand. I didn’t undertake to hit him with the billy; I had hardly got it out of nay pocket yet. Up to that time I had not arrested him. I was trying to get him to move along. His condition -\yas what I call disorderly conduct; he was drunk. When he hit me over the head with that quart whisky bottle he knocked me down to my knees. I got up again. As soon as he struck me he started to run; he ran to the north, and he turned to the east around the corner of the hotel. He went about 15 or 20 feet, not over 20, before he fell. He did not trip over anything, there was nothing there to trip over; the sidewalk is just as smooth as that right there. When he fell I got up to him and he was right on his back, and when I got up there he was kicking at me with his feet like that, and I tried to catch him by the collar, and I saw I could catch him by the boot so I struck at him with the billy, and I either struck him on the foot or leg. I only hit him once, and the billy busted. I had concluded to arrest him at that time. I started to arrest him after he struck me with, the bottle. When the billy busted he kicked me in the ditch; his feet hit me right in the breast; it knocked me backwards. Therfe is a ditch, and the ground runs sloping from the sidewalk to the ditch, and when I started backwards I fell down back in the ditch. When I fell Rohmer jumped up and started to run; he ran northwest. I pulled the gun out and shot him; I didn’t go 4 feet. I should judge he was about 25 feet away from me then. I shot to stop him. I pointed my revolver right at the ground; the ditch is where I stood; the ditch where I stood is about 2 feet lower than where he was. I wanted to stop him because I wanted to get him to malee an. arrest.”
We have quoted from both plaintiff’s and defendant’s testimony somewhat at length to show the conflict in the testimony relating to the occurrence. It will be noted that the plaintiff had testified that he was not drunk at the time of the trouble. The trial resulted in. a verdict and judgment for the plaintiff for $2,000 damages.
The defendant has brought the case here upon writ of error and there are six assignments of error, only three of which it will be necessary for us to consider— the third, fourth, and fifth:
(3) The court erred in charging the jury as follows:
“In approaching a study of the facts, in analyzing this testimony in order that you may find out what actually happened that night, you are going to be confronted with this legal question: Was a breach of the peace being committed by the plaintiff, Rohmer, at the commencement of the difficulty? Now, to answer that question properly, you have to know what, in law, amounts to a breach of the peace. A breach of the peace consists in any wilful, unjustifiable disturbance of the public peace, anything which amounts to a wilful, unjustifiable disturbance of the public peace is a misdemeanor, a criminal offense.”
(4) The court erred in charging the jury as follows:
“Examine this testimony then, and ascertain at the outset here, upon the occasion in question, was the plaintiff committing knowingly, wilfully, an unjustifiable disturbance of the public peace? If he was, he was committing a criminal offense.”
(5) The court erred in following the above-quoted charge with the following language:
“If, on the contrary, after an examination of the evidence here, you determine that no breach of the public peace was being committed upon the occasion by the plaintiff, then the defendant would have no right whatever to interfere with the plaintiff.”
Near the close of the charge of the court the following occurred:
The court asked defendant’s counsel if he had anything to suggest in the case, to which defendant’s counsel replied:
“No, your honor.”
“The Court: I covered the legal principles as to the right of the defendant to exercise his authority in making an arrest.”
“Defendant’s Counsel: Yes, your honor.”
“The Court: And the theories presented by the defendant on the facts of the case.”
“Defendant’s Counsel: Yes, your honor.”
That peace officers have a right to arrest for breaches of the peace committed in their presence in a public street is not denied. The third, fourth, and fifth assignments of error may be treated together. We have read the entire charge with a good deal of care, and are of opinion that there was reversible error in the portion of the charge upon which error is assigned, which, in all probability, affected the verdict in the case. As we understand this portion of the charge, it was to the effect that, in order for the plaintiff to have been guilty of a breach of the peace, what he did and said must have been done wilfully and knowingly by him, in order to warrant -the officer in making an arrest; and we do not find that this portion of the charge was cured in other parts thereof.
It is undisputed that defendant was a peace officer, and as such would have the right to arrest the .plaintiff for the use of grossly indecent .language used upon a public street in the presence of such officer, and for an assault upon the officer there. Such conduct on the part of the plaintiff, as testified to by defendant, was against decency and public morals, and would justify the officer in making an arrest. This court has defined a breach of the peace in Davis v. Burgess, 54 Mich. 514 (20 N. W. 540, 52 Am. Rep. 828).
It has been held that it is competent for a peace officer to take into custody even an insane man who is committing a breach of the peace in his presence. Lott v. Sweet, 33 Mich. 308; Van Deusen v. Newcomer, 40 Mich. 90-142. The fact that the person is insane does not exempt him from liability to arrest if he commits a breach of the peace which would be an offense if committed by a sane person. 22 Cyc. p. 1214, and cases cited.
The infirmity in the charge is that it made the intent and knowledge with which the breach of the peace was committed the controlling element. In our opinion the plaintiff was liable for the acts which he had committed, because the question of his intent or knowledge did not enter into the acts. The use of vile and obscene language upon the street and an assault upon an officer by a person so intoxicated and wild that he was not capable of forming an intent, would justify the officer in making an arrest if committed in his presence. The jury in this case may well have found under the charge that the plaintiff was guilty of a breach of the peace by the use of indecent language upon the public street, in the presence of the officer, and of an assault upon the officer, and yet because of his drunkenness, the defendant was not justified in arresting him. In our opinion the language of the court complained of probably led the jury to return a verdict for the plaintiff in the substantial sum indicated.
. Referring to the colloquy between the court and defendant’s counsel ne'ar the close of the charge, it should be borne in mind that error may be assigned upon any part of the charge, although not excepted to. The statute permitting this practice has been criticized by this court in the following cases: Just v. Porter, 64. Mich. 565, 568 (31 N. W. 444); Totten v. Totten, 172 Mich. 565, 580 (138 N. W. 257); Cookes v. Lymperis, 178 Mich. 299, 303 (144 N. W. 514). But, notwithstanding such criticism, the statute has been followed in many cases, and it is our opinion that defendant’s counsel was not obliged to point out to the court the error in the charge relied upon.
This view of the case renders it unnecessary to consider the other assignments of error, which relate to matters not likely to occur upon another trial.
For the error in the charge above pointed out, the judgment of the court below is reversed, and a new trial granted.
Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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Moore, J.
The bill of complaint was filed in this case June 27, 1923, and on the same day an order of publication was entered and a copy of it sent to defendant by registered letter. September 6, 1923, the appearance of the defendant was duly entered. September 29, 1923, the default of defendant was regularly taken.
October 16, 1923, a motion to set aside the default was entered, based upon the claim that plaintiff was not a resident of Detroit, and other reasons. We quote from the motion:
“That the said defendant was unable to file his answer to plaintiff’s bill of complaint by circumstances not under his control, arising from the fact that the child of the parties hereto, Blanche May Lehman, aged six years, was brought to Cincinnati, Ohio, and that the said plaintiff then instituted habeas corpus proceedings before the court of common pleas in Cinciimati Ohio ^ *<’
“That on the 10th of September, 1923, the said defendant instituted an action for divorce in the court of common pleas, division of domestic relations, and some two weeks later counsel for plaintiff in Cincinnati, Ohio, filed a motion to dismiss said petition for divorce, alleging that said defendant could not maintain a divorce action in Cincinnati, Ohio, because of the one pending before this court; and after hearing said motion the court in Cincinnati overruled the motion of plaintiff’s counsel in Cincinnati.”
The judge, before deciding the motion, had the prosecuting attorney investigate, and on the 9th of November, 1923, he filed his report from which we quote as follows:
“The issue of this marriage, Blanche, 6 years of age, is now living with her father at Cincinnati, Ohio. The plaintiff and defendant separated on June 5, 1921. Mrs. Lehman took her child with her and came to Michigan. At times the child would be with her and at other times the child was taken by Mrs. Lehman to the home of Mrs. L. Baunes at Windsor, Ontario. Mrs. Lehman had the continuous custody and supervision of her child since the separation from her husband. On September 13th last Mr. Lehman went to Windsor and called at the school where the child was attending and took her with him to Cin einnati. Mrs. Lehman had no knowledge of her husband’s conduct and the child’s custody was taken from her without consent or authority upon her part.
“Mrs. Lehman lives at 8436 E. Forest avenue and is employed by Mrs. McCormick as a manager of a millinery store earning $30 per week. She has been supporting, clothing and educating her child since her separation from her husband. Mrs. Lehman is a fit and suitable person to have the custody of her child. Mr. Lehman, the. defendant, filed an appearance by his attorney thereby submitting himself to the jurisdiction of this court.
“Under the statute and decisions of our Supreme Court Mrs. Lehman has the paramount right to the custody of her child. We have been unable to find any facts tending to show her to be an unsuitable person to have her child’s custody.
“In the decree if granted, we recommend that the custody of the minor child be awarded to the plaintiff and that the defendant pay permanent alimony to the friend of the court for the support of the minor child.”
The motion to set aside the default was overruled, the trial judge giving his reasons in part as follows:
“The motion was denied on the ground, principally, that it appeared that an advantage had been taken of the _ plaintiff by commencing a divorce proceeding against her while she was in Ohio endeavoring to get possession of the child, which had been surreptitiously taken from her custody and possession by either the defendant or some of his agents, and carried into the State of. Ohio. It was stated by counsel at that time that this court had no jurisdiction to hear the divorce case as the plaintiff, as I recall his statement, was in reality a resident of Canada and was taken from Canada to Cincinnati. There was no answer proffered at the time this motion was made or heard; there had been no affidavit of merits filed, as a basis for such a motion. I stated in summing the matter up last Saturday that it appeared to me that while the plaintiff was in Ohio endeavoring through legal process to obtain possession of her child, and while that matter was pending it was an abuse of process under all rules and decisions to begin divorce proceedings against her in Ohio. * * *
“There is no reason why, dealing fairly with the court, with counsel and with the parties interested in this case, there should not be a full and a fair hearing before some court of proper jurisdiction to hear and determine the difficulties between these parties, but no court will tolerate methods such as have been attempted in this case on the part of the defendant. They are intolerable. It seems almost impossible that lawyers of repute should seek to pursue the methods in behalf of their client as disclosed by the writings and the record in this case. There is no reason why the circuit court for Wayne county could not and would not have justly determined the rights of these parties. There is no reason that I can see why surreptitious methods should have been used by defendant to obtain possession of this child and carry it into the jurisdiction of the State of Ohio. There is no reason whatever why an answer should not have been filed in this proceeding and an issue framed. There is every reason in the world why counsel for the defendant should have refrained from commencing a divorce proceeding in the courts of Ohio when they knew that this divorce case was pending in the State of Michigan and in the county of Wayne. I cannot understand such conduct; I can scarcely express my disapproval of it in language adequate for the occasion.”
On November 5, 1923, the judge permitted an amended bill of complaint to be filed.
Upon the trial the plaintiff testified in detail about the conduct of her husband toward her. We quote a little of her testimony:
“Q. What can you say about him properly providing you with clothing?
“A. He has never bought me but just enough to get along with when I lived with him. I had one dress when I left him.
“Q. What can you say when the grandfather died about this defendant?
“A. I had to go out and borrow money to buy clothes to go to my grandfather’s funeral.
“Q. How about the defendant furnishing money to buy small necessary articles?
“A. He furnished' it, but I’ll tell you he just took the joys out of life. When I bought anything he grumbled about it.
“Q. How about him buying necessary eatables?
“A. It wasn’t fit to eat. I had to throw it out in the garbage; he gave me all leavings.
“Q. How about the defendant being affectionate or unaffeetionate?
“A. Very unaffeetionate.
“Q. How about it since the birth of the child?
“A. He stayed away from me; one solid year never came near me.
“Q. Refused to cohabit with you as his wife?
“A. I was not his wife after the child was born.
“Q. He told you that?
“A. He turned me down; I am ashamed to say it; but it is all his fault now. * * *
“Q. What can you say about him throwing articles at you on occasions?
“A. Yes.
“Q. Did he?
“A. When I asked him about things he would get sore and slung things at me; got into a temper.
“Q. Did you give him any cause?
“A. Not at all. I was a perfectly good wife to that man. * * *
“Q. What can you say about the last home he provided for you?
“A. I am ashamed to say it was a vile place to live, filled with rats and cockroaches. There was three rooms; there was no sink, and I had to wash in the hall, and carry my water from- the bath tub to the kitchen to cook; it had no dining room.
“Q. Was this a suitable home for you to live in?
“A. It was unsuitable. * * *
“Q. How about the defendant refusing to go to places of amusement or to church with you?
“A. Yes, he always did — would go nowhere with me.
“Q. Didn’t take you any place?
“A. No place at all.
“Q. Not even to church?
“A. No; I have begged and begged with him to go to church with me; he would never go. * * *
“Q. What can you say about the defendant’s treatment towards you when you were sick with the influenza.
“A. He left me in the bed alone — in the morning he left me in the bed alone all day with a glass of water, and the baby in my arms.
“Q. Was this baby ill at the time?
“A. Yes.
“Q. And that is ail the attention you had:?
“A. Yes.”
The judge granted plaintiff a decree of divorce.
The defendant has sought to bring the case into this court by appeal, and we quote from the appellant’s brief:
“The defendant contends:
“ (1) That the motion to set aside the default should have been granted and the failure to do so was an abuse of discretion on the part of the court.
“(2) That the plaintiff should not have been permitted to file her amended bill of complaint at the time of the hearing over the objection of counsel for the defendant.
“(3) That the court did not acquire jurisdiction of the parties for the reason that neither of them resided within the State of Michigan for two years immediately preceding the filing of the bill of complaint.
“(4) For the reason that the testimony of the plaintiff did not substantiate the allegations of the bill of complaint and did not warrant a decree in her favor.”
The attorney who represented the plaintiff has not filed a brief, but files a letter saying in substance he has not been her attorney since the decree was entered and insists the case is not properly in this court. We have decided not to enter into this phase of the controversy, but to dispose of the case upon the merits.
1. We do not think the judge abused his discretion in declining to set aside the default. See section 3 of Circuit. Court Rule No. 32, and cases in the notes to the rule.
2. Did the court err in permitting the amended bill of complaint to be filed? We think the answer must be in the negative. See Bowers v. Chippewa Circuit Judge, 136 Mich. 367.
3. Did the court acquire jurisdiction of the parties? The testimony shows that plaintiff lived in the State two years before her bill of complaint. It has already appeared by the record that an appearance by the defendant was entered. We think the question must be answered in the affirmative.
4. A reading of the record satisfies us the trial judge was justified in making the decree he entered, and we see no reason for disturbing it.
The decree is affirmed, with costs to the appellee.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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] |
Kuhn, J.
It is made to appear that prior to October 7, 1910, Dwight H. Cheeseman was the owner of lots 5, 6, 7, and 8, and the south half of lot 4, block E, in the village of Robinson, Ottawa county, Mich., and also the S. E. *4 of the N. E. 14 of section 13, town 7 north, range 15 west, Ottawa county, Mich. On November 10, 1909, Mr. Cheeseman gave a mortgage in the sum of $250 on all this property to Fay F. Soule, as trustee, and no assignment of this mortgage has ever been recorded. The complainant Mr. Frank C. Allen owned some property in Granville, Mich., and he and Mr. Cheeseman arranged a trade of the Granville property, subject to a small mortgage (which Allen was to pay, and has paid), for the S. E. % of the N. E. % of section 13, township 7 north, range 15 west. The deed from Cheeseman to Allen bore date December 5, 1910. Mr. Cheeseman conveyed lots 5, 6, 7, and 8, and the S. % of lot 4, block E, in the village of Robinson, to-William Foster on November 15, 1910, for the sum of $500, of which $200 was paid in cash and the balance assumed by the Cheeseman mortgage on the said lots, and also the land sold and conveyed to Frank C. Allen. That is, Foster was to pay the mortgage. Mr. Foster subsequently sold the lots to the defendant Sam Mahder, and it is claimed that Mahder paid a certain amount in cash and agreed to pay the mortgage, and that the amount of the mortgage was deducted from the purchase price, the same as it was when Foster “bought of Cheeseman. It is further claimed by the ■complainant that Mahder did not pay the mortgage, and that Mr. Allen thereupon went to the defendant Soule to purchase the mortgage, but that this was not brought about, and it is claimed that he said that the 40 acres of land would have to be sold first on foreclosure, according to the rule of sale, in the inverse order of alienation.
This bill was then filed, asking for a decree, reversing the order of sale so as to have the lots which were sold first sold first under the foreclosure. Mr. Charles E. Soule, who had been handling the mortgage, and Mr. Fay F. Soule, the trustee, and Mr. Sam Mahder, were made the defendants.' Mahder did not file any pleadings, and his regular default was entered. Mr. Charles E. Soule filed an answer, to each and every allegation of the bill, setting forth that he sold the note and mort,-gage to a stranger, and also added a disclaimer. The ■defendant Fay F. Soule also filed an answer and disclaimer that he had no personal interest in the matter, excepting the use of his name for the noteholder. On the hearing of the case Mr. Soule testified that he had ■sold the note and mortgage to David G. Alston.
Upon receiving this information, a petition was filed, asking Mr. Alston to show cause why he should not be made a party. Notice was served on him of an order that he should, within a certain time, show cause why he should not be made a party to the suit. But nothing was done, and the court, after having rendered his finding, directed that a decree be prepared, notice of settlement of which was given to Mr. Soule. The latter, on the day of the settlement of the decree, presented a petition and motion for Mr. Alston, asking that all proceedings to make Alston a party be stricken from-the files. Accompanying the petition was an affi davit in which Mr. Alston swore that he had sold the note and mortgage to the People’s State Bank of Grand Haven. The petition was denied by the court, and the decree was signed, which reverses the rule of the sale in the inverse order of alienation and directs that the lots be sold first, and if they do not bring enough to pay the mortgage, then the 40 acres are to be sold.
It is a cardinal principle, which applies alike to every person desiring to appeal, that he must have an interest in the subject-matter of the litigation. Otherwise he can have no standing to appeal. In this record it appears that Mr. Alston disclaims any interest therein, having sold the mortgage and note before any proceedings were taken to make him a defendant. It also appears from the disclaimers of the other defendants that .they had absolutely no interest in the mortgage or the property. Mr. Mahder, the man who owns the land, is not a party to the litigation, and is not complaining about the decree. No costs were awarded against any -of the defendants.
It is the claim of the defendant Charles Soule that at one time $35 was sent by Mr. Cheeseman to Mr. Allen to pay Mr. Soule to have the mortgage discharged, but the money was never turned over to Mr. Soule, and that the decree results in his being deprived of this money. But in his testimony he further stated that the $35 was not to apply on the mortgage, and it is clear, therefore, that it cannot be said to be a part of the mortgage or the note.
We are satisfied that the appealing defendants have shown no such interest as to entitle them to appeal, and that therefore their appeal should be dismissed, and the decree of the court below be affirmed, with costs of this court to the complainant.
Stone, C. J., and Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit. | [
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Sharpe, J.
In May, 1922, defendant had a contract which required digging a trench in a street and under a sidewalk in the city of Muskegon Heights for the purpose of placing a sewer pipe therein. Plaintiff’s decedent was in his employ, and in charge of this work. On May 11th, he had a helper named Swine-hart. The next day Philip Selem took Swinehart’s place. While Greene was engaged in digging under the sidewalk on the 12th, the earth caved in on him. He died before he was released. This action was brought by the administratrix of his estate to recover the damages incident to his death. At the conclusion of the proofs, a verdict was directed for the defendant, for the reason that no actionable negligence on his part was proven.. The judgment entered thereon is here reviewed by writ of error.
The negligence relied on by plaintiff was the failure of the defendant to provide and install suitable curbing to protect deceased while engaged in this work. Defendant was not present while the work was progressing. Deceased had experience in such work and, if curbing was provided, no duty rested on the defendant to See that plaintiff’s, decedent used it as needed in the progress of the work.
Swinehart testified that planks and jacks were furnished for the curbing or cribbing (as it was called by some of the witnesses), and that they were cut up and used on the 11th; that at night they were placed inside the yard, except the few needed to cover the open part of the trench. Selem testified that the cribbing was there when he went to work on the morning of the 12th; that he asked deceased if he was going to use it, and he said “No.” The defendant testified that the cribbing was sent up to the work the day it was begun, and that he unloaded it there. The teamster who hauled it testified to its delivery at the job. A witness who aided in removing the body of the deceased testified:
“There was no planking or cribbing near there, as I hunted for some to drive down to his body as we uncovered it, and I couldn’t find any; I hunted for it right there at the time.”
Another witness testified:
“I took about 20 men and went over to the scene of the accident, and we took our shovels along. *_ * * I examined the hole, and there was no cribbing or planking whatever used to withhold the sand from falling in on him. I did not see any planking at all near there.”
The few pieces used for covering the trench when the men stopped work on the 11th- were doubtless covered up by the first earth thrown out by these men. The others were piled up in the yard. The trial court held that this testimony, negative in its character, did not raise an issue of fact, for the consideration of the jury as to whether the curbing had been provided, and we think he was clearly right in so holding. See Moreau v. Grandmaison, 220 Mich. 238, where the weight to be given to such testimony is considered and the authorities reviewed.
Error is assigned on the admission of certain evidence. That already referred to was certainly admissible and, irrespective of that to which objection was made, justified the action of the court in directing the verdict.
The judgment is affirmed.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Fitzgerald, P. J.
The initial cause from which this appeal is now taken arose from an action for the wrongful death of Roger Lloyd Ruotsala, age 17. The boy was fatally injured when struck by an automobile operated by the defendant, Clarence Frank Holzhauer, at approximately 1:30 a.m. on June 29, 1966, near Nestoria, Michigan. Plaintiff Lloyd W. Ruotsala is the administrator of the deceased’s estate.
The pertinent facts are as follows:
Defendant and three others were enroute to a convention in Hancock, Michigan, at the time of the accident. Decedent, intent upon visiting his grandparents, had been hitchhiking from his parents’ home in Royal Oak to Hancock. The accident took place in the early morning hours while it was still dark on an isolated and unlighted curve on US 41. Defendant did not stop his vehicle at the scene, but instead he continued on to the nearest State police post to report the incident. Two of the passengers present in the automobile were unable to testify to the events since they were asleep at the time of the accident. Mrs. Holzhauer stated that while she did not see the deceased nor realize what had taken place, she did feel an impact. The case was tried to a jury which rendered a verdict of no cause of action.
Plaintiff brings four allegations of error, all of which concern the trial court’s refusal to instruct the jury as requested. The first matter we must decide is whether the jury should have been instructed that there is a presumption that the deceased was exercising due care for his own safety.
Under early Michigan case law, such an instruction was required, for the presumption of a deceased’s due care needed more than slight evidence to rebut it. However, subsequent decisions have altered this rule. Under the facts of the present case, defendant, the only eyewitness, saw the young man moments before the impact. This is sufficient to bring the case within the purview of Schillinger v. Wyman (1951), 331 Mich 160, which ruled that if the defendant saw the deceased at all before the accident, his testimony as an eyewitness is sufficient and the presumption of due care will not be indulged. See also Barry v. Elkin (1952), 332 Mich 427. Plaintiff cites Hett v. Duffy (1956), 346 Mich 456, in support of his argument, but misreads its holding. The aforementioned case did not change the law as enunciated in Schillinger, supra, and therefore we must hold that the trial court committed no error in its failure to instruct the jury that decedent was presumed to be exercising due care for his safety.
The second assignment of error concerns the trial court’s failure to instruct the jury that the sudden emergency doctrine would operate in favor of the decedent as well as the defendant.
A review of applicable case law does not produce an automobile-pedestrian situation wherein a failure to give plaintiff’s requested instruction concerning application of the sudden emergency doctrine was held to be reversible error. Plaintiff cites Smith v. Maticka (1943), 305 Mich 32, to support his contentions. The facts are readily distinguished from the case at hand and we are not persuaded to adopt his reasoning. In Smith, supra, the emergency doctrine was applied in a two-ear accident where the facts and circumstances surrounding the collision were known. At present, we are faced with a situation involving a deceased whose activities prior to the accident we know nothing about. The record is void of any facts from which an inference could be drawn that deceased was faced with an emergency situation and was forced into evasive actions to avoid being run down by defendant.
A certain latitude must be afforded the trial court in the area of jury instructions. The judge need not instruct the jury on theories which lack an evidentiary foundation. It is for these reasons that we find no error in failing to instruct the jury that the sudden emergency doctrine would apply to plaintiff’s decedent.
Next we shall consider whether the jury should have been instructed on the doctrine of subsequent negligence. Defendant contends the facts were such that a jury could have found subsequent negligence. He argues that in light of these facts, he was entitled to an instruction on the doctrine of subsequent negligence as set forth in Papajesk v. Chesapeake & Ohio Railway Company (1968), 14 Mich App 550.
It is contended that decedent was in a position which had become dangerous and defendant knew, or by the exercise of ordinary care, ought to have known, of decedent’s peril. An examination of the record fails to disclose an evidentiary foundation for plaintiff’s argument. The facts of Papajesh, supra, differ radically from the case at hand and therefore we cannot say that it is controlling.
In Shafkind v. Kroll (1962), 367 Mich 42, the Supreme Court set forth conditions which must be found prior to a consideration or application of the doctrine of subsequent negligence. The Court stated as follows:
“See Duffy v. Enright Topham Co. (1937), 282 Mich 662; (3 NCCA NS 123); Ertzbischoff v. Smith (1938), 286 Mich 306; Davidson v. City of Detroit (1943), 307 Mich 420; St. John v. Nichols (1951), 331 Mich 148; Schmid v. Morehead (1952), 333 Mich 611; and Dunn v. City of Detroit (1957), 349 Mich 228, for full exposition of our consistent rule that the doctrine of discovered negligence cannot be considered or applied in the absence of proof showing or tending to show that the plaintiff’s negligence had put him in a position of peril; that such negligence thereafter ceased to operate as an efficient cause of the pleaded injury; that the defendant could and should have discovered the plaintiff’s peril in time to avoid such injury by the employment of safe means at ready hand, and that the defendant failed to so discover and act as would a person exercising due care under like circumstances.”
Application of the qualifications enumerated above to the circumstances surrounding this most unfortunate accident leave no room for a jury consideration of the subsequent or discovered negligence rule. The evidence submitted was not sufficient to prove or even allow the inference that there was enough time and distance for defendant to effectuate evasive or preventive measures to avoid the accident.
The last issue raised concerns error charged to the trial court in failing to instruct the jury that defendant’s conduct in leaving the scene of the accident may be considered in determining his credibility. During the course of the trial, the jury heard testimony of defendant’s conviction of leaving the scene of the accident. They were instructed that such evidence was not to be considered as bearing on the proximate cause of the accident. While the law is settled that such evidence of a criminal conviction is admissible to show credibility, there is an absence of authority compelling us to find error in the failure to instruct the jury that such information may he considered.
After reviewing the law of this state and the facts of the present case, we find that the trial court’s instructions, taken as a whole, were not erroneous.
Affirmed.
All concurred. | [
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Per Curiam.
This case is submitted on the people’s motion to affirm pursuant to GrCR 1963, 817.5 (3). With counsel present, defendant pled guilty to “attempted carrying of a concealed weapon in a motor vehicle” contrary to MCLA § 750.227 (Stat Aun 1962 Rev § 28.424) and the Michigan attempt statute, MCLA § 750.92 (Stat Ann 1962 Rev § 28.287). Defendant was sentenced to serve two years five months to two years six months imprisonment and brings this appeal.
Defendant argues that his guilty plea was improperly taken because the judge below failed to apprise him of all the elements of the crime charged. The trial judge does not have to explain all the elements of the crime charged, People v. Melvin (1969), 18 Mich App 652, unless there is reason to doubt that the defendant understands the nature of the accusations. People v. Atkins (1966), 2 Mich App 199. A review of the record in the instant case reveals that the defendant understood the nature of the accusations and, as a result, the failure to explain all the elements of the crime was not error.
Defendant also argues that his guilty plea and conviction were improper because of an illegal search and seizure. A guilty plea waives all defects in the prior procedure and consequently whether or not the search was illegal, defendant’s plea would still be valid. People v. Robbins (1967), 6 Mich App 633; Anno: Plea of Guilty as Waiver of Illegal Search and Seizure (1968), 20 ALR3d 724.
A further review of the record reveals that the trial judge fully complied with GCR 1963, 785.3(2). Furthermore, the defendant does not allege that his plea was involuntary, untruthful, coerced, or that he was in fact not guilty. It is well settled that the defendant has the burden of showing more than technical noncompliance with the court rules, People v. Nelson (1969), 18 Mich App 177, and nothing more having been shown in this matter we find the defendant’s allegations to be so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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Moore, J.
The trial judge stated the questions in this case so clearly in an opinion filed when he granted a judgment non obstante veredicto, that we quote from it as follows:
‘‘This is an action in assumpsit brought by the plaintiff to recover the balance claimed to be due on an oral contract for labor and material furnished in the erection of a building on property of the defendant. It is the claim of plaintiff, that on or about the 27th day of May, 1919, he entered into a written contract with defendant to build a certain brick building on property belonging to the latter, the contract price being $8,500; that he began work under the contract, and that in October, 1919, finding that he was unable to complete the contract because of increase in the price of materials, etc., he advised the defendant of his intention to throw up the contract. That defendant thereupon'asked him to go ahead and finish the building, agreeing to compensate him for materials and labor furnished, and also to pay him an additional sum equal to ten per cent, of the entire cost of the work on the said building and the materials furnished therefor.
“Defendant filed a plea of the general issue, and gave notice that he claimed as a matter of defense under such plea that no such second oral contract was made; that certain liens for materials had been filed against the property, more than sufficient to overcome the balance due plaintiff upon the original written contract.
“He further gave notice, under such plea of the general issue, that the matter in issue had been fully adjudicated in the case of the People’s Lumber Company, as plaintiff, and plaintiff and defendant herein as defendants, being No. 75,722 in the Wayne circuit court, in chancery.
“The instant case was heard before the court and a jury, and a motion was made by counsel for defendant asking the court for a directed verdict in his favor because of such former adjudication, and for other reasons.
“The ruling was reserved on the motion, and the case submitted to 'the jury under the provisions of section 14568 of the Compiled Laws of 1915 — the jury rendering a verdict in favor of the plaintiff for $4,402.80.
“Subsequently the defendant filed a motion for judgment for defendant non obstante veredicto.
“A certified copy of the files in the Wayne county case was offered and received in evidence. From such record, it appears that a bill was filed in the Wayne circuit court on or about the 20th day of February, 1920, the People’s Lumber Company, as plaintiff, to foreclose a mechanic’s lien upon defendant’s property, claiming that they had furnished to plaintiff, Tessler, a certain amount of lumber, under a contract between Tessler and Rothman for the erection of a building upon Rothman’s property, and making both plaintiff and defendant herein defendants in such, action. Summons was served upon defendant Tessler, but his appearance was not entered, and subsequently his default was taken — although he appeared as a witness at the hearing. The case was heard before the circuit court for the county of Wayne, and a decree was entered thereon the 11th day of January, 1921, reciting that the case came on to be heard on the bill of complaint and answer of defendant Elias Rothman, the default of Tessler having been taken. The decree further recites, among other things, the following:
“ ‘Upon due consideration thereof, the court doth find that upon the 27th day of May, 1919, the defendant Rothman entered into a written contract with the defendant Tessler whereby the defendant Tessler agreed to do the carpenter work for four stores and flats on the premises hereinafter described for the sum of eighty-five hundred dollars ($8,500); and the court doth further find that said contract was the only existing contract between the said parties until the time that said defendant Tessler abandoned the work under said contract, shortly after November 21, 1919; and that no other or different contract was e^er entered into by the defendants Rothman and Tessler in regard to said work;’
—“and further found that Rothman had paid defend ant Tessler $5,400, on his written contract of $8,500; that he had also paid for the completion of the work; after the abandonment of the contract by Tessler, $486.75; and that the amount then due to Tessler from Rothman was $2,623.25; that said $486.75 was paid by Rothman without securing sworn statements, as provided for by the mechanics’ lien law, and because of such failure, the total amount subject to lien was $3,200; and a lien was decreed for that amount on the property of defendant Rothman.
“It is the contention of the plaintiff that this decree was not an adjudication of the matters involved in this case. However, in the case of Kerns v. Flynn, 51 Mich. 573, the opinion reads as follows:
“ ‘The case of subcontractors involves inquiry into the relations and state of accounts existing between the defendant and the original contractors, and into the contract relations and state of accounts existing between said original contractors and subcontractors. Both kinds of inquiry are indispensable. It is a fundamental implication of the remedy that an indebtedness from the defendant in favor of the original contractors must be found and adjudicated. Without it there can be no basis for relief to the subcontractors. The right of lien must be ascertained, and the rights and liabilities of. the different parties, so far as they pertain to the subject, must be inquired into and liquidated. The fact of a lien and the fact of liability or indebtedness may actually exist, but they must be adjudged to exist as a preliminary to their enforcement. They can never be taken for granted. So long as a claim is unadjudged it cannot be enforced, and there is no law for making such investigations and decisions in the absence of the parties. They must have an opportunity to be heard, and if they do, not have it, they will not be bound. The doctrine is elementary and citations are unnecessary;’
■ — “which clearly made it necessary, in the mechanics’ lien case, ■ to make the principal contractor, Tessler, a party to the action, and also made it necessary for the court to determine what the contract relations between Tessler and Rothman were, and how much was due Tessler under such contract.
“The files in that case disclose that the claim of the People’s Lumber Company was $3,683.21, and had there been an additional sum due from Rothman to Tessler, the court, would have undoubtedly decreed a lien for that amount. But inasmuch as the court found that the only contract existing between Tessler and Rothman was a written one for $8,500 and that the balance remaining unpaid on such contract plus the sum of $486.75 was $3,200, he gave the lumber company a decree for that amount only.
“The files in that case further disclose that some of the materials were furnished by the People’s Lumber Company in November, 1919, which was some weeks subsequent to the time Tessler claims the oral contract was made, which would make it still more necessary for the Wayne circuit court to determine what contracts were in existence at that time.
“In view of these facts and the decision above referred to, I am satisfied that the motion of defendant for a judgment non obstante veredicto is well founded, and the same will be granted and judgment entered accordingly.”
The case is brought into this court by writ of error.
It may be well to state at the outset that the instant case was commenced July 26, 1920. While the chancery case, to which reference is made by the trial judge, was commenced February 20, 1920, and the decree was not entered therein until January 11, 1921.
We quote from the brief:
“The plaintiff insists:
“1. That in the said lien suit of the People’s Lumber Company v. Elias M. Rothman and Morris H. Tessler the pleadings in no way involved the issue in the case at bar, as between the parties to this suit; that in the said lien suit the issue in the case at bar was not raised or determined; and that the said decree in the said lien suit is not res judicata as to the issue involved in this suit.
“2. That the said circuit court erred in entering judgment of no cause of action in favor of the defendant in this suit notwithstanding the said verdict in favor of the plaintiff, and that said judgment ought to be set aside and a judgment entered on the said verdict for the plaintiff.”
The principle for which the plaintiff contends in this case is well stated in 15 R. C. L. p. 972, § 449, as follows:
“While a judgment is decisive of the points raised by the pleadings, or which might properly be predicated upon them, it does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiffs might have joined, but which in fact, were not joined or embraced in the pleadings.”
Counsel also cites Barras v. Youngs, 185 Mich. 496, and insists it is controlling.
It may be well in this connection to quote further' from 15 R. C. L., which we do as follows:
“On the other hand it is equally well settled that a fact which was directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or in any other court, and that where some controlling fact or question material to the determination of both actions has been determined in a former suit, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the latter suit, without regard to whether the cause of action is the same or not, or whether the same suit involves the same or a different subject-matter. * * * In such cases it is also immaterial that the two actions were based on different grounds or tried on different theories •or are instituted for different purposes and seek different relief.” 15 R. C. L. p. 974, § 450.
“While this doctrine of the effect of a judgment as an estoppel in subsequent actions is limited to matters involved in the litigation, it is generally held to be equally applicable whether the point decided is of itself the ultimate vital point, or only incidental, if still necessary to the decision of that point, and a judgment in a prior suit is deemed final and conclusive in subsequent litigation between the parties, or their privies, as to those matters necessarily determined or implied in reaching the final judgment, although no specific finding may have been made thereto, and even though it was not raised as an issue by the pleadings in the former action. If the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties.” 15 R. C. L. p. 976, § 451.
In the case of Barker v. Cleveland, 19 Mich. 230, Chief Justice Cooley, speaking for the court, says:
“To make a judgment in one case a bar to another it is not necessary that the object of the two suits be the same, nor that the parties should stand in the same relative position to each other. * * * And it is immaterial whether the point was actually litigated or not if its determination was necessarily, included in the judgment.”
A reference to the case of Barras v. Youngs, supra, will show it is not controlling.
In the chancery case before mentioned it is averred that Mr. Rothman had a contract with Mr. Tessler to construct the building.- In his answer Mr. Rothman states what he claims the contract to be.
Counsel say:
“No copy of that answer was ever served on Tessler —either before or after his default. It is not an answer in the nature of a cross-bill against any party, and it cannot fairly be contended that Rothman’s said admission amounts to a pleading by which such an issue between Rothman and Tessler was raised. There is no testimony whatever in the record showing that there was any such issue on the hearing in the People’s Lumber Company case, and no opinion of the court upon which the court’s decree therein relied upon by the defendant was based.”
Mr. Tessler was duly served with process and if he has failed to have a copy of the answer served upon him it is because he did not enter an appearance in the case.
In the case now before us notice was given to Mr. Tessler before the decree was entered in the chancery case as to the claim of Mr. Eothman about the contract.
We again quote from the brief:
“The object of making the contractor defendant in a mechanic’s lien case brought by a materialman is to establish the indebtedness to the materialman as against the contractor, for, if he were not given an opportunity to contest the materialman’s claim by being made a party, he would not be bound by the decree. This is the substantial holding of Kerns v. Flynn, 51 Mich. 573; Godfrey Lumber Co. v. Kline, 160 Mich. 565, and is the only point involved in those cases.
“In order to enforce the lien the materialman must establish his claim against the contractor, and then establish the contract between the owner and the contractor in reliance upon which the materialman gave the credit to the contractor. In the People’s Lumber Company case it was not necessary that Tessler should be a party for any other purpose than to bind him as to his liability to it as a materialman.”
We think this view of the object of the statute is too narrow.
Section 14805, 3 Comp. Laws 1915, requires that the plaintiff in a suit brought to foreclose a mechanic’s lien shall make all persons having rights in said property affected or to be affected by such liens parties to such actions.
In Kerns v. Flynn, 51 Mich. 573, it is said :
“The case of subcontractors involves inquiry into the contract relations and state of accounts existing between the defendant and the original contractors, and into the contract relations and state of accounts existing between said original contractors and subcontractors. Both kinds of inquiry are indispensable. It is a fundamental implication of the remedy that an indebtedness from the defendant and in favor of the original contractors must be found and adjudicated. Without it there can be no basis for relief to the subcontractors. The right of lien must be ascertained, and the rights and liabilities of the different parties, so far as they pertain to the subject, must be inquired into and liquidated. The fact of a lien and the fact of liability or indebtedness may actually exist, but they must be adjudged to exist as a preliminary to their enforcement. They can never be taken for granted. So long as a claim is unadjudged it cannot be enforced, and there is no law making such investigations and decisions in the absence of the parties. They must have an opportunity to be heard, and if they do not have it they will not be bound. The doctrine is elementary and citations are unnecessary.”
See Godfrey Lumber Co. v. Kline, 160 Mich. 565.
It might make a great deal of difference to a materialman whether he obtained a lien for the full amount of his claim instead of for a part thereof, and was relegated to obtain a judgment for the deficiency against the purchaser of the material who might or might not be insolvent.
In the lien case of Koch v. Sumner, 145 Mich, at p. 364 (9 Ann. Cas. 225, 116 Am. St. Rep. 302), it is said:
“A reading of the opinion will show however that it did not go off upon that point but upon the general proposition that it is the duty of a court of equity which has properly acquired jurisdiction of the subject-matter, and of the parties to do final and complete justice in relation thereto. This is no new doctrine in this State. It was announced as long ago as Whipple v. Farrar, 3 Mich. 436 (64 Am. Dec. 99). See, also, Miller v. Stepper, 32 Mich. 194; Wallace v. Wallace, 63 Mich. 326; Drayton v. Chandler, 93 Mich. 383; In re Axtell’s Petition, 95 Mich. 244; George v. Electric Light Co., 105 Mich. 1; McLean v. McLean, 109 Mich. 258. In Convis v. Insurance Co., 127 Mich. 616, the doctrine was restated by Justice Grant as follows:
“‘When, a court of equity has jurisdiction for one purpose it may retain jurisdiction to settle all disputes relating to the same subject-matter between the parties to the suit.’ ”
See C. H. Little Co. v. L. P. Hazen Co., 185 Mich, at p. 325 et seq.
In the chancery case the materialman, the property owner and all the contractors including Mr. Tessler were properly before the court. A decree could not be made therein which would be just to the material-man without first deciding what was the contract between Mr. Tessler and Mr. Rothman. We think it must be said that Mr. Tessler has had his day in court.
Judgment is affirmed, with costs to appellee.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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] |
Steere, J.
Defendant appeals by certiorari for review and reversal of an order made by the commission of the department of labor and industry denying its application for suspension of an award of weekly compensation to plaintiff, Antonio Sauch, for injuries he sustained in an industrial accident while in defendant’s employ. On April 17, 1923, Sauch was an employee in defendant’s automobile factory and later gave notice to defendant of a claim for an accidental injury to him on that day arising out of and in the course of his employment, which he described as “Injury to' the left chest caused by hitting tree which he was putting in a lathe.” This was denied by defendant and he thereafter made application to the commission for an award of compensation for an industrial accident on that day arising out of and in the course of his employment by defendant, his claim being that the accident aggravated an ■ existing condition of tuberculosis.
Hearing was thereafter had before a deputy commissioner who, on December 1, 1923, awarded plaintiff compensation at the rate of $14 per week for a period of disability from June 25th to December 3, 1923, amounting to $322 and $14 per week thereafter during total disability. Defendant filed a claim for review before the full commission which was disallowed because not received by it within 10 days from the decision of the deputy. An application for extension of time was denied and appellant thereafter paid to plaintiff the amount awarded, continuing the weekly payments for several months, and on March 5, 1924, made application for permission to stop payment, alleging as its reason that “Applicant is not now suffering from, or is not in any way incapacitated as a result of the injury sustained while in the employ of the respondent,” which on hearing before a deputy commissioner was denied.
On March 28, 1924, appellant mailed plaintiff a registered letter directed to his last known address which was in Detroit, also a copy to his attorney, requesting him to be present at the office of Dr. W. G. Patterson, 48 Rowena street, Detroit, Michigan, on April 3, 1924, for a physical examination at appellant’s expense, under the provisions of section 19, part 2 of the workmen’s compensation act (2 Comp. Laws 1915, § 5449), which is as follows:
“Section 19. After an employee has given notice of an injury, as provided in this act, and from time to time thereafter during the continuance of his disability, he shall, if so requested by the employer, or the insurance company carrying such risk, or the commissioner of insurance, as the case may be, submit himself to an examination by a physician or surgeon authorized to practice medicine under the laws of the State, furnished and paid for by the employer, or the insurance company carrying such risk, or the commissioner of insurance, as the case may be. The employee shall have the right to have a physician provided and paid for by himself present at the examination. If he refuses to submit himself for the examination, or in any way obstructs the same, his right to compensation shall be suspended, and his compensation during the period of suspension may be forfeited. Any physician who' shall make or be present at any such examination may be required to testify under oath as to the results thereof.”
Plaintiff did not appear for physical examination at the time and place named in defendant’s letter of request, nor directly make any answer to said letter, although about that time plaintiff’s attorney told defendant’s attorney that the Federal immigration authorities had deported plaintiff to Spain, and on April 2, 1924, wrote the commission of the department of labor and industry he had been advised by the inspector of the immigration office at Detroit that plaintiff “had sailed from New York on March 22d on the S. S. ‘President Koosevelt’ bound for Barcelona, Spain.” On May 27, 1924, defendant made application to the commission for suspension of compensation based on plaintiff’s failure to present himself for examination as requested. Hearing was had on said petition June 20, 1924, before a deputy commissioner who denied the same. On appeal to the full commission the denial of the deputy was affirmed. The gist of the commission’s reasons for so ruling is indicated by the following excerpt from its return:
• “2. That had applicant left the United States of his own volition we would have placed the burden of proof upon him, but as applicant was deported we think the burden still rests upon the petitioner and respondent has been instructed as to the method of proof by letters rogatory, but has not availed itse'lf of the opportunity;
“3. That the agreement is in full force and effect until set aside or modified by competent proof.”
The only proof of any word on the subject directly received from plaintiff is a brief letter written in imperfect English from Barcelona, Spain, to his attorneys, which they received April 30, 1924, and produced at the hearing. It was apparently dated on the 17th of that month, gives his address with street and number in Barcelona, briefly tells of his arrival there and that he is a little better, mentions “payments” and asks them to send him money or check as soon as possible “because my position is not esplendid.” While there is no official proof of his deportation or the reason therefor, it was conceded by defendant’s counsel that such was the case, and the statement of plaintiff’s counsel before the commission that he was not deported for any crime, but it was found by the physicians of the immigration department within the time he was subject to deportation as being tubercular, that he manifested signs of that affliction which they inferred was present when he entered the country and he was deported for that reason was not denied.
No authorities are cited by counsel on either side. Both sbate facts urged as showing equities for their respective sides which may have been shown at the hearing but of which there is no evidence in the record beyond the fact that plaintiff was deported because his immigration was found to have been unlawful.
The record consists only of the petition for certiorari, return thereto a-nd various written exhibits with portions of the discussion between court and counsel at the time of the hearing. It shows plaintiff was legally requested by registered letter properly mailed to appear before a designated physician for physical examination at a specified time and place in compliance with the cited provision of the workmen’s compensation law. The letter was mailed to his last known address, and a copy was sent to his attorney. The place designated for the examination was in the city of Detroit, Michigan, where defendant’s factory in which he had been employed was located, where he resided when he claimed to have been injured, when he obtained an award for damages, and while there had regularly received payment pursuant to the award under the Michigan compensation law. Where or when he became a denizen of the United States does not appear, but he could not have been deported under the immigration law unless it was found by the deporting officers that the cause for which he was deported existed when he entered the country and his entry was therefore illegal.
It is not denied that his absence overseas in a foreign country and failure to comply with the request to appear for medical examination was owing to his arrest and deportation by the Federal authorities, but nevertheless he did not submit himself to any examination as requested and' thereby necessarily obstructed and prevented the same. The statute does not as it reads imply that the obstruction must be wilful. The employer’s rights under the statute would be equally obstructed or defeated whether it was or not. Conceding that he was willing to and would have appeared for examination as requested had it been possible, the underlying cause of prevention was the fact that his illegal immigration and residence in this country laid him liable to arrest and deportation by the Federal authorities.
The section involved here, requiring an employee claiming or receiving compensation for an industrial accident to submit himself “to an examination by a physician or surgeon authorized to practice medicine under the laws of this State” when properly requested by his employer or the insurance company carrying the risk, distinctly provides if he refuses to so submit himself to “or in any way obstructs” such examination his right to compensation “shall be suspended,” and his compensation during the period of suspension “may be forfeited” (italics are ours). The statute contains no exceptions or qualifying language. So far as any intimations are indicated it suggests a limit of territorial jurisdiction. It would scarcely be claimed that if defendant subsequent to the award had, for any reason, located in some foreign country and plaintiff remained here this commission would or could order suspension or forfeiture of the latter’s compensation on proof of his failure to respond to defendant’s request that he submit himself in some foreign city, where it was located, for examination there by a physician or surgeon authorized to practice medicine in Michigan. It would seem- that if any extraterritorial jurisdiction could be read into the law the rights of the parties under it should be correlative.
Little assistance is afforded by any decisions touching the subject which we are able to locate in this or other jurisdictions. A somewhat similar provision of the English compensation act (60-61 Viet, cap 37) provides, as our act apparently implies, that if the employee refuses to submit to or in any way obstructs such requested examination his right to receive weekly compensation “shall be suspended until such examination has taken place.” Construction of our act as so implying is found in Rose v. Chemical Co., 206 Mich. 294. There the employee though agreeing more than once to appear for a requested examination later offered excuses for not complying and repeatedly failed to appear, and the employer made application to the industrial accident board for an order relieving it from further payments with a general prayer for relief, which was denied. This court held that under said section 19, part 2 of the act such application suspended the employee’s right to compensation and the board should have so ordered, with the concluding suggestion that “claimant has only to give his time in order that such examination may be made.” While not directly in point upon the issue raised here that case lays down the rule that prima facie at least, such application properly verified entitles the employer to an order of suspension.
There is no machinery in our statute appropriate to the situation presented here, and nothing in its scope suggesting an intent to cover such a case. It gives the employer the right to a medical examination of the employee by a physician or surgeon authorized to practice medicine under the laws of this State, which require that he be examined and licensed by the State board of registration in Michigan. The act does not comprehend in any of its terms the possibility of the employee being absent in a foreign country. It confers upon the commission no extra-territorial powers and neither the latter nor the courts have any authority to legislate on the subject. Beginning with plaintiff’s unlawful entry into this country, circumstances developed where by reason of his absence in Spain it became impossible for the employer to have the medical examination the law entitled it to, amounting in contemplation of the statute to an obstruction of the same, and entitling defendant on the case as then presented to the order of suspension petitioned for.
The order of denial must 'be set aside, and one of suspension granted.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
The purpose of this suit is to quiet title to lands in the township of Royal Oak, Oakland county, Michigan, through the cancellation and discharge from record of a certain agreement to purchase, given by one Harry C. Stopher to defendant Veness, on February 20, 1923, and recorded December 24, 1923. The testimony tends to show that Israel Klavonsky owned the land in question and on the 20th of February, 1923, gave to Harry C. Stopher a preliminary purchase agreement of the property at a consideration of $35,000, of which $1,000 was paid on the date of the agreement, and $6,500 was to be paid on or before 90 days. On payment of the $6,500 Klavonsky was to give Stopher a land contract which should provide for the payment of the balance of the purchase price in semi-annual installments. Stopher was unable to pay the $6,500 when it became due. He arranged with the plaintiff, Hamburger, to assume the Klavonsky contract and to give him back a 60-day option on the property for $36,000, of which $9,000 was to be paid on or before July 22d, and on the payment of which Stopher was to have a reassignment of the Klavonsky contract. Stopher failed to make this payment and just before the option expired he recorded it in the office of the register of deeds. The plaintiff, Hamburger, subsequently learned that the option had been recorded. On October 9, 1923, he paid Stopher $600 for a quitclaim deed of his interest in the property, which deed he caused to be recorded on October 18, 1923. On December 24, 1923, the defendant Veness recorded an agreement to purchase this property which he claims to have received from Stopher on the 20th of February, 1923. The plaintiff then filed this bill to secure a discharge of the Veness agreement as a cloud upon his title. From a decree granting the relief prayed for in the bill, the defendant has appealed.
Assuming with some hesitation that there was a good-faith agreement between Stopher and Veness, we think the only question involved is whether the plaintiff had any notice, actual or constructive, of that agreement at the time that he acquired his interest in the property. Before the plaintiff entered into the transaction and when he received a quitclaim deed from Stopher, he caused the records to be examined, but there was nothing there showing any interest of the defendant. During, the summer of 1923, there was a large sign on the property which the defendant says was sufficient notice to put the plaintiff on inquiry as to prior interests. The sign read as follows:
“Modern Homes Building Company owners of this property will build 200 houses here.
“Harry C. Stopher, agent."
The plaintiff says that he did not see this sign, but, if he had seen it, it would have given him no information that Veness was in possession of the property or had any prior interest in it. The sign would have directed him to 'Harry C. Stopher whose interest the plaintiff knew about, and whose right to possession the plaintiff was not questioning. Stopher had, been dealing with him. He had not told him of the prior interest of Veness and there was nothing in the matter of the sign that rendered it his duty to make further inquiries of Stopher.
On the question of notice it is further claimed by the defendant that in his transaction with Stopher the plaintiff was represented by an agent, one Leonard Brown, who had notice of the prior interest of Veness and that notice to the agent is notice to the principal. When Stopher realized that he could not carry on his contract with Klavonsky he employed Leonard Brown to interest the plaintiff or some other party in the matter. Brown persuaded the plaintiff to enter the deal and for his services in doing so Stopher paid him $250. Brown was Stopher’s agent and if he had any knowledge of the Veness interest he did not communicate it to the plaintiff. The fact of the matter' is that while the transaction with the plaintiff was being carried on Stopher and Veness, who was in close touch with him throughout, carefully concealed from the plaintiff that Veness had any equity in the property. The record is rather conclusive that he had no equity. The circuit judge correctly sensed the situation and in a carefully prepared opinion expressed his views, which we quote with approval as follows:
“At the outset it seemed to me that the circumstances under which Veness claimed to have contracted to purchase the property from Stopher were, to say the least, extremely unusual. They occupied the same office and had been engaged in the business of buying land contracts. Stopher testified that he talked with Veness about taking an interest in the property even before he, Stopher, made the contract with Klavonsky. Three days before that contract was entered into Veness had given Stopher a check for $1,000 to apply upon the purchase price of the premises which Stopher had not yet acquired. Stopher used this money to make the first payment on his contract with Klavonsky. After seeing the witnesses on the stand and considering their previous experiences and relationship, it does not seem reasonable that Veness would agree to pay his office associate Stopher $7,000 profit on a parcel of land, the down payment on which had been paid with Veness’s own money. Defendant’s claim that the transaction was a bona fide sale seems all the more improbable in view of the fact that Veness gave Stopher promissory notes for the remainder of the payments due under the 'contract in question but never paid the notes nor any interest thereon, and that no proceedings were ever taken to effect a collection. Neither of the defendants were in a position to make the down payment of $6,500 called for by Klavonsky’s contract. Veness knew that the contract from Klavonsky ran to plaintiff and that his vendor, Stopher, had only a 60-day option to purchase the property, yet even after being informed that Stopher had given plaintiff a quitclaim deed took no steps to assert the interest which he now claims in the property. He paid_ no taxes and made no attempt to notify plaintiff of his claimed interest in the premises until after Stopher had ex tracted $600 from plaintiff for the quitclaim deed. Shortly thereafter Veness followed Stopher’s example and recorded his agreement for the purchase of the property. If Veness had actually intended to claim any interest in the property I cannot conceive why he should remain silent for nearly one year with full knowledge that his vendor, Stopher, had conveyed all of his interest in the property to plaintiff and was not in a position to fulfill the agreement. Possibly the increase in value of the premises now has something to do with his belated claim.”
A decree will be entered in this court granting the relief prayed for in the bill. The plaintiff will have costs.
Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Wiest, J., concurred in the result. | [
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] |
Steere, J.
This case originated in the justices’ courts for the city of Detroit, where plaintiffs recovered a judgment for $50 and costs against defendant. The amount of that judgment represented a charge for professional services claimed to have been rendered by one of plaintiffs to the defendant with reference to cumulative voting at a stockholders’ meeting of a corporation in which defendant was interested. Mr. Adolph Sloman. testified that in the latter part of December and the early part of January the defendant consulted him on about three occasions, and that upon the first occasion defendant told him there was likely to be some difficulty in an endeavor to freeze him out of his holdings—
“and we just talked of the matter informally at the time, and I suggested to him the advisability of transferring some of his shares of stock to some friends of his, so as to have a number there when the meeting was finally held.”
Testifying further, this witness said:
“On one occasion he kept me there from 12 o’clock noon until 2 o’clock, in the afternoon, discussing that, and figuring out various combinations he could make under the cumulative voting law.”
Defendant testified that, having business in the Penobscott Building:
“As I was coming out of there, I happened to think I would ask the question if I wasn’t right, if there were five directors and he held ten shares of stock, if he could not vote five times that number of shares for any director, or split it up five different ways, ten apiece for five directors. I stepped into Mr. Sloman’s office — it was about 11 or 11:30 — and Mr. Adolph Sloman was in the office alone. I asked him if that was correct, I said, T thought I would stop in to ask you’ —he said, T am not sure, I will look it up,’ but, having had previous experience, I said: ‘Never mind. I think I am right.’ He said: ‘Wait a minute, I will get the book.’ I said, ‘It doesn’t make any difference.’ He got the book, and I went over where I was sure I could get advice, to Mr. James Oxtoby, and Mr. Oxtoby told me what I wanted to know.”
Defendant further testified that he did not remain fin plaintiff’s office to exceed five minutes.
A verdict having been rendered in favor of defendant, plaintiffs now review the case in this court. There are five assignments of error, all relating to the charge of the court. The charge is short and in the course of it the following occurs: •
“I charge you that if the defendant did consult Mr. Sloman in relation to his interest in the Acme Chemical Company, as stated, and you find for the plaintiff, your verdict will be for the sum of $50, with interest.”
Taken as a whole, we are of opinion that the charge fairly presented to the jury the one controverted question of fact, i. e., whether the defendant consulted plaintiffs, and as a result of such consultation received the advice for which the bill was rendered.
The judgment is affirmed.
Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred. | [
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Per Curiam.
While this proceeding has been held not to be strictly a criminal prosecution, still the punishment is severe and highly penal. The charges ought to be clearly sustained. To quote the language of this court in a similar proceeding, we “are not satisfied that the evidence gives such clear support to the charges as should be required in such cases.” In re Baluss, 28 Mich. 507.
An order will therefore be entered denying the application. | [
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Hooker, J.
Sloman was the owner of certain lots in the city of Detroit, which were assessed as “lots numbered 3, 4, 35 [and many others, whose numbers were given] of the P. & P. M. subdivision of part of N. E. £ of fractional section 17, T. 2 S., R. 11 E., lying south of and adjoining Chicago road, according to plat thereof, township of Springwells, county of Wayne, and State of Michigan.” The recorded plat of which these lots are a portion is the “E. & P. M. Park subdivision of part of fractional section 17, T. 2 S., R. 11 E.,” as appears from the return. These lots were sold for the taxes of 1893. Subsequently they were sold and deeded by the auditor general to Jackson. This occurred on March 20, 1897. On. his attention being called to the discrepancy between the description in the deeds and that of the plat, by the county treasurer, who requested a cancellation of the deeds to Jackson, the auditor general wrote a letter to the county treasurer, saying that the records in his department showed that the land had been sold and deeded, and that it did not seem that there was a material difference in the way it was returned and the recorded plat. On being informed of this letter, Sloman wrote to the auditor general, under date of March 22, 1897, whereupon the auditor general determined that the descriptions were erroneous, and issued certificates of error, and notified Jackson of the facts; offering to return the purchase price.
We are cited to section 25 of Act No. 206 of the Public Acts of 1893 for the requirements of the law.in the matter of description of land in assessment rolls and other tax proceedings. Subdivision 4 of said section permits description of city property by reference to the plat thereof, and by the number of the lot. Subdivision 6 provides that “lands may be designated by any description by which they may be known.” So far as appears from this record,, the description under consideration complies with neither of these provisions; and if it be said that the description is one that is sufficiently definite to afford means of ascertaining the lands intended, and therefore good as between private parties, it may be replied 'that we cannot know this from the record, which expressly shows that no evidence was offered upon the subject. We should, however, note a distinction between cases upon conveyances between private persons, arising out of a sale and intentional transfer, and those where title is sought to be divested through tax proceedings. The requirements as to the description in tax proceedings are not only aimed at securing an identification of the property that will be certain, but are designed to afford notice to the owner that proceedings affecting his property are pending. The description should therefore be such as not to mislead him, if it departs from strict accuracy as stated by statutory rules. This was indicated in the recent case of Auditor General v. Sparrow, 116 Mich. 574. Mr. Black, in his treatise on Tax Titles, at page 141 (§ 112), says:
“Again, the opinion has been advanced that a description which would be sufficient in a conveyance of land between individuals will be sufficient in a tax assessment, and that it is in accordance with the requirement of certainty if it is capable of being rendered certain; parol evidence being admissible in aid of identification. But, as Judge Cooley very justly observes, ‘it is possible for cases to arise in which such a criterion would be an unsafe one to apply. In a deed which one executes for the purpose of conveying a particular description of land, if errors •of description occur they may well be rejected, and the deed sustained, if, after rejecting them, a sufficient description remains to identify the land intended, because the erroneous- circumstances which yrere added could not have misled the party conveying, who all the time had in mind a particular parcel which the erroneous particulars did not fit. But the same errors in a description prepared by another might very likely mislead the owner, who would be informed of no error, and who must, from the description alone, discover what land was intended. The same may be said of any imperfection in the description. The owner, if it has been prepared by himself, will read it in connection with his own knowledge of those surrounding circumstances in the light of which he has framed it; but an equally imperfect description, prepared by another, and unaccompanied by any such circumstances, would fail to convey to his mind any idea that his own land was intended. It certainly would be much less likely to do so than where he himself had formulated it.’” Cooley, Tax’n, 404.
Again, in Jones v. Pelham, 84 Ala. 208, it was saidr
“In a conveyance between individuals, where the purpose is to explain and give operation to the intention of the parties, certainty may be imparted to the deed by parol evidence that the particular land was designated, and that the grantee was put into possession. But this rule does not apply to tax titles, with which the owner has nothing to do, and there being no intention to which operation can be given. The assessment is the foundation of all subsequent proceedings, and, in order to impart certainty and validity to them, the description of the land in the assessment must be sufficiently definite and certain as not to require resort to extrinsic proof of the character above mentioned.”
See, also, People v. Mahoney, 55 Cal. 286.
We are aware that there is great diversity of opinion upon this subject, the decisions of some of the States being very strict, and others liberal, in their constructions of statutes prescribing the descriptions in tax proceedings; but in our opinion the rule stated above is a reasonable one, and the action of the auditor general was fully warranted, under the facts stated.
The proceedings are affirmed, with costs.
The other Justices concurred. | [
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Bronson, J.
This action is brought by A. John Falkner, Jr. against his father, A. John Falkner, Sr., and his brother, 0. George Falkner, seeking a one-third interest in certain lands and personal property and for an accounting arising out of an alleged partnership. The plaintiff further seeks a cancellation of certain warranty deeds. The essence of this suit basically is that plaintiff claimed and defendants denied that a partnership existed between A. John Falkner, Sr. and the plaintiff from 1946 until 1953 and that in 1953 a subsequent new partnership was formed including 0. George Falkner, which new partnership lasted until 1961 and terminated with the retirement of John, Sr. From a partial judgment for plaintiff in the trial court below, defendants appeal.
The property in question is:
1. An 87-acre farm purchased by A. John Falkner, Sr. in 1933 and now used for growing strawberries.
2. A 40-acre parcel purchased in 1945 in the name of Robert Falkner which was later conveyed to A. John Falkner, Sr.
3. A 51-acre parcel purchased in 1946 in the names of A. John Falkner, Sr. and A. John Falkner, Jr. as tenants in common.
4. A 78-acre parcel purchased in 1951 in the names of A. John Falkner, Sr. and Jennie Falkner, husband and wife.
5. A 56-acre parcel purchased in 1965 in the names of 0. George Falkner and A. John Falkner, Jr. as joint tenants with rights of survivorship.
6. Personal property worth $67,000 and cash-on-hand of $137,000.
The evidence presented below was that John, Jr. had taken over active management of the farm in 1945 and contributed as active manager to 1965 or 1966. 0. George Falkner began working on the farm in 1951 and worked up until the present suit.
Copies of inclusive income tax returns for the years in question of plaintiff and defendants were put into evidence. However, A. John Falkner, Jr.’s returns for the years before 1953 and for the 1964 to 1965 were not produced. Partnership returns were filed for the years 1953 to 1963 and business activity returns were filed from 1954 to 1963. All returns apparently were prepared by John, Jr.
No records of the farming operation were kept by A. John Falkner, Sr. and John, Jr. handled whatever accounts were kept after 1946. The funds derived from all farming operations were not divided but were kept in a “common pot” from which both parents and the children withdrew money as they needed it. No records were kept of these withdrawals.
Except for the filing of partnership tax returns, the only evidence presented by the plaintiff alleging the existence of a partnership came from his own testimony. He testified that his father in 1946 had said they would be “partners” and at other times referred to a partnership. Plaintiff also testified that no discussion of the partnership was had with either his brother Robert or sister (Anne Bohle) nor-with any third parties. Plaintiff also admitted that he contributed no capital and that no certificate of partnership was ever filed.
A. John Falkner, Sr. testified that he made no statements to John, Jr. concerning a partnership. It was his belief that John, Jr. and George managed the farm, with plaintiff being the business manager. The testimony of Jennie Falkner, 0. George Falkner, Robert Falkner, and Anne Bohle substantially supported that of the father.
In 1965 A. John Falkner, Sr. conveyed by warranty deed all the real estate in question to 0. George Falkner, and subsequently this action was brought. The trial court found that no partnership existed between 1946 and 1953, hut that at most there was sort of an “implied joint venture” existing between the parties from 1953-1965 to raise strawberries. The tangible property and real estate were found to belong to A. John Falkner, Sr. with no intention that it vest in any partnership.
The judge found that the agreement called for the parties to withdraw from the “common pot” that which they needed for living expenses and that title to the real estate should vest as stated in the deeds. The money left in the common pot accordingly was ordered divided by the parties equally.
As to a home built by plaintiff personally on one parcel the judge felt that the parties contemplated that it belonged to the plaintiff and he was so awarded it.
The trial court, in an opinion entered August 27, 1968, divided the property in the following way:
“Judgment may enter in this cause confirming title to the real estate involved in the title holders of record as of September 30, 1965; confirming title to the machinery and farming equipment and personal property in A. J. Falkner, Sr., as of September 30, 1965; confirming title to the automobiles in the possession of the parties to the respective possessors thereof; setting off and confirming title in the residence property occupied by plaintiff as a home to plaintiff; and dividing the cash accumulation, which at the commencement of suit was $137,469, equally among A. J. Falkner, Sr., A. J. Falkner, Jr., and 0. George Falkner.”
The trial court, in a judgment entered May 20, 1969, ordered:
“It is hereby ordered that title to the following described real property is hereby confirmed in the names of the title holders of record, as indicated, as of September 30, 1965, to wit:
“Parcel No. 1. Township of Keeler, County of Van Burén, State of Michigan, to wit: Commencing at the Southeast corner of Sec. 10, Town 4 South, Range 16 West, according to the Government Survey thereof, thence North on the East line of said Section, 952.8 feet to the center of the East and West Highway, thence Westerly on same to the North and South eighth line in the Southwest Quarter of said Section 10, thence South on same 957.9 feet to the South Section line, thence East on same to beginning, according to a survey made by T. A. Smith, County Surveyor, December 9, 1933, in the names of A. John Falkner, Sr. and Jennie Falkner, husband and wife.
“Parcel No. 2. Township of Hartford, County of Van Burén, State of Michigan, to wit: That part of the East Half of the Northeast fractional Quarter of Sec. 15, Town 3 South, Range 16 West, according to the Government Survey thereof, lying Northerly of the center line of the road now known as Highway U.S. 12 (except the right of way with the Pere Marquette Railroad, now known as the Chesapeake and Ohio Railroad) in the names of A. John Falkner, Sr., and Jennie Falkner, husband and wife.
“Parcel No. 3. Township of Hartford, County of Van Burén, State of Michigan, to wit: The West Half of the Northeast Quarter of Sec. 15, Town 3 South, Range 16 West, in the names of A. John Falkner, Jr. and 0. George Falkner, as joint tenants with full rights of survivorship.
“It is further ordered that the title to the machinery, farming equipment and personal property used in the connection with the operation of the Falkner Strawberry Farms is hereby confirmed in the name of A. John Falkner, Sr., as of September 30, 1965.
“It is further ordered that title to the automobiles is hereby confirmed in the names of those parties in possession thereof.
“It is further ordered that title to the following described parcel of real property in the Township of Hartford, said County and State, to wit:
“Beginning in the center line of Red Arrow Highway 291.0 feet North 86 degrees 30 minutes East from where it intersects the North and South eighth line of the Northeast Fractional Quarter of Sec. 15, Town 3 South, Range 16 West, and running thence North parallel to said eighth line 325.06 feet, thence North 86 degrees 30 minutes East 135.88 feet, thence South parallel with said eighth line 325.06 feet, thence South 86 degrees 30 minutes West 135.88 feet to beginning, is hereby confirmed in the name of A. J. Falkner, Jr.
“It is further ordered that the sum of $88,899.00, plus accumulated interest, and less the expenses of Receivership, shall be divided among the parties.
“It is further determined that the Defendant A. John Falkner, Sr. had no cash capital investment as of January 1, 1953, for which he should now be reimbursed, over and above the interests herein granted.
“It is further determined that no accounting will be required from any of the parties as to withdrawals from the general assets up to the time of the commencement of this suit, it hereby being determined that such withdrawals were the compensation of the respective parties according to their implied agreement.”
. The defendants in the action below, being unsatisfied, bring this appeal.
The position of appellants is that no evidence of the existence of a partnership was presented, save the testimony of John, Jr. that his father told him there would be a partnership. Appellants contend that John, Jr., like his brother George, was an em ployee of A. John Falkner, Sr. and that this is supported by the evidence. Therefore, appellants agree with that portion of the lower court’s opinion finding no partnership or joint venture before 1953.
Appellants object, however, to that portion of the court’s finding which allows the real estate to stay with the persons whose names appear on the deed. It is argued by appellants that this is inconsistent with the trial judge’s earlier finding that there was no intention that any real estate vest in anyone other than A. John Falkner, Sr. Appellants feel that the 56-acre farm, although purchased in John, Jr.’s and George’s names, was. intended to go to A. John Falkner, Sr. and that that portion of the trial court’s finding should be reversed.
Appellants also object to the awarding of the residence home to John, Jr. because no evidence was produced as to the intention of the parties regarding it. Again citing the inconsistency of the court’s opinion in stating that all real estate should go to A. John Falkner, Sr., appellants contend that the court has in effect built John, Jr. a home and that it should have done the same for George.
Appellants further contend that even conceding that there was a joint venture from 1953 to 1965, the court improperly divided the cash in the “common pot”. The evidence shows that cash on hand at the beginning of the venture was at least $23,000 and that this was a capital investment which should be returned to the defendant father before the excess is divided.
It is further contended by appellants that if ■ a partnership or joint venture were found to exist after 1953 the partners are entitled to an equal share of the accumulated profits before any drawings for living expenses and not an equal share of what was left after the drawings, as the court below found.
Appellants finally allege that if a partnership or joint venture were found to exist between 1953 and 1965, the defendants as partners are entitled to an accounting.
Plaintiff contends that the trial judge found that a joint venture arose by implication from the parties’ “conduct and acts” and this finding was proper under the law. Plaintiff argues that the cases hold that the courts can determine that a partnership existed without holding that there was a formal agreement of any kind. There was, plaintiff asserts, an informal agreement between the parties which was something more than an employer-employee relationship.
With regard to the award of plaintiff’s residence to him, plaintiff submits that the trial judge was correct when he found that the parties intended it to be plaintiff’s home. They helped him build it and made no objection to his withdrawing money for its construction, thus evidencing the intent that it belonged to the plaintiff.
Plaintiff also argues that it was not inconsistent nor error for the court below to award the 56-acre farm to the parties whose name appears on the deed, thus giving plaintiff an interest in it. There was testimony that the money for purchase of the property came from a savings account in John, Jr.’s and defendant’s names. Additionally, plaintiff points out that the parties made no objection to title being in those names at the date of the acquisition, thus evidencing* an intent that they go to those parties on the deed.
As to the division of the cash on hand, plaintiff submits that the trial judge was correct in simply dividing it three ways because it would be impossible at this date to determine how much each took out. The fact that plaintiff may have drawn more than defendants for family needs is also not unusual in view of the size of his family.
In view of the finding that no partnership existed between 1946 and 1953, which decision no party complains of, it is only necessary that this Court determine whether there is enough evidence to support the awards made by the court below based on his finding that a joint venture existed between the parties after 1953.
The situation with which the trial judge was faced was a difficult one. The most frequent test as to whether a partnership exists is the parties’ intention, Barnes v. Barnes (1959), 355 Mich 458; Lobato v. Paulino (1943), 304 Mich 668; Canton Bridge Co. v. City of Eaton Rapids (1895), 107 Mich 613, but the parties to this action did practically nothing during the dates in question to indicate what their intentions were. Consequently, the court had to make a determination of whether the plaintiff was anything more than an employee of his father and the question facing this Court is whether the trial judge’s decision, based on the evidence before him, was erroneous.
For purposes of this discussion no distinction need be made between a joint venture and a partnership as that distinction is not controlling. Winshall v. Winshall (1945), 311 Mich 647, 652.
In Annotation (1942), 137 ALR 6, the question of distinguishing between partnerships and employment situations is dealt with in depth. Citing Beecham v. Dodd (Del, 1842), 3 Harr 485, the annotation states that whether a partnership exists is “a question of fact.” It then goes on to list several of the criteria to which the courts look in answering the question and an analysis of the facts of that case as related to some of the criteria set out in that annotation may be helpful. (The criteria set out in the annotation are supported by several Michigan cases as indicated, infra.)
In 137 ALR at 33 it is stated that the sharing of profits or losses is indicative of a partnership and lack of an agreement to so share is evidence of an employment relationship. In Michigan, while not conclusive, sharing of profits is prima facie evidence of a partnership. Lobato v. Paulino, supra. See, also, Klein v. Kirschbaum (1927), 240 Mich 368. In the instant case the money earned between 1953 and 1965 was kept in a “common pot” for each party to withdraw funds as needed. No mention was made as to a sharing of losses; and whether these withdrawals were to be considered a sharing of profits or wages cannot be determined from the evidence presented. Seemingly the parties gave no thought whatsoever to the matter and therefore the determination by the trial judge in this regard, based on the parties’ conduct and acts as he saw them, was not erroneous.
An additional basis mentioned at 137 ALR at 64 is that if a party rendering services has rights of management, that is indicia of a partnership. Runo v. Rothschild (1922), 219 Mich 560, 563. It seems clear that the plaintiff in this action had rights of management especially in view of the fact that he kept all accounts, made out all tax forms, and was able to build a house out of common funds. The defendant also testified to the effect that he looked upon John, Jr. as the business manager.
At 137 ALR 86 it is pointed out that the use of the term “partner” may be given some weight. While the defendants deny that this term was ever used, the judge as the finder of fact could believe the plaintiff’s version of conversations and thus could consider the alleged use of the term in arriving at his decision.
The strongest evidence in support of that decision is the fact that partnership returns were filed for the years 1953 through 1965. This indicates some intention that a partnership existed and was entitled to he considered by the trial judge. See 137 ALR at 93.
There also is evidence against the conclusion that a partnership existed. For example, absent the finding that a partnership existed before 1953, plaintiff had no capital investment in this venture and this indicates an employment relationship. 137 ALR at 47. Canton Bridge Co. v. City of Eaton Rapids (1895), 107 Mich 613. In addition, there is little evidence, save the fact that the name “A. John Falkner and Sons” appeared on checks, that strangers to the action believed they were dealing with a partnership. 137 ALR at 79. The fact that neither Robert Falkner nor Anne Bohle believed that a partnership existed is also entitled to some weight.
The Michigan rule on whether a relationship is one of employment or partnership is simply that a determination is dependent on “the circumstances of the relationship during the period of their association.” Moore v. DuBard (1947), 318 Mich 578. The burden of proving whether such a relationship was more than employment is on the plaintiff, Klein v. Kirschbaum, supra, and because this action was between relatives even stricter proof is required. Cole v. Cole (1939), 289 Mich 202; Block v. Schmidt (1941), 296 Mich 610.
Faced with these difficult and somewhat ambiguous tests and the quagmire of evidence and exhibits, the trial judge attempted to make what he considered an equitable settlement.
There is evidence to support the fact that the residence of plaintiff was intended to belong to him. Also in view of the fact that title was taken in George’s and John, Jr.’s names regarding the 56-acre parcel, a decision holding that it was intended to be shared by them was not improper. As to the money left in the “common pot”, in view of conflicting testimony as to withdrawals, etc., during the years in question the decision of the trial judge to divide that item equally was not clearly erroneous.
With reference to whether the judge should have allowed an accounting, the case of Fitzsimons v. Foley (1890), 80 Mich 518, 524, speaks directly to this situation:
“* * * As all of the members of the firm of Foley Bros. & Co. swear that they never attempted to keep accurate accounts between themselves, and as it is evident that a just accounting could not now be had between them of nearly 25 years of business, a business carried on, as between themselves, with no written accounts, and the evidence of their dealings therefor resting in parol, we think the safest and most equitable course is to leave the copartners of this firm as they left themselves at the practical dissolution of the firm, in 1885. Each one seems to have kept what he had drawn out without question or protest from the others.”
The parties to this action, as relatives, dealt with each other in a casual way never thinking nor caring about the future legal consequences of their actions. Consequently, they kept inaccurate and sometimes no records, leaving the trail of evidence difficult to trace. Therefore, since no legal questions were presented, but only a question of fact as to whether a partnership existed, it is our opinion that the trial judge’s finding in that regard was not against the great weight of the evidence and should be affirmed with, the one correction that the $23,000 originally put up by A. John Falkner, Sr. he returned to him prior to the balance of the cash on hand being divided equally.
Affirmed.
All concurred. | [
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Moore, J.
The plaintiff recovered a judgment for $260 damages against David Fox, a constable, and the other two defendants, who were on the constable’s bond, for the taking from him of a piano which he claims to own. The defendants appeal.
A motion was made before the trial court for a new trial, which motion was overruled. This is said to be error. No such showing was made upon this motion as would justify us in directing the trial judge to grant a new trial.
It was the claim of the plaintiff that November 28, 1894, he loaned William Coulter $260, at which time he took a bill of sale of some property, among which was the piano in question, which was erroneously described as one piano, Haines Bros.’ make, when it should have been described as an Everett piano. He further claims that between the 25th of March and April 1, 1895, he arranged with Mr. Coulter that the piano was to become his for the debt; that together they went to the Detroit Music Company, and arranged for them to send a man for the piano, to polish it up, and to then deliver it to plaintiff; and that prior to the 11th of April, 1895, it was obtained by the music company, who, after polishing it, delivered it to plaintiff at his house May 2, 1895, where it remained until March, 1896, when it was taken away by Mr. Eox by virtue of a writ of replevin at the suit of H. B. McNeil against William E. Coulter and Mary Coulter. It is the claim that, before bringing this suit, plaintiff attempted to replevin the piano, but was unable to find it. It is the claim of the defendants that October 16, 1894, Mr. Coulter gave a chattel mortgage for $105 to Mr. Mackey upon the piano in question, correctly describing it, which mortgage was filed the following day; that April 11, 1895, H. B. McNeil let Coulter have money to pay the Mackey mortgage, the piano then being in the possession of Coulter, and on the same day took a chattel mortgage on the piano and other property for $210. As the mortgage was not paid, and Coulter had parted with the possession of the property, the replevin suit before mentioned was commenced. It is the claim of plaintiff that, when the last mortgage was made, the piano had been delivered to the Detroit Music Company for him. The defendants insist the piano was then in the possession of Mr. Coulter. The trial court instructed the jury that, if possession of the property was delivered to the Detroit Music Company, their possession would be the possession of Mr. Gregg, and, if he purchased in good faith, without any notice of the chattel mortgage or claim on the part of McNeil, he would be protected; but if he was not a bona fide purchaser, or if the chattel mortgage was on file when he purchased the property, he took it subject to the rights of Mr. McNeil under the mortgage. It is now said the circuit judge should have directed a verdict in favor of defendants, because there was no proof that the property was in possession of the music company prior to April 11th, and his failure to do so is alleged as error. The court was not requested to direct a verdict in favor of defendants, and, if he had been, he should not have done so upon this branch of the case, for there was testimony tending to show the piano was delivered to the Detroit Music Company prior to April 11th. This raised a question of fact to be submitted to the jury.
But one other question remains for discussion. Defendants insist because, when the last mortgage was given, the money was paid to take up the mortgage given to Mr. Mackey, McNeil was subrogated to the rights of Mr. Mackey, and, as the Mackey mortgage was duly filed, he had a lien upon the piano to that extent. The plaintiff says this claim is now presented for the first time. Defendants presented a request reading as-follows: “If Mr. McNeil paid $200 on the request of the mortgagor for any previous claim due upon the piano, then Mr. McNeil will have a valid claim against the mortgagor for the amount paid;” and insist they raised the question in the court below. We do not discover anything in this request which indicates to the court that defendants claimed to be subrogated to the rights of Mr. Mackey. At the time Mr. McNeil took the mortgage, he did not take an assignment of the Mackey mortgage. No affidavit of renewal was filed of this mortgage prior to the expiration of the year after it was given. The entire amount of the money loaned to Mr. Coulter was named in the last mortgage, and there is nothing in the record to indicate to the court that Mr. McNeil was claiming at the time of the trial any rights growing o'ut of the Mackey mortgage. We think it too late to make that claim now.
Judgment is affirmed.
The other Justices concurred. | [
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Ostrander, J.
The defendant Novelty Leather Works is a Michigan corporation. Defendants Collins and Bennett are two of the three directors of said corporation, and, respectively, president and treasurer thereof.
The case made by the declaration and by plaintiff’s proofs is that, having himself invented something supposed to be patentable, and which the commissioner of patents later determined was patentable, having confidentially explained and exhibited the invention to defendant Collins, and having made an oral agreement with the defendant Novelty Leather Works, through defendant Collins, by the terms of which it was to bear the expenses of procuring a patent ior the invention, to be granted to plaintiff, to handle the patentable device and patent rights and pay plaintiff 25 per cent, of the receipts on all business done on said device by the Novelty Leather Works, “in consideration of plaintiff allowing the Novelty Leather Works to manufacture and sell said device and to secure contracts for licensing the use of said device,” which agreement Collins promised to have reduced to writing, but did not, the defendants conspired together, entered into a scheme, and contrived to deprive plaintiff of the fruits of his said invention and agreement, by causing a patent for said invention unlawfully to be applied for by, and to be granted to, defendant Collins as inventor, denying before and after the granting of the patent, but. after the said agreement had been entered into, that plaintiff was inventor or had any interest in said invention. Considerable sums of money have been and will be received by defendants, or some of them, on account of sales and licenses to use said invention, and plaintiff is denied any interest therein. Seeking a remedy, plaintiff brought this action, not in assumpsit for the portion of the moneys accruing to him under the terms of his said agreement, but an action on'the case; his claim for damages being broad enough to cover any and all damages growing out of the alleged wrong. He alleges the duty of defendants—
“in view of their relations with each other and in view of each of their agreements and relations with plaintiff in their dealings with said invention, to apply in plaintiff’s name for a patent on plaintiff’s said invention, to take up the sale of said device and license for the use of same, and to pay plaintiff 25 .per cent, of the receipts on such sale of any and all licenses, and on sale of any and all of said devices.”
Negativing the performance of these duties, he alleges as a result that the 25 per cent, of the business transacted has been lost to him, plaintiff has been deprived of the legal title of said invention, and will be put to great loss and expense in the assertion of his rights to said invention and the profitable transaction of business on said device, and will sustain in the future great loss and damage.
“The case at bar (I quote from the brief for the. plaintiff) was a suit for conspiracy based on the damage for breach of contract. It called for a remedy to cover loss of profits. It was not in affirmance of the contract. His [plaintiff’s] suit has as a basis an agreement of defendants to pay him for the use of his invention. This is a matter of cognizance under the common law.”
And quoting from his reply brief:
“The measure of the damage resulting from the conspiracy must be, not the value of the patent (which matter was never submitted to the jury), but the value of the contract given plaintiff. This was the rule of damages given by the court.”
It is not alleged in the declaration, but was proved at the trial, that plaintiff was informed before a patent was granted that Collins had applied for one, and, after the patent had been granted to defendant Collins, plaintiff intervened in the patent office for the purpose of having himself declared to be the original inventor. The precise extent to which his contention was pressed does not appear, beyond this, that he took no appeal from the ruling of the commissioner of patents, and, it is inferred, made no considerable contest before the commissioner. It is also inferable that want of necessary funds was one reason for not further contesting. The determination was adverse to him. He did not appeal from or seek to review or under the Federal law to set aside the determination.
Plaintiff had judgment against all of the defendants; the damages recoverable being confined to the portion of the moneys received and likely to be received by defendants on account of the said device and invention secured to plaintiff by the terms of his alleged agreement. This judgment the defendants, appellants, ask to have set aside for the reason principally that the court was without jurisdiction to adjudicate the controversy:
“(a) Because the matter at the bottom of the controversy, Viz., the validity of the Collins patent, had been decided against the plaintiff in the United States patent office.
“(b) Because the case is one essentially arising under the laws of the United States.
“(2) The charge of the court as to the validity of the Collins patent was self-contradictory.
“(3) In any event the court erred in his instructions as to damages, and allowed, on the theory adopted by the jury under the charge, excessive damages for royalties received under a void patent, and, further, in an action for fraud, laid down a rule of damages applicable only to an action for breach of contract.
“ (4) The court erred in various rulings on the admissibility of evidence which was purely hearsay.
“(5) The court omitted to give various requests to charge under the general theory adopted by him which appellants were entitled to have given.
“ (6) The court gave various instructions in his general charge which were erroneous and prejudicial to the defendants and appellants.”
Patent rights come from the United States, and the Federal statutes provide the ‘ method, and the only method, of obtaining a patent. Prior invention and prior rights to a patent applied for by any person are in the first instance determinable in the patent office. An appeal lies from the decision of the commissioner of patents, and, finally, the Federal courts have jurisdiction, upon a bill in equity filed for that purpose, to determine whether a patent should have beeh granted to one rather than another claiming to be the original inventor. And the court may by its decree cancel a patent which has been granted and order the patent to be granted to another. By the Constitution of the United States exclusive jurisdiction is given to the circuit courts of the United States of all suits at law or in equity arising under the patent or copyright laws. All questions which concern the infringement or validity of, and title to, patents granted under the patent laws must be litigated in the circuit courts of the United States.
But it is settled:
“That where a suit is brought on a contract, of which a patent is the subject-matter, either to enforce such contract or to annul it, the case arises on the contract or out of the contract, and not under the patent laws.”
A considerable review of the Federal decisions supporting this proposition will be found in Atherton Ma chine Co. v. Atwood-Morrison Co., 102 Fed. 949 (43 C. C. A. 72), and in Pratt v. Gaslight & Coke Co., 168 U. S. 255 (18 Sup. Ct. 62), reference is made to many decisions of Federal and State courts which are to the same effect. In the case' last mentioned it is said that the principle is well established that any defense which goes to the validity of a patent is available in the State courts, as that the patent is void because the invention was well known before, or because it is useless or immoral, or because it is an infringement upon other prior patents, and it is no objection to the jurisdiction of the State court that the question of validity may involve the examination of conflicting patents or the testimony of experts. The cases referred to, however, and those to which the principle applies, are cases in which the suit was to recover agreed upon royalties, or licenses, or where a subsisting contract was shown governing the rights of the parties in the use of an invention. For example, in a suit upon a note given for a patent right it may be shown that consideration wholly^ failed because the patent is void.
The law is well stated by Judge Sharswood in Henry T. Slemmer’s Appeal, 58 Pa. 155, 163, 164 (98 Am. Dec. 255), as follows:
“But, though patent rights are peculiarly within the jurisdiction of the courts of the United States, yet it is undoubtedly true that, when they come in question collaterally, their validity may become a subject of inquiry in the State courts. Thus in a suit upon a promissory note, if it is set up as a defense that the consideration was the sale of a patent right, and that the patent is void, so that there was in fact no consideration, the State courts constantly exercise jurisdiction. Bliss v. Negus, 8 Mass. 46; Cross v. Huntly, 13 Wend. [N. Y.] 385; Rich v. Atwater, 16 Conn. 414; Burr v. Gregory, 2 Paine (C. C.), 429 [Fed. Cas. No. 2,191] ; Rheem, v. Holliday, 4 Harris [16 Pa.], 347. The jurisdiction is not defeated because the subject-matter of the action concerns the use of a patent right, so long as the question of the validity of the patent is not necessarily involved, but arises only incidentally and by way of defense: Sherman v. Transportation Co., 31 Vt. 162; Tomlinson v. Ballet, Law’s Dig. 229. Accordingly the courts of the United States refuse to take cognizance of cases between citizens of the State where they involve, not the infringement of the patent, but controversies growing out of contracts of which it is merely the subject-matter: Goodyear v. Day, 1 Blatchf. 565 [Fed. Cas. No. 5,568]; Burr v. Gregory, 2 Paine, 436 [Fed. Cas. No. 2,191] ; Brooks v. Stotley, 3 McLean, 523 [Fed. Cas. No. 1,962]. The result of the authorities, then, appears to be that the State courts are competent, either at law or in equity, to enforce a contract or a trust, of which a patent right is the subject-matter, where the validity of the patent is not directly in question, and even to pass on that when it arises ex necessitate, as by way of defense in an action on a contract.”
See, also, Excelsior Wooden Pipe Co. v. Bridge Co., 185 U. S. 282 (22 Sup. Ct. 681).
A patent is everywhere prima facie evidence that the grantee was the inventor of the patented device, with the exclusive right to make, sell, and use it. Smith v. Vulcanite Co., 93 U. S. 486; Lehnbeuter v. Holthaus, 105 U. S. 94; Morgan v. Daniels, 153 U. S. 120 (14 Sup. Ct. 772); Kennedy v. Hazelton, 128 U. S. 667, 672 (9 Sup. Ct. 202). In Margan v. Daniels the complainant filed his bill in equity under the provisions of section 4915 of the Revised Statutes of the United States (U. S. Comp. St. 1913, § 9460), charging that he was the original, sole, and first inventor of. a patentable device, filed his application for a patent therefor, and was met by an interference application filed by defendant, to whom, after a hearing, a patent was granted. He prayed that he might be declared to be the original inventor and have a patent issued to him. It is pointed out in the opinion that the case was not one of an appeal from the decision of the commissioner of patents, but an application to set aside the action of one of the executive departments of the government. And it was said, with respect to the burden which in such cases the complainant must carry, that upon principle and authority it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon the question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.
It is essential to the validity of a patent that it be granted on the application, supported by the oath, of the original and first inventor. Kennedy v. Hazelton, supra.
Let us now examine more particularly the case presented by the plaintiff. It is not an action brought to enforce a contract, nor one growing out of a contract. I am assuming for the purposes of this case that A. might agree to pay B. a portion or percentage of whatever he (A.) received for the use of B.’s idea, design, or device, whether it was or was not patentable, and the contract would be enforceable. Only one of the defendants is alleged to be, or to have been, a party to any contract. Two of the defendants are strangers to the alleged contract. The making of a contract is alleged and the nonperformance of it. Loss of that which performance of the contract would have brought to plaintiff is at least inferentially alleged, and is a part of the damages sought to be recovered. Defendants are not liable to plaintiff in this action for breach of contract, nor can their liability be measured by the terms of the alleged contract. It is an action for damages based upon a wrong committed by all of the defendants. What is alleged is that by their fraudulent conduct defendants have robbed plaintiff of the thing upon which the alleged contract was based, the thing which represented the consideration for the agreement of the Novelty Leather Works. The patent, until it is held to be void, is an answer to every essential allegation upon which plaintiff’s rights are» made to depend. The patentee’s rights are directly assailed, and plaintiff’s right to maintain the suit made to depend upon a determination that the patent is void. If it is valid, the wrong has not been committed, nor the injuries sustained. It is not void, and is not claimed to be void, because of any contractual relations of the parties, but because plaintiff, and not Collins, is the original and first inventor. The vital question submitted to the jury was: Who was the first, the original, inventor, Collins or the plaintiff?
It appears therefore that, as affecting the question of jurisdiction, the allegations respecting the contract are unimportant. The material allegations are that plaintiff is original and first inventor of a patentable thing, defendants, or some of them, were in confidence informed about it, and they conspired together to secure a patent for the device to be granted to Collins, thus fraudulently securing for themselves the profits, emoluments, and benefits which of right belong to plaintiff. If the State court has jurisdiction in this case, then it has jurisdiction in any action to recover damages by one who, claiming to be original and first inventor, alleges that he has been robbed of his invention by another to whom he confided it, who has secured a patent therefor. An action for damages for such a wrong would perhaps be maintainable in the State court after the plaintiff’s alleged rights as inventor had been determined by a court having jurisdiction to determine them, but in no such case could it be said that the question of patent rights was incidental merely to the right to recover the damages alleged.
In my opinion, the circuit court for the county of Wayne should have dismissed the case for want of jurisdiction, and it follows that the judgment was erroneous and should be reversed.
Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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Steere, J.
Plaintiff commenced this action in a justice court of Wayne county to recover $500 which he had paid as a binder or earnest money on the purchase of a property in Detroit called 35 Edmund Place, consisting of a lot 60x100 feet with a large rooming house upon it, the price to him being $41,500. Defendant Moskovitz claimed to own this property and to be able to give a) good title to it. He contracted on May 12, 1920, to do so when full payment was made, and to furnish a Burton or Union Trust abstract brought down to date which would show a good, merchantable title within 10 days, when the next payment of $5,500 was to be made. But it so eventuated that the contract to that effect which -he signed did not run to plaintiff. Neither did he own the property. The only interest he had in it was some sort of an option of doubtful value, the exact nature of which is not disclosed but which resulted in an injunction suit by the owner of the property and only figures here as his explanation of his failure to furnish an abstract as agreed and default on his part in performance of the contract.
His contract ran to a broker or agent named Acker whom plaintiff made a joint defendant when commencing his action in justice’s court but subsequently dropped him from the case by filing an amended declaration' against Moskovitz only. Plaintiff had judgment in that court for the $500 he had paid, with interest, from which defendant appealed to' the circuit court where on retrial before a jury plaintiff again prevailed. A new trial was thereafter granted on defendant’s motion and trial again had before a jury resulting in a verdict and judgment for defendant, and plaintiff brings the case to this court for review on numerous assignments of error.
The circuit judge before whom the case was first tried granted a new trial on the ground that there was no privity of contract shown between plaintiff and defendant, saying in part:
“I am satisfied that, in this case, under the law, the plaintiff dealt with and trusted one J. D. Acker entirely in the transaction of the purchase of the land. Plaintiff paid $500 to J. D. Acker and accepted a receipt therefor. Mr. Acker signed the receipt personally. Plaintiff also knew that defendant, Moskovitz, owned the property and was present only but a short distance away when the plaintiff accepted the papers from the said Acker for the $500. Testimony showed that said J. D. Acker had a contract with defendant Moskovitz which was separate from the contract between the plaintiff and Acker.”
On the second trial, now before us for review, the presiding judge was like minded as to the documentary evidence in the case and said to the jury, “On the face of these writings this was a deaf between Mr. Acker and the plaintiff in this case,” but submitted to the jury the question of defendant’s admission of liability as follows:
“The question for you to determine then, in this case, is this: Did the plaintiff, at the time that he claims, go to the defendant and charge him with liability, legal liability for the return of the money; did he make him a tender of the amount and then and there did the defendant acknowledge to him his legal liability and promise to make payment upon the next day, if he would wait that long, practically, or did he not? If he did, I charge you asi a matter of law that there was sufficient consideration and that that was a good contract, and that it can be enforced; and if you so find, you will bring in a verdict for the plaintiff against the defendant for the sum of five hundred dollars, plus the interest. If he did not make this agreement and promise to make the payment, if he denied liability, or if he never was interviewed, as he claims, by the plaintiff, charging liability, then there is no liability and your verdict would be no cause of action. * * * If you find the truth to be as claimed by the plaintiff, then your verdict as I said— as I say to you, will be in favor of the plaintiff in the sum of $500 or, if it is for the defendant, for no cause of action.”
The four parties who figured in this abortive deal were plaintiff Stepanian, defendant Moskovitz, Acker and a fellow-countryman of Stepanian named Gaydzak who testified he had been in the real estate business since 1918 and that Stepanian was his friend. The latter said he had known Gaydzak six or seven years and supposed he was his friend. Acker appears to have been the master mind in this transaction and the only one who profited by it. For some undisclosed reason neither party called him as a witness.
The parties litigant were men of business experience. Moskovitz said he was in the haberdashery; business and in 1920 bought and sold considerable real estate. Stepanian testified that his business was dry goods and he was also then disposed to invest in some property. The two men were total strangers to each other until they met during this transaction through the agency and in the presence of Acker and Gaydzak. Gaydzak testified he knew Stepanian was wanting to buy some real estate and when he saw this property on Edmund Place advertised for sale under the name of John M. Welch & Son with whom he happened to know Acker was in some way connected he communicated with Acker and told him he had a prospect, proposing that they two work together in putting through the deal, which they proceeded to do.
Apparently next in sequence of events, Acker interviewed Moskovitz. We only have the latter’s version of that interview. He testified that a man named Acker came along and telling him he knew he had that property for sale, asked what he would take for the place and turn it over to him right away, as he had a friend to whom he thought he could sell it; that after some talk Acker said “I am willing to give you $40,000 for it,” to which Moskovitz said that would be “all right,” and agreed to take it; he never had any dealings with Stepanian, whom he subsequently met as a prospective purchaser from Acker, never agreed to sell him the property and no writings ever passed between them on the subject, his deal was directly with Acker who was not his agent and never represented him.
Having made a tentative deal with Moskovitz, Acker and Gaydzak proceeded to work in combination on Stepanian, who was favorably impressed and expressed a desire to see the place. They took him up to see it in an auto but the woman in charge refused them admission and Acker told the others to wait there while he went for the owner. He returned with Moskovitz, whom Stepanian then first met. Moskovitz obtained admission'and went through the house with them. Gaydzak, whose powers of description, in English, excelled those of his friend Stepanian and was called as a witness for him, told how the combination was worked while the deal was on, and the result, in part, as follows:
“After we got through seeing the property we come down to the front room facing Edmund Place and sat there in the front window talking about the price. Mr. Moskovitz was asking $43,000, I believe, and Mr. Stepanian argued about the price being too high. And then Mr. Acker and myself and Mr. Moskovitz got into a corner, leaving Mr. Stepanian with the rest of the boys there, and talked the price over again, and Mr. Moskovitz agreed that he would take $41,000 for the place, provided for the completion of the commission we could get a little over $41,000. So we come back to Mr. Stepanian and talked to him to agree to buy the place for $41,500 and we agreed about the price at the time, when another bell rang and those people came and Mr. Moskovitz went there and talked with the people. Then he rushed in and said, ‘Boys, if you want to buy the place, you got to hurry, otherwise these people are buyers.’ Then Mr. Stepanian said, ‘Well, I will buy the place.’ Upon that Mr. Moskovitz sent those people away again, and we said, ‘We will go to the store, we will drive over there and make the papers and put up the deposit so that we will buy the property.’ * * *
“Q. Why didn’t you tell your friend of six or eight years’ standing that you could have bought this property for $40,000?
“A. My friend was buying the property through us and he knew that we had to make some commission for selling it; and it wasn’t being sold to my friend, or not being sold by Moskovitz for $40,000, it was $48,000, in the first place. I know that three per cent, is the Detroit real estate board commission. That commission would be about $1,300.
“Q. So that you and this man Acker went out and handled this proposition this way and instead of making $1,300 you made $1,500, didn’t you?
“A. We made $1,500, yes. * * * I didn’t see anything; not a penny from anybody. As far as my commission is concerned, I don’t know, if Acker has got the money he double-crossed me, of course; if he didn’t get the money, I didn’t get not a penny out of it.”
After Stepanian said he would take the property they drove down in their autos to Moskovitz’s haberdashery to close the deal. They then all went inside to draw up the papers except Stepanian, whom they left outside sitting in an automobile. Gaydzak first testified that Acker, Moskovitz and Moskovitz’s son acted as conveyancers, which he later somewhat confused by relating various things that “we,” did and telling of papers which he and Acker drew up for Stepanian. Exhibit 1 of these papers is a check on a Highland Park bank for $500 payable to order of Acker and signed by Stepanian. Gaydzak testified that Acker first offered his own check for the $500. earnest payment to Moskovitz which he declined. He and Acker then drew up a check to Acker for Stepanian to sign and took it out to him where he was sitting in the automobile, and had him sign it. They then went back and Acker indorsed and gave the check to Moskovitz who accepted it as first payment on the memorandum agreement or preliminary contract between him and Acker for sale of the property to the latter for a consideration of $41,000, which he signed and delivered to him. He also signed and gave to Acker a separate receipt which they had prepared for the $500, briefly stating what it was for and concluding as follows:
“I agree to give possession June 1, 1920, or as soon after as I possibly can and to pay J. D. Acker a commission of one (thousand dollars) $1,000 as the broker in this transaction. It is agreed that this deal will be closed on or before ten days from date.
(Signed) “H. A. Moskovitz.”
It does not appear that Stepanian then had any knowledge of those two papers, but it was shown by oral proof that Acker at that time signed and gave him a receipt for the $500 he obtained from him, briefly stating it was for the purchase of this property from him. Later in the day they drew up a preliminary contract between Acker and Stepanian following in substance that Moskovitz had given Acker, except that the .purchase price was $41,500. This Acker signed and gave to Stepanian. When asked why they did not have Stepanian and Moskovitz get together and sign the same paper evidencing this deal, Gaydzak legally illuminated the situation as follows:
“As far as the real estate deal was concerned, through an agent, it didn’t matter whether Stepanian signed a paper with Moskovitz to buy and sell, or Mr. Moskovitz signed a paper to sign that contract to an. individual or not.”
All four papers in evidence are dated May 12, 1920, and were made to and signed by the parties in their individual names. The only paper Stepanian signed was the check he gave to Acker and the-only paper he received was signed by Acker, ac knowledging receipt of the $500 and agreeing conditionally to sell him the property. Both the memorandum of agreement from Moskovitz to Acker and from the latter to Stepanian contained the essential elements of a valid land contract and were binding on the vendor when accepted and complied with by the vendee. Previous oral agreements or understandings of the parties were merged in them. They are plain and unambiguous, and cannot be changed or modified to mean other than what they plainly say by any testimony as to previous talks or understandings of the parties. They are destitute of any privity of contract between plaintiff and defendant.
When the ten days’ limit in which Moskovitz was to furnish the abstract and the next payment made drew towards a close, Stepanian was ready with his payment, and first went with his money and complaints of delay to Gaydzak and Acker. They exonerated themselves and took him to Moskovitz. He acknowledged he had not yet been able to get the abstract and expressed fears the deal would fall through, saying he would pay them back the $500 if he could not fulfil. This -he repeated on different occasions when they importuned him on the subject. Plaintiff testified that he personally promised to pay him back the $500 if the deal fell through. This Moskovitz denied, claiming he never dealt with plaintiff but with Acker, who paid him the money. Acker in the meantime brought an action against him which was subsequently settled and discontinued on Moskovitz paying him back the $500. The court left the question of defendant’s subsequent oral promise to pay plaintiff the $500 to the jury, and rightly instructed them that on the face of the writings in evidence there was no privity of contract between the parties upon which recovery could be predicated.
The further contention is made for plaintiff that the trial judge at the first trial of this case, which resulted in judgment for plaintiff, had no authority to set aside that judgment, and all subsequent proceedings were a nullity because the motion for a new trial was submitted March 24, 1922, and the opinion granting the same was not filed until February 26, 1923, or more than the 60 days’ limit after its submission, as provided by the judicature act (3 Comp. Laws 1915, § 12585). To construe the provision in question as meaning that a delay of 60 days in deciding any question submitted in a pending case arbitrarily divests the court of jurisdiction, regardless of the reason or excuse therefor, or the nature of the case, would be a harsh and in many cases an unjust construction, tending to inflict disastrous consequences on parties in no manner responsible for the delay.
In Rawson v. Parsons, 6 Mich. 401, this court was called upon to construe a statute requiring decisions to be filed in cases heard by the court without a jury on or before “the first day of the term succeeding that in which the cause was submitted.” In that case several succeeding terms had passed before the decision was filed. Speaking through Justice Christiancy, this court there said:
“We are all of opinion that this provision, as relates to the time within which the decision shall be given and filed, is directory merely. It imposes a duty upon the judge; but as the parties have no control over his action, it would be a harsh construction which should deprive them of the fruits of the litigation because the judge fails to decide by a particular day.”
We find no occasion to depart from that precedent.
The judgment will stand affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, and Fellows, JJ., concurred. | [
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] |
Stone, C. J.
The bill of complaint in this case was filed to enforce the performance of a certain contract, for an accounting, and for other relief.
The Allmetal Manufacturing Company, one of the defendants herein, is a corporation organized under the laws of this State. On the 22d day of October, 1912, the company was the owner of certain property situated in the city of Grand Rapids, including machinery, raw and manufactured materials, stationery, and office equipment, and also a certain written contract, dated June 8, 1912, with one J. E. Kresky, hereinafter called the Kresky contract. The said Kresky contract was an agreement between J. E. Kresky of Petaluma, Cal., and the Allmetal Manufacturing Company, whereby that company was granted the exclusive agency for a term of ten years for the sale, in that portion of the United States lying east of the Rocky Mountains, of the brooder stoves known as the “Pride of Petaluma,” also brooder burners and other accessories of said stoves, which stoves, brooders, and accessories were manufactured by said Kresky under patents held by him. Said contract contained an option for the purchase by said company, within two years after its date, of the exclusive right to manufacture and sell said articles in said territory on payment of $5,000. Said contract specified the prices at which said articles were to be sold by said Kresky to the Allmetal Manufacturing Company.
On October 22, 1912, complainant was the holder of 800 shares of the capital stock of said Allmetal Manufacturing Company, being the entire capital stock then issued. Seven hundred shares of the authorized capital stock had not .been issued. On that date, he and N. P. Sylvester Husted entered into a written contract, which, contract will hereafter be referred to as Exhibit B, and was in the words and figures following:
“This agréement, made this 22d day of October, A. D. 1912, by and between Frank E. Miner of East Grand Rapids, Michigan, first party, and N. P. Sylvester Husted, of Grandville, Michigan, second party, witnesseth:
“Whereas, said first party is the holder of 800 shares of the capital stock of Allmetal Manufacturing Company, a corporation organized under the laws of the State of Michigan, and doing business at the city of Grand Rapids, in said State, and owning certain physical property situated in said city of Grand Rapids, including machinery, raw materials, manufactured materials, stationery and office equipment, and a certain contract in writing dated the 8th day of June, 1912, whereby one J. E. Kresky, of Petaluma, California, granted to Allmetal Manufacturing Company an exclusive sales agency under a certain patent or patents covering an invention known as ‘Kresky Rotary Burner’ for use in brooder stoves or otherwise, in that portion of the United States of America lying east of the Rocky Mountains, for the term of ten years from the date of said contract, and thereafter granted to said Allmetal Manufacturing Company the right to manufacture the same under said patents;
“And whereas, 700. shares of the authorized capital stock of said Allmetal Manufacturing Company have never been issued;
“And whereas, said first party has agreed to sell all of said capital stock of said Allmetal Manufacturing Company so held by him to said second party and said second party has agreed to buy said capital stock so held by first party, and to pay to said first party therefor certain sums of money hereinafter specified at the times and in the manner hereinafter specified;
“And whereas, it is mutually agreed between the parties hereto that said capital stock, together with said contract between J. E. Kresky and said Allmetal Manufacturing Company shall be held by the Michigan Trust Company, of said city of Grand Rapids, Michi o-an, as trustee, for the purpose of securing the fulfillment, and until the final fulfillment of all the covenants, agreements and conditions hereinafter contained by said second party to be kept and performed:
“Now, therefore, it is mutually agreed between the-parties hereto as follows:
“First. For the considerations of $887.75 to be paid forthwith by party of the second part, and those hereinafter mentioned, party of the first part hereby sells, assigns, and sets over to party of the second part, 800 shares of stock in Allmetal Manufacturing Company, being the entire capital stock now issued; and does agree personally to pay forthwith all claims of every nature now existing against said corporation, except. claim of Stewart-Davis Advertising Agency; and party of the second part agrees that all accounts receivable of said corporation now existing belong to party of the first part.
“Second. Said party of the second part guarantees that said Allmetal Manufacturing Company shall in all respects fulfill and carry out the terms of said Contract between said J. E. Kresky and said Allmetal Manufacturing Company, and that in case said All-metal Manufacturing Company shall avail itself of the option contained in said contract to purchase of said J. E. Kresky the exclusive right to manufacture and sell the articles mentioned in said contract throughout the territory specified therein, said right shall be held by said the Michigan Trust Company in trust in lieu of said contract between said J. E. Kresky and said Allmetal Manufacturing Company in like manner as said shares, of stock as hereinafter stated.
“Third. As further consideration for the sale by said first party to said second party of said shares of the capital stock of said Allmetal Manufacturing Company, said second party agrees to pay to said first party, royalties on the sale of all stoves sold, or manufactured and sold under said contract with said Kresky as follows: Three dollars on each stove until 2,000 stoves are sold; two dollars royalty on each stove sold on the next 4,000; one dollar royalty on each stove sold above 6,000; said royalties to be paid during the life of said contract with said Kresky. If second party takes advantage of said option contained in said Kresky contract, first party is to receive such royalties during the life of the patents covering said stove and burner mentioned in said Kresky contract; said royalties are to be paid to the first party at the end of each month for stoves sold during the month, excepting that during the months of January, February, March and April of each year, said royalties are to be paid at the end of each week. Second party shall furnish first party a report with each settlement showing the serial number of all stoves sold, to whom sold, and where sold, and first party shall have the right to examine the books of second party at any time during business hours, for the purpose of cheeking such reports.
“Fourth. Second party agrees to use due diligence and his best efforts to promote the business of selling brooder stoves under said Kresky contract, and guarantees to first party royalties on at least 275 stoves during the first seven months following the date of this agreement, and on at least 800 stoves each year thereafter during the life of this agreement. It is also agreed that if second party, or said Allmetal'Manufacturing Company, should engage in the business of manufacturing or selling other stoves, or stoves under any other contract than those manufactured or sold under said Kresky contract, the same conditions as to royalties and the payment thereof that apply to said Kresky stove in this contract shall also apply to said other stoves, and be paid to said first party.
“Fifth. First party agrees to co-operate in all reasonable ways toward helping promote the best interests of second party in the carrying on of said business, and that he will not during the life of this agreement, either directly or indirectly, or as principal or employee, or otherwise, engage in the business within the United States or Canada, of selling stoves or burners of any type or kind that will enter into competition with said second party. First party also agrees to turn over to second party all inquiries now or hereafter received by him or Allmetal Manufacturing Company in connection with the brooder stove business, or other business of said Allmetal Manufacturing Company.
“Sixth. In case any more of the capital stock of said Allmetal Manufacturing Company shall be issued at any time hereafter, said stock shall be held by the Michigan Trust Company as trustee, as additional security for the performance by said second party of the covenants, agreements and conditions herein contained by him to be performed.
“Seventh. All or any of the stock so held by said the Michigan Trust Company as trustee may be at any time transferred by the person or persons for whom it is so held by said trustee, subject to the provisions of this contract, and when so transferred it shall continue to be held by said trustee until this contract shall be fulfilled.
“Eighth. Said the Michigan Trust Company shall hold said stock in trust for the purpose of securing' the performance of this agreement by party of the second part, but nothing herein contained shall be taken as preventing party of the second part or his assigns from voting said stock in the business of said corporation, while this agreement remains in force.
“Ninth. In case said second party shall at any time fail to perform all or any of the covenants, agreements and conditions herein contained to be by him kept and performed, said the Michigan Trust Company shall immediately on such failure, transfer and deliver said stock so held by it in trust and said Kresky contract, and, in case it shall hold the exclusive right to manufacture and sell the articles described in said Kresky contract under a grant or conveyance given in consequence of the election of said Allmetal Manufacturing Company to purchase said exclusive right under the option clause contained in said Kresky contract, then said grant or conveyance .to said first party to be held and enjoyed by him as his own property, absolutely and forever, and this contract shall thereupon be terminated. Second party shall pay to first party as damages for the breach of this agreement, five dollars on each and every stove sold up to the time of such breach, less the royalty paid to first party, and should said second party thereafter engage in the business of selling any other stove than the above mentioned in said Kresky contract, second party shall pay to first party the same royalty on such stoves as in this contract provided.
“Tenth. After the full completion and performance of this contract by said second party in all things on his part, said stock, Kresky contract and said grant or conveyance of exclusive right to manufacture the articles described in said Kresky contract to said second party, to be held and enjoyed by him absolutely and forever.
“Eleventh. The expenses of the trust hereby created shall be paid by second party.
“Twelfth. Any grant or conveyance of the right to manufacture and sell the articles mentioned in the Kresky contract which may be executed in pursuance of the option contained in said contract shall be taken in the name of Allmetal 'Manufacturing Company.
“Thirteenth. It is agreed that this contract shall be binding upon the heirs, executors, administrators and assigns of both of the parties hereto.
“In witness whereof, the parties hereunto have set their hands and seals, the day and year first above written.
[Signed] “Frank E. Miner. [L. S.]
“N. P. Sylvester Husted. [L. S.] ”
“The undersigned does hereby accept the trust created by the foregoing instrument under the conditions therein named and does acknowledge receipt of certificates for eight hundred (800) shares of the capital stock of Allmetal Manufacturing Company therein mentioned, and of contract between J. E. Kresky and Allmetal Manufacturing Company dated June 8, 1912.
“Dated October 23, 1912.
“The Michigan Trust Company,
“By [Signed] F. A. Gorham, “Vice President.”
From the undisputed evidence in the case, it appears that Exhibit B was made after mature deliberation and negotiations carried on between the complainant and Husted for a number of weeks. Both parties were represented by counsel.
On October 23, 1912, after the contract, Exhibit B, had been executed, complainant deposited the 800 shares of the capital stock of the Allmetal Manufacturing Company mentioned in said contract, together ■with the Kresky contract, with the Michigan Trust Company, trustee, and that company accepted the trust created in said Exhibit B, and acknowledged the receipt of the certificates for said 800 shares of stock and said Kresky contract.
We think it sufficiently appeared from the evidence that, because of lack of capital, the Allmetal Manufacturing Company was unable to continue business for any considerable time, and efforts which were made by said Husted to interest capital in said company were not successful; and on November 21, 1912, the Simplex Brooder Stove Company was incorporated, under Act No. 232, Pub. Acts 1903 (2 Comp. Laws 1915, § 9017 et seq.), for the purpose of the manufacture, purchase, and sale of poultry and appliances, and articles of metal of all kinds. The organizers and stockholders were N. P. Sylvester Husted; Nora Carr, his mother; Nina Husted, his wife; and Nora M. Hus-ted, his sister. The directors elected on the same day were Nora Carr, N. P. Sylvester Husted, and Nora M. Husted. Nora Carr was president, Nora M. Husted was secretary, and N. P. Sylvester Husted was vice president, treasurer, and general manager. He had full management of the1 business of both the Allmetal Manufacturing Company and the Simplex Brooder Stove Company.
All the stockholders of the Allmetal Manufacturing Company were N. P. Sylvester Husted, Nora M. Hus-ted, and Nina Husted, the last two named persons having received one share each of the capital stock from N. P. Sylvester Husted. Said N. P. Sylvester Husted held the rest of the stock. These same persons composed the board of directors of that company. That stock is all in the hands of the Michigan Trust Company, trustee under complainant’s contract with Hus-ted. At a meeting of the directors of Allmetal Manu factoring Company, held on November 21, 1912, N. P. Sylvester Husted was elected president, Nora M. Hus-ted vice president, and Nina Husted' secretary and treasurer.
At the first meeting of the stockholders of the Simplex Brooder Stove Company, held November 21, 1912, a resolution was adopted in and by which that company offered that in case the Allmetal Manufacturing Company would grant to the Simplex Brooder Stove Company the sale of stoves in the territory lying east of the Rocky Mountains, which stoves were then being manufactured by the Allmetal Manufacturing Company or Kresky, under patents held by him, the Simplex Brooder Stove Company would use its best endeavors to promote the sale of said stoves throughout said territory, and’would pay to the Allmetal Manufacturing Company royalties on each stove sold by it as follows: Three dollars on each stove until 2,000 stoves were sold.; $2 on each stove on the next 4,000 sold; and $1 on each stove thereafter sold. It will be noted that these are the same royalties which Husted agreed to pay complainant in contract Exhibit B. N. P. Sylvester Husted was present at the meeting at which this resolution was adopted. In pursuance of the resolution, an agreement was entered into on November 21, 1912, between the Allmetal Manufacturing Company and the Simplex Brooder Stove Company by the terms of which the Allmetal Manufacturing Company granted to the said Simplex Brooder Stove Company the right to sell stoves, for which right the latter company agreed to pay to the Allmetal Manufacturing Company the royalties specified in the resolution above mentioned. In said agreement the Allmetal Manufacturing Company granted to the Simplex Company the right to exercise the option to purchase the exclusive right to manufacture and sell said articles contained in the Kresky contract..
January 15, 1913, a resolution was adopted at a meeting of the Simplex Company authorizing that company to enter into an agreement with the Allmetal Manufacturing Company by the terms of which the latter company should assign to the Simplex Company the exclusive right to manufacture and sell under the Kresky contract and said Allmetal Manufacturing Company, and the Simplex Company should agree to pay to the Allmetal Manufacturing Company the sum of $1,000 in stock, and the same royalties which were specified in the resolutions first above mentioned. N. P. Sylvester Husted was present at the meeting -at which this resolution was adopted.
February 24, 1913, Kresky, in fulfillment of the option contained in his agreement with the Allmetal Manufacturing Company, and for and in consideration of the sum of $5,000 in hand paid by the Allmetal Manufacturing Company, sold and assigned to the Allmetal Manufacturing Company, its assigns and successors, the exclusive right to manufacture and sell stoves under letters patent issued to him.
The consideration for this assignment was furnished by the Simplex Brooder Stove Company in the form of a check, drawn on the Commercial Savings Bank of Grand Rapids, payable to the order of the Allmetal: Manufacturing Company. This check was indorsed to the order of J. E. Kresky by Allmetal Manufacturing Company, N. P. Husted, Manager.
On April 12,1913, the Allmetal Manufacturing Company assigned the rights obtained from Kresky under' the instrument last above mentioned to the said Simplex Brooder Stove Company. This assignment was executed by N. P. Husted as president of the Allmetal Manufacturing Company, and by Nina Husted as secretary.
The grant from Kresky to the Allmetal Manufacturing Company, executed in fulfillment of his option, was never deposited with the Michigan Trust Company, trustee, as security for j;he performance of the contract between complainant and Husted, as provided for in Exhibit B.
The Allmetal Manufacturing Company proceeded for a time to manufacture stoves, and up to April 30, 1913, 924 stoves had been sold in the United States east of the Rocky Mountains, and royalties were paid therefor to complainant, amounting to $2,759.25. Since that time complainant has received no royalties. These royalties were paid by check drawn by said Simplex Brooder Stove Company, signed by N. P. Husted, General Manager (being defendant N. P. Sylvester Husted), on the Kent State Bank. They are all set forth in the record, together with the amounts. The first two of those checks were made payable directly to the complainant. The remainder of them was made payable to Allmetal Manufacturing Company, and indorsed by that company, by N. P. Husted, manager, to the complainant.
On June 13, 1913, the Simplex Brooder Stove Company gave a trust mortgage for the benefit of its creditors to the defendant William C. Hopson. On June 16, 1913, defendant Hopson took possession of the property of said Simplex Company under such mortgage. The total number of stoves sold by defendant Hopson, after he took possession as trustee under the trust mortgage to the time of hearing in the court below, was 551. No royalties had been paid on any stoves sold after April 30, 1913. At the time of the hearing royalties were unpaid on 665 stoves which had been sold after April 30, 1913. The bill was filed July 11, 1913. On February 18, 1914, defendant N. P. Sylvester Husted died, and on April 19, 1914, an order was made reviving the suit against Nina Husted, executrix of his last will and testament. On September 2, 1913, the bill was taken as confessed by the defendant Allmetal Manufacturing Company.
Upon the hearing, the court below entered a decree dismissing the bill of complaint, with costs to defendants. The complainant has appealed.
It is claimed on behalf of complainant that the following questions are involved:
“(1) February 24, 1914, when J. E. Kresky in fulfillment of the option contained in the agreement between him and the Allmetal Manufacturing Company (being Exhibit A attached to the bill), granted to the Allmetal Manufacturing Company the exclusive right to manufacture and sell stoves, and also on April 12, 1913, when the Allmetal Manufacturing Company assigned the grant from Kresky to the Simplex Brooder Stove Company, N. P. Sylvester Husted was a director and general manager of both the Allmetal Manufacturing Company and the Simplex Brooder Stove Company, and of course he had knowledge of his contract with complainant, being Exhibit B attached to the bill.
“Was his knowledge notice to the Simplex Brooder Stove Company of the terms of that contract?
“(2) Granted that through Husted’s knowledge of the terms of his contract with complainant the Simplex Brooder Stove Company had notice, did that company take the assignment of the grant from Kresky to the Allmetal Manufacturing Company subject to the terms of complainant’s contract with Husted, and if it did, should that company be compelled to reassign that grant to the Allmetal Manufacturing Company, and should the grant be deposited with the Michigan Trust Company, as trustee, in fulfillment of the terms of complainant’s contract?
“(3) Should Hopson, the trustee under the trust mortgage given by the Simplex Brooder Stove Company, be compelled to account for and pay to complainant royalties on all stoves sold after April 30, 1913?”
It is urged on behalf of- complainant in argument that N. P. Sylvester Husted knew that his contract with complainant provided that such grant from Kresky should be taken in the name of the Allmetal Manufacturing Company and deposited with the Michigan Trust Company, as trustee, as security for the performance of his contract with complainant; and he knew that the assignment of that right by the All-metal Manufacturing Company to the Simplex Company was in violation of his contract with complainant ; that his knowledge was notice to his company of the terms and conditions of his contract, and under such circumstances said Simplex Company could acquire no rights or interests except in subordination to the right of complainant under his contract with Hus-ted to have the Kresky grant deposited with the Michigan Trust Company, as collateral security to his contract; that knowledge of facts acquired or possessed by an officer or agent of a corporation, in the course of his employment, and in relation to matters within the scope of his authority, is notice to the corporation whether he communicates such knowledge or not; and that by weight of authority, when an officer of a corporation does an act which constitutes a fraud upon a third person, or upon another corporation of which he is also an officer, the first-mentioned corporation is chargeable with notice of the nature of the transaction, although the fraud is perpetrated for his own benefit, when he also représents the corporation in the transaction. Counsel cite many authorities in support of this proposition. Among them are the following: Peoria Marine, etc., Ins. Co. v. Hall, 12 Mich. 202, 214; Great Western Ry. of Canada v. Wheeler, 20 Mich. 419; Stevenson v. City of Bay City, 26 Mich. 44; Detroit Motor Co. v. Bank, 111 Mich. 407 (69 N. W. 726). To which may be added Westinghouse Electric, etc., Co. v. Hubert, 175 Mich. 568, 576 et seq. (141 N. W. 600, Am. & Eng. Ann. Cas. 1915A, 1099) ; 2 Pomeroy’s Equity Jurisprudence, § .666; 3 Clark & Marshall on Corporations, pp. 2200, 2201; Brobston v. Penniman, 97 Ga. 527 (25 S. E. 350); Cook v. Tubing & Webbing Co., 28 R. I. 41, 73 (65 Atl. 641, 9 L. R. A. [N. S.] 193); Benedict v. Arnoux, 154 N. Y. 715, 728 (49 N. E. 326). Many other authorities are cited.
It is urged by complainant’s counsel that the failure to deposit with the Michigan Trust Company, as trustee, the grant or assignment from Kresky to j the Allmetal Manufacturing Company, dated February 24, 1913, was a breach of the Husted contract, and was a fraud on complainant which entitles him to the relief prayed for in the bill.
It is also urged that the Simplex Brooder Stove Company recognized complainant’s rights under the Husted contract, and complainant’s rights to royalties therein provided for, by providing in both of its contracts with the Allmetal Manufacturing Company for the payment of royalties of the same amounts which were payable to complainant under contract Exhibit B, and that the contracts with the Allmetal Manufacturing Company are subject to complainant’s interest in his contract with Husted, and that he is entitled to the royalties provided for in those contracts. It is also, urged that the Simplex Brooder Stove Company further recognized complainant’s rights to royalties, and that its contracts were subject to complainant’s contract with Husted, by paying royalties on all stoves sold to April 30, 1913.
It is said that neither Husted nor the Allmetal Manufacturing Company, nor the Simplex Company had any right to sell stoves without paying royalties to complainant, and that their right to sell stoves was dependent upon the payment of these royalties. Manifestly, it was the duty of the Simplex Company to pay the royalties provided for to the Allmetal Manufacturing Company; and it is further urged that the breach of the Husted contract, by the failure to deposit the Kresky grant, and by the failure to pay royalties, entitled complainant to all the stock of the Allmetal Manufacturing Company in the hands of the Michigan Trust Company, and that complainant, by the terms of the contract, is the owner of the Allmetal Manufacturing Company and is entitled, as such owner, to all the royalties which the Simplex Company has agreed to pay in its contracts with the Allmetal Manufacturing Company.
It is further urged that the trustee under the mortgage should be compelled to pay these royalties out of moneys in his hands belonging to the Simplex Brooder Stove Company as a part of the operating expenses before any other indebtedness is paid; and that such royalties are a preferred claim, as no one has a right to sell these stoves without paying the royalties due to the Allmetal Manufacturing Company, and to complainants as a condition to the right to sell them. It is said that the Simplex Company, having agreed to pay these royalties to the Allmetal Manufacturing Company, should be held to the performance of its agreement.
On the other hand, it is urged on behalf of the defendants the Simplex Brooder Stove Company and W. C. Hopson, trustee under the mortgage, that the granting of relief by specific performance is within the discretion of the court, and that in this case performance should be denied because it would be inequitable; that the contract between complainant and Husted was a personal contract, and provided that if Husted should default in any of its terms, the complainant might take advantage of the following provisions: (1) He might sue Husted at law for damages for the breach, including the specific penálty of $5 for each stove sold. (2) That he might demand and receive from the Michigan Trust Company, as trustee, the stock of the Allmetal Manufacturing Company and have it issued in his own name; and also demand and receive the original Kresky agreement; and it is urged that complainant has not taken advantage of either of these provisions of the agreement. It is said that he has not made demand upon the Michigan Trust Company, as trustee, for the stock of the Allmetal Manufacturing Company, nor for the Kresky contract. It is also urged that complainant has an adequate remedy at law.
If the provision to pay $5 for each stove sold in violation of the contract was a penalty, as we are inclined to think it was, that would not interfere with specific performance. See Daily v. Litchfield, 10 Mich. 29; Jaquith v. Hudson, 5 Mich. 123; Davis v. Freeman, 10 Mich. 188; Richardson v. Woehler, 26 Mich. 90; Johnston v. Whittemore, 27 Mich. 463; Myer v. Hart, 40 Mich. 517 (29 Am. Rep. 553); Watrous v. Allen, 57 Mich. 362 (24 N. W. 104, 58 Am. Rep. 363) ; Powell v. Dwyer, 149 Mich. 141, 144 (112 N. W. 499, 11 L. R. A. [N. S.] 978); Buckhout v. Witwer, 157 Mich. 406, 409, 411 (122 N. W. 184, 23 L. R. A. [N. S.] 506. Such a penalty, as repeatedly held by us, is no objection to specific performance.
It is further and mainly urged by said defendants’ counsel that complainant is entitled to no relief whatever against the Simplex Company, an independent corporation with no contract or other relations with complainant, unless complainant has shown that the Simplex Company adopted Husted’s contract with complainant, either expressly or impliedly; and that complainant has shown neither of these things; and it is urged that it expressly appears by the testimony of the incorporators and the directors, other than N. P. S. Husted, that they were in entire ignorance of this contract and its terms. We do not think that the knowledge of these persons as individuals is controlling. The question here is: What was the knowledge of the Simplex Company? Counsel for said defendants also deny that there can be any implied adoption of the Husted contract; they claim that the authorities cited by complainant’s counsel are not appli cable; that Husted was acting adversely to the corporation ; and that his interest was plainly adverse to that of the Simplex Company. They cite in support of their position Clark & Marshall on. Private Corporations, § 723a, pp. 2210, 2211; also section 723, p. 2207, upon the subject of knowledge of an officer dealing with corporations, or otherwise interested adversely. They claim the application of this rule as stated by this court in State Savings Bank v. Montgomery, 126 Mich. 327 (85 N. W. 879), People’s Savings Bank v. Hine, 131 Mich. 181 (91 N. W. 130), and Supreme Tent v. Bank, 137 Mich. 627 (100 N. W. 898, 109 Am. St. Rep. 690). We cannot agree with defendants’ counsel in the applicability of the authorities last above cited. Counsel recognize the general rule as stated by complainant’s counsel, but they claim that the instant case falls within the exception to the general rule. We do not think so. Husted had the legal right to disclose the terms of his contract, and would have violated no duty to anybody had he done so. We cannot say that he had any reason to keep the terms of his contract secret for fear that it would expose and defeat any fraudulent purpose. The Simplex Company was to pay royalties to the Allmetal Manufacturing Company. It is a significant fact that in the contracts between the Simplex Company and the Allmetal Manufacturing Company the Simplex Company agreed to pay the same royalties which Husted had agreed to pay to complainant. If there was any fraudulent scheme, it was a scheme to defraud complainant, and not the Simplex Company; and it seems to us that the last-named company was involved in that scheme as much as Husted was, and that his knowledge must be imputed to that company. It had notice and knowledge through that which was possessed by its vice president and general manager, that the contract, Exhibit B, required that in case the Allmetal Manufacturing Company should avail itself of the-option contained in the Kresky contract, the instrument conveying such right should be held by the Michigan Trust Company in trust the same as the shares of stock of the Allmetal Manufacturing Company were to be held; that is to say, as security for the performance of Exhibit B. The Simplex Company could not therefore, in our opinion, take an assignment of said patent or license except subject to the right of complainant to have such assignment held as security for the performance of the contract, Exhibit B. The failure to deposit with the Michigan Trust Company, as trustee, the grant or assignment from Kresky to the Allmetal Manufacturing Company was a breach of the Husted contract, and was a fraud on complainant, which entitles him to relief under the bill of complaint; and we think that for such breach and fraud complainant, under the circumstances, is entitled to the same remedy against the Simplex Company which he would be entitled to against Husted himself.
It is unnecessary to repeat what we have already stated upon the subject of the similar provisions as to royalties, the payments made, the recognition of complainant’s rights, and other similar matters. It must be conceded that the Simplex Company had no right to sell stoves without paying royalties to the All-metal Manufacturing Company; their right to sell' stoves was dependent upon the payment of these royalties. We are of the opinion that the complainant is entitled to have the assignment from the Allmetal Manufacturing Company to the said Simplex Brooder Stove Company of the Kresky grant canceled^ because it is void as to complainant, and in violation of the contract between complainant and N. P. Sylvester Hus-ted, of which the Simplex Company had notice, that said assignment should be delivered to the Michigan Trust Company to be held as collateral security as pro-. vided for in Exhibit B, and that said assignment should be decreed to be free and clear of said trust mortgage; that said defendants, and each of them, should be restrained by the order and injunction of this court from selling, assigning, transferring, and incumbering, or in any manner disposing of any right under said assignment from Kresky to said Allmetal Manufacturing Company; that said defendants should come to a true and just accounting with complainant, as holder of the stock of the Allmetal Manufacturing Company, touching the royalties due and unpaid under its contracts with the Allmetal Manufacturing Company, and by the terms of said contract between complainant and N. P. Sylvester Husted, and to become due and payable, to the time of rendering final decree in this cause; and that said William C. Hopson, as trustee under the mortgage, be ordered and directed at all times to retain sufficient money in his hands, as such trustee, to pay all such royalties as accrued prior to the giving of said trust mortgage; and that he and said Simplex Brooder Stove Company be ordered and directed by this court to at once pay to complainant, as holder of the capital stock of the-Allmetal Manufacturing Company, royalties on all stoves which have been sold since he has had the management and control of said Simplex Brooder Stove Company’s business down to the date of the decree of this court.
The decree of the court below is reversed, and a decree will be entered in this court in accordance with this opinion, with costs to the complainant to be taxed.
Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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] |
Montgomery, J.
When quite young, defendant went to live with her uncle and aunt in Coldwater, Mr. and Mrs. Frederick Y. Smith, who were childless. Her uncle was a man of considerable property, consisting of residences, a farm, and a store in which for many years he carried on a clothing business. October 28, 1880, the defendant married John H. Buggie, who had no property. They went to live at Laporte, and after that to Hillsdale, but in the summer of 1885, at Mr. Smith’s solicitation, they came back to live with him, and, to induce them to do so, he transferred to John H. Buggie his entire stock of clothing, receiving therefor his note for $7,000, and made him a seven-years lease of the store, at a rental of $1,000 per year, the bill of sale and lease being both dated August 24, 1885. From that date the clothing or store business was carried on in the name of J. H. Buggie & Co., that being the name on the sign at the store front, as well as the one used in all departments of the business; Mr. Smith being the. “ Co.,” but having no interest in the firm, his name being used merely to help the credit of the concern. October 27, 1886, Mr. Smith died, leaving a will by which all of his property was bequeathed to his widow, the defendant’s aunt, but the goods in the store were not included as a part of his estate, and did not pass to her. Mr. Buggie continued the business under the same name as before, Mrs. Smith tacitly taking the place of her husband in the firm. September 9, 1888, Mrs. Smith died, also leaving a will giving all of her property to the defendant, but neither the store business nor goods in it passed to her by it. After her death, Mr. Buggie carried on the business under the same name as before, and has so continued ever since. Whether Mrs. Buggie- became owner of the business, and responsible for its debts, was the pivotal question on the trial of this case below, as it appears to be a conceded fact that the credit extended by the plaintiff was extended to that firm or concern, however composed.
The defendant’s claim at the trial was that, at her aunt’s decease, she took the place in the firm which her aunt had tacitly assumed, and supposed herself a partner, and liable as such, and that she acted in this belief until shortly before the suit was instituted, when she was advised that she could not be treated' as a partner of her husband. The plaintiff, on the other hand, claimed (and the jury found in accordance with this contention) that the defendant became, at some time after her aunt’s decease, the sole owner of the business, and that it was conducted by John H. Buggie as her agent. The defendant’s counsel contend that there was no evidence supporting this claim. We think there was testimony of admissions made by defendant which tended to support plaintiff’s theory. The weight of this testimony was properly left to the determination of the jury.
The other questions arising relate to rulings admitting certain testimony which was objected to. On the 26th of Api’il, 1889, defendant gave to John H. Buggie a general power of attorney. Among the powers granted, as expressed in the language employed, were:
“For me, in my place and stead, to do and transact all my business of every name and nature; * * * to borrow money in my name, and to make and execute all papers, notes, conveyances, and other instruments necessary to carry into effect the powers hereby granted.”
The plaintiff gave evidence tending to show that this power of attorney was given at the suggestion of the officers of the bank, and that this suggestion was communicated to Mrs. Buggie by Mr. Barlow, the attorney for the bank. He testified that, when the power of attorney was executed, he told the defendant that the bank wanted to know from her that John was managing the business at the store for her, and they wanted a power of attorney from her to him to sign all notes at the bank; that the instrument was a general power, and gave John authority to mortgage and sell her real estate; that she said it was all right; that whatever John said about it was all right. It is contended that this testimony was incompetent, as tending to vary the terms of the power of attorney. We think it not open to this objection. The power was broad enough to authorize Mr. Buggie to act for her in any name in which she was carrying on business, and the testimony had some tendency to show that the business at the store was her business.
Plaintiff was permitted to introduce evidence of statements made by John H. Buggie to the effect that the defendant was the sole owner of the business carried on in the name of J. H. Buggie & Co. These statements were not received as impeaching testimony, but were distinctly received as characterizing the possession which John H. Buggie had; so that the question is whether, in a case to which the declarant is not a party, and not directly involving the goods, the declaration against interest of one in possession of goods may be received to show that he is in possession as agent of another. It is plain that the effect of such declaration might be far-reaching, and involve a stranger in utter ruin. Whether, at the time these declarations were made, the business was prosperous, or whether, on the other hand, the firm was insolvent, does not appear, nor could the admissibility of such testimony well be made to depend upon such circumstances. If the business was insolvent, it is very plain to see that the insolvent merchant could, by his own declarations, nominally against interest, fix upon his more prosperous neighbor the liability of a failing concern by his unsworn declarations. We-do not understand that the rule permitting declarations by one in possession as part of the res gestee goes so far. The cases cited by counsel for plaintiff are, with possibly one exception, cases in which the property with reference to which the declarations were made was directly involved in the action, or the right of possession was involved. Jacobs v. Callaghan, 57 Mich. 11; Avery v. Clemons, 18 Conn. 306 (46 Am. Dec. 323). But in this case the title to specific goods was not in controversy. The question was in whose behalf a contract of borrowing was made. If the testimony characterizing possession was useful for any purpose, it was useful as a declaration by John H. Buggie that he so contracted on behalf of defendant. See Carroll v. Frank, 28 Mo. App. 69; Darrett v. Donnelly, 38 Mo. 492; 1 Rice, Ev. 424; Burns v. Fredericks, 37 Conn. 86; Fellows v. Fellows, 37 N. H. 75. That declarations of an agent are not admissible to show his authority is, of course, well settled. Mechem, Ag. § 100.
None of the other questions raised call for discussion.
The judgment is reversed, and a new trial ordered.
Grant, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit. | [
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Grant, C. J.
(after stating the facts). Defendant urges that no negligence was shown, because the place where plaintiff was invited to alight was safe in the daytime, and was only rendered unsafe by the snow, and that the sudden fall of snow was therefore the approximate cause of the accident. It is sought to apply to this case the rule that municipalities are not liable for damages resulting from natural accumulations of ice and snow. There may be situations where this rule will apply, but it is not applicable to the present case. - It was held in Piquegno v. Railway Co., 52 Mich. 40 (50 Am. Rep. 243), that a railroad company does not owe the duty to its employés to remove the snow and ice from the ground along its track, even in proximity to depot platforms. In Canfield v. Railway Co., 78 Mich. 356, the company was held liable to a pedestrian falling upon an accumulation of ice caused by the freezing of water dripping from the water-spout of its water;tank upon the sidewalk. These are the only two cases cited from this court, and we do not recall any others involving accumulations of ice and snow.
Plaintiff was a stranger, was invited to alight, and had the right to presume that the place was reasonably safe. Counsel for the defendant appear to concede that, if a passenger was invited to alight at such place in the night, it would he negligence not to warn him of the danger, and take reasonable means to assist him in alighting. The brakeman was chargeable with knowledge of the location of the track. A little effort on his part with his foot would have removed the snow from the rail, and showed a safe place to alight. The danger was, or should have been, known to defendant. It was not, and could not have been, known to the plaintiff. Cartwright v. Railway Co., 52 Mich. 606 (50 Am. Rep. 274), states the rule governing this case, as follows:
“If a car in which there were passengers was not standing where it would be safe for them to alight without assistance, it was the duty of the company to provide assistance or give warning, or to move the car to a more suitable place. ”
See, also, the authorities cited in that case.
The case was properly submitted to the jury.
This case was twice ‘tried, the first jury rendering a verdict for the defendant. That verdict was set aside by the trial judge, and a new trial ordered. It is urged that plaintiff changed his testimony in the last trial from what it was in the first as to the place where he alighted. On account of this discrepancy, counsel urge the verdict ought not to stand. It is claimed that on the first trial he located the place where it was impossible for him to have stepped upon the rail, while upon the second trial he located it farther west. We do not think there was such discrepancy as to justify us in reversing the case. We think it was a question for the jury, and we see no occasion for disturbing their verdict.
Judgment affirmed.
The other Justices concurred. | [
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Hooker, J.
In July, 1896, the People’s Savings Bank closed its doors, and a receiver was appointed at the instance of the state banking commissioner. The petitioner, Whitney, has intervened in the proceeding, and asks that the receiver be required to recognize a lien in his favor to the amount of $11,000 and upwards upon the building occupied by the bank. In its more prosperous days the bank purchased this building from the petitioner upon a land contract, and paid the consideration, except the sum of $5,000, and some interest which was in arrears on March 12,1896. At that time the petitioner was a depositor of the bank, and had a credit for about $6,000, which he proposed to withdraw for investment elsewhere; but, at the solicitation of the cashier, he consented to loan said-sum to the bank at 6 per cent., the same to be secured upon this real estate. Accordingly he gave the bank a check for the amount, and took a writing of which the following is a copy:
‘ ‘ This memorandum of agreement, made this 12th day of March, 1896, by and between Edwin H. Whitney, of Lansing, Michigan, party of the first part, and the People’s Savings Bank, of the same place, party of the second part, witnesseth: That, for a valuable consideration to the party of the first part, the payments due on contract of April 6, 1894, between the parties hereto, have been-extended until January 1, 1897. It is also mutually agreed that the amount now due on said contract is the sum of $11,348, with interest at 6 per cent, per annum.
“ In witness whereof the parties hereto have set their hands and seals the day and year first above written.”
Stamped on the paper is “The People’s Savings Bank, Lansing, Michigan, by C. H. Osband, Cashier,” and “L. S.,” and then the seal of the register of deeds who recorded the contract, and “Edwin H. Whitney, L. S.”
Two questions are raised by the receiver. He contends —First, that the instrument is void for want of authority upon the part of the cashier to execute it; and, second, that the instrument is ineffective for the purpose.
An examination of the evidence convinces us that this loan had the approval, implied, if not express, of the officers of the bank. Mr. Osband, the cashier, so testifies, and Mr. Lee, the attorney and a member of the discount committee of the board, was consulted, and approved the instrument. Mr. Beal, the president, is not certain that he was not informed, and admits that there was “talk about making a loan of Whitney.” Mr. Robson stated that he did not know of it until after the bank failed, but he admitted that for a long period-it was the practice of Mr. Osband to obtain loans wherever he could, and that his action was invariably acquiesced in, if not always approved. This same land contract was previously hypothecated by Mr. Osband, and this was formally approved by the board, when brought to its attention by request of the officers of the City National Bank, to which it was pledged.
As to the instrument given, we have no hesitancy in treating it as an equitable mortgage of whatever interest the bank had in this property.
In our opinion, the prayer of the petitioner should have been granted. The decree of the circuit court is reversed, and one will be entered here granting the prayer of the petitioner, with costs of both courts.
■ Grant, O. J., Moore and Long, JJ., concurred with Hooker, J. | [
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Grant, C. J.
{after stating the facts). Brock, a witness in behalf of plaintiffs, testified to the representations made at the time of the contract of sale, and was permitted, under objection and exception, to testify to a conversation with Altman after the execution of the mortgages, in which Altman told him that his indebtedness had increased to $5,000, and that these debts were incurred prior to the sale in question. The objection made to this testimony is that it permitted Altman to demean the title which he had conveyed by the mortgages. At this 'time Altman was in possession. The court instructed the jury that these admissions and statements made after the giving of the mortgages were binding only upon Altman so far as his interest in the stock was concerned, and did not affect the mortgagee. Under this instruction, we think, no error was committed.
Error is assigned upon the refusal of the court to instruct the jury that there was no evidence in the case “as to what Altman was worth.” The record contains all the testimony, and, while we find no positive evidence to show that Altman was not worth from $4,000 to $5,000 over and above his indebtedness at the time the representations were made, we are not prepared to say that such an inference is not legitimate. There was evidence that his property consisted of the mortgaged stock. It is not usual for merchants to mortgage their stocks of goods when they are solvent, and at once surrender possession to the mortgagee.
After the jury had been instructed, counsel for the defendant requested the court to instruct them that the assignment from Snyder & McCabe and others must be presumed to have been for a valuable consideration. The court stated that there was no proof upon the subject, and no evidence of any consideration, and declined the request. The mortgage and assignment were introduced by the plaintiffs, and it does not appear that their validity was questioned. They were introduced to show the financial condition of Altman, and were competent, and, so far as the record shows, were only used, for that purpose. No such instruction was therefore necessary for the guidance of the jury.
Judgment affirmed.
The other Justices concurred. | [
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Montgomery, J.
Plaintiff sued defendant on a contract for commissions on a sale of real estate. Defendant offered, by way of set-off, a promissory note of $200, given for money borrowed. The circuit judge directed a verdict for the defendant for the amount of the note and interest, holding that plaintiff’s proofs did not make out a case entitling him to recover on the claim asserted. This ruling was challenged.
The plaintiff testified that the defendant was the owner of a piece of real estate for which he asked $5,000, and further testified as follows:
“I said, ‘How is it, Mr. Otto, if I get over $5,000?’ He said, ‘All you get over it is yours; ’ he was satisfied with $5,000. There was nothing said between me and Mr. Otto that I was to wait in case he sold on credit.”
He further testified that he was to have 2 per cent, of the first $5,000.
The testimony further disclosed that, after this arrangement as to terms, the plaintiff interested one Welch in the property, and asked him $5,600 for it; that Welch inquired as to terms of payment, and plaintiff thereupon sent for defendant, who arranged with the purchaser the terms of payment, which were $1,000 in cash and a mortgage back '•on the property of $4,600. The question is whether, under this testimony, it can be said, as a matter of law, that this contract entitled the plaintiff to an interest in the mortgage, and did not entitle him to demand his pay in cash. The circuit judge was of the opinion that the plaintiff was entitled to receive the excess over $5,000 only when the defendant had realized $5,000 in cash. Plaintiff testified that defendant himself arranged the terms, and that there was no agreement to defer his claim until the maturity of the mortgage; and while we do not intimate that there are not circumstances from which the jury might be justified in inferring that, as the transaction was closed up, defendant understood that plaintiff was to await the collection of the mortgage before exacting his $600, we are not prepared, on the other hand, to hold that this appeared so conclusively as to make it a question for the court. The case should have gone to the jury.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
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Long, J.
The Michigan Trust Company was appointed receiver of the Mecosta County .Savings Bank upon the petition of the banking commissioner of the State; and on November 16, 1896, all the property of the bank was turned over to it, and it has been in possession since that time. At the time the bank failed, it was occupying a banking office in the Comstock Block, in the city of Big Rapids. The block was owned at the time of the failure, and ever since has been owned, by Daniel F. Comstock, the president of the bank. Since the receiver was appointed, it has occupied the same banking office in this block, but has paid no rent therefor. On January 9, 1897, Daniel F. Comstock, by an instrument in writing, assigned all the rent due and to become due from the receiver for the. use and occupation of this banking office to his daugh ter, the petitioner here, who thereafter filed her petition in the court appointing the receiver, to compel it to pay, out of the funds in its hands, her claim for the rent. It was shown that the rental value was $83.33 per month. The court below directed the payment by the receiver for the period from November 16, 1896, to September 17, 1897, at the above rate, amounting to $833.33. The receiver appeals from this order.
At the time the assignment of rent was made, it appears that Comstock was indebted to the bank in the sum of upwards of $63,000, and, in addition, was holden and liable to depositors upon about 20 shares of the capital stock of the bank; and it appears that it' will be necessary to make an assessment upon said stock to pay such liabilities. The bank also owes its depositors about $204,000; and on January 9, 1897, Comstock gave a chattel mortgage for that amount, to secure his own indebtedness to the bank and to secure the depositors. Counsel for the receiver contends that, under this state of facts, the petitioner here took this assignment of claim for rent subject to all the equities between the bank and Com-stock; and the equity he insists upon is the right to set off Comstock’s indebtedness .to the bank of $63,000 against the rent of the bank building. It is admitted by counsel for petitioner that, as a general proposition, the assignment was subject to all the equities between the debtor and the creditor; but they deny the right to the set-off in this case under the facts appearing, — that this large indebtedness from Comstock was past due at the time the assignment was made, while the rent was not due and payable at that time; that this rent became due in monthly installments during the continued future occupancy of the premises by the receiver, and was earned and became due month by month after the assignment to petitioner. In other words, the claim is that a debt which is due and payable from an assignor cannot be set off against an assigned claim which is not due and payable at the time of the assignment.
We think this rule too well settled to need discussion. The claim assigned to the petitioner was not due and payable at the time it was assigned, and therefore no set-off could be allowed against it. Waterman on Set-Off (2d Ed., § 107) lays down the rule that, until a demand becomes mature, a set-off or counterclaim may be defeated by the assignment by the opposite party of his claim, though the latter be insolvent, and his demand has not become payable when assigned. This rule was followed in Bradley v. Thompson Smith’s Sons, 98 Mich. 449 (39 Am. St. Rep. 565); Kull v. Thompson, 38 Mich. 685; Richards v. La Tourette, 53 Hun, 623; Coffin v. McLean, 80 N. Y. 563; Fuller v. Steiglitz, 27 Ohio St. 355 (22 Am. Rep. 312). See, also, 22 Am. & Eng. Enc. Law, 301.
The order of the court below must be affirmed.
The other Justices concurred. | [
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Long, J.
The petition shows that in January, 1898, the attention of respondent was called by petition by the city of Detroit to the dangerous character of the crossings at the intersections of the tracks of the Lake Shore & Michigan Southern Railway Company, the Grand Trunk Railway Company, and the Michigan Central Railroad Company, with Michigan, Woodward, Gratiot, and Grand River avenues in the city of Detroit. In February following, the respondent made an investigation, and determined that there was a necessity for a separation of grades at the intersection of the streets and railroads men tioned, and that steps should at once be taken by the proper authorities to separate the grades at such points for the safety and convenience of the public, and for the better and more expeditious operation of the railroads crossing over them. The respondent determined that he had no power or authority to direct such separation of grades, or to compel bridges to be constructed at the points mentioned, because Act No. 92, Pub. Acts 1893, had taken away the power given him by Act No. 79, Laws 1873, by which later act the powers conferred on the commissioner of railroads by the earlier act are now conferred upon the grade-crossing board. The respondent having refused to act in the premises, the attorney general files this petition to compel him, as such commissioner of railroads, to act in the premises; the attorney general claiming that such power is still vested in the respondent. The respondent has made his return to an order to show cause, in which he denies that any such power rests in him under the act of 1893.
In 1873 the legislature passed an act entitled—
“An act to provide for the appointment of a commissioner of railroads, and to define his powers, duties, and fix his compensation.” Act No. 79, Laws 1873.
Section 17 of that act, so far as it is material to the question involved, provides:
“Whenever, in the opinion of the commissioner of railroads, the safety of the public would be more efficiently secured by stationing a flagman to signal trains where a highway or street-is crossed by any railroad, or where one railroad crosses or intersects another railroad, or by the building of a gate or bridge at such highway,- street, or railroad crossing or intersection, he shall direct the corporation or corporations owning or operating any such railroad or railroads to station a flagman or to erect and maintain a bridge or gate at such crossing, as the public safety may demand. * * * Any corporation or corporations neglecting or refusing to construct such gate or bridge, or to maintain such flagman, so directed as aforesaid, shall each forfeit for every such neglect or refusal the sum of one hundred dollars, and the further sum of ten dollars for every day which such neglect or refusal shall continue. * * * ”
Act No. 92, Pub. Acts 1893, is entitled:
“An act to provide separate grades for railroads and public highways and streets where railroads intersect such highways and streets.”
(1) That act provides for a standing board or commission, consisting of the commissioner of railroads and two other persons, to be appointed by the governor, with the consent of the senate, every two years, charged with the duty. (2) It provides that upon proper application to it in that regard, as provided in said act, said board shall investigate the necessity for the separation of grades at the crossing designated in such application. (3) It provides that, in case said board finds such separation necessary, it shall determine whether the grade of the railroad or of the highway or street shall be raised or lowered, and how much. (4) It provides that the new grade of the' street shall not exceed a maximum of one foot in ten, or of the railroad one foot in one hundred. (5) It provides that such board shall estimate the cost and expense of constructing the work, and the equitable proportion which shall be borne by the railway company and the municipality, respectively. (6) It requires the board to make a report,' setting forth in detail the plan by it adopted, to which report shall be attached, as part thereof, the plan of construction, profile, and map mentioned in said report, and said report shall state the cost and expense of the work to be done or constructed by the municipality. (7) It gives said board authority to employ an engineer to assist it in determining upon and making profiles, plans, estimates, and reports, and such clerical assistance as it may need. (8) It makes provision for the commencement and carrying on the proceedings to separate grades in accordance with the plans provided by said board.
From the view we take of these statutes, we deem it unnecessary to consider the question of the power of the commissioner under the act of 1873, as the act of 1893 covers the whole question of the separation of grades, and all the powers which were given the commissioner under the act of 1873 are now cast upon the grade-crossing board. The act of 1893 provides a full and perfect system upon the subject. By it the powers which, under the former act, are given the commissioner to determine when a separation of grades is necessary, and to order such separation, are conferred upon a board of three persons, of whom the commissioner of railroads is one. It prescribes in detail how and when the power given shall be exercised. It provides for the judicial proceedings necessary to be invoked in order to carry the determination into effect. While repeals by implication are not favored in the law, yet it is a rule of construction followed by this court and other courts that a statute revising the whole subject of a former statute, and intended as a substitute, operates as a repeal of the former law, though it contains no words to that effect. Moore v. Township of Kenockee, 75 Mich. 332 (4 L. R. A. 555). The question of repeal or nonrepeal is one of legislative intention. As was said in Shannon v. People, 5 Mich. 85: “Where a subsequent statute covers the whole ground occupied by an earlier statute, it repeals by implication the former statute, though there be no repugnance.” Mr. Justice Christiancy, in laying down the above doctrine, followed the doctrine of a large number of cases and text-writers cited by him in that opinion. In a well-considered case reported in 40 N. J. Law, 257 (Roche v. Mayor, etc., of Jersey City), the question being whether or not a prior ordinance had been repealed by a subsequent one, the court said:
“The ordinance of 1870 does not expressly repeal the ninth, tenth, and eleventh sections of the ordinance of 1862, and it is a familiar doctrine that repeals by implication are not favored. When there are two laws on the same subject, the rule is to give both effect, if possible. But if the two are repugnant in their provisions, the later, to the extent of the repugnancy, operates as a repeal of the former; and where they are not repugnant in terms, yet if the later act covers the whole subject-matter, and it appears that it was intended as a substitute for the first act, it will operate as a repeal of that act. * * * To have the rescinding effect, it is not necessary that the subsequent act should have every provision of the former one. It is sufficient if it revises the whole subject-matter, and an intention is manifest to make it a substitute for the earlier act. * * * Every statute must be considered according to what appears to have been the intention of the legislature, , and, even though two statutes relating to the same subject be not in terms repugnant or inconsistent, if the later statute is clearly intended to prescribe the only rule which should govern the case provided for, it will be construed as repealing the original act.”
This statement is only the reiteration of the general rule laid down by text-writers and the courts generally. Sedg. Stat. & Const. Law (2d Ed.), 100; Crowell v. Jaqua, 114 Ind. 246; Mersereau v. Mersereau Co., 51 N. J. Eq. 382; Murdock v. City of Memphis, 20 Wall. 617; Bartlet v. King, 12 Mass. 536 (7 Am. Dec. 99); District of Columbia v. Hutton, 143 U. S. 18, and cases cited.
But counsel for relator contends that the case of Ft. Street Union Depot Co. v. State Railroad-Crossing Board, 81 Mich. 248, has a bearing upon the question here. The validity of the act was not raised or questioned in that case, and consequently was not considered or discussed by this court.
The writ of mandamus must be denied.
The other Justices concurred. | [
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Long, J.
Certiorari to review the proceedings of the defendant, as county drain commissioner, to clean out what is known as “Section Sixteen Drain” in St. Joseph county. The cause was heard in the circuit court, and comes into this court by writ of error. The court below dismissed the writ of certiorari'.
It appears that on March 1, 1897, all the plaintiffs in the writ of certiorari but Falkenstine petitioned the county drain commissioner, stating in the petition that—
“The said drain needs cleaning out from the north line, south'170 rods or more, to the half-section line; that such cleaning out and deepening is a necessity by reason of agricultural purposes. And your petitioners do hereby make application, and respectfully request, that said section sixteen drain may be cleaned out, in accordance with the provisions of Act No. 227 of the Public Acts of 1885, as amended.”
Such proceedings were thereafter had that contracts were let, the drain cleaned out, and an assessment made for the cost of the work.
While several grounds of error are set out in the affidavit for the writ, we shall notice those only which are discussed in the brief of plaintiffs’ counsel.
It is claimed that no notice was given, as required by the statute, of the time and place of letting, by serving personal notice upon every person whose lands were affected by such assessment. The proceedings were had under the provisions of Act No. 227, Pub. Acts 1885, as amended by Act No. 203, Pub. Acts 1893. Section 1 of chapter 8 of the latter act provides for the cleaning out of established drains upon the application of a majority of the owners of the lands assessed for the original construction; that the assessment for the work in cleaning out the drain may, in the discretion of the commissioner, be upon the same per cent, fixed for the original construction thereof. This same section provides that, whenever any such drain shall need widening or extending, the same proceedings shall be had throughout in every respect as provided in the act for locating and constructing a drain in the first instance. "While the petition suggests the deepening of the drain, yet the petition and the subsequent proceedings show that it was intended to ask only a cleaning out of the drain; and the commissioner returns to the circuit court in his return to the writ of certiorari that—
“This defendant, acting under the petition, did not deepen said drain, and in cleaning out said drain did "not go to the depth as established by William McLoughlin, when he was called out in 1892 as aforesaid, and did not dig as wide as said McLoughlin had then established; and that he fixed the assessments in the same proportion as was fixed by McLoughlin.”
As the statute of 1893 provided, it was only when widening or extending that the same proceedings were necessary as in the construction of the drain. The commissioner did not widen or extend the drain. It was the evident intent of the legislature that, in the cleaning out of the drain, the commissioner need not take the same steps as in the original construction of it. The land had been already condemned for that purpose. In cleaning out, the commissioner was simply working upon land already appropriated for the drain. Had this been an original proceeding to construct the drain, then the notice would have been necessary. As the defendant was not constructing a new drain, it was not necessary to take the steps required by the act in such cases. A petition was filed with him, as required by the act, and he let the contract to the lowest bidders to clean out the drain. The petition was in due form, and conferred jurisdiction upon the commissioner. Hall v. Slaybaugh, 69 Mich. 484.
The other questions raised relate to mere irregularities in the proceedings. The original drain was legally laid out. The contracts for cleaning out were carried out, and the work is completed. The plaintiffs here petitioned for the cleaning out, and now seek to avoid the payment of the expenses by having the proceedings set aside. They acquiesced in the work, and cannot now be heard to complain. Tucker v. Parker, 50 Mich. 5; Whitbeck v. Hudson, Id. 86; Brady v. Hayward, 114 Mich. 326.
The judgment of the circuit court must be affirmed.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). Defendant requested the court to instruct the jury that if they found the contract as claimed by plaintiff, and they should further find that, by mistake of the plaintiff, the defendant had been caused unnecessary expense in the construction ■of the building, they should determine the amount of such unnecessary expense, and deduct it from the value of the services rendered. This was refused, and the court instructed the jury as follows:
“The notice of defendant, which I have called your attention to, alleges that the plans and specifications drawn by the plaintiff were unskillfully drawn, whereby the alleged damages resulted. A person who holds himself out to the public in a professional capacity holds himself to be possessed of average ability in such profession, and ihe law implies that he contracts with his employer (1) that he possesses that requisite degree of learning, skill, and experience which is ordinarily possessed by the profession in the same art or science, and which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business; (2) that he will use reasonable and ordinary care and diligence in the exercise of his skill — in the application of his knowledge — to accomplish the purpose for which he is employed; (3) in stipulating to exert his skill and. apply his diligence and care, an architect, like other professional men, contracts to use his best judgment. If you shall find that the plaintiff was qualified to that degree which the law required him to be in his profession, then the question as to whether or not he did the work unskillfully is a question which you are to determine under the rule I have just given you. If he made any mistakes by which the defendant was damaged, and it was through negligence or from incapacity, he is liable for such alleged specific damages as you may find from the evidence grew out of such negligence or incapacity. If, from a mistake growing out of the exercise of his best judgment, he possessing the reasonable degree of learning, skill, and experience in his profession required by law or implied by law, then, in such case, he would not be liable for any damage resulting therefrom. A mistake in judgment does not excuse negligence or ignorance.”
The request does not correctly state the law. It makes the architect a warrantor of his plans and specifications, although they might be justified by the knowledge and experience of those ordinarily skilled in the business. The law does not imply such a warranty, or the guaranty of the perfection of his plans. The result may show a mistake or defect in them, although he may have exercised the reasonable skill required. Plans, now considered safe, experience and advanced knowledge of the science may hereafter show to be unsafe. The law requires only the exercise of ordinary skill and care, in the light of present knowledge. Coombs v. Beede, 89 Me. 187 (56 Am. St. Rep. 406); Shipman v. State, 43 Wis. 381; Smothers v. Hanks, 34 Iowa, 286 (11 Am. Rep. 141); 2 Am. & Eng. Enc. Law (2d Ed.), 818. The above authorities seem to hold that the responsibility of an architect does not 'differ from that of a lawyer or physician. When either possesses the requisite skill and knowledge, and in the exercise thereof has used his best judgment, he has done all that the law requires. The question was, Had plaintiff exercised that degree of care and skill and that judgment which are common to the profession or business ? The defects alleged to exist in the plans were in the construction of the sewer, the cornice and coping for the towers, the stairway and elevator, and the flue of the chimnéy. If the plans and specifications for these parts of the building were justified by the common knowledge upon such matters at the time, and met the judgment and approval of those then ordinarily skilled and experienced in their construction, the plaintiff had complied with his contract. We think that the jury must so have understood the instructions.
Plaintiff gave defendant the following receipt:
“Grand Rapids, Mich., Dec. 8, 1894.
“ I hereby acknowledge full payment and satisfaction for all services heretofore rendered, or hereafter to be rendered, in and about the preparation of plans for the business block to be built by M. J. Clark on South Ionia street, and in looking after the building of said block, to its completion. W. A. Chapel.”
Error is assigned upon the following instruction:
“If the circumstances under which the receipt, so called, was given by the plaintiff, were as testified to by the plaintiff, it was given at the request of the defendant, under a promise by him that, as between them, it was to have no effect, and the defendant would, in fact, pay to plaintiff all that his services should be worth, — ‘would pay him well for his services,’ in his own language.”
The objection is that there was no testimony on which to base the instruction. The case evidently was tried by both parties upon the theory that this receipt was open to explanation. Plaintiff testified that defendant, just before leaving home for California, asked for this receipt, saying that it would make no difference with their agreement, and that he was going to pay him well for his work. There was a clear dispute as to the circumstances and reasons for giving this receipt, which made it a proper subject for the determination of the jury.
Several errors are assigned upon the admissibility of testimony. We find nothing in this testimony which we think was prejudicial to the defendant.
Judgment affirmed.
The other Justices concurred. | [
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] |
Grant, C. J.
(after stating the facts). The receipt in this case is identical, except in the names and address, with that found in Smith v. American Express Co., 108 Mich. 572. The defenses were: (1) That the package was delivered in time; and (2) that the defendant had complied with its contract, by delivering the same in the regular course of business to the connecting carrier, the Adams Express Company. There was no request or direction on the part of the plaintiff to deliver the package directly to the secretary of the treasury, or to any one of its numerous departments. It is conclusively proven that it was delivered at the treasury department, at the customary place for such packages to be delivered, in the absence of express directions to the contrary, three-quarters of an hour before the time that the bids were to be opened and examined. If there was fault anywhere, it was attributable to the treasury department, at Washington, and not to the express companies who agreed to transport and deliver it. The agent of the Adams Express Company, who delivered it, swore positively to its delivery at 1:25 p. m., July 1st, and that he minuted upon the proper book at that time the date of such delivery. This book was identified and received in evidence. Two witnesses, employed in important positions in that department of the treasury where these bids would be received, testified that they were not received in that department till 3:07 p. m. This testimony is not in conflict with that of -the agent of the express company who delivered the package. That company had discharged its full duty in delivering the package at the usual place in the treasury department. It did not agree or assume to deliver it to the appointment division, which had charge of these contracts, and bids, or to the secretary in person. Plaintiff gave no such direction to defendant, and did not inform it that there was any particular person or department to whom, or to which, the package was to be delivered. The court properly directed a verdict for the defendant.
Judgment affirmed.
The other Justices concurred. | [
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Hooker, J.
Benny purchased two horses from the plaintiff, and gave him a writing of which the following is a copy:
“Fargo, Michigan, April 13, 1894.
“On or before the 1st day of October, 1894,1 promise to pay Charles E. Farr, or order, one hundred and eighty dollars, with exchange, at Fargo, Michigan, with interest at 7 per cent, if paid at maturity. If not paid within 30 days after maturity, then I agree to pay interest at the rate of 8 per cent, from this date until paid.
“I have this day received from Charles E. Farr one span of mares, six years old, black, and I also add to above one black mare, three years old past, as additional security for the payment of this note, which I agree to safely keep, and return to said Charles E. Farr or assigns, upon demand. The title of said property shall remain in said Charles E. Farr until this note is paid. The said Charles E. Farr or assigns are hereby authorized, if they deem themselves insecure, to declare said sum and interest due immediately, and to proceed to the collection thereof; or, if the said Charles E. Farr or assigns elect to do .so, then they may take possession of said property, wherever the same may be, without process of law. If said Charles E. Farr or assigns shall take possession of said property hereunder, then all moneys paid hereon shall belong to them as an agreed price for the rent of said property, and damage thereto growing out of the use thereof.
[ Signed ] ‘ ‘ Reuben Benny. ”
This writing was not filed with the township clerk. Subsequently, Benny left the black mare with Rabideau, in pledge for a debt of |10. The defendant sued out an attachment, and seized the three-year-old mare for a debt due to him from Benny, and the plaintiff replevied her, after demand and refusal of possession. The writ of attachment issued May 16th, and was returnable May 26th. The return was as follows:
“By virtue of the within attachment, I, R. E. Lawrence, on the 16th day of May, at 8:30 o’clock a., m., seized the goods and chattels of the defendant mentioned in the inventory of which the annexed is a copy; and on the following day, because the defendant could not be found by me in the county of St. Clair, I left a certified copy of said attachment and said inventory, duly certified by me, at the last place of residence of the said defendant, in the county of St. Clair, and State of Michigan.
“R. E. Lawrence, Constable.”
The writ of replevin issued May 24th. At the time the mare was taken from Rabideau, he made known his claim to the defendant, who suggested that he share the expense of the attachment proceedings and in the proceeds. This he declined, and the defendant told him to come over at the time of the sale, and put in his claim.
The circuit judge held that the attachment proceedings were void for want of a proper -service, and in this we think that he did not err. The question is ruled by the case of Brown v. Williams, 39 Mich. 755. As in that case, the return before us fails to show that the officer made any effort to find the defendant named in his writ after the time when he made the substituted service, although he had two or three days thereafter within which a personal service would have been valid.
But a verdict was directed for the defendant, upon the ground that the plaintiff was not entitled to the possession of the mare as against Rabideau, and that the defendant’s possession was that of Rabideau, inasmuch as Rabideau consented that he might take the mare under his attachment. It is contended by the plaintiff that the evidence shows that Rabideau waived his lien, in favor of the attachment. We think the evidence does not show this, but rather that he was willing to permit the attachment subject to his lien. At that time the attachment proceedings were apparently valid; and, if they were not perfected, it became the duty of the officer, or of the defendant, who held the property under his authority, to return it to Rabideau.
Even if Rabideau had consented to waive his lien in favor of the defendant, he did not waive it in favor of the plaintiff. It is obvious that the plaintiff’s interest was in the nature of security, and as the instrument was not filed, and Rabideau had no notice of it, Rabideau’s rights were superior.. It wras competent for the defendant to attach subject to Rabideau’s rights without payment of his claim, by his consent; and, after the attachment proceeding failed, he was accountable to Rabideau for the possession.
The judgment of the circuit court is affirmed.
The other Justices concurred. | [
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Moore, J.
The relator asks for a writ of mandamus to compel the respondent to aid in the maintenance and repair of a viaduct over certain streets in the city of Detroit. The record shows that in October, 1889, the respondent presented to the railroad-crossing board a map and survey of its depot grounds and the route of its proposed tracks for approval. At this time the company contemplated building a trestle or viaduct along and over River street, in the city of Detroit, crossing the tracks of the Michigan Central Railroad, near Eleventh street. At this time the Michigan Central Company had 13 tracks crossing River street at an angle. The railroad-crossing board found this crossing was then dangerous, and that some means should be provided to secure the safety of teams and foot passengers. The board also determined that the setting of posts along River street to support the viaduct superstructure, the superstructure itself, and the noise and smoke of passing trains, would increase the danger, and refused to approve of the map unless some provision was made for the safety of teams and foot travelers. After this the Union Depot Company and the Michigan Central Nailroad Company appeared, before the board by their attorneys, when an order was drawn by the attorney of the Union Depot Company, and agreed to by both companies, and assented to by the railroad-crossing board, which provided, among other things, for the construction of a viaduct at an elevation of at least 18 feet of clear space over the tracks of the Michigan Central, and that- — •
“The said superstructure shall be so constructed on River street as to provide a passageway for teams and foot travelers, and in accordance with plans and specifications to be first submitted to and approved by the commissioner of railroads. The cost of the part of the superstructure for the passage of teams and foot travelers, and of the approaches thereto, shall be borne by the two companies in interest, in equal proportions, share and share alike.”
'The map of the respondent at this time was approved, and was afterwards filed. Afterwards the commissioner ■of railroads made an order requiring the construction of ;an overhead passageway for the use of teams and footmen, and specifying the manner and place of its construction. The findings of the crossing board and the orders made may be found in full in Fort St. Union Depot Co. v. State Railroad-Crossing Board, 81 Mich. 248. The viaduct was afterwards constructed, and the cost borne share and share alike by the two companies. This viaduct was allowed to become so out of repair as to be dangerous for travel, and has been closed by the board of public works of the city of Detroit for that reason. In January, 1897, the state railroad commissioner, after a full hearing and after due notice, found the superstructure was constructed at the expense of the two companies in the .interest of public safety, and that all the conditions which led to the necessity of the construction of the viaduct still exist, and make its maintenance necessary. The commissioner made an order requiring its maintenance, at the expense of the two companies, share and share alike. The Michigan Central Railroad Company has always been, and is now, ready to pay half the cost of maintenance, but the respondent refuses to do so, basing its refusal upon two grounds:
1. Because the order requiring the construction of the viaduct did not require its maintenance.
2. Because the viaduct, whfen built, became a public highway, dedicated to the public, and accepted by it, and the expense of maintenance should be borne by the city of Detroit, — citing 3 How. Stat. § 3301; 3 Elliot, R. R. § 1092, and notes.
It is true the word “maintain” is not used in the orders made prior to the construction of this viaduct. It is, however, impossible for one, after reading the details of what occurred and the orders made, to conclude that any one then expected, when the viaduct was constructed, the duty of- the two companies towards the passageway for teams and foot travelers would be ended, and they forever absolved from maintenance. It is a significant fact that the Michigan Central Railroad Company has never so understood the proceeding. The railroad-crossing board and the railroad commissioner found the erec-. tion of this superstructure increased the danger to teams and foot passengers on the River-street crossing. It is perfectly evident that, as long as the superstructure is continued, the danger will be continued, and, if it was necessary in the first instance to construct this passage-way, it is equally necessary it should be maintained so it shall be reasonably safe and fit for travel. The original increase in danger was caused by the necessity of this structure to enable the respondent to do business. The continued danger is caused by the continuance of this structure in the street and its use by the respondent. Common fair ness would imply the duty of the respondent to pay its share of maintenance.
If the railroad commissioner had, or the railroad-crossing board, under the more recent statute, should, make an order requiring a railroad company to erect gates at a street crossing, but failed to say anything about maintaining them, could it be said the railroad company had discharged its duty when it had erected its gates, and that afterwards some one else must maintain and operate them ? The duty to erect such structures and appliances carries with it the duty to maintain. People, ex rel. Attorney General, v. Bay County Bridge Commission, 115 Mich. 622; Dietrich v. Schremms, ante, 298. The question of the validity of the original orders made in this case was raised and passed upon in Fort St. Union Depot Co. v. State Railroad-Crossing Board, 81 Mich. 248. It was there held the orders were valid. The statute authorizing the commissioner to make the order provides:
“ Whenever, in the opinion of the commissioner of railroads, the safety of the public would be more efficiently secured by the building of a gate or bridge where a highway or street is crossed by any railroad, or where one railroad crosses or intersects another, he shall .direct the corporation or corporations owning or operating any such railroad * * * to erect and maintain a bridge or gate, as the public safety may demand; and in case such * * * gate or bridge is directed to be erected and maintained where one railroad crosses or intersects another, the expense shall be borne jointly,” etc. 3 How. Stat. § 3301.
Where a bridge is required under this statute by the railroad commissioner, the duty of the railroad company does not end with its construction, but its duty is continuous. It must maintain as well as construct.- It is not to be presumed the legislature intended to simply provide for the safety of the public at the time the bridge or gate is ordered. It intended to provide for the safe and convenient use of the highway for all time. Cooke v. Railroad Corp., 133 Mass: 185; Maltby v. Railway Co., 52 Mich. 108; Jeffrey v. Railroad Co., 108 Mich. 221 (31 L. R. A. 170). It is just as much the duty of the respondent to pay its share of maintaining this viaduct as it was to pay its share of construction.
The writ will issue as prayed.
Thé other Justices concurred. | [
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] |
Grant, O. J.
(after stating the facts). The case is so well stated by Judge Steere in setting aside the first ver-' diet that we quote it:
“After carefully reading the testimony, which has been furnished by counsel, I am forced to the conclusion that the doctrine of ‘ fellow-servant ’ applies in this case; and on the undisputed testimony, taken most strongly in favor of the plaintiff, there can be no recovery. At the time of the accident, Keeran was only a working foreman, in charge of the final adjustment of the elevators. He was taking part with Andre in the performance of that labor. The elevators were then constructed, and the plant installed. The situation is the same as though these men had been sent to do that work, and make repairs, after a break in the machinery, which had been in operation for a long period. No claim is made that an incompetent foreman or fellow-servant was employed. Keeran was a man of skill and experience in his business, was working with his hands, with Andre as a helper, and they were co-laborers in the same line of employment, each depending for his safety on the care and skill of the other. The power which Keeran had to hire and discharge men and direct details of the work is not the test, for the work he was performing when the accident occurred did not necessarily belong to the employer.”
The statement of Judge Carpenter in directing a verdict is equally cogent.
Plaintiff and Keeran were fellow-servants. Keeran possessed none of the authority of a vice principal. He had no greater authority than the foreman of a section gang upon a railroad, or a foreman in a shop. He worked with plaintiff at the same work, and with like tools. He was only above plaintiff in that he directed how the work assigned them should be done. At the time of the accident, he had gone into the place to do the work himself. We have discussed this doctrine so often and so fully, especially in Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (27 L. R. A. 266), and Schroeder v. Railroad Co., 103 Mich. 213 (29 L. R. A. 321, 50 Am. St. Rep. 354), that we refrain from discussing it now. This case is ruled by these cases, as well as by Findlay v. Russel Wheel & Foundry Co., 108 Mich. 286. We find that several cases of the federal courts, decided within the last two years, fully support the above decisions. Central R. Co. v. Keegan, 160 U. S. 259; Northern Pacific R. Co. v. Peterson, 162 U. S. 346; Alaska Mininy Co. v. Whelan, 168 U. S. 86; Cleveland, etc., R. Co. v. Brown, 20 C. C. A. 147, 73 Fed. 970; Batch v. Haas, 20 C. C. A. 151, 73 Fed. 974. .
The rule of duty to furnish a safe place has no application here. The place was as safe as any places of that kind are. Proper tools and machinery and competent workmen had been furnished. The accident resulted from the failure to take the proper precautions to stop the elevator.
Judgment affirmed.
The other Justices concurred. | [
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Hooker, J.
The plaintiff recovered a judgment for $10 against the defendant upon the claim that he was appointed policeman of said city, and that such sum was due him under such appointment. Error is brought by the defendant, who maintains that the plaintiff was not lawfully appointed, and that he has performed no services for the city. Section 3, chap. 5, Act No. 442, Local Acts 1897, provides that—
“ The council shall appoint * * * one chief of police, and such other number of policemen with pay, and such number of policemen and watchmen without pay, as they shall deem necessary.”
Section 3, chap. 9, of the act, contains the following provision:
“No ordinance or resolution passed by the council shall have any force or effect if on the day of its passage, or on the next day thereafter, the mayor or acting mayor shall lodge in the office of the city clerk a notice in writing suspending the immediate operation of such ordinance or resolution. If the mayor or acting mayor shall, within three days after the passage of any such ordinance or resolution, lodge in the office of the city clerk his reasons in writing why the same should not go into effect, the same shall not go into effect nor have any legal operation, unless it shall, at a subsequent meeting of the council, be passed by vote of two-thirds of all the aldermen elect.”
On January 24, 1898, the following action was taken by the council:
“ Whereas, this council was on the 10th. instant petitioned by a large number of citizens and taxpayers of the First and Second wards of said city, said petition submitting that the police protection furnished that portion of the city was insufficient, and asking that one additional policeman be appointed therefor:
“Resolved, that the council proceed to appoint by ballot one additional policeman, as per the prayer of said petitioners.
“Adopted.
“Yeas: Gleason, Portt, Hawes, Jodway, Grant, F. H. Davis, Wadrop, — 7.
“Nays: E. L. Davis, Thomson, Fox,- — 3.
“Council proceeded to appoint an additional policeman. Result as follows: Numerous ballots being taken, the last ballot stood: Róese, 1; Kiesel, 2; Kindermann, 7.
“Nester Kindermann declared appointed policeman.”
The action was promptly vetoed.
It is contended upon behalf of the plaintiff that the appointment of the policemen is confided to the aldermen, and that the mayor has no authority in the premises. The mayor, city clerk, and aldermen constitute the council, under chapter 8 of the charter, hereinbefore cited. Whether the power to veto an election of charter officers when elected by the council exists under the charter, we need not inquire. In the case before us the council was given authority to determine whether or not it would have policemen, and a resolution to provide for a policeman is clearly subject to veto. Not only the selection of the officer, but the determination to have a policeman, was involved in the action taken. The mayor professed to veto this action — not alone the selection of the plaintiff —upon grounds which show that the resolution to provide for an officer was aimed at.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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Hooker, J.
The boundaries of the townships of In-wood and Harrison, in the county of Schoolcraft, were fixed by the legislature by an act which took effect March 18, 1893, the only purpose of which was to detach certain territory from the township of Inwood, and attach the same to the township of Harrison. On November 8,189?, a petition, signed by the requisite number of freeholders of the two townships as then constituted, was presented to the board of supervisors of the county, praying that certain territory be detached from the township of Harrison, and attached to the township of Inwood. Notice, proof of posting, publication, and the residence of the petitioners were shown. On December 15, 1897, the prayer of the petitioners was granted at a special meeting of the board. On December 21, 1897, the supervisor of the township of Harrison removed the proceedings to the circuit court by certiorari, where the writ was dismissed upon the hearing, and it has come to this court by writ of error.
1 How. Stat. § 486, provides that “the board of supervisors * * . * shall have power * * * to divide or alter in its bounds any township, or erect a new township,” and points out the steps necessary for the accomplishment of such purpose; and this section was in force, substantially in its present form, prior to the compilation of 1857. This section was in force in 1893, ivhen Act No. 291, already mentioned, was enacted by the legislature. Two years later section 486 was amended. See Pub. Acts 1895, Act No. 254. But this amendment related only to the matter of indebtedness, and cannot affect the question before us. Were it a new act, giving new powers to the supervisors, the presumption would be that the legislature did not intend to include the territory affected by the previous special legislation, unless there could be found in the general legislation evidence of such intention. See End. Interp. Stat. § 223; Regents of University v. Auditor General, 109 Mich. 134. See, also, a discussion of this question, and authorities collected, in City of Lansing v. Board of State Auditors, 111 Mich. 327 334.
It would seem manifest that if a special act is to be considered so clearly expressive of a legislative intent to deal with a particular locality as to exclude such locality from 'the operation of a general statute of later date, when an opposite intention is not clearly apparent from the latter, a special act should have effect over subsequent action by an inferior power, exercising only delegated authority under a prior law. If this is a correct rule of construction, the special act would stand, as applied to these town ships, as against a general act of the legislature itself, providing for a change of boundaries by a board of supervisors; and, if so, there would he little justification for saying that it would not as against action by the supervisors acting under an earlier one. The legislature has formally and solemnly decided upon the boundaries of these particular townships, notwithstanding the existence at the time of a law permitting the board of supervisors to deal with the matter. Shall we assume that the legislature went out of the usual course to fix the boundaries of these townships, with the expectation that its work would be undone in the immediate future by a local board of its own creation, which might have been called upon to act, instead of the legislature, in the first instance ? Should we not rather conclude that for some purpose it was deemed expedient to place the boundaries of these townships beyond change until the legislature should itself see fit to make a change ? Action of this kind was taken in relation to the highway law (see Woodmere Cemetery v. Roulo, 104 Mich. 595), from which it appears that the legislature sometimes intervenes for the protection of particular localities; and, when it does, it should not be lightly inferred that such interference has no purpose, or that it is merely temporary. In the present case it is urged that the legislature intended to fix these boundaries, but subject to subsequent local control. If this is so, the boundaries of the townships might have been changed by the supervisors within four weeks of the time when the special act took effect as lawfully as though they had waited four years. It is not reasonable to suppose that such was the intention, and, as said by Mr. Justice Graves in School District No. 13 v. Dean, 17 Mich. 231:
“The district [here township] in question was created by direct legislation; and a continuing, independent power to dissolve it, vested in another body, would be anomalous. It would suppose two powers in operation at the same time, one of which would have the right to create, and the other, at the same instant, the right, to destroy, while one of these conflicting authorities could only exist by the sufferance of the other.”
It may be admitted that the present case is distinguishable from that upon the facts; but in neither does it appear that the legislature intended to subject the township or school district created by itself to the jurisdiction of the board of supervisors or school inspectors. The presumption is that it did not.
The order of the circuit court is reversed.
The other Justices concurred. | [
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] |
Montgomery, J.
This is an appeal from a decree of foreclosure. The bill of complaint was filed to foreclose three mortgages, each executed by the 'defendants upon stated consideration; respectively, 17,000, $3,000, and $2,500. The consideration clause reads substantially the same in each, and is as follows:
“ Witnesseth, that the said mortgagors, in consideration of the sum of seven thousand dollars, the receipt whereof is acknowledged, and for the purpose of securing the repayment of the said sum, with interest, as hereinafter pro vided, and the performance of the covenants hereinafter contained, hereby mortgage,” etc.
This is followed by a covenant to pay to the mortgagee, its successors and assigns, th£ said sum of $7,000 on or before one year from date. A later provision is as follows:
“Said mortgagors agree to pay said mortgagee any sum of money which he may now or hereafter owe said mortgagee by reason of any note, check, draft, or other paper upon which his name shall appear, either as maker or otherwise; and dais mortgage and its accompanying note, until disclaarged, is to be a continuing security for payment of any. sucia sum or sums.”
The circuit judge found that there was due the complainant $21,522.77. Defendants have appealed, and contend in this court that the consideration should be limited to the amount named in each mortgage as the consideratioia.
It is settled that a mortgage to cover future advances is valid. Michigan Insurance Co. v. Brown, 11 Mich. 265; 1 Jones, Mortg. § 373.
The amount named as consideration of the mortgage does not limit the amount for which the mortgage may stand as security, if, from the whole instrument, the intent to secure future indebtedness is to be gathered. Keyes v. Bump’s Adm’r, 59 Vt. 391.
The claim was made by defendant Wilhelmina Kock that she was deceived as to ihe contents of the mortgage. The learned circuit judge decided that the presumption arising from the execution of the mortgage had not been overcome by the proof offered by the defendants. We are satisfied upon examination of the record that no misrepresentation was made to the defendants, and that, on the contrary, Mrs. Kock was informed that the instrument was intended to secure all paper indorsed by Mr. Kock.
It is contended, further, that the parties undei’stood that the mortgages were security only for the amount named in each. The terms of the' mortgage must control this question.
The deca’ee will be affirmed, with costs.
The other Justices concurred. | [
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Moore, J.
In October, 1885, the plaintiff Edgar P. Dickey gave bis note for Bohemian oats for $160. In September, 1889, Mrs. Salmon recovered in tbe circuit court a judgment upon this note. Afterwards an execution was issued, and placed in the hands of the sheriff, who is defendant in this case. In September, 1894, he levied upon crops grown upon an 80-acre farm, occupied by the plaintiffs in this case. He afterwards sold the crops, and the plaintiffs sued him in trover for the conversion. The case was tried by the circuit judge, who gave judgment in favor of plaintiffs. He also made findings of fact and conclusions of law. Defendant brings the case here by writ of error.
The record discloses that prior to November, 1881, John H. Dickey bought the farm for the purpose of selling it to his son Edgar and his nephew John Bennett, and made a contract with them by which they agreed to assume a mortgage of $1,200 which was on the farm, and to pay him $1,000. Under this agreement, Dickey and Bennett were in possession of the premises about two years, when some trouble arose, and the contract and premises were surrendered to the elder Dickey. Edgar .afterwards worked the farm for his father, who in the meantime had increased the mortgage upon the farm until it amounted to $1,700. It was the verbal agreement between Edgar and his father that, if Edgar would reimburse his father for what the farm cost him, the father would deed it to Edgar. In July, 1886, the plaintiffs were married, and moved into the house upon the farm. Under the verbal arrangement, Edgar turned over to his father more or less of the proceeds of the farm, until they considered he had paid $400 in that way, prior to February, 1892. Edgar also built a barn and an addition to the house upon the. farm. In February, 1892, it was arranged that, upon the payment of $100 to John H. Dickey, and the assumption of the $1,700 mortgage by the plaintiffs, John H. Dickey would deed to them the farm. For the purpose of raising the $100, the father of Mrs. Mary A. Dickey signed a note with her husband. The money was obtained at a bank, and paid to the elder Dickey. When this note was given, it was agreed the deed should be given to Edgar P. Dickey and his wife. This note was afterwards paid with the proceeds of the farm. The deed was made and delivered to them in 1892, but was not put upon record. The crops levied upon were grown in 1894.
Of course, the findings of fact made by the circuit judge are conclusive. His findings, so far as it is necessary to refer to them, are as follows:
“ The consideration of the deed from John H. Dickey and wife to Edgar P. and Mary A. Dickey, so far as it was paid at all, was paid by Edgar P. Dickey out of his own funds, except that $100 of said amount was paid with proceeds from the farm after it was so purchased, and except that there was a mortgage upon said premises for $1,700, upon which both Edgar P. Dickey and Mary A. Dickey are liable. The title was taken by Edgar P. and Mary A. Dickey through a quitclaim deed from the father, and at that time there were $1,700 of mortgages upon the premises, previously given by the father. The title of both Mary and Edgar was therefore subject to these _ mortgages, amounting to $1,700. As a matter of law, the court doth find that she was under the same obligation to discharge this mortgage incumbrance as was her husband; no more and no less. Neither of them was responsible for the payment of this mortgage by reason of any covenants in the conveyance by which they took the land. The amount of the consideration'paid by the said Edgar P. out of his own funds was $400. Said Mary A. Dickey never actually paid anything of the consideration for this conveyance of February 3, 1892, except what was contributed of the products of the farm after it was so purchased by them. One hundred dollars of the consideration was paid from the products of the farm grown after title was in Mary A. and Edgar P. Dickey. This deed to Edgar P. and Mary A. Dickey the court finds to have been taken in the names of both, in the belief that it could not be reached by said execution creditor to satisfy her execution, and to hinder and delay said execution creditor in the collection of her judgment.
“The wheat, oats, and hay levied upon and in controversy in this case were cut upon said farm, which was managed by the said Edgar P. and Mary A. Dickey in the way in which farms are ordinarily run and managed by husband and wife where the title is in the husband; that is to say, the said Edgar P. looked after the cultivation and management of the farm so far as the outdoor work was concerned, and marketed the products, the said Mary A. doing the work in the house, and, to some extent, out of doors, such as farmers’ wives in the country are sometimes accustomed to do. The said Edgar P. does not personally perform all the labor. The property in question in this suit were the products of said farm, planted, grown, and harvested since the deed of February 3, 1893. There was no arrangement or agreement between the husband and wife as to the ownership of the products of the farm.”
The court found, as a matter of law:
“That as this property was planted, grown, and gathered since the giving of the deed of February 3, 1893, there having been no agreement or arrangemeut between the said Edgar P. and Mary A. that either should have any other interest than such as would result from their joint ownership in the land, the title to such harvested products was, like the title to the land, in the said Edgar P. and Mary A., as tenants by the entirety, and, as such, not subject to execution for the individual debt of either.”
The defendant considers the questions involved under two propositions, which he states as follows:
“First. Are the crops raised by the husband upon a farm owned by himself and wife, as tenants by entirety, or any part thereof, subject to the payment of the debts of the husband ?
“Second. Did the purchase of this farm by said Edgar P. Dickey, and the taking of the title thereto in the names of himself and wife for the purpose of defeating and delaying the collection of this Salmon judgment, deprive the said Hannah E. Salmon of the right to levy her execution upon the crops raised thereon ? In other words, can the fraud of said Edgar P. Dickey, in taking this deed in the name of himself and. wife, be shown, in an action at law, for the purpose of subjecting the crops raised upon said farm to the satisfaction of this judgment taken against said Edgar P. Dickey individually ? ”
He answers the first proposition in the affirmative, and, as to the second proposition, says the fraud can be shown for the purpose of subjecting the property to this levy.
It is claimed the holding of plaintiffs is that of tenants by entirety, and that the husband is entitled to the full control of the rents and profits of the land during the joint lives, to the exclusion of the wife, and that the crops grown would be subject to the claims of creditors. A good many cases are cited in support of this proposition, but these cases are not in accord with the holdings of this court, as will hereafter be shown.
It is also argued that even though it is said that the married woman’s act gives her full control of her property, including her interest in estates by entirety, it does not give her any right to control the husband’s interest therein, and the crops raised upon such lands are owned by husband and wife as tenants in common, and one-half of them are liable to the payment of his debts; citing Buttlar v. Rosenblath, 42 N. J. Eq. 655 (59 Am. Rep. 52), and Hiles v. Fisher, 144 N. Y. 306 (30 L. R. A. 305, 43 Am. St. Rep. 762). The first of the cases does not relate to the question of who is entitled to crops grown upon land held by tenants in entirety, but it does hold that “the wife is endowed with the capacity during the joint lives to hold in her possession, as a single female, one-half the estate in common with her husband, and that the right of survivorship still exists as at common law,” and that the interest of the husband in the real estate might be reached by creditors. In the case of Hiles v. Fisher it was held, where a husband executed a mortgage upon lands deeded to himself and wife, that the mortgage was effectual to convey his interest, which was a right to the use of an undivided one-half of the estate during the joint lives, and to the fee in case he survived his wife, and that, by the foreclosure and sale, the purchaser acquired this interest, and became a tenant in common with the wife of the premises, subject to her right of survivorship. As we understand the decisions, these cases are in direct conflict with our own court, and not in harmony with the law in relation to tenancy by entirety.
In Fisher v. Provin, 25 Mich. 347, where land was conveyed in fee to husband and wife, it was held they did not take as tenants in common. In Ætna Ins. Co. v. Resh, 40 Mich. 241, it was held that, where husband and wife were in possession of a house granted to them by the same deed, the husband “was neither a tenant in common nor an ordinary joint tenant. Iiis estate in case of his death went by survivorship to his wife, and during their lives, whatever his right may have been, it was not an undivided half of the property.” In Manwaring v. Powell, 40 Mich. 375, it is said that husband and wife, under a grant made to them jointly, take by entireties, and therefore whatever would defeat his title would defeat hers also. In Jacobs v. Miller, 50 Mich. 119, it was said: ■
“ The grant ran to the parties of the second part as husband and wife, and it was intended to make an estate by which the property should be held by entirety. The ingredients and incidents of such a title or estate give it an exclusive character, and distinguish it from all other modes of holding. The persons of the second part do not take by moieties, but are seised of the entirety, and the survivor takes the whole, and during the joint lives neither can alien so as to bind the other.”
In Vinton v. Beamer, 55 Mich. 559, where a judgment creditor had levied upon and sold the interest of the husband, which was a life estate in 160 acres of land for himself and wife and the survivor of either of them, a deed was issued, and, after the redemption period expired, ejectment was brought. The court held it could not be maintained. The court said:
“The interest William Beamer took with his wife was a peculiar one. It was an entirety. Fisher v. Provin, 25 Mich. 347. They both took the same estate, the same interest, and it could not be separated. The right of the one was the right of the other. Neither could, by a separate transfer, affect the rights of the other or his own. What would defeat the interest of one would also defeat that of the other. Manwaring v. Powell, 40 Mich. 375. * * * William Beamer had no such distinctive estate in the premises as was here attempted to be sold upon tbe execution, and which the plaintiff seeks to recover in his ejectment, and the court in this ejectment suit cannot invest him with it.”
In Speier v. Opfer, 73 Mich. 35 (16 Am. St. Rep. 556), it was held a married woman could not be liable upon a joint contract with her husband for the erection of a building upon real property held by them as tenants by entirety. Of the character of the property the court said:
‘ ‘ During the lives of both, neither has ah absolute inheritable interest. Neither can be said to hold an undivided half. They take by entireties, and, at the death of the wife, the whole passes at once to the husband. * * * This is not such- separate property of the wife as the statute gives her power to make contracts in relation to. She can neither sell, incumber, nor control it while living, nor devise it at her death.”
In Lewis’ Appeal, 85 Mich. 340 (24 Am. St. Rep. 94), it was held that husband and wife take as tenants by entirety, and not as joint tenants, under a joint deed to both, and the estate thus created, with the attendant right of survivorship, is not affected by a decree of divorce. The court quoted at length and with approval the language used in Speier v. Opfer, supra.
In Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595), it was held that neither a husband nor wife can convey the estate vested in them as tenants in the entirety by his or her sole deed, and any instrument by which either attempts to make such conveyance is void.
It will be seen that Buttlar v. Rosenblath, supra, and Hiles v. Fisher, supra, are in direct conflict with these cases. See, also, McCurdy v. Canning, 64 Pa. St. 39.
This species of tenancy grows out of the unity of hus-' band and wife, and is unlike that of joint tenants, who are each seised of an undivided moiety. The husband and wife are each seised of the whole, and not of undivided moieties. Hardenbergh v. Hardenbergh, 18 Am. Dec. 378 (10 N. J. Law, 42), note.
What is the purpose of the use of a farm ? Is it not a place to live upon ? to grow crops for consumption and sale ? If neither the husband nor the wife has an undivided moiety of the use of the farm, how can it be said each of them has an undivided interest or moiety in the result of that use ? To hold that the husband is not entitled to an undivided moiety of the use of the farm, but is entitled to an undivided half of the results of that use, is, we think, illogical. While the precise question involved here has not been decided by this court, it has been before the supreme court of Indiana in Patton v. Rankin, 68 Ind. 245 (34 Am. Rep. 254), where it was held that “a crop raised on land held by a husband and wife by entire-ties is held by them in the same manner and subject to the same law as the land itself, and such crop is therefore not subject to levy and sale on an execution against the husband. ”
Passing to the second branch of the case, it is said that as the trial court has found the land was purchased by Mr. Dickey with his own funds, and the title was taken in the joint names of himself and wife, in the belief it could not be reached by Mrs. Salmon, the execution creditor, and to hinder and delay her in the collection of her judgment, this was a fraud upon her, and the defendant is entitled to recover. Does this follow? Mr. Dickey was a householder. He was entitled to a homestead, not exceeding 40 acres in extent and $1,500 in value. He was occupying 80 acres of land to which he had no legal title, upon which he had paid $400, and made improvements the extent and value of which are not clearly shown. It is doubtful if at this time he had any interest in this land which would have been subject to levy and sale. Was it a fraud upon his creditors, under such circumstances, for himself and wife to assume an indebtedness of $1,700, and to turn over a sum of money previously paid by the husband, and improvements made by him, which with the sum of money do not exceed in value the $1,500 allowed for homestead purposes, upon an agreement that the land should be conveyed to both of them ? It has been held time and again that a conveyance by a debtor of land exempt as a homestead is not a fraud upon creditors. Smith v. Rumsey, 33 Mich. 183. See 2 How. Stat. § 7722 (note). It is not at all certain that a court in chancery would set aside this conveyance upon the application of a creditor as a fraud upon him; but, as that question is not directly before! us, we express no opinion upon it.
There was no evidence on what part of the 80 acres the crops were grown. They were grown two years after the deed was made to Mr. and Mrs. Dickey, and the court found there was no agreement between the husband and wife as to the ownership of the products of the farm. In Hill v. Chambers, 30 Mich. 422, it was held that the presumption in relation to the ownership of crops, in the absence of any proof, is that ownership of products follows the title. Of course, this presumption may be overcome by proof. In Bump, Fraud. Conv. (4th Ed.) § 475, it is said:
“The grantee has a valid title until the creditors, by asserting their rights in due course of law, defeat it; and, when defeated, it is not rendered void ab initio, but only from the time of the levy of the execution under which the property is sold. * * * For the same reason, when land is fraudulently conveyed, the creditors cannot levy upon the crops subsequently produced by him, or upon property which he has converted from realty, into personalty.”
The defendant says there are qualifications to this rule, and that this case comes within the qualification that, if the creditors can show the transfer was colorable, the creditors may levy upon the crops, and that it is not necessary to have the deed set aside before the levy can be made; citing Pierce v. Hill, 35 Mich. 194 (24 Am. Rep. 541), and Fury v. Strohecker, 44 Mich. 337. In the first of these cases the levy was made upon a crop growing at the time of the transfer. In the second case it was held that where land is fraudulently conveyed, and the fraudulent grantor retains an interest in crops subse quently grown by an understanding with the grantee, the crops may be reached by a judgment creditor.
No steps have been taken to set aside the deed. The deed itself was not made by Mr. Dickey to his wife, and he never had any legal title to the land separate and apart from the title of his wife. It is-not shown any agreement was made as to who should own the crops. Take the case as made, we cannot say the court erred in his disposition of the case.
Judgment is affirmed.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). The claim of the city is that the adjoining lot owners own the fee to the ■center of the alley subject to the public easement, and that, when the alley was vacated, the lots of block 4 abutted upon Delaware avenue, and were subject to assessment as abutting lots. Complainant is willing to pay the assessment if she owns the fee in that portion of the alley opposite her lot, but contends that under the rule in Plumer v. Johnston, 63 Mich. 165, she does not own it. The statute provides that such recorded plat—
“Shall be deemed a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public uses in the county in which town, city, village, or additions lie, in trust to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.” 1 How. Stat. § 1474.
Section 1478 provides that when a street or alley is vacated—
“The same shall be attached to the lots or ground bordering on such street or alley, and the title thereto shall vest in the person or persons ownipg the property on each side thereof, to the center of such street or alley.”
The case of Plumer v. Johnston does not affect the question here presented. In that case the dedication had not been accepted, and the offer to dedicate was held to be terminated by the resolution of the common council to vacate it. The reservation was “to ourselves,” not to heirs or assigns. After this was done the owner replatted. In this case the dedication was accepted, and the lots have been sold as abutting upon the streets and alleys. Where one conveys land bounding upon a public highway, or lots upon a plat, representing them to be bounded by a street, the grantee takes the land to the center of the highway or street. Snoddy v. Bolen, 122 Mo. 479 (24 L. R. A. 507), and authorities there cited. Under a statute identical with ours, it was held that a conveyance of a lot abutting' on the street, without any express limitations, conveyed all the interest to the center of the street or alley. Tousley v. Galena, etc., Smelting Co., 24 Kan. 328. The reservation in the dedication in that case was of “all the mineral under the surface of such streets and alleys.” The conveyance of the lot contained no reservation. Justice Brewer said: “If the dedicator may reserve nothing in the street, his conveyance of the lot passes nothing in the street; but, if he reserves anything in the street, his conveyance of the lot passes the reservation.” The reservation in this case gave the platter the same interest in the streets that he would have had without the reservation, and his grantees take by virtue of their deeds all the rights he had to the center.
Decree affirmed, with costs.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). The jury settled the contract in behalf of the plaintiffs. The sole question, therefore, is the authority of defendant’s agent to make the contract. A shipping agent of a com- ' mon carrier has general authority to make all reasonable ■contracts of shipment. Any undisclosed limitation does not bind the shipper. Has such an agent authority to agree to deliver goods at the place of destination at a particular time ? Only when contracts are of an unusual and extraordinary character is the shipper put to inquiry as to the agent’s authority. Hutch. Carr. § 267; 5 Am. & Eng. Enc. Law (2d Ed.), 351. A guaranty to a theatrical troupe that it would arrive at a given time is held valid. Foster v. Railway Co., 56 Fed. 434. One writer says:
“As common carriers, especially at the present day, transact the greater part, if not all, of their business with the public through agents and servants, it is plain that the public have alright to assume that they are authorized to do whatever they attempt to do.” Lawson, Contracts of Carriers, § 229.
This rule does not include contracts so unusual and extraordinary that they cannot reasonably be included within the general authority. Delays sometimes occur, both on land and water. Many cases like the present and that of the theatrical troupe are constantly arising, where delivery at a certain time is essential. When the shipper and the carrier agree, through its agent, upon a date of delivery at destination which gives the usual time to make the trip, such contract cannot be held unusual or extraordinary, and is within the general authority of the agent. The carrying business of the country is mostly done by corporations, which act through agents, who, as in this case, frequently solicit business; and, when the contract is a reasonable one, it must be upheld, in the absence of notice of lack of authority.
It is urged that the customary way of carrying on the business of a common carrier is by issuing bills of lading, which constitute the contract between the parties. This custom is not conclusive of the authority of the agent, or of the reasonableness of the contracts he assumes to make. Plaintiffs testified that they knew nothing of a bill of lading in this case, and had never seen any before the trial. Defendant introduced a bill of lading, which it claims was given to plaintiffs’ clerk at the time of or soon after the delivery of the goods to it. The contract was made before, and defendant could not change it by handing a receipt or bill of lading to a clerk.
The judgment is reversed, and judgment entered in this court for the plaintiffs, with costs of both courts.
The other Justices concurred. | [
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] |
Hooker, J.
The complainant issued an insurance policy upon the life of one John J. Dick, which he suffered to lapse. A short time afterwards his son presented a certificate of good health, reading as follows:
“Detroit, Mich., February 18, 1896.
“I, John J. Dick, of Detroit, Mich., being the person' whose life is insured under policy No. 28,251 in the John Hancock Mutual Life Insurance Company, do hereby certify that I am in as good health as'when first examined on my application for said policy, and that my family record is unchanged. I also understand and agree that the payment of premium due January 8, 1896, is received, and said policy is now reinstated, by said company, on condition of the truth of the above statement. ■ John J. Dick.
‘ ‘ Witness:
“Note any change in family record below.
“I witness the above.
“H. C. Judson, M. D.,
“ Physician of Family.”
At the same time the overdue premium was paid. A day or two later, John J. Dick died. The bill was filed to cancel the renewal receipt given at the time the premium was paid, and has been before us, upon demurrer, on a former occasion. See 114 Mich. 337. It is now before us upon the merits, having been appealed by the complainant, against whom a decree for the amount of the policy was granted in the circuit court.
Two questions are presented: First, the claim that the renewal was obtained by fraud; and, second, that the certificate was a warranty of good health, which the proof shows that Mr. Dick did not enjoy at the time.
In our opinion, the preponderance of 'the evidence shows that the renewal was not obtained through fraud. It is true that the statements made by Dr. Judson may be criticised as not entirely consistent upon the subject of the time that he was called to treat the deceased for his last illness. But, aside from his testimony, there is much evidence, from the family, neighbors, and acquaintances, tending to show that the deceased was not attacked by his last illness until after the renewal of the policy.
The proofs of' loss state that the deceased died from typhlitis, and it is urged that the nature of this disease is such as to conclusively show that he must have been ill before the certificate of good health was furnished. We are of the opinion that the proofs justify the conclusion that he may not have died from that disease, but from some other cause. In this connection it is insisted that we must find that he died from that disease, inasmuch as the beneficiary has decided upon that, and based her claim and proofs of loss upon it. We have no doubt that the proofs of loss should be treated as evidence of the fact stated, being in the nature of an admission; but it is subject to explanation, and cannot have the effect of an estoppel, when made upon information received from the attendant physician, and in good faith. We find nothing in the case of New York Central Ins. Co. v. Watson, 23 Mich. 486, which is at variance with this doctrine; and the same may be said of the other cases cited. In Irving v. Insurance Co., 1 Bosw. 507, where the assured furnished an account of loss under a clause in the policy requiring it, and making it a condition precedent to “his right to recover,” — the loss “not being payable until 60 days after such account is delivered,” — it was held that the defendant had a right to take the facts as he stated them, and that, had they been subsequently corrected, it would have been entitled to 60 days for examination, and that, “for the purposes of this action and its decision, the plaintiff is concluded by his affidavit.” That falls short of the broad contention made here. The case of Campbell v. Insurance Co., cited as 99 Mass. 317, we do not find.
Upon the proofs, we think that the complainant has failed to sustain the case made by the .bill
The decree is affirmed, with costs.
The other Justices concurred.
See 10 Allen, 213. | [
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Per Curiam.
2 How. Stat. § 7378, subd. 1, provides for a reference of such cause unless a. jury is .demanded within 10 days. No jury was demanded, and, under the statute, the court had the right of its own motion to make the reference, notwithstanding both parties did not desire it.
The order to show cause is denied. | [
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] |
Hooker, J.
The declaration alleges that—
“The plaintiff and defendants, being desirous of forming a corporation * * * for the purpose of manufacturing furniture, * * * the defendants agreed with said plaintiff that if he would complete the erection of a building upon a piece of land which he had agreed to purchase on the line of the Bay City Belt-Line Railway Company [describing it] for the purposes of a chair and furniture factory and planing mill, and would also purchase certain machinery, proper and suitable for the purpose of manufacturing wooden chairs and furniture and the general purposes of said planing mill, and put the grounds hereinbefore described in condition for occupancy for such purpose, that the said defendants would repay to him the amount which he should so expend, in the paid-up capital stock of said company when organized, to the amount of §10,000, the balance to be paid him in cash by said company ; that, relying upon said promises, said plaintiff partially finished said building, when the articles of association of said projected corporation were made, after which the defendants urged the plaintiff to go on with the work upon said building and grounds, and the purchase of said machinery, * * * which the plaintiff accordingly did at his own expense, relying upon said promises, at a cost of $10,000, and also purchased machinery at a cost of $7,000; that the projected corporation was to have a capital of $25,000; that, in pursuance of the agreement, the articles of association were drawn and executed, and that the stock was subscribed as follows: Benjamin Boutell, 700 shares; John A. McDonald, 600 shares; William N. McLennan, 1,000 shares; Benjamin S. Trombley, 200 shares.”
The declaration states, further, that—
“ It was also agreed that McDonald was to be president, Boutell vice president, and the plaintiff secretary and treasurer, of the company, and all three were to be directors; that the articles were filed and the franchise fee paid as required by law, and that, except as aforesaid, no money has been paid in to or expended by said corporation, except by the plaintiff, as aforesaid, in erecting said building, etc.; that repeated requests for an election of officers have been made by him to said defendants, that the capital stock might- be collected, and the business for which the engagement was made and corporation organized might be entered upon, but they have at all times refused to meet with the plaintiff for such purpose, and by reason of said refusal, and the failure of said defendants to perform and fulfill their engagement, said property became useless to him, and he suffered great loss; and that thereupon the said defendants afterwards * * * promised the plaintiff to pay to him said several sums of money * * * on request, which, though requested, they have' failed to do; to his damage,” etc.
Upon the trial, after having proved the contract, and the completion of the factory, purchase of the machinery, organization of the corporation, etc., the plaintiff testified that his plant was ready to turn over to the corporation, but was not turned over; that the defendants did not let him turn it over. Thereupon the following occurred:
“ Q. It was not turned over, and you never made any writing to turn it over or transferred it ?
“ The Court: I think the corporation is fully organized' and as fully existing as any corporation, and, that being so, this action will not lie. The stock was all subscribed, and the articles of association completed, and the stockholders met afterwards, and, although there was no election, they gave him directions to go on and make the expenditures. On that showing, I will take the case away from the jury.
“Mr. Weadoek: Your honor understands we have not concluded our testimony, and, in order to have the question fairly presented, will say we offer to prove the declaration.
“The Court: You may have the benefit of an exception, so the whole question, which is an important one, may be presented to the Supreme Court.
“Mr.. Weadoek: What we will ask to recover in this ease is the damages to us by reason of the investment made upon the representations and at the request of the defendants, pure and simple, and that is the amount we have expended, less the amount that was paid upon the foreclosure of the mortgage.
“ The Court: Gentlemen of the jury, you will find a verdict for the defendants. (Exception taken.)”
It is obvious that the alleged contract contemplated the •sale and conveyance of real estate, and, being oral, was void, under the statute of frauds. Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311), 29 Mich. 523; Liddle v. Needham, 39 Mich. 149 (33 Am. Rep. 359); Raub v. Smith, 61 Mich. 543 (1 Am. St. Rep. 619); Nims v. Sherman, 43 Mich. 45 (38 Am. Rep. 159); Rawdon v. Dodge, 40 Mich. 697; Colgrove v. Solomon, 34 Mich. 500. It follows that the judgment must be affirmed, and it is so ordered.
The other Justices concurred. | [
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] |
Hooker, J.
The parties to this cause are mill owners,
their respective mills being situate upon Betsey Lake, which is the outlet to Betsey river, and both parties are dependent upon this river as a means of floating logs; There are two dams upon this river, which are used for the storage of water, whereby the stream may be raised, thereby aiding the moving of logs over shallows, or in time of low water. One of these dams, viz., the one located at Crystal Lake, belongs to the plaintiff; the other was leased to one Hart, who assigned his lease to the plaintiff-. In the spring of 1896 both plaintiff and defendants contracted with Hart to run their respective logs down the river. His contract with the plaintiff required him to deliver its logs with rear below “Judson’s bridge,” while those of the defendants were to be delivered “in solid jam from Frankfort up to wherever the jam may extend.” In order to perform his contract with the plaintiff, it became necessary for Hart to bring the whole drive down to Judson’s bridge, which could not be done until, by assorting at the lake, some of the logs were removed to the mills of their respective owners, thereby making room for the jam with rear below Judson’s bridge. By the time this was done, the river was low, and the labor of moving the logs was greater than at other seasons. The defendants were in no hurry for their logs, but, as the logs were intermingled, Hart could not obtain payment from the plaintiff until the rear of the drive was below Judson’s bridge. He therefore employed men, and by the use of the dams brought it down. He then assigned his claim to the plaintiff, who began this action upon the claim, and for compensation for the use of the dams. The circuit judge permitted an amendment of the declaration, which, as originally filed, contained no averment of the assignment, and the plaintiff was allowed to recover under the statute (3 How. Stat. § 2035) for labor in driving the defendants’ logs, and upon the common counts for the use of the dams, and for labor in their management during the time spent in bringing down the rear of the drive. Section 2035, 3 How. Stat., requires those who float logs in navigable streams to avoid obstructing them, and, when they do so through failure to properly drive their logs or break jams, others who find it neces sary to put labor upon the obstructing logs are given the right to reasonable compensation.
Counsel raise many questions, and we can refer to the most important only. It is asserted that the law is unconstitutional. Our attention is called to the cases of Kroll v. Nester, 52 Mich. 70, and Shaw v. Bradley, 59 Mich. 209, in support of this contention; but these cases go no further than to hold that the statute then existing had no application to a stream which requires the aid of artificial means in running logs. But the year following the later decision the law was so amended as to include such streams. In the State of Minnesota a similar statute was more liberally construed, and held to permit recovery when flooding by means of dams was resorted to to make the stream navigable for logs, although the act did not in terms include such streams. Merriman v. Bowen, 33 Minn. 455; Beard v. Clarke, 35 Minn. 324.
It is urged that the effect of our statute is to subject the owner of logs who is willing to have them floated at the seasons of natural floods to a more expensive method, at the will of another. The law seems to recognize the advantages of artificial flooding in streams, and there would, perhaps, be as great injustice in permitting the defendants to obstruct the river to the disadvantage of the log owner whose needs require the artificial flooding as to require the former to pay the expense of removing such obstructions. The law does not allow the plaintiff to set his own price on the labor and services rendered in moving the logs of others, but merely permits a recovery of reasonable compensation. If, as contended, the defendants have a legal right to run logs, it does not follow that they have a right to obstruct others unless they shall wait for the season which they may consider the best for the economical moving’ of logs. While we do not mean to be understood that they may be subjected to unnecessary expense by reason of moving at an unsuitable time, we are of the opinion that the legislature may lawfully protect those who wish to avail themselves of artificial flooding to the extent of requiring others to move obstructing logs at all reasonable times, whether the floods are natural or artificial.
Counsel maintain that, but for the large quantity of logs of the plaintiff, the' defendants’ logs could have come down with the drive, and not been left above; and suggest that, had the plaintiff kept back its own logs which came out of Crystal Lake, defendants’ logs would not have required this service, but would have been brought down further by Hart under his contract. We cannot say that the plaintiff had not the right to take its logs from Crystal Lake when it chose, or that it was under obligation to subject itself to loss and disadvantage for the defendants’ benefit. If the defendants’ logs obstructed the stream, and prevented the plaintiff or Hart from getting its logs down, the drive might be brought down at any proper time, by either party, at reasonable and proportionate cost to all having logs in the drive, unless they saw fit to do a proportionate share of the labor. This is substantially the view of the learned circuit judge who tried the cause.
Usually the dams and other facilities for artificial flooding are the property of individuals who control the right to use them, and while, under reasonable limitations, their right and ability to run logs by the aid of these must be recognized, and obstructing proprietors made to pay the reasonable cost of removing their respective obstructions, such persons are not required to contribute.to the erection, maintenance, or operation of such dams and other apparatus intended to create artificial floods, but only to the labor and expense attendant upon the drive made necessary by their obstructions. In this case, if it was reasonably practicable to move the logs in the stream, though only by means of the use of the dams, the plaintiff, or its assignor, Hart, might bring along the whole drive, so far as necessary to the extrication of its own property; but its right to contribution did not include the charge for the use of, or labor at, the dams which it erected and used for its own purposes. The use of the dam is not a public right, but is entirely within the control of the owner. He can use it when he chooses, but he cannot require others to pay for its use, when they do not request it. His right to recover from them is limited to the expense put upon the removal of obstructions. Apparently there was no claim to compensation for the use of the dams under the statute, but the plaintiff was allowed to recover under the common counts, the judge instructing the jury as follows in relation thereto:
“In this case the plaintiff, in its declaration, also makes certain claims besides these upon which it claims a lien upon the logs. It makes certain claims for the use of two dams,- — one dam near the head of this river, and another between this river and Crystal Lake. Now, as to those matters, those are questions which are put in the case here under the common counts in assumpsit which were put in the plaintiff’s declaration. Now, as to those questions, if you believe from the evidence the plaintiff had control and the right to the use of these dams, and used them to its own advantage, and to the advantage of the defendants in the case, you have a right to allow as a part of your verdict in the case in favor of the plaintiff, in case you should find such a one, such an amount as you find from the evidence would reasonably compensate the plaintiff for the use and value of these two dams which it claims to have used for the advantage of the defendants and itself; that is, such an amount as you find the proper share of the defendants would be for the use and value of the dams.”
The undisputed evidence shows that the defendants made no request that their logs should be moved. On the contrary, they protested against it. There was, therefore, no opportunity for the inference of a promise.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Montgomery, J.
The lands in question were bid in by the State, and subsequently purchased by Mr, Carpenter. Before the deed was issued, the intervener applied to the auditor general for leave to redeem. The auditor general, believing that he had no discretion in the matter, declined to permit redemption without an order of the court. The intervener therefore applied to the circuit court in chancery by petition setting up that, at the time of the assessment of the taxes, the decree in the matter, and at the time of the purchase by Carpenter, the interwener was a minor; that he attained his majority on the 22d day of .February, 1897, and had not learned that the taxes were delinquent until a few days' prior thereto.. The petitioner asked for such relief as was equitable, and the court made an order that the intervener be permitted to redeem. From this order, the purchaser appeals.
The only question involved is as to what construction is. to be given the last clause of section 69, Act No. 206, Pub-Acts 1893, which reads:
“In case of the sale of lands belonging to any infant, idiots, minor heirs, insane or incompetent persons, if it shall appear to any court that it is necessary to protect the rights of such incompetent person to order any sale canceled or deferred, it may so order, and in such case all proceedings may be stopped, sale canceled, or action stayed until the proper proceedings can be had to protect the. rights and property of such incompetent person or persons.”
It is contended by the appellant that this language-should be construed as intended to be applied to infants and other incompetent persons not under guardianship, and. a plausible argument to sustain this view is built up by reference to the earlier provisions of the statute. We see-no good reason, however, why a strained construction should be placed on this language. This case is clearly within the words of the statute, and we think within its intent. There is no more equity in requiring the minor to suffer a loss of his property by reason of the neglect of his guardian than there is to divest one of his property who-has no guardian.
The order will be affirmed, with costs.
The other Justices concurred. | [
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] |
Long, J.
This action was commenced before a circuit court commissioner, to recover possession of certain premises in the city of Detroit. It appears that in 1887 the premises were owned by Edwin W. Abbott. He and his wife ■ gave a mortgage thereon, which was afterwards foreclosed in chancery, and the property sold under the decree to the claimant. This sale became absolute August 29, 1897, and the claimant then received a deed as purchaser. He found the defendant in possession of the property, and made a demand that he pay rent to him for the month of October, and showed him his foreclosure deed. Defendant paid the rent for that month, and agreed to remain in possession thereafter as claimant’s tenant. About November 1st, when the second month’s rent became due, claimant called upon defendant for it, who refused'to pay it, and claimed that he had received a notice from one Mary Sherman that she was the owner of the premises, and entitled to the rent. Proceedings were then commenced by claimant to recover possession. The commissioner found in favor of claimant, and the defendant removed the cause to the circuit court for Wayne county by writ of certiorari, where the judgment of the commissioner was affirmed. Defendant brings the case to this court by writ of error.
It appears from the return of the commissioner to the circuit court that the claimant, in the foreclosure of this mortgage, made Edwin W. Abbott and his wife, Daniel B. Newkirk, William L. Newkirk, and Clara I. Sheldon parties defendant to the bill. Defendant put in evidence, under objection, a mortgage on the premises made by Clara I. Sheldon to Nancy Newkirk, dated September 24, 1894, and recorded on the same day in the office of the register of deeds of Wayne county. He also gave evidence that this mortgage was assigned to Joachim Theeck, and that assignment duly recorded, June 26, 1896. A sheriff’s deed on foreclosure of this mortgage was also put in evidence, running to Charles C. Stewart, and having indorsed thereon the certificate of the sheriff that the year’s redemption would expire, and the deed become operative, October 27, 1897. Defendant also put in evidence a quitclaim deed from Charles C. Stewart to Mary Sherman, covering the premises, and recorded October 30, 1897. Upon this evidence being in, the commissioner returns that he found that—
“The defendant, on the 1st day of October, 1897, attorned to the claimant, recognized him as his landlord, and became a tenant of said premises under said claimant, from month' to month, at a rental of $16 per month,, payable in advance on the first of each month, and that the proceedings in foreclosure of said Abbott mortgage, and the deed thereunder, gave the claimant the-right to the possession of the premises.”
The commissioner further decided that the evidence of defendant above stated was inadmissible, and insufficient to make out a defense. The circuit court evidently held to the same view, and affirmed the judgment. It was. evidently the opinion of the commissioner that the defendant, having attorned to the claimant, was not in a position to dispute the landlord’s title, and that, therefore, the evidence given by defendant was hot admissible.
In this court it is contended by claimant that, though the defendant might be permitted to show that claimant’s title had expired, yet the evidence was not sufficient to-show such fact, and therefore the commissioner was right in his decision. Mary Sherman was not made a party to. the claimant’s foreclosure. She claimed the rents from the defendant. At the time of the foreclosure of claimant’s mortgage, the proceedings for which were apparently commenced as early as August, 1896, the deed to Mary Sherman was not of record. Her deed was not recorded until October 30, 1897. ' Up to that time there was nothing upon the record to advise the claimant that Mary Sherman claimed any interest in the property. She obtained her title through the foreclosure of the mortgage given by Clara I. Sheldon to Nancy Newkirk, September 24, 1894. Clara I. Sheldon was made a party defendant to the claimant’s foreclosure proceedings. Defendant testified that he originally rented the premises from Clara I. Sheldon, and paid rent to her up to the time he received notice from claimant that he must attorn to him. The record shows, however, that, before claimant’s foreclosure suit was commenced, the mortgage was assigned to Theeck, and his assignment was of record. Mr. Theeck was not made a party to the claimant’s proceedings to foreclose, and Mary Sherman claims title through that foreclosure. Under these circumstances, the foreclosure of the claimant’s mortgage was not effective to cut off Mrs. Sherman’s rights under the Sheldon mortgage, though Mrs. Sheldon was made a party. Mrs. Newkirk had parted with her interest in the mortgage before this foreclosure, and it then rested in Theeck, who was not made a party. It follows that Mrs. Sherman was in no way affected by this foreclosure, and that, when she became possessed of the property under her deed, she was entitled to the rents until her rights were cut off by proper foreclosure of claimant’s mortgage.
The defendant was entitled to show these facts in his defense; that is, he had the right to show that claimant’s title had been cut off as to Mrs. Sherman by the foreclosure of the Sheldon mortgage, and that the title then rested in Mrs. Sherman, and would so rest until a new foreclosure by claimant, in which Mrs. Sherman is made a party. Jenkinson v. Winans, 109 Mich. 524; McGuffie v. Carter, 42 Mich. 497. We think there was sufficient evidence before the commissioner to show this, and that he was in error in ruling that the evidence offered by the defendant was inadmissible.
The judgment of the circuit court and of the commissioner must be reversed, and a judgment entered here in favor of defendant, with costs of all the courts.
The other Justices concurred. | [
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] |
Per Curiam.
The Wayne County Savings Bank filed a bill of interpleader against the relator and the executors of the last will and testament of Henry Wineman, deceased, to determine who was entitled to certain funds held by the complainant. Mr. Henry Wineman, a son of the deceased, filed a petition setting forth that he was interested as legatee, and asked to be made a party to the suit. An order was made permitting him to appear. The purpose of this petition is to obtain a writ of mandamus to set aside that order. We see no objection to his appearing in the case, inasmuch as he is largely interested in the result. !
Order to show cause denied. | [
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Long, J.
This bill was filed to foreclose a certain mortgage of $300 given November 25, 1882, to John Townsend, and signed by Joseph Young and his wife, Ellen Young. The mortgage was accompanied by a note of even date for like amount, signed by Joseph Young, and due one year from date, with interest at 8 per cent. The mortgage covered lot No. 3, in Hall’s addition to the city of Ionia. The other parties are made defendants as subsequent purchasers or incumbrancers.
It appears that on January 3, 1884, John Townsend assigned this mortgage to the complainant, Burton Babcock,' for the consideration of $326.59. The assignment was in writing, but was not recorded until March 28, 1895. The note, mortgage, and assignment were delivered to complainant, who has ever since that time had them in his possession. It appears, further, that on July 31, 1889, Joseph Young made a contract in writing to sell these premises to John Burke, who paid him $12 per month thereon, the full purchase price being $775. On June 21, 1894, there remaining unpaid on the contract $300, and Burke having arranged with Rudolph Seig to secure the money from him by giving him back a mortgage for that amount, Seig, Burke, and Young went to the register’s office, where the Townsend mortgage was discovered of record and not discharged. Notwithstanding this fact, Seig furnished the money to Burke, who, upon the assurance of Young that the Townsend mortgage had been paid, paid the money over to Young, taking a receipt therefor. Burke had not examined the record before this. June 27th following, Young and wife conveyed the premises by deed of warranty to Burke, and on the 30th (of that month a discharge of the Townsend mortgage was duly executed by Townsend, who was out of the State, and sent to the register of deeds of Ionia county. That discharge was recorded October 5, 1894. Nothing was paid to Townsend for this discharge. The deed of Young to Burke was placed on record July 23d preceding. The Seig mortgage was afterwards paid by Burke. March 28, 1895, the complainant recorded his assignment of the Townsend mortgage.
It is not contended that the Townsend mortgage was ever paid, and there is no dispute as to the fraud of Young, who knew that the mortgage was unpaid. It appears that no inquiry was made by Burke of any one as to the possession of the Townsend note and mortgage, and that no arrangement was made that the money should be refunded by Young if it were found that the Townsend mortgage was a valid lien; but Burke took the word of Young and a brother of Townsend, the mortgagee, that the mortgage had been so paid. The case cannot be likened to one where the party making the purchase relies upon a discharge of the mortgage by the mortgagee before the money is paid. Under the circumstances stated, the record of the mortgage was notice to Burke and to Seig that the mortgage was a lien upon the premises, and they were put upon inquiry as to its ownership, and the discharge then procured from the mortgagee, without further inquiry, would be no protection to them as against the actual owner and holder of the note and mortgage. The taking of a conveyance with knowledge of a prior right makes a person a mala fide purchaser. In Roberts v. Halstead, 9 Pa. St. 32 (49 Am. Dec. 541), it appeared that the terre tenants purchased the land after the registry of the mortgage, and before satisfaction entered. In considering that case, Bell, J., said:
“Had there been a bona fide purchaser of the mortgaged premises after the entry of the satisfaction and without notice of the outstanding notes, or, as was the case in Brown v. Simpson, 2 Watts, 233, were the attending circumstances such as to lead nobody to lean to the conclusion that the mortgage moneys had not been paid, a countervailing equity would have sprung up for the protection of the innocent purchaser.”
In Indiana State Bank v. Anderson, 14 Iowa, 554 (83 Am. Dec. 390), the above case is cited, and that court clearly implies that where lands are purchased after the registry of the mortgage, and before satisfaction is entered, the purchaser cannot be protected as against the owner of the mortgage, though his assignment of it is not recorded.
Mr. Burke had no right to assume that Townsend still held the note and mortgage unless he produced them. He found the mortgage of record, and not discharged, and he was chargeable with notice that the mortgage was a lien in the hands of any person to whom it might have been legally transferred, and the record of the transfer was not necessary to its validity. This question was discussed in Williams v. Keyes, 90 Mich. 290 (30 Am. St. Rep. 438), and there it was held that where a mortgagee assigned the mortgage and accompanying negotiable note by delivery, and the mortgagor, in ignorance of such assignment, paid the mortgage debt to the administrators of the mortgagee, who did not produce or have in their possession the note or mortgage, the payment was no defense to the foreclosure of the mortgage by the holder of the securities.
Counsel for defendants rely upon Bacon v. Van Schoon hoven, 87 N. Y. 450. That case is referred to in Curtis v. Moore, 152 N. Y. 159 (57 Am. St. Rep. 506), where it was held that the assignee of a recorded mortgage upon real estate, which was conveyed by the mortgagor to the mortgagee after the assignment of the mortgage, has a valid lien as against a purchaser of the land from the mortgagee, who took without notice of the assignment, notwithstanding the conveyance to the mortgagee, as well as the conveyance from the mortgagee to the purchaser, was recorded before the assignment was placed on record. The court in that case also referred to the case of Purdy v. Huntington, 42 N. Y. 334 (1 Am. Rep. 532). It was said in that case:
“The question is then presented whether Huntington can be protected in his title as against the mortgage by reason of the omission to have the assignment thereof recorded. It is conceded that he is to be charged with constructive notice of the existence of the mortgage, and of the continuance of its lien, by its record in the proper office. By that he was informed, not only of the date of the mortgage, the amount secured thereby, and of all its particulars, but that it was open and uncanceled of record, and therefore apparently an outstanding lien and incumbrance on the premises of which he was taking title. Having that information, he knew, or, at least, was chargeable in law with the further notice, that it was such lien and incumbrance in the hancls of any person to whom it had been legally transferred, and that the record of such transfer was not necessary to its validity, nor as a protection against a purchaser of the property mortgaged, or any other person than a subsequent purchaser in good faith of the mortgage itself or the bond or debt secured thereby, but, on the contrary, that a vendee of the premises took it subject to the lien of the mortgage, irrespective of the ownership'thereof. That knowledge and notice made.it his duty, in the exercise of proper diligence, f, to inquire whether Mitchell, his vendor, was still the owner and holder of the mortgage, and his omission to make that inquiry deprives him of the protection of a bona fide purchaser,”' — citing cases in support of this proposition.
The court in that case said that Bacon v. Van Schoonhoven, supra, was not in conflict with those cases.
. Counsel for defendants, we think, are not supported by any case in the proposition that, under the circumstances here, the defendant Burke is to be regarded as a bona fide purchaser, and entitled to be protected by a discharge of the mortgage procured after the purchase money had been paid. It has been held many times in this State that where a negotiable note is given, and a mortgage taken as security therefor, the note is the evidence of the debt, and the mortgage only an incident of the debt; that the mortgage follows the note into the hands of the lawful owner of the note; and that, without any written assignment of the mortgage, the owner of the note is the owner of the mortgage. Cooper v. Ulmann, Walk. Ch. 251; Dougherty v. Randall, 3 Mich. 587; Martin v. McReynolds, 6 Mich. 70; Briggs v. Hannowald, 35 Mich. 474. It is also held that one paying a mortgage is bound to ascertain who has the note, as he is chargeable with notice that the note may have been transferred and may be the property of another than the mortgagee, although there is no assignment of the mortgage of record. Fletcher v. Carpenter, 37 Mich. 412; Haescig v. Brown, 34 Mich. 503; Lee v. Kellogg, 108 Mich. 535. In the case of Wilson v. Campbell, 110 Mich. 580, 589 (35 L. R. A. 544), it was said by this court:
“Having constructive knowledge of the existence of this mortgage, Mrs. Nichols "was also chargeable in law with the further notice that the mortgage is a lien in the hands of any person to whom it may have been legally transferred, and that the record of such transfer is not necessary to its validity, nor as a protection against a purchaser, of the property mortgaged, or any other person than a subsequent purchaser in good faith of the mortgage itself or the note or debt secured by it, but, rather, that one purchasing the premises from the mortgagee would take them subject to the lien of the mortgage, irrespective of the ownership of it, unless the mortgagee was the owner. The knowledge and notice would, in case of a direct purchase from White, have made it her duty, in the exercise of proper diligence, to inquire whether her vendor, the mortgagee, was still the owner of the mortgage; and her omission to do so would have deprived her of the protection of a bona fide purchaser,”—citing 1 Jones, Mortg. § 474; Purdy v. Huntington, 42 N. Y. 334 (1 Am. Rep. 532); Burhans v. Hutcheson, 25 Kan. 625 (37 Am. Rep. 274); Oregon, etc., Investment Co. v. Shaw, 5 Sawy. 336.
In the present case, therefore, if Burke had gone to Townsend, and paid the mortgage to him, he would not have been protected without a surrender of the mortgage and note. As we have seen, he paid the purchase price to Young without any inquiry as to who actually held the note and mortgage, and now seeks to be protected by a discharge from Townsend made after the purchase price had been paid, and upon which discharge he did not rely in paying the purchase money. ¡
The court below was in error in dismissing complainant’s bill, and decreeing a discharge of complainant’s mortgage. That decree will be reversed, and the case remanded, with direction that the usual decree of foreclosure be there entered in favor of complainant. Complainant will recover costs of both courts.
The other Justices concurred.
Apparently overruling Ingalls v. Bond, 66 Mich. 338.
Upon this question, see, also, cases cited in footnote to Wilson v. Campbell, 110 Mich. 589. | [
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Long, J.
The bill filed in this cause sets out, substantially, that prior to January, 1896, complainants were copartners engaged in the wholesale liquor business at Detroit; that at that time defendant Kunkleman was a retail liquor dealer in the city of Lansing, and that about January 3, 1896, complainants sold him on credit certain liquors of the value of $269.13; that about the 7th of January, 1896, Kunkleman placed his business in charge of defendant Lovely; that about the 14th of January complainants, under the claim that Kunkleman had fraudulently purchased the goods with a fraudulent purpose not to pay for them, demanded the goods of Lovely, and, upon being refused, brought replevin in the circuit court for Ingham county; that afterwards, and in December, 1896, the replevin suit was tried in the said circuit court, and a verdict rendered in favor of Lovely, who waived a return of the property, and was awarded judgment against complainants in the sum of $257.80 and costs; that no appeal was taken therein, and that such judgment remained in full force and effect in the circuit court for the county of Ingham; that, on the trial of said cause, defendant Lovely was sworn as a witness in his own behalf, and testified that he had never bought the said goods and merchandise of said Kunkleman, and at no time had he any interest therein except as agent for Kunkleman; that defendant Kunkleman was also sworn as a witness in behalf of defendant in said replevin suit, and testified, in substance and effect, that he had never sold said goods and merchandise to Lovely, but that he had put said Lovely in charge of the goods and merchandise, to sell the same for him as his agent; and that Kunkleman further testified on the trial of said replevin suit that he had never informed Aronheim that he had sold or traded the said goods. The bill then alleges that, at the time when the replevin suit was commenced, the possession óf Lovely was the possession of Kunkleman, and that the judgment recovered by Lovely was in fact a judgment in favor of Kunkleman, although in name in favor of Lovely.
The bill further alleges that afterwards, and in January, 1897, complainants brought suit against Kunkleman to recover'for the goods sold, before one William Ennis, a justice of the peace of the city of Lansing, and that on the 30th of January they recovered judgment against him, on account of the goods sold, for $269.13 and costs; that such judgment was unsatisfied at the time of filing the bill, and remained of record before the justice; that Kunkleman was insolvent at the time the judgment was rendered, and still is insolvent. The bill avers that complainants are ready and offer to pay into court the difference between the amount of the judgment held against them by Lovely and the judgment which they hold against Kunkleman; that the amount now owing by them on the Lovely judgment is the sum of $100, “over and above any and all claims or liens which, so far as your orators are advised, any person or persons claim to have against said judgment.” The bill then prays that Lovely and Kunkleman may be enjoined from selling, assigning, or disposing of the judgment rendered in the replevin suit, and prays that the moneys owing complainants from Kunkleman on the judgment recovered against him before Ennis, justice of the peace, may be set off against the judgment recovered against them by Lovely in the re plevin suit, and that, on the payment-of the difference between the amount due on the judgment obtained by Lovely against complainants and the amount due complainants against Kunkleman, “the said judgment in said replevin suit may be discharged, and your orators, and each of them, freed from any and all liability thereon.” The bill then concludes with prayer for process.
The following demurrer was interposed:
“That the complainants have not stated such a case in their bill as entitles them to relief in a court of equity, for the following reasons:
‘ ‘ For that said bill should have been filed, and said cause begun, if at all, in the circuit court for the county of Ingham, in chancery; it appearing by said bill that the action of replevin therein set forth was commenced, tried on the merits, and judgment rendered therein, in the circuit court for the county of Ingham, and that the judgment alleged to have been recovered by said complainants against said defendant Kunkleman was also recovered in a justice’s court for the county of Ingham, and is now of record therein, and any action or suit to set off any thing or matters against said judgment in replevin, or vacate or impair the validity thereof, is local, and must be commenced in the county where the judgment was rendered, and that the circuit court for the county of Wayne has no jurisdiction to entertain said bill.
“For that all material facts set forth in said bill of complaint were available and proper matters of defense in said action of replevin, and were necessarily adjudicated therein, and are therefore res judicata.
‘ ‘ For that no mutuality exists or is alleged to exist between the debt or judgment recovered by said defendant Lovely against said complainants and the judgment recovered by said complainants against said defendant Kunkleman.
“For that it is not alleged that the interest of said Lovely in the judgment recovered by him amounts to the sum of $100 over and above the liens thereon in favor of his counsel in recovering such judgment, as well as all other services performed by such counsel for said Lovely.
“For that it is not alleged in said bill that the facts upon which the set-off is now claimed were unknown to complainants at the time the action of replevin was tried,
“For that neither fraud, accident, mistake, nor other causes for equitable relief are alleged or shown to have contributed to, or have been the cause of, the rendition of the said judgment in replevin recovered by the said George Lovely against the said complainants.
“For that it appears by said bill that all the several matters and things therein alleged against the enforcement of the said judgment recovered by said Lovely in said replevin suit against complainants were, if valid, available to said complainants in defense of the judgment recovered by said Lovely.
‘ ‘ For that said bill and the relief therein prayed seeks to prevent and delay the attorneys and counsel of said Lovely from the collection of their lien and interest upon and in the said judgment in replevin pending litigation in this cause.”
The demurrer was overruled, and from this order the defendant Lovely appeals.
Complainants contend that the demurrer is special, and not general, and therefore the order overruling it is not one from which an appeal will lie, under section 6737, 2 How. Stat., which provides that “any complainant or defendant who may think himself aggrieved by the order overruling a general demurrer, or by the decree or final order of a circuit court in chancery in any cause, may appeal therefrom to the Supreme Court.” Prior to the enactment of this statute, in 1883, no appeal would lie from an order overruling a demurrer. Bennett v. Nichols, 12 Mich. 25; Kirchner v. Wood, 48 Mich. 199. Since the passage of the act of 1883, it has many times been held that appeals will lie only from orders overruling general demurrers. Turck v. Soule, 55 Mich. 128; Shaw v. Chase, 77 Mich. 436; Babcock v. McJury, 76 Mich. 316; Taylor v. Taylor, 87 Mich. 64; Greenley v. Hovey, 115 Mich. 504;
Rule 9 of the new chancery rules provides that—
“The form of a demurrer may be as follows: ‘The defendant says that the complainant has not stated such a case in his bill as entitles him to relief in a court of equity, for the following reasons:’ (adding briefly but plainly the special reasons in matters of substance in a general demurrer, as well as matters of form in a special demurrer).”
It was held in Greenley v. Hovey that this rule requiring the reasons for a demurrer to be stated therein was not intended to enlarge or abridge the rights of the parties to appeal from an order overruling a general demurrer. A general demurrer challenges the equity of the case made by the bill, and will be overruled if a case for equitable relief is set out, however imperfectly. Glidden v. Norvell, 44 Mich. 206. But, under rule 9, the general demurrer may now contain special reasons in matters of substance. These special reasons do not make the demurrer any the less a general demurrer. The demurrer in the present case must be treated as general, and the order overruling it properly appealed from.
In the case of Greenley v. Hovey the special reasons stated in the general demurrer were: (1) That the bill contained no allegation of any tender of the taxes due on the property, nor any offer to pay. (2) That the auditor general was not made a party. The demurrer was overruled below, and the order appealed from; and it was determined here that it was a general, and not a special, demurrer.
The questions, therefore, raised under the demurrer, must be determined upon this appeal.
It appears from the bill that the judgment obtained against complainants in the Ingham circuit court was in fact a judgment in favor of defendant Kunkleman. Complainants have a valid judgment against Kunkleman, and the court is asked by the bill to compel Kunkleman to allow the judgment rendered in complainants’ favor to be set off against his judgment in the Ingham circuit court. Counsel for defendant contend that the Wayne circuit court, in chancery, has no jurisdiction over the subject-matter, for the reason that the defendant’s judgment is in the Ingham circuit court, and that court alone has control of the judgment. Counsel cite several cases which they contend support this view. These cases hold that one court cannot control the execution of the orders and processes of another court of equal jurisdiction. Plunkett v. Black, 117 Ind. 14, and cases there cited. It was held in Maclean v. Wayne Circuit Judge, 52 Mich. 257, that, when a court of competent jurisdiction has become possessed of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and no court of co-ordinate authority is at liberty to interfere with its action. In that case a proceeding was commenced in the Wayne circuit court, in chancery, to obtain a new trial in a cause which had been tried in the superior court of Detroit. The bill filed in the Wayne circuit court, in chancery, alleged the misconduct of the jury in the superior court, and cancellation of the judgment was asked in consequence of it. In the present case the process of the Wayne circuit court, in chancery, operates upon the parties, and not upon the Ingham circuit court. No attack is made upon the judgment of the Ingham circuit. It proceeds upon the theory that a valid judgment exists in the Ingham circuit against complainants, but says to Kunkleman, the party owning such judgment, that the complainants have a valid judgment against him, and that, in equity and good conscience, one judgment should be set off against the other. It is a matter which a court of chancery alone can control.
But counsel say, if a court of chancery should interfere, the action must be brought in the Ingham circuit court, in chancery. That is not the court in which the judgment is of record, and that court has no greater power over it than the Wayne circuit, in chancery. Douglass v. Joyner, 1 Baxt. 32. In Massie v. Mann, 17 Iowa, 131, it was held that an execution issued upon a judgment of the supreme court might be enjoined by the district court of the county in which it was sought to be enforced. It is true that courts will not grant an injunction to stay proceedings in another court having the same power to grant relief. Under the circumstances stated in this bill, the Ingham circuit court would have no power to set off one of these judgments against the other. That question is peculiarly within the province of a court of equity. The complainants reside in Wayne county, and that court acquired jurisdiction of the parties and of the subject-matter. The decree rendered in the cause would operate upon the parties, and, under such a decree as the complainants would be entitled to if the allegations of the bill be supported by the proofs, the court could compel the set-off.
The rule is laid down in 2 Freeman on Judgments (section 467a) that the satisfaction of a judgment may be wholly or partly produced by compelling the judgment creditor to accept in payment a judgment against him in favor of the judgment debtor; or, in other words, by setting off one judgment against another. It is also said, in the same connection, that the judgments sought to be set off against each other may have been rendered in the same or in different courts. The learned author also lays down the rule that the court of law in which the judgment is entered can give relief by virtue of its equitable power, and may direct that the judgment of another court be credited upon or set off against its judgment, except when the rights of the parties are too intricate and complicated to be adjusted elsewhere than in a court of equity. The facts set up in the present case show that the judgment in the Ingham circuit court is in form in favor of defendant Lovely, but that equitably it belongs to defendant Kunkleman. Complainants’ judgment is against Kunkleman. Here are the facts to be established, and necessarily the parties must go into a court of equity to'establish them, and, the facts being established, that court could compel the defendant to allow the set-off. In Simpson v. Hart, 1 Johns. Ch. 94, it was said: “It has been observed that the power of setting off judgments, not only of the same but of different courts, did not depend upon the statutes of set-off, but upon the general jurisdiction of the court over its suitors, and that it was an equitable jurisdiction, and frequently exercised,” — citing Mont. Set-Off, 6; Mitchell v. Oldfield, 4 Term R. 123; Glaister v. Hewer, 8 Term R. 69.
But counsel contend that the judgment before the justice was upon an account which could have been set up in the original proceeding in the Ingham circuit. If the justice’s judgment could now be attacked in this collateral way, yet it must be held that the matter could not have been there litigated. That was an action of replevin, the complainants here claiming to be the owners of the goods in controversy. Defendant Lovely had them in possession, and they were replevied from him. He succeeded in that case in obtaining a judgment against complainants for their value. This did not involve the account against Kunkleman for the value of the goods sold.
It is also contended that the bill will not lie, for the reason that it does hot allege that the interest of Lovely in the judgment recovered by him amounts to the sum of $100, over and above the liens thereon, etc. The bill does allege that the amount now owing by them on the Lovely judgment is “the sum of $100, over and above any and all claims or liens which, so far as your orators are advised, any person or persons claim to have against said judgment.” We think this is a' sufficient statement of the amount involved to give the court jurisdiction.
No other questions need be discussed. The court below very properly overruled the demurrer. That order will be affirmed, with costs of this court in favor of complainants, and defendants allowed 20 days in which to answer the bill, if they so desire.
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Grant, C. J.
A fire occurred in plaintiff’s store, which was speedily discovered and put out, but its goods were somewhat damaged by smoke. The stock was insured in several companies, including the defendant. The policy was a Michigan standard policy, identical in terms with that in Gould v. Insurance Co., 90 Mich. 302, where the material provisions of the policy are stated. Plaintiff did not furnish proofs of loss as required by the policy, and was permitted to recover upon the ground of waiver. Plaintiff’s managers were men of business, and fully understood their duty under the contract. The local agent had no authority to waive the proofs, and all conversations with him should have been excluded. The adjuster of the company visited the premises three days after the fire, and-Mr. Wadhams, the manager of the plaintiff, testified that the adjuster then informed him that he must make out an inventory, which undoubtedly was understood by both to mean the proofs of loss. The adjuster returned about six weeks after, and had an interview with Mr. Wadhams. Meanwhile most of the other companies had settled upon a, basis of 61,750. This settlement was reached by means of an arbitration, to which defendant was not a party. At this interview Mr. Wadhams testified that he showed defendant’s adjuster the agreement to arbitrate, and a summary of an inventory, and that all that the adjuster said was that his company would not settle upon such a basis. This is the sole act upon which a waiver is based.
To hold this to be a waiver would be to virtually annul the statute prescribing the terms of these contracts, to be observed alike by the insurer and the insured. The adjuster testified that he then told Mr. Wadhams that it would be necessary for him to produce an'inventory. The purpose of this statute is to protect both parties, by requiring a waiver to be in writing. The case is so squarely within that of Gould v. Insurance Co. that we refrain from further discussion. See, also, Ostr. Fire Ins. (2d Ed.) §§ 32, 57.
The judgment is reversed, and, inasmuch asno different case can be made upon a new trial, none will be ordered.
The other Justices concurred. | [
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Grant, C. J.
We do not think that there was any tan gible evidence from which the jury had the right to infer that the deceased endured pain and suffering. The two trains collided with terrific force, and many were instantly killed. The witness Allen testified that he reached the telescoped car within three or four minutes after the collision; that he heard wails and groans within; that the car took fire within a minute or two afterwards; that within 10 or 15 minutes they were driven away by the heat of the flames. Plaintiff was a physician, and brother of the deceased. He testified that both the upper and lower extremities of the body were burned completely off, that the upper part of the scalp was entirely denuded, and that the left thigh bone was either burned off diagonally or had been fractured. Prom his examination of the body, he gave his opinion that death was not instantaneous. It is mere conjecture how long she lived, and there is nothing to indicate that she was conscious at any time after the accident, and before death, if death was not instantaneous. If she was not conscious, how can it be said that she suffered pain ? Whether death was instantaneous, or whether, if not instantaneous, she was conscious after the injury, is purely conjectural.
Where one was found, about 10 minutes after the accident, with his body crushed, and his bowels disrupted, and he was still breathing, but unconscious, and died almost immediately, without recovering consciousness, held that no damages could be recovered for pain and suffering. Mulchahey v. Wheel Co., 145 Mass. 281 (1 Am. St. Rep. 458). The court said:
“But, as the plaintiff can only recover such damages as she can show were sustained by her intestate, if he became instantly insensible, and so remained until his death, nothing can be recovered for any physical or mental suffering sustained by him.”
Where a boat struck the bank of a river, and'sank in about 10 minutes, and a passenger was drowned, held that there could be no recovery for mental and physical pains and shock before death; that they were substantially con temporaneous with her death, and inseparable, as a matter of law, from it. The Corsair, 145 U. S. 335. In Cheatham v. Red River Line, 56 Fed. 248, damages were claimed for suffering while the deceased was struggling in the water before drowning. Held, there could be no recovery. Where one was struggling in the water 10 minutes'after being thrown in by the wrongful-act of the defendant, held that death was instantaneous. Sherman v. Stage Co., 24 Iowa, 515. See, also, Kennedy v. Standard Sugar Refinery, 125 Mass. 90 (28 Am. Rep. 214); Tully v. Railroad Co., 134 Mass. 499.
The rule deducible from the above authorities, and we think also from sound reason, is that plaintiff must show that there was conscious suffering in order to sustain his suit for damages. It is not sufficient to show that the deceased might have lived a few moments after the accident. We are therefore of the opinion that the verdict based upon this count in the declaration cannot be sustained.
Judgment reversed as to this count, and no new trial ordered.
Moore and Long, JJ., concurred with Grant, G. J.
Long, J.
This suit is brought to recover damages for personal injuries caused to the plaintiff’s intestate by the collision of defendant’s trains through the negligence of defendant; also to recover damages for her death resulting from such collision, and also for loss of personal property. The first count of the declaration is upon the common-law liability for pain and suffering, etc., endured by the deceased prior to death, which, it is claimed, was not instantaneous, and the right of action for which, it is insisted, survives by section 7397, 3 How. Stat., and is for the benefit of her estate. Under this count plaintiff had verdict and judgment for $1,000. The second count is for loss of personal property, for which plaintiff had verdict and judgment for $110. The third count is for the benefit of William W. Sweetland, a brother of deceased, who, it is claimed, was dependent upon her for support, and in whose interest the administrator claims the right to recover under sections 8313, 8314, 2 How. Stat. Under this count the jury found in favor of defendant. Defendant brings error.
The provisions of section 7397, 3 How. Stat., have been in force since 1838. In 1846 it read:
“In addition to the actions which survive by the common law, the following shall also survive; that is to say: Actions of replevin and trover, actions for assault and battery, or false imprisonment, or for goods taken and carried away, and actions for damage done to real or personal estate.”
This statute was amended by Act No. 113, Pub. Acts 1885, by inserting into the original act the clause, “for negligent injuries to the person.”
Sections 8313 and 8314, 2 How. Stat., are substantially a re-enactment of Lord Campbell’s act, omitting the preamble and third section, which was first incorporated into our statutes in 1848, and was amended in 1873. As amended, it reads as follows:
“Section 1. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages, in respect thereof, then, and in every such case, the person who, or the corporation which,' would have been liable if death had not ensued,' shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
“Sec. 2. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the'jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages when recovered.”
It will be noticed that until 1885 there was no statute in this State providing for the survival of actions for negligent injuries to the person, and no suit could be maintained after the death of the injured person for the pain and suffering arising from such injuries. Was it the intention of the legislature under section 7397 to give a right of action for the benefit of the estate in case of death from an injury, and also to allow the heirs to recover under sections 8313 and 8314 for their pecuniary loss ? I think not. The fact that the common-law right of action which survives under section 7397 is for the benefit of the decedent’s estate, and that the right of action under sections 8313 and 8314 is given for the benefit of the decedent’s heirs, can make no difference in the construction which I think should be placed upon these statutes. It was not the intention of the legislature to give two rights of recovery for the same injury which results in death. The act giving a right of action for damages for wrongfully causing death was passed by our legislature several years after the act providing for survival of actions, and was intended to provide the only remedy where death resulted from any wrongful act.
If Mrs. Aldrich, the decedent, had lived long enough to bring suit against defendant for injuries, etc., and pain and suffering, both past and future, and the jury had awarded her damages, which had been paid, and then she had died from the same injuries so wrongfully inflicted, would it be held that the administrator might maintain another action under sections 8313 and 8314 ? Or, had she survived her injuries long enough to have settled with the defendant, and had so settled, would it be held that the administrator could maintain an action under these sections ? It is generally held that if the deceased had settled for injuries received in his lifetime, or recovered damages in an action, an action cannot be maintained, under Lord Campbell’s act, after his death. * Cooley, Torts, 264. It must follow, therefore, that if such judgment obtained by him in his lifetime or settlement so made by him is a bar to a recovery by the heirs under sections 8313 and 8314, then a judgment obtained by the heirs for a cause of action accruing to them by survival under section 7397 would be a bar to the right to recover for his cleath under sections 8313 and 8314. In other words, it is apparent that it has not been the understanding of the courts and law-writers that such statutes intended to create two rights of action for the same wrongful act. It is true that repeals by implication are not favored in the law. There is, however, no such repugnance in these statutes that both cannot stand. Section 7397, which provides for the survival of common-law actions for negligent injuries to the person, applies to cases where death results from other causes than the wrongful injury. It seems to me that this is made plain from the terms of the statutes.
In Rogers v. Windoes, 48 Mich. 628, the action was brought for the wrongful conversion of testator’s property d/uring his lifetime. The court below held that the action died with the person, and no action survived. It was held that the action did survive, and the judgment below was reversed. That case in no way conflicts with the interpretation which we give to these statutes. It is true that some language was used in. Hurst v. Detroit City Railway, 84 Mich. 544, which might be taken as holding that satisfaction under one of these statutes would be no bar to a suit under the other; but that question was not involved in that case, and the language was mere dictum.
The. Illinois act passed in 1853 is almost identical with our sections 8313, 8314. The survival act of that State includes within the actions which survive, actions to recover damages for injury to the person. This last act was passed in 1872. In Holton v. Daly, 106 Ill. 131, one Michael Daly was injured, and brought suit, and recovered judgment, which was afterwards set aside. Subsequent to this he died intestate, and Mary Daly was appointed administratrix. She was substituted as party plaintiff in the cause, which was again tried, and resulted in favor of plaintiff. The supreme court,,in construing the two acts, held that the death act applied, and that no recovery could be had under the survival act. The court said:
“The act of February 12, 1853, applies, as we have seen, by its own terms, to all cases where ‘the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof.’ As was said in City of Chicago v. Major, 18 Ill. 356 ( 68 Am. Dec. 553), ‘The language is very broad and comprehensive, embracing in direct and positive terms, all cases where, if death had not ensued, the injured party could have maintained an action for the injury;’ and, as we have already observed, it is the wrongful act, neglect, or default that constitutes the cause of action. A light of action, which at common law would have terminated at the death, is continued for the benefit of the wife, husband, etc., and its scope enlarged to embrace the injury resulting from the death. There were left, however, injuries to the person not resulting in death, for which, in the event of the death of the injured party before obtaining judgment, no remedy was provided, affording a proper subject-matter for the act of 1872. If a party receiving injuries died from other causes, no action could be maintained under the act of February 12, 1853; but now, under the statute of 1872, the cause of action survives to his personal representatives. It is not to be presumed it was intended there should be two causes of action in distinct and different rights by the same party plaintiff for the same wrongful act, neglect, or default. * * * It is true, the measure of recovery in the different cases is not the same, but the cause of action is, viz., the -wrongful act, neglect, or default. We feel, therefore, constrained to hold that the act of 1872 was not intended to apply to cases embraced by the act of February 12, 1853.”
In Chicago, etc., R. Co. v. O'Connor, 119 Ill. 586, it appeared that Jeremiah O’Connor, in his lifetime, brought suit against the railroad company for damages for personal injuries, and obtained judgment. An appeal was taken, and pending the appeal O’Gonnor died from causes other than the injuries complained of in the declaration. His son was substituted as plaintiff in the suit. It was said by the court:
“The action being for personal injuries caused by the negligence of the defendant, it is within the statute, and survives. There is nothing in Holton v. Daly, 106 Ill. 131, which holds to the contrary. Indeed, it is expressly therein recognized that such actions do survive upon the death of the plaintiff; and it was held, when the death is the result of the injuries for which the suit is brought, the action must be prosecuted, after the death, for the benefit of the widow and the next of kin, and that in such case there can be no recovery for the bodily pain and suffering, but that, when the death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the death, fo» precisely the same injuries that the party himself could have recovered for, had he lived until after the final trial.”
The statutes of Kansas are similar to our own. Section 420 of the compilation of 1879 is the survival act, and provides for the survival of actions to recover damages for an injury to the person. Section 422 of the same is the death act. In McCarthy v. Railroad Co., 18 Kan. 46 (26 Am. Rep. 742), these two sections were construed, and it was held that they must be construed in pari materia. The court said:
“The purpose of section 422 is, evidently, not only to fix the amount of damages, and limit them to the use of the widow and children, or next of kin, but to take away the right of the administrator to sue for the benefit of the estate generally, where death resulted from the injuries. Section 420, as construed with section 422, only causes the action to survive for injury to the person when the death does not result from such injury, but does occur from other circumstances. The right of action under section 422 is exclusive, and an administrator could not maintain an ■ action under sections 420 and 422 for the same injury. When death results from wrongful acts, section 422 is intended solely to apply,”—citing Read v. Railway Co., L. R. 3 Q. B. 555; Andrews v. Railroad Co., 34 Conn. 57.
In Hulbert v. City of Topeka, 34 Fed. 510, where the action was brought by the administrator for injuries to the decedent in her lifetime, from which she died, Mr. Justice Brewer, before whom the cause was tried, held that no recovery could be had under section 420, and that, in cases of death from negligent injuries, section 422 applied. Justice Brewer was on the bench of the State court when the McCarthy Case was decided, and joined in that opinion; but in the case in the federal court he expressed some doubt about the correctness of the ruling in that case, though he followed it. This doubt seems to have been based upon the rule laid down in Needham v. Railway Co., 38 Vt. 294, where it was held that, where death occurs in consequence of a bodily injuiy, two causes of suit or action may arise,— one in favor of the decedent for Iris loss and suffering resulting from the injury in his lifetime, and revived by an act of 1847; the other founded on his death, or on the damages resulting from his death to his widow and next of kin, under an act of 1849. But, however much Mr. Justice Brewer may have been shaken as to the correctness of his conclusions in the McCarthy Case by the Needham Case, it seems that the supreme court of Vermont, in a later case (Legg v. Britton, 64 Vt. 652, decided in 1890), was not satisfied with the conclusions reached in the Needham Case in 1865. From that case it appears that as early as 1881 Judge Veazey of the Vermont court wrote an opinion, which met the approval of a majority of the court, in effect overruling some of the conclusions reached in the Needham Case. This opinion was not filed, as the case went off on other questions. In Legg v. Britton, supra, it was held that the act providing for the recovery of damages for the benefit of the widow and next of kin, where death results from the neglect or default of another, does not create a new and additional cause of action; thus fully overruling the Needham Case.
In Louisville, etc., R. Co. v. McElwain, 98 Ky. 706 (56 Am. St. Rep. 385), the court, speaking of the two statutes, says:
“We cannot believe that the general assembly intended, that the personal representative should maintain an action for the death of the wife, -practically for the husband’s benefit, and allow at the same time the husband to maintain one, on his own account, for the same acts or negligence.”
In Lubrano v. Atlantic Mills, 19 R. I. 129 (decided in 1895), the question was whether, under the statutes of that State, an administrator had the right to maintain two actions for negligence resulting in death,— one for the benefit of the widow find next of kin, according to Lord Campbell’s act; and another for the damage to the person, under the statute for the survival of actions. The action was brought for the pain and expense arising from injuries to the plaintiff’s intestate before his death, which resulted therefrom. The defendant pleaded a judgment in its favor in a suit by the plaintiff in the same cause of action. The plaintiff replied that the former action was brought by him as trustee for the next of kin of the deceased, and in a different right from that involved in the present action, which was for the benefit of the estate. To this replication defendant demurred, and the demurrer was sustained. In substance, these statutes are like our own. The opinion of the court in that case is so well reasoned, and the cases which seem to differ from the correct principle so well explained, that I quote from it at some length. In speaking of the survival statute, the court said:
“It is under this section that the plaintiff claims. In support of his claim he relies on Bradshaw v. Railway Co., L. R. 10 C. P. 189; Leggott v. Railway Co., L. R. 1 Q. B. Div. 599; Barnett v. Lucas, 6 Ir. C. L. 247; Bowes v. City of Boston, 155 Mass. 344; and Needham v. Railway Co., 38 Vt. 294.
. “The opinion in Bowes v. City of Boston is based upon the statutes of Massachusetts, and holds that two actions, one for the benefit of the family and one for the benefit of the estate, may proceed at the same time, on independent’ grounds, and for different purposes. It cites no authority. In Needham v. Railway Co. the point decided was that, the injury to the deceased having occurred in New Hamp shire, where no right of action in either form survived, the plaintiff could not maintain action therefor in Vermont. The dictum relating to two causes of action has been recently overruled in Legg v. Britton, 64 Vt. 652. Barnett v. Lucas was an action for injury to personal estate, and is, therefore, not in point. Bradshaw v. Railway Co. was on demurrer to the declaration, which alleged a breach of contract to carry a passenger safely, and it was held that the action could be maintained, notwithstanding the fact that provision for compensation for the death was made by Lord Campbell’s act. The case was decided in 1875; and Leggott v. Railway Co., decided in 1876, was a case upon a similar contract, to which the defendant pleaded a denial of the averments of fact, and a recovery by-the plaintiff under Lord Campbell’s act. The plaintiff replied that the defendant was estopped by the judgment in the former case to deny the facts, and to this, replication the defendant demurred. The court held that there was no estoppel, because the plaintiff sued in a different right; and, in so deciding, followed Bradshaw v. Railway Co., but not without protestation. Mellor, J., said: ‘With the single exception, so far as I am aware, of the case in the common pleas (Bradshaw v. Railway Co.), there appears to be no authority that an action will lie by the executor in respect of what is claimed in this action; but, as that case has been decided on the very point, I entirely yield to the authority of the decision so far as to say that in this court it cannot be questioned, and we must, therefore, abide by it.’ In Pulling v. Railway Co., L. R. 9 Q. B. Div. 110, the Bradshaw Case was further commented upon. Denman, J., said: ‘None of the authorities go so far as to say that, where the cause of action is in substance an injury to the person, the personal representative can maintain an action merely because the person so injured incurred in his lifetime some expenditure of money in consequence of the personal injury. The case of Bradshaw v. Railway Co. certainly does not go to that length, because the judgments in that case are expressly based upon the distinction, in this respect, between actions of contract and actions of tort, and upon the fact that in that case the action was an action of contract.’ The opinion (Pollock, B., concurring) decided that the plaintiff could not sue for damage to the intestate’s'person. In view of these comments, the support which the Bradshaw Case gives to the plaintiff turns out to be more apparent than real.
“Prior to these cases, that of Read v. Railway Co., L. R. 3 Q. B. 555, had been decided in 1868, holding that satisfaction received by the deceased in his lifetime for the injury was a bar to a suit for the death. That case stated the principle upon which the compensatory act is founded. It creates no new cause of action by reason of the death, but gives a new right of recovery in substitution for the right of action which the deceased would have had if he had survived. Upon this principle the new remedy must be exclusive, since otherwise there would be two recoveries for the same cause of action, namely, the negligence of the defendant, which is the cause of action on which the deceased would have sued at common law if he had survived. Moreover, the recognized rules of construction lead to the conclusion that the remedy for the death is exclusive. While the act relates to a remedy, it is, nevertheless, in derogation of the common law, because it gives a right of action where none existed at common law; and so it should be strictly construed. The provisions for survival of actions for damages to the person and for the remedy for the death have been embodied in the same statute in this State since 1857, although the latter was first adopted. The general provision should not be construed to modify the special, since the intention to modify the former statute by giving an additional remedy is not plain, and both can stand together; the act for survival embracing damages to the person other than those which result in death. This is the construction which was given to precisely similar provisions in Holton v. Daly, 106 Ill. 131, where it was held that the only cause of action was the wrong done,- irrespective of consequences, and that a statute of survival subsequently passed did not give a remedy additional to that of the prior act relating to the death. * * * So in Chicago, etc., R. Co. v. O’Connor, 119 Ill. 586, it was held that where the plaintiff, pending an action for injuries, dies from some other cause than the injury, the action survives, and may be prosecuted by his administrator. In McCarthy v. Railroad Co., 18 Kan. 46 (26 Am. Rep. 742 ), where both provisions, for action for death and for survival of an action for injury to the person, had been embodied in a revision, as in our own statutes, it was held that they must be construed in pari materia, and that the latter provision applied only to cases where the death did not result from the injury. This decision was followed in Hulbert v. City of Topeka, 34 Fed. 510.”
In Griffiths v. Earl of Dudley, L. R. 9 Q. B. Div. 357, Field, J., said:
“Read v. Railway Co., L. R. 3 Q. B. 555, is a clear decision that Lord Campbell’s act did not give any new cause of action, but only substituted the right of the representative to sue in the place of the right which the deceased himself would have had if he had survived.”
• In Canadian Pacific R. Co. v. Robinson, 19 Can. Sup. Ct. 292, Taschereau, J., quotes with approval the language of Field, J., in Griffiths v. Earl of Dudley, supra.
In Wood v. Gray, [1892] 17 App. Cas. 576, it appears that a workman, having been injured through the fault, as he alleged, of his employers, brought an action against them for damages. While the action was pending, he died, intestate and unmarried. His mother was appointed his executrix, and she raised a second and concurrent action for solatium for her son’s death, and asked that the second action should be remitted to the same jury who were to try the first. It was held, affirming the court of sessions, that the second action was incompetent. Lord Watson, who delivered the opinion of the House of Lords, among other things, said:
“There is not a single instance in which the court has allowed two actions to be brought in respect of the same negligent act leading to the injury and death of one person. Even in cases where the right of relatives to sue has been recognized, they must bring one suit, and one only, in which the damages- due to them respectively may be assessed. In that state of the law, I do not think this House ought to encourage the creation of a new right and corresponding liability which are at present unknown in Scotland.”
Lord Field, concurring in that opinion, said:
“The appellant did cite to your lordships a great many cases. I have been carefully through them, and have considered them, and it seems to me, as far as I can follow the question, that there is no foundation whatever for the appellant’s contention.”
That two actions cannot be maintained for the same wrongful act, see Bigelow v. Nickerson, 17 C. C. A. 1, 70 Fed. 113; The City of Norwalk, 55 Fed. 98; Steamboat Co. v. Chase, 16 Wall. 532; Dibble v. Railroad Co., 25 Barb. 188; Proctor v. Railroad Co., 64 Mo. 119; Fowlkes v. Railroad Co., 5 Baxt. 663.
In a late case in Kansas, decided July 10, 1897, —Margin v. Railway Co., 58 Kan. 475,— it was held that section 420, the survival statute, permits actions to survive for injury to the person only when death does not result from the injury, but occurs from other causes; but, however, where death results from the wrongful act or omission of another, section 422, the death act, is exclusive. That court cites in support of that rule of construction: Andrews v. Railroad Co., 34 Conn. 57; Read v. Railway Co., L. R. 3 Q. B. 555; Chicago, etc., R. Co. v. O’Connor, 19 Ill. App. 591; Holton v. Daly, 106 Ill. 131; Chicago, etc., R. Co. v. O’Connor, 119 Ill. 586; Tiff. Death Wrongf. Act, § 119.
In Hill v. Railroad Co., 178 Pa. St. 223 (56 Am. St. Rep. 754), decided by the supreme court of Pennsylvania November 9, 1896, it appeared that an act of 1851 of that State provides that no action for personal injuries by. negligence or default shall abate by reason of plaintiff’s death, ■but shall'survive to his personal representatives, and that, ■where the injured person did not s.ue during his life, his widow or personal representative may sue; that an act of 1855 extends the right of action to children and parents of a decedent, and provides for the distribution of damages recovered. It was held that a widow was not given an independent cause of action for an injury causing her husband’s death which he could not in his lifetime release ■ or compound. In that case the court cites Read v. Railway Co., L. R. 3 Q. B. 555, and the opinion of Lush, J., with approval, in which he said:
“ The intention of the statute is, not to make the wrongdoer pay damages twice for the same wrongful act, but to enable the representatives of the person injured to re cover in a case where the maxim ‘Actio personalis moritur cum persona1 would have applied. It only points to a case where the party injured has not recovered compensation against the wrongdoer.”
I am aware that in some of the States it is held by the courts that two actions may be maintained under statutes somewhat similar to our own; but the case of Needham v. Railway Co., 38 Vt. 294, we have seen, has been effectually overruled by the later case of Legg v. Britton, 64 Vt. 652, and the case of Bowes v. City of Boston, 155 Mass. 344 (15 L. R. A. 365), shown not to be well reasoned, by the Rhode Island court, in Lubrano v. Atlantic Mills, 19 R. I. 129. In Vicksburg, etc., R. Co. v. Phillips, 64 Miss. 693, it is held that two actions may be maintained under somewhat similar statutes to our own; but the court cites no cases sustaining such a rule, though counsel for plaintiff in that case in their brief seem to rely upon Needham v. Railway Co., supra. In Davis v. Railway, 53 Ark. 117, the court seems also to have relied upon Needham v. Railway Co., supra. In the case of Hedrick v. Navigation Co., 4 Wash. 400, decided by the supreme court of Washington in 1892, the statutes treated of are very different from our own, and the case is not authority for the contention made for it.
It is claimed that, in construing these acts, the amendment of 1885 of the survival act must speak from the date of the original act. This is undoubtedly true. But it has never been contended in this State, so far as I can ascertain, until the present action was brought, that a cause of action survives for a negligent injury, or for an assault and battery, where death results from the wrongful act, though these two statutes have been on the statute books for 50 years, and the amendment of 1885, as to negligent injuries, over 12 years. Apparently it was thought by the profession that actions in such cases must be brought under the death act, as no one ever before claimed that two actions would lie for the same wrongful act. From the history of the cases in this State, it is at once apparent what the legislative intent was in passing the amendment of 1885. Prior to that time, if the party negligently injured brought suit for damages, and died, during the pendency of the case, from some other cause than the negligent injury, the suit immediately abated, and no right of action accrued to his personal representatives under sections 8313 and 8314, because his death was not the result of the wrongful act or omission. * The profession was often confronted with this condition, as all such suits abated by the death of the party. But since 1848, when death resulted from the wrongful act, actions could be maintained under the death act. It was not necessary to amend either statute to give a right of action where death did result from the wrongful act. That right already existed. The purpose of the legislature, therefore, was to provide a remedy when one was lost by the death of the party, by the survival of the action which the party himself might have brought in his lifetime for wrongful injuries not resulting in death, and which cause of action did not survive under the former acts.
The only logical construction of these statutes, so as to give effect to both, is that the death act applies to cases of death caused by wrongful injuries, while the survival act applies to cases of personal injuries not causing death. If these two acts had been passed at the same time, each being embodied in different sections of the same act, what ground would this have afforded for the contention that the survival section applies to injuries resulting in death? We should then have to reconcile and render operative both sections, as now. The question of the legislative intent of the survival- provision in reference to injuries causing death would still be open. The illogical result of holding that the survival provision was intended to cover cases of wrongful killing would still be presented, and would force the conclusion that the legislature intended that the survival provision should apply only to personal injuries not causing death. If we start with the survival act as in existence at the date when the death act was passed, the result is not changed. We then have an act which provided for the survival of actions for personal injuries, followed by another giving a right of action for personal injuries resulting in death. It cannot be contendéd that the survival act conferred a right of action for wrongful killing. More definite and specific language indicative of the legislative purpose to do this would be required. •> In Illinois the death act was passed first. In Holton v. Daly, supra, both these Illinois statutes were construed, and it was held that both should be given effect; that, where death occurred from the injury, the death act applied, and, where the person died from some other cause than the injury, the survival act applied. This decision was not based upon the fact that the death act was first passed. In Rhode Island the survival act was passed first; and the court, in the Lubrano Case, supra, construed these statutes with the same result as reached in Holton v. Daly, and by the same reasoning, that both acts must be construed together. In the McCarthy Case, supra, it appeared that both acts were passed and took effect upon the same day, and effect was given to both, and it was held that the survival act applied to cases only where the death resulted from some, other cause than the wrongful act. In all the cases cited by counsel .where a different result has been reached, the decisions have been based upon the ground that Lord Campbell’s act created a new cause of action. I think there is nothing, either upon principle or authority, in the fact that one act was passed before the other, which affects the construction to be given these statutes. The real question is (both statutes being in force), how should they be construed so as to give effect to both? And I think the only logical construction is that given by most of the cases; that is, that the survival act applies to cases of negligent injuries to the person that are not fatal, and that Lord Campbell’s act applies to fatal cases.
But it is suggested that another view might be taken of these statutes, which would give a definite and certain -rule; that is, that where a person is injured, andi survives the injury for a time, a right of action accrues to him, which survives in case of his death before judgment, and that in such case the death act has no application; but that, if the person is killed outright, no right of action ■could accrue to him, and therefore none could survive, and the death act would necessarily furnish the only relief. Let us see how this construction would leave the parties ■who were dependent upon the deceased. Under the survival act, the amount recovered goes into the estate for the benefit of creditors, and, if the estate be insolvent, the -creditors might receive every dollar of the amount. Is it possible that the legislature was so solicitous for the creditors of the deceased that a limitation was put upon the death act, and a recovery under that act (the proceeds of which go to the dependent ones) made possible only when the death was instantaneous ? To illustrate: Suppose A. is 30 years of age, has a wife and children, earns $125 per month, and receives an injury which he survives one hour. Dui'ing that hour a right of action has accrued to him. The death act, then, has no application to the case, and no recovery can be had under it. The administrator, under such a construction, could recover under the survival act for the pain and suffering caused by the injury, which might be merely nominal, and this would go to the creditors if the estate were insolvent. If the action could be brought under the death act, the widow and children would receive the whole of the fund recovered, and the ■damages would be founded upon the pecuniary loss of those dependent upon the deceased. It cannot be possible that the legislature ever intended such a limitation upon the death act. A recovery under the death act has always been permitted in this State when the death results from the wrongful act, and this without regard to whether the -death was instantaneous or not.
In Van Brunt v. Railroad Co., 78 Mich. 530, it appeared that the plaintiff’s intestate was injured January 1, 1888, and died from the injuries on the next day. On the trial it was shown that the deceased was an unmarried man, and had no one dependent upon him for support. The court below directed the verdict in favor of defendant. In this court the case was fully considered, and it was assumed that, if the plaintiff had been able to show-pecuniary loss by next of kin, a recovery might be had. A point was made that a recovery might be had under the survival act, and that point overruled.
In Hunn v. Railroad Co., 78 Mich. 513 (7 L. R. A. 500), plaintiff’s intestate, a fireman, was killed in a collision of defendant’s trains. The action was brought under the death act. Just how long he survived the injury does not appear, but that fact was ignored. The case was reversed upon the ground that the court improperly admitted certain testimony, and a new trial was granted.
In Sweet v. Railroad Co., 87 Mich. 559, plaintiff’s intestate was injured by striking against a shed adjacent to the track. He lived 30 minutes after the accident. The action was brought under the death act, and judgment was rendered for $5,000, and was affirmed in this court. Mr. Justice Gbant dissented, but not on the ground that the action could not be sustained under the death act.
In Richmond v. Railway Co., 87 Mich. 374, plaintiff’s intestate, a street-car driver, was killed in a collision of the defendant’s cars With the street car he was driving. The injur3’ occurred about 4 or 5 o’clock in the afternoon, and he survived until the evening of the same day. The action was brought for the benefit of the mother and an invalid sister, and a recovery had under the death act. The judgment was for $5,313, and was affirmed in this court. Justices Gbant and Champlin dissented, but not upon the ground that the action could not be maintained under the death act.
In Schlacker v. Mining Co., 89 Mich. 253, the action was under the death act. The plaintiff’s intestate was injured, and survived several days. The fact that the death was not instantaneous was ignored. The judgment was reversed, and a new trial ordered.
In O’Donnell v. Railway Co., 89 Mich. 174, though the deceased lived about an hour after the injury, the action was brought under the death act, and no one questioned that the act was applicable if the circumstances had been such that a recovery might have been had.
In Pennington v. Railway Co., 90 Mich. 505, plaintiff’s intestate was injured while switching cars. He survived six hours. The action was brought under the death act. Plaintiff recovered in the court below for the pecuniary loss sustained by the widow and children, and for the expense of his care, nursing, and funeral expenses. While the case was reversed, no one questioned the right of recovery upon the ground that the action could not be maintained under this act, or questioned that the damages claimed could be recovered as claimed if the defendant had been guilty of the several acts of negligence averred in the declaration.
In Racho v. City of Detroit, 90 Mich. 92, it appeared that the plaintiff’s intestate was injured June 25, 1889, and died June 10, 1890. No action was instituted in the lifetime of the intestate. After his death the widow, as administratrix, brought suit under sections 8313, 8314, 2 How. Stat. The lower court directed verdict and judgment in favor of defendant. That judgment was reversed, and a new trial ordered; it being held that the widow, as administratrix, could recover under the above sections of the statute.
Not one of these cases could have been maintained if these statutes had been construed as now contended for, for in no case was the death instantaneous. Other cases of like character might be cited. I have examined the cases with some care, for the purpose of ascertaining in what proportion of them the death was shown to have heen instantaneous, and find but very few. If, therefore, the death act can be applied only to cases where the death is instantaneous, it should be amended in order that the widow and children of the deceased may have some benefit under it. From the cases it appears that few persons were killed who did not have someone dependent upon them, and that few were killed outright. Are we, by construction of the statute, to cut off all the rights which such dependents may have? No case can be found in this State giving such construction, though this statute (the death act) has been upon the statute books for upwards of 50 years. I am aware that in Maine this construction is given to a similar statute. State v. Maine Cent. R. Co., 60 Me. 490. But in no other jurisdiction is such a limitation put upon the death act, that I am aware of. In-Massachusetts a contrary view is expressly held under a statute similar to the Maine statute. Com. v. Metropolitan R. Co., 107 Mass. 236.
It should be held that the plaintiff could not maintain this action under the first count of the declaration. The only remedy was under sections 8313 and 8314.
Grant, C. J., concurred with Long, J. | [
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] |
Long, J.
This action was brought to recover the value ■of a horse which was drowned on the public highway in defendant township. It was claimed that this highway was out of repair, and that defendant, after notice or knowledge of such defect, failed to repair the same.
The highway extends northward from the city of Grand Rapids parallel with Grand river, and, on account of its proximity to the river, and the low and flat nature of the .ground,-is overflowed in various places in times of high water. The accident occurred on the afternoon of January 14, 1897. For several days prior to this the weather had been warm, and there had been continuous rains, and on the morning in question it commenced to freeze. Mr. Thomas Hart was in plaintiff’s employ, and was driving plaintiff’s team on the way from Grand Rapids to plaintiff’s home. Upon reaching this flat piece of ground, he found it considerably overflowed, and ice from two to three inches thick formed upon it. He drove into the water, and as his horses advanced they would break through the ice. After advancing for several wagon lengths, the water was up to the knees of the horses. It apparently grew deeper as they advanced, and suddenly the horses stepped into a washout. They reared upon the ice with their forefeet, and the ice giving way let them into the hole. In the struggle one of the horses reared upon the ice, slipped, and fell, pulling the other over, and one was drowned. Just before reaching this hole, the horses hesitated about going on, but the driver whipped them, and compelled them to go forward.
Mr. Mitchell, a witness for plaintiff, passed over the road the second day before the accident. - The water was running over it in two small streams, but he found no holes. The water was then rising. He testified that he again drove over the road about noon of the day of the accident, and found the water still deeper. At this time he found there was a hole about feet deep and 5 to 7 feet across. The water was running over the road. Mr. Bush, another of plaintiff’s witnesses, drove over the road four times on the afternoon of the day before the accident. There was about two feet of water over the road the last time he went, and he found a mud hole at that time about three feet deep. He was driving one horse, and had a half cord of wood on his wagon, and went over safely. Mr. Lamoreaux had driven over the road on the morning of the day, and found a hole there, but not a dangerous one. It will be seen from this testimony, and it was not disputed, that the road was in good condition at the time the rainfall commenced. The water began running over the road two days before the accident, and without dispute made this washout. The water kept rising over the road from the time it commenced until the accident occurred. The notice or knowledge which the township had of this condition is shown by the testimony of the witness Mitchell for plaintiff and of Mr. Lamoreaux for defendant. Mr. Lamoreaux was the overseer of highways of that road district. Mr. Mitchell testified that he saw Mr. Lamoreaux drive over the road on the morning of the day before the accident; that he saw him again shortly before noon of the same day, and asked him about the road, he having heard there was a bad hole in it, and that Mr. Lamoreaux replied that it was not a bad hole, and made some such remark as, “It cuts no ice with our folks.” Mr. Mitchell did not claim that he told Lamoreaux there was a bad hole there, and Mitchell passed over it safely after this talk. Lamoreaux testified that this conversation was some days later, and also that when he passed over the road he found a mud hole, but that it was not dangerous.
The defendant asked the court to direct the verdict in its favor, which request was refused. The court submitted the case to the jury on the questions both of actual and constructive notice. The jury were advised by the court substantially that if the plaintiff’s agent, in the exercise of due care, attempted to pass over the road, and they found that the road was in a defective condition, not fit and safe for public travel, and that the township had actual or constructive notice of its condition, and sufficient time, after such notice, to make the repairs, then the plaintiff was entitled to recover. The jury returned a verdict in favor of plaintiff for the value of the horse.
We think this verdict should not stand. The evidence shows conclusively that the township had no opportunity to make the repairs, even had the overseer of highways found the hole there, as claimed, on the day before. The water was rising, and continued to rise up to the time of the accident.
But counsel for plaintiff contend that the overseer should have given some notice that the way was dangerous. It is sufficient answer to this to say that the declaration does not count on any such negligence.
Aside from this question, we think there was no notice to the township, either actual or constructive, of the dangerous condition of the highway on that day. Mr. Mitchell and Mr. Bush each drove over it after Mr. Lamoreaux did, and Mr. Bush four times with wood. Each time he drove over he found the hole deeper, but of this fact Mr. Lamoreaux was not advised. Lamoreaux had found it safe, and Mitchell had found it safe.
It is apparent that the unsafe condition at the time of the accident was not the depth of the hole. It was then only 3 to 3-2- feet deep. Ice had formed, and the horses, in attempting to spring upon it, slipped and fell. The ice was from 2 to 3 inches thick. The township was in no wise at fault for the rising of the water or the formation of the ice. The hole or washout was not the proximate cause of the injury. But for the water and the ice formed thereon, the horses undoubtedly would have gone through safely, as the others had. The water at the washout was scarcely breast-high to the horses. They could only go through the ice by breaking it, and one of them, attempting to break it, slipped and fell, and could not be made to stand up. A township is liable only, under the statute, for injuries sustained by reason of its neglect to keep its highways in repair, where such neglect is the proximate cause of the injury. The case is governed by Beall v. Township of Athens, 81 Mich. 536; Bleil v. Railway Co., 98 Mich. 228.
Aside from every other consideration in the case, we are satisfied that the plaintiff should not be permitted to recover, as it is shown conclusively that the driver was guilty of negligence. He saw the condition. The horses were urged forward after the water was up to their knees, though they were compelled to go upon the ice, and at every step broke through it. When they stopped, they were whipped forward, the water getting deeper as they advanced. When they reached the washout, they again reared. The ice held for a moment, and one of them slipped and fell. All that was done by the driver was to unhitch the traces, and very little appears to have been done by two other occupants of the wagon, who were with the driver at the time of the accident, to save the horses. It was certainly negligent to attempt to drive them forward under the circumstances here stated.
The court should have directed the verdict in favor of defendant. The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). Two reasons are urged against the judgment: (1) That there was no evidence that Mr. Winans came to his death by external, violent, and accidental means; (2) that there was a breach of warranty in applying for and obtaining the subsequent insurance in the Standard Company without notice to the defendant.
Upon the first point the learned counsel state their contention as follows:
“There is no direct evidence of accidental drowning. The undisputed physical facts tell their own story. They say, as we shall presently show, that Mr. Winans may have drowned accidentally; that he may have died of apoplexy; that he may have drowned intentionally. Is it possible that a jury is permitted to guess which of the three admissible hypotheses is true ? ”
They insist that the case falls within the rule in Merrett v. Accident Association, 98 Mich. 338. No question is raised upon the instructions to the jury, provided there was a question for their determination. The statement of the plaintiffs’ proofs is therefore essential.
There is no evidence of anything unusual in the appearance or conduct of Mr. Winans prior to his death. On his way to the boathouse, he met a friend, who invited him to accompany him to the Windsor races. He declined, but said he was going to take a boat ride, and invited his friend to go with him, saying: “I will get some cigars. We will get a boat, and have a real nice, pleasant time.”
One Heron was driving over the Belle Isle bridge. He saw Mr. Winans in the boat, and his hat in the water.
“Saw him row around to get his hat. He came alongside of it. When he came alongside of the hat, he got over. Saw him fall into the water, and he hollered for help. * * * He came*up that far [indicating by a gesture ] out of the water.”
On cross-examination he testified as follows:
“I was just about a quarter of the way over — a little better — when I first saw the man in the water. He was shouting for help. I was pretty near the end of the bridge, and going slow, to watch him all the while. When I last saw him he was in the water, trying to save himself,— trying to get aboard; and the boat went down sideways, and she kept floating away from him. He tried to get to the boat. I walked my horses, and stopped occasionally. Drove nearly three-quarters of the length of the bridge, looking at him all the time, not stopping any length of time, only going slow several times. When I was about three-quarters across the bridge, the man just disappeared under the water. I saw him sink once; did not see him come up again.”
One Kirk testified that he was on the bridge.
“ Saw the ferryboat coming out of the Belle Isle dock, and a man in a small boat. ' The boat and the man disappeared all at once. I then saw the rowboat going down the river empty. In a little while, saw the man in the water crying for help. Heard him holler three times. Did not see him make any exertion or effort, only he was hollering for help. Saw his hands like that.”
One Schultz was at the boathouse. Saw Winans get a boat and start out. Heard the ferryboat give three sharp whistles, meaning to get out of the way.
“ Winans was then just where the ferryboat has to go through a small cut on what is called the ‘Middle Ground.’ I watched him when the ferryboat passed him, and could see that he was 50 or 60 feet above the ferryboat. ”
After this he paid no more attention. On cross-examination he testified that, “when the ferryboat gave three whistles, Winans struck off up right at the edge of the Middle Ground.”
One King testified:
“Saw Mr. Winans swimming towards the boat, struggling in the water. * * * Did not see him throw his hands up in the air, or anything of that kind. The kind of struggling he was doing was, it seemed as if he was swimming very fast. He swam after the boat. The boat kept getting away from him.”
One Matzen, who was with King, testified that he thought he noticed him swimming towards the boat. These last two witnesses were the ones who rowed out, and towed the body ashore. They found the body floating, with the top of its head above the water.
One Fritz testified that he saw the man out in the river. Saw the boat floating away, and two objects floating down the river. Heard the man hollering. Heard him plainly two or three times. Did not hear what he said. He was swimming towards the boat, which was empty. Saw him hold both his hands np twice. The waves seemed to go over him. Tie was right in behind a ferryboat when he first noticed him, — perhaps 50 feet from the ferryboat.
One Benoit testified that he saw the man in the water. Heard him holler three times. Saw him swimming and struggling for all he was worth. He was sure he was swimming 20 minutes. He looked as if he was swimming for life.
One Baroski testified that he “saw the man throw up both hands twice, and he hollered three times. He was swimming towards his boat all the time after he got up and came from under the water. Raised both his hands twice, went down, and, when he came up, swam again. ”
Dr. Newman examined the body shortly after it reached the shore. He testified that:
‘ ‘ It presented the ordinary symptoms of a man who died by suffocation. His face was congested. The usual bloody froth and mucous from his lips and nostrils. * * * He had all the appearance of a man who had been drowned. * * * If it was an actual fact that he had been swimming, I should say he died from ordinary drowning. * * * The opinion as to his death, I should think, would depend a great deal upon the fact as to whether he was actually swimming. * * * Assuming that he was swimming towards the boat, screaming for help, and from what I saw of his condition on the dock, I should say that he died, in all probability, from drowning. ”
In reply to a question stating substantially the facts, the witness said, ripon cross-examination, “It is possible that Mr. Winans died from apoplexy, or a fit, or from suffocation.”
Dr. McGraw, another prominent physician, testified, in reply to a question assuming to state all the facts, that he died from drowning, or some sudden seizure, like apoplexy. He also testified'that “a man whose abdomen was distended by gases would be liable to float.” Dr. Newman had testified that the abdomen was unusually dilated with gases. He also testified that a man taken with apoplexy while in the water would not have much chance to escape, and might die from.drowning, notwithstanding he had apoplexy.
The testimony of these physicians is not conclusive, and its sole province was to aid the jury in their deliberations. Much stress is laid by counsel for the defendant upon the fact that the boat took'in no water when Mr. Winans fell overboard. He might have been reaching for his hat when upon the top or side of a wave, in which event the boat might have righted itself without taking water. We think this circumstance of but little moment.
The learned counsel for the defendant insist that the facts deducible from the above testimony are consistent with three theories of the cause of death, and therefore prove no one of them. These theories are apoplexy, sudden seizure, and suicide. We cannot agree in this conclusion. The testimony does not establish facts to overcome the presumption. Where death may be attributable to suicide, murder, accident, or negligence, the presumption of law is against suicide and murder. 4 Joyce, Ins. § 3773; Nibl. Acc. Ins. § 377; Travellers’ Ins. Co. v. McConkey, 127 U. S. 661; Mallory v. Insurance Co., 47 N. Y. 52 (7 Am. Rep. 410). It is true that the bodies of persons who die from drowning usually sink, but there are occasional circumstances under which they do not sink, and there was evidence in this case tending to show the presence of those circumstances. There was ,no autopsy, but there is no evidence tending to show that Mr. Winans was subject to any fits or sudden .seizures. All the circumstances are consistent with accidental drowming, except the mere fact that the body did not sink. If, however, it be assumed that some sudden seizure caused him to fall into the water, or came upon him after he had fallen into the water, it would not follow that death was not caused by drowning.
H. left his lodgings about 7 o’clock in the evening, intending to bathe. His clothes were found on the steps of a bathing machine, and about six weeks afterwards a body was washed ashore, claimed to be his. There was no other evidence of the circumstances of his death. The questions submitted for decision are stated as follows: (l) Assuming H. to have been drowned, and that his death was not caused by suicide, or by his willful act in exposing himself to unnecessary danger, or while he was in a state of intoxication, are plaintiffs entitled to recover ? (2) Was there any evidence, proper to he submitted to the jury, that H. was drowned? Held, that the question was one for the determination of the jury. Trew v. Assurance Co., 6 Hurl. & N. 839. Where a temporary trouble, unusual and uncommon, causes one to fall into the water, and he is drowned, the company is liable. Manufacturers’ Acc. Indem. Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945. So, where one was seized with an epileptic fit while crossing a stream, fell in, and was drowned, the company was held liable. Winspear v. Insurance Co., 43 Law T. (N. S.) 459.
Dr. McGraw, after his attention had been called to the circumstances of this case, said:
“I would not say that he had an apoplectic stroke or committed suicide, but that he had some seizure which would take away his senses. There are other things besides apoplectic strokes. A man may die suddenly of heart failure under such circumstances. But my judgment would be that either the man committed suicide, or that he died from some such sudden seizure while in the water.”
The case, upon this point, was properly submitted to the jury.
Had the defendant waived its right to insist upon the breach of warranty as a defense? No communication had been made to the company in behalf of Mrs. Winans, the beneficiary, until September 25th, when a letter was received from her attorney, Mr. Babcock, dated September 21, 1896, and reading as follows:
“Will you please send to me the blank forms you desire used for proofs of death? I write in the interest of Mrs. Eva Winans, wife of William N. Winans, deceased, who was insured by your policy No. 12,308. Mr. Winans was accidentally drowned while out rowing on the Detroit river.”
■ In reply to that letter the company wrote, September 25th, as follows:
“We are in receipt of your communication of the 21st inst., asking that we send to you blank forms used for proofs of death; stating that you write in the interest of Mrs. Eva Winans, wife of Mr. William N. Winans, insured under policy No. 12,308, and that Mr. Winans was accidentally drowned while out rowing on the Detroit river. You fail to give any particulars, or even the date, of the alleged accident, which we are entitled to have immediately in case of accidental injury or death. Although we do not understand how you are going to affirmatively prove accidental death in this case, under the circumstances, yet we will comply with your request, and forward the blanks as requested, subject to the notices and stipulations printed thereon.”
The blank proofs of death furnished contained the following notice:
“These blanks are sent to permit of a statement of facts, and the furnishing of same shall not be held to be a waiver of any of the agreements or conditions of the policy or of the application, nor of the rights of the company in the event of any violations of such agreements or conditions by the insured or beneficiaries, or in any event.”
When proofs of loss were sent, does not appear. They gave all the other insurance, but made no mention of the subsequent policy. ' On November 20th the company wrote Mrs. Winans, informing her that it should rely upon this breach of warranty, and others, also, and inclosed her a draft, as a refund of all premiums paid. After the writs of garnishment were served, and on October 26, 1896, the company filed a disclosure, denying any liability. Soon after that, interrogatories to the garnishee defendant were filed, and by stipulation the time for answering the special interrogatories was extended to December 7th. By the fourth interrogatory the garnishee was called upon to state for what reason or reasons it denied liability upon the policy. By interrogatory 5, the defendant was required to state any statement or statements made by the insured, or any one in his behalf, upon which it relied as a ground for denial of liability.. It refused to answer the fourth and fifth interrogatories. It had, by the terms of the policy, three months from the date of filing proofs in which to examine and determine whether it would acknowledge or deny liability, and asked that the answer to these be postponed till after the expiration of that time. This was granted, and the defendant was entitled to it as a matter of right. On February 1, 189?, it filed answers to these two interrogatories, setting up seven grounds of nonliability, of which we need mention but two: (1) That death did not result from bodily injuries sustained through external, violent, and accidental means; and (2) the breach of the agreement to notify the company if any additional insurance was applied for or obtained.
The company, upon hearing of the .death of Mr. Winans, instructed its agents to investigate. They did so, and reported that they had been informed of this other insurance, and also concluded that Mr. Winans had committed suicide. Neither Mrs. Winans nor these garnishee plaintiffs had given the defendant any information upon which it acted. It made, as was very proper, an independent investigation. Neither the plaintiffs nor Mrs. Winans knew of this investigation, or were in any manner misled by the conduct of the defendant. They were under no legal or moral obligation to inform Mrs. Winans or plaintiffs of what they had learned from their investigation. No case that I have found or examined carries the doctrine of waiver to the extent of holding that, when a beneficiary asks for blank proofs of loss, the insurer waives the defense of a breach of warranty by failing to state that it has been informed that there had been a breach of warranty. The insurer has a right to keep silent until proofs are furnished. Had Mrs. Winans, in her application for blank proofs, informed the company that Mr. Winans had taken out other insurance, and the company had still furnished proofs, without insisting upon this as a defense, there would have been a waiver, under the authorities cited. On every occasion when the company was called upon to speak, it insisted upon this defense. The letter inclosing the blank proofs of loss called the attention of Mrs. Winans to the conditions of the policy and the application, and expressly stated that it would insist on every defense it had for violation of any agreement or condition therein. This was the first occasion on which defendant had been called upon to say anything. What language could be more definite, what statement more complete? This statement was made a part of the letter, just as effectually as though it had been copied in the letter. This is not controverted, and yet it is claimed that, because the defendant did not specifically and expressly state every defense it had or was informed of, and did in its letter hint at one defense, all others are waived. If the defendant had not stated in that letter, “We do not understand how you are going to affirmatively prove accidental death,” would it have been held that it had waived the defense of suicide by its silence, because its agent in Detroit had written that Mr. Winans committed suicide ? If defendant had inclosed proofs of loss without any letter, or with one stating that it waived no defense, would it have waived all violations of the contract of which it had before been informed? The logical result of plaintiffs’ contention is to close the door to every defense, in the face of the most positive assertion that it relied upon all, and waived none. The defense of breach of warranty is a meritorious one. The defendant clearly did not intend to waive it. In language unmistakable it notified Mrs. Winans that it did not intend to waive it; and yet, because it did not specifically state this defense, a waiver is claimed.
While some authorities have gone very far to sustain a waiver, particularly of technical defenses, I find none that have gone to the extent now claimed. We are cited in support of it to Marthinson v. Insurance Co., 64 Mich. 372. The facts in that case are totally different from those in this.. In that case the property was burned July 29th, and notice immediately given to the local agents. An adjusting agent came soon after. On August 21st two adjusting agents met the insured, examined them' under oath, were then informed of the breaches of warranty, and made no objection upon that ground. The insured then obtained instructions from the local agents, made out proofs of loss, and sent them to the company, September 2d. To this no answer was made till October 3d. Under these circumstances the breaches were held to be waived. It is urged that Mrs. Winans was put to the needless expense of filling out proofs of loss. The record does not show that she incurred any expense. The blanks were furnished by defendant, and it was the work of a few moments to fill them. It is idle to say that she incurred any such expense as will affect the question. There was no attempt to embarrass or hinder, as was found to be the fact in the Marthinson Case, 64 Mich. 382; nor was she misled or hindered in any way. “A waiver is the intentional relinquishment of a known right.” 28 Am. & Eng. Enc. Law, 526, and the numerous authorities there cited. Another authority defines it as follows:
“Waiver, in a general way, may be said to occur where-ever one in possession of a right conferred either by law or by contract, and knowing the attendant facts, does or forbears to do something inconsistent with the existence of the right, or of his intention to rely-upon it, in which case he is said to have waived it, and he is estopped from claiming anything by reason of it afterwards.” Bish. Cont. § 655; United Firemen’s Ins. Co. v. Thomas, 27 C. C. A. 42, 82 Fed. 406
This rule is just, and is founded in common sense and fair dealing. To hold that a party has waived a good defense, when upon the first opportunity he expressly, and in writing, asserts that he relies upon every violation of the contract under which claim is made, is not sanctioned by reason or sound authority. It is not approved by the common judgment of mankind. There is not one rule of law for insurance companies, and another for individuals, partnerships, and other corporations. The law is no respecter of persons, and applies the same rule to all, whether acting in their individual or corporate capacity.
The learned circuit judge committed error in instructing the jury that this violation of the contract was waived. For this reason the judgment should be reversed, and a new trial ordered.
Hooker, J., concurred with Grant, C. J. | [
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Long, J.
It appears that the petitioner, on April 4, 1898, filed a bill for divorce in the Genesee circuit court, in chancery, against her husband, Henry W. Wright. Defendant lived in Tuscola county, this State, and on April 11th caused his appearance to be entered in said cause, and demanded a copy of the bill. This copy was duly served on the same day, and an application was made for temporary alimony. This application for alimony was set for hearing on April 25th. It appeared on that application that the parties lived together as husband and wife in said Tuscola county until April 3, 1898, when the complainant left her husband on account of his cruel treatment of her, taking with her her two children, and removed into Genesee county adjoining, and on the nest day filed her bill for divorce. The circuit court refused to pass upon the merits of the motion, and denied the application for alimony solely on the ground that the complainant had not acquired a residence in Genesee county, and therefore the court had no jurisdiction. This petition is for a writ of mandamus to set aside the order so made, and to compel the circuit court to pass upon the merits of the case.
There is no showing in the case but that the complainant, the petitioner here, moved into Genesee county with the bona fide intention to make that county her home. She had two older daughters residing in Genesee county at the time she came there, and she at once took up her residence with them, and still continues to reside there. Section 6228, 2 How. Stat., provides that “a divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties, or one of them, reside, or by the court of chancery, on the application by petition or bill of the aggrieved party,” etc. Residence means the place where one resides; an abode; a dwelling or habitation; especially, a settled or permanent home or domicile. Residence is made up- of fact and intention. There must be the fact of abode, and the intention of remaining. Estate of Heron, 6 Phila. 90. It must be conceded, under the showing made, that the complainant had abandoned her home in Tuscola county. She had the undoubted right to do this by reason of the claim made of her husband’s cruel treatment towards her. Having abandoned her residence in Tuscola county, she was at liberty to select another residence. She has selected her residence in Genesee county, and the showing is that she intends to fix that place as her permanent home or abode for the time being. The statute fixes no time that one must occupy a place or home in order to become a resident of a certain .locality, when not coming from without the State, except in certain cases; such as acquiring a residence for the purpose of exercising the. privileges of an elector, for the purposes of taxation, for gaining a settlement as a pauper, etc. In the present case the complainant was a resident of this State, and had been for many years. She changed her residence from Tuscola to Genesee county. She lost or abandoned her residence in Tuscola county; and the fact that she intends to reside in Genesee county, coupled with the fact that she has established a permanent home there, we think, constitutes her a resident of Genesee county, within the meaning of the statute.
The court had jurisdiction of the subject-matter and the parties. The writ must issue as prayed, directing the circuit court to consider the cause upon the merits.
The other Justices concurred. | [
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] |
Moore, J.
This case grows out of some questions which arose in an effort to make a contract authorized by a decree made in the case of In re Beecher’s Estate, 113 Mich. 667, and a reference to that case may be profitable in considering this. An agreement was entered into between the representatives of the estate of Luther Beecher, and the owners of the Biddle House, in Detroit, the heirs of Eliza E. Biddle, for its purchase by the first-named parties. It was proposed to give a deed signed by the three surviving children and by the sixteen grandchildren of Mrs. Biddle, all of whom are of age. It was said there was a vested salable title only as to an undivided fourth of the property, and the sale was not completed. This bill was then filed for a partition of the property. Because of the character of the building, a partition can be made only through a sale.
At the time of her death, Eliza F. Biddle was duly seised of the property, and devised the same by will to her four children, each to hold an undivided one-fourth for life. Upon the death of each life tenant, one undivided one-fourth was devised to the grandchildren of the testatrix then living (without regard to representation), or to the issue then living of any deceased grandchild (by right of representation). It was also expressly provided that no grandchild or great-grandchild should take a vested interest until the death of each life tenant, each one-fourth thereupon vesting. Edward J. Biddle, one of the life tenants, died, leaving five children, all now living. There were then, and still are, sixteen grandchildren, all of age, who thereupon became seised of an estate in fee and in possession of an undivided one-fourth of the property, each owning an undivided one sixty-fourth of the whole.
The parties to this suit are all of the living descendants of Eliza F. Biddle, being her three surviving children, her sixteen grandchildren, and the wives of the four grandsons who are married, and the twenty-two great-grandchildren, who are all minors. Bosa Doran is a party defendant, because the will gives her an annuity of $500 from the rents. Sidney T. Miller and the administrators of the estate of Luther Beecher are brought in, because they hold, one a mortgage upon, and the others a leasehold interest in, the property involved in the partition. Of the three life tenants, one was brought in by publication, and two appeared voluntarily. Of the fifteen grand children, defendants, one was personally served with process, eleven were brought in by publication, and three appeared voluntarily. Of the fo.ur wives, two were brought in by publication, and two appeared voluntarily. Of the twenty-two infant great-grandchildren, eleven were served with process, and the other eleven, being beyond the reach of process, were brought in by publication. Rosa Doran was brought in by publication, and Sidney T. Miller and the administrators of the Beecher estate entered appearance voluntarily. All of the adult defendants were represented in court except Rosa Doran and Stratford Biddle, against whom a default was taken. Upon a showing of the infancy of the twenty-two great-grandchildren, the court appointed Felix A. Lemkie as guardian ad litem. The proofs were taken in open court, in the presence of the guardian ad litem and all the counsel, none of whom controverted the facts alleged in the bill. The court below ordered a sale and partition of the property, from which decree Eliza B. Williams appeals.
It is conceded by all the solicitors that there would be no doubt about the jurisdiction of the court to make the decree which was made had it not been for the decision in Metcalfe v. Miller, 96 Mich. 459 (35 Am. St. Rep. 617). We think the cases are distinguishable. In the Metcalfe Case it was shown that Mrs. Metcalf owned four-fifths of a life estate. Her husband owned one-fifth of the life estate and one seventy-second part of the reversion, all of which reversion was subject to the life estate. Mr. Metcalfe filed his bill for partition, not simply of the life estate, but of the whole estate, in which his reversionary interest did not vest until the life estate had passed. In that case it was said that the owners of the life estate were holders as tenants in common, and that, as between them, partition might be had; but that it did not follow that they were entitled to it against the reversioners. In this case the property was of such a character that it could not be divided by metes and bounds. Mrs. Biddle gave to each of her children an undivided fourth of the property for life, with remainder over. Upon the death of any one of the four children of Mrs. Biddle, his interest vests in all of the grandchildren of the testatrix. If any grandchild die leaving descendants, they take by right of representation. Edward J. Biddle, son of Eliza E. Biddle, has died. At his death there were sixteen grandchildren, all of whom yet live. They at once, by the terms of the will, became vested in fee with the quarter interest held during his life. One of them has filed the bill for partition, asking for her one-sixteenth of the quarter in fee, in possession. She asks partition among the sixteen grandchildren who own the quarter interest in common. The other parties to the suit are brought in as having interests in the premises which may be affected by the proceeding.
The proceeding is brought under the provisions of chapter 270, 2 How. Stat., and the interests of these parties are fully protected by the decree, from which none of them appeal. The interest of each grandchild is the same as the interest of any other one. As to the one-fourth interest sought to be partitioned, they are tenants in common and in possession. It was stated in Metcalfe v. Miller, supra, that “the object of the statute was * * * to enable joint tenants, or tenants in common, or persons having an undivided possession, to have partition between themselves.” See, also, 2 Barb. Ch. Prac. (2d Ed.) book 5, chap. 9, §§ 1, 2. As to the one-fourth interest sought to be partitioned in this proceeding, the life estate was •extinguished by the death of Edward J. Biddle. The other three children of Mrs. Biddle had no interest in it. The sixteen grandchildren were the reversioners. Their interests were'in common.
The decree is affirmed. As all the grandchildren are alike interested in having this question settled, the costs will be paid by the estate belonging to them.
The other Justices concurred. | [
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] |
Hooker, J.
Peter Mendelson was a clothing dealer in Ludington, and owned two store buildings and his stock of goods. The First National Bank of Ludington held a mortgage upon the buildings of $7,000. Mendelson had some unsecured debts, and there is convincing evidence that at least a portion of his indebtedness to the complainants was fraudulently contracted. A portion of the complainants’ claim fell due upon June 8, 1894; and on this day Mendelson informed the president of the defendant bank that he was embarrassed pecuniarily, and must fail, and that he contemplated securing home creditors. Thereupon an arrangement was made whereby he and his wife deeded the buildings to the bank, and it surrendered his notes, but not the accompanying mortgage, and executed a land contract with Mendelson’s wife, whereby it agreed to sell, and she to purchase, the premises for $7,000; that sum being the amount then due upon the mortgage. Stray, the president of the bank, then accompanied Mendelson to the office of a lawyer, where the latter executed a mortgage of his stock of goods to his brother-in-law, and, contrary to the advice of both Stray and the lawyer, then or subsequently made a second mortgage upon his stock to his wife, Paulina Mendelson. A third mortgage was made to another creditor, but it is unimportant. It is claimed on behalf of the bank that it took the deed to increase its security, by avoiding a foreclosure. It does not deny that it was taken as security for its claim, which it did not discharge. A few days after these transactions, Zeif, the. brother-in-law of Mendelson, sold the stock upon his mortgage, Mrs. Mendelson becoming the purchaser. The business continued without serious interruption; being conducted and managed by Mendelson, but in the name of his wife, until his death, which occurred some months later. The complainants obtained judgment against Mendelson, and this bill is filed in aid of execution. Meantime, $1,000 has heen paid upon the bank claim by checks of Mrs. Mendelson. It should also be mentioned that the second story of one of the stores was the residence of the Mendelsons.
From our examination of the evidence, we are convinced that this entire transaction, upon the part of Mendelson, was fraudulent, and that the amount paid upon the bank claim was paid by Mendelson, whereby said claim was reduced $1,000. The bank claim was $7,000. There was a homestead interest of $1,500, and there was the dower interest of Mrs. Mendelson in the premises, to all of which the levy was subject. At that time Mendelson was living, and the interest of Mrs. Mendelson was necessarily problematical. But the claim of the bank and the homestead interest amounted to $8,500, and it is, in our opinion, doubtful if the property could have been sold for more than that without a release of dower. Mr. Stray testified that he considered the property worth $10,000, and the assessment at $4,000 on a basis of 40 per cent:; and possibly the testimony of one other witness indicates that it might be worth that sum. That appears to be the full value, however, and several witnesses place the value much lower. Hence we feel warranted in saying that, at the time the deed and contract were made, the creditors were not injured, as there was no margin for them; and we should not hold that transaction fraudulent on the part of the bank, unless it connived to enable Mendelson to get the title in his wife, on payment which it was expected would be made from his own funds. We have no doubt that this was the design of Mendelson and his wife, but we have no reason to believe that the bank knew this. This plan was carried out, however, to the extent of the payment made, for we think that Mendelson furnished the $1,000 that was paid, as already stated. We are of the opinion that the contract should be set aside, the deed treated as a mortgage, and the premises sold upon said execution, subject to the balance due upon said mortgage, after deducting the payment of $1,000, and subject also to the dower and homestead rights of the widow. The complainants will recover costs against Mrs. Mendelson.
■ The decree of the circuit court is reversed, and one will be entered here in accordance with the views hereinbefore expressed.
The other Justices concurred.
Rehearing denied October 3, 1898. | [
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Grant, C. J.
Plaintiff, a corporation of Iowa, brought suit upon a note executed by the defendants for $1,600, payable to “A. B. Holbert, or order, of Greeley, Iowa.” The note also contained the following',provision:
“Interest payable annually, and interest at the rate aforesaid upon such interest after the- same becomes due, until paid; and we agree, if this note is not paid when due, and the holder sues the same, to pay a reasonable sum as attorney’s fees, to be assessed by the court, and taxed as a part of the cost, in any suit brought thereon.”
The defense was that the note was obtained by fraud. Plaintiff claimed to be a bona fide purchaser, before due. If the note was payable in Michigan, it was not negotiable, and was therefore open to the defense set up and proven. Cayuga County Nat. Bank v. Purdy, 56 Mich. 6; Altman v. Rittershofer, 68 Mich. 287 (13 Am. St. Rep. 341). If it was payable in Iowa, it became an Iowa contract, and was negotiable, under the decisions of that State. Sperry v. Horr, 32 Iowa, 184; Shenandoah Nat. Bank v. Marsh, 89 Iowa, 273 (48 Am. St. Rep. 381).
It is unnecessary to cite authorities to show that the law of the place where a promissory note or bill of exchange is made and delivered controls, in the absence of the designation of any other place; and, if any other place is designated, the law of that place controls. This is elementary. Plaintiff insists that the expression in the note, “ We promise to pay A. B. Holhert, or order, of Greeley, Iowa,” fixes the place of payment. There is no direct evidence as to where or when the note was delivered. It was dated in Michigan, signed in Michigan, and defendants resided in Michigan. The presumption therefore is that it was delivered in Michigan. The note fixes no place for payment, unless the fact that the note stated that the residence of the payee was in Iowa fixes the place. No authorities are cited sustaining this contention. The name of the payee in a mortgage is usually stated, but this does not make it a contract to be executed in the State where the mortgagee resides. Adding- the place of residence of the payee is merely descriptive. If a resident of Australia were the payee of a note executed and delivered in Michigan by residents of Michigan, it certainly would not follow that the contract was to be performed in Australia because his residence was inserted after his name. Counsel appears to rely mainly upon Cox v. National Bank, 100 U. S. 704. That was a case of a bill of exchange drawn on “C. & C., New York, N. Y.” It was held that the bill was, in law, payable at that city. The liability of the indorsers alone was involved. The subject is very ably discussed in that opinion. The true rule is there stated on page 712, as follows:
’ “Where no place of payment is expressed in a bill or note, the general rule, in the absence of any agreement or circumstances fixing or indicating a different intention, is that the place of presentment is the place where the acceptor or maker resides, or at their usual place of business. Circumstances, however, may control the usual inference arising from the want of any such expression in the instrument, which may warrant a very different conclusion. Thus, if a bill were drawn upon a merchant when abroad, and should be addressed to him ‘at Paris or at London,’ the place of payment would be the place where he accepted the instrument, whether Paris or London, and not the place of his residence when the bill was drawn or at its maturity. 1 Daniel, Neg. Inst. § 90. Provided no place is designated or agreed or indicated in the form of the address or the terms of the acceptance, the rule then is that the presentment for payment must be made at the home or domicile of the acceptor or maker, or at their, usual place of business, during business hours. Id. § 635.”
There are no circumstances shown in this case to take it out of the above rule.
The judgment is affirmed.
The other Justices concurred. | [
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Quinn, J.
An MESC referee and the appeal board held that plaintiffs were disqualified from receiving unemployment compensation benefits. On appeal to circuit court, the appeal board was affirmed, and we review the latter judgment.
Plaintiffs claimed unemployment compensation benefits for the period November 6 to November 30, 1964. The statutory disqualification then applicable was CL 1948, § 421.29 as amended by PA 1963, No 226 (Stat Ann 1963 Cum Supp § 17.531). The pertinent language of § 421.29(1) (b) read:
“(1) An individual shall be disqualified for benefits:
* # #
“(b) For any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by such labor dispute, in the establishment in which he is or was last employed, or to a labor dispute (other than a lockout) in active progress, or to shutdown or start-up operations caused by such labor dispute, in any other establishment within the United States which is functionally integrated with such establishment and is operated by the same employing unit. No individual shall be disqualified under this paragraph (b) if he is not directly involved in such dispute. For the purposes of this paragraph (b), no individual shall be deemed to be directly involved in a labor dispute unless it is established that:
* # #
“II. He is * * # directly interested in the labor dispute which causes his total or partial unemployment.”
The decision of the appeal board, which was affirmed by the trial court May 23, 1969, disqualified plaintiffs for the reason that,
“Their unemployment was due to a labor dispute in a functionally integrated establishment of the same employing unit within the United States under section 29(1) (b) of the act and they were directly involved in the labor dispute by virtue of being ‘directly interested’ within the meaning of subsection II of section 29(1) (b) of the act.”
In affirming, the trial court found that the decision of the appeal board was correct both as to fact and law.
Plaintiffs were employed November 6,1964 in nine separate “establishments” of defendant in Michigan. Pursuant to authorization from the international union, nine other “establishments” of defendant went on strike November 6,1964. The latter were located in Texas, Alabama, Kentucky, New York, Illinois, and Michigan. Plaintiffs and defendant have stipulated that the plants where the claimants were employed were functionally integrated with other company plants and the unemployment of plaintiffs was due to curtailment of production at their plants because of the lack of essential parts from company plants that were on strike or inability to ship their products to company plants that were shut down due to strikes at other company plants.
The foregoing facts establish the disqualification of plaintiffs under § 421.29(1) (b), supra, unless “they were not directly involved” in the disputes which caused plaintiffs’ unemployment. Plaintiffs were “directly involved” if they were “directly interested” in those disputes, § 421.29(1) (b) II, supra.
That part of § 421.29(1) (b) which defined “directly interested” read:
“The term ‘directly interested’ as used in this paragraph (b) shall be construed and applied so as not to disqualify individuals unemployed as a result of a labor dispute the resolution of which may not reasonably be expected to affect their wages, hours or other conditions of employment, and to disqualify individuals whose wages, hours or other conditions of employment may reasonably he expected to be affected by the resolution of such labor dispute. A ‘reasonable expectation’ of an effect on an individual’s wages, hours or other conditions of employment shall he deemed to exist, in the absence of substantial and preponderating evidence to the contrary: * * * ; or (III) if such labor dispute exists at a time when the collective bargaining agreement (which covers the individual’s grade or class of workers in the establishment in which the in dividual is or was last employed and the workers in another establishment of the same employing unit who are actively participating in such labor dispute) has expired, has been opened by mutual consent or may by its terms be modified, supplemented or replaced.”
It is not disputed that the strikes which caused plaintiffs’ unemployment occurred at a time when the master collective bargaining agreement of October 20,1961 between defendant and the international union had been opened by mutual consent and was being renegotiated. We find no evidence in the record to indicate that plaintiffs’ wages, hours, or other working conditions would not be affected by the resolution of the labor disputes involved in these re-negotiations. We hold plaintiffs were “directly interested” as defined by statute.
Additionally, defendant asserts, the record supports and plaintiffs do not deny that defendant and the international union had reached oral agreement on economic issues in principle of September 18, 1964, but the agreement was conditioned on and subject to resolution of all unsettled local issues. The international union was the exclusive bargaining representative for all workers of defendant with respect to the master collective bargaining agreement. Thus, plaintiffs were “directly interested” in resolution of the labor disputes which prevented formal execution and adoption of the master collective bargaining agreement which did affect their wages, hours, or working conditions.
Const 1963, art 6, § 28, and MCLA 1969 Cum Supp § 421.38 (Stat Ann 1968 Rev § 17.540) required judicial review on the whole record. On the whole record, there is competent, material, and substantial evidence to support the finding that plaintiffs were “directly interested” in the labor disputes which caused their unemployment. The provisions of § 421.29(1) (b), supra, required their disqualification.
Affirmed with costs to defendant.
All concurred.
Michigan Employment Security Commission.—Reporter. | [
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