text:
    BEACH v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Fires—Negligence.
    Where plaintiff claimed that a fire was started in his planing mill, located about 80 feet from the defendant company’s railroad tracks, by sparks emitted from defendant’s engine, that entered an open window during the night, but. no one saw the locomotive give out any sparks, and there was no evidence that a strong wind was blowing in the direction of the mill from that of the tracks, held, that the cause of the destruction of plaintiff’s property was conjectural and the case was properly determined by the court as a question of law.
    2. Same — Presumptions—Proximate Cause.
    The burden, under section 6295, 2 Comp. Laws (2 Comp. Laws 1915, § 8305), remained with plaintiff to establish the origin of the fire either by direct testimony or by circumstances which reasonably lead an unprejudiced mind to conclude that it was set by a locomotive of defendant, and the fact could not be inferred merely because it might have been started in that way.

      Error to Tuscola; Beach, J., presiding.
    Submitted January 18, 1916.
    (Docket No. 68.)
    Decided March 30, 1916.
    Case by C. Ray Beach against the Michigan Central Railroad Company for negligent operation of its locomotive and the setting of a fire. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Chapman; McNamara & Matthews, for appellant.

      J. C. Hewitt and George M. Humphrey (Humphrey, Grant & Humphrey, of counsel), for appellee.
   Moore, J.

Plaintiff was the owner of a building used as a planing mill and for the manufacture of farming implements, located 82 feet east from the east rail of the Michigan Central Railroad Company’s track in the village of Millington. This building was destroyed by fire in the nighttime of July 9, 1913. The building consisted of a two-story part known as the planing mill, with a small lean-to on the south side, and to the north of the two-story part was the engine room and woodworking shop, which was one story high. These buildings were somewhat out of repair and there was considerable rubbish on the premises. At the time of the fire the buildings and machinery were not in general use, and the plaintiff was not giving them regular attention at that time of the year. For two or three days at a time he did not go near the buildings. None of the machinery was being used, and Mr. Beach was not there at all on the 8th of July, the day before the fire. It is claimed that on the night of July 9th there was no fire in the elevator, and there were no chimneys or smokestacks in the vicinity around the mill from which sparks of fire could have been blown. Some time during the night of July 9th a train went south, on defendant’s tracks. It is the theory of the plaintiff that sparks from the locomotive entered an open window in the upper story of the building and thus originated the fire.

After the testimony offered upon the part of the plaintiff was concluded the trial judge was of the' opinion the origin of the fire was conjectural, and directed a verdict for the defendant. The case is brought here by writ of error, and the sole question is, Was there a case which should have been submitted to the jury? The appellant insists there was a case for the jury, and in support of this contention cites many cases, including Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033).

The position of counsel is stated in the reply brief as follows:

“As said by Jones on Evidence, circumstances surrounding an event may be as convincing as direct proof. Footprints on fresh snow show that some live thing had been there. The shape of footprints shows at once whether it was a bird, a beast, or a man. These convictions come on account of the common knowledge possessed in the minds of jurors. And to give the jury an opportunity to use these facts it is not necessary to establish by direct proof that birds make tracks in the snow.
“Now, it being conceded that jurors have common knowledge that railroad engines of this character will emit sparks and set fires, and even being conceded by defendants in their oral argument that this fact is so well established that judges take judicial knowledge of that fact, we think, under these conditions, the proof that this particular engine on that night emitted sparks would be as unnecessary as to prove that birds make tracks in the snow, And, as we said in our oral argument, there is a marked distinction between the reported cases where negligence must be proven as well as the origin of the fire and cases where only origin is required. Such proof establishes negligence which is not required for us to establish in making our prima facie ease on account of the statute. Further going to show that this engine would be likely to emit more sparks at this particular place in the road we have the direct proof that there was an upgrade directly opposite the building burned, and that this particular train made a big noise and a lot of puffing and had a heavy exhaust, showing that the engine when it passed the building on this grade was working steam.
“It is conceded by all courts that circumstantial evidence is sufficient in such a case, and in establishing that our case is worthy the consideration of a jury we are not required to prove by a preponderance of the evidence the elements necessary to be established. In fact, we believe the law to be that in such a case the evidence should go to the jury unless there is some known physical law which, when applied to the plaintiff’s evidence and the reasonable inference which can be drawn from it, shows that the plaintiff’s theory is impossible.”

Counsel for each side have cited a large array of authorities in support of their respective claims, but the question of law involved is not new in this State. The statute applicable to cases of this sort is section 6295, 2 .Comp. Laws (2 Comp. Laws 1915, § 8305). By its terms the railroad is made “liable for all loss or damage to property by fire originating from such railroad,” etc.

In Fisk v. Railroad Co., 114 Mich. 248 (72 N. W. 205), it was said:

. “The statute does not change the common-law liability for setting fires. It simply shifts the burden of proof upon the defendant to show that such fires were not negligently set.”

The statute does not relieve the plaintiff of the burden of establishing the origin of the fire. Osborne v. Railway Co., 111 Mich. 15 (69 N. W. 86).

In the case of Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559), Justice Ostrander, speaking for the court, said:

“The fact that the fire was set as alleged must be proved, not necessarily by the testimony of an eyewitness, but by evidence which reasonably leads an inquiring and unbiased mind to the conclusion that a cinder from the particular engine caused the fire. ■ The evidence is not sufficient if it establishes no more than that the fire might so have been set.”

He quoted with approval from Finkelston v. Railway Co., 94 Wis. 270 (68 N. W. 1005), as follows:

“The origin,of a fire under such circumstances must-be established so as to produce conviction to a reasonable certainty on an unprejudiced mind, the same as any other fact; and until there is evidence to so establish it the defendant is not called upon to prove that the fire was not caused as alleged.”

In Hewitt v. Railroad Co., 171 Mich., at page 215 (137 N. W., at page 67, 41 L. R. A. [N. S.] 635), it is said:

“That the fire might have been set by a locomotive is undoubtedly true. But, if the testimony tends to prove no more, it is not sufficient. Clark v. Railway Co., supra. It might have been set in various ways. In the language of the statute defendant is liable for damages caused by fire originating from such railroad, either from engines passing over said road, fires set by the company employees by order of the officers of the road, or otherwise, originating in the constructing or operating of the road.
“In the case at bar, as in Osborne v. Railway Co., 111 Mich. 15 (69 N. W. 86), some of the jury seem to have been troubled concerning the proof of the origin of the fire. This inference is drawn from the question asked by one of the jurors when they returned into court for further instructions, after they had been instructed that, if they could not say from the testimony in the case that the fire was set by the defendant company, then it would be their duty to return a verdict for defendant. Unless the mere fact that fire originating upon the right of way of the railroad company, coupled with the fact that fires had sometimes been set by locomotive engines, is evidence that it was set by engined of the company, there was no evidence of the origin of the fire of 1909. The jury should have been told that the testimony upon the subject was insufficient.”

We may now approach the question of whether the plaintiff met the requirements of the law. The testimony about the passing locomotive is from a witness who was sleeping on the porch of his house about 20 rods east of the building which was burned. He testified, in substance, that while sleeping on the porch he heard a train go by. We quote:

“It was making such a noise and puffing as it went through it attracted my attention. It made a heavy noise. It was laboring hard going up the grade. I should judge by the sound it was a long train. I have heard trains go by when they are heavily loaded, and have noticed what kind of an exhaust they make.
“Q. How did the exhaust this train made compare with heavily loaded trains you have heard go by?
“A. It made an awful noise. I would say that it made about the’ same noise as heavily loaded trains. After it had gone by I fell asleep again. I was asleep before it went through; it woke me up, and I dropped off asleep again. The next thing occurred was first I smelled smoke. I says to my wife: T guess somebody is starting a fire quite early in the morning.’ I could not tell whether I had been asleep a long time or a short time, but I think it was quite a little while. # * *
“Q. About how long do you think it was from the time the train went through until you smelled smoke?
“A. I should judge it was all of an hour.”

On the cross-examination he testified in part:

“All I heard that night was an engine puffing and laboring going up that grade; further than that I don’t know. I heard the rumbling of the train as it went through, and I guess from the noise it was a freight train. That is the only way I have of knowing, that it sounded like a freight train. Whether it was, or how many cars it had, I don’t know. * * * When I was sleeping out there on the porch, this one is all the train I heard go through. I did not think anything about it at the time; I did not say anything or speak about it; it made no impression on me; it was nothing out of the ordinary in any way.
“Q. It was just a customary thing that had occurred to you a number of times?
“A. Yes. ’
“Q. So you turned over and went to sleep?
“A. Yes, sir. How long I slept I do not know. The next thing I knew I smelled smoke. I had been asleep in the meantime; I couldn’t pretend to say how long I slept.
“Q. Do you think it was something over an hour?
“A. About an hour; something about that.
“Q. But to fix the time definitely at all you wouldn’t care to do that?
“A. No; I have no way of fixing the time when it was I first smelled smoke; it was still dark at that time.”

He went to the fire and testified as to the wind at that time:

“It was just a medium breeze blowing.”

No one who was sworn saw the locomotive or testified that it emitted sparks or whether it was working differently than other locomotives which made that grade. The witnesses are all agreed that, when the fire was discovered, there was none outside either in the long dry grass which was between the track and the building or upon the sides or roofs of the buildings. They are all agreed that when discovered the fire seemed to be all inside the building.

Mr. Beach, the plaintiff, was a witness. In his cross-examination occurs the following:

“Q. Was there any fire on the roof of the blacksmith shop that you saw?
“A. No.
“Q. Was there any fire on the roof of the two-story part that you saw?
“A. I think the roof was through on the two-story part when I got there.
“Q. The flames were practically inside when you got there?
' “A. Yes.
“Q. It looked to you as though it started inside, and was burning outside?
“A. Yes. I did see Mr. Tiller that night. I can’t say, possibly 15 minutes, possibly half an hour, after I got there. I remember talking to Mr. Tiller at the south end of the building east of the office, right in there somewhere. I did have a conversation with Mr. Tiller there at that time. That was while the fire was burning.
“Q. Do you remember Mr. Tiller’s saying something about ‘You certainly can’t blame the railroad for this fire,’ or asked you if you did at that time?
“A. He asked me if I did.
“Q. You remember saying that you couldn’t say anything about it, but you couldn’t see how the railroad could set the fire inside the building?
“A. No, sir; J didn’t say that; I said I didn’t know what to think about it.
“Q. Is that the 'fact of the matter at that time?
“A. Yes.
“Q. Is that all you said at that time?
“A. I don’t remember saying any more. I wouldn’t say whether I did, or I wouldn’t answer positively Ididn’t say more, but I do remember saying I didn’t know what I thought about it; whether I said more I wouldn’t say either way. I might and might not. All down there around the mill between the mill and the railroad track there were no buildings in there, but there was grass in there, just commons with June grass on it, a foot, foot and a half high, something like that, about the condition June grass would be in in July.'
“Q. Did you see any fire in there anywhere?
“A. No, sir.
“Q. Did you see any fire up and down the tracks anywhere?
“A. No, sir; not that night.
“Q. You didn’t see any either way, up and down the track either way from the plant that night, did you?
“A. No.
“Q. On this particular night I understand you to say the windows in the engine room were open ?
“A. No, sir.
“Q. Didn’t you say two windows on the south side of the engine room were open this night?
“A. No, sir; I didn’t.
“Q. I misunderstood, then. Where were the windows open that night?
“A. Not in the engine room; the windows in that shed built onto the west side. That connects with the engine room. There is a door there.
“Q. The windows were open this night?
“A. Yes;, that is, upon the ground floor. There is only one story. These windows were right near the ground, oh, three or four feet from the ground, and those windows were open.
“Q. Nothing to prevent anybody getting in those windows at any time?
“A. No.
“Q. Or upon the night of the fire at any time?
“A. At any time I didn’t pretend to close them shut; there was nothing in it.”

We have not quoted all of the testimony, but we think one cannot read the record without reaching the conplusion, as to the origin of the fire, that Mr. Beach was quite right when he testified:

“I did riot know what to think about it.”

Judgment is affirmed.

Stone, C. J., and Kuhn, Bird, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    AUDITOR GENERAL v. JOHNS.
    1. Taxation — Special Assessments — Estoppel.
    Owners of property who waited until proceedings were taken in the court of chancery to sell their property for nonpayment of a pavement tax, before taking steps to protect their rights, were not estopped from questioning the constitutionality of the tax which was levied under Act No. 707, Local Acts 1907, heretofore held unconstitutional. Cote v. Village of Highland, Park, 173 Mich. 201 (139 N. W. 69).
    2. Same.

      Held, also, that the persons who signed the petition for the pavement could join in proceedings to contest the assessment and were not precluded from relief by the fact that they had participated in the preliminary steps.
    Appeal from Wayne; Cross, J., presiding.
    Submitted January 14, 1916.
    (Docket No. 40.)
    Decided March 30, 1916.
    Petition by Oramel B. Fuller, auditor general, for the sale of land delinquent for taxes: On objections of Edward C. Johns and others. From a decree for contestants, petitioner appeals.
    Affirmed.

      Edwin S. Bartlett, for petitioner.

      Corliss, Leete & Moody, for contestants.
   Moore, J.

The trial judge stated the issues involved in this case as follows:

“Contestants appeared in this suit, instituted by the auditor general for the sale of lands delinquent for taxes assessed thereon, and objected to the sale, alleging that the proceedings were void. The taxes were levied for paving and the assessment was made by virtue of Act No. 707 of the Local Acts of 1907. This act has been declared unconstitutional, and a similar assessment held void in the case of Cote v. Village of Highland Park, 173 Mich. 201 (139 N. W. 69).

“Petitioner contends:

“(1) That the parties who petitioned for the pavement are estopped from questioning the validity of the tax, because they asked the council to do what the council did, and that contestants cannot now complain; and
“(2) That those who did not sign the petition for the pavement are estopped from questioning the validity of the assessment because they stood by and saw the improvement made and cannot now complain.

“In the case of Auditor General v. Calkins, 136 Mich. 1 (98 N. W. 742), the notice of the proposed improvement was defective, and 7 of the 15 contestants had signed the petition for the improvement and the court says:

“ ‘This is not a case where a court of equity will leave a party complainant to'his remedy at law. The defendant is now for the first time brought into court and given an opportunity to contest the validity of the proceedings. The statute gives him the right to wait until the State moves to foreclose the tax lien upon his property, and then gives him the right to appear and make any objections which were fatal to the proceedings. He cannot, therefore, be charged with laches. If the statute, as formerly it did,'gave a deed to the tax purchaser, and gave the taxpayer no opportunity to appear in court to contest it, we might then apply the rule, as in other cases, that equity will not afford him relief, but will leave him to his remedy at law.’

“In the case of Auditor General v. Bishop, 161 Mich. 117, at page 122 (125 N. W. 715, at page 717), the court says:

“‘But the rule stated (estopped by laches) has usually been restricted to cases where relief has been sought in equity, and has been denied upon the principle that: “He who seeks equity must do equity,” and except in drain cases, which seem to have been considered exceptional, the rule has not been applied against a defendant.’
“These cases are a complete answer to the contentions of the petitioner.
“A' decree may be prepared for signature sustaining the objections of contestants to the petition of the auditor general, but without prejudice to any new proceedings to require contestants to pay for the benefits which their property has received from this improvement.”

From a decree in accordance with the opinion, the case is brought here by appeal. ..

Counsel for the appellant insists the village had the power to make the improvement and pay the cost by general taxation, and does not concede that this case is ruled by the Cote Case, swpra. While in some respects the instant case is unlike the Cote Case, we think it clearly appears the village council was acting under Act No. 707, Local Acts 1907, in making the assessment involved in this proceeding, and the case decides such assessments are invalid.

Counsel also say:

“The law does not intend that one may receive benefits and attack the method of procuring those benefits to the .burdening of others unless he seeks the protection of a tribunal established for his benefit, seasonably and before the rights of the community are affected” — citing Michigan Savings Bank v. City of Deroit, 107 Mich. 246 (65 N. W. 101); Detroit River Savings Bank v. City of Detroit, 114 Mich. 81 (72 N. W. 14); Petoskey, etc., Gas Co. v. City of Petoskey, 162 Mich. 447 (127 N. W. 345); Fletcher Paper Company v. City of Alpena, 172 Mich. 35 (137 N. W. 640).

None of those cases relate to a special assessment, but refer to the levy of a general tax, and the need of appearing before the board of review where it is claimed the assessment is too large or that some property has improperly been omitted from the assessment roll.

The question at issue here is not a new one. See Auditor General v. Calkins, 136 Mich. 1 (98 N. W. 742); Auditor General v. Bishop, 161 Mich. 117 (125 N. W. 715), and the cases there cited. The instant case is not distinguishable from those cases.

The decree is affirmed.

Stone, C. J., and Kuhn, Bird, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    LA VECK v. PARKE, DAVIS & CO.
    Master and Servant — Workmen’s Compensation — Accident — Course of Employment.
    Since evidence that tends to sustain a determination of the Industrial Accident Board is not subject to review, in appellate proceedings, on writ of certiorari to review the award of compensation for paralysis that resulted from heat and excessive exertion rupturing a small blood vessel of the brain, claimant having suffered from arterial sclerosis for two years prior to his injury, the question whether it was caused by an accident arising out of or in the course of claimant’s employment was for the lower tribunal, and would not be reversed unless a total lack of evidence upon that issue was disclosed. 2 Comp. Laws 1915, § 5465.
    Certiorari to the Industrial Accident Board.
    Submitted January 11, 1916.
    (Docket No. 94.)
    Decided March 30, 1916.
    Michael La Veck presented his claim for compensation against Parke, Davis & Company for injuries received while in defendant’s employ. From an order awarding compensation, respondent brings certiorari.
    Affirmed.

      Charles M. Woodruff, for appellant.

      II. R. Martin, for appellee.
   Moore, J.

This is certiorari by the respondent to the Industrial Accident Board to review a finding of the board awarding compensation to the claimant. The brief of appellant begins as follows:

“Appellant does not question the Industrial Accident Board’s finding of facts, and only refers to the testimony of record to amplify the same.” «

It will be helpful to quote from the opinion of the Industrial Accident Board:

“In this case the committee of arbitration denied applicant’s claim for compensation, and applicant thereupon appealed the case to the full board for review. Since the arbitration a considerable amount of additional testimony was taken, particularly medical testimony tending to show that the probable cause of the paralysis from which the applicant suffers was a cerebral hemorrhage caused by heat and overexertion, together with a diseased condition of his arteries, known as arterial sclerosis of some two years’ standing.
“The evidence fairly tends to show that the paralysis resulted from the rupture of a small blood vessel in the brain. We say ‘small’ because the paralysis was gradual, being first noticed by the dropping of a flask from the hand, later on by inability to use his arm, and still later by the paralysis of one side of the body. The work which applicant was doing was making bouillon from beef by boiling and certain other processes in a room and with retorts and appliances maintained for that purpose by respondent. The weather was hot, and an extra amount of bouillon was made that week, so as to have enough to meet the demands of the plant while the apparatus was being transferred to a new room which was to be equipped for such work. A high degree of heat was required in the process, and, although the retorts were so constructed as to protect the operator as far as possible from the heat and steam, a considerable quantity of both escaped into the workroom at the times of making the various changes connected with the process. No visible accident occurred and no event causing external violence to applicant’s body. It was apparently conceded on the hearing that the cause of the paralysis was in the brain, the applicant contending that it was the rupture of a cerebral blood vessel, while the respondent contended that the paralysis resulted from the clogging of such vessel. The testimony on behalf of the applicant tended to show that on account of the condition of his arteries a cerebral hemorrhage was likely to result from the increased pressure caused by unusual heat and overexertion, and that in the opinion of his experts such hemorrhage did occur, resulting finally in the total paralysis of one side of the body. Was it an accident within the meaning of the law, and did it arise out of and in the course of applicant’s employment?
“Under the doctrine laid down in the ‘Spanner Case/ so-called, and also in other and later English cases, this would be an accident. In Fenton v. J. Thorley & Co., 5 W. C. C. 1, the question of what constitutes an accident is exhaustedly discussed, Lord McNaughten’s opinion being in subsequent cases regarded as authority, and this- being regarded as a leading case. Lord McNaughten’s opinion is an able discussion of the principle involved and a review of the authorities. In the opinion of Lord Robertson on page 9, it is said:
“ ‘In the present instance a man by an act of overexertion broke the wall of bis abdomen. Suppose the wheel had yielded and been broken by exactly the same act; surely the breakage would be rightly described as accidental.’

“In McInnes v. Dunsmuir & Jackson, Ltd., 1 B. W. C. C. 226, it is held that, where overexertion brings on a cerebral hemorrhage and paralysis, it is an accident entitling the workman to compensation. The court say on page 229:

“‘It is the giving way of an artery causing effusion of blood on the brain, and I am unable to see any distinction between this kind of physiological injury resulting in disablement, and the kind of injury we had to consider in the case of Stewart.’

“On page 230, the court quote from the Thorley Case as follows:

“‘If a workman has suffered>an injury by breaking a limb or by a rupture while he is trying to lift a weight too heavy for him, then, according to the ordinary use of language, one would say that the injury was caused by an accident which he met with while he was engaged at his work. I think the same rule of construction applies to the question before us, and that we should say that this man suffered from the bursting of a blood vessel while trying to lift a weight too heavy for him. ^That it might not have ,been too heavy for a man whose arteries were in a sound condition is nothing to the purpose. In the condition in which this man’s arteries were, he was undertaking a work which was too great for him.’
“In Ismay, Imrie & Co. v. Williamson, 1 B. W. C. C. 232, it is held that where a seaman died from a heat stroke while raking the fire that it was an accident entitling him to compensation. This is a House of Lords case, and follows the rule laid down in the Thorley Case.
“In Johnson v. S. S. Torrington, 3 B. W. C. C. 70, it was held that, where a fireman working in the hold of a vessel under great heat and drinking large quantities of water had an apoplectic stroke, it was an accident within the meaning of the compensation law. The court treats the principle as established and holds that the determination of the case was a question .of fact.

“In Hughes v. Clover Clayton & Co., 2 B. W. C. C. 15 (the Spanner Case), the court say:

“ ‘Every man brings some disability with bim. Any exertion or any external action wbicb might have been innocuous to a man in good health may produce most serious results to the workman bringing with him, as I have said, some disability. This man brought with him a disability of a serious nature — an aneurism — which I quite agree might have caused hiá death at some time or other without any exertion, usual or unusual. But in this case we have this fact found that a strain incurred by the workman in the ordinary discharge of his duties caused the-rupture from which he died. As I read the decisions in the House of Lords, it is not open to this court to say that this is not an accident. It is impossible, I think, to read the judgment of Lord McNaughten in Fenton v. Thorley without seeing that this case is exactly and precisely within the language which he used. But if there were any doubt about that the more recent decision of the House of Lords in Ismay, Imrie & Co. v. Williamson is really a much stronger case than this. * * * In that case Lord Loreburn said:
“ ‘ “To my mind the weakness of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who had died from heat stroke was by a physical debility more likely than others so to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not.” * * *
‘“If a workman in the reasonable performance of his duties sustains a physiological injury as a result of the work he is engaged In, this is an accidental injury in the words of the statute.'
“In the case of Broforst v. S. S. Blomfield, 6 B. W. C. C. 613, where' a workman shoveling coal in the fire of a vessel.aip apoplectic stroke which was found by the trial court to be due to the rupture of an artery in the brain which was attributed to heat and exertion, it was held that he was entitled to compensation, and that the question was one of fact which the appellate court could not review.
“From a careful examination of all the facts and evidence in the case, the board is of the opinion that the strain upon the weakened arteries of the applicant caused by overexertion and excessive heat was more than they could stand, and resulted in the rupture of a blood vessel in the brain, which was followed by a gradual effusion of blood, resulting in the gradual, paralysis, and finally disabling one side of the body. The award of the committee will be reversed, and applicant granted compensation.”

We cannot state the claim of appellant better than to quote from the reply brief as follows:

“As pointed out in his brief, respondent does not question the Industrial Accident Board’s finding of 'facts, but does affirm that the essential facts are not clearly stated, and that it is necessary to refer to the testimony to understand what the board means by certain words, phrases,. and references. Before doing this, however, counsel for respondent wishes his position as to the law distinctly understood, so that his comments upon the finding of the board may be read in the light thereof.
“Counsel for respondent claims that the principles, the arguments, the reasoning upon which the decision in Adams v. White Lead & Color Works, 182 Mich. 157 (148 N. W. 485, L. R. A. 1916A, 283), was based control the present case as effectually as it did the case there decided,' notwithstanding claimant in the case at bar cannot be said to have suffered an ‘occupational’ disease. * * *
“That the word ‘accident’ is not subject to a special construction, but must be understood in the light of common-law definitions and common-law decisions. * * *
“Third. The accident contemplated by the Michigan act must be some ‘casualty’ occurring on some day which can be definitely fixed, and from which the time within which notice of the injury must be given, and demand for compensation must be made, can be determined. This proposition is clearly indicated in the Adams Case.
“Fourth. It is therefore submitted that, unless it appears that some accident within the meaning of the common law occurred that was the exciting cause of the gradually developing cerebral hemorrhage referred to in the case, the claimant and appellee is not entitled to compensation under the Michigan compensation act.”

Counsel cites other authorities in support of his contention, among them Feder v. Traveling Men’s Ass’n, 107 Iowa, 538 (78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212). Counsel also contends that the authorities counsel for appellee cites from New Jersey and Massachusetts are not applicable, because the statutes of those States are different from the Michigan statute. It must be conceded there is some confusion in the authorities.

We cannot agree with counsel that the case of Adams v. White Lead & Color Works, supra, is conclusive of the instant case. In that case the sole question was: Is an occupational disease within the statute? It was held that it was not. The ease is more like the case of Bayne v. Storage & Cartage Co., 181 Mich. 378 (148 N. W. 412). In that case Mr. Bayne undoubtedly intended to do the lifting which he did, but he did not expect the effect would be to hurt his back, with resulting pneumonia. In the instant case Mr. La Veck intended to do the prolonged work which the situation demanded, but he did not anticipate that because of doing so his blood pressure would be so increased as to result in the rupture of a cerebral blood vessel. According to the testimony of some of the physicians that result could be traced to the unusual hours of work and the unusual conditions. It was an unexpected consequence from the continued work in the excessively warm room.

Where there is testimony upon which the accident board can base its conclusion, we will not review its action. Bayne v. Storage & Cartage Co., 181 Mich. 378 (148 N. W. 412); Redfield v. Insurance Co., 183 Mich. 633 (150 N. W. 362). Other cases than those mentioned in the opinion of the Industrial Accident Board which support its conclusions are: Voorhees v. Smith Schoonmaker Co., 86 N. J. Law, 500 (92 Atl. 280); Doughton v. A. Hickman, Ltd., 6 B. W. C. C. 77; Maskery v. Shipping Co., Ltd., 6 Neg. & Comp. Cases Ann. 708. See, also, the cases cited in note c, p. 714, of 6 Neg. & Comp. Cases Ann.

The order is affirmed.

Stone, C. J., and Kuhn, Bird, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


author: Person, J.

text:
    ANKER v. BOARD OF SUPERVISORS OF IOSCO COUNTY
    1. Mandamus — Certiorari—Review—Order to Show Cause.
    The allowance of the preliminary writ of mandamus is not a matter of right hut of judicial discretion; if the petition upon its face fails to state facts that would warrant the issuance of the writ, the order to show cause may be refused.

      2. Same — Discretion.
    And as the denial of an order to show cause does not finally dispose of the application, which may be amended if the facts permit of amendment, or a new petition may be presented, the writ should not be allowed upon a defective petition that would require a body of public officials to convene at large expense.
    3. Intoxicating Liquors — Certiorari—Election.
    Although other reasons required the lower court to grant the preliminary writ, it was not error to refuse an order to show cause why the Iosco supervisors should not meet and rescind their action in proposing to submit to the electors the question of prohibiting the liquor traffic in that county, denied by the lower court, for the reason that the petitions for submitting the question were filed after the regular October session of the board had been adjoi’wed and before the January session: it being proper to consider the proposition at the adjourned meeting.
    4. Same — Petition—Separate Portions — Posting.
    While but one petition may be circulated in any one township, ward or election district, such petition may be in the form of several sheets, headed alike, if they are later attached together and duly posted.
    5. Same — Appeal and Error — Sufficiency of Petitions.
    The determination of the board to submit the local option issue to a vote upon an insufficient petition was reviewable and was not conclusive on the circuit court.
    Certiorari to Iosco; Widdis, J.
    Submitted March. 11, 1916.
    (Calendar No. 27,198.)
    Decided March 30, 1916.
    Mandamus by Samuel Anker against the Board of Supervisors of Iosco County to compel respondent to reconvene and rescind their action in submitting to the vote of the qualified electors of said county the-question as to whether the manufacture of liquors and. the liquor traffic should be prohibited within said county. An order denying the writ is reviewed by relator on certiorari.
    Reversed.

      William A. Collins, for relator.

      Edwin Rawden and Albert W. Black, Prosecuting Attorney, for respondents.
   Person, J.

On the 27th day of January, 1916, a resolution was passed by the board of supervisors of Iosco county, submitting the question of local option to the electors of that county at the coming spring election. Plaintiff, believing the proceedings for such submission defective, filed a petition for a writ of mandamus, requiring the supervisors to reconvene and rescind their action. This petition was presented to the circuit judge, with a request that he allow the usual order to show cause. Upon consideration the circuit judge declined to allow tlqe order, and, instead thereof, made and entered another order, denying the prayer of the petition. That prayer was not for the order to show cause, but for a writ of mandamus, directing the board of supervisors to reassemble and rescind their action in submitting the question of local option, and, further, that they deny the local option petitions. The plaintiff, evidently apprehending that this order amounts practically to a final disposition of the whole matter, has brought the proceedings to this court by writ, of certiorari.

Undoubtedly the allowance of an order to show cause, upon the filing of a petition asking for a mandamus, is a matter of judicial discretion, and not a matter of right. If the petition, upon its face, fails to state facts entitling the petitioner to the writ, the order may rightly be denied. Attorney General v. Circuit Judge, 143 Mich. 366 (106 N. W. 1113).

Especially should the order to show cause be denied, when the petition is defective, if to grant it would require a large body of public officials to reconvene at considerable expense. The refusal of the order does not operate in the least as a final disposition of the application, which may be amended, if that is warranted by the facts, or a new one may be filed.

But the denial of the prayer for the writ'of mandamus itself is quite another thing. That is a final order, and should be made, ordinarily, only upon the submission of the case. We are not sure that the circuit judge intended to do more than deny the order to show cause, but the language of his order is susceptible of the other interpretation.

Nor are we able to agree with the circuit judge that the order to show cause should have been refused. Two objections to the proceedings of the board of supervisors were raised by the petition, and are argued here. The first of these was, in substance, that the petitions, asking that the question of local option be submitted, were filed on the 17th day of November, 1915, after the regular October session of the board had been adjourned, and were presented to the board, and acted upon by it, at its adjourned term in January, 1916. It is the contention of plaintiff that such petitions must be on file prior to a regular annual meeting of the board. We cannot agree with this contention. Crawford v. Board of Supervisors, 160 Mich. 31 (124 N. W. 1103). Had this been the only objection to the submission, the circuit judge would have been justified in refusing the order to show cause.

The other objection was based upon an alleged state of facts, thus set forth in the petition for mandamus:

“Fourteenth. That the petitions from the township of Plainfield, are in four separate petitions, with the signatures signed upon four separate sheets of paper, each headed with the form of the petition, and that accompanying said four petitions there are three affidavits, and that one of said petitions is marked ‘Exhibit 4,’ and that the other three petitions are not marked or identified in any manner.
“Fifteenth. That one of the affidavits attached to said petitions from Plainfield township is made by Orvid S. Nichols, and that said affidavit is with reference to the authenticity of the names attached to Exhibit 4 so marked, only, and that the affidavit signed by Louis La Burge alleges as to the authenticity of the names on Exhibit 4, and alleges that Exhibits 1, 2, 3, and 4 were posted at the post office at Ellake, and the affidavit of O. D. Fox alleges the authenticity of the names on Exhibits 1, 2, and 3, and alleges the posting of Exhibits 1, 2, 3, and 4 at the town hall at Hale and at the post office at Hale.”

It was held in Heyer v. Board of Supervisors, ante, 184 (156 N. W. 445), that while but one petition may be circulated in any one township, ward, or election district, yet, that such petition may be circulated in the form of several sheets, headed alike, if such sheets are subsequently attached together as one petition, and a copy thereof, thus attached, is duly posted. It must be admitted that the language of the application for mandamus is not as clear as it might have been made regarding the four petitions alleged to have been circulated in the township of Plainfield. If they were attached together, after the names had been obtained, and a copy posted as of a single petition, the course pursued would have been authorized under the decision above referred to. The brief filed for the circuit judge says they were so attached, but we are unable to find any foundation for' this statement in the record. But the application for mandamus apparently charges that there yet remain four separate petitions, after the posting and filing have taken place. At any rate, as the names upon these petitions were required to make up the proper number, the allegation seems positive enough to require the allowance of the order to show cause why the writ of mandamus should not issue.

It was evidently the opinion of the circuit judge, as indicated by his order, that even if there were four separate and distinct petitions from the one township, the determination of the board was yet conclusive and not reviewable by the court. In this he was mistaken. Werstein v. Board of Supervisors, 156 Mich. 63 (120 N. W. 354); Graham v. Board of Supervisors, ante, 162 (156 N. W. 344); Heyer v. Board of Supervisors, supra.

The order appealed from is reversed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


author: Bird, J.

text:
    YALOMSTEIN v. YALOMSTEIN.
    1. Duress — Undue Influence — Mortgages—Invalidity.
    Where defendants took advantage of the fact that decedent’s husband was in distress, and needed the provision made for him in the will of $10 per week, left to him under certain conditions, and, under pretext of securing to him the payment of the required sum, got him to execute in the form of a mortgage an assignment of his life insurance, releasing a claim he held against the estate for $3,000, and transferring all his assets, the court in chancery would treat the contract or mortgage as void and unconscionable, and, upon the bill of a second wife of the husband, would enforce complainant’s rights as against the real estate on which it was made a charge and the heirs who had taken it over.
    2. Same — Evidence—Fraud.
    While fraud will not be easily inferred, an .agreement that is obtained in such manner as to be of an unconscionable character may be more easily held to be fraudulent and void; • a much less weight of the evidence is required in such case.

      3. Same — Estates of Decedents — Claims.
    Though, as a general rule equity has no authority to audit and allow claims against a decedent’s estate, an exception prevails in eases involving amounts that are certain or uncontested and where all the parties are before the court.
    Kuhn and Ostrander, JJ., dissenting.
    Appeal from Wayne; Van Zile, J.
    Submitted April 28, 1915.
    (Docket No. 84.)
    Decided March 31, 1916.
    Bill by Anna Yalomstein against Moses Yalomstein and others for a decree declaring null and void certain instruments executed by complainant’s husband in favor of defendants before his death. From a decree for complainant, defendants appeal.
    Affirmed.

      Selling & Brand, for complainant.

      U. Grant Race and Walter F. Haass, for defendants.
   Bird, J.

This is a contest between the relict of Solomon Yalomstein and the administrator of the estate of a former wife of Solomon, the administrator of the estate of Solomon Yalomstein, and the heirs of Solomon. The case was heard in the Wayne circuit court, and upon its conclusion the chancellor rendered an opinion therein, which so nearly coincides with our view of the matter, that we have concluded to adopt it as the opinion in the case. The opinion follows:

“As a matter of fact, I find that Solomon Yalomstein was the husband of Rebecca Yalomstein; that Rebecca Yalomstein died in the city of Detroit, Wayne county, Mich., September 25, 1906; that at the time of her death she owned and possessed a large amount of real estate, described in the bill of complaint herein, and left a will, which is also set out in said bill of complaint, by which she willed all her property to her children born of the marriage of herself and Solomon Yalomstein; the names of these children appear in the copy of the will set out in the bill of complaint; that by the said will it was provided that Solomon Yalomstein was to be paid $10 per week “providing he does not live with the children”; this will was executed July 11, 1905; that upon the death of Rebécqa her will was admitted tó probate October 31, 1906, and Moses Yalomstein was appointed administrator with the will annexed. I find, further, that on the 26th day of January, 1907, Solomon Yalomstein, and the complainant in the bill of complaint, Anna Yalomstein, were married, Anna being a sister of the first wife, Rebecca; that the marriage of Solomon and Anna created dissatisfaction between the children of Rebecca and Solomon and his wife, Anna; that Solomon was not receiving the $10 per week as stipulated, and as of a right he was entitled; that the heirs had taken over a large amount of real estate which was charged with the burden of paying this legacy; and that it thereby became a charge against the devisees of the estate of Rebecca (Stringer v. Gamble, 155 Mich. 295 [118 N. W. 979, 30 L. R. A. (N. S.) 815]) ; that during the lifetime of Rebecca, his first wife, and for her benefit and to assist her in clearing the incumbrances on her property, but not as a volunteer, Solomon Yalomstein furnished some $3,000 to discharge the property of a mortgage held by the Dime Savings Bank, and obtained the discharge of said mortgage; that said advance of $3,000 became a claim against the estate of Rebecca at her death; that after the second marriage of Solomon, and after he filed a claim for the' $3,000, the heirs ceased to pay the allowance of $10 per week; that Solomon was in financial stress, and while this situation was upon him the heirs of Rebecca, defendants herein, by undue influence, fraud, and duress, obtained from him by way of a so-called mortgage and agreement embodied therein a release of his claim against the estate of Rebecca and of all his life insurance interests — indeed, of everything he had or could hope to have on this earth. This mortgage, so called, was given as a pretended security to him for the payment of the said $10 per week legacy in the will of Rebecca. This mortgage is most unconscionable, is without consideration, and void.
“On the 4th of May, 1908, Solomon Yalomstein committed suicide in New York. Upon his death and upon the 15th day of July, 1908, one of Rebecca’s heirs, Birdie Sallan, was appointed administratrix of the estate of Solomon Yalomstein. After the appointment of Birdie Sallan as administratrix the heirs of Rebecca filed a claim against the estate for a claimed breach of the agreement and covenants in the said mortgage agreement attached to .the bill of complaint, claiming, among other things, that they were unable to recover the life insurance on the life of Solomon turned over to them by said agreement; that, strangely enough, the commissioners on claims allowed the claim of said heirs at the same amount that Solomon paid on Rebecca’s mortgage to the Dime Savings Bank ($3,000), and for more than enough to absorb the insurance money that the Bankers’ Life insisted on paying the administratrix of Solomon, repudiating the mortgage agreement.
“The court, in arriving at the conclusions herein stated as to facts, is constrained to say that it has in mind the rule of law that fraud will not be inferred, but has also applied the rule of evidence that in equity cases where from the condition of the parties and the agreements brought about it is bound to determine, that such agreements, are unconscionable and without consideration. In such cases a very much less weight of evidence is required to prove fraud and undue influence. The case, in my judgment, abounds in unconscionable acts and forced agreements. These heirs cannot escape the responsibility for their unjust demands. There are facts enough admitted in the answer filed in this case to challenge the attention of a court of equity, and demand its aid and protection.
“As a matter of law, the court finds that the so-called mortgage or mortgage agreement be set aside and be declared to be null and void; that the estate of Solomon Yalomstein has a just and legal claim against the estate of Rebecca Yalomstein in the sum of $3,000, and interest from October 24, 1904; that said amount be therefore allowed and adjudged to be a lien against the real estate of said Rebecca Yalomstein, deceased, not transferred to bona, fide purchasers; that the claim for $3,000 allowed by. the commissioners of the estate of Solomon Yalomstein be decreed to be illegal, null, and void; that the agreement upon the part of Solomon Yalomstein to transfer the life insurance mentioned ■in said mortgage agreement to the heirs of Rebecca Yalomstein be declared to be null and void; that the estate of Solomon Yalomstein should be collected and distributed in accordance with the statute of distribution by the probate court of this county; that costs be not allowed to either party.”

It will be noticed in the foregoing opinion, that the chancellor allowed the claim of Solomon Yalomsteinfor $8,000 against the estate of Rebecca. This is questioned by appellants upon the ground that a court of chancery has no power to audit a claim against the estate of a deceased person. This undoubtedly is the general rule, but exception to this rule has been made where the amount of the claim is not contested, and where all the parties to be affected by it are before the court. Clay v. Layton, 134 Mich. 317 (96 N. W. 458). In the case under consideration, if the claim is to be allowed for any amount, there is no contention but what it should be allowed for the $3,000, the amount which Solomon advanced to his wife, Rebecca, to pay the mortgage. The parties to be affected by allowance or disallowance are all before the court, and we can see no reason why it was not within the province of the chancellor to dispose of the ^whole question while it was before him. In this case the question is raised incidentally to other questions as it was in the case cited.

It is also insisted that there was no evidence of fraud upon which the court could predicate his finding. We agree with the chancellor that the record fairly shows that Solomon’s necessity was taken advantage of to force from him the assignments of his insurance policies and the waiver of his claim against the estate of his former wife. We think it is safe to say that, had they been paying him promptly his $10 per week, as provided by the will, he would not have voluntarily made the conveyances which he did.

The decree of the lower court is affirmed, with costs of both courts to complainant.

Stone, C. J., and Moore, Steers, and Brooke, JJ., concurred with Bird, J.

Ostrander, J. In my opinion, the court was without jurisdiction to allow or disallow claims against estates.

Kuhn, J., concurred with Ostrander, J.

The late Justice McAlvay took no part in this decision.


author: Bird,- J.

text:
    WEDGEWOOD v. JORGENS.
    1. Conteacts — Municipal Cokpop.ations — License op Architect— Recovery for Services.
    Under an ordinance of the city of Grand Rapids requiring architects engaged in business in the municipality to pay a license fee, and procure a license, upon penalties imposed, a contractor, who was unlicensed and who employed an unlicensed architect to draft defendant’s plans, could not recover for the services performed, the contract being illegal and unenforceable because of failure to comply with the ordinance.
    2. Municipal Corporations — Ordinances—Enforcement.
    A municipal ordinance is not invalid or unenforceable because the city officials have never seen fit to enforce it, and is binding upon persons who are subject to its provisions.
    Error to Kent; Perkins, J.
    Submitted April 22, 1915.
    (Docket No. 48.)
    Decided March 31, 1916.

      Assumpsit in justice’s court by Randall M. Wedge-wood against Robert A. Jorgens for services in preparing plans and specifications for a certain building. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Pleasant I. Phillips, for appellant.

      H. Monroe Dunham and John M. Dunham, for appellee.
   Bird,- J.

Plaintiff brought suit in justice’s court to recover the contract price for services in preparing certain plans and specifications for a building which defendant contemplated erecting in the city of Grand Rapids, but which he afterwards abandoned. The case was determined in plaintiff’s favor, and afterward on appeal in the circuit court the same result was reached.

The trial court was requested to direct a verdict for defendant, because the architect who drew the plans did not have an architect’s license to do business in the city of Grand Rapids (section 867, Ordinances of City of Grand Rapids, 1907). The ordinance referred to provides that:

“SEC. 85. Any person doing business as an architect, in the city of Grand Rapids shall take out an annual license, and pay therefor an annual fee of five dollars, and shall furnish to the city of Grand Rapids a bond in the penal sum of one thousand dollars.
“And any person who shall be engaged in the planning or supervision of the erection,- enlargement or alteration of buildings for others and to be constructed by other persons than himself, shall be regarded as an architect within the provisions of this ordinance, and shall be held to comply to the same. * * *”

To this was attached a penalty for its violation.

It is the argument of counsel that the law will permit of no recovery in this case because the architect who drew the plans had not complied with the foregoing ordinance. It appears to be conceded that the ordinance was in force in the city of Grand Rapids, that plaintiff was following the business of builder and contractor in that city, and that the architect who drew the plans and specifications was in plaintiff’s employ, and that neither the architect nor plaintiff had taken out a license. The general rule applicable to such situation is stated as follows:

“Where a license or certificate is required by statute as a requisite to one practicing a particular profession, an agreement of a professional character without such license or certificate is illegal and void. This is true, for example, of an agreement made by an unlicensed or uncertificated physician, an attorney at law, or a school teacher. The authorities are in accord on this point where the license is required for public protection and to prevent improper persons from acting in a particular capacity, and not for revenue purposes only. In the latter cases, as we have seen, the decisions are not in accord. The same is held where a license is required for the carrying on of a particular trade or business, as in the case of a wholesale or retail liquor dealer, a stockbroker, real estate or commercial broker, a pawnbroker, a printer, a peddler, a carpenter or builder, an innkeeper, the keeper of a stallion, a public car man, a grocer, a plumber, etc. In such instances agreements made without the requisite license are generally held to be void.” 9 Cyc. p. 478, and cáses cited.

And this court appears To have recognized this rule and followed it in the case of In re Reidy’s Estate, 164 Mich. 167 (129 N. W. 196). The rule also applies to the violation of an ordinance. Buckley v. Humason, 50 Minn. 195 (52 N. W. 385, 16 L. R. A. 423, 36 Am. St. Rep. 637). If the architect himself were attempting to recover for his fees in making the plans' and specifications, the case would come squarely within the cases out of which the foregoing rule has grown, but it is argued that the rule does not apply to this contract because plaintiff advised defendant that he was not an architect; that, if defendant wished, he would employ one, and in pursuance of this suggestion he turned the job over to Krieger, an architect, who was in his employ. There would be force in this argument were it not for the fact that plaintiff by his own testimony brings himself squarely within the definition of an architect as defined by the ordinance. He testified that he was a builder and contractor, and that he submitted a proposition in this case, whereby he was to oversee the construction, if the contract was awarded to another. It will be seen then that we have this situation to deal with: An architect, as defined by the ordinance, employs an unlicensed architect to prepare plans and specifications for one of his clients. Does the rule apply in such a case? We think it does. Plaintiff must have known that, as a builder, contractor, and overseer of construction, he was an architect within the meaning of the ordinance. He knew that he had no license, and he admits that he knew that Krieger, the architect who actually prepared the plans, had no license. Whether plaintiff be regarded as an unlicensed architect, or whether he be regarded as a mere contractor and builder, who knowingly employed an unlicensed architect to do the work, he is barred under the rule from recovering on the contract.

But it is said the ordinance was never enforced, and therefore plaintiff was not bound by it. The mere fact that the city officials were not in a mood to enforce the ordinance and did not enforce it does not affect its validity. It was a rule of law in the city until repealed. We are of the opinion that the general rule of law applicable to such contracts applies, and that the trial court was in error in refusing to direct a verdict for defendant in accordance with the request;

The judgment of the trial court is reversed, and no new trial granted.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no' part in this decision.


text:
    ZENDER v. DETROIT LODGE NO. 1, KNIGHTS OF ROYAL ARK.
    1. Insurance — Mutual Benefit Policy — Laws of Society — Notice of Assessment.
    Under the by-laws of a mutual benefit association, making it tbe duty of tbe president of tbe association to levy an assessment on tbe members of tbe order on being advised of tbe death of a bolder of a certificate, by giving a written notice of tbe assessment to tbe secretary, a notice sent out by tbe secretary without tbe authority of the president, after learning of the death of one of tbe members, was insufficient to forfeit tbe rights of tbe bolder of a policy for nonpayment of tbe assessment.
    2. Same — Ratification—Agency—Mutual Benefit Associations.
    Tbe action of tbe secretary of tbe organization was not ratified by a meeting of tbe lodge following tbe sending out of tbe notice of assessment, at which an entry was made in tbe minutes of tbe lodge of tbe name and death of the deceased policyholder, with the amount of bis benefit.
    S. Same — Notice of Assessment — Forfeiture.
    Where tbe secretary of tbe lodge sent out an unauthorized assessment notice, and at a later meeting of tbe lodge be was directed to mail notices of tbe assessment to each member, and new notices were sent out pursuant to tbe directions, tbe time for complying with tbe same dated. from the second notice, the action of the society amounting to an extension of the time in which to pay the dues.
    Error to Wayne; Mandell, J.
    Submitted April 14, 1915.
    (Docket No. 95.)
    Decided March 31, 1916.
    Assumpsit by Carrie Zender against the Detroit Lodge No. 1, Knights of the Royal Ark, a mutual benefit insurance association, upon a policy of insurance. Judgment for plaintiff upon a verdict directed by the court. Defendant brings error.
    Affirmed.

      James A. Murtha and John H. Dohrman, for appellants.

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellee.
   Bird, J.

Plaintiff’s husband at the time of his death held a certificate of membership in defendant lodge in which it was stipulated that:

“Upon the death of any member in good standing in the mortuary and general funds of this lodge his beneficiary as named on the certificate shall receive the amount of one dollar from each member in good standing at the time of his death.”

The number of members in good standing at the time of his death was 700. The insured died July 13, 1912. Plaintiff demanded the insurance, but the defendant refused payment on the ground that the insured was not a member in good standing at the time of his death. The reason assigned for his not being so was that he had failed to pay assessment No. 18, of which he had notice on May 29, 1912. The plaintiff denied that the insured was in default, and denied that any valid assessment had been ordered at that time. The plaintiff insists that no valid assessment could be made except in pursuance of the law which provided that:

“It shall be the duty of the president at the meeting of the lodge following the death of a member of the mortuary class to give notice in writing to the financial secretary of an assessment of one dollar on each member in the mortuary class. Any member of the mortuary class not paying his assessment within 30 days after notice shall ipso facto stand suspended from all benefits of the mortuary class. Any member suspended for nonpayment of assessments and dues, can be reinstated if in good health by paying all arrears, but shall not be entitled to benefits until 30 days after reinstatement.”

It is conceded that this provision was not complied with by the president, but that as soon as the financial secretary learned of the death of the member he gave notice of assessment No. 18.

The defendant is an unincorporated voluntary association, which has adopted a printed constitution and by-laws for its government. Provision is made therein when an assessment shall be made, and who shall order it. It makes it the duty of the president to order an assessment upon the death of a member, and not only' to order it, but to order it in writing, addressed to the financial secretary. The present assessment was ordered by the financial secretary. We find nothing in the laws governing the order which gives him that authority. He is only to act after the president has given him notice that an assessment has been made. The lodge has written into its constitution that the president shall order an assessment in writing.- That provision wa$ inserted therein for some purpose, and it does not lie with us to say that the financial secretary has the authority which has been lodged in the president by the constitution. Bates v. Benefit Ass’n, 51 Mich. 587. We think the point is well taken.

But it is insisted that, even though the president did not call the assessment, the action taken by the financial secretary has been ratified by the lodge. This is based upon an entry made in the minutes of a subsequent meeting to the following effect:

“William Orlikowski, Deceased. Death Benefit— Died May 26th. $700.00.”

We are unable to see how this entry is a ratification of the action of. the financial secretary. It means nothing more than that Orlikowski, a member, was dead, and that he was insured in the sum of $700. It makes no reference to an assessment theretofore made, and is in no wise a ratification of the action of the financial secretary.

It is quite evident that the lodge itself did not regard the assessment as a valid one, because at a subsequent meeting on July 11th it directed the secretary to mail notices of assessment No. 18 to each member. Even though the first attempt to assess should be regarded as valid, this action on July 11th by the lodge must be regarded as an extension of the time in which the assessment could be paid. Upon either view the tendering of payment of the assessment on August 1st on behalf of the insured was in season to prevent a default.

The trial court was of the opinion that the insured was not in default at the time of his death for neglecting to pay this assessment, for the reason that it was not a valid assessment, and therefore a verdict was directed for plaintiff. We think the verdict was properly directed. Whenever it is possible by a reasonable construction to prevent a forfeiture of an insurance policy, and thereby preserve the equitable rights of the holder, it should be done. Miner v. Benefit Ass’n, 68 Mich. 338 (29 N. W. 852).

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    KENNELLY v. STEARNS SALT & LUMBER CO.
    Master and Servant — Compensation—Personae Injuries — Appeal and Error.
    Claimant was in the employ of a lumber company, engaged as a common laborer in the construction of a logging road when the State fire warden ordered him to assist in putting out a forest fire in the neighborhood, and in aiding at this work claimant received injuries from a falling tree that destroyed his left eye. He received pay for his work from the master, who was reimbursed by the State and county. Act No. 249, Pub. Acts 1903 (1 Comp. Laws 1915, § 770). The insurance company having respondent’s accident insurance brought certiorari to review an award of compensation. Held, that the question was whether or not there was any testimony to sustain the finding of the board that the injury arose out of and in the course of his employment, and that the evidence did not sustain the determination of the board.
    Certiorari to the Industrial Accident Board.
    Submitted April 22, 1915.
    (Docket No. 115.)
    Decided March 31, 1916.
    John Kennelly presented his claim for compensation against the Stearns Salt & Lumber Company, a corporation, and the New England Casualty Company, for. loss of one of claimant’s eyes. From an order awarding compensation respondent casualty company brings certiorari.
    Reversed.

      Frank J. Riggs, for appellants.

      John C. Myers, for appellee.
   Bird, J.

While claimant was in the employ of the .defendant, the Stearns Salt & Lumber Company, with a gang of men constructing a railroad, he with several of his colaborers was ordered by the fire warden to go with him and assist in extinguishing a forest fire. The claimant complied with the order, and, while engaged in that work, he was struck by a falling tree, and the sight of his left eye was destroyed. He presented his claim to the Industrial Accident Board as a servant of the Stearns Salt & Lumber Company. The board of arbitration allowed his claim at $5.02 per week for 100 weeks. Subsequently, on appeal, this award was approved by the Industrial Accident Board. Defendant insurance company has removed the proceedings to this court by certiorari, claiming that the award should not have been made, because claimant at the time of his injury was engaged in work for the State, and not for the defendant Stearns Salt & Lumber Company.

Counsel for claimant insist that that question was one of fact, and the fact having been found by the decision of the board, it is not reviewable in this court.

The real question presented is whether there is any testimony in the record to support the finding of the' board. The testimony is brief, and is set out in the record, and there is no disagreement concerning it. It shows that while the claimant was engaged in work for the Stearns Salt & Lumber Company, the fire warden came along and ordered him to go with him to assist in extinguishing a forest fire. The record shows that he was not only ordered to go by the fire warden, but that his work was directed by the fire warden after he arrived there. It is further shown that he was paid his regular wages by the Stearns Salt & Lumber Company, and that it was reimbursed by payment from the State and county, as the law provides in such cases. Section 6 of Act No. 249, Pub. Acts 1903, as amended by Act No. 317, Pub. Acts 1907 (1 Comp. Laws 1915, § 770), confers upon the fire warden the following authority:

“It shall be the duty of each fire warden to take precautions to prevent the setting of forest fires, and when his district is suffering or threatened with fire, to go to the place of danger to control such fires, and each forest fire warden shall have the authority to call to his assistance in emergencies any able-bodied male person over eighteen years of age, and if such person refuses, without reasonable justification or excuse, to assist, * * ' * [he] shall be deemed guilty of a misdemeanor and shall upon conviction thereof, be punished by a fine of not more than one hundred dollars or imprisonment in the county jail not to exceed three months.”

This provision of the statute clearly authorizes the fire warden to exercise the power which he did on this occasion. We do not think it can be said that while claimant was engaged in this service he was engaged in his regular employment. He was ordered by a State officer to leave his work and go to the assistance of the State. After he arrived there he was directed by a State officer, and for his time spent in such work he was paid by the county and State. It would hardly be contended that if he were impaneled to sit on a jury and had met some accident while engaged in that service his employer would be liable therefor. Nor could that contention be made had claimant been injured while assisting the sheriff at his command in quelling a riot. We think this situation is no different. When he was ordered to go with the fire warden, he left his work temporarily to discharge a duty which was incumbent upon him as well as upon every other citizen similarly situated. We do not think it can be said that his injury arose out of his employment or during the course of it. The testimony does not support such a finding.

Some point is made by claimant that he was paid his regular salary by his employer for the time spent in fighting fire. We do not regard this as of importance as the record explains that it was done as a matter of convenience and that his employer was after-wards reimbursed from the public funds for his services. Some point is also made because his foreman or superintendent directed some of his acts while at the fire. This quite likely was the result of habit, rather than of authority upon the part of the foreman or superintendent. The claimant’s own testimony shows that his work was directed by the fire warden.

The conclusion of the Industrial Accident Board must be reversed, and the award set aside.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Bird, «L

text:
    CONNINE v. SMITH.
    1. Schools and School Districts — Special Meeting — Power of Board.
    Under special or extraordinary circumstances, a board of education has power to call a special election without a petition therefor by the electors. Section 11, Act No. 117, Pub. Acts 1909; 2 Comp. Laws 1915, § 5919.
    2. Same — Elections—Destruction of School — Special Election.
    The school house of Hanover Unit School District was practically destroyed by fire and its further use prohibited by the State. At a regular meeting of the board it was moved and carried that a special election be held to vote on a bond Issue for a new building. Notice was duly given of the election, at which the bonds were authorized, and complainants sought to restrain their issuance. Held, that the legislature contemplated special meetings to he held on the initiative of the board and that the provisions relating to a petition represented another and supplemental method of calling the meeting by the electors of the district; held, also, that the meeting was lawfully called for the purpose of authorizing the bond issue.
    3. Same — De Pacto Officers — Justices of the Peace.
    Justices of the peace who were selected trustees of a school district and recognized as proper officials thereof for a year or upwards were de facto officials, though disqualified from acting in the two capacities by 2 Comp. Laws 1915, § 5929.
    4. Same — Posting Notice of Election.
    The court will not vacate an election for the special purposes of a bond issue because of a mere irregularity, as, that the affidavit of posting the notices was not on file as required, unless the voters were misled or prejudiced by the omitted step. The fact might be shown by parol.
    5. Same — Irregularity op Organization.
    Acts of a municipal corporation may not be defeated by a collateral attack upon the regularity of its organization so as to prevent a bond issue by the defendant school district because the proceedings to organize the school district were invalid.
    Appeal from Wexford; Lamb, J.
    Submitted June 29, 1915.
    (Docket No. 24.)
    Decided March 31, 1916.
    Bill by Edwin Connine and others against W. W. Smith, and others, as trustees of Hanover Unit School District, for an injunction restraining defendants from disposing of certain bonds. From an order dismissing the bill of complaint, complainants appeal.
    Affirmed.

      Jesse R. Cropsey, 'for complainants.

      Fred C. Wetmore, for defendants.
   Bird, «L

A permanent injunction is sought in this case restraining the trustees of the Hanover Unit School District from disposing of $15,000 in bonds, which the district voted in order to secure funds with which to erect a new school building. Upon the filing of the bill, a temporary injunction issued pending the hearing. At the hearing the bill was dismissed and the injunction dissolved. The complainants appeal.

It appears that in the month of September, 1913, the school house belonging to the district was condemned by the State authorities, for the reason that it was unsafe, and a further use of it was prohibited. Following this action, and in April, 1914, at the regular monthly meeting of the board of education, a motion was made and carried to hold a special election on May 6, 1914, for the purpose of voting on a bond issue of $15,000 to obtain funds with which to erect a new building. Notice thereof was given and the election was held, and the proposition carried. The validity of the proceedings to issue the bonds is questioned by complainants upon three grounds:

(1) That the secretary of the board of education was not authorized to call a special election.

(2) That there was no proof on file of the posting of the notices of election at the time the election was held.

(3) That the proceedings taken to organize the district were' invalid.

The board of education called the special meeting upon its own initiative, and the secretary gave notice thereof as he is required by law. Act No. 117, Pub. Acts 1909 (2 Comp. Laws 1915, § 5909 et seq.). Complainants’ position is that the board of education cannot call a special meeting upon its own initiative; that it can be legally called only in response to a petition signed by a certain percentage of the .qualified voters of the district.

Act No. 117, Pub. Acts 1909, as amended by Act No. 143, Pub. Acts 1911, provides that special elections may.be called to determine whether money shall be raised by bonds, and section 11 of the act (2 Comp. Laws 1915, § 5919) provides that it shall be the duty of the secretary:

“Third, to give the prescribed notice of the annual meeting and of any special meetings, of the district which the board may call: Provided, that the notice of all annual and special meetings shall be properly posted in at least five public places in the township and one on each school building not less than five days prior to such meeting: Provided, further, that on the petition of at least one-tenth and not less than twenty-five of'the qualified voters of the township district presented to the secretary or president for the purpose of calling a special school meeting, the secretary shall give the notice as hereinbefore provided.”

The act specifically authorizes special meetings to be held to determine propositions to bond, but does not in express terms authorize the board to call them. We think a fair construction of the act, however, contemplates that the board of education may call special meetings upon its own initiative. If this were not so, the requirement of the act that the secretary shall give notice of the special meetings of the district which the board may call would be meaningless. The legislature evidently did not desire to leave this power wholly in the hands of the board, so it provided a method whereby special meetings could be called by a certain percentage of the qualified voters without the aid or intervention of the board. In the present case the board was well within its authority in calling the special election in question. See Central School, etc., House v. School District No. 3, 99 Mich. 402 (58 N. W. 324).

It is further urged in this connection that there was in fact no valid action upon the part of the board of education in calling the special election, inasmuch as no quorum was present. A lack of quorum is made out in this way. Trustees Guernsey and Damon, it is asserted, were not legally elected because they were both justices of the peace at the time of their election as trustees. The act under which they were elected provides that:

“The several township officers shall be ineligible to election as members of the board of education during the term for which they were elected and any votes cast for such township officers for members of the board of education shall be void.” Section 21, Act No. 117, Pub. Acts 1909 (2 Comp. Laws 1915, § 5929).

It appears, however, that notwithstanding the inhibition, Guernsey and Damon were elected, took the oath of office and entered upon the duties thereof, and were recognized for upwards of a year as trustees and members of the board. We think under such circumstances they were acting under the color of title to the office, and that they were de facto officers. This being so, their official acts could not be questioned collaterally by a private party by showing that they were not entitled to the office. Bird v. Perkins, 38 Mich. 28; 28 Cyc. p. 420; Petersilea v. Stone, 119 Mass. 465 (20 Am. Rep. 335); Town of Plymouth v. Painter, 17 Conn. 585 (44 Am. Dec. 574).

The precise question here presented is whether a person who was- not qualified to fill the position could be said to be holding the office under color of title. Upon this question the last case cited quotes with approval the holding in Knight v. The Corporation of Wells, Lut. 508; it was there held:

“That if one elected mayor of a corporation, without being legally qualified to be chosen to that office, after such election puts the seal of the corporation to a bond, this obligation is good, because, by coming into the office by color of an election, he was thereby mayor de facto; and all judicial and ministerial acts done by him are good.”

In the present case, Guernsey and Damon were justices of the peace. By reason of this fact, they were disqualified to become trustees of the board of education. Doubtless this fact was overlooked and these men were elected to that position. They filed their bond and took the oath of office, and acted as such trustees without any question being raised so far as the record shows, until the present time. We think it must be held that this constituted them de facto officers. This being so, it follows, as heretofore said, their acts as such officers cannot be questioned in this collateral proceeding.

Another objection urged is that before the special election could be legally held, an affidavit or proof of the posting of the notices required by statute should be on file with the clerk, and that parol proof of the posting thereof was not admissible — citing Huyser v. Boards of Inspectors, 131 Mich. 568 (91 N. W. 1020); Graves v. Board of School Inspectors, 102 Mich. 634 (61 N. W. 60).

These cases are not in point to the first contention, because in those cases it was declared that the service of the notice on the officers of the other school districts for a joint meeting was jurisdictional. It was the initial step in the proceeding.,. The jurisdictional fact' here is the ordering of the special election. The giving of notice thereof was but a step in the proceedings, which, if insufficiently given, would amount to an irregularity, for which the courts would vacate the election, if it were shown that the voters were misled or prejudiced thereby. But unless this showing was made, the courts would refuse to set aside the election. Wightman v. Tecumseh, 157 Mich. 326 (122 N. W. 122).

The giving of the notice is not a duty which rests upon the board; that is made the duty of the secretary. Proof that he discharged that duty according to law Is essentially no part of the record of the board, although it might be better practice to file proof of the same. Whether he did discharge it or not in a given case is a question,of fact, and we see no valid reason why the fact cannot be shown by parol evidence. See Paul v. Circuit Judge, 169 Mich. 452 (135 N. W. 283). Some further complaint is made that the parol proof admitted is insufficient to show a valid posting. The testimony in this respect shows a. substantial compliance with the statute, and since no complaint is made that any voter was prevented from voting, or was in any wise prejudiced by reason of insufficient posting, the objection is without merit.

About a year prior to the time this suit was commenced, certain townships in the counties of Wexford and Grand Traverse combined to form a unit school district under Act No. 117, Pub. Acts 1909 (2 Comp. Laws 1915, § 5909 et seq.), and such proceedings were had as resulted in a formation of the Hanover Unit School District, Fractional. Subsequently, it held an election and elected its officers. It is claimed upon the part of complainants that the proceedings taken to organize said unit school district were void, and it is urged as a ground why a permanent injunction should issue against said bond issue. The regularity of this organization has been discussed at some length by complainants’ counsel, but we are of the opinion that this is such a collateral attack as could not be raised for the purpose of defeating the issue of the bonds. It comes within the general principle that acts of a municipal corporation may not be resisted by showing the irregularity of its organization. Fractional School Dist. v. Joint Board of School Inspectors, 27 Mich. 3; Clement v. Everest, 29 Mich. 19; Stuart v. School District, 30 Mich. 69; Bird v. Perkins, 33 Mich. 28; Stockle v. Silsbee, 41 Mich. 615 (2 N. W. 900).

The chancellor who heard the case came to a proper conclusion in the matter, and we think the decree should be affirmed, with costs to the defendants.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    PARNELL v. PUNGS.
    1. Trover and Conversion — Triad—Question oe Fact.
    Inconsistent or conflicting evidence on the part of plaintiff, in an action of trover for the conversion of a motor hoat, considered and held, to present a question of fact that was properly left to the jury.
    2. Same — Receipt—Evidence—Sueeiciency.
    And a receipt that the house servant of defendant had given for a part of the consideration for the transfer of the boat, admitted to have been received by the defendant, was properly allowed in evidence, though the signature of the maid was not properly proved, where it was offered only for the purpose of fixing a material date.
    3. Same — Charge.
    Where the court was ashed to charge that If the defendant’s engine was removed from the boat and another substituted therefor, defendant was justified in refusing to allow the machinery to be removed from the boat until his own was returned, and the court modified the request so as to read that the sale must be found to have been in good faith from defendant to the third party, who, through plaintiff, claimed title, the defendant could not complain of the added instruction, as the law would not presume that the transfer of the property was not in good faith.
    4. Same — Fraud — Debtor and Creditor — Fraudulent Conveyances.
    Evidence that the transfer from the owner to plaintiff was in fraud of the creditors .of the seller, who was shown to have other creditors than the defendant, was properly excluded by the trial court on the ground that defendant was not a creditor within the meaning of the statute (3 Comp. Laws 1915, § 11985), having only a claim for the return of the property sold, on the theory of a sale and rescission, and having taken possession of the boat and machinery for which plaintiff sought to recover in the action.
    5. Same — Investigating Title.
    Defendant was not entitled to an instruction, which he requested the court to give, that if he refused plaintiff’s demand for the property for the purpose of investigating the right to the same and in good faith declined to surrender the boat or engine until he had looked up this question, under testimony which did not establish that he refused the demand in good faith, and for the alleged purpose of learning whether plaintiff was really the owner.
    Error to Wayne; Tucker, J., presiding.
    Submitted June 8, 1915.
    (Docket No. 20.)
    Decided March 31, 1916.
    Trover in justice’s court by Ida A. Parnell against William A. Pungs for the conversion of a certain marine engine and other personal property. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Schmalzriedt, Spaulding & Toms, for appellant.

      Guy A. Miller, for appellee.
   Bird, J.

G. S. Murdock, of Detroit, being the owner of the boat “La Reine,” also purchased of defendant his yacht “Naiad.” While owner of both boats he removed the gasoline engine from the La Reine, and while it'was detached therefrom the plaintiff claims he sold it to her for $800, and gave her a bill of sale therefor. Subsequently, he sold her some miscellaneous boat equipment for $125, and likewise gave her a bill of sale of that. After the bills of sale were given, Murdock removed the engine from the “Naiad” and substituted therefor the engine taken from the La Reine. This was done with the knowledge of both plaintiff and defendant. Later, this engine was detached from the “Naiad,” but was left in the boat, together with other equipment sold to plaintiff. While in this condition, and while moored to the dock in the rear of 1526 Jefferson avenue, defendant rescinded his contract with Murdock and took possession of the “Naiad” and towed her to Ecorse. Plaintiff demanded possession of the engine and equipment. The demand was refused, and plaintiff sued him in trover to recover the value of the property. She recovered a judgment of $500, and defendant has assigned error.

The errors assigned are:

(1) Those relating to the proofs of plaintiff’s title to the property.

(2) Those relating to the proof of conversion by the defendant.

(3) Those relating to the measure of damages.

Defendant’s counsel contends that the testimony shows that plaintiff did not have title to the property in question; that her testimony shows the transaction was a loan and not a sale; and that she took bills of sale of the property merely as security. Plaintiff’s counsel insists that the testimony is clear that she purchased the title to the property, and that it was not a loan. Both insist that the question was one of law for the court. The question turns upon the testimony of plaintiff. She testified quite positively that she purchased the property, and denied that the transaction was a loan. By other testimony which she gave she indicated that it was a loan. Whether she was right when she said she bought the title of the property, or whether she was right when she said she took the property as security, was a question of fact for the jury, and the trial court very properly submitted it to them. Kelly v. Freedman, 56 Mich. 321 (22 N. W. 820); Watson v. Watson, 58 Mich. 507 (25 N. W. 497); People v. Hansen, 183 Mich. 565 (150 N. W. 159).

The trial court was requested to charge that:

“The plaintiff, claiming title to the property by conveyance from Murdock, can have no better title than Murdock had, and if there were any defects in Murdock^ title, or any liens valid against him, such defects in title or liens are valid against the plaintiff, and defendant is entitled to the same defenses as if the action were brought by Murdock.”

Complaint is made because this request was not given. The only way in which the foregoing request would have been helpful to defendant would have been in calling the attention of the jury to his claim that Murdock had defrauded him in the sale of the “Naiad,” and in consequence thereof the title thereto never passed out of him. This purpose was sufficiently served by that portion of the charge in which the jury were advised that the “plaintiff could not recover unless they found that the sale of the ‘Naiad’ to Murdock was a bona fide sale.”

As a part consideration for the “Naiad” were certain bonds. The bonds were delivered to defendant’s home in his absence, and a receipt given therefor by the maid. This receipt was received in evidence against defendant’s objection that the signature of the maid had not been proven. The receipt was offered for the purpose only of fixing a material date. In view of the fact- that defendant admitted that he received the bonds, the admission of the receipt for the purpose indicated was proper.

The court was further asked to charge that:

“If you find that Murdock took defendant’s engine out of the ‘Naiad,’ and substituted the engine in question here, defendant was justified in refusing to allow this engine to be removed from the ‘Naiad’ until his own was returned.”

The court gave this request, but added the words “and plaintiff cannot recover unless you find that the sale of the ‘Naiad’ to Murdock was a bona fide sale. If you do so find, the plaintiff must recover.” Counsel’s complaint is directed to the added words. He asserts that there is no evidence of the good faith of the transaction. The defendant testified to a sale and that he received the bonds therefor as promised,, but that the value of the bonds was not as represented. We think the testimony of the defendant himself and his acts and dealing with Murdock, together with the fact that the law would not presume that it was not a bona fide sale, made the question one for the jury.

Attempt was made by defendant to show that the transfer of the property from Murdock to plaintiff was prima facie void under the statute (3 Comp. Laws, § •9520; 3 Comp. Laws 1915, § 11985) by showing that Murdock had creditors at the time of the transfer. This evidence was immaterial, unless the defendant himself was a creditor of Murdock, as the law makes the transfer prima facie void only as to creditors of the vendor. But it is argued that defendant was a creditor, and in support thereof the case of Schaible v. Ardner, 98 Mich. 70 (56 N. W. 1105), is cited, which holds that a right of action for conversion of property is sufficient to put the owner in the class of persons entitled to attack fraudulent conveyances. Conceding this to be so, defendant’s testimony does not place him in that class. His position is that he sold the “Naiad” to Murdock, and that the bonds taken therefor were worthless, and by reason thereof he rescinded the contract. This does not make him a creditor as he had repossessed himself of the “Naiad,” and the only point left for the courts to settle between them was whether he was justified in so doing.

On the question of conversion, defendant offered the request that:

“If you believe from the evidence that, before the plaintiff demanded the goods in question from defendant, defendant had been informed that there were claims outstanding of adverse ownership of the goods or liens upon them, then he was justified in refusing to deliver the goods to plaintiff until he could investigate and determine the truth and validity of such claims, and if his refusal to deliver the goods, if he did so refuse, was made in good faith for the purpose of investigating such claims and delivering the goods to the person legally entitled, you should find a verdict for the defendant of no cause of action.”

The failure of the court to give this request is alleged as error. The proof showed that plaintiff saw defendant prior to instituting suit, and made a demand on him for the property. Defendant replied that it belonged to the Detroit Motor Boat Company. Plaintiff denied this, and advised him that it belonged to her. Murdock was present and corroborated her statements. Plaintiff testified that defendant did not say whether he would comply with her demand. Defendant says he informed her that he had towed it away and that he would not disclose where it was until she proved to him that she owned it. Defendant admits the demand and concedes that he did not comply with it.

But it is urged that defendant had a right to refuse the demand for the purpose of investigating whether plaintiff had the title thereto. This is probably true if his refusal were in good faith. But his testimony-does not show that he entertained an honest doubt that plaintiff owned the property. Neither does it show that he refused so as to have an opportunity to investigate, nor that he ever made any investigation, although he had time after demand and before suit was brought. Defendant knew Murdock had owned it, and he admits that had Murdock been present at the dock when he towed the “Naiad” away, he would have permitted him to take the engine off from the boat. Defendant delivered a portion of the boat equipment to her, but refused to deliver the balance until she proved to him that she was the owner of it. The only way she could do this conclusively was by an action of replevin or an action of trover. He deprived her of the opportunity of bringing replevin by secreting it, and the only other alternative was to bring suit which she did. We are of the opinion that the proofs were sufficient to establish a demand and conversion (Ingersoll v. Barnes, 47 Mich. 104 [10 N. W. 127] ), but were not sufficient to support the foregoing request.

Other questions are raised as to the measure of damages, and the disposition which the court made of the claimed liens. We think there is no merit in them.

The judgment will be affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.

The late Justice McAlvay took no part in this decision.