text:
    FERRIS v. LOYAL AMERICANS OF THE REPUBLIC.
    1. Life Insurance — Action on Policy — Cause of Death —Suicide — Evidence—Sufficiency.
    In an action on a life-insurance policy, the defense being that assured died from a wound, admitted to have been self-inflicted, evidence examined, and held, to make a proper question for the jury, and that their determination in favor of plaintiff was not against the weight of the testimony.
    2. Same — Proof op Loss — Effect as Evidence.
    A statement in the proof of loss that assured died from a self-inflicted wound and heart failure was only effective as an admission that the wound was one of the causes of death, and as such was only an item of evidence bearing upon that issue, whence defendant was not entitled to an instruction that plaintiff was not enti tied to recover unless she established by a preponderance of evidence that the proofs of loss were made under a mistake as to the facts.

      3. Trial — Instructions—Emphasizing Testimony —Propriety-Discretion op Court.
    A requested instruction in an action on a life-insurance policy that “your verdict will, therefore, be for defendant unless you find that the statements mentioned [in the proofs of loss] as to the cause of death were untrue” placed undue emphasis upon an item of testimony, and was properly refused in the discretion of the court.
    4. Life Insurance — Action on Policy — Instruction — Cure by Verdict.
    In an action on a life-insurance policy, brought by assured’s widow in her own right and as assignee of the interest of her minor son, an instruction that the statements of plaintiff in the proof of loss might be considered “ as admissions binding herself, but not as an admission binding the minor son whose interests she represents ” was followed by a verdict for plaintiff. Held, that whether the instruction was erroneous in stating that the admission would not bind the interest of the minor son was immaterial, the jury having shown by their verdict that they disregarded the admission entirely.
    5. Same — Presumptions—Cause op Death — Instructions—Prejudice.
    Where, in an action on a life-insurance policy, the issue was whether a wound, admitted to have been self-inflicted, was one of the causes of death, an instruction that the presumption of law is against suicide, and that defendant must show by a fair preponderance of evidence that the cause of death was suicide, was equivalent, under the issue, to a statement that the burden rested upon defendant to show that the self-inflicted wound caused death, and as such was not prejudicial, defendant having stated, in its own requests, that the burden was upon it to show that deceased came to his death through a self-inflicted wound.
    Error to Kent; Wolcott, J.
    Submitted November 15, 1907.
    (Docket No. 51.)
    Decided May 1, 1908.
    Assumpsit by Addie M. Ferris against the Loyal Americans of the Republic on a .policy of insurance. There was judgment for the plaintiff, and defendant brings error.
    Affirmed.

      Kleinhans & Knappen (S. W. Dixon, of counsel), for appellant.

      McKnight & McAllister and Don. E. Minor, for appellee.
    This action is brought to recover upon a policy of insurance issued by defendant insuring the life of Marion L. Ferris, plaintiff’s husband. The policy is payable to plaintiff and her two sons,— one of whom was a minor. Between three and four a. m., June 22, 1905, while the insured was insane and suffering from fatty degeneration of the heart, he arose from his bed and severed what is known as the anterior external carotid vein on the left side of the neck. The wound was about one and one-fourth inches long and about one-half an inch deep. The insured lost an amount of blood estimated by the plaintiff to be a pint. The hemorrhage was speedily stopped and the insured removed to a hospital. There his wound was dressed and a saline injection given him. The next day he took nourishment three times and was so much improved that it was hoped he would recover. He became much worse on the evening of the 22d and died early in the morning of June 23d, of what the physician testifies to have been the same trouble that he had had for two years. The proof of loss sworn to by the attending physician contains the following questions and answers:

      “Q. Did you attend the deceased during his last illness ?

      “A. Yes.
    “ Q. For what disease ?

      “A. Meningitis and fatty degeneration of the heart.
    “ Q. What disease was the immediate cause of death?

      “A. Self-inflicted wound and heart failure.
    ‘ ‘ Q. How long in your opinion did deceased suffer from this disease ?

      “A. Heart had been bad since January 16th, 1905.”
    Plaintiff obtained an assignment of the interest of the other beneficiaries in the policy and brought this suit to recover for the loss. The issue was tried before a jury. The trial court charged that there could be no recovery,—
    “If the wounds inflicted by himself [the insured] hastened death and caused him to die sooner than he would have done had the wounds not been inflicted. * * * In such case it would be suicide no matter if it only hastened his death for a very short time only.”
    Under this charge — which for the purpose of this case we will assume to be correct, though we by no means affirm its correctness — the jury rendered a verdict in plaintiff’s favor. Defendant asks a reversal upon grounds which will be hereafter discussed.
   Carpenter, J.

(after stating the facts). The first and most important question in this case is raised by defendant’s claim that the undisputed testimony in the case proves that the self-inflicted wound hastened the death of the insured. All the testimony which tends to show the cause of death was given by the attending physician, Dr. Árdiel. There is no doubt that from Dr. Ardiel’s testimony the jury might have inferred that the wound did hasten death. It is also true as defendant contends that Dr. Ardiel does not explicitly testify that the wound did not hasten the death, but the inference that it did not may none the less be legitimately drawn. As heretofore stated, he does explicitly testify that he died from heart failure, the same disease from which he had suffered for two years, and that “several times during my attendance on Mr. Ferris I would not have given him five minutes, but he seemed to recover from the attacks due to the treatment and stimulation.” It is the theory of the defendant that the loss of blood or shock resulting from the self-inflicted wound had an effect in aggravating the heart failure and hastening the death. I think it may fairly be said of Dr. Ardiel’s testimony that he negatives that theory. As to the loss of blood he testifies:

“ The effect of loss of blood depends entirely on the individual. It did áffect him a little, certainly. It also depressed his vital force a little, and the pulse was a little bit fast. I do not think it tended to depress the nervous system nor to excite it; if anything I think it would relieve it. We often use blood letting to relieve congested conditions, excitement and also heart trouble, for weakness of the heart, and sometimes where we want to relieve the tension on the heart. For that purpose we commonly take out a pint. It is a well recommended course of treatment for fatty degeneration of the heart if the heart is failing and dilated from too much blood. But it is not for that alone, depending entirely on the situation. If the depression is so the heart is failing we often resort to blood letting. It is sometimes a desirable course of treatment in case of meningitis, but not always for a depressed nervous condition. * * *

Q. Was this hemorrhage he had of sufficient character to cause death ?

“A. No, sir, I do not think so. * * * An injection of saline solution into the circulatory system after a great loss of blood would take the place of the spent blood as far as the action of the heart was concerned.”

Respecting the shock he testified:

“ His nervous system was in accordance with the rest of his bodily symptoms; it was dull.

‘ ‘ Q. When the nervous system is what is known as dull, is it as susceptible to shock as nervous system in a normal condition ?

“A. No, sir, I don’t think it is. * * *

Q. Was there any shock there of sufficient character to cause his death, in your judgment ?

“A. Well, I think that if he had been dying from shock he would have died immediately with the hurt that he had.”

Defendant argues that notwithstanding the foregoing testimony wo should infer that Dr. Ardiel holds the opinion that the self-inflicted wound was one of the causes of death' because he testified that he had not altered his judgment in any substantial manner since he made the proof of loss. This argument assumes that by this testimony Dr. Ardiel intended to reaffirm his statement that the self-inflicted wound was one of the causes of death. This assumption is unfounded. The doctor testifies:

‘ ‘ In the death report * * * signed by me I simply gave a history of the case so that there would be^ nothing hidden from anybody. It was not the death certificate at all. There I stated self-inflicted wound and heart failure. I stated the facts in the case there just simply to give a history of the case as it was, and the cause of death. I told the coroner what I got down there was heart failure, and I have never had occasion to change my mind.”

I agree with the learned trial judge that the question of whether insured died by suicide was a proper question for the jury to determine, and I ágree, too, that their determination cannot be said, to be against the weight of the testimony.

Complaint is made because the trial court refused to charge as requested by defendant:

“Unless you find that plaintiff has established by a preponderance of evidence that the proofs of loss filed with defendant were made under á mistake as to the facts, your verdict must be no cause of action.” .

It is insisted that this request should have been given because in the proof of loss it is stated that the self-inflicted wound was one of the causes of death. This statement was an admission (New York Central Ins. Co. v. Watson, 23 Mich. 486; Castner v. Insurance Co., 50 Mich. 273; John Hancock Mut. Life Ins. Co. v. Dick, 117 Mich. 520; Wasey v. Insurance Co., 126 Mich. 119) and we do not think that it was anything more than an admission. See above authorities and 2 Bacon on Benefit Societies and Life Insurance (3d Ed.), § 471.

As an admission it was merely an item of testimony— an item which under some authorities (see Hanna v. Insurance Co., 150 N. Y. 526) would have controlling weight in the absence of other testimony — tending to prove that the self-inflicted wound caused death. The issue for the jury’s determination was whether the self-inflicted wound did cause death. As we have already indicated, there was testimony upon which the jury could have determined this issue either in favor of plaintiff or in favor of defendant. The admission in the proofs of loss was, as already stated, only an item of evidence bearing on this issue. As an item of evidence it was entitled to weight, but not to controlling weight. The jury might find that the admission was made deliberately and not through a mistake and nevertheless be convinced by other testimony that the self-inflicted wound did not cause death. It follows therefore that defendant was not entitled to have the jury charged as requested that “plaintiff was not entitled to recover unless she established by a preponderance of evidence that the proofs of loss were made under a mistake as to the facts.” In support of this conclusion we cite Supreme Lodge K. of P. v. Beck, 36 C. C. A. 467.

Defendant complains because the trial court declined to charge as it requested, “your verdict will, therefore, be for defendant unless you find that the statements mentioned as to the cause of death were untrue.” The giving of this request would have placed an extraordinary emphasis on this statement in the proofs of loss — a mere item of testimony. In general it may be said that the giving or refusal of such requests rests in the discretion of the trial court. The point under consideration is governed by that general rule.

The trial court charged the jury that the statements of plaintiff in the proof of loss may be considered ‘ ‘ as admissions binding herself, but not as an admission binding the minor son whose interests she represents.” Defendant contends that the statement that this was an admission not binding the interest of the minor son was erroneous. We do not think it necessary to determine this question. It is to be assumed that the jury gave proper weight to the admission as evidence against the original claim of Mrs. Ferris, and as they allowed that claim, it follows that they found some good reason for disregarding that item of testimony. They have therefore decided after due consideration that this item of testimony does not control their verdict. This is a decision which informs us that the alleged error was harmless. For it is impossible to conceive that if the jury had been charged, as we now assume they should have been, viz., that the admission had the same force as evidence against the interest of the minor son as it had against the original claim of Mrs. Ferris, that the verdict would have been thereby affected. That conception would require us to believe— and this is an impossible belief — that the jury would give to that admission as evidence against the interest of the minor son greater weight than as evidence against plaintiff herself.

The trial court charged the jury:

“Now it is a rule of law that where a death may be attributed either to suicide or to natural causes, the presumption of law is against suicide. The burden of proof therefore is on the defendant to show by a fair preponderance of evidence that the cause of death of Mr. Ferris was suicide.”

Defendant contends that the first sentence above quoted should not have been given in this case, because the undisputed testimony proves that the insured was insane. If the issue in this case had been: Did the insured himself inflict the wound herein described ? there would be force in defendant’s contention. That however was not an issue submitted to the jury by the learned trial judge. He told them that the insured did inflict that wound. The issue submitted to the jury was whether the self-inflicted wound caused death, and the language of the charge under consideration related to that issue. It was equivalent to saying to the jury this, viz., “that the burden rested upon defendant to prove that the self-inflicted wound caused death,” and the jury must have so understood it. So understood, defendant cannot complain that it was erroneous because in his own requests it stated “the burden of proof is upon defendant to show that the member, Marion L. Ferris, came to his death through a self-inflicted wound.”

No other question demands consideration.

The judgment is affirmed.

Grant, C. J., and Blair, Hooker, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    FERRIS v. COURT OF HONOR.
    Life Insurance — Cause of Death — Proviso—Burden of Proof.
    A provision in a life-insurance policy for a limited liability in case the assured shall die by suicide is in the nature of a condition subsequent, and in an action on the policy the burden is upon the insurer to show that the case comes within the provision.
    Error to Kent; Wolcott, J.
    Submitted November 15, 190?.
    (Docket No. 50.)
    Decided May 1, 1908.
    Assumpsit by Addie M. Ferris against the Court of Honor on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Hal. H. Smith, for appellant.

      McKnight & McAllister and Don. E. Minor, for appellee.
   McAlvay, J.

This case is a companion to the case of Ferris v. Loyal Americans of the Republic, ante, 314, and is in all material matters similar to that case. It was tried before the same judge, at about the same time, on substantially the same testimony and with the same result. It involves many of the questions raised in that case. It is unnecessary to repeat the discussion of those questions. They are controlled by our decision in that case. We proceed to discuss certain questions not raised in the other case.

The trial court refused to give the following request of defendant:

“ I charge you that before you can find a verdict for the plaintiff, in this case, you must find by preponderance of the evidence that the cut and wound did not hasten or accelerate his death, and was not a contributing cause thereof, otherwise your verdict must be for the defendant, no cause of action.”

This raises a question respecting the burden of proving the cause of death. We did not consider it in the other case because defendant’s counsel conceded that the burden rested upon their client. The contention of defendant is that the burden of proof was upon plaintiff to show that the cause of death was not within the suicide proviso of the certificate. The provision in the constitution of defendant company relative to suicide in force at the time of the death of Mr. Ferris, and which provision is to be considered as included in the insurance certificate, reads as follows:

“Sec. 145. If a benefit member commits suicide, whether sane or insane, voluntary or involuntary, there shall be payable to the beneficiaries entitled thereto five per cent, of the face of the certificate for each year he shall have been continuously a member of the society and after 30 years of continuous membership the certificate shall be payable in full.”

This question has been frequently before the courts in both life and fire insurance cases. From an examination of these cases, it appears that the general rule of law has been established, that provisions such as the one under discussion have been held to be conditions subsequent, and therefore that the burden of proving that the case comes within the proviso or condition of the policy being a matter of defense devolves upon the defendant. This court has approved and affirmed this doctrine in an opinion written by Mr. Justice Carpenter, which cites the leading case in the United States upon this question: Western Assurance Co. v. J. H. Mohlman Co., 28 C. C. A. 157 (40 L. R. A. 561), and quotes at length from the opinion which digests the American authorities. N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212, cited and approved in Phenix Ins. Co. v. Luce, 60 C. C. A. 655.

Complaint is made because the trial court did not give the following request respecting the statement in the proofs of loss:

“ I do not charge you that these estop the plaintiff from showing that the cause of death was otherwise, but I do charge you that they are admissions by her, and were in terms adopted by her, and that unless those admissions are' explained, they must stand, and can and should be considered by you in determining what was the true cause of death and whether or not the wound inflicted by the hand of the deceased did not contribute to hasten or accelerate his death.”

This request is somewhat different from the one relating to the same subject considered in the other case, but our reasoning in that case shows that it would have been incorrect to charge the jury that plaintiff could not recover unless those admissions were explained. The request should not therefore have been given. In so far as it stated the correct rule it was covered by the general charge of the trial court.

We are asked to review the refusal of the trial court to grant a new trial upon the ground of newly-discovered evidence. The trial court refused to grant this motion upon the ground that defendant had not used due diligence in discovering this so-called newly-discovered testimony. And also upon the ground that it would require an amendment of the pleadings and a retrial upon a different issue and upon a different theory. We approve this decision.

Other questions are raised. Most of them were decided in the other case. Others are based upon an erroneous construction of the record.

The judgment is affirmed.

Grant, C. J., and Blair, Hooker, and Carpenter, JJ., concurred.


author: Hooker, J. Montgomery, J.

text:
    CHARLES MALONEY & CO. v. GONHUE.
    1. Assignments for Benefit of Creditors — Statutory Provisions — Construction—Common-Law Assignment — Meaning of Term.
    In section 9539, 3 Comp. Laws, the words “ common-law assignment for the benefit of creditors ” are technical words having a well defined meaning in the law, in accordance with which, under subd. 1, § 50, 1 Comp. Laws, the statute must be construed; and, so construed, the statute applies only to general assignments in writing of substantially all the assign- or’s property for the benefit of creditors in which preferences are attempted.
    2. Same — Preferences—Order for Payment of Money — Effect as Assignment.
    A debtor in failing circumstances gave a creditor an order for money due the debtor, the payee agreeing orally to pay himself out of the fund and to apply the balance on the claims of certain creditors, a list of which was afterwards furnished. The fund was insufficient to pay the named creditors in full . and there were other creditors not provided for and the debtor possessed a small amount of other property. Held, that the order was not a “ common-law assignment for the benefit of creditors ” such as is contemplated by section 9539, 3 Comp. Laws, and was not, therefore, void under the statute because creating a preference. Montgomery, J., dissenting.

      Error t,o Delta; Stone, J.
    Submitted November 15, 1907.
    (Docket No. 68.)
    Reargued April 7,1908.
    Decided May 1, 1908.
    Garnishment proceedings by Charles Maloney & Company against the public schools of Escanaba as garnishee of Leonard Gonhue. Charles H. Norton and others intervened as claimants of the fund. There was judgment for plaintiff on a verdict directed by the court, and the claimants bring error.
    Reversed.

      F. D. Mead, for appellants.

      J. O. Hayden, for appellee.
   Hooker, J.

The public schools in Escanaba were indebted to Leonard Gonhue, who in turn was a debtor of the plaintiff and several other persons, among whom was a firm known as Norton Brothers. He gave to Norton Brothers a written order in the following words:

“Escanaba, Mich., Nov. 4, 1905. “Board op Education,

“City:

“Please pay to Norton Brothers, or order, the sum of Five Hundred and Forty-two Dollars, and charge the same to my account, and oblige.

“Leonard Gonhue.”

The money was due upon a contract for building.

The plaintiff attempted to reach this money by garnishment proceedings, and, being permitted to recover, the defendants have appealed. The case turned in the circuit court and must here upon the question whether this order was void under the provisions of 3 Comp. Laws, § 9539, as a common-law assignment for the benefit of creditors, by reason of preference, and failure to include all of Gonhue’s property.

It is manifest that, upon the face of the instrument, there is nothing to indicate that it was an assignment for the benefit of creditors, but the oral testimony shows that the order was given to Norton Brothers with the agreement that they should collect the money due, pay first their own claim and pay the remainder to other creditors who had furnished labor and material on the building (a list of whom was to be furnished later, and which was furnished within a few days), the aggregate of which claims was $576.18, while the order was for $542. Gonhue had'other debts amounting to about $700 and other property worth from $200 to $300.

The manifest intention of Gonhue was to secure the payment of said fund to designated creditors, and it is as certain that he had no intention of making á general assignment of his property in trust for the benefit of creditors. The case would not have been essentially different had he handed the Nortons $542 in money with like instructions. If this order is to be held void for the reasons stated, it can only be done by holding an instrument or a transaction resting in parol to be a common-law assignment for the benefit of creditors, which has no semblance of such, and which was never intended to be or operate as such. Assuming, as counsel for both parties do, that the arrangement between the debtor and, the Nortons was the assignment and acceptance of the title to this fund in trust for the benefit of creditors, the right of plaintiff to recover depends upon the question whether this transaction can be held to be an assignment for the benefit of creditors, within the contemplation of the legislature in its enactment of chapter 260 of the Compiled Laws. The contention of the plaintiff’s counsel is substantially that section 9539 includes all conveyances of money or property to another to be applied by him in the payment of any or all debts of the assignor. To the suggestion that a “common-law assignment for the benefit of creditors” has a well-defined meaning in the law and that this statute refers to no other, it is said that the statute enlarges the ineaning, if it could otherwise be held not to include all conveyances of money or property to another to be applied by him in the payment of any or all debts. In short, the argument is that inasmuch as it makes void common-law assignments for the benefit . of creditors which are not without preferences, as between such creditors, and which do not include all of the assign- or’s property subject to execution, — ergo—any assignment of property to another, to be used by him to pay one or more of the assignor’s creditors, is a common-law assignment for the benefit of creditors within the meaning of the statute.

The act, as its title indicates, and its several sections show, was one designed to. provide for the enforcement of assignments for the benefit of creditors, and not with the primary object of preventing preferences. It provides (in a negative manner at least) what is necessary to an enforceable assignment, and points out the practice in enforcing such assignments. It must be an assignment “commonly called a common-law assignment for the benefit of creditors,” and not any assignment which happens to be made for the benefit of creditors. In other words, the statute does not include all assignments which would be assignments at common law, if, perchance, they are made for the benefit of a creditor, but it limits the assignments included to a class of assignments well known in the law and referred to and described as commonly called common-law “assignments for the benefit of creditors.” The mere fact that a general assignment is made void for preferences does not take it out of the class of common-law assignments to which it belonged. It is still what is known as a common-law assignment, though now made void.

It is one of that class of assignments, and no other, then, which must be shown before the statute applies to it at all, unless the argument suggested is to be taken as conclusive of the intent of the legislature to the exclusion of all other considerations. That it should not be so conclusive seems obvious, for the reason that such construction requires the exclusion of words in the statute which, under the best known of the general rules of construction, is forbidden, if a construction which avoids such result is possible. It is possible, for the argument made could as well be applied and limited to “ commonly known common-law assignments for the benefit of creditors,” as to the broader class, viz., all assignments having for their object the benefit of creditors.

Again, if the latter was intended, why so mucn care to describe them as common-law assignments, still further, as such as are “commonly called (i. e., commonly understood to be) common-law assignments for the benefit of creditors.” Section 50, subd. 1, 1 Comp. Laws, is applicable here:

“ (50) Sec. 3. In the construction of the statutes of this State, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:

“1. All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

If a common-law assignment, etc., has a technical meaning, the words must be held to have been so used, while section 9539, by its terms, enforces the application of the first command of subd. 1 of section 50.

An assignment for the benefit of creditors, ‘ ‘ commonly known and- called ” such, has ' consisted of a writing amounting to a conveyance of the title to all, or substantially all, of a debtor’s property to another, in trust, for the purpose of closing out his business, converting his property into money, and distributing it among his creditors, to the extent of payment if possible, and, if not, proportionately, or with prescribed preferences. That would be a general assignment for the benefit of creditors, and is the “commonly called common-law assignment for the benefit of creditors.” In Burrill on Assignments (6th Ed.), § 86, it is said:

“But the most common form of general transfer, and one the best known in the mercantile community, is a conveyance of the debtor’s whole property to one or more trustees or assignees, whether creditors or strangers, for the benefit of the creditors provided for. This is the description of conveyance which the term voluntary assignment has been held to import.”

The author shows that assignments for the benefit of creditors may be made directly to the respective creditors. See Burrill on Assignments (6th Ed.), § 3, and cases cited. The only reason that such are not within the letter of the statute is the limitation to be found in the words “commonly called common-law assignments,” etc., and if this limitation is effective thus far, why not farther. Wineman v. Manufacturing Co., 118 Mich. 636; Longley, Low & Alexander v. Hosiery Co., 128 Mich. 194. Burrill says (section 3), in effect, that assignments for creditors that do not create a trust are not within the class of instruments known as assignments for creditors, thus indicating his understanding that the term has a restricted meaning. See, also, Dias v. Bouchaud, 10 Paige (N. Y.), 445, 461, where the words “voluntary assignment ” are held to mean an assignment of all of the debtor’s property in trust to pay debts, — thus giving a restricted meaning to the term. See, also, U. S. v. Clark, 1 Paine (U. S.), 629, 640.

“We have seen that the term assignment, in its application to real estate, implies of itself, and without any words of qualification or description, a transfer of the assignor’s whole interest in the subject of assignment. See ante, p. 1. In mercantile language the term is daily used in the same broad sense. When it is said of a merchant that he has ‘made an assignment,’ it is understood, not that he has made a transfer of some specific article, or portion of property, to this or that particular creditor in payment or as security, but that he has made a general disposition of his property, and suspended his whole business inconsequence. In the case of United States v. Mott, 1 Paine (U. S.), 188, 195, the term ‘voluntary assignment ’ was considered to mean an assignment of all the debtor’s property. In the Vermont case of Mussey v. Noyes, 26 Vt. 462, 473, it' was remarked by the chief justice that an assignment which includes all one’s attachable property, and which is intended to close up one’s business, and does so at once, is clearly a general assignment. See, also, Bishop v. Hart's Trustees, 28 Vt. 71. An assignment intended by its maker to be general — as shown by its language and mode of execution — by which a firm transfers its assets, consisting of personalty alone, to an assignee to secure all its creditors pro rata, will be treated as a general assignment in a litigation involving its validity, when all the parties have so treated it, in their pleadings, although it does not on its face delcare itself and does not in terms purport to convey all the assignor’s property. Lookout Bank v. Noe, 86 Tenn. 21. The material and essential characteristic of a general assignment is the presence of a trust and the assignee taking the title as trustee. Brown v. Guthrie, 110 N. Y. 435. Whether an instrument is a general assignment depends on its character, and not on the name which the parties see fit to give it.” Burrill on Assignments (6th Ed.), § 87, note 1.

And Burrill says: The character of the instrument (i. e., one purporting to be a general assignment, etc.) is not changed by the omission of a trifling amount of the debt- or’s property. Burrill on Assignments (6th Ed.), § 87. But it does not follow that every assignment of property for the benefit of creditors, whether partial, special, or even general, in form, would necessarily be considered as within the class, ‘ commonly known as ‘ common-law assignments ’ for the benefit of creditors.”

The following authors are in point as to what constitutes a general assignment for the benefit of creditors:

‘ ‘A general assignment is not the conduct or management of the corporate business, but its termination and destruction. It is not that disposition of the corporate property which must be made from time to time in order to carry on the corporate business, but the termination and destruction of the power to make such disposition. It is not the payment of the corporate debts, but ordinarily it is an assertion that they cannot be paid,” and hence does not hold within the implied powers of the board of directors. In re Bates Machine Co., 91 Fed. 625, 628.

“The term ‘general assignment,’in its ordinary legal significance, means an assignment by a debtor transferring all of his property in general terms to an assignee in trust for all his creditors. Royer Wheel Co. v. Fielding, 101 N. Y. 504; Tiemeyer v. Turnquist, 85 N. Y. 516, 522; Brown v. Guthrie, 110 N. Y. 435; Knapp v. McGowan, 96 N. Y. 75, 87.” People v. Guarantee Co., 55 App. Div. (N. Y.) 594.

The term “general assignment ” means a transfer to an assignee of all the property, or substantially all the property, of a failing or insolvent debtor for the benefit of - his creditors at large, making no discrimination or preference among them. Halsey v. Connell, Green & Co., 111 Ala. 221.

A general assignment is one by which the grantor conveys substantially all his property which is subject to legal process from the courts of the State in which he resides. Longmire v. Goode, 38 Ala. 577, 578.

A general assignment, as known to the common law, is defined by Burrill as an assignment by which all, or substantially all, the debtor’s property is appropriated for the benefit of either one or more preferred creditors, or of the creditors at large, made by a debtor in declining or insolvent circumstances. Anniston Loan & Trust Co. v. Ward & Co., 108 Ala. 85; Bank of Opelika v. Kiser, Moore, Draper & Co., 119 Ala. 194.

It is of the very nature and essence of a general assignment for the benefit of creditors, that it should pass all property and rights of property capable of assignment or transfer, whether the title or interest of the assignor be legal or equitable. If the assignor has property or rights which are legal assets (assets which may be reached by legal process and subject to the payment of debts), and he applies them to pay or to secure particular creditors, having and retaining assets of considerable value, which are equitable, in which he has a beneficial interest, the legal title outstanding in another, in trust for him, the assignment or transfer of the legal assets is but a partial and not a general assignment. Bank of Opelika v. Kiser, Moore, Draper & Co., 119 Ala. 194.

A general assignment, within the meaning of Pamph. Acts 1896-97, pp. 1089, 1090, entitled “ An act to further define general assignments and to prevent the fraudulent disposition of property ” is a voluntary transfer by a debtor of all, or substantially all, of his property subject to the payment of debts, for the security of one or more creditors in preference to others. Builders’ & Painters’ Supply Co. v. Lucas, 119 Ala. 202.

A conveyance by a debtor to a trustee for distribution of the proceeds among specified creditors, reciting in the conveyance that such goods are only a part of his property, is not a general assignment for the benefit of creditors, within a credit insurance policy insuring against any loss sustained by reason of the insolvency of debtors of the insured, and defining such losses as those arising on sales by the insured persons who have made a general assignment for the benefit of their creditors; and the words “general assignment” will not be held to mean any such disposition by a debtor of his property as induces insolvency, in the ordinary meaning of the term. Goodman v. Guarantee Co., 17 App. Div. (N. Y.) 474.

An assignment purporting to transfer all the assignor’s debts and book accounts for collection, the proceeds to go first toward paying two small debts named, and the balance if any, to the assignor’s wife, is not, in substance, a general assignment since it does not profess to transfer all the assignor’s property nor to provide for all his debts. Tiemeyer v. Turnquist, 85 N. Y. 516, 522.

We find nothing in Kendall v. Bishop, 76 Mich. 634, or Pettibone v. Byrne, 97 Mich. 85, necessarily inconsistent with our views herein expressed, while in Hill v. Mallory, 112 Mich. 387, if open to such suggestion, did not turn upon that question, which was not decided, but was reversed for the reason that the jury were not correctly instructed on the effect of an intent to hinder, delay, or defraud creditors, which claim rested upon a different statute.

This subject has been considered in Michigan cases arising under this particular statute. Thus, in Palmer v. Mason, 42 Mich. 146, it was said that an assignment for the benefit of creditors will be presumed honest and lawful if possible, and that the instrument in question was not a general assignment. It included only a portion of the debtor’s property, and named as beneficiaries only a portion of his creditors, thereby implying that general assignments only are included.

'In Rollins v. Van Baalen, 56 Mich. 610, Mr. Justice Campbell authoritatively stated the rule to be that this statute “applies only to common-law assignments, and not to any proceedings of a different form that are claimed to be frauds as to creditors. Honest transfers and securities are not void if not in the shape of general assignments.”

In Warner v. Littlefield, 89 Mich. 329, Champlin, C. J., stated that a chattel mortgage in trust is not changed by this statute from a mortgage to an assignment for the benefit of creditors, unless the conveyance is absolute and places the title of the property in the trustee, and he shows that the case of Kendall v. Bishop, 76 Mich. 634, states no such doctrine.

It was also said:

“A general assignment is an assignment of all one’s assets to an assignee for the benefit of creditors. It is the completeness of the transfer that gives it character.” Warner v. Littlefield, 89 Mich. 329.

In that case it is indicated that a conveyance without a ' clear expression of the' intention that it be considered a common-law assignment cannot be considered such unless the conveyance is absolute and places the title in the trustee, and that while a chattel mortgage necessarily creates a trust, it is not such an assignment. The foregoing statement is short of saying the converse, viz., that all conveyances of an absolute title to some property to a trustee for the benefit of some creditors are such assignments, for they must still be general, and include the other elements above suggested before they can be so held. '

Even Kendall v. Bishop, 76 Mich. 634, the leading authority relied upon as establishing the rule contended for by plaintiff’s counsel, after holding that the instrument there in question was an assignment, says:

“An assignment of all one’s assets to an assignee for the benefit of creditors is within all the definitions of a general assignment. It is the completeness of the transfer that gives it character.”

In this connection see the following later Michigan case: National Bank of Oshkosh v. First Nat. Bank of Ironwood, 100 Mich. 485. It was there said:

“Our statute prohibiting preferences in cases of assignment is in derogation of the' common law. Like all statutes in derogation of the common law, this statute is to be strictly construed. It only applies when the instrument can fairly and legitimately be said to possess all of the essential elements of an assignment; and courts should not permit such essentials' to be dispensed with, or substitute real or supposed equities for them, or unduly construe instruments intended for securities to be assignments. In such cases there is usually a contest for the property, which, at most,-becomes a question of whether the debtor’s preference can be overturned for that of some creditor, who hopes to make his claim good under an attachment, through a flaw in the instrument made to effectuate the preference of the debtor. Perhaps the equities are quite as likely to be with the creditor preferred by the debtor. At all events, there can be no legal presumption to the contrary.”

See, also, Austin v. First Nat. Bank, 100 Mich. 613.

This question has been considered in two Federal cases arising in Michigan. See Brown v. Furniture Co., 7 C. C. A. 225, and Ontario Bank v. Hurst, 43 C. C. A. 193.

This subject was exhaustively considered by Mr. Justice Day in the latter case, in a case closely resembling the present case, in which the circuit court of appeals discussed and attempted to apply the rules laid down by this court in relation to this statute. Contrary to the suggestion that “every assignment of any property in trust for the payment of preferred creditors is necessarily a common-law assignment,” etc., under this statute, it was held:

“The words ‘common-law assignment,’as construed by the Supreme Court of Michigan, include such general assignments as were known at the common law,” and

'“that the principle to be adduced is that this statute is one which operates to make void a general assignment for the benefit of creditors.”

We do not quote from this case, for it is lengthy and can as well be read. It throws much light upon the subject. In our opinion, this was a lawful if not commendable appropriation of certain property (not all that the debtor had) to the payment of certain claims justly favored by the law, in lien and other statutes, and this case is in line with many others where a strenuous attempt is made to set aside a lawful preference by the debtor in favor of one which may be far less equitable, under a strained construction of a statute in derogation of the common law. See National Bank of Oshkosh v. First Nat. Bank of Ironwood, supra.

In Warner v. Littlefield, 89 Mich. 350, Chief Justice Champlin commented on this statute as follows:

“ It is not either a bankrupt or insolvent law. It is of no practical use, and its only mission seems to be to beget litigation, and afford an opportunity for a creditor to obtain a preference over other creditors by asserting and occupying the inconsistent position that the chattel mortgage given to secure a bona fide debt is a common-law assignment, and therefore ought to be construed as such, and void as to creditors, while he attaches or levies execution, and thus obtains securities and preferences fully as unlawful and against the policy of the law.”

See, also, Austin v. First Nat. Bank, 100 Mich. 613.

We should add that the decision of Mr. Justice Day, in which all of these and other Michigan cases were considered, was approved and followed in an opinion by Mr. Justice Grant in a case between the same parties. See Geer v. Traders’ Bank, 132 Mich. 215.

The primary object of' the statute has been stated. It is not to invalidate preferences between creditors, except in a particular class of instruments, but it apparently was intended to encourage common-law assignments by failing debtors, when they provided for no discrimination, and included all property. There is nothing to indicate the design to enlarge the scope of the term common-law assignment, so as to include any instrument or transaction which but for the statute would never have been thought to be such. Had that beén the design, it could have been clearly expressed in fewer words than those used.

It is easy to see the inducement to a creditor not preferred to extend this class that he might profit by substituting his own preference for that of the debtor, and the cases heretofore presented in this court show the strenuous efforts to accomplish this, and the extent of their success and failure.

Some confusion has perhaps arisen from the fact that the character of a common-law assignment has been given, though the instrument was not intended to have such effect when made, because its clear legal effect has been to convey a title to the trustee to the exclusion of the right of creditors to reach it. Prominence has properly been given to that point, which may in proper cases justify such holding, but not where other elements of the common-law assignment are lacking. There may be other instruments besides common-law assignments for creditors which effectually cut off creditors, and this the law permits unless made with the design to hinder, delay, or defraud creditors, in which case other statutes furnish adequate relief.

Kendall v. Bishop and Pettibone v. Byrne, supra, are not, in our opinion, inconsistent with this rule, while Hill v. Mallory is practically an application of it, if it does not state it. See, also, Webber v. Hayes, 117 Mich. 260; McMorran v. Moore, 113 Mich. 101.

In Geer v. Traders’ Bank, 132 Mich. 215, Mr. Justice Gbant, the writer of the opinion in Hill v. Mallory, said,, with the concurrence of his associates:

“We will not attempt a review of the many cases involving conveyances made to secure creditors. If there he any apparent conflict between the decisions on this important question, it is because of the difficulty in laying down and applying a conclusive test to each case. The rule is not in doubt. The difficulty lies in applying it. We reach the same conclusion as that reached by the Federal court, and for the reasons therein stated. Whatever the decisions of other courts may be, it is the settled rule of this court that it is not a sufficient reason to set these conveyances aside that their effect is to hinder and delay other creditors, or even that the parties contemplated that other creditors might thereby be delayed in enforcing their debts. McMorran v. Moore, 113 Mich. 101; Webber v. Webber, 109 Mich. 147. The presumption is in favor of the validity, of such instruments, and courts will ascribe to the parties thereto an honest, rather than an unlawful, purpose.”

For the reason given, we are of the opinion that this order was not a common-law assignment for the benefit of creditors, within the statute.

The judgment is reversed, and a new trial ordered.

Grant, C. J., and Blair, Ostrander, Moore, Carpenter, and McAlvay, JJ., concurred with Hooker, J.

Montgomery, J.

(dissenting). November 6, 1905, the plaintiff obtained against the principal defendant a judgment injustice’s court for $158.63 damages and costs. December 1, 1905, he caused a garnishee summons to be served upon the public schools of the city of Escanaba, returnable December 13, 1905. On the return day of the summons the public schools filed its disclosure in writing, with the justice, from which it appeared that it was indebted to the defendant Leonard Gonhue in the sum of $542, and that at the time of the service of the writ of garnishment the firm of Norton Brothers held an order on the garnishee defendant from Leonard Gonhue for the sum of $542. Afterwards the notice required by law was served upon Thomas E. Norton, one of the claimants, Charles H. Norton, the other member of the partnership, being a nonresident of the State of Michigan.

The claimants appeared before the justice and the case was tried February 15, 1906. The plaintiff there declared verbally on the common counts in assumpsit, and specially for money had and received for plaintiff’s use. The claimants pleaded the general issue verbally, and gave notice that thé moneys due Leonard Gonhue, the judgment debtor, from the public schools, had been, prior to the service of the writ of garnishment, assigned to Norton Brothers, the claimants above named. The case was tried before a jury in justice’s court and the plaintiff won, whereupon the claimants appealed to the circuit court. Leave was granted to the I. Stephenson Company, Herman Salinsky, Coleman Nee, Frank Bacon, A. Baum, William Andrews, and Earl Gonhue to intervene as claimants to the fund in controversy and then in the custody of the court, and this was done, and they became therefrom parties claimant with Norton Brothers to the fund. These were all the parties, with the exception of C. A. Johnson, to secure the payment of whose claims the order was given as herein mentioned.

On the trial of the case attorneys for both the plaintiff and the claimants requested the court to direct a verdict. The court directed a verdict in favor of the plaintiff. It appeared without dispute that on the 4th of November, 1905, the principal defendant gave an order directed to the public schools to pay to Norton Brothers the sum of $542. This was presented to the secretary of the board of education before the writ of garnishment was issued or served. The order was given for the full sum due from the board of education to Leonard Gonhue. While the order was absolute on its face, it was given by. Gonhue for the purpose of paying the claim of Norton Brothers, amounting to $43.13, with the intent that Norton Brothers should pay the other claims for labor and material furnished and money borrowed by Gonhue in performing a contract with the public schools of Escanaba for repairing the Franklin school building. The total of these claims amounts to $576.18.

Thomas E. Norton, one of the claimants, testified that the order on the school board was given to him on the 4th of November, 1905; that at the time Gonhue gave him the order the arrangement was that he, Norton, was to collect this money and pay himself and the creditors who had furnished lumber and material on the building, and Gonhue was to furnish him with a list of creditors and the amounts as soon as he could get them together. This was done about one week afterwards. The principal defendant, Gonhue, testified to the same purport. It also appeared that defendant Gonhue was indebted to parties other than those named in this agreement in the sum of about $700, viz., $158.63 to plaintiff, $260 to Carl Johnson, $258 to the Stegath Lumber Company, and $72 to Patek Brothers. The only other property which he is shown to have had was an equity in a piece of real estate worth less than $200.

It was the contention of the plaintiff, and .the circuit judge so held, that the transaction between Gonhue and Norton Brothers amounted to an assignment for the benefit of creditors, and, so holding, instructed a verdict for the plaintiff. The claimants moved the court for a judgment non obstante veredicto, based upon the claim that the court was in error in holding that the transaction amounted to a common-law assignment, and upon the further claim that there is no statutory provision for trying in justice’s court an issue attacking the title to property, and that for this reason the claimants were entitled to a judgment notwithstanding the verdict.

The statute, 1 Comp. Laws, § 1017, provides that after service of process upon a claimant the defendant or defendants so notified shall be considered as defendants in place and stead of the garnishee, and an issue may be formed between the plaintiff and such defendants in the same manner as provided in section relating to trials in garnishment proceedings; it being provided that the issue may be tried by the justice or a jury and such judgment shall be rendered between the parties as shall be just.

The claimants on this appeal contend that the only issue that can be tried was such an issue as might be tried if the defendant Gonhue had brought suit against the public schools of Escanaba for the recovery of this money; that the garnishment only secured to the plaintiff the interest of Gonhue in the property subject to the valid claims upon it. We think this is not a true construction of the statute.

The real question for determination was whether the money in the hands of the public schools of Escanaba was subject to the claims of the plaintiff as creditor.. The statute might have properly left the case to proceed against the public schools of Escanaba, and have put upon that corporation the duty of showing a valid transfer of the indebtedness from Gonhue to the present claimants. In that proceeding of necessity the validity of the transfer would have been involved. In place of this, the statute has provided that the claimants may be cited in and given their day in court. The question to be determined still remains as before: Whether there is a fund in the hands of the garnishee defendant which should be subject to be reached by defendant’s creditors.

It is also suggested that, as the notice was served upon one of the two Norton brothers, the proceeding was without jurisdiction. But it appears that this question was raised only after four trials, and it appears also that the Norton brothers both appeared in justice’s court in answer to this citation.

The principal question is one which gave the circuit judge some trouble, and is not easily solved, in view of the numerous decisions in which language has been used implying rather than deciding the essentials of a common-law assignment.

The statute, 3 Comp. Laws, § 9539, provides that all assignments, commonly called common-law assignments for the benefit of creditors, shall be void unless the same shall be without preferences as between such creditors, and shall be of all the property of the assignee not exempt from execution.

The usual definition of an assignment for the benefit of creditors is: A voluntary transfer by a debtor of all or a part of his property to an assignee for the payment of debts. 3 Am. & Eng. Enc. Law (2d Ed.), p. 6.

If this definition be accepted as the correct one, it would appear that the mischief aimed at by the statute would not be met if it were confined in its application, as may have been implied in some cases, to those assignments which include all the property of the debtor. The statute above cited manifestly was intended to apply to assignments which included part of the debtor’s property as well as to those which include the whole, for one of the grounds for treating such assignments as void is the failure of the debtor to include all of his property not exempt from execution. It would hardly do to say that the provisions of the statute intended for the protection of creditors could be ayoided by an intentional breach of its terms in purposely omitting from the assignment some small part of the debtor’s property.

This statute has been before the court in many cases, and to attempt a review of all the decisions would be an almost endless undertaking. It can be taken as settled, however, that a transfer in payment of an indebtedness owing to one or more creditors of property received and accepted by them as such is not within the inhibition of the statute. Neither is a conveyance by way of mortgage, when given for the benefit of creditors, even though given to a trustee, a common-law assignment within this definition, so long as the debtor retains right of redemption, and so long as that is subject to levy by his creditors. So far the cases are in harmony and the rule is well settled. See, as illustrative, the cases of Risser v. Hoyt, 53 Mich., at page 210; Longley, Low & Alexander v. Hosiery Co., 128 Mich. 194.

Where, however, by an instrument of transfer, in whatever form, a debtor transfers to a trustee his estate, to be converted into cash and distributed to his creditors, the transfer not being accepted at the time by the creditor as a satisfaction of the indebtedness, the transaction cannot be treated as a liquidation and payment of indebtedness of the debtor, but it has all the characteristics of an assignment for the benefit of creditors. Kendall v. Bishop, 76 Mich. 634; Pettibone v. Byrne, 97 Mich. 85; Hill v. Mallory, 112 Mich. 387.

In the latter case Mr. Justice Grant stated the rule as follows:

“A debtor may prefer a creditor by a mortgage on all his property, or by a transfer of all his property in payment, when the value of the property is not so in excess of the debt as to raise a presumption of fraud. * * * ' But that is not this case. The creditors whose claims plaintiffs agreed to pay were not parties to the transaction. It was not binding upon them. There was no novation. They could not sue the plaintiffs. If they should not see fit to substitute plaintiffs as their creditors for Mr. Hill, their only remedy would be a suit at law against him, or by bill in equity to enforce the trust. The transfer was not for the sole purpose of paying the plaintiffs’ claim, but also to secure the payment of five other creditors. Plaintiffs took the property burdened with these obligations. If this is not a transfer for the benefit of creditors, for what is it ? It did not operate as a payment to five creditors, because they did not agree to it. If this conveyance had been made to a stranger, and it covered all the property of the debtor, in consideration that the vendee should pay certain creditors to the exclusion of others, it would amount to an assignment for the benefit of creditors, and be void under the statute. The effect of such a transaction cannot by avoided by saying that it was not intended as a common-law assignment.”

This language is particularly applicable to the instant case. In this case, as in that, there was no release of the debtor by the creditors in whose interests this transfer was made. The amounts payable to them were not even named at the time the transfer was made; the list was in fact made up after the garnishment was served in the case. The cases are not in principle distinguishable. '

Attention is called by appellants’ counsel to the case of Thompson v. Newland, 144 Mich. 595, which is said to he controlling in all its features. An examination of that case, however, will show that the question involved in this case appears not to have been at all considered. The claims of the defendant are stated to be, first, that the transfer to the plaintiff was void under section 9514, 3 Comp. Laws, which was not the section relating to common-law assignments, but that relating to conveyances in trust for the use of the person making the same. This claim was said to be entirely unfounded as the transaction was a sale whereby plaintiff acquired complete title to the property. It was next urged that the transaction was void under section 9533, 3 Comp. Laws, as made with intent to hinder, delay, and defraud creditors, but this issue, as was pointed out, was submitted to the jury and the verdict was found in plaintiff’s favor. There is nothing in the opinion to indicate that the question of the validity of the transfer as affected by section 9539 was in any way considered.

The other cases which are cited in counsel’s brief aré sufficiently distinguished by the references here made.

The judgment should be affirmed, with costs.


author: Me Alva Y, J.

text:
    BEAUERLE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Crossing Accident — Personal Injuries —Contributory Negligence — Question for Jury.
    In an action against á railroad company for injuries to a pedestrian at a street crossing, evidence examined, and held, that, in view of testimony that the crossing gates were not closed, thát the bell was not rung, that the presence of other cars and circumstanoes diverted plaintiff’s attention, that the train causing the injury came on silently, working no steam, and that plaintiff looked in both directions before attempting the crossing and satisfied himself that the train was stationary, it could not be said, as matter of law, that plaintiff was guilty of contributory negligence barring recovery.
    2. Appeal and Error — Saving Questions for Review — Exceptions — Assignments of Error — Necessity.
    Where no exception was taken or error assigned «upon the denial of a motion for judgment notwithstanding the verdict, the question cannot be considered.
    3. Same — Assignments of Error — Scope.
    Failure to assign error on the denial of a motion for judgment notwithstanding the verdict is not aided by an assignment on the refusal of requests to charge involving the same theory, the two matters being entirely distinct.
    4. Trial — Requests to Charge — Refusal—Propriety.
    ■ Requested instructions based upon a misstatement of the adversary’s claims are properly refused.
    5. Damages — Aggravation of Existing Ailment — Delay in Treatment — Effect.
    Evidence of an aggravation of a nasal difficulty and delay in recovery therefrom by reason of the personal injury sued for is not inadmissible because of a delay of five months in procuring treatment, where plaintiff was confined to his house ' for four months by the injury, but the matter is for the jury under proper instructions.
    6. Same — Reduction of Damage — Duty of Person Injured.
    Where an existing ailment is aggravated by a personal injury, it is the duty of the person injured to use all reasonable efforts, considering the circumstances, to procure medical and surgical aid in correcting the trouble, so that the injury will aggravate the difficulty and retard recovery as little as possible.
    7. Evidence — Opinions—Experts—Examination.
    A physician, who assisted at the amputation of plaintiff’s leg, had been his family physician, knew the condition and history of the leg, and had qualified as an expert. The condition of the leg, the fact that gangrene had attacked it, that it had sloughed off, and the inability to wear an artificial limb had all been stated in detail. In response to a question as to what could be done to improve the condition of the limb and make it practicable for use in connection with an artificial limb, he answered that he could not say that an operation could be done and preserve the kneejoint, and that he feared there would not be enough bone left to have any influence in swinging an artificial limb. Held, that the latter statement was an opinion as to probable results, and a mqtion to strike it was properly overruled.
    8. Trial — Argument op Counsel — Appeal to Sympathy — Cure by Instructions.
    In an action against a railroad company for personal injuries, counsel for plaintiff stated, in effect, that defendant could spare the amount of a judgment better than plaintiff. The court soon after charged the jury that it was his duty to call their attention to the statement, and that they should not consider it, that litigants were considered upon an equality before the courts and juries, and the fact that defendant was a corporation and coúld stand a judgment should not be considered by the jury or weigh in any degree in their deliberations. Held, that, though the remark was improper, it was cured by the charge of the court.
    Error to Kent; Wolcott, J.
    Submitted November 21, 1907.
    (Docket No. 102.)
    Decided May 1, 1908.
    Case by Jerome A. Beauerle against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Taggart, Denison & Wilson (Henry Russel and O. E. Butterfield, of counsel), for appellant.

      Lombard & Hext, for appellee.
   Me Alva Y, J.

Plaintiff recovered for personal injuries he received at Kalamazoo, while crossing the railroad tracks of defendant company, by being run over by the engine of a freight train, which injuries he claims were caused by the negligence of defendant’s agents and servants. The injuries were severe and the judgment substantial. The case is here for review upon errors assigned; the chief contention of defendant being that plaintiff was guilty of contributory negligence, and that the court should have instructed a verdict for defendant on that ground. The negligence relied upon by plaintiff was that the engine bell was not ringing; that it ran over the crossing at a speed of 20 to 25 miles an hour, which was claimed to be excessive; and that the crossing gates were not lowered. It is conceded that there was a conflict of evidence upon these points, and that the question of the negligence of defendant (if it should have been submitted at all) was properly submitted to the jury.

Plaintiff was familiar with this crossing and all of its surroundings. He resided on the south side of Kalamazoo avenue, a short distance west of the railroad crossing, and had lived there 14 years. He crossed the tracks every day in going to and coming from his work. On the evening in question, March 12, 1906, he left the store where he worked about 6 :15 p. m. He stopped at several places and reached this crossing about 7:20. West street in the city of Kalamazoo runs north and south. Kalamazoo avenue runs east and west, crossing West street at right angles. The railroad crossing on Kalamazoo avenue is about 250 feet west of the west line of West street. Three of defendant’s tracks cross Kalamazoo avenue at this place at an angle, running from southwest towards the northeast, and intersects West street about 75 feet north of the north line of Kalamazoo avenue, where these streets intersect. There are crossing gates operated from a gate tower. The first track reached, approaching from the east, is the main track for trains going east. The next track is the main* track for trains going west. The third track is a side track. This side track connects with the west-bound main track by a switch located about 165 feet northeast of the north line of Kalamazoo avenue. The side track continues southwesterly parallel with the main lines for some distance. North of Kalamazoo avenue and a short distance beyond the above-described tracks was located a coal dock used, to supply engines with coal. On each side of this coal dock was a side track. The one on the north side was used for engines taking coal, and the one on the south side for cars which supplied the coal. These coal dock tracks did not cross Kalamazoo avenue. They extended northeasterly about parallel with the main lines. The accompanying diagram shows the location of the streets, tracks, etc., and the place where plaintiff was injured. On the night in question plaintiff went north on the West side of West street to the south side of Kalamazoo avenue and turned west on the south sidewalk of that street. This corner is about 250 feet east of the first track. Four houses on the south side of this avenue obstruct a view of the tracks to the southwest until a point 50 feet east of the first track is reached. At this point the view to the southwest is unobstructed for a distance of from 90 to 100 rods.

The facts which plaintiff claims the evidence on his part tended to show, as to what occurred from the time he arrived at the place last above mentioned until he was struck and injured by the engine of defendant, cannot be more carefully and accurately stated than by adopting the following language of the learned trial judge, used by him in passing upon a motion made by defendant at the close of plaintiff’s case to instruct a verdict in its favor on account of the contributory negligence of plaintiff:

“The Oourt: The law is pretty well settled on these questions, but each case presents its own peculiar features. A motion made at this time the court must give to the plaintiff’s evidence, which at the present time is undisputed, its full weight. It may or it may not be disputed by the evidence hereafter, but at this time the court must consider the testimony given by the plaintiff as established . in the case for the purpose of this motion.

“I think there is no question but what a person crossing a railroad track, where safety gates are maintained, is not permitted to rely solely upon the fact that the gates are open. If the plaintiff’s evidence is to be believed in this case, he did not rely upon that entirely. He testifies that he understood or knew that a train was due about that time from the west on the track nearest him. He claims that he took precaution to look, when he reached a point that he could, in that direction, and satisfy himself that no train was approaching from that direction. He also claims that he took the precaution of looking to the east. He saw there a headlight and a small light. He claims that he observed them long enough to know or observe that they were not separating, and the appearance was that of an engine standing there. He claims that he is familiar with this crossing and with the operation of the trains on that road; that he had frequently seen a train, switching train and other trains, standing at about that position. • I do not mean to say that the fact that he was mistaken about that, the fact of his mistake alone, would be justification for his proceeding. Perhaps, it would be fair to say that his belief that the train was standing there, or was on the other track, may have been aided somewhat by the fact that the safety gates were up and not down, which .he would have reason to expect would be the case were a train approaching on the track that crossed the street; and the fact that appears here in evidence on behalf of the plaintiff that it was a dark night; and that the train was approaching with the steam shut off, not working, and his vision was somewhat obscured, besides the darkness, by smoke. .And I think it also appears, or is claimed, that the hearing was somewhat interrupted by the man who was shoveling coal into the steel bucket, or whatever it was, on the track near there; and there was also, he claims, another freight train that he was watching to see whether it was going to cross the track, or something to that effect. The situation must be judged by the circumstances surrounding the particular case.

“It is true in this case, as in nearly every case where an accident occurs, that, if the party had taken some other and different or further precaution than he did, he would have escaped injury. That, however, is not the test; whether it would have-been possible to have taken a degree of care that might have avoided the injury, but whether a reasonably prudent man, in the same situation and under the same circumstances, would have taken other precautions and so saved injury, or whether a reasonably prudent man, under those circumstances, would have gone on after taking such precautions as the plaintiff claims he did. The court expresses no opinion on the evidence of what the jury might find or ought to find. The duty of the court is only where it is so clear from the evidence that a verdict ought not to stand if one was rendered, where the contributory negligence is so apparent that reasonable men could draw but one conclusion from it, that the court is warranted in saying, as a matter of law, that the plaintiff is negligent, and so is precluded from recovery. In every other case it is the duty of the court to submit the question to the jury under the evidence, and for them to say, instead of the court, whether or not the plaintiff was guilty of contributory negligence in doing as he did.

“ It is my judgment, from the evidence as it stands at t.bia time, that the plaintiff has shown sufficient facts to entitle him to submit the question to the jury. The court cannot say that it has appeared so clearly that the' plaintiff was guilty of contributory negligence that the court should say so as a matter of law. With that view the court feels constrained to submit the question to the jury and to deny the motion. You can have an exception.”

When, at the close of the case, the same motion was again made by defendant, and was denied by the court, the situation, as far as the question involved was concerned, was the same as when the motion was first denied. The question for us to decide is whether we can say that plaintiff was guilty of contributory negligence, as a matter of law. Defendant insists that this case is controlled by the following cases: Brinker v. Railroad Co., 121 Mich. 283; Spaven v. Railway Co., 130 Mich. 579; Boutell v. Railroad Co., 133 Mich. 486. In'each of these cases the plaintiff knew that a train was approaching actually in motion. That is not this case. Plaintiff did not know that a train was approaching, but had satisfied himself by observation that such' was not the case. He did not rely solely upon the fact that the gates were not down. He observed what he thought to be the switch light with an engine standing by it, where he had formerly seen engines standing, and looked long enough to satisfy himself the lights were stationary. The court well said:

“ Perhaps it would be fair to say that his belief that the train was standing there, or was on the other track, may have been aided somewhat by the fact that the safety gates were up, and not down, which he would have reason to expect would be the case were a train approaching on the track that crossed the street.”

We may add that such belief may also have been aided by the fact that, as he claims, no bell was rung. Both of these warnings he was entitled to receive. The question as to whether they were given was one of fact for the jury. .The case at bar also differs from the cases cited in that directly on the south side of the highway, and near at hand, stood a freight train and a man walking beside the train, passing toward the other end carrying a lantern. Whether or not an engine was attached to the train could not be seen. This certainly was other danger which required his attention, not to the exclusion of care and attention as to any danger that might come from the other way; but, as already appears, he claimed that he had given such attention in the manner stated. He gave attention to this freight train and the safety gate directly before him as he proceeded on his way. The case at bar is distinguishable from the following cases relied on by defendant: Gardner v. Railroad Co., 97 Mich. 240; McCarthy v. Railway Co., 120 Mich. 400. In both of these cases no attention whatever was given by either plaintiff when crossing the tracks, by looking for cars which might be approaching. Taking into consideration all of the circumstances surrounding this case, we cannot say, as a matter of law, plaintiff was guilty of contributory negligence, and agree with the trial court that the question was for the jury.

Special questions were, at defendant’s request, submitted to and answered by the jury, as follows:

“ (1) Was there any light on the front of the engine that struck plaintiff except the headlight ?

“No.

“ (2) Did plaintiff, in looking toward the train that struck him, see the headlight and another light on the front of the engine on plaintiff’s right' of the headlight ?

“No.

“(3) Did plaintiff see the train coming which struck him and attempt to cross in front of it ?

“No.

“ (4) Was the engine that struck plaintiff working steam when it crossed Kalamazoo avenue ?

“ No.

“ (5) Were the gates on the east side of the railroad at Kalamazoo avenue lowered before the train which struck plaintiff crossed that avenue ?

“No.”

Defendant claimed that the answers to 1 and 2 of these questions were inconsistent with plaintiff’s theory, and made a motion to set aside the judgment entered upon the verdict of the jury and enter a judgment in favor of the defendant non obstante veredicto. This motion was denied. No exception was taken, and no error assigned upon such action. For this reason this court cannot consider the question.

Defendant claims that this point was covered by refusal on the part of the court to give certain requests. The two matters are entirely distinct. The three requests which were denied, and.upon which errors were duly assigned, were properly refused for the reason that all of them were founded upon the statement that plaintiff relied upon the fact that there were two lights on the front of the engine. This was not'supported by any claim or testimony upon the part of plaintiff. Plaintiff’s theory was that there were two lights on the engine, which accounted for the fact that they kept on their relative positions; that otherwise two lights would not have been seen, for the reason that the engine was between plaintiff and the switch light, for which the small light was mistaken. Plaintiff’s counsel in his opening called it “a sidelight on the engine.”

Objection is made and error is alleged because the court permitted plaintiff to testify as to the aggravation of a nasal difficulty, by reason of his injury by the engine of defendant, for the reason that plaintiff delayed for an unreasonable time before being treated for it. He was injured March 12, 1906. His leg was amputated at once, and he remained in the hospital until April 22d, when he was removed to his home, and was confined to his bed for three or four weeks. He was unable to get to the porch of his home until in June, and first got into the yard on July 4th. He went to see the specialist who had formerly treated him for this nasal difficulty about the middle of August. His nose had been broken and his face severely injured by the railroad accident. He first felt the nasal difficulty becoming aggravated about four weeks after this injury. The charge of the court upon this matter was as follows:

“There is also a claim on the part of the plaintiff for damages relating to the nasal difficulty from which he suffered, and which had been operated upon before the injury on the railroad. He claims that this was in process of recovery, but that the recovery was delayed and the trouble aggravated by this injury. You could not consider here as an element of damage the original trouble, nor any result therefrom, except as you find, and unless you find, that the trouble was aggravated by this injury; and if the plaintiff could reasonably, by consultation with his physician and by medical and surgical care, have corrected the trouble so that the injury would not have retarded the recovery nor aggravated the trouble, it would be his duty to use all reasonable efforts in that direction, considering the condition and situation in which the plaintiff was and the circumstances surrounding him at the time.”

The evidence was properly received and submitted to the j ury as an element of damages in the case under proper instructions.

One of the physicians, who was present and assisted on the night of the accident when plaintiff’s leg was amputated, was permitted to testify as follows:

Q. What in your judgment can be done to improve the condition of the limb and make it practicable for use in connection with the artificial limb ?

“A. I would not undertake to say that an operation could be done and preserve the kneejoint. I could not be sure about that until the operation was undertaken. I fear that there would not be enough bone left to have any influence in swinging the artificial limb.

Mr. Wilson: I move to strike out the last statement of the doctor as to what he fears. •

‘ ‘ The Court: It may stand. I take it as the opinion expressed by the witness as to the probable results.

“Mr. Wilson: I take an exception.”

The condition of this leg, the inability to wear an artificial limb, the fact that gangrene had attacked it, and it had sloughed off, had all been stated in detail. The witness had qualified himself to testify as an expert, and was acquainted with plaintiff, having been his family physician. He knew of the condition and history of the leg and had seen it and knew its present condition. The objection of defendant is that the inference of the court from this testimony was unwarranted. The question asked for the opinion of the witness, and, taking the entire answer, we are of opinion that the court drew the reasonable and fair inference from this testimony.

Eemarks of counsel for plaintiff made during the closing of the final argument were objected to. This statement was to the effect that defendant could spare the amount of a judgment better than plaintiff. The charge of the court soon followed this, and the court, referring directly to this statement, charged the jury that it was his duty to call their attention to it; that they should not consider it; that litigants were considered upon an equality before the courts and juries. He said the fact that the defendant was a corporation and could stand a judgment should not be considered by the jury or weigh in any degree in their deliberations. The remark was improper, but the correction of it made by the court in his charge must have been clearly understood by the jury, and was a proper rebuke to counsel, and we think cured the effect of counsel’s statement.

The judgment of the circuit court is affirmed.

Montgomery, Ostrander, Hooker, and Carpenter, ¡JJ., concurred.


author: Ostrander, J.

text:
    GRANGER v. FRENCH.
    1. Mandamus — Propriety—Municipal Officers — Salaries—Compelling Payment.
    Mandamus is the proper remedy to enforce the payment by a municipal corporation of a salary, the amount of which is fixed.
    2. Assignments — Rights Assignable — Salary of Public Officers.
    An assignment by a public officer of his salary or fees- before they are due impairs the efficiency of the public service and is void, both in law and in equity, as being against public policy.

    3. Mandamus — Propriety—Municipal Officers — Salaries—Compelling Payment.
    Though mandamus is a discretionary writ and will not be issued in all cases where a prima facie right to it is shown, it will issue to compel payment by a municipality of the salary of a public officer, notwithstanding the assignment by him of such salary in anticipation', the rule of public policy forbidding such assignments being superior to the rights of relator’s creditors.
    Certiorari to the superior court of Grand Rapids; Stuart, J.
    Submitted January 7, 1908.
    ( Calendar No. 22,499.)
    Decided May 1, 1908.
    Mandamus by Orley C. Granger to compel Rufus S. French, comptroller, and John L. Boer, clerk, to issue warrants for the payment of a. salary. There was an order denying the writ, and relator brings certiorari.
    Reversed, and writ granted.

      Holmes & Holmes, for relator.

      B. M. Ferguson and B. L. Newnham, for respondents.

      As to validity of assignment of wages or salary to be earned, see note to Rodijkeit v. Andrews (Ohio), 5 L. R. A. (N. S.) 565.

   Ostrander, J.

Relator, a justice of the peace of the city of Grand Rapids, with an official salary of $1,300 a year, payable monthly out of the city treasury, assigned unearned salary to obtain money and credit to relieve his financial embarrassment. Respondents are respectively the comptroller and city clerk of the city of Grand Rapids, and have refused to issue to relator the usual checks or warrants for his salary or to countersign or pay such checks because said assignments of relator’s salary have been filed in the comptroller’s office. Relator applied to the superior court for a writ of mandamus to compel respondents to perform their duties in the premises. The writ, after a hearing, was denied. The court found the assignments to have been given to persons who in reliance upon them and in perfect good faith advanced money or credit to relator, and in the opinion the learned judge said:

“ I cannot bring myself to feel that a court of justice is called upon to lend its aid to the relátor in depriving his creditors of the opportunity of getting from him what he had solemnly promised to give them.”

I think the writ of mandamus should have been granted, not in indorsement and appreciation of relator’s conduct, nor in furtherance of relator’s private interest, but because to deny it is, in effect, to refuse to enforce a rule of sound public policy. Mandamus is the proper remedy to enforce the payment by a municipal corporation of a salary, the amount of which is fixed. McBride v. City of Grand Rapids, 47 Mich. 236; Speed v. Common Council of Detroit, 100 Mich. 92. The assignments of his salary which relator gave are void. The rule, with copious referenees to authorities, is stated in 2 Am. & Eng. Ene. Law (2d Ed.), p. 1033, as follows:

“It is well settled, both in England and the United States, that a public officer cannot assign by anticipation the salary and fees paid to him for the purpose of maintaining the dignity of his office and securing the due discharge of its duties.

“ The protection thus extended to those engaged in the performance of public duties is not based upon the ground of their private interest, but upon the necessity of securing the efficiency of the public service by insuring that the funds provided for its maintenance shall be received by those who are to perform the work, at the periods appointed for their payment. The assignment of such funds before they are due impairs the efficiency of the public service, and is void both in law and equity as being against public policy.”

See, also, 4 Cyc. p. 19; Bliss v. Lawrence, 58 N. Y. 442; In re King’s Estate, 110 Mich. 203.

It is true that the writ of mandamus will not be issued in all cases where a prima facie right to it is shown. Tennant v. Crocker, 85 Mich. 328; MacKinnon v. Auditor General, 130 Mich. 552; Van Akin v. Dunn, 117 Mich. 421; 26 Cyc. p. 150. So in Walhier v. Weber, 142 Mich. 322, 325, and in Benson v. Bawden, 149 Mich. 584, the court refused relief in actions at law to parties seeking its aid to recover money or property parted with under illegal agreements, both parties to which were equally culpable. The court, in those cases, was enforcing a rule of public policy. The rule demanded that the parties be left where they had placed themselves. In the case at bar, the rule of public policy makes all anticipatory assignments of salary by the relator void, and demands that he be paid his official salary notwithstanding such assignments. The office of the writ applied for is to enforce the rule. It should issue, and the order denying it is reversed, with costs.

Grant, C. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.


author: Blair, J. ' Blair, J.

text:
    PEOPLE v. DETROIT UNITED RAILWAY.
    Street Railroads— Crossings — Protection — Ordinances — Applicability After Sale of Properties.
    An. ordinance requiring street-railway companies to place a red light at the intersections of their roads with other street railroads is binding upon a company subsequently acquiring the property and franchises of two or more other roads.
    ON REHEARING.
    Street Railroads — Crossings— Protection — Ordinances—Violation — Prosecution—Evidence—Sufficiency.
    In a prosecution of a street-railway company for violation of an ordinance requiring each company to cause a red light to be placed at the crossing and intersection of other street railways at all curves of its own road, it is incumbent upon the people to show that the tracks at the crossing in question belong, or formerly belonged, to separate companies.
    Certiorari to the recorder’s court of Detroit; Connolly, J.
    Submitted January 8, 1908.
    (Docket No. 8.)
    Decided February 15, 1908.
    Reargued April 8,1908; former opinion vacated May 1, 1908.
    The Detroit United Railway was convicted of violating an ordinance, and sentenced to pay a fine of $25.
    Reversed.

      Brennan, Donnolly & Van Be Mark (John J. Speed, of counsel), for appellant.
    P. J. M. Hally (T. H. Tarsney, of counsel), for the people.
   Blair, J.

The respondent appeals to this court from a conviction in the recorder’s court of the city of Detroit for an alleged violation of section 5 of a certain ordinance, adopted February 17, 1896, in that the defendant—

Did then and there unlawfully and wilfully fail and neglect to place a red light at the crossing and intersection of the Woodward avenue street railway, so called, with the Jefferson avenue street railway, so called, at the curve of said company’s road where the said street-railway lines cross and intersect, so as to give warning to motormen and citizens,” etc.

The section in question reads as follows:

“It shall be the duty of drivers, motormen and conductors operating any street car in the city to make such stoppage of cars on the farther side of the street approached by such car, except where there is but one crosswalk ; then said car shall be stopped so that the rear platform will be slightly over the crossing, and in approaching the crossing of any other street-railway intersection or double track curve to cause such car to come to a full stop before reaching said crossing, intersection or double track curve, and at least 20 feet therefrom.

. “ It shall be the duty of each and every street-railway company operating cars in the city of Detroit to cause a red light to be placed at the crossing and intersection of other street railways at all curves of their own roads, in such a manner as to give warning to motormen and citizens. (Approved Feb. 17, 1896.)”

At the time the ordinance was passed, there were three different street railways: The Citizens’ Street Railway, assignee of the Detroit City Railway and Grand River Street Railway, to whom the original franchises were granted; the Ft. Wayne & Elmwood Street Railway, and the Detroit Railway. Counsel for respondent contend that the section in question applies only to the crossings and intersections of distinct and separate railway companies and “ makes no provision and has no application when the same company, as in this case, owns and operates the intersecting lines, either by straight or by curved crossings, and the court should have so ruled.”

“As to the contention that the purchasing company is not liable to be proceeded against in the same manner as its grantor was, we think it unsound. The only rights derived are by purchase, it is true, but it seems clear that such a purchasing company takes the road subject to all the obligations resting upon its grantor. See % Comp. Laws, § 6448.” Township of Grosse Pointe v. Railway, 130 Mich. 363.

Whatever reasons existed for the imposition of the duty upon the separate street railways of causing the red lights “to be placed at the crossing and intersection of other street railways at all curves of their own roads,” so far as the warning to motormen and citizens is concerned, they apply with equal force to the consolidated companies, and the judgment of the recorder’s court is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.

ON REHEARING.

' Blair, J.

A rehearing was granted in this case for the reason that the court misapprehended the position of respondent and decided the case upon an understanding of the facts not supported by the record. The record does not disclose whether the intersecting lines were owned by different companies or by the same company at the time the ordinance was adopted. As/ the court understood the position of respondent in the original brief and as stated by the counsel who made the oral argument, it was contended that the ordinance did not apply where intersecting lines whigh were subject to the ordinance had been purchased and were owned by one company. This was apparently the view of the recorder’s court and the theory combated by counsel for the people.

We are still of the opinion that our understanding of respondent’s position was warranted by the printed brief and oral argument, but, inasmuch as the brief is open to the construction now claimed for it, and in view of the importance to the parties of a construction of the ordinance, we have concluded to dispose of the case upon the merits.

Respondent contends that, to make a case under section. 5, it was essential that the people should prove that the crossing and intersection was made by the lines of separate companies at some time during the existence of the provision, and, there being no proof to that effect, respondent’s motion for judgment in its favor should have been granted.

Counsel for the people argue that the provision as to red lights applied to all intersecting tracks at curves, regardless of ownership and whether owned prior to respondent’s purchase by different companies or not.

The language “to cause a red light to be placed at the crossing and intersection of other street railways at all curves of their own roads ” seems designed to contrast ownership of the lines. The natural significance of the language used is that, at the intersection of street railways of others at all curves of their own roads, they shall maintain red lights.

As there was no proof that, prior to respondent’s purchase, the provision in question applied to the intersecting lines by virtue of their separate ownership or management, it follows that upon this record respondent’s motion was well founded and should have been granted.

Judgment reversed.

Montgomery, Ostrander, Hooker, Moore, Carpenter, and McAlvay, JJ., concurred.