author: Grant, J.

text:
    STATE BANK OF ST. JOHNS v. McCABE.
    1. Bills and Notes — Liability of Indorser — Waiver of Demand and Notice.
    Failure to demand payment of a note and to give notice of nonpayment is waived by a subsequent promise by the indorser to pay the note, made with full knowledge of the facts releasing him from liability.

      % Same — Evidence—Burden of Proof.
    The burden of proof to show such knowledge is upon the plaintiff in an action on the note, but positive or direct evidence of knowledge is not necessary.
    3. Same — Unanswered Letters — Acquiescence.
    Statements contained in unanswered letters written to defendant by plaintiff relative to promises to pay the note are not evidence of acquiescence by defendant in the truth of the statements.
    4. Same — New Promise — Maker’s Estate — Assets.
    It was competent for plaintiff’s officers, who made the arrangement with defendant, to testify that they relied upon his promise to pay the note if the assets of the maker’s estate were insufficient, and, in reliance thereon, presented the claim against the maker’s estate.
    5. Same —Premature Commencement of Suit —Testimony of Administrator.
    Plaintiff’s evidence being that defendant had promised to pay the note if the assets of the maker’s estate were insufficient, testimony of the administrator that there were no assets to pay any of the debts of the estate was sufficient to show that the action was not prematurely brought.
    •6. Banks and Banking — Deposits — Trust Funds — Individual Indebtedness.
    Where a bank deals with a depositor as a trustee, and recognizes funds standing in his name as trust funds, knowing them to be such, it cannot appropriate them to the payment of the trustee’s individual indebtedness to the bank.
    7. Same.
    A bank is not bound to assume that a deposit standing in the . name of its debtor as “trustee” is the individual property of such debtor.

      Error to Clinton; Stone, J.
    Submitted November 17, 1903.
    (Docket No. 117.)
    Decided January 26, 1904.

      Assumpsit by the State Bank of St. Johns against Houston D. McCabe on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    This suit is based upon a promissory note, payable on. demand, for $700, dated December 30,1898, made by J. H. Fedewa to the order of the defendant, and indorsed by him. The declaration contained three special counts besides the common counts. Upon the trial the court limited the cause of action to that stated in the special counts. With the general issue, defendant gave notice (1) that he received no benefit from the note; (2) that he became released as indorser because of the failure to demand payment within a reasonable time, and that on three occasions plaintiff had received interest and extended time without defendant’s consent. Plaintiff gave evidence to prove the following facts: The execution and delivery of the note; the death of the maker, Fedewa, January 27, 1901; that the defendant, the day after Fedewa’s death, stated that he was on this note, and that he had it secured; that about two weeks afterwards defendant had a conversation with the president and cashier of the bank, in which defendant admitted his liability upon the note; that he wanted the claim presented against Fedewa’s estate, and that, if there was not sufficient in the estate to pay it, he would; that it was agreed that the bank would present the claim, and wait until it was satisfied there was nothing in the estate; that the claim was filed against the estate, and was allowed; that in April, 1902, it was demonstrated that the estate was insolvent; that it had no assets with which to pay the debts; that on April 14th, the same year, the cashier wrote defendant, informing him of his promise, and that the estate was insolvent, and requested payment; that to this letter defendant made no reply; that two other similar letters were written by the cashier, on April 25th and May 27th, respectively, to which he made no reply. Thereupon this suit was instituted. The court, when the plaintiff had rested its case, directed a verdict for the defendant.

      Lyon & Moinet, for appellant.

      Norton & Looting, for appellee.
   Grant, J.

{after stating the facts). Plaintiff did not seek to recover upon the liability of the defendant as an original indorser. It was conceded that at Mr. Fedewa’s death the defendant had been released as an indórser by the laches of the plaintiff in making demand upon the maker and giving notice to the indorser. The court, in instructing the jury, so stated. Recovery was sought on the theory of a waiver of demand and notice, and a new promise made by the defendant, recognizing his liability, and agreeing to pay if the note was presented against Mr. Fedewa’s estate, and its assets were insufficient. The court directed a verdict upon the ground that such new promise must be made with full knowledge of the facts which operated to release the indorser, that the burden of proof was upon plaintiff to show such knowledge, and that the plaintiff- had failed to show it.

It is conceded that failure to demand payment and give notice is waived by a subsequent promise by the indorser to pay the note, when he makes such promise with full knowledge of the facts. Porter v. Hodenpuyl, 9 Mich. 11; Newberry v. Trowbridge, 13 Mich. 263; Parsons v. Dickinson, 23 Mich. 56; Perkins v. Cheney, 114 Mich. 567 (72 N. W. 595, 68 Am. St. Rep. 495); Loose v. Loose, 36 Pa. St. 538. See Schierl v. Baumel, 75 Wis. 69 (43 N. W. 724); Low v. Howard, 10 Cush. 159. The same principle was enunciated in Sutton v. Beckwith, 68 Mich. 303 (36 N. W. 79, 13 Am. St. Rep. 344), where it was held that the maker of a note purchased in. reliance upon his statement that it was all right was estopped to assert its invalidity. See, also, Robinson v. Barnett, 19 Fla. 670 (45 Am. Rep. 24), and Continental Nat. Bank v. Nat. Bank of Commonwealth, 50 N. Y. 575. The instruction that the burden of proof was upon the plaintiff is correct, and we do not understand that plaintiff’s counsel contend to the contrary. There was evidence, however, from which the jury might find that the defendant knew the facts. He certainly knew that he had not received notice of demand and nonpayment, and that the note was unpaid, because immediately after the maker’s death he stated that he had it secured, and asked plaintiff that it be presented against the maker’s estate. The cashier testified that he and the .defendant, at the time of the alleged promise, went over all Mr. Fedewa’s indebtedness to the bank, and especially this note. Fed’ewa and defendant were near neighbors and intimate friends, and frequently visited each other. Positive or direct evidence of knowledge is not necessary. Newberry v. Trowbridge, supra.

The court properly excluded those portions of the three letters written by the cashier to the defendant stating the promise claimed to have been made. The authorities make a distinction between statements made orally and those contained in letters which are unanswered or not acted upon. In the former case, the party to whom statements hostile to his interest are made may with much reason, be required to contradict, or be held to acquiesce in, their truth. In the latter case, he is not called upon to go to the trouble and expense of writing a denial, and silence cannot be construed into acquiescence in the truth of the written statements. Com. v. Eastman, 1 Cush. 189, 215 (48 Am. Dec. 596); Learned v. Tillotson, 97 N. Y. 1, 9 (49 Am. Rep. 508); Fairlie v. Denton, 3 Car. & P. 103; Canadian Bank of Commerce v. Coumbe, 47 Mich. 358 (11 N. W. 196). Those portions of the letters notifying him of the insolvency of the estate and requesting payment were admissible. #

It was competent for the officers of the bank who, made the arrangement with the defendant to testify that they relied upon his promise, and in reliance thereon presented the claim against the maker’s estate.

Counsel for the defendant insist that the action was prematurely brought, because the estate of Mr. Fedewa was not closed when it was brought. The testimony on the part of the plaintiff was not that the estate should be closed before defendant should be called upon, but that he wanted the estate exhausted, and, if there was not sufficient to pay, then he would. Plaintiff gave testimony from the administrator that there were no assets in his hands with which to pay any debts of the estate. Undeplaintiff’s' statement of the agreement and of the condition of the estate, it had established a case upon this point.

One more point, in view of a new trial, remains to be disposed of. It was developed upon the trial that plaintiff had a deposit account standing in the name of “John H. Fedewa, Trustee,” during the period of the existence of this note. The claim of the defendant is that the bank had a lien upon this deposit; that it was its duty to consider the note in the nature of a check, and appropriate enough of the deposit funds to pay it; that, failing to do this, the indorser is discharged. Whether it would have been the duty of the bank to apply the .personal deposits of Mr. Fedewa, when it became due, we need not consider. The authorities seem to agree that deposits made prior to maturity cannot be held to meet the note when it matures, and also that deposits made after maturity do not affect the liability of the indorser. Only when the maker of the note has funds on deposit at the date of maturity may the bank treat the fact that the note is made payable at its bank in the nature of a check, and charge it up against the maker’s deposit. Mr. Fedewa had no account standing in his individual name. The authorities are not agreed as to the legal duty of the bank in cases of individual- deposits. Eaton & Gilbert, Com. Paper, § 106. Granting that plaintiff was, in law, obligated to apply individual deposits of Mr. Fedewa to the payment of the note, was it obligated to assume the responsibility of determining at its peril that the deposits in the name of Mr. Fedewa as trustee were his own ? If the bank knew that these were trust funds, and that they belonged to others, clearly it could not appropriate these funds in payment of a debt due to it. No authority cited in behalf of' defendant so holds. Among the cases cited by the learned counsel to support their contention are Fox v. Citizens Bank & Trust Co., (Tenn.) 37 S. W. 1102, 35 L. R. A. 678; Metcalf v. Williams, 104 U. S. 93; Keidan v. Winegar, 95 Mich. 430 (54 N. W. 901, 20 L. R. A. 705); Thomas v. Exchange Bank of Angus, 99 Iowa, 202 (68 N. W. 780, 35 L. R. A. 379); Laubach v. Liebert, 87 Pa. St. 55; McLain v. Wallace, 103 Ind. 562 (5 N. E. 911).

In Fox v. Citizens' Bank & Trust Co. the suit was-between the beneficiaries of the notes, payable to one Anderson as trustee, and the transferee of Anderson. It was held that ‘ ‘ the fact that the notes appeared on their-face to be payable to him as trustee would put the transferee on notice, and the claim of the beneficiaries would be superior.”

In Metcalf v. Williams it is held that the addition to-the signature of the word “Agent,” “Trustee,” “Treasurer,” etc., does not release the agent from personal liability where the principal is not disclosed; the appendix being regarded merely as descriptio personen. The court says:

“But if he be in fact a mere agent, trustee, or officer of some principal, and is in the habit of expressing in that way his representative character in his dealings with a particular party, who recognizes him in that character, it would be contrary to justice and truth to construe the documents thus made and used as his personal obligations, contrary to the intent of the parties.”

Under the principle of this case, if the plaintiff dealt with Mr. Fedewa in the capacity of a trustee, and recognized the funds as trust funds, and knew that they were trust funds, certainly it could not appropriate them to the payment of Mr. Fedewa’s indebtedness to the bank. Under this claim on behalf of defendant, the bank must, at its risk, assume that its depositor is falsifying when he makes a deposit in his name as trustee, agent, treasurer, or county treasurer, etc., and assume that the property so deposited belongs to the depositor, instead of to the cestuis que trustent or principals. This cannot be the law.

In Keidan v. Winegar the maker of the note, who affixed the word ‘ ‘Agent ” to his signature, was sued upon the note. It was held that he might show in defense that the note was that of his principal, the real party to the transaction, and that the payee had knowledge thereof.

None of the other cases cited are stronger than these three. In none of them did the question here involved arise. If the defendant could show that these funds in fact belonged to Mr. Fedewa, and that the bank knew it, then the question would arise as to whether the failure to so apply the funds operated as a discharge of the indorser, and whether he waived notice and demand with knowledge of that fact.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, C. J. Grant, J.

license: Public Domain

text:
    FARR v. ANDERSON.
    1. Liquor Bond — Rejection—Arbitrary Action — Mandamus.
    Where the circuit court, on application for a writ of mandamus to compel a village council to approve a liquor bond, found, on issues framed, that the sureties offered were financially able to qualify, and that the council, in refusing to approve the bond, had acted arbitrarily and in bad faith, the writ was properly granted. Grant, J., dissenting.
    & Same — Finality op Judgment op Council.
    Under the provisions of 2 Comp. Laws, § 5386, the judgment of the council as to the sufficiency of the bond is not final, where it appears that, in refusing to approve it, such body acted arbitrarily and not in good faith. Divine v. Board of Trustees of Laheview, 121 Mich. 438, distinguished.
    3. Same — Practice.
    If the court was justified in finding that the council did act arbitrarily, it should not have directed the approval of the-bond, but should have remanded the case, with directions to-the council to meet, investigate, and pass an honest judgment upon the sufficiency of the sureties. Per Grant, J.

      Certiorari to Osceola; McAlvay, J.
    Submitted November 17, 1903.
    (Calendar No. 20,142.)
    Decided. January 26, 1904.

      Mandamus by Alta Farr to compel Thomas Anderson: and others, president and trustees of the village of Tustin, to approve a liquor bond. From an order granting the writ, respondents bring certiorari.

    Affirmed.

      B. N. Savidge, for relator.

      Gaffney & Stanley, for respondents.
   Moore, C. J.

The conceded facts in this cause are substantially as follows: Alta Farr, the relator, is the wife of R. B. Farr, and is a resident of the village of Tustin. Upon-the 4th day of May last she filed a liquor bond, regular in form, with her husband, R. B. Farr, and one O. P. Engstrom, as sureties, who qualified as required by statute. The sureties are freeholders and residents of the village of Tustin. Respondents composed the village council of the village of Tustin. They held a meeting on the 4th day of May, when the said bond was taken up for consideration, but not approved. The council held another meeting May 8th, when the bond was again given some consideration, but was not approved. Relator then applied for and obtained from the circuit court of Osceola county an order requiring the council to meet and approve said bond, or show cause to the said circuit court why it refused to do so. Upon the 1st day of June the council met and refused to approve the bond because of the insufficiency of the surety R. B. Farr, upon the following vote: Trustees Edgett, Harmer, and Lucas voting against the approval of the bond, Trustees Grummon and Toland voting for approval, Trustee Pet'tie- not being present. The council then answered the petition of the relator, giving its reasons for its refusal to approve said bond. At the coming in of the answer, the court ordered the framing of the following among other issues:

1. Has the common council acted in good faith in rejecting .the liquor bond of relator ?
2. Is the surety R. B. Farr worth in real estate situate within the county of Osceola the sum of $3,000 over and above all indebtedness, incumbrances, and exemptions from sale on executions ?

A hearing was had before the circuit judge, the witnesses appearing before him. There was testimony tending to show that the trustees had acted in bad faith, and that Mr. Farr was financially able to qualify as a surety. There was .testimony tending to show the converse of these propositions. The circuit judge found that the council had acted in bad faith, that Mr. Farr was financially qualified to be a surety, and directed that the bond be approved. His action is sought to be reviewed in this proceeding.

It is the claim of a majority of the trustees that they acted in good faith in rejecting this bond, and that there is no testimony upon which to base the finding of the court. We cannot agree with the contention of the trustees. It would not be profitable to detail the testimony, but, as before stated, there was testimony which, if believed, sustained the finding of the court that the council acted in bad faith in rejecting the bond.

It is also the claim of respondents that under the provisions of section 5386, 2 Comp. Laws, the judgment of the council as to the sufficiency of the bond is final. In support of this proposition they cite Divine v. Board of Trustees of Lakeview, 121 Mich. 433 (80 N. W. 109), and the cases therein cited. A reference to those cases will show they are clearly distinguishable from this one. In none of them was an issue framed. In this one there was. In none of them was it made to appear the board acted arbitrarily, and not in good faith. In this case it was established to the satisfaction of the circuit judge that the board acted arbitrarily. In Divine v. Board of Trustees of Lakeview, supra, it was said the court may determine whether or not the board has acted in good faith, or whether it has acted arbitrarily, in disapproving the bond. The circuit judge having found bad faith and arbitrary action, his judgment is affirmed. The question involved is one of public importance, which has not before been directly passed upon in this court. For that reason no costs will be awarded to either party.

Carpenter, Montgomery, and Hooker, JJ., concurred with Moore, C. J.

Grant, J.

(dissenting). This is a petition presented to the circuit court to compel the respondents, members of the common council of the village of Tustin, to approve relator’s liquor bond. The answer to the petition alleges that the respondents acted in good faith, and that the bond was rejected because of the insufficiency of Mr. Farr, one of the sureties. A replication was filed to the answer, and by the order of the court, against the objection and exception of the respondents, seven issues of fact were framed, as follows:

“1. Has the common council acted in good faith in rejecting the liquor bond of the relator?
“2. Is the surety R. B. Farr worth in real estate situated within the county of Osceola the sum of $3,000 over and above all indebtedness, incumbrances, and exemptions from sale on executions ?
“ 3. Was the bond of said relator referred to a committee on bonds, by the said common council, on the 4th day of May last ?
“4. Was the said bond of relator rejected by the said common council on the 4th day of May last for the reason that relator, the principal in said bond, was a woman, and could not be a principal in a liquor bond ?
“5. Did the said common council vote on a motion to • approve the said bond of relator on the 8th day of May last?
“6. Did the said common council act in good faith on said bond of relator on the 1st day of June last, and reject the same for the reason of insufficiency of the sureties thereon ?
“ 7. Did the common council determine the sufficiency of the sureties on competent evidence ? ”

All the issues were answered in favor of relator. The sole issue, in any event, for the court to decide, was whether the respondents acted in good faith in determining the insufficiency of the surety. Questions 2, 3, 4, 5, and 7 were improper. The answer of either or all in favor of relator would not determine the bad faith of the respondents in finally voting to reject the bond on the ground of insufficiency of the surety. The respondents alone, under the law, are charged with the duty to determine the sufficiency of the bond. It was for them to determine whether the three parcels of land owned by bondsman Farr were worth $3,000 over and above his indebtedness, incumbrances, and exemptions. The testimony in this case is such as to show that the value of this property was a fair question of dispute, and depended upon the judgment of individuals. There is nothing in the testimony as to values to indicate of itself bad faith on the part of the respondents. Witnesses differed as to value. Some of them for relator made the property worth $5,500. The debts, one of which was secured by mortgage upon one parcel of the land, amounted to $1,040. The homestead exemption would leave the property worth little, if any, more than the required amount, under the highest estimate. The evidence on the part of the respondents showed its value much less than that required by the statute. The assessment roll showed the value of the three parcels to be $1,450. One of the chief arguments on the part of relator to show that the action of the board was capricious and arbitrary is the value of the property as placed upon it by her witnesses. This, then, is the situation : The bondsman’s property is assessed by a sworn officer of the law at a cash value of $1,450; his indebtedness is $1,040; and yet a court or jury finds that its real value is three or four times its assessed value, and from that finds that the officers of the law acted arbitrarily. Such inquiry and determination assume a function solely conferred by the law upon the officers of municipalities. It undoubtedly is entirely proper, in determining the character of the action of the officers, to show the value of the property, and, when it is undisputed that the property is worth much more than the amount required, the court or jury may consider this in determining the question of good or bad faith. But this cannot be used as evidence of bad faith when there is a fair dispute as to the value of the property, and that is this case. The duty to make that determination is with the officers.

It was said in the majority opinion in Parker v. Board of Trustees of Portland, 54 Mich. 308 (20 N. W. 55), that:

“This duty necessarily invests the board with large discretionary power. The things which will create a •liability on the bond, if they ever exist, are to arise in the future; and it is to guard against these future contingencies, and to secure future responsibility for an injured party where a breach occurs, that the bond is made to provide. It will be noticed that the statute not only requires, that the sureties shall justify, but that the sufficiency of the bond shall be determined by the board, which evidently includes something more than simply ascertaining the amount of property the sureties are worth.”

In an opinion written by the late Justice Long, and concurred in by the entire court, it was said that this duty “ is something more than ministerial; it is the exercise of judgment and discretion.” Amperse v. Winslow, 75 Mich. 234 (42 N. W. 823). This judgment and discretion cannot be taken away by a finding of a court or jury that the property is in fact worth enough to justify the bond.

The officers are not bound by the evidence, competent or incompetent, that is produced before them. They may investigate themselves, and exercise their own knowledge and judgment as to the value of the property. The respondents in this case knew the property, and were competent to determine its value. The examination to be made by these officers does not require the consideration only of “competent evidence,” according to the rules of evidence in a suit at law, yet that seems to be the requirement of the seventh question. It was said in Palmer v. President, etc., of Village of Hartford, 73 Mich. 96 (40 N. W. 850):

“They [the president and trustees of the village] may investigate the facts for themselves, using their own knowledge, or any other evidence that may satisfy them upon the question.”

It was wholly immaterial whether this bond was referred to a committee of the council, or whether it was once rejected for the reason that the principal was a woman, and therefore disqualified to carry on a saloon. Men unfamiliar with the statute might very naturally and properly raise this question. The fact that the respondents raised it — and I find no evidence that it was raised in bad faith — does not determine their bad faith in after-wards rejecting the bond for insufficiency of sureties. So whether they voted on a motion to approve the bond at any other time was immaterial. This disposes of all the special issues except that as to the good faith in rejecting the bond.

The testimony in this case covers 209 typewritten pages, and a large part of it is devoted to testimony as to the value of the land. And the briefs of counsel are largely occupied with the testimony upon this question, claiming that it shows bad faith of the respondents. Where testimony taken before the board showed a value of $7,500, with debts of 1700, and there was testimony showing it much lower, this court held, speaking through Chief Justice Campbell, that it would not interfere. Wolfson v. Township Board of Rubicon, 63 Mich. 49 (29 N. W. 486). I find no case in which the course pursued by the court below in this case has before been adopted, namely, to frame issues to determine the good or bad faith of the municipal officers. In many cases we have sustained the action of the officers, in which we have said that, in the absence of bad faith and arbitrary action, their finding was conclusive. This is negative authority. The statements were not necessary to the determination of the cases. We have also held that, where there is no contention about the sufficiency of the sureties, but the officers have refused to approve the bond for other arbitrary and capricious reasons, the writ of mandamus should issue to compel approval. These cases have not determined to what extent courts may go in determining whether the officers have acted in good faith in passing upon the sufficiency of the sureties. In Divine v. Board of Trustees of Lakeview, 121 Mich. 433 (80 N. W. 109), testimony was taken before the board, and that testimony reported with the return for writ of mandamus to the circuit court. The case in many of its features is like this. There was also a return of two trustees in opposition to the return of the majority. We there said, speaking through my Brother Moore :

“ The statute does not confer upon the court the right to review the accuracy of the conclusion reached as to the financial standing of the sureties offered upon liquor bonds.”

True, it was there said that the court might determine whether a board has acted in good faith or arbitrarily in disapproving a bond. No case has yet decided that the court may determine the disputed question of fact as to the sufficiency of the sureties, even if the officers have . acted arbitrarily. If, in this case, the respondents had refused to approve the bond for the reason that the principal was a woman, could the court have determined the sufficiency of the sureties and ordered the approval of the bond, or should the court have directed them to assemble and pass an honest judgment on the sufficiency of the sureties ?

It is claimed on the part of the relator that some of the respondents made certain statements hostile to relator’s husband, One of the bondsmen, and that these statements tend to show arbitrary action on the part of the respondents. It is due to the respondents to say that they deny all such statements, both in their answer and under oath. May a court take these statements, even if found to be made, as evidence of bad faith, where there is a reasonable dispute as to the value of the property ? I think not. There is the same difference as to value in this case that there was in the Divine Case. The only difference between the two cases is that in the one case it comes before us on issues made and determined by the circuit judge, while in the Divine Case it came before the court without the intervention of framing the issues. In Bailey v. Van Buren Circuit Judge, 128 Mich. 627 (87 N. W. 890), the good faith of the township board in refusing to accept the bond of a druggist was attacked, and the relator asked an issue to determine whether the board acted in good faith. Under an answer similar to that in this case, this court denied the application to permit such an issue. The return in that case, as in this, stated that the board were willing to accept a bond if the sureties were, in their honest judgment, financially responsible.

In the case of Briggs v. McKinley, 131 Mich. 154 (91 N. W. 156), a majority of the board approved the bond of a saloonkeeper, and it was claimed by a minority of the board — the relators — that they made no investigation, and passed no honest judgment; that the principal in the bond was in fact the bartender; that the principal bondsman was in fact the saloonkeeper; and that the bondsmen did not possess the necessary financial responsibility. In that case, as in this, it was charged that the respondents used language fully as strong as in this case to indicate that they did not act in good faith in approving the bond; yet this court did not interfere.

In my judgment, the relator failed to make a case of capricious and arbitrary conduct on the part of the respondents, and the judgment of the court below should be reversed, and the petition dismissed. If, however, it should be determined that the board did act arbitrarily, I think, for .the reasons above stated, the order of the court below should have been to remand the case, and direct the respondents to meet, investigate, and pass an honest judgment upon the sufficiency of the sureties.


text:
    DERRY v. GREAT HIVE, LADIES OF THE MODERN MACCABEES.
    1. Benefit Societies — Articles and By-Laws — Claims—Tribunal — Decision—Contract.
    The provisions of the articles and by-laws of a fraternal bene-, fit association, creating a tribunal of its members to hear and determine all claims of members against it, and declaring that its decision shall be final, are valid, and form a part of the voluntary contract of membership.
    2. Same — Appeal—Acquiescence.
    Where an appeal to the supreme tribunal, consisting of 540 members, from the rejection of a claim by the great executive committee, heard on affidavits, was referred, under a law of the order, to the committee on appeals and grievances, and was determined adversely on the same affidavits, and was subsequently, without objection by the claimant, heard and determined on like affidavits by the entire body, held, that claimant had acquiesced in the proceedings, and, in the absence of a request to have the witnesses produced, could not complain in the courts. Rose v. Supreme Court, Order of Patricians, 126 Mich. 577, distinguished.

      3. Same — Hearsay Statements — Harmless Error.
    The association’s medical examiner, in an argument before the supreme tribunal, referred to statements made to her by one of decedent’s neighbors; whereupon the association’s attorney promptly advised the members that it was their duty not to consider such hearsay statements, but to determine the question upon the evidence, and in an impartial way reviewed the testimony. Held, that the error was cured.
    Error to Gratiot; Stone, J.
    Submitted November 18, 1903.
    (Docket No. 129.)
    Decided January 26, 1904.

      Assumpsit by Emma, R. Derry against the Great Hive, Ladies of the Modern Maccabees, on a benefit certificate. Erom a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.
    One Martha S. Webber, on March 21,1900, made application in 'writing for membership in one of the subordinate hives of the defendant, and for an endowment certificate for $1,000. In this application she made certain statements as to her present and past physical condition, and that she had not been attended by a physician for two years previous. She was examined by the physician of the order, and her 1 application approved by the great medical examiner, Dr. Emma E. Cook. In April following, a certificate of membership and insurance was issued to her. Upon the- 25th of November, 1901, she made application for total and permanent disability, stating that she became totally disabled on July 5, 1901. She died January 8, 1902. Proofs of death were duly made, and a hearing thereon was had before the great executive committee at various times between the 11th of March and June 4th. This committee rejected the claim. Thereupon plaintiff took an appeal, under the rules of the order, to the great hive, whose meeting was to be held June 11, 12, and 13, 1902. The appeal was referred, in accordance with the by-laws and constitution of the order, to the committee on appeals and grievances, to examine and report.
    All the affidavits (no other method of taking evidence appears to have been suggested or adopted) which were taken before the great executive committee were submitted to the committee on appeals and grievances, and one other affidavit on behalf of the plaintiff was submitted by the plaintiff herself, in which she stated that she fully explained to the examining physician the fact that her mother had had a severe hemorrhage of the nose shortly before her application, and that physicians were called to attend her. Her attorney appeared before the committee. The committee made its report to the great hive, recommending that the claim be disallowed on the ground of false representations made in the application. These affidavits were evidently reported by the committee to the great hive. The attorney for plaintiff appeared and made an argument, discussing the proofs that were submitted, and made a strong appeal for the allowance of the claim. Dr. Cook, the medical examiner, replied, and made some hearsay statements of what parties had told her. Mr. De Yere Hall, the attorney for the defendant, also spoke, and advised the members of the hive that they should not consider such hearsay statements as were made by Dr. Cook, but must determine the question upon the evidence submitted, and in an impartial way reviewed the testimony. To these arguments plaintiff’s attorney replied. The great hive then went into secret session, and, after consideration, rejected the claim. Plaintiff then instituted this suit at law, and recovered verdict and judgment.

      De Vere Hall, for appellant.

      W. A. Leet, for appellee.
   Grant, J.

(after stating the facts). The court directed a verdict for the plaintiff upon the ground that the plaintiff did not have the fair and impartial trial she was entitled to under the laws of the association. The chief reason for so directing a verdict appears to be that, in the opinion of the learned circuit judge, referring the appeal to a committee was not a compliance with its contract,. providing for an appeal to and a determination by the great bive.

There is no claim of fraudulent conduct on the part of the defendant or its officers. The judge, in instructing the jury, said that the defendant followed its usual course upon the appeal, and did not act in bad faith. The defendant’s articles of association and its by-laws provide a tribunal of its own members to hear and determine all claims against it on the part of its members, and provide that such finding shall be final. These provisions are the same that have repeatedly been before this court in similar organizations, and have been sustained. A citation of authorities is unnecessary. These provisions are fully understood by applicants, and they become members knowing that they form a part of their voluntary contract. They also understand that these hearings cannot and are not conducted under the legal rules of evidence, or with the formalities of a suit at law. The committee on appeals and grievances is provided for by one of the standing laws of the order. Section 38. Its duty is “to examine all appeals, * * * and report to the great hive the same, together with its recommendations.”

No one asked, either on behalf of the plaintiff or the defendant, to produce any witnesses, or to have them sworn, before the great hive or its committee. It seems to have been understood that the committee and the great hive were both-proceeding in the usual manner. The affidavits were many, both for and against the claim. The plaintiff submitted to the great hive and the committee the only testimony (the affidavit of plaintiff) .which was not taken before the great executive committee. This evidence was available to both sides, and it appears that plaintiff’s attorney, in his argument before the great hive, fully referred to it and argued the facts. It is true that Dr. Cook, in her argument before the great hive, in the presence of defendant’s attorney, referred to statements made to her by one of the decedent’s neighbors. This statement would, of course, have been incompetent in a court of law, and the defendant’s attorney promptly told the members of the great hive that it was 'their duty not to consider it. If these proceedings are to be controlled by the rules governing suits at law, probably not one of the hearings before these orders could be sustained. Rose v. Supreme Court, Order of Patricians, 126 Mich. 577 (85 N. W. 1073), does not control this case. That differs from this in one important and decisive particular. There the claimant on appeal, before both the judiciary board of investigation and the supreme court of the order, protested against the sufficiency of the ex parte affidavits, and asked that the witnesses be produced, and he be allowed to cross-examine them, and this was refused, while in this >case the plaintiff acquiesced in all that was done. In that case the entire proceeding was conducted without regard to fairness and justice.

The great hive consists of 540 members. Much of its work must necessarily be done by committees. He who desires to have his evidence produced in the first instance before this large body, instead of in the usual way provided by its by-laws, must ask that this course be taken before he can be heard to complain. This claim on appeal came before it in the usual method, and the one provided by its laws, and without protest or objection from any one. The beneficiary is subject to the contract made by the insured. We think the great hive had jurisdiction; that at no stage of the proceedings was jurisdiction lost; and that its action was final.

The judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Carpenter, J.

text:
    BARKER v. GREAT HIVE, LADIES OF THE MODERN MACCABEES.
    1. Benefit Societies — Claims—Tribunal—Appeal—Evidence-Ex Parte Affidavits.
    On appeal from the great executive committee to the supreme tribunal of a benefit association, it was proper to dispose of the case on the testimony before the committee; and it was not a valid objection to its allowance that it consisted of ex parte affidavits, since plaintiff, by himself using such affidavits, assented to such practice, and it was open to him to offer additional proofs.

      % Same — Denial of Hearing.
    Plaintiff having been represented by counsel,with full opportunity to examine the papers and discuss the case, the fact that the affidavits were not read, but the statements of counsel accepted, did not amount to denying plaintiff a hearing, although his counsel did not know that the affidavits were accessible.
    •3. Same — Physician’s Certificate — Objections. -
    A physician’s certificate adverse to plaintiff’s claim, not verified under oath, was read on the hearing before the supreme tribunal, the sole ground of objection being that plaintiff had a right to cross-examine the writer. -Held, that the objection was not valid, as plaintiff’s proofs were taken without affording defendant that right.
    -4. Same — Evidence.
    Where a controversy is submitted to a tribunal of the parties’ own selection, a body of delegates of several hundred in number, they may be expected to act more freely and less technically than courts and regular juries, and the only rule for the admission and exclusion of testimony is that of common fairness.
    -5. Same — Hearing—Finality of Decision.
    Testimony having been produced before the supreme tribunal by defendant as required by proper practice under its rules, and plaintiff having had a legal and fair hearing, an adverse decision was final (Derry v. Great Hive L. O. T. M. M., ante, 494); and its validity could not be affeoted by the fact that plaintiff was not afforded an opportunity to be present when-, the great executive committee disposed of the case.
    Error to Alpena; Emerick, J.
    Submitted November 18, 1903.
    (Docket No. 130.)
    Decided January 26, 1904.

      Assumpsit by Charles S. Barker against the Great Hive, Ladies of the Modern Maccabees, on a benefit certificate. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      De Vere Hall, for appellant.

      Charles B. Henry, for appellee.
   Carpenter, J.

This case is much like the case of Derry v. Great Hive L. O. T. M. M., ante, 494 (98 N. W. 23). The two cases were heard by the great hive of defendant order at the same time and in the same manner. In this case, as in that, the decision of the great hive was adverse to the claimant. In this case, as in that, the single question involved relates to the binding force of that, decision. The learned trial judge was of the opinion that plaintiff was not bound by that decision, and directed a verdict in his favor. Was he right ?

Was plaintiff bound by the decision of the great hive of the order that his claim was invalid ? When plaintiff’s appeal was discussed and disposed of by the great hive, there was before it the report of its committee on appeals and grievances, together with the affidavits upon which its great executive committee determined the case. Some of these affidavits were favorable, and some adverse, to plaintiff’s claim. With these affidavits was the unsworn certificate of a physician who had formerly attended the assured. This certificate indicated the invalidity of plaintiff’s claim. This certificate, though presented to the executive committee, was withdrawn because it was not verified upon oath. When the appeal was presented to the great hive, plaintiff was not denied a hearing. He was represented by able counsel, who was afforded full •opportunity to examine the papers and discuss the case. No witnesses were sworn. The affidavits were not in fact read. The only document which was read was the physician’s certificate, before referred to. The hearing proceeded, however, upon the assumption that the affidavits and said certificate constituted the record. They were referred to in argument, but, it must be confessed, in such language as to convey only an imperfect and erroneous idea of their contents.

It cannot be contended that it was improper to dispose of the case on the testimony introduced before the executive committee. The rule of defendant order providing for appeals to the great hive gave that body “the power to take additional proofs.” This, we think, clearly implied that it might at least consider the proof taken before the executive committee. Moreover, plaintiff, when appealing, claimed the right to ‘ ‘ present to said committee of the great hive, to whom he now appeals, the proofs, affidavits, and evidence which he presented to the executive committee, and that he be allowed to submit other and further affidavits and proofs in support of his claim” (which, it is to be observed, he did not do).

Nor can it be claimed that this proof should have been disallowed because it consisted of ex parte affidavits, as it must be held that plaintiff, by himself using such affidavits, assented to that practice. When he asked the great hive to consider his evidence of that character, he could not object to its considering opposing evidence of like character.

It is contended that it was the duty of defendant to present the proof by reading the affidavits, and that, because it failed to do so, plaintiff did not have the hearing to which he was entitled. This contention is based upon the language of this court in Rose v. Supreme Court, Order of Patricians, 126 Mich. 581 (85 N. W. 1073), where it was said:

“ The claimant is entitled to produce his testimony-before the entire court, and not before the committee thereof, and it is the duty of the defendant to there produce its testimony against the validity of the claim.”

It was not meant by the statement, “It is the duty of the defendant to there produce its testimony against the validity of the claim,” that the defendant should produce testimony in any other or different way than that required by proper practice under its own rules. In that case it was decided that the decision of the supreme court of defendant order was not binding because it did not give» the claimant the hearing he was entitled to receive., Indeed, an inspection of the record proves that he was denied a hearing by said supreme court.

We cannot agree to the proposition that plaintiff was denied the hearing to which he was entitled because the affidavits and other proofs were not read to the delegates of defendant’s great hive. It was clearly the duty of the representatives composing the great hive to acquaint themselves with the case before them, but it was equally the duty of counsel to present that case. The delegates, might obtain their information either by reading the affidavits or by listening to counsel’s statement. We cannot-say that they failed in their duty because they chose the latter course. Indeed, that is the choice which one would naturally expect them to make. If they did not get from counsel’s statément full information about the case, if it-conveyed to them improper notions, we cannot say that-they alone were responsible. Nor is it an answer to this, suggestion to say that plaintiff’s counsel did not know that these affidavits were accessible. This ignorance was. ' not justly chargeable to defendant. If it is true that the jurisdiction of the great hive depended upon the reading-of the affidavits, it would be difficult to uphold its jurisdiction if it failed to understand those affidavits, or if it failed to correctly decide the issue raised by them. In other words, if the argument of plaintiff now under consideration is sound, it is the duty of the courts to determine-whether the tribunal to which the parties submitted their controversy reached a correct result. It is settled that the courts will assume no such duty. Brush v. Fisher, 70 Mich. 469 (38 N. W. 446, 14 Am. St. Rep. 510).

Was the determination invalid because there was read to the delegates the unsworn physician’s certificate, withdrawn from the executive committee ? It is claimed, as we understand plaintiff’s brief, that, when this certificate was presented, counsel for plaintiff objected to its consideration. This objection was not based on the ground that the certificate was not verified by oath, nor on the ground that it was not a part of the proofs taken before the committee, but upon the ground that he had a right to cross-examine the writer. In view of the fact that plaintiff’s proofs were taken without affording the other side that right, this objection was not well taken. Moreover, as stated in Derry v. Great Hive L. O. T. M. M., supra, it is not to be supposed that in this hearing before the great hive strict regard will be paid to legal rules of evidence. It has been said of awards like that under consideration :

“ They are made by a tribunal of the parties’ own selection, who are, usually at least, expected to act. on their own view of law and testimony, more freely and less technically than courts and regular juries.” Port Huron, etc., R. Co. v. Callanan, 61 Mich. 26 (34 N. W. 678).

I think it not too much to say that it is necessarily implied from the submission of the controversy to this great hive, a body of lay delegates several hundred in number, that the only rule for "the admission and exclusion of testimony is that of common fairness. Such a method of procedure is not disadvantageous to the claimant. If it results, as it may, in a decision in his favor, the insurer society is bound' by it. This arrangement would be one-sided and unfair if it did not bind him when it results, as in this case it did, in an adverse decision.

There is not involved in this case, as there has been in other cases (see Fillmore v. Great Camp K. O. T. M., 103 Mich. 437 [61 N. W. 785], and cases there cited), the validity of the agreement between the parties to this suit to submit their differences to arbitration. They not only made such an agreement, but they actually did submit their differences to arbitration, and obtained an adjudication. The question involved in this suit relates not to the validity of the agreement for submission, but to the binding force of the adjudication. If arbitrators, after having given the parties the hearing to which they are entitled (see Miller v. Hoffman, ante, 319 [97 N. W. 759]), make a good-faith determination of the question submitted to them, their decision is binding. See Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78); Brush v. Fisher, 70 Mich. 469 (38 N. W. 446, 14 Am. St. Rep. 510); Port Huron, etc., R. Co. v. Callanan, 61 Mich. 26 (34 N. W. 678). We have already shown that plaintiff cannot claim that he did not have the hearing to which he was entitled, and there is no evidence whatever of lack of good faith.

Complaint is made that the first committee, viz., the great executive committee, did not afford plaintiff’s counsel the opportunity of being present when it finally disposed of the claim. As counsel had been heard fully prior to this, we doubt his right to be present when the decision was announced. The committee had a right to suppose from his communications that he did not expect to be present. And if the plaintiff had, as we have determined he did, a legal and fair hearing before the great hive, the validity of its decision cannot be affected by irregularities of this character.

The judgment of the court below must therefore be reversed, and a new trial granted.

Moore, C. J., Grant and Montgomery, JJ., concurred. Hooker, J., did not sit.


author: Moore, O. J.

text:
    PEOPLE v. ROW.
    1. Criminal Law — Complaint—Evidencie.
    Where, on the trial of a criminal case not- cognizable by a justice of the peace, it appeared, that, before the warrant was issued, a witness was examined orally before the justice, an objection to the reception of any evidence was properly overruled, although the written complaint was made on information and belief.
    2. Same — Rape.
    On the trial of a respondent charged with rape on his 12-year-old daughter, it was error to admit testimony of the complaining witness in which he referred to information obtained from the daughter which satisfied him of the guilt of respondent, and influenced him to make the complaint.
    3. Same.
    It was error to permit a witness to testify to and narrate in detail a conversation had with the daughter in relation to the transaction three months after its occurrence.
    4. Same — Statements, op Third Person — Conspiracy.
    It was proper to reject the statements of a third person, not a witness, in favor of making the complaint against respondent, in the absence of any conspiracy shown to exist between him and the other witnesses to make the evidence competent.
    5. Same — Witnesses—Impeachment—Collateral Matter.
    It was claimed by respondent on the trial that it was physically impossible for him to commit the offense at the time charged; that he had paralysis,,and was under treatment for paralysis by a physician, who informed him that he had that disease. The physician testified that he treated respondent for rheumatism, and not for paralysis, and denied having made statements to several persons that respondent had paralysis. Held, that evidence that the physician had made such statements was admissible for the purpose of impeachment, as against an objection that the inquiry related to a collateral matter.
    6. Same — Bias.
    Evidence that the witness had attempted to persuade persons not to go upon the bond of respondent was admissible for the same purpose, as showing his interest or bias.

      7. Same — Physical Capacity — Burden of Proof — Presumption.
    It was proper to refuse to charge that the burden of proving the physical capacity of respondent was upon the people, since such capacity is presumed.
    8. Same — Statements of Wife — Impeaching Testimony — Instructions.
    Respondent’s wife having testified in his behalf, and evidence having been introduced on the part of the prosecution of statements made by her in respondent’s absence, which she had denied, showing her knowledge of her husband’s intimacy with the daughter, it was error to refuse to charge that such evidence was admissible solely for its bearing upon the wife’s credibility as a witness.
    Exceptions before judgment from Oceana; Russell, J.
    Submitted November 19, 1903.
    (Docket No. 232.)
    Decided January 26, 1904.
    Isaiah Row was convicted'of statutory rape.
    Reversed.

      F. E. Wetmore, for appellant.

      Charles A. Blair, Attorney General, and Wallace Foote, Prosecuting Attorney, for the people.
   Moore, O. J.

The respondent was convicted of the statutory offense of rape upon his 12-year-old daughter. He has brought the case here on exceptions before sentence.

Respondent objected to any witnesses being sworn, for the reason that the complaint before the justice was made upon information and belief, and a warrant based thereon was not a valid one. This objection was not made in the justice’s court, and an examination was had there. It also appeared at the trial in the circuit court that, before the warrant was issued, .the daughter of the respondent was examined orally. We do not think the court erred in receiving this testimony. See People v. Rush 113 Mich. 539 (71 N. W. 863), and the cases there cited.

Error is assigned because of what occurred between the trial judge and the witness during the examination of the complaining witness, Rosenburger, which was as follows:

The Court: When you say you became satisfied that there was something in it, what do you mean by that ?
“A. Well, I became satisfied that she told me the truth about this case. .She told what her father had done. •
Q. Do you mean that you became satisfied that she had been raped ?
“A. Yes, sir.
Q. And it was probable that the old gentleman was guilty ? Is that what you mean, or what do you mean ?
“A. Yes, sir; I mean that. I was not willing to take hold of it, or make any move, until I was satisfied.
“Mr. Wetmore: I desire an exception on the record to the questions of the court.
, “ The Court: You have a right to do that.”

It is likely this colloquy would not have occurred had it not been for the questions previously put to the witness by the prosecuting attorney, and his answers thereto, which were not objected to by the attorney for the respondent. This, however, did not make the -testimony competent, and, when the attention of the court was called to it, he should have so held, and instructed the jury accordingly.

Mrs. Baxter, a half-sister, was allowed to testify to a conversation with the girl three months after it was claimed the offense was committed, and this is said to be error. Justice Long, in People v. Duncan, 104 Mich. 464 (62 N. W. 556), collates the law applicable to such a case. It was competent to show by Mrs. Baxter the girl had complained of the outrage to her, but it was not competent for her to narrate in detail a long conversation she had with her in relation to the transaction.

Complaint is made that the respondent was not allowed to show statements made by one Ikey Young to the effect that the complaint should be made, the respondent got rid of, and Young get the farm upon which respondent was living. Mr. Young was not a witness, and we think no such conspiracy was shown to exist between him and the other witnesses as to make the evidence competent.

The respondent claimed that, at the time he was said to have committed the offense, it was physically impossible for him to do so; that he was under treatment by one Dr. Munger, who treated him for paralysis, and that he had paralysis, and that the doctor told him he had paralysis. The doctor ’was called, and testified, apparently without objection, that he treated respondent for rheumatism, and not for paralysis, and that he did not have paralysis. He was asked if he had not told several persons (their names, the times and places being called to his attention) that respondent had paralysis, and he denied he had so told them. For the purpose of impeaching the doctor, these persons were called, but, as the judge thought the inquiry related to a collateral matter, they were not allowed to testify. We think the testimony should have been admitted. People v. DeFrance, 104 Mich. 563 (62 N. W. 709, 28 L. R. A. 139); Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616). What we have said about this offer to impeach the witness in this respect also applies to the offer to show that the witness had attempted to persuade persons not to go upon the bond of the respondent, as showing his interest or bias. Geary v. People, 22 Mich. 220; Beebe v. Knapp, 28 Mich. 53; Swift Electric-Light Co. v. Grant, 90 Mich. 469 (51 N. W. 539).

Mrs. Row was a witness on behalf of her husband. After laying the proper foundation, and for the purpose of impeaching her, the people called as a witness James Mc-Yean, a deputy sheriff, who testified that Mrs. Row told him at the time he arrested Mr. Row (but not in the presence of Mr. Row) ‘ ‘ that, if Mr. Row knew what she was going to swear to, she couldn’t live there,” and that he asked her if she was willing for this intimacy between the girl and her husband to go on, and that she said no, and that she told him she had spoken to Mr. Row about it, and he had promised that he would stop it, and that she did not think he had monkeyed with Emma since that time. Other witnesses were called, who gave similar testimony. When the judge had nearly completed his charge, the following occurred:

“Mr. Wetmore: With regard to the talks with Mrs. Row, as I understand it, that was offered simply for the purpose of affecting the credibility of Mrs. Row, and not tó be used in any manner as affecting the guilt or innocence of the respondent.
“The Court: I didn’t understand it that way.
“Mr. Wetmore: An exception.
“The Court: In this case, gentlemen, perhaps there is one thing farther that I ought to say, in view of the statement made by the gentleman for the defendant. All the testimony that has been given in this case has been given for the purpose of finding out just one thing, — just one set of things, — and it has all been introduced with a view of centering upon what actually occurred between the defendant here and this girl. The question that we are trying to find out is whether this defendant actually had sexual intercourse with this young girl, as she claims, and as charged in this information. All the evidence has been adduced, as I say, with a view of finding out the fact with reference to that one proposition. Some of the testimony that has been given is what we term impeaching testimony ; in other words, if a person made a statement at one time, and at another time made a different statement; some of the testimony has been adduced to bear upon those propositions; but what we are trying to find out, and the only thing we are trying to find out, here is whether this party actually had connection as claimed by the people in this case.”

The jury may have been misled by this portion of the charge. It is not claimed that what Mrs. Row said was in the presence of the respondent. She denied that she stated what the witnesses claimed she did. The testimony was competent,' not as affirmative evidence against the respondent, but as impeaching evidence affecting the credibility of Mrs. Row, and the jury should have been so instructed.

It is contended the court erred in not instructing the jury that the burden of proving the respondent was competent to have sexual intercourse was on the people, and in his charge when he said it was for the jury to say whether either of the defenses set up by the respondent had been established. It is not the normal condition for a man to have paralysis, or for a man of the age of respondent to be incapable of having sexual intercourse, and we do not think the judge erred in relation to that feature of the case.

The conviction is reversed, and new trial ordered.

The other Justices concurred.


author: • Hooker, J.

text:
    PEOPLE v. RALL.
    Intoxicating Liquors — Local Option Law — Information — Sufficiency.
    A warrant and information under the local option statute need not negative the exceptions contained in the proviso to section 15, relative to selling for sacramental purposes, and ren- ' dering it inapplicable to druggists or registered pharmacists selling under and in compliance with law.
    Exceptions before judgment from Eaton; Smith, J.
    Submitted November 19, 1903.
    (Docket No. 227.)
    Decided January 26, 1904.
    Luther J. Rail was convicted of violating the local option law.
    Affirmed.

      Frank A. Dean and Thompson & Temple, for appellant.

      Lewis J. Dann, Prosecuting Attorney (George Huggett, of counsel), for the people.
   • Hooker, J.

The defendant was a hotel keeper, and was convicted of violating the provisions of the local option statute. The only question in the case is the suffici®cy of the warrant and information; it being claimed that they are invalid because they do not show that the acts of the defendant were not within the exceptions contained in section 15 of the statute (Act No. 183, Pub. Acts 1899), as to selling for sacramental purposes, and rendering it inapplicable to druggists or registered pharmacists in selling under and in compliance with law.

The case needs no protracted discussion. It is ruled by Smalley v. Ashland Brown-Stone Co., 114 Mich. 109 (72 N. W. 29); People v. Allen, 122 Mich. 123 (80 N. W. 991).

The conviction is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. ROBINSON.
    1. Intoxicating Liquors — Local Option Law — Druggists — Sworn Statements — Constitutional Law — Voluntary Admissions.
    Act No. 183, Pub. Acts 1899, ’§ 25, requiring druggists, in counties adopting prohibition, to file sworn statements of liquors sold, is not in conflict with the 14th amendment to the Constitution of the United States; and, in a prosecution for violating the provisions of the act, such statements voluntarily filed are competent as voluntary admissions, irrespective of the question whether respondent could have been compelled to file them, in view of article 6, § 32, of the Michigan Constitution, providing that no person shall be compelled in a criminal case to be a witness against himself.
    2. Trial — Witnesses—Examination.
    On redirect examination, it is competent to interrogate a witness as to new matter drawn out on cross-examination.
    3. Intoxicating Liquors — Local Option Law — Illegal Sales— Instructions.
    A requested charge, in a prosecution under the local option law, that proof of any number of single illegal sales, or even a series of sales, covering the time alleged in the information, would not establish the keeping of a place where liquors were sold, but that each of such illegal sales would constitute a violation of the law, and a distinct offense, with each of which respondent should be charged, was properly refused.
    4. Same — Druggists—Representations of Purchaser.
    A druggist has no right to rely absolutely upon the statement of a purchaser of liquor as to the purpose for which it is desired, where the attendant circumstances are such as would lead a reasonable man to another conclusion.
    Exceptions before judgment from Eaton; Smith, J.
    Submitted November 19, 1903.
    (Docket No. 2.)

    Decided January 26, 1904.
    Samuel Robinson was convicted of violating the local option law.
    Affirmed.

      Garry C. Fox and Frank A. Dean, for appellant.

      Lewis J. Dann, Prosecuting Attorney (George Huggett, of counsel), for the people.
   Hooker, J.

The defendant was convicted of violating-the law prohibiting the sale of spirituous and intoxicating liquor, known as the “ Local. Option Law,” which is in force in his county, and the case is before us on exceptions before sentence. The warrant contains two counts or charges, — one that the defendant unlawfully sold spirituous and intoxicating liquors, viz., three bottles of beer, to one Watson, on an occasion named; the other that on the 30th of August, 1902, and for a period of 50 days next-preceding that date, he kept a place where such liquors were sold, not so keeping, etc., as a druggist or registered pharmacist, under and in compliance with the restrictions, imposed by law. Upon the examination the justice found that both offenses had been committed, and required him to recognize for his appearance at circuit, which he did. The information followed the warrant in form and substance, and, upon the denial of a motion to quash, the prosecutor was required to elect between the counts, and the defendant was tried upon the charge of keeping, etc.

The prosecutor produced testimony tending to show that, prior to the time when the local'option law became operative, the defendant was for a period engaged in the business of keeping a saloon; that, immediately upon the taking effect of such law, he purchased an alleged stock of drugs for $100, and kept them thereafter in a front room in his place of business, a room about 20 feet deep. Back of this room was another, access to which was had through swinging doors, and in this room he kept liquors and beer. We do not notice any evidence that his alleged drug business was in charge of a registered pharmacist, and it is infer-able that he was in no proper sense a druggist. There was evidence t>f frequent sales of beer and spirituous liquors, and that on several occasions a number of persons were there at once buying beer. He kept a list of some or all who bought beer and liquor, and there is evidence showing that, while some of his customers were not allowed to drink in the store, he furnished a cup or cups for use in a shed in the rear of the store, said cups to be returned to him, and that there was frequent drinking in the alley in the rear of the store. Lists of sales, sworn to by defendant, and filed with the prosecuting attorney, under the statute, were introduced in evidence, and witnesses were permitted to testify that some of the persons whose names appeared upon said lists were notoriously in the habit of becoming intoxicated, and defendant admitted that he knew some, if not all, of them, and had directed his clerk not to sell liquor to them.

Counsel contend that section 25, Act No. 183, Pub. Acts 1899, requiring druggists in local option counties to file with the prosecuting attorney a sworn report of liquors sold, is in violation of the 14th amendment of the Constitution of the United States, because it creates a discrimination between druggists doing business in such counties and others residing in other counties where prohibition has not been adopted. The cases cited by counsel for the people seem to sustain the act. See Missouri v. Lewis, 101 U. S. 22; Chappell Chemical & Fertilizer Co. v. Sulphur Mines Co., 172 U. S. 474 (19 Sup. Ct. 268); Magoun v. Savings Bank, 170 U. S. 293 (18 Sup. Ct. 594).

To the claim that the statute is void because in violation of article 6, § 32, of the Michigan Constitution, the recent case of People v. Henwood, 123 Mich. 317 (82 N. W. 70), is an answer. Counsel ask us to review and overrule this decision, contending that these reports were not admissible, by reason of the constitutional provision mentioned, viz.: “ No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law.” Whether the defendant could have been compelled to file reports of sales, or lawfully convicted if he failed to d'o so, we need not inquire. He did file them, and they are competent as voluntary admissions. See State v. Smith, 74 Iowa, 580 (38 N. W. 492); State v. Huff, 76 Iowa, 200 (40 N. W. 720); State v. Donovan, 10 N. Dak. 203 (86 N. W. 709); People v. Lauder, 82 Mich. 120 (46 N. W. 956).

We think there was evidence as to the identity of the parties named in his reports and those of the same name shown to be habitual drunkards, aside from the identity of name, which is presumptive evidence of identity.

A witness called by the people testified on cross-examination that he had bought liquor of respondent for medicinal purposes, had seen his name registered, and had never seen anything out of character at respondent’s store. On redirect he was asked “what difficulty he bought medicine for,” and stated that he could not tell, and that it was well known that he took daily drinks. On his direct he was asked questions relating to the administering the oath to respondent when he verified the reports. The redirect examination complained of was in response to new matter drawn out on the cross-examination, and was competent.

Counsel contended that proof of any number of single illegal sales, or even a series of such sales, covering the time alleged, would not establish the keeping of a place, etc., and requested the judge to so charge the jury. This was properly refused.

We think the eleventh request was too broad, and was properly refused.

A juror asked :

“ Supposing they told him this was for medicine, would he have the right to sell them ? Could he take their word for it ?
The Court: He has a right to rely on what they say if there is nothing in the circumstances of the case or surroundings or the situation that leads him to believe they are falsifying about it. If he, acting in good faith, sold it as a medicine, believing he was selling it as a medicine, he has a right to rely on it; but if there is anything connected with the sale or the situation, with the surrounding circumstances attending it, that would lead a reasonable man to come to some other conclusion they were not buying it for that, he has no right to rely on it. He can only rely on that if he sells in good faith, believing it to be so, without any circumstances surrounding it to tell him different.”

This answer, construed in the light of the charge, was unobj ectionable.

Some other points are made, but require no discussion.

The conviction is affirmed.

The other Justices concurred.


author: Moore, C. J.

text:
    PERRY v. DETROIT UNITED RAILWAY.
    1. Appeal — Assignments or Error.
    Where, on appeal, objection was made in oral argument to a part of the general charge of the trial judge, but the record failed to show an assignment of error, the objection was not considered. ’
    3. Personal Injuries — Damages—Question eor Jury.
    In an action for injuries to plaintiff, who had received, while a passenger on a street car, an electric shock, for which no recovery was permitted, the evidence was sufficient to justify the court in submitting to the jury the question whether the spinal difficulty from which plaintiff suffered was not the result of the physical hurts, other than the electric shock, received on the occasion in question.
    Error to Oakland; Smith, J.
    Submitted November 19, 1903.
    (Docket No. 139.)
    Decided January 26, 1904.
    Case by William J. Perry against the Detroit United Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      O. M. Springer and Charles Engelhard (D. L. Davis, of counsel), for appellee.
   Moore, C. J.

The plaintiff recovered a judgment for injuries received while a passenger on a car belonging to defendant. The case is brought here by writ of error.. Upon the oral argument, counsel for defendant called the attention of the court to a part of the general charge of the trial judge which he insists was error. We are unable to find, after a careful examination of the record, that an assignment of error was taken as to this portion of the charge.

In their brief counsel say:

“The error relied upon in this case is in the court’s permitting the jury to take into account any damages which the plaintiff may be entitled to because of the injury indicated by the tenderness or sore spot on the spinal column. * * * The question which is propounded for determination in this appeal is this: Where the legs of the plaintiff are tramped upon, and the physical result is the impairment of the spinal column at the base of the brain, and there is no medical testimony showing that the injuries inflicted in this car might, could, or did produce the condition found there, can the jury infer that this spinal condition was due to the alleged injury to the legs ? ”

It is necessary here to make a brief statement of the claim of plaintiff. He was a passenger on the defendant’s road in the evening. There was a noise under the car. It was stopped, and the motorman got down as though to fix the car. Suddenly the controller burned out, making a great flash of light and a loud noise. The plaintiff was sitting in the smoking compartment, near the partition between that compartment and the principal compartment of the car. He claims the conductor became greatly excited, and told everybody to get out of the car; that plaintiff attempted to open the door between the two compartments; that the conductor pushed him so that his head and arm were driven through the glass in the upper portion of the door; that when he extricated himself, and put his hand on the handle of the door, he received an electric shock; that the conductor continued to push him; and that, as a result, he was severely injured. The circuit judge was of the opinion there could be no recovery for injuries received by the electric shock. His charge in relation to that phase of the case was as follows:

“In this case the evidence is undisputed that the defendant company has constructed and operated the car in such a manner as to comply with the obligations of the law relative thereto, and the plaintiff in this case is entitled to no damages that he claims to have sustained by reason of the alleged electric shock, and consequently the jury cannot consider and take into account in any manner any testimony as to the nervous condition, irritability, sleeplessness, or loss of weight on the part of the plaintiff, as claimed by the defendant in this case, if it came from the electric shock.”

With this feature of the case eliminated, it is said no damages should have been allowed because of the tenderness or sore spot on the spinal column, or of nervousness resulting therefrom, because no relation is shown between that condition of the spine and the injuries received other than from the electric shock.

We cannot agree with the counsel in this contention. The plaintiff testified:

“ I sat right opposite the door, with my back that way, and I stepped up to catch the door to slide it back, and, just as I did, the conductor ran against me, and I stepped up like that to open the door, and he ran against that shoulder and arm (indicating), and knocked my hand through the door, and head, and also raised a lump on my head, and at that time my right hand was on the door. * * %
“ Q. Now, will you describe all about the effects of this injury to your hand ?
“A. Well, it was cut, — this artery was cut off, — and was bleeding, and the car was all in darkness, and it was some minutes before the car was lit up again; and then I asked if there was any person in the crowd that could stop-the flow of blood; if they could, I wished they would do-it. And the blood was spurting up like that (indicating). I presume it was spurting all around.”

On the cross-examination he testified:

“Q. Do you know whether you opened the door,'or whether somebody else opened it ?
“A. W ell, I was j ammed through the glass, and j ammed on my head and back, and backed out of there.
“Q. Did you open the door, or did you not ?
“A. I don’t know. No. Now, when I grasped that door with my right hand, the conductor ran against me. He was coming towards the vestibule door. There were others going down the aisle. * * *
“ Q. When your arm was thrust through the door, or hand, what did you do then ?
“A. My head was knocked through the glass, too, at the same time; the right side of my head, right there, (witness pointing out). It went through the glass.
“Q. Well, then, after that, what did you do?
“A. Drawed it back out of there. I tried to shove myself, to get out of the broken glass, of course. I put my hand against the door, and shoved myself back, out of the broken glass. I backed out of where I was knocked in the broken glass. Then the door got opened. I couldn’t swear I opened it or somebody else opened it, or, anyway the door got opened, and the conductor kept shoving me ahead of him down three or four seats, and tramped on me. I was on a slant over like that, and grabbing at the seats to keep from falling, and he was tramping on the back of my legs. Yes, he finally did knock me down into the seat.”

His testimony as to what occurred was confirmed, at least in part, by other witnesses. He also testified that before the injury he always glept well nights, and was not nervous; that immediately following the injury he was troubled with sleeplessness and nervousness. In this he is confirmed by the testimony of his wife.

There seems to be no dispute, or at least the testimony of the doctors is, that the injury to the band is permanent. Dr. Colvin testified in answer to the question, “What did you find on the first examination outside of the injury to the hand?” “I found this tenderness on pressure of the spinal column just below the base of the skull.” He also testified:

“ Just at the base of the skull, on the spinal cord, was a spot. There was some tenderness on pressure, that might indicate some inflammation of the covering of the cord, and an inflammatory process set up in the covering of the spinal cord somewhere about the base of the brain.
‘ ‘ Q. Mr. Perry complained, doctor, that sometimes when he arose in the morning there would be a stiffness of the muscles in the side of the neck. Was there any connection between that and such a condition that you saw ?
“A. Well, no; I don’t know that would have much to do with the muscular condition.
Q. Did you see any difference in that spot, or that affliction of pain or a dull pain ?
“A. Of course, an irritation of the spinal cord might produce a choking sensation in the throat, or might be produced by any particular condition.
Q. And it produced a symptom of pain ?
“A. It made a choking sensation.
Q. Not a dull pain P
“A. It might produce pain, yes.
Q. It might produce pain ?
“A. Yes, sir.
“Q. Now, doctor, is there any connection between the spot on the base of the skull and the wound on the hand, —I mean in any close connection ?
“A. I don’t think so. * * *
Q. Now, doctor, this tenderness that was indicated that you say indicated an inflamed condition of the spinal cord, state what such a condition is likely to develop into, if anything.
“A. It is not absolutely an inflammation of the spinal cord, — inflammation of the covering of the spinal cord, more particularly of the fluid, in between the fluid and the covering. There might be a tenderness that might be observed after a while, or it might harden. In case it should harden, the pressure on the cord there might produce paralysis.”
\

On the cross-examination he testified:

“Q. Well, doctor, in your experience, if a man got cut on the thumb would you expect it to cause pain in the back ?
“A. No, not at all; that is independent.”

On the redirect examination he said:

“Q. Now, you say an injury to the spine you would not trace to the injury of the thumb ?
“A. Not at all.
“Q. The injury that you found there to the spine,— might that be occasioned by a severe electric shock, or by a party being jammed about in'the car ?
“A. It might be produced by being jammed about, I should think, but a light shock would not produce that.
“Q. A light shock would not produce that ?
“A. No, I don’t think so.
“Q. But a severe shock might ?
“A. Electricity, as a rule, does not leave any lasting effects.”

Dr. Bell testified:

Q. Yes; now, did you discover any cause for that condition, or what would it attach to, doctor ?
“A. I did not discover any disease. No, there was no organic trouble, and he gave me the history of the injury. I did not find any other injury, or any other indication of an injury, on his person, save that on his thumb, and a soreness, or anything of. that kind. I found traces in the spinal cord and tenderness in the back of the head here at the base of the skull, where the spinal cord and membranes and several vessels pass into the brain into this region here (doctor pointing out).
“ Q. And did that, in your opinion, doctor, and from your knowledge and experience, did that have anything to do with his nervous condition ?
“A. Oh, I decidedly think it did.
Q. Did you form any other opinion as to the cause of that soreness that you found on the spinal cord ?
“A. No, I could not trace it. I could not trace it to any diseased condition of the body, — to any organic disease.
‘ ‘ Q. State what would be the result of that sore spot on the spinal cord that you found there.
“A. Well, it would have a tendency to affect the nervous system in general.”

We think an inference from this testimony, taken as a whole, that the condition of the spine caused the nervous trouble, and that the spinal difficulty resulted from the physical hurts received by the plaintiff on the night of the accident, other than the electric shock, is not an unwarrantable one. In any event, we think it made a proper question for the jury.

Judgment is affirmed.

The other Justices concurred.


text:
    WAGER v. LAMONT.
    1. Negligence — Fire—Spark Arrester — Declaration.
    In an action for damages from fire claimed to have been caused by sparks from defendant’s mill chimney, the declaration alleged that it was the duty of defendant to have used upon his smokestack a spark catcher which would have prevented the escape of sparks, yet, omitting his duty in that behalf, he negligently suffered the top of said chimney to remain open, without a suitable spark catcher thereon, and without using any adequate means to prevent the escape of sparks from the chimney. Held, that the averments of the declaration, when fairly construed, did not confine defendant’s alleged negligence to a failure to equip his mill with a proper spark arrester, but embraced as well an allegation of a failure to use the arrester by leaving it open.
    2. Same — Evidence—Question for Jury.
    There was evidence from which the escape of sparks on the morning of the accident might be inferred, and this made a question for the jury.
    3. Same — Subsequent Change in Appliance.
    Evidence of a change in the spark arrester subsequent to the fire was not admissible as tending to show a prior defective condition.
    Error to Bay; Shepard, J.
    Submitted November 20, 1903.
    (Docket No. 152.)
    Decided January 26, 1904.
    Case by Lizzie Wager against Matthew Lamont for damages caused by fire escaping from defendant’s smokestack. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Pierce & Kinnane, for appellant.

      Henry C. Haller, for appellee.
   Hooker, J.

The defendant is the owner of a steam sawmill, near which was the house occupied by the plaintiff for a boarding house. She brought this action to recover damages sustáined to her household furniture from fire, it being her claim that the building occupied by her was set on fire by sparks from the defendant’s mill chimney.' The negligence relied upon is defendant’s alleged failure to use a proper spark arrester at the time of the fire. The plaintiff furnished a bill of particulars of the items injured, though it is claimed that she made no proof as to what articles were injured. Defendant brings error upon a judgment for plaintiff of $100.

It is claimed that the court erred in refusing to direct a verdict for the defendant. This claim is based on two grounds: (a) That the negligence alleged in the declaration is confined to a failure to equip the smokestack with a reasonably safe spark arrester, and that it was clearly disproved; and (&) a total absence of proof that any live sparks were emitted from the stack on the morning in question.

It is said that the declaration was filed in justice’s court, and is entitled to lenient criticism upon that account; but, aside from this, we are of the opinion that, fairly construed, it does not confine defendant’s alleged negligence to a failure to equip his mill with a proper arrester. The declaration alleges:

That it was the duty of the defendant to have used upon said smokestack a spark catcher which would have prevented escape of such sparks, or in some other way have prevented their escape, so that the fire would not be thereby communicated to the property of the plaintiff; yet the defendant, well knowing the premises, and that the sparks of fire had been repeatedly thrown from said mill upon the property of the plaintiff, and that the building which she occupied, as well, to wit, other buildings in the immediate vicinity of said mill, had been repeatedly set on fire by such sparks, omitted to do his duty in that behalf, and negligently suffered the top of the chimney of his said mill to remain open, without a suitable spark catcher thereon, and without using any adequate means to prevent the escape of sparks from the chimney.”

This is an allegation of a failure to use, by leaving open, the spark arrester.

It is sufficient to say of the second ground that there was testimony from which the escape of sparks in the morning in question might be inferred, and this made it a question for the jury.

It is unnecessary to discuss the second and third assignments of error, the same being sufficiently covered by what has been said.

The counsel for the defendant called two witnesses whom he had sent to examine the smokestack a short time after the fire. They testified that they found the spark arrester in perfect order, and made no repairs, but that, at their suggestion, they made a change, whereby it became unnecessary to raise the cap to shake down the soot and clean the stack, adopting a chain for the latter purpose. An exception was taken to the argument of plaintiff’s counsel that the fact that defendant subsequently made changes in the spark arrester was evidence that it was unsafe, and error is also assigned to the charge of the court upon this subject. The charge upon this subject was as follows:

“In this case it is claimed on the part of the plaintiff two things: First, that his appliances were not complete and perfect; and that they claim to have proved from the testimony of the witnesses, because, after the fire, in the same month, the defendant employed a smokestack man, who was skilled in the work of putting in and repairing, to go up and see if his arrester was in proper shape, and to do what was necessary to put it in proper condition. And it is claimed on the part of the plaintiff that he stopped the rule that had been existing, of letting that cap be raised or lifted, and fastened it down with wire, — wired it in its place, — and used some patches to put over the opening where it opened or raised up and down, and fastened it up, so as to preclude any sparks whatever going through there, and adopted a new device to shake off the cinders and sparks which accumulated on the under side, by a chain, which would be rattled against the sides and jar them loose, and that thereafter the spark arrester was not allowed to be raised at all.”

The record does not contain the language, but it is fairly inferable that counsel made the argument excepted to, and jurors would be likely to infer from the failure of the court to check it when objected to, and the language quoted from the charge, that it was proper evidence of a defective condition, to be considered by them. It is settled otherwise by many cases. Lombar v. Village of East Tawas, 86 Mich. 19 (48 N. W. 947); Fuller v. Mayor, etc., of Jackson, 92 Mich. 203 (52 N. W. 1075); Langworthy v. Township of Green, 88 Mich. 217 (50 N. W. 130); Zibbell v. City of Grand Rapids, 129 Mich. 660 (89 N. W. 563); Columbia, etc., R. Co. v. Hawthorne, 144 U. S. 206 (12 Sup. Ct. 591). In the latter case many cases are cited, and it is shown that the weight of authority is against the practice of admitting such testimony.

It is only necessary to add that the question of damages was for the jury, under the testimony.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.