author: Brooke, C. J. Ostrander, J.

text:
      In re BARNEY’S WILL. BARNEY v. BARNEY.
    1. Wills — Issues—Circuit Court.
    On appeal from an order of the probate court denying probate of a will, tbe only issue to be decided was whether tbe paper propounded was or was not a will, and tbe only thing the circuit court could do was to' determine the issue, and then certify its conclusion to the probate court.
    2. Same — Supreme Court Practice.
    On appeal to the Supreme Court from a decree of the circuit court sustaining the will, the only thing this court could do was to determine whether proper rules were followed in the circuit court in determining the issue.
    3. Same — Probate Court — Issues—Jurisdiction—Courts.
    Neither in the circuit court nor in the Supreme Court can the issue properly triable in the probate court be enlarged.
    Brooke, C. J., and Moore, J., dissenting.
    Error to Calhoun; North, J.
    Submitted November 12, 1914.
    (Docket No. 62.)
    Decided July 23, 1915.
    Oliver W. Barney presented for probate the last will of Oliver Barney, deceased, which was contested by Fred W. Barney. From an order of the probate court denying the petition, proponent appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.

      James M. Powers and Walter S. Powers, for appellant.

      Leland H. Sabin, for appellee.
   On October 9, 1896, Oliver Barney was by the probate court of Calhoun county declared to be mentally incompetent to have charge of his estate. He was at that time about 75 years of age and had been in poor health for a number of years. His only son, Fred W. Barney, was in that proceeding appointed his guardian. His estate consisted principally of a farm of some 100 acres in Calhoun county, upon which he had lived for a great many years. On the 8th day of December, 1896, he is said to have executed the following will:

“I, Oliver Barney, of the township of Bedford, the county of Calhoun and State of Michigan, being of sound mind and memory, do make, publish and declare this to be my last will' and testament, in manner following, viz.:
“First. I will and direct that all my just debts and funeral expenses be paid in full.
“Second. I give, devise and bequeath to my wife Phebe J. Barney all of personal property and real estate of which I now own, consisting of a farm, containing one hundred and seven acres of land this is to _ wife as long as she may live and to my grandson Oliver W. Barney after my wife death is to have the farm which I now own, and the said Oliver W. Barney is to pay Fred W. Barney one hundred dollars and to his sister, Phoebe Isabel Barney, one hundred dollars and to his sister Helen L. Barney, one hundred dollars to be paid by the said Oliver W. Barney.
“I now will and bequeat that my airs do put to the amount of five hundred dollars on the lot in the semi-try and remove my parents on the same and cause to be put to their graves a Marbil Mark to each of them.
“I hereby appoint Charles Beadley of the township of Bedford Calhoun county as the Execut-— of this my last will and testament.
“Lastly, I hereby revoke all former wills by me at any time made.
“In witness whereof, I have hereunto set my hand and seal this the 8th day of December in the year of our Lord one thousand eight hundred and ninety six.
“-. [Seal.]
“On this day of , A. D. 189 in the county of and State of signed the foregoing instrument in our presence, and declared it to be h last will and testament and as witnesses thereof, we do now, at h request, in h presence, and in the presence of each other, hereto súbscribe our name.
“Oliver Barney, residing at
“E. D. Porter,
“Wm. H. Hendershot.”

In April, 1897, Phoebe Barney, the wife of said Oliver Barney, petitioned the probate court of Calhoun county to enter a decree dissolving the guardianship theretofore established over her husband. After a full hearing upon that petition and on May 14, 1897, the judge of probate for said county entered an order denying the petition. In this order it is recited that said Barney is still incompetent to have the care and custody of his person or estate. An appeal was taken from this order to the circuit court of Calhoun county, where on December 14,1897, a stipulation having been entered into by counsel for the respective parties, an order was entered dissolving said guardianship. On the 11th day of August, 1898, said Oliver Barney executed two deeds, one to his grandson Oliver William Barney, and the other to his wife, Phoebe J. Barney. These deeds disposed of the farm which had already been devised by the will of December 8, 1896. Subsequently and on October 25, 1898, a second petition was filed in the probate court for the appointment of a guardian, and such guardian was appointed on the 1st day of December, 1899. Oliver Barney died on the 12th day of February, 1900. On the 30th day of December, 1901, Fred W. Barney, who was his sole heir at law, filed a bill in the circuit court for the county of Calhoun, in chancery, in which he charged that the deed made by Oliver Barney to Oliver William Barney, son of Fred W. Barney, and grandson of Oliver Barney, was void because at the time it was executed the said Oliver Barney was not possessed of sufficient mental capacity to make a valid conveyance of his real estate, and for the further reason that said deed was executed by said Oliver Barney as the result of undue influence exercised over him by his wife Phoebe Barney. Fred W. Barney made his son, Oliver William Barney, defendant to this bill of complaint. The record shows that a subpoena was duly issued and served upon Oliver William Barney on January 10, 1902. At that time Oliver William Barney was about 18 years of age. At the request of his father, complainant in that case, Oliver William Barney signed a petition for the appointment of a guardian ad litem. The petition follows:

“Petition by Defendant for the Appointment of Guardian Ad Litem.
“Filed February 13, 1902.
“The petition of Oliver William Barney, of the city of Battle Creek, in the county of Calhoun, and State of Michigan aforesaid, the defendant in this suit respectfully shows that your petitioner is an infant under the age of twenty-one years, to wit, of the age of eighteen years. That the bill of complaint in said 'cause was filed against your petitioner for the purpose of setting aside a certain deed made and executed by Oliver Barney and Phoebe Barney, his wife, to this defendant, dated on or about August 11, A. D. 1898, and recorded on the 23d day of February, A. D. 1900, in the office of the register of deeds of the county of Calhoun, in Liber 162 of Deeds, on page 183, upon the grounds set forth in said bill, that the said Oliver Barney was, at the time of the making of the same, mentally incompetent to make said deed, and that said deed is in fraud of the rights of said complainant as. a creditor, and also as the sole heir at law of said Oliver Barney, deceased.
“And your petitioner further shows that his interest in said suit is this, that he is the grantee named in said deed, and that your petitioner has been served with a subpoena in said cause requiring him to appear and answer to said bill, and that the same was served on the 10th day of January, A. D. 1902.
“Your petitioner therefore prays that Edward Austin, the register of this court, residing in the city of Battle Creek, in said county and State, may be appointed the guardian ad litem for your petitioner to appear and defend this suit in his behalf, and your petitioner will ever pray.
“Oliver William Barney, in person.
“I hereby consent to become guardian ad litem of the above petitioner in the above-entitled cause.
“Dated February 3, A. D. 1902.
“Edward Austin.”

An affidavit as to its execution accompanied the petition as follows:

“Calhoun County, ss.:
“Fred M. Wadleigh of said county being duly sworn deposes and says that on the 17th day of January, A. D. 1902, he saw the above-named Oliver William Barney, to him personally known, sign the petition hereto annexed, and that on the 3d day of February, A. D. 1902, he also saw Edward Austin, to him personally known, sign the consent to act as guardian ad litem thereunder written.
“Fred M. Wadleigh.
“Subscribed and sworn to before me this 6th day of February, A. D. 1902.
“Leslie E. Clawson, Notary Public.”

The guardian ad litem filed an answer to the bill of complaint neither admitting nor denying the charges of mental incompetency and undue influence made against his grandfather. To this answer a replication was filed, and the cause went to a hearing in open court. A decree was rendered therein holding that at the time said deed was made'Oliver Barney was mentally incompetent; that he was indebted to the said complainant; that said deed was made without consideration; that no legal delivery thereof was ever made; and that said deed was in fraud of the rights of said complainant both as a creditor and as an heir at law of said Oliver Barney. It was further ordered and decreed:

“That the said lands and premises" in said deed and in the bill of complaint described, after the payment of the just debts of the said Oliver Barney, deceased, be decreed to be the property and estate of the said complainant as sole heir at law of the said Oliver Barney, deceased, and that a copy of this decree may be recorded in the office of the register of deeds of said county of Calhoun.”

This decree was filed June 5, 1902.

The will in issue in this case was filed for probate July 28, 1913. The record does not disclose where the will was from the time it was made in 1896 until about the year 1903 or 1904. It is the claim of Oliver William Barney, the proponent of the will, that when he was about 21 years of age, upon entering his bedroom in his father’s house one evening, he discovered the will in an envelope upon his bed, that he took the will from the envelope and read it, and filed it away in a letter clip in his room, where it remained until shortly before it was presented by him for probate, a period of from seven to ten years. The proponent received a fair education and after graduating from school took a year in business college. He then worked for an ice company in Battle Creek for a year or two, and then went into business with his father, which they continued until January, 1913. At that time proponent was about 30 years of age. During all the years while he was in partnership with his father he lived at home, as he had done from the time of his birth. When the will was offered for probate in the probate court, the proponent testified that he had never mentioned the fact of its existence to anybody until he had shown- it to Mr. Clapp, a lawyer, a short time before it was offered for probate. Upon the trial in the circuit court he testified that he had discussed it with his mother and was. of opinion that he had shown it to her. His mother denied that she had ever heard of the existence of the paper until the proceedings were had thereon in the probate court.

Fred W. Barney, as guardian, made claims against the estate for various sums paid out by him as guardian, which were allowed at the sum of nearly $500. These claims were not paid, however, as by the decree of the court of chancery the title to Oliver Barney’s farm was vested in Fred W. Barney, his sole heir at law, subject to the payment of debts. The record does not disclose that there were other creditors. On March 27, 1901, contestant Fred W. Barney entered into an arrangement with his mother, Phoebe J. Barney, by the terms of which she leased to him the lands covered by the will during her life, in consideration of the sum of $8 per month. She was still living when the case was heard in the court below, but her physical condition was such as to preclude the possibility of her testifying in the circuit court. The testimony she had given in probate court was read over objection of counsel for contestant.

Oliver William Barney explains his failure to produce the will and tender it for probate as follows:

“Q. When did you first know about this will, Mr. Barney?
“A. Why, I came into possession of it about seven years ago, six or seven years.
“Q. How did you come in possession of the will?
“A. I found it in my room, in my room at home, at my father’s house. It was lying on the bed, on my bed in my room. I do not know how it got there. I did not see any one put it there.
“Q. What did you do with it?
“A. I looked it over and put it in a file where I kept some other papers.
“Q. What was your business at that time?
“A. Well, I imagine I was with my father in the coal business.
“Q. Do you know whether you were or not? What is the fact about it, don’t imagine about it?
“A. Well, I would not be sure. I would not be sure whether I was with him then or not.
“Q. Now, will you tell the jury why you did not at once proceed to probate this will?
“A. After my grandfather’s death, I had a talk with my father in regard to the property, or he had a talk with me, and he said the property had been left so that my grandmother would have full control of it and at her death could leave it to her relatives, the Hendershot family, unless some few changes were made. He advised me to come up to Mr. Fred Wadleigh’s office, an attorney here, and sign a paper that they had prepared. I went up and signed the paper, and I supposed the matter — I did not read the paper. I did not know what it was, and I supposed the matter had been settled up agreeably all the way round. I never heard it mentioned particularly. Things run along in that way, and, knowing that my grandmother was still living, I knew nothing could be done with the farm apparently until the spring of that year, when I decided to take up farming. In the spring of this year, I went to Marshall and started looking the matter up, and found that the farm had been deeded to me, and with this will in mind, and finding this to be true, I went up to Frank Clapp to begin with.
“Q. Now, I will ask you if you knew of any deeds existing made by your grandfather prior to the spring of 1913?
“A. No, sir; I did not. I had never heard of them.
“Q. I will ask you to state if your father told you anything about the proceedings which he had taken to set those deeds aside?
“A. Only if some steps were not taken my grandmother would eventually give it to the Hendershot family, her family, at her death. He did not say that there were deeds; he did not tell me that may grandfather had deeded to me any portion of the property. At the time of my grandfather’s death, I was 17 years old. At the time of these proceedings that he took when I signed this paper, I was not of age.
“The Court: The bill seems to have been filed November 30, 1901.
“Q. How old were you then ?
“A. I would have been 18 some time during that year, in October. I lived at that time with my father. I did not know there were any proceedings. My father asked me to sign this paper. I did not know what the paper was at that time. I did not find out what that paper was. I started looking into the matter in the spring of 1913. When my father spoke to me about going up to Mr. Wadleigh’s office, he said that there were some papers that would have to be changed over if we were to prevent my grandmother at her death from giving the property to her family, the Hendershots.
“Q. Did you believe what he told you?
“A. Surely. He said there was a paper up there he wished I would sign at Fred Wadleigh’s office, and I went up there. Mr. Wadleigh produced the paper and I signed it.
“Q. Did. he tell you anything about what it was? * *
“A. No, he did not. The paper was not read over to me. Mr. Wadleigh produced the paper and pen and ink.”

On cross-examination he testified:

“Q. Was it a surprise to you to find that upon your bed, your not knowing anything about how it got there ?
“A. It was. I was around 21 years of age at that time. I might have been 20 or I might have been 22, somewhere around near 21. I couldn’t say it was within a year of the time I was 21, because I cannot remember. It was somewheres near 21.”

Brooke, C. J.

(after stating the facts). As is usual in cases of this character, much testimony was introduced on each side touching the mental capacity of the testator. To review this testimony at large would be of no service to the profession. It is sufficient to say, that, shorn of its local color, and given alone such probative force as it is entitled to upon this record, we would find considerable difficulty in reaching the. conclusion that Oliver Barney was competent to make the will in question on December 6, 1896. The jury, however, heard the testimony, and under the law they constitute the appointed agency for the determination of this as well as other disputed questions of fact. We are unable to say that this conclusion is so plainly against the weight of evidence as to require us to set the verdict aside for that reason.

Many errors are assigned by the appellant which are discussed under four heads:

“(1) Those relating to testimony admitted on behalf of the proponent, and objected to by the contestant; (2) those relating to testimony offered by the contestant and excluded by the trial court; (3) those relating to the refusal of the court to instruct the jury as requested by contestant’s counsel; and (4) those relating to the charge to the jury as given by the trial court.”

Under the first group, objection was made to the admission of the instrument .in question, because it was not executed according to the laws of the State of Michigan, not signed and witnessed according to the requirements of the statute, not established or proven to be the will of Oliver Barney, no competent testimony to establish the competency or capacity of Oliver Barney to make the will, no evidence to show at what date, if any, Oliver Barney signed the paper in question. It does not appear that it is signed by Oliver Barney as a will, the name “Oliver Barney” appearing on the paper appears in the place of a witness, and there is no date or anything to show when it was witnessed. The will is not proven within the meaning of the statute.

These several objections were overruled by the court, and the paper was admitted in evidence. One of the subscribing witnesses was sworn. This witness was old and nearly blind, and his testimony was somewhat contradictory and unsatisfactory; but, taken as a whole, we are satisfied that he gave evidence fairly tending to ’show that the paper in question was executed by Barney in his presence, and in the presence of Porter, the other witness, and that he, Hendershot, and Porter executed the paper as witnesses in the presence of Barney. The proponent then introduced evidence tending to show that Porter, the other witness, could not be found. It is urged on behalf of contestant that this showing was insufficient. It is claimed that section 10992, 4 How. Stat. (2d Ed.), compels the proponent to produce both witnesses to a will in case of a contest as to its validity. We think the statute demands no such construction. It is true that, in cases where the probate of a will is contested, the unexplained absence of one of the witnesses is reyarded with suspicion; but the production of both is not mandatory. Abbott v. Abbott, 41 Mich. 540 (2 N. W. 810). The effort made by the proponent in the case at bar to ascertain the whereabouts and procure the attendance of the witness Porter would appear to have been conducted in good faith and should, we think, be held to be sufficient, especially in view of the fact that contestant’s counsel offered no evidence tending to show that the attendance of Porter could have been procured.

It is the claim of the contestant that the alleged will was revoked by the making of the deed in August, 1898. This claim we think is without force when it is considered that complainant himself secured a decree in the circuit court setting aside that deed upon the ground that Oliver Barney was at the time it was made incompetent to make a conveyance of his estate. It is the same, therefore, as if no deed had been made. It cannot be said that an abortive attempt made by an incompetent person to change the condition of his estate has the effect of revoking a valid will made prior to such attempt. Graham v. Burch, 47 Minn. 171 (49 N. W. 697, 28 Am. St. Rep. 339); and Smithwick v. Jordan, 15 Mass. 113.

The next assignment of error discussed is No. 43, and refers to the following request to charge, which was refused:

“I further instruct you that it appears by the records of the probate court for this county that on the 9th day of October, 1896, it was adjudged and determined by the probate court that Oliver Barney was mentally incompetent to have the charge and management of his person and his property. And, if you believe from the evidence that he was mentally incompetent at that time to make the alleged will, then you should, by your verdict, set said will aside unless the proponent, Oliver W. Barney, has proven to you by a fair preponderence of the evidence that, on the 8th day of December following the appointment of said guardian, Oliver Barney had recovered his mental faculties to such an extent as to make him competent to execute the alleged will in question; and, unless the proponent has satisfied you by a preponderance of the evidence that Oliver Barney had recovered his mental competency, you should set aside this alleged will by your verdict.”

The court upon this question charged as follows:

“Proof has been offered here, gentlemen, relative to proceedings in the probate court, and in the circuit court of this county, pertaining to the matter of a guardianship over Oliver Barney. I say to you, as a matter of law, that the fact that Mr. Barney was under guardianship would not be a circumstance or condition which would necessarily prevent him making a valid will. The testimony relatiye to these proceedings must be considered by you in connection with all the other proof in the case, and from it all you must decide whether the testator at the time in question was mentally competent to make this will in question, and also decide whether in the making of this will Mr. Oliver Barney was subjected to undue influence.”

We are of opinion that this portion of the charge is warranted by the holding of this court in Rice v. Rice, 50 Mich. 448 (15 N. W. 545), where it is said:

“Testamentary capacity is not therefore disproved by the determination that cause exists for guardianship.”

Counsel for contestant cite two cases from foreign jurisdictions which would indicate a contrary conclu-. sion, but in view of our own decisions on the point we cannot follow them. It is elementary that less mental capacity is required to make a valid will than to make contracts. Guardians are frequently appointed for the purpose of preventing the making of unwise contracts by persons whose estates are thus preserved.

Error is assigned.upon the following excerpt from the charge:

“I also say to you, gentlemen, that delay in presenting this proposed will here does not in any way invalidate or make it less entitled to probate than if it had been presented when first discovered by the proponent, if you find that it otherwise was a valid and sufficient will. Something has been said to you, in the course of arguments relative to the will, relative to the duty of one to produce a will upon the death of the testator; and I will say to you that we have a statute which provides that any person, other than a judge of probate, who is possessed of such an instrument, is in duty bound to produce it to the judge of probate or to the executor, if one is named in the will, within 30 days after the death of the deceased; and, notwithstanding that is a statutory duty, the mere fact that the proponent in this case has not presented the will before does not of itself deprive the will of validity if it otherwise has the essentials necessary for a valid instrument of that character.”

In our opinion this instruction raises the most serious question in the case. Section 10987, 4 How. Stat. (2d Ed.), provides as follows:

“Every person other than the judge of probate, having the custody of any will, shall, within thirty days after the knowledge of the death of the testator, deliver the same into the probate court, which has jurisdiction of the case, or to the person named in the will as executor.”

Section 10989, 4 How. Stat. (2d Ed.), follows:

“Every person who shall neglect to perform any of the duties required in the two last preceding sections, without reasonable cause, shall be liable to each and every person interested in such will, in the sum of ten dollars damages for each and every month he shall so neglect, after the thirty days above _ mentioned, to be recovered in an action on the case, with costs.”

In the case of Foote v. Foote, 61 Mich. 181 (28 N. W. 90), the proponent of the will, who was also administrator, withheld the will from probate for .a period of 14 years after the death of the testator. It was there said:

“But it is very certain that justice to all parties interested in the provisions of a will requires that, under the statutes in this State as they now exist, a party holding the will, or one having knowledge of its existence, and under which he claims an interest in the legacies, must secure its probate within a reasonable time after he knows of the death of the testator; or, failing so to do, he may bar himself from making claim under its provisions to the benefits thereof; and we think a lapse of 14 years after a knowledge of the death of the testator, under such circumstances (and as they appear in this record), an unreasonable time, and that such defense to the claim of the plaintiff sought to be enforced against the estate of Elisha was a proper one to be made.
“Every person having the custody of any will is required, within 30 days after he knows of the death of the testator, to deliver the same into the probate court having jurisdiction of the case, or to the executors named therein. And it is made the duty of the judge of probate to appoint a time and place for proving it, and give notice thereof, either personally or by publication, to the persons interested; and, if no sufficient cause is shown on the hearing against it, on proofs made by at least one of the subscribing witnesses, admit the same to probate. How. Stat. §§ 5797-5802, inclusive.
“It must be a case of extraordinary circumstances indeed that would permit a legatee under a will, or the executor named therein, or other person, who has had the custody of a will, or knowledge thereof, and who has disregarded the statutory provisions herein referred to, and allowed the period of the statute of limitations to elapse without delivering it to the probate court or securing probate thereof, to enforce claims in favor of the estate of the testator wherein such person is interested against its debtors or their estates, when the latter makes defense as in this case.”

In the case at bar Oliver Barney died February 12, 1900. His will was tendered for probate on July 28, 1913, nearly 13% years thereafter. The proponent testified that he was 21 years of age in 1904 and that he discovered the instrument when he was “around” 21 years of age; that he might have been 20, 21 or 22 years of age. Taking this statement as true, it follows that, with knowledge of the death of his grandfather, and with knowledge of the contents of the will, he retained the will in his possession, telling no person of its existence, for nine years. He was a man of education and affairs, and must be held to have known the law as it affected his rights and duties under the will. At the time of its discovery by him, his grandfather had been dead four years, and the will itself was then about eight years.old. At the time it was made the testator was a very old man — 75 years of age. Circumstances strongly indicate that the question of his grandfather’s competency to make the will would be raised. The testator’s capacity to make a deed dated six months after the date of the will was raised by proponent’s father in the circuit court in a direct proceeding in which proponent himself was defendant, and it was there determined that Oliver Barney was incompetent. In the lapse of years which followed proponent’s discovery of the instrument, it is inevitable that some of those, best fitted through acquaintance with the testator to testify as to the competency or incompetency of Oliver Barney at the time the will was made, must have died or removed from the neighborhood so that their testimony was not available upon the hearing.

The law contemplates, and the statute provides, that immediately upon the death of a person dying testate, his will shall be tendered for probate, and the very purpose of this salutary provision is that questions affecting the validity of the instrument tendered may be determined as nearly as may be to the date of its execution.

We think it would be grossly inequitable and would lead to many abuses, if a precedent were established to the effect that one sui juris, well educated, and largely interested, could wilfully withhold from probate a will for a period of nine years, and then tender it at a time when it is difficult, if not impossible, to produce the testimony as to the validity of the instrument that would have been available had it been seasonably tendered.

Under the circumstances of this case, and in view of the fact that the record fails to disclose any valid reason or excuse for withholding the will from probate, we are of opinion that proponent should be held to be estopped from taking anything under the instrument.

Upon the question of laches, see Sheldon v. Miller, 151 Mich. 283 (114 N. W. 1015), and the authorities there cited.

Error is assigned upon the refusal of the court to grant contestant’s twentieth request to charge, as follows :

“I instruct you that it is undisputed in this case that in the circuit court for the county of Calhoun, in chancery, after the death of Oliver Barney, a decree was made determining that Fred W. Barney was the legal owner .of the real estate mentioned in the alleged will, and the proponent, Oliver William Barney, having been made defendant in that cause, said Oliver William Barney is now estopped by said decree to claim any rights under the alleged will, and you should set the same aside.”

In connection with this request, it is the contention of the contestant that the decree in the chancery cause wherein Fred W. Barney was complainant, and his son, Oliver William Barney, the proponent of the will, was defendant, in which Fred W. Barney was adjudged to be the owner of the lands mentioned in the will, estops the proponent Oliver William Barney from claiming anything under the alleged- will. It should be noted that the bill of complaint in that cause avers that Oliver Barney died intestate, and that the complainant Fred W. Barney was his sole heir at law, and prays not alone that the deed from Oliver Barney to Oliver William Barney be set aside, but also that the lands mentioned in said deed be decreed to be the property of Fred W. Barney. The decree made in the cause follows the prayer of the bill and confirms the title to the said lands in Fred W. Barney. This decree was rendered before the proponent was 21 years of age. He attained his majority, however, shortly thereafter, and for nine years has permitted a decree which absolutely disposes of any possible rights that he might have in the property in question. If, as his testimony now seems to indicate, his failure to insist upon his rights in that proceeding was induced by fraudulent and untruthful statements made to him by his father, it became his duty upon reaching his majority, or within a reasonable time thereafter, to take steps to secure a reformation of that decree. His failure to do so and his long acquiescence in the decree as entered should now be held to estop him from questioning any of its terms, as was said in the case of Campau v. Van Dyke, 15 Mich. 371:

“But sound public policy and a just regard for the stability of private rights require that the solemn judgments and decrees of courts affecting the rights of property shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached after any considerable period of time, during which the parties have been allowed to rely upon them, and others may have obtained interests on the faith of them, or the evidence by which they might have been sustained has been lost. And if a party to such judgment or decree might, after any considerable period, impeach its validity without showing a proper excuse or reasonable justification for the delay; and especially when it appears probable that material evidence to sustain it may, in the meantime, have been lost, a general feeling of insecurity and distrust, very injurious to property and business, must naturally result.
“For these reasons, we think, in a case like the present, a party seeking to set aside the decree must satisfy the court that he has not slept upon his rights, and that his delay for any period after he was aware of his rights, and competent to prosecute them, has not operated to the prejudice of the- other parties, nor deprived them of any of the evidence or other means for sustaining the decree, which they might have possessed had he brought his bill at as early a period as he might. In other words, we think the only just rule which can be laid down, upon this point is that such a bill must be brought within a reasonable time, having reference to the nature and all the circumstances of the particular case."

See, also, Harlow v. Iron Co., 41 Mich. 583 (2 N. W. 913); Birdsall v. Johnson, 44 Mich. 134 (6 N. W. 226); Douglass v. Douglass, 72 Mich. 86 (40 N. W. 177); and Corby v. Trombley, 110 Mich. 292 (68 N. W. 139).

The judgment should be reversed, and no new trial granted.

Moore, J., concurred with Brooke, C. J.

Ostrander, J.

The only question for court and jury in this cause was: Is the will proposed the last will of the testator? The trial court so ruled. In Frazer v. Circuit Judge, 39 Mich. 198, it was said:

“It was held in Allison v. Smith, 16 Mich. 405, which _ discusses several considerations relevant to this motion, that the probate of every will, whether in the original or appellate tribunal, must always be single and complete in one hearing. It would be absurd to have such proceedings severed, so that a will might be held good as to one class of contestants and bad as to another. No matter how many different persons appeal, they can only raise one issue, and there can be but one trial of that issue, which is to determine the question of will or no will. That is the only issue that can be raised and the only one to be decided.”

In Re Hathaway’s Appeal, 46 Mich. 326 (9 N. W. 435), it was said:

“There is one main issue, and only one, and that is whether the paper propounded is or is not a will.”

The only thing the circuit court can do is to determine this issue and certify its conclusion to the probate court, and the only thing this court can do is to determine whether proper rules were followed in the circuit court in determining the issue. It would be singular if the probate court was to assume to decide that because of the laches of a custodian of a will, or of a legatee or devisee, it would not determine the validity of a will presented for probate; more singular if it should assume to determine that the paper propounded was a will, but that, for various reasons, the legatee, or devisee, could claim no rights under it. Neither in the circuit court nor in this court can the issue properly triable in the probate court be enlarged.

The judgment should be affirmed.

Kuhn, Stone, Bird, and Steere, JJ., concurred with Ostrander, J.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    JACKIEWICZ v. SIWKA.
    Assignments — Mortgages—Conveyance of Land Contract as Security.
    Evidence tending to prove complainant’s averments that an assignment of a land contract to defendant, by complainant’s wife, was intended as security only, held, to sustain the decree of the lower court finding the assignment was intended as a mortgage to secure a loan.
    Appeal from Wayne; Murphy, J.
    Submitted November 13, 1914.
    (Docket No. 1.)
    Decided July 23, 1915.
    Bill by Victor Jackiewicz against John Siwka and others for an accounting and other equitable relief. From a decree for complainant defendant Siwka appeals.
    Affirmed and remanded for an accounting, etc.

      August Cyrovjski, for complainant.

      Clarence P. Mulligan, for defendant Siwka.
   McAlvay, J.

The bill of complaint in this case was filed, praying that a certain assignment of a land contract made by complainant’s wife to defendant Siwka be decreed to be a mortgage, and for an accounting with said defendant, and that upon payment of the debt due him said mortgage be decreed to be discharged; also that a certain assignment of said land contract by defendant Siwka to defendants John Bugajski and Anna Bugajski, his wife, be decreed to be null and void, and that said last-mentioned defendants be required to surrender possession of the premises to complainant. The premises involved were a house and lot in the city of Detroit. Defendants Siwka and Bugajski and wife filed separate answers. To these answers replications were filed by complainant. The cause came on to be heard, and proofs were taken in open court. A decree in accordance with the relief prayed was granted complainant. Defendant Siwka has appealed.

An examination of the evidence contained in the record shows that the facts in the case, with one exception, are undisputed. We find that on May 31, 1907, complainant and Veronica Jackiewicz, his wife, purchased from George Martz the lot described in the bill of complaint for the sum of $775, and later Mr. Martz advanced $2,500 to them for the purpose of building a house thereon for complainant and wife. Joseph Jurczyk, an agent for Mr. Martz and a building contractor, erected the house on these premises, and because complainant paid only $625 of the $775, the purchase price, by agreement between the parties, on June 15, 1907, he took from Mr. Martz the land contract in question in his own name. Mr. Martz advanced also $150 balance of the purchase price of the lot to Jurczyk, and added it to the $2,500 on the contract, -making the total amount $2,650. On November 16, 1907, Jurczyk assigned this land contract to complainant’s wife. Complainant at that time was in Spokane, Wash., having gone there September 3, 1907. Shortly before this, complainant’s wife, Veronica, who had made arrangements to go to Spokane, went to defendant Siwka and asked him to let her have $100 for the purpose of obtaining transportation for herself and children to Spokane, Wash. After ascertaining that Jurczyk held this contract, Siwka asked him to transfer it, and went with him and Mrs. Jackiewicz to Mr. Martz’s office, where the transfers of this contract from Jurczyk to complainant’s wife and from her to defendant Siwka were made. This assignment to defendant Siwka appears to have been made for the nominal sum of $1. It is admitted by all the parties concerned that he paid Mrs. Jackiewicz at that time the sum of $100.

It is the claim of complainant that defendant Siwka took this assignment as security for the loan of $100, and that it was agreed he Would look after the property, and out of the rents pay taxes and repairs, interest, and principal on the Martz contract, his commissions, and apply any surplus upon the $100 received from him, and render an account of all moneys received and expended in connection with it. Defendant Siwka claims that he bought the contract outright from Mrs. Jackiewicz. A short time after she received this $100 from defendant Siwka, Mrs. Jackiewicz left Detroit with her children and joined her husband in Spokane. On December 29, 1909, at Spokane, Wash., Mrs. Jackiewicz executed and delivered to complainant, her husband, a quitclaim deed of this property. On January 27, 1910, he came to Detroit, and on the following day saw defendant Siwka, showed him this deed, and demanded a settlement and accounting. This was refused; the claim made by Siwka being that he had purchased the contract outright.

The only dispute in this case is whether or not the assignment was made to defendant Siwka as security for the loan of the $100 he furnished at the time it was made. The record is full of evidence tending to show that the agreement made between him and Mrs. Jackiewicz was as is claimed by complainant. Siwka wrote letters containing statements of account in which he acknowledged receipt of letters from her asking for such statements. He admits in his testimony that he agreed to account to her for rents received and expenses incurred. He admits that he told Mrs. Jackiewicz, if she paid him the $100 within a year, she could have the contract back, but claims that this was not in writing, and the money was not paid within that time. The evidence is overwhelming and convincing that he took this contract as security for the loan, and that his claim to the contrary is an afterthought. On February 1,1910, defendant Siwka conveyed the premises in question by land contract to defendants John Bugajski and wife for the stated consideration of $3,-000 and delivered up to them possession thereof, which continued up to and after the commencement of this suit.

It was the contention of complainant, and so found by the court, that these defendants were not good-faith purchasers without notice; that at the time they purchased under this land contract they had notice that Siwka was not the owner of these premises and should be charged with knowledge of that fact. The learned trial judge in his decision of the case went into the facts most thoroughly, and granted a decree in favor of the complainant. An examination of this record satisfies us that such conclusion is in all respects supported by the record.

The decree of the circuit court is affirmed, with costs, and the record is remanded to the circuit court for an accounting before the circuit court commissioner in accordance with the terms of said decree.

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


text:
    SUMNER v. EASTERN MICHIGAN EDISON CO.
    1. Electricity — Negligence—Evidence.
    Testimony that defendant’s arc light had remained from seven to fifteen years without any change in the rope by which it hung, that a part of the rope remained attached to the fallen light, and its normal life was only five to seven years, though contradicted by defendants’ witnesses, who gave evidence tending to establish the claim that the rope was sound and had been detached from the pole by some trespasser, held, to raise an issue of fact for the jury upon the alleged negligence of defendant corporation, resulting in injury to plaintiff’s team and harness.

    2. Same — Inspection—Pleading—Declaration.
    Though plaintiff’s declaration did not charge want of inspection or negligence in inspecting the arc light, but merely averred that the defendant wrongfully omitted to have its light so maintained that it would not descend, and to have the equipment for holding the lamp in mid air kept in good condition, etc., the trial court was not in error in charging that if the rope parted, had become so old and worn out that it broke from the weight of the lamp, plaintiff could recover, but if the accident was due to the breaking of the rope, defendant was liable unless it had duly inspected the rope and found it sound.
    3. Same — New Trial.

      Held, that the evidence supported the action of the trial court in declining to grant a new trial.
    Error to Washtenaw; Kinne, J.
    Submitted November 24, 1914.
    (Docket No. 170.)
    Decided July 28, 1915.
    Case by James B. Sumner against the Eastern Michigan Edison Company for injury to plaintiffs team and harness. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for appellant.

      A. J. Sawyer and V. E. Van Ameringen, for appellee.

       As to liability for death or injury of traveler coming in contact with electric wires in highway, see notes in 31 L. R. A. 566; 22 D. R. A. (N. S.) 1169, 1 B. R. C. 797.

   McAlvay, J.

Plaintiff brought suit against defendant to recover damages for injuries to his horses and harness caused by their coming in contact with one of defendant’s arc lamps and the electrical connections therewith lying upon the highway along which they were passing. The trial resulted in a verdict for plain-' tiff, upon which a judgment was duly entered. Defendant has removed the case to this court for review upon a writ of error.

The material facts in the case are as follows: Plaintiff was engaged in the milk business at Ann Arbor. At 5:15 in the- morning of December 25th one of his teams, with two of his employees, was being driven along South University avenue, when, turning into East University avenue, it ran into an arc lamp of defendant company, which, with its electrical connections, was lying in the highway on the ground, extinguished. The team became entangled in the live wires and was shocked, knocked dqwn, and burned, and the harness injured.

Defendant company is a public service corporation furnishing electric street lighting in the city of .Ann Arbor by a system of arc lights. One of its lamps was suspended at the street intersection in question in the customary manner upon a wire cable stretched between two poles, at the center of which, over the street, a pulley was clamped, through which ran a rope, one end of which was attached to the cut-out box over the arc lamp and the other end ran through a similar pulley fastened to the pole at the southeast corner, thence down the pole, where the end of the rope, which had attached'to it an iron ring, was hooked over an inverted iron step driven into the pole. .By unhooking the rope from the step, the lamp could be lowered for cleaning and trimming, and raised again and held in position by hooking the ring in its place. The upper end of this rope was looped to a porcelain insulator on top of the cut-out box, to which the lamp was fastened, with an iron hook. The electricity was conducted through two wires leading from the poles to the cut-out box and then by two short wires to the lamp proper. The cut-out box and lamp together were about 3 feet long and weighed about 65 pounds. The rope suspending this weight was three-eighths inch woven cotton sash cord boiled in paraffin.

There is no dispute in this case but that plaintiffs property was injured, at the time and place claimed, by reason of coming in contact with the lamp and live wires. There is, however, a sharp dispute in the testimony as to what caused the lamp to fall.

The theory of plaintiff was that the rope broke and let the lamp fall to the ground. The two employees of plaintiff, the only eyewitnesses, who were in charge of the team and wagon at the time the injury to plaintiff’s property occurred, gave testimony tending to show that the rope was broken above the lamp, and a short piece was still attached to it.

On the part of defendant there was testimony given by its employees who, at 10 o’clock that morning, replaced this lamp with another one, tending to show that this rope was not broken; that they found it sound and strong and that it was used later, and its theory was that the rope, suspending the lamp did not break; that the lamp had been unhooked from the pole and let down into the street by a trespasser.

At the close of the testimony defendant’s counsel moved for a directed verdict on the ground that the testimony did not show any actionable negligence on its part. The court, in denying this motion, ruled as follows:

“The only matter I.will submit to the jury will be the question whether, under the evidence, the defendant was guilty of negligence in the matter of this rope; that is, whether or not this accident was due to the interference of some third party or to the insufficiency of the rope. Unless there is some evidence tending to show and satisfy the jury that this rope parted while the lamp was hanging, there could be no recovery in this case. I will leave that to the jury and withdraw all other questions from the case.”

Defendant excepted to the ruling of the court in denying its motion for a directed verdict and also to the ruling of the court that the question of the sufficiency of the rope would be submitted to the jury. After arguments of counsel in the case, it was submitted by the court to the jury in a very brief charge, as follows:

“I do not think, and I so instruct you, that there is. any evidence of any negligence on the part of the defendant company, unless you find from the evidence that this accident was due to the natural parting of the rope. That is, that the rope had become so old and so worn that it parted of its own volition, or from the weight to which it was attached. Unless you so find, I think there should be no verdict for the plaintiff in this case.
“It was the duty of the defendant in this case to provide strong and sound rope and wire to securely hold the lamp in question, to furnish good pulleys properly secured, and to have the rope properly affixed to the rope (pole).
“The occurrence of the accident in question raises no presumption of defendant’s negligence, but its liability depends upon whether it exercised reasonableness in keeping the lamp properly secured and suspended; and, where an electric light company maintains lamps upon the streets for the purpose of public lighting, it is under the duty of maintaining them in a safe condition, and, if any injury occurs by the falling of a light through the negligence of the company, it will be liable therefor.
“If you find from the evidence that this accident was due to the misconduct or trespassing of a third party (that is to say, if you find from the evidence that some unknown, wanton, reckless, mischievous, or malicious person caused this accident as claimed by the defendant), then the plaintiff cannot recover in this action, and your verdict should be for the defendant. If, however, you find from the evidence that this accident was due and was caused by the natural parting of the rope from which the lamp was suspended, then I think the defendant would be liable, unless the defendant had duly inspected the rope and found it sound. Every one should have some sympathy for the misfortunes which have overtaken the plaintiff in this case, but you will bear in mind that the defendant is engaged in discharging a duty which is important to the public, and it should be fairly and honestly dealt with in your deliberations.
“If you find for the defendant, of course your verdict will be no cause of action. If you find for the plaintiff, I think, perhaps, there is no very serious dispute about the amount which he would be entitled to recover. It would include injury to the two horses, the cost of repairing the harness, and the amount for which he is liable to the surgeon. Those amounts you should include if you find for the plaintiff. If you find for the defendant you will find no cause for action.”

The jury returned a verdict for plaintiff in the sum of $300. A motion for a new trial was made by defendant and denied by the court.

We will consider the errors assigned and relied upon by appellant in the order presented in its brief. The first and second may be considered together.

(1) It is urged that the court erred in submitting to the jury the question of the sufficiency of the rope.

(2) That the court erred in submitting the question of the condition of the rope to the jury.

The testimony on the part of plaintiff, as already stated, tended to show that the rope which suspended the lamp had broken a short distance above the place where it was fastened to the cut-out box of the lamp, and the broken end, about a foot or a foot and one-half in length, was found immediately after the accident attached to the cut-out box to which the lamp was hooked. The testimony of witnesses for defendant tended to show that the rope was intact at 10 o’clock in the forenoon of the same day, when they replaced the broken lamp with another, and that the ring on the other end of the rope was detached from the hook in the pole; that it was a good, sound rope which defendant has used for the same purpose since that time; that defendant’s employees at once detached it from the fallen lamp and attached it to the new one, where it has since been used. In our opinion, to comply with appellant’s contention, it would have been necessary for the court to weigh all the evidence in the case upon the question as to whether this rope was broken with a short piece left attached to the cut-out box, or whether it was intact and the lamp had been dropped to the ground by the rope being unhooked at the pole by some unknown person. This clearly presented a disputed question of fact. It is our opinion that this was a question for the jury and not the court to determine, and that the court was not in error in submitting it to the jury under the instructions given in the charge.

The evidence in the case bearing upon the second contention is much the same as that just considered. To it may be added the statement already made that the lamp had fallen upon the ground and either the rope had broken or it had been let down by some unknown means. From other evidence in the case a fair inference could be drawn that this rope had been in constant use for about 15 years. Defendant’s foreman in charge of these electric lights in Ann Arbor, whose duty it was to take care of and superintend repairs on these lamps, testified that these ropes will wear running over these pulleys and between the irons, and that the life of the same was from 5 to 7 years. It would not be an unreasonable conclusion to be drawn from the evidence in this case that the continuous use of a three-eighths inch woven cotton paraffined window sash cord for this purpose, exposed to wind and weather and bearing a continual strain of 65 pounds, would outlive its usefulness within that length of time. This was also a question of fact to be submitted to the jury.

Appellant’s third .contention relates to the matter of inspection. The only reference by the court to the matter of inspection is contained in the charge, as follows:

“If, however, you find from the evidence that this accident was due and was caused by the natural parting of the rope from which this lamp was suspended, then I think the defendant would be liable.”

The question of fact as to whether this rope broke and let the lamp and its attachments fall to the ground was properly submitted to the jury and has been de-. cided against the contention of appellant.

The excerpt just quoted from the charge of the court indicates that, in the opinion of the court, reasonable inspection of these appliances by the 'defendant was necessary in this case in order to relieve it from liability.

It is- contended that plaintiff has not relied in his declaration upon the failure to properly inspect this rope, and therefore cannot recover on that ground. The declaration charges acts of negligence in that the defendant wrongfully omitted “to have said electric lamp so maintained and kept that it could not come down and .become an instrument of danger to those who happened to pass under it,” and, further, “to have the equipment for holding said electric lamp suspended in mid-air kept in good condition and repair so that persons and animals could pass under it in safety and without risk of injury/’ and the case was tried upon these propositions. There is evidence in the record tending to show that no careful inspection of these ropes had been made by defendant’s employees for the space of 12 or 15 years.

The court charged and instructed the jury that there was no evidence of any negligence on the part of defendant company, unless it found from the evidence that this accident was due to the natural parting of the rope:

“That is, that the rope had become so old and so worn that it parted of it own volition, or from the weight to which it was attached. Unless you so find, I think there should be no verdict for the plaintiff in this case.”

The finding of the jury has already been stated, and, to find for the plaintiff, the jury could only do so by finding that the rope parted because of old age and wear and from the weight to which it was attached. This finding and verdict was warranted by the evidence in the case.

The plaintiff has not relied upon the want of inspection of these ropes by defendant in order to recover his damages for injury to his property, but the court has said to the jury:

“If, however, you find from the evidence that this accident was due and was caused by the natural parting of the rope from which the lamp was suspended, then I think the defendant would be liable, unless the defendant had duly inspected the rope and found it sound.”

In other words, that a recent inspection of the rope and finding it sound, if shown by the defendant, would relieve it from liability in this case. The court was not in error in so charging the jury as to inspection.

There remains to be considered only the contention of the defendant that the evidence was insufficient to support any verdict. This contention, with others, was the foundation for the motion for a new trial, which was denied. We have already said sufficient upon this claim and the others to show that, in our opinion, the evidence in the case was sufficient to warrant the verdict and judgment.

The judgment of the circuit court is therefore affirmed, with costs.

This opinion was prepared by Mr. Justice McAlvaY and concurred in by his Associates after his death.


author: Steere, J.

text:
    PEOPLE v. DETROIT, BELLE ISLE & WINDSOR FERRY CO.
    1. Municipal Corporations — Cities—Smoke—Evidence—Boats.
    Testimony of practical experts that no device existed that would prevent the emission of smoke from the boilers of ferry boats, disputed by certain evidence produced by the people, in a prosecution under the Detroit smoke ordinance, held, to require the court to find on certiorari that the ordinance was invalid and unreasonable as to a corporation engaged in the operation of ferry boats.
    2. Same — Nuisances—Smoke Ordinance.
    The invalidity of the ordinance, however, might not be such as to prevent future prosecutions, if a device should be invented or discovered which would operate efficiently in preventing the emission of dense or heavy smoke from marine engines.
    3. Same — Criminal Law — Nuisance.
    But the invalidity of the smoke ordinance would not preclude a prosecution against respondent or its officials for a common law nuisance if their acts warrant such a prosecution.
    4. Same — Judgments—Res Judicata.
    A former judgment of the recorder’s court of the city of Detroit finding that no sufficient smoke consumer or other means of prevention existed, is not res judicata as to the respondent’s responsibility in this prosecution.
    Certiorari to the recorder’s court of the city of Detroit; Connolly, J.
    Submitted November 10, 1914.
    (Docket No. 167.)
    Decided July 23, 1915.
    The Detroit, Belle Isle & Windsor Ferry Company was convicted of violating an ordinance of the city of Detroit.
    Reversed.

      Thomas P. Penniman (Richard I. Lawson, of counsel), for the people.

      Gray & Gray (A. W. Sempliner, of counsel), for respondent.
   Steere, J.

This case involves the validity of an ordinance of the city of Detroit relative to the so-called smoke nuisance as applied to marine practice. Section 1 of the ordinance provides:

“That the emission of dense black or gray smoke from any smokestack or chimney used in connection with any steam boiler, locomotive or furnace of any description, in any apartment house, building, boat or any other structure, or in any building used as a factory, or for any purpose of trade, or for any other purpose whatever, within the corporate limits of the city of Detroit shall be a public nuisance per se.”

Section 6 of said ordinance is as follows:

“The owner or owners of any locomotive, engine, steamboat, tug, dredge, or pile driver, and the general manager, superintendent, yardmaster, engineer, fireman or other officer or employee having in charge or control the operation of any locomotive, engine, steamboat, tug, dredge, or pile driver, within the corporate limits of the city of Detroit, who shall cause, permit or allow such dense black or gray smoke to be emitted therefrom within said corporate limits, shall be deemed guilty of creating a public nuisance and of violating the provisions of this ordinance.”

Under this ordinance complaint was filed against defendant and appellant in the recorder’s court on the 18th day of August, 1908. A motion to quash and dismiss the complaint was made by the defendant on several grounds:

(1) That in a former case in the same court the ordinance was held to be impossible of observance in marine practice and therefore invalid, and that decision was a bar to this prosecution. '
(2) That the ordinance was unreasonable and invalid because there was no known appliance which could be used upon marine boilers to prevent the issuance of smoke.
(3) Because it would destroy the value of defendant’s property, it being a practical impossibility to rearrange the equipment of the boats so as to prevent the issuance of smoke.
(4) Because the ordinance destroys the value of defendant’s property without making adequate compensation therefor, and deprives the defendant of its property without due process of law.
(5) That the Federal courts had exclusive jurisdiction to regulate the navigation of these vessels.
(6) That the ordinance and complaint declare smoke a nuisance per se, and there is no charge that defendant created or maintained a common-law nuisance.

The motion to quash being denied, proofs were taken at intervals from November 27, 1908, until February 16, 1911. This testimony related to the reasonableness or unreasonableness of the ordinance as applied to marine practice; as to what devices to prevent the issuance of smoke had been able to accomplish on boats; and the experiments of this defendant and others with devices to prevent smoke emission and their impracticability in the operation of boats. On February 16, 1911, at the close of the case, the motion to quash was again renewed for the same reasons, and for the further reasons:

(1) That the ordinance was invalid and unreasonable, because it made no allowance for smoke that must be emitted when fires were being started, cleaned, or pricked; (2) because it appeared from the testimony that there were no devices known in marine practice that would successfully prevent the emission of smoke.

This motion was denied, the defendant found guilty, and a fine was imposed.

The case is reviewed in this court by writ of error. It appears from the record that in October, 1906, a similar complaint had been lodged against the same defendant, and that on May 27, 1907, the same judge who heard the case at bar delivered an opinion, in part, as follows:

“I find, as charged in respondent’s fourth objection, that_ this ordinance is impossible of observance in marine practice. The overwhelming preponderance of evidence in this case compels me to this conclusion. Indeed, after the fiasco in the Lansdowne Case, the people seem unable to suggest any device which has even a fair record for preventing smoke in marine practice. I do not believe it would be just or reasonable to compel marine interests to experiment with every quack nostrum for smoke prevention which is exploited by promoters. In land practice, approved and successful devices are known to the engineering profession; I am convinced that none such is known in marine practice. If there was, I am confident that Frank E. Kirby would know, and tell, about it.”

Nevertheless the court on the second hearing reached a contrary conclusion. A portion of the opinion follows':

“The whole subject of the unreasonableness of this ordinance and of the possibility of complying with its mandate in the present state of the marine engineering art has been exhaustively investigated and studied for a long period of time. Witnesses of- noted scientific attainment have been produced, and their testimony is in the record. In addition to the taking of testimony, the court and counsel went to the city of Chicago in June, 1910, and personally investigated the operation of the marine plant in the dredge ‘Francis J. Simmons,’ operating off Lincoln Park in Chicago, and of the tug ‘Keystone,’ operating in conjunction with the dredge ‘Simmons.’ These marine plants were equipped with what is known as the Jones underfeed stoker. The ‘Simmons’ is engaged in sucking dirt from the bottom of Lake Michigan and pumping it through possibly a mile of pipe to the shore, where an addition is being built to Lincoln Park. The work is irregular; frequent stops being necessary.
“The personal inspection of the court was conclusive, beyond all cavil or question, that the marine plant of the ‘Francis J. Simmons’ did not emit any objectionable smoke when the underfeed stoker system was in operation; but that, when the underfeed stoker system was shut off, dense black or gray smoke was forthwith emitted from the stack, and almost immediately ceased when the underfeed stoker system was put back in operation.
“The personal observation of the court as to the tug ‘Keystone’ was to the effect that, although the Jones underfeed stoker was installed in cramped quarters, it rendered satisfactory service in preventing the emission of smoke.
“In June, 1911, counsel for the city invited the court and counsel for the defendant to inspect a similar equipment on an excursion steamer known as the ‘City of Benton Harbor,’ plying between Chicago, 111., and Benton Harbor, Mich. Through some misunderstanding, counsel for the defendant did not participate in this inspection, but counsel for the city and the court journeyed from Chicago to Benton Harbor on the ‘City of Benton Harbor,’ and personally observed the effect of the operation of the Jones underfeed stoker in that marine plant. For several miles of the journey another ship, called the ‘City of South Haven,’ which was not equipped with the Jones underfeed stoker, journeyed on a parallel course to that of the ‘City of Benton Harbor,’ and the contrast in the smoke emitted was most marked. The ‘City of South Haven’ left an enormous trail of black smoke in its wake across the lake; the ‘Benton Harbor,’ maintaining as good a rate of. speed as the ‘South Haven,’ left practically no trail of smoke in its wake.
“A review of the whole record in this case, including the testimony taken in court, the depositions taken in Chicago with reference to the dredge ‘Simmons,’ and the personal observations of the court as to the operation of marine plants equipped with Jones underfeed stokers convinces the court that the present state of marine engineering art is not such as to render impossible the prevention of objectionable smoke in marine practice.
“A similar complaint to the one now under consideration was made against this defendant some years ago, when I first came upon the bench of this court. At that time, there was no smoke-preventing equipment in marine practice that had a demonstrated efficiency, and I dismissed the complaint, believing that the ordinance was unreasonable and void at that time, in that it required an impossibility of the defendant. But I am satisfied that the development of the art since that time has been such as to make it possible so to equip a marine boiler as to prevent the emission of objectionable smoke.
“The objection that there is not sufficient room on these ferryboats to equip them with smoke-preventing devices, in my judgment, falls to the ground upon an inspection of the equipment in the cramped quarters of the tug ‘Keystone.’
“The claim that the Houden hot-air draft prevents smoke is confuted by the fact that these ferryboats, although so equipped, have flagrantly offended against the smoke ordinance in this case.
“These objections could have no weight at all in the case of People v. White Star Line Company, because their steamer "The Tashmoo’ is overboilered, and has plenty of room in which to make the proper equipment.
“The court has been at great pains, with the aid of counsel, to consider exhaustively this whole subject so that no hardship might be inflicted upon the defendants by requiring them to expend large sums of money in uncertain or experimental devices. The net result of this investigation, as I said before, is to the effect and purport that smoke prevention in marine practice has passed the experimental stage, and is now such a reasonable certainty, both as to smoke prevention and increase of plant efficiency, that this ordinance cannot fairly be considered to be unreasonable in its mandate.
“I do not consider it necessary to discuss the other objections raised by counsel as to the enforcement of this ordinance in this case, being content to rule, generally, that they are not, in my judgment, well founded. The principal objection is to the reasonableness of the ordinance, and I am constrained to hold that it is reasonable and practicable and therefore valid, and that it is the defendant’s duty to comply with it.”

Recognizing the importance of this case not alone to the owners of vessels plying upon the Detroit river within the corporate limits of the city of Detroit, but to the city of Detroit itself, we have given careful attention to the testimony introduced relative to the practicability and efficiency of the appliances used for the prevention of smoke in marine equipment in the present state of the art. We think it fair to assume that the conclusion reached by the learned judge who tried the case below was based upon his belief that the Jones underfeed stoker had reached such a state of perfection as to make its installation in marine practice feasible and reasonable, and the results to be obtained therefrom satisfactory. That testimony related to five boats, only, where such installation .had been made. It would be of no avail to set out the voluminous testimony upon this question. It is sufficient to say that to our minds it is far from convincing. In some instances it is clear that the appliance, after its installation, has been removed, and in all instances the results obtained are not left entirely free from doubt.

The expert testimony introduced upon the question, while not conclusive, strongly persuades us to the view that up to the present time no device has been invented which within the confined space available for installation in marine practice is adequate for the elimination of smoke so long as the consumption of bituminous coal is permitted. Mr. Frank E. Kirby, whose opinion seemed to have controlled — or at least largely influenced — the judgment of the court below upon the former trial, testified in the case at bar as follows:

“There is no efficient device that is known to me for the prevention of smoke in marine practice.”

Mr. Kirby is known as perhaps the most experienced designer of vessels for use on inland waters in the State of Michigan.

Prof. Frederick C. Sadler of the University of Michigan, an expert of distinction, testified as follows:,

“I do not know of any device with which a marine plant can be equipped at the present time that would operate successfully under marine conditions and eliminate the emission of smoke in the operation of the vessels on the Detroit river here and the ferry service. * * *
“Q. Will you state whether in your judgment, from the investigation and studies you have made, it is possible to construct a steamer for passenger service on the Detroit river and equip it with any device— the Jones underfeed or any other — that when so equipped will be efficient for operation and service and comply with all the government requirements for operation ?
“A. I do not know of any such device.”

Testimony to the same effect was given by the following persons: Peter McLaren, chief engineer for 20 years of the Walkerville ‘ferry line; Frank W. Stogell, superintendent of Hiram Walker & Sons, Ltd., an engineer for 15 years; Edward A. Dustin, manager of the Ashley & Dustin Steamer Line; Arthur J. Fox, of the same line, a master and pilot since 1874; J. P. Wells, of the Detroit & Cleveland Navigation Company, a marine engineer for 25 years; Winfield Dubois, a marine engineer for 35 years, with the White Star Line; James D. Stewart, a marine engineer for 20 years, and for 3 years operating a Jones underfeed stoker; Minton Sicklesteel, a marine engineer for 10 years with the Detroit & Cleveland Navigation Company; George F. Moore, an employee of the city of Detroit, and marine engineer for 15 years and engineer of the fire tug James F. Battle; and A. G. Mattsson, chief engineer of the Great Lakes Engineering Works.

It is perhaps worthy of note that the fire tugs James F. Battle and James R. Elliott, belonging to the city of Detroit, and operating upon the Detroit river, are not equipped with either the Jones underfeed or any other smoke consuming device.

Taken in its entirety, we are convinced that the testimony as to the impracticability of the Jones undeiffeed in marine practice fairly sustained the position of defendant.

We do not think it can be said that the earlier opinion of the recorder’s court is res judicata of the question; nor should the conclusion reached in the case at bar be regarded as a bar to a future action under the ordinance, if, in the advance of the art, appliances are invented which in marine practice are efficient and practical. Nor is it to be deduced from this opinion that the defendant or other offenders may not be held liable as for the creation of a common-law nuisance if their acts warrant prosecution therefor.

Having reached this conclusion upon a point controlling of the issue, it is unnecessary to consider the other questions raised by the appellant.

The judgment is reversed.

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

The late Justice McAlvay took no part in this decision.


text:
    TONKOVITCH v. INDIANA MINING CO.
    1. Master and Servant — Appeal and Error — Evidence—Presumptions.
    Odl writ of error to review a verdict and judgment for defendant under the direction of the trial judge, the evidence must be considered in the light most favorable to appellant, who is entitled to have any legitimate inferences drawn in his favor.
    2. Same — Set Screws — Proximate Cause.
    Evidence, in an action for injuries sustained by a servant while engaged in oiling machinery in defendant’s factory, yield, to present an issue for the jury, whether his injury resulted from an unguarded set screw striking his hand, forcing it against the revolving saw.
    3. Same — Burden—Evidence.
    He was not required to exclude the possibility that his injury might have occurred in some other way, but was entitled to recover if his proofs satisfied the jury, by a fair preponderance of the evidence, that it took place as he alleged and claimed.
    Error to Ontonagon; Cooper, J.
    Submitted November 16, 1914.
    (Docket No. 53.)
    Decided July 23, 1915.
    Case by Joseph Tonkovitch against the Indiana Mining Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Le Gendre & Driscoll, for appellant.

      Allen F. Rees (Deen L. Robinson and A. E. Petermann, of counsel), for appellee.
   Steere, J.

Plaintiff, a native of Croatia, 31 years of age, by trade a mason, was injured on August 16, 1911, while engaged in oiling machinery in defendant’s sawmill near its mine in Ontonagon county. Imputing his injuries to defendant’s negligence, he instituted this action to recover damages therefor in the circuit court of said county, where the trial resulted in a judgment for defendant upon a directed verdict.

Defendant was developing and operating a copper mine, called the “Indiana,” and as an adjunct built and equipped a sawmill close by, used and managed in connection with the mine. The general superintendent was a Mr. Bennett, who hired plaintiff at Houghton and sent him to the Indiana mine location to work at plastering a shaft and other mason work. After working for a short time as a mason upon the shaft, he was informed conditions were such that this work must wait until frost came in the fall, when they would start again, but in the meantime he could have other employment around the location. This he accepted and was put at common labor, with occasional short jobs of mason work. Among other things, he assisted the carpenters in their work upon this sawmill, where he was injured, which was in process of construction, and also in installing some of the machinery in it, including the engine. One Gilbert Mead, the foreman machinist and master mechanic at the mine, was superintending the erection of the sawmill. He had full charge and control of all machinery and men employed in that connection, with power to hire and discharge them. It was his general duty to look after, install, and keep up the machinery of the company, see that it was in proper condition and reasonably safeguarded for those operating it under his directions, instruct them how best and most safely to do their work, and to warn them of special dangers connected with their employment.

While helping in its construction, plaintiff had been under Mead’s orders, and, when the mill was ready to start, Mead directed him to go to work there as oiler and watchman of the machinery; one of his assigned duties also being to start and stop the engine, which, supplied with steam from the main boiler house, only required opening and closing a valve. Plaintiff at first demurred, stating that he was not an engineer, had no experience in working around machinery, and knew nothing of it, but, on assurances and a promise by Mead to instruct him, he acquiesced. Mead in that connection testified plaintiff was subject to and bound by his orders, and he put him at this work, as he had authority to do. The mill was first operated on the afternoon of August 15th. After starting it, Mead showed plaintiff how to oil the machinery and turn the valve to stop and start the engine. There were at least 10 different places where the bearings required oiling. Mead testified that he showed plaintiff how to oil one bearing at a place where it was not dangerous to oil while the machinery was in motion, and also said in part:

“I told him to stop the engine and oil the bearings and not go in around the belts while she was running. * * * At some of these places it was not dangerous to oil while the machinery was running, and at others it was dangerous. * * * I didn’t tell him not to oil the bearings while the machinery was in motion. I told him not to go in among the belts while the engine was running. I didn’t tell him anything about the oiling of that box (where plaintiff was injured). I never spoke about that. I told him not to go in behind the belts. * * * I knew he was inexperienced in working around machinery. * * * I admit that it was dangerous to oil at the particular place, where plaintiff was injured, while the machinery was running.”

Plaintiff testified that, in answer to his inquiry, Mead told him not to stop the machinery to oil up as it would take too much time, but to do the same way as he (Mead) did, and then oiled the machinery himself while it was running, showing plaintiff “everyplace to oil all around,” but gave no warning of any particular danger; that plaintiff oiled the machinery that afternoon, but in the morning, when Mead started the mill, told him that he had no experience at that work and did not wish to stay, and Mead said, “Go down there and stay until we find an experienced man in your place,” and again oiled the machinery while it was running to show him how and where. Plaintiff 'thereupon remained until he was injured, about three hours later, while oiling a bearing Delow the floor of the mill in a confined and poorly lighted place near a circular saw projecting partly below the floor. Mead states it was not very light anywhere in that place, but light enough to see the bearing and place to oil; and to get there it was necessary to crawl around behind or in front of the engine. The place to stand in while oiling was narrow with a bank of earth on the left and a belt on the right, with a large fly-wheel nearby. The circular saw coming through the floor was 12 inches from the shaft, the bearing of which plaintiff was oiling, and 3 or 4 inches to one side of a set screw projecting about three-fourths of an inch out of this revolving shaft. The fly-wheel, belt, saw, set screw, and shafting were not safeguarded in any manner. Shortly before the accident, Mead came down from the mill above and asked plaintiff if he had “oiled it up,” and, being answered that plaintiff had just done so, told him to go around again and oil up the machinery “and watch him good.” Plaintiff, in obedience to this order, started around to oil the different bearings again and, at the place of injury just described, while in the act of oiling the bearing, his left hand was thrown against or came in contact with the saw and was seriously injured, causing the loss, in part or in whole, of three fingers. Plaintiff Was alone when the accident occurred, and his testimony was to the effect that something, he could not tell what, struck his hand and threw it against the saw.

While plaintiff’s declaration alleges numerous duties ■and breaches of duty on the part of defendant, including failure to countersink or otherwise guard the set 'screw which projected from the revolving shaft, both in his counsel’s opening statement and during the progress of the trial the proximate cause of injury was claimed to be the set screw striking plaintiff’s hand while he was busy oiling the adjacent bearing and causing it to come in contact with the saw.

The only direct testimony to the circumstances of the accident was necessarily that of plaintiff, no one else being present, and he did not testify in exact language that the set screw caused the injury. He testified that he then had no knowledge of any set screw being there, did not know what a set screw was, and only knew something struck his hand.

At the conclusion of the evidence, defendant’s counsel moved for a directed verdict in its favor on thé ground that plaintiff’s testimony failed to show directly or by any permissible inference that his hand came in contact with this set screw, that the proximate cause of the injury was mere conjecture, and no prima facie case was made. This motion was at first denied, but subsequently granted; the court in directing a verdict saying, in part:

«There is no inference that the jury could draw to the effect that his hand was caught by the set screw or shaft; and inasmuch as counsel say they must rely on that to recover, and inasmuch as the plaintiff swears positively that his hand did not catch in the shaft or set screw, there is certainly nothing which could form a basis for a verdict in favor of plaintiff. He is very positive at all times that his hand remained as illustrated, from 6 to 8 inches or more from the shaft or set screw. He is very positive that his hand did not get any closer than that.”

We have searched the record in vain to verify the statement that plaintiff swears his hand did not catch in the shaft or set screw. His repeated and consistent answer was that, while standing close to the shaft oiling the bearing, something hit his hand, and it went against the saw. While those present at the trial might have gathered from his illustrations impressions varying from those conveyed by his evidence found in the record, his proximity to the shaft when the accident occurred is clearly, upon the record, a question of fact. He was examined and cross-examined at length upon the subject. The following excerpts from his testimony well serve to indicate the tenor of his answers:

On direct:

“Q. Where was your hand with reference to the set screw at the time your hand was struck when you were injured?
“A. I held my hand like that. I had the oil can in this hand (indicating).
“Q. How close would your hand be to where the set screw was ?
“A. It must be pretty close, because there isn’t much space. * * *
“Q. When you said you had to go there like that, you indicated sideways?
“A. Yes, sir. That is the way Mr. Mead showed me how to oil that place, and I just do it the way he did himself. T did not know there was a set screw there at any time before I was hurt. I did not know there was anything there on or around the shaft that would be liable to strike my hand and knock it against the saw. * * *
“Q. About where did that thing strike you when your hand was knocked against the saw when you were hurt?
“A. About in here (referring to outside of left hand). I don’t remember just exactly how my fingers were at that time. I didn’t know of any better or safer way of doing the work than the way in which I was doing it at that time. * * * It ain’t very light. You have got the light only from one way.”

On cross-examination:

“It was while oiling in that way that my hand got caught. I was oiling and standing like that (indicating). Something struck my hand like that (indicating) . My right hand like that (extending right hand). My left hand was down alongside of me, hanging down alongside of my body. Then my hand got struck by something. * * * My right hand ain’t very far from my left hand, I guess. I don’t know if it is a foot. I can’t remember. I was facing this shaft that was running there. I was facing it squarely. The right side of my body wasn’t any farther away from it than the left. My left hand was hanging down in front of my body, and my right hand was extended to oil the shaft. * * *
“Q. Stand up next to the railing and put your hand out about the way you were, so that we can tell.
“A. I don’t remember exactly, but I know it was close to the shaft.
“Q. Suppose the top of this railing was the shaft; now stand, up and show how you were oiling the shaft.
“A. I oiled it up. I don’t know whether I held my hands way down, but I know I was close to the shaft. * * * I was standing like that when I oiled up (indicating by standing up near railing). I was close to the shaft.
“Q. About as close as you are now?
“A. Yes, I was close to the shaft. * * *
“Q. You were about 6 or 8 inches from the shaft?
“A. I can’t tell you exactly.
“Q. That is about the way you are now?
“A. Something like that. I can’t tell you exactly.
“Q. Couldn’t you stand back farther and oil the shaft? * * *
“A. There is no place to stand back. There is a pretty small place to stand. * * *
“Q. You were standing right in front of the shaft?
“A. Yes, close to the shaft. * * * ”

During his grilling cross-examination plaintiff plainly and repeatedly stated he did not know and dedined to venture any positive assertion as to just how far he was from the shaft, but reiterated that he was dose to it. He was engaged about his work oiling a bearing of that revolving shaft containing a set screw of which he was ignorant, within 3 or 4 inches of the bearing, while the circular saw of which he knew was a foot away. That he moved more or less while at his work and in avoiding proximity to the saw, a known danger, he kept closer to the shaft and revolving set screw, an unknown danger, is a natural conclusion in harmony with his testimony. In Hackett v. Manufacturing Co., 101 Mass. 101, it was said:

“It can hardly be expected that workmen will not move a little while they are engaged about their work; and, if they are exposed to danger from defective machinery of which they are unaware, the question is whether they were in a position such as, without carelessness, they might be reasonably and naturally expected to occupy, and not improper for a person so employed. This is a question of fact, under all the circumstances of the case, and not of law.”

Upon the grounds stated by the court in taking the case from the jury, we think plaintiff’s testimony is at least susceptible of a different interpretation than that given it by the court, and therefore should have been submitted to the determination of the jury. Stevens v. Pendleton, 85 Mich. 137 (48 N. W. 478).

We think the evidence puts the question of proximate cause, as claimed by plaintiff, sufficiently within the bounds of reason and common experience to demand its submission to the jury.. In entering upon that inquiry, we start with abundant direct evidence of negligence on the part of defendant in .failing to take proper precautions for guarding this machinery against the danger which confronted plaintiff and which would naturally result in such an injury as occurred, as also failure to sufficiently instruct and warn an ignorant and inexperienced employee. A verdict having been directed against plaintiff, the evidence must be considered in the light most favorable to him and all legitimate inferences, from it drawn in his favor.

The fact not directly testified to and sought to be established as the proximate cause by circumstantial evidence is that the set screw struck, his hand and caused it to come in contact with the saw. It is fairly shown that he naturally would stand closer to the set screw than the saw. He knew the danger of the latter and did not know of the former. Mead testified they were the two things which might strike his hand while oiling. He states in that connection:

“I knew he was inexperienced in working around machinery. * * * That machinery, when it revolves, revolves, pretty fast, so that, when the shaft was revolving, the set screw wasn’t visible. You couldn’t see it. That is a fact. And if the set screw struck his hand it would be liable to knock his hand against the saw. It is liable to injure him. It is liable to knock his. hand against the saw. * * * The set screws can be countersunk. When they are countersunk they are not as liable to strike the hands or clothing of persons, as when they stick out. * * * It was entirely practicable to put in a countersunk set screw at that place. * * * There was nothing else around that place to strike a person’s hand but the set screw and the saw. * * *
“Q. The saw was. some distance away?
“A. Yes. (Witness elsewhere testified 12 inches.)
“Q. There was nothing near the shaft but the set screw to strike the person’s hand?
“A. No, sir.
“Q. When the set screw did strike a person’s hand it would strike pretty hard; it was going pretty fast and it would strike it a pretty hard blow?
“A. I should naturally think it would, although I was never struck. * * * If it struck him it might drive him in any direction.”

This is not a question of whether the trial court drew a proper inference, or what inference should be drawn from the circumstances in proof, but whether the jury as intelligent men, reasoning from the evidence to a conclusion upon the ultimate fact.for them to decide, might legitimately conclude from all the facts and circumstances proven that the injury occurred as plaintiff alleged and claimed at the trial. Mumma v. Railway Co., 73 N. J. Law, 653 (65 AtL 208).

In Lunde v. Packing Co., 139 Iowa, 688 (117 N. W. 1063), the court said upon the question of proximate cause that a plaintiff “is not bound to exclude the possibility that the accident might have happened in some other way, for that would be to require him to make his case beyond a reasonable doubt. He is only required to satisfy the jury, by a fair preponderance of the evidence, that the injury occurred in the manner he contends it did” — citing numerous cases, including Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081), where this court stated the rule in different, but equally plain and strong, language.

We are satisfied, from a review of the evidence in this record, that whether plaintiff’s theory of the inferences to be drawn from it as to the main fact is the correct one was a question for the jury.

The judgment is accordingly reversed, and a new trial granted.

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

The late Justice McAlvay took no part in this decision.