author: McGrath, C. J.

text:
    LONG v. TRIBUNE PRINTING CO.
    1. Libel — Evidence—Malice.
    In an action for newspaper libel, an article subsequently published in another paper, containing plaintiff’s explanation of the circumstances constituting the foundation for the charge complained of, and shown to have been read by defendant at the time of his refusal to publish a retraction, is admissible, upon the question of motive; and, for a like purpose, it is competent to show what was said by defendant when asked to retract.

      3. Same — Justification—Probable Cause — Instructions.
    The publication of an article imputing the commission of a crime is not justified by the existence of reasonable grounds for a belief in the guilt of the person accused; and therefore, in an action for libel founded upon such publication, a request for an instruction that if, from such facts stated in the article ■as were true, there was reasonable ground to suspect the plaintiff of being implicated in the offense charged, the jury, in determining the damages, can only consider such portions ■of the article as they may find to be untrue to the extent that the statements made therein would tend to confirm or strengthen such suspicion of guilt, is properly refused.
    3. Same — Damages—Evidence.
    While the publisher of a newspaper cannot be held in exemplary damages for the actual, personal malice of his employés in publishing a libel (Detroit Daily Post Co. v. McArthur, 16 Mich. 447), he is liable for all actual damages sustained, including injury to the feelings of the person libeled; and, as bearing on this element of damag'e, the recklessness, carelessness, or negligence of such employés in respect to the publication may be considered by the jury.
    Error to Wayne; Frazer, J.
    Submitted October 23, 1895.
    Decided December 3, 1895.
    Case by John H. Long against the Tribune Printing Company and Percival R-. Benson, impleaded with James E. Scripps, for libel. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Brooke & Spalding, for appellants.

      Griffin cC- Warner, for appellee.
   McGrath, C. J.

Plaintiff sued defendants for a libelous publication, and recovered judgment. The article was published on July 29th, and charged plaintiff (a ■policeman) with being implicated in a burglary on the morning of July 26th. The circumstances attending the affair, which immediately directed attention to plaintiff, had been well known, to the police department for three days prior to the publication, and a satisfactory explanation had been made to the department. The article, notwithstanding, stated that “an investigation has since been going on;” that the affair was “being guarded with the utmost secrecy;” that “a couple of detectives were at work on the case;” that “it is claimed that some property found in the possession of the patrolman has been identified by the proprietor of the store” which it alleged had been burglarized, “the possession of which the patrolman could not satisfactorily explain,” and that “startling developments are expected.” The only circumstance directing attention to plaintiff was the fact that a dog (of a roving disposition), owned by plaintiff (and which for several days had been missing from home), was found in the store. No locks were picked or broken. Two or three hair brushes were missing or misplaced, and it did not clearly appear which. A rear cellar door appeared to have been pushed open.

Defendants gave notice that they would prove that certain of the statements made in the article were true;. that, as to the other statements and conclusions, they had relied upon information received; and that said article : was published in good faith, and after a careful examina-; tion into the facts and circumstances, and without malice ■ or unlawful motive. * )

Plaintiff testified that on the day of the publication he went to the office of the' Tribune, and saw Mr. Benson, the city editor, and requested a retraction.

“I asked him whether he was acquainted with me, and he said he was. I asked him whether that was proper to publish anything like that, and whether it was so, or whether he believed it was so. He says, ‘That is the way it was brought to me, and I published it.’ I says, ‘You never stopped to think or investigate the matter before you published this?’ He says, ‘No, sir.’ I told him, T suppose, because I am a police officer, you can publish most anything you like?’ He says: ‘Well, as far as your being a policeman is concerned, I do not care anything about that. In fact/ he says, ‘I do not give a damn for the whole police department.’ I says, ‘All right; if you believe that way, we will proceed, and do something else.’ ”

Afterwards, and on September 14, 1893, a written demand was made upon the paper for a retraction.

Plaintiff called one Whitely, who testified that he was managing editor of the paper. A copy of the Evening News of July 29th, headed: “A dog story, with some bearing on a burglary. The robbers fled, and left the dog behind. His owner proves to be Policeman Dong, but the latter has a satisfactory explanation,” — was shown witness, and he was asked if he had read it. He answered that he had, on the day of its publication. He was asked if, after he had read it, he published any fact or explanation made by Dong in that article. He replied, “No, sir; we did not consider it necessary.” The article was then offered and received in evidence. Error is assigned on its receipt.

It was entirely proper, as bearing on the question of defendants’ motive, to show what occurred when asked to retract. It was also proper to show what knowledge defendants possessed at the time of the request for retraction. Defendants had given notice that they had acted without malice, and it was competent for plaintiff to show anything bearing upon that question.

Counsel for defendants requested the court to instruct the jury as follows:

“The only statements in the article, for the publication of which the jury can find the plaintiff is entitled to any damages, are those concerning the discovery of stolen property in his possession, its identification by the proprietor of the store, and the plaintiff’s inability satisfactorily to explain his possession thereof. In considering the bearing of these statements upon the question of damages, the jury should consider whether, and to what extent, the effect of the publication of such statements, of the article as they shall find to be true was enhanced, and the weight and credibility of the charge thereof made against the plaintiff increased, by reason of these statements.
“If the jury shall find that, from such facts stated in the article as were true, there was reasonable ground to suspect the plaintiff of being implicated in the burglary, then, in determining his damages, they can only consider such portions of the article as they may find to be untrue to the extent that the statements, made in such portions would- tend to confirm or strengthen such suspicion .of' guilt.”

The' court gave the following instructions upon that subject: ■

“On the question of damages, they should also consider whether, and to what extent, prior to the publication of the article, it was known by the plaintiff’s neighbors and by members of the police force that he was suspected of being implicated in the burglary; and whether, and to what extent, the grounds of such suspicion were known. The knowledge of such suspicion and its grounds woiild tend to diminish the damages to a greater or less extent, according as the suspicion and its grounds were more or less widely known among plaintiff’s neighbors and the police force.
“In considering the question of damages, the jury should consider whether, and to what extent, any portion of the article which they may find to be untrue increased the effect or enhanced the weight and credibility of the charge made against the plaintiff by such portions of the article as they may find to. be true.
“No damages can'be awarded to plaintiff for the publication of any statement or statements in the article which the jury shall find to be substantially true.”

The first paragraph of the request is not in accord with the facts. The headlines of the article are as follows: “Policeman and burglar. The Detroit department said to have one of that sort. He pretends to be side, and is suspected 'of having gone at once and robbed a store.’7 As to the last paragraph of the instruction asked for, probable cause to suspect does not excuse an imputation of crime, especially when the truth which would dispel the suspicion is easy of access. The instruction given covered the subject, and protected the defendants.

The principal contention is made over that portion of the charge in which the court said:

“The uncontradicted evidence in this cause shows that said reporter knew said plaintiff; that he knew the beat which he was patrolling; that he had been informed of the alleged commission of the burglary, and plaintiff’s connection with it, on the evening of July 28th; and yet during such time he saw neither the plaintiff, said Delage, nor the superior officers of the police department, to ascertain the truth or falsity of said publication. These considerations the jury are entitled to weigh in considering the question as to whether the article was published in a reckless or careless manner.
“I give you the ninth as I have modified it: It is further claimed by the plaintiff that the Evening News, bn July 29, 1898, published a statement purporting to be made by the plaintiff as to his connection with the alleged burglary; that this statement came to the attention of Mr. Whitely, managing editor of the Tribune, on said day; yet that from such time no publication of such explanation was made by said Tribune Printing Company. The jury are also to consider this neglect in determining the question of damages which the plaintiff is entitled to recover. * *
“In the consideration of this question of damages, you have a right to take into consideration everything connected with this case, — the method in which it was published, the manner in which it was published, the information which these people received, and how they received it, and what pains they took for the purpose of determining its truth; all for the purpose of determining the actual malice or lack of care that might have influenced the publication of this article, if you shall decide that this publication referred to the plaintiff in this case. There is no evidence in the case, so far as I understand it, that shows any malice upon the part of the Tribune Company against this plaintiff that will warrant me in saying to you that any exemplary, punitory, or vindictive damages might be awarded. Now, the damages you are entitled to award, if you shall find that the publication applied to the plaintiff, are these: You are at liberty to award such damages as you think this plaintiff is entitled to on account of Injury to his feelings, to his character and reputation, and for humiliation, shame, and disgrace, worriment, and the effect the publication will have upon him in the future. You are at liberty to consider the situation, the character of the publication, its circulation, the probability of its being understood and believed. * * The damages must be within these limits, — injury to feelings, character, reputation, humiliation, shame, disgrace, worriment, and the effect the publication will have upon him in the future. Whether you raise or lower these damages according to your judgment, it must be within these limits, but not for any other purpose.”

The court further instructed the jury that—

“There is no evidence upon which the jury can award any damages as against any of the defendants in excess of actual damages, including damages for injury to the plaintiff’s feelings and to his reputation. * * * There is no evidence upon which any damages can be awarded or increased against the defendant Tribune Company on account of the express malice of any of its employés. * * * The jury cannot consider the evidence of the publication of the article in the News, or the contents of that article, or of its coming to the knowledge of any of the employés of the Tribune Company, after the publication of the article complained of, in fixing their award of damages against said Tribune Company. That evidence has no bearing upon the amount of damages to be awarded against the Tribune Company.”

It is insisted by counsel for the defendants that the jury were not entitled to consider the recklessness, carelessness, or negligence of the employés of the Tribune Company as bearing upon the question of damages. The jury were instructed that the facts would not warrant the giving of exemplary, punitory, or vindictive damages. The words “determining the actual malice” were inconsistent with the other portions of the charge, and the court immediately corrected any impression that might otherwise have been produced by the use of that language.

Counsel for defendants rely upon Detroit Daily Post Co. v. McArthur, 16 Mich. 447, as supporting their contention. In that case defendants’ counsel requested the trial court to instruct the jury that punitive or exemplary damages could not be recovered; but the court refused so to do, but did charge that, if defendants published the libel maliciously or recklessly, the jury were at liberty to give exemplary damages with reference to all the circumstances of the case. The right to damages for injury to feelings is clearly recognized in that case, and it is expressly held that the sense of injury is always aggravated or lessened in proportion to the degree of perversity exhibited by the offender; that in all libel cases this injury to the feelings is a proper element to be considered, in addition to the damage to reputation and other attendant grievances; that, on the same principle, anything having a tendency to reduce the extent of the voluntary wrong is to be considered in mitigation; that it is the duty of every publisher to see, at all hazards, that no libel appears in his paper; that every publisher is liable not only for damages to credit and reputation, but also for such damages on account of injured feelings as must unavoidably be inferred from such a libel, but that no further damages than these should be given if the publisher has taken such precautions as he reasonably could to prevent such an abuse of his columns; and when the mischief has been done in spite of precautions, the carefulness exercised should be considered in mitigation of that portion of the damages which is awarded on account of injured feelings. Mr. Justice Campbell there says:

“The employment of competent editors, the supervision by proper persons of all that is to be inserted, and the establishment and habitual enforcement of such rules as would probably exclude improper items, would reduce the blameworthiness of a publisher t’o’a minimum for any libel inserted without his privity or approval, and should confine his liability to such damages as include no redress for wounded feelings beyond what is inevitable from the nature of the libel. And no amount of express malice in his employés should aggravate damages against him when he has thus purged himself from active blame. * * * While, therefore, in the present case, the reporters were guilty of carelessness in receiving hearsay talk of legal charges, which could only be lawfully published if in accordance with the documentary facts, and while there could be no justification for publishing outside scandal against an individual from any source whatever, yet the defendants were only responsible, beyond the damages recoverable under any circumstances for such a libel, to the extent of their own conduct in the care or want of care used in guarding their columns against the insertion of such articles.”

Damages for injury to feelings, shame, mortification, mental anxiety, insulted honor, and indignation have always, in this State at least, been regarded as actual damages, and not as exemplary, punitory, or vindictive damages. Scripps v. Reilly, 88 Mich. 10. One who has been defamed is entitled to compensation in damages to the extent of his injury, and only to that extent. Confusion arises from the use of terms in this class of cases, and it would be well if the terms “exemplary damages,” “punitory damages,” and “vindictive damages” were omitted from the judicial vocabulary, in this class of cases, at least. The term “malice,” in the statement that malice is presumed from the publication of libelous matter, is liable to be misunderstood. Malice, in itsLordinary acceptance, means ill will, but in its legal sense it means., a wrbñgfüT ací’dbhé voluntarily, without just cause or ex-cusé,rWndln the Use of the term this distinction should be poinflm^outT The sting of an injury sustained by reason of an act willfully, recklessly, or negligently done is much greater than if the result of accident or mistake. A publication of defamatory matter, made when the means of ascertaining the truth are easily accessible, and in the absence of extenuating circumstances, or those which tend to excuse the wrong, always aggravates the injury. And in my own view, the very accessibility of the facts tending to show the falsity of the publication gives added force to the accusation. But, however this may be, if it be true that a publisher is liable for the damages actually occasioned, that the injury to feelings is a proper element of damage, and that the sense of injury may be aggravated by the circumstances under which the libel is published, the injury to feelings is not diminished by the fact that the fault or recklessness or negligence is that of a reporter, and not (hat of the manager. Those circumstances which are calculated to reduce the injury are always allowed to be shown to limit the recovery. If rumors were rife, or the facts were such as to create suspicion, or probable cause for a belief in the truth of the facts published existed, and a diligent endeavor was made to get at all the facts, and those were secured which were accessible, these facts bear upon the question as to what conditions tending to aggravate the injury to feelings were actually present. These circumstances are allowed to be shown, not as an offset to the damages, but because they tend to mitigate them. The jury determine what the conditions and circumstances calculated to aggravate or palliate the offense were. The McArthur case is frequently cited in support of the rule that a corporation is not liable in this class of cases for vindictive damages, because the writer, its agent, was actuated by personal malice, and so the case has been understood. Injury to feelings has always been regarded as a proper element of damages in cases of defamation of character, inevitable from the nature of the libel, and recoverable in all cases. In the recent case of Hatt v. Evening News Association, 94 Mich. 114, we held that plaintiff was entitled to exemplary damages, inasmuch as information of the falsity of the statements contained in the article was brought home to the reporter before the publication.

Mr. Cooley, in his work on Torts, p. 195, says:

“The publisher of a newspaper must, at his peril, see that the supervision of his business is such as to exclude all libelous publications, and he is responsible though one is made without his knowledge, and notwithstanding stringent regulations made by himself, which, if observed, would have prevented it. This liability is not planted on tbe ground merely of tbe duty of tbe principal to see that bis business is managed in good faith and with proper care, but it corresponds to the liability of' one who, having brought upon his premises something extremely liable to inflict great and irreparable injury,, is required, at all events, to make good the injury resulting from the inadequacy of his precautions.”

Mr. Townshend (Sland. & L. § 122) says:

“Every one is charged with the duty to exercise such a vigilance in the selection of agents, animate and inanimate, as are competent and adequate to the performance-of the business they may be required to transact, and the ends they may be designed to accomplish. He must exercise such a control over them that in the transaction of his business they neither do nor omit to do any act amounting to a wrong. He cannot escape this liability by-omitting to exercise this vigilance, for such omission is-itself negligence. It is upon this principle, and not upon any presumption of malice, that an employer or principal is held responsible for the act of his servant or agent.”

Mr. Merrill, in his work on Newspaper Libel (page 136), says that the liability of the proprietor of a newspaper grows out of the ruling doctrine in the law of agency that a principal is responsible for the acts of his agent within the general scope of the authority which he has conferred upon the agent.

“The proprietor of the newspaper may be compared to one who keeps a dangerous animal, and who is bound so to keep it that it does no harm. If harm ensues, he must answer for it.”

The author refers to the case of Smith v. Ashley, (1846) 11 Metc. (Mass.) 367, but says that case will be found to be directly in conflict with many others. That case has not been followed in the later Massachusetts cases. In Com. v. Morgan, 107 Mass. 199, 203, it is said that the rule of civil liability is broader, and the principal must respond in damages for the default of the agent or servant, although he had no knowledge of it, or had actually forbidden it in advance, and exercised due care to prevent it. In Lothrop v. Adams, 133 Mass. 471, the liability of the proprietor of a newspaper in damages for a libel published without his knowledge by his agent is regarded as settled; citing Dunn v. Hall, 1 Ind. 344; Shepheard v. Whitaker, L. R. 10 C. P. 502; Andres v. Wells, 7 Johns. 260; Perret v. Times Newspaper, 25 La. Ann. 170; Storey v. Wallace, 60 Ill. 51. It was there held, upon the ground of agency, that a partner in a newspaper enterprise was liable for the malicious conduct of his copartner; citing Durant v. Rogers, 87 Ill. 508; Wolf v. Mils, 56 Ill. 360; Chester v. Dickerson, 54 N. Y. 1; Guillou v. Peterson, 89 Pa. St. 163.

In Lee v. Village of Sandy Hill, 40 N. Y. 442, the court, after quoting from Story on Agency (§ 452) that the principal is liable in a civil‘suit to third persons for the frauds, deceits, concealments, misrepresentations, torts, and negligences of his agent in the course of his employment, although the principal did not authorize, justify, or participate in, or, indeed, know of, such misconduct, or even if he forbade the acts or disapproved of them, says-the rule of liability is not based upon any presumed authority in the agent to do the acts, but upon the ground of public policy. All that is necessary to render the principal liable for the malfeasance of the agent is that the tort must be committed in the course of the agency; not that the agency authorized it, but that the employment afforded the means of committing the injury. Rounds v. Railroad Co., 3 Hun, 329; Buffalo Lubricating Oil Co. v. Standard Oil Co., 42 Hun, 153; Bruff v. Mali, 34 How. Pr. 338; Mott v. Ice Co., 73 N. Y. 543; Huff v. Bennett, 4 Sandf. 120.

In Rounds v. Railroad Co., supra, a boy was pushed from a moving train. In Bruff v. Mali, the court say “the -wrongful act is the servant’s in fact, and the principal’s by construction.” See, also, Com. v. Damon, 136 Mass. 449; Curtis v. Mussey, 6 Gray, 261; Buckley v. Knapp, 48 Mo. 152; Com. v. Willard, 9 Wkly. Notes Cas. 524; Lake Shore, etc., R. Co. v. Prentice, 147 U. S. 101; Lucas v. Railroad Co., 98 Mich. 1.

The rule as settled by these authorities (and there seems to be little conflict in the books upon the question) is that the publisher of a newspaper is liable for injuries resulting from his own neglect, or from the neglect of his agents in the course of their employment.

In the present case the publication was in no sense fugitive, casual, or accidental. The article seems to have been published in the ordinary course. It came through the ordinary channels; was submitted to the city editor, whose duty it was to examine it; and the headlines were prepared by him, or under his direction; and no existing rule respecting the collection of the facts, the verification of the matter, the examination of the article, or its publication, is shown to have been infringed or violated.

The judgment is affirmed.

The other J ustices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    MILLARD v. HAYWARD.

    1. Attachment — Sufficiency of Return — Jurisdiction.
    A sheriff's return to a circuit court writ of attachment, bearing date as of a day prior to the return day of the writ, and certifying to the seizure of property upon a previous day, and to the inability of the officer to find the defendant, is insufficient to confer jurisdiction, although not filed until the return day, since no presumption can arise in such case that the officer continued to search for the defendant beyond the date of his return. Hitchcock v. Hahn, 60 Mich. 459, distinguished.

      2. Adverse Possession — Evidence.
    An entry upon land by a plaintiff in ejectment, followed by a continuous occupancy for several years, is such an interruption of an adverse possession as to suspend the operation of the statute of limitations as against him, although, having misconceived his remedy, he subsequently discontinues his suit, and the defendant thereupon enters under a writ of restitution.
    Error to Lenawee; Hosmer, J., presiding.
    Submitted October 23, 1895.
    Decided December 3, 1895.
    Ejectment by Alfred L. Millard against Henry C. Hayward. From a judgment for defendant upon verdict directed by tlie court, plaintiff brings error.
    Affirmed.

      A. L. Millard, in pro. per. (Salsbury & O’Mealey, of counsel), for appellant.

      Morgan & Priddy, for appellee.

       Rehearing denied January 14, 1896.

   Long, J.

Action of ejectment. Defendant had verdict and judgment in the court below by direction of the court. Both parties trace title through Francis H. Strong. Plaintiff claims title (1) by virtue of a sheriff’s deed obtained in an attachment proceeding by Amos A. Kinney against Francis H. Strong, and a deed of conveyance from Kinney to himself; (2) under tax deeds for the years 1875 to 1878. Defendant claims title under the foreclosure of a mortgage given by Francis H. Strong and wife to one Israel Hall, and assigned to defendant, and also under a tax deed for the year 1867.

We think it appears conclusively that the plaintiff’s tax deeds, under which he claims, were absolutely void, and discussion of the claim under them will be limited to the inquiry of whether the plaintiff’s grantor had such possession under them, or either of them, as to ripen into a title. The court below held that plaintiff could recover only upon the strength of his title, and that the tax deeds were void, and that he had established no title by virtue of the sheriff’s deed, for the reason that the attachment proceedings under which the judgment was taken -were ineffectual to confer jurisdiction upon the court.

The attachment was issued January 12,1878, and made returnable February 5,1878. The writ was placed in the hands of the sheriff for service, and he made return thereon that he did, on January 12, 1878, attach the property in controversy here; that the same was appraised by two disinterested freeholders, whose appraisal was signed and returned with the writ; and, as a further return, stated:

“After diligent inquiry, I am unable to find Francis H. Strong, the defendant in said attachment named, in my bailiwick.
“Dated this 15th day of January, A. D. 1878.
“James K. Cairns, Sheriff.”

The attachment was thereafter filed in the clerk’s office on February 5, 1878, being the return day of the writ.

Plaintiff insists that, where the return is not filed until the return day, the presumption is that the officer is searching and inquiring all the time up to and including the day of the return, though he has indorsed his return upon the writ at an earlier period; and cites Hitchcock v. Hahn, 60 Mich. 459. In that case there was but one date to the return. The return day in the writ was February 5, 1884. The sheriff’s return states: “I have, on this 18th day of January, 1884, attached the following property,” etc., — and then concludes: “And I do further return that I am unable to find the defendants in said attachment named in the limits of my bailiwick. The answer of F. L. Follensbee, Sheriff.”

It was said by this court in that case:

' "The date at the commencement of the return refers to the time of seizure, and the further return has no reference to the first date, but takes effect from the filing, which was on the return day. This construction is the natural one, and has its support in the presumption that the officer has done his duty.”

In the present case the return shows that the property was attached on January 12th, and the certificate that the officer was unable to find the defendant named in the writ is thereafter dated as of January 15th, three days after the writ was issued and the property attached, while the return day in the writ is February 5th. No presumption can arise that the sheriff searched for the defendant during the days up to February 5th, and the plain language is that he concluded his inquiry on January 15th, the day he dated his return. This was the view taken by the court below, and we think properly, though the writ was not returned into court until the return day. Hubbell v. Rhinesmith, 85 Mich. 30, and cases there cited.

Counsel for plaintiff contend that, though plaintiff may not have acquired title under the sheriff’s deed, yet the court was in error in directing verdict in favor of defendant, for the reason that his immediate grantor, Amos A. Kinney, was in possession of the premises under his tax deeds a sufficient length of time to ripen into a legal title. It appears that, about the year 1873, Kinney leased the premises in controversy from Francis H. Strong for the term of five- years. Kinney held possession under this lease during its full term. Strong at that time had left the country. In February, 1884, Hayward commenced ejectment proceedings against Kinney to obtain possession, and judgment was rendered in Hayward’s favor in November, 1884. He immediately took possession, and retained it until the spring of 1889. In the meantime Kinney took a new trial under the statute. The case was tried three separate times, and judgment given each time in favor of Hayward. It was then discovered by Hayward, during the argument for a new trial, that the mortgage foreclosure was ineffectual by advertisement, as the mortgage contained no power of sale. Hayward thereupon discontinued his ejectment proceeding. Kinney took a writ of restitution, and was put in possession in June, 1889. A few days later Hayward filed his bill in chancery to foreclose his mortgage, and in May, 1890, decree passed in Ms favor. (See 84 Mich. 591.) Thereupon Hayward again took possession of the land, and has been in possession ever since. While Hayward was in possession the last time, and in the spring of 1891, William Service plowed and planted it under lease from Hayward, and, as claimed by Service, after a talk with Kinney. In the meantime Kinney hpd deeded a half interest in the land to the plaintiff in this suit. In the foreclosure proceedings of Hayward, Millard was not made a party, though his deed from Kinney to a half interest had been recorded for several days. In 1891 suits in trespass upon these premises were brought by Millard and Kinney, one against George Ferguson, and one against William Service. These cases were tried in the circuit by five different juries, and the plaintiffs defeated. The cases were brought to this court, and! affirmed. Kinney v. Ferguson, 101 Mich. 178; Kinney v. Service, Id. 185. In those cases it appeared in this court that the plaintiffs were not in possession of the premises,, and it was therefore held that they could not maintain trespass.

The testimony in the present case shows that Hayward, the defendant here, was in possession for several! years, claiming title, and enjoying and holding the premises, and that during this time the plaintiff, Millard, purchased from Kinney the one-half interest, and subsequently the whole interest, for the sum of one dollar. We think there was no evidence showing possession in plaintiff, Millard, and his grantor, a sufficient length of' time to enable him now to assert 10 years’ possession under his tax deeds, so that his title has become absolute-by reason of such possession; and there was no question of fact upon that.branch of the case to submit to the jury.

The court properly directed verdict and judgment in favor of the defendant.

Judgment is affirmed.

The other J ustices concurred..


author: Hooker, J.

text:
    REDIKER v. QUEEN INSURANCE CO.
    1. Fire Insurance — Ownership op Property Insured — Pleading —Variance.
    A declaration upon a fire-insurance policy, alleging that it was issued to plaintiff and his copartner, that the firm assigned it to plaintiff, and that at the time of the execution of the policy, and from the time of said assignment until the loss, plaintiff had an interest in the property insured, “being the sole owner thereof,” when construed as a whole, shows the ownership by plaintiff of an undivided interest before and of a sole interest after the assignment, and, therefore, proof of an assignment to plaintiff of his copartner’s interest in the property does not constitute a variance.
    2. Same — Evidence.
    Under a declaration on a fire policy issued to plaintiff and another and assigned to plaintiff, alleging that at the time of the loss plaintiff was the sole owner of the property insured, evidence of an assignment to plaintiff of the interest of the co-insured in the property is admissible, although not covered by express averment.
    3. Same —Waiver oe Conditions in Policy — Authority op Agent.
    A provision in a policy of insurance that the same shall be void, unless otherwise provided by agreement indorsed thereon, if the property become incumbered by a chattel mortgage, may be verbally waived by the agent who issued the policy, although the policy provides that “ no officer, agent, or other representative ” of the insurer shall have power to waive any provision thereof except in writing. Beebe v. Insurance Co., '93 Mich. 514, followed.
    Error to Schoolcraft; Steere, J.
    Submitted October 24, 1895.
    Decided December 3, 1895.

      Assumpsit by Paul Rediker against the Queen Insurance Company of America on a fire-insurance policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. W. Dmton (E. 0. Chapin, of counsel), for appellant.

      Walsh & Pardee, for appellee.
   Hooker, J.

The plaintiff recovered a judgment upon a policy of insurance, from which the defendant appealed. The policy was issued to the plaintiff and one Miller, his partner. Subsequently plaintiff bought Miller’s interest in the property, and took an assignment of the policy from the firm. At the time of the assignment, the plaintiff gave a chattel mortgage upon the property, to secure a loan. The consent to the assignment of the policy appeared in writing upon the policy, the plaintiff having procured it from defendant’s agent. The plaintiff testified that he “left the policy with the agent, at the time he bought his partner out, * * for him to fix up the insurance for him, and assign it from Miller & Eediker to his own name.” He identified the indorsement as “the indorsement Mr. Marsh [the agent] gave him, with the consent of the company that they were satisfied that the business was fixed up.” On cross-examination he admitted giving the chattel mortgage for $050. On redirect, he testified that the money was received from Mr. Marsh, the agent (who, apparently, was connected with the bank • through which the money came), and that he told Marsh that he “was going to put a mortgage upon the stuff,” and that he had $1,000 insurance, and “guessed the mortgagee was safe;” that he handed the policy to Marsh, and told him to fix it up, and Marsh said, “All right;” and that, when he handed it back, “he said it would be all right, — that he was sure it was all right.”

The policy was the Michigan standard fire policy. It contained the following conditions, plainly printed, viz.:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance; * * * or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage. * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.”

The first question arises over the introduction of evidence of the assignment of Miller’s interest in the property insured, and the policy, to Rediker, his former co-partner. This testimony is said to be a variance from the cause set up in the declaration, in that the declaration alleges that the policy issued to Miller & Rediker, and afterwards was assigned to Rediker, and in another place states that “Rediker, from the time of the issuing of the policy until the fire, was the sole owner of the property.” It is said that, “if the property was owned jointly by Miller & Rediker, the plaintiff could only recover on a showing of the purchase of Miller’s interest in the property, of which there is no allegation; while if, at the time, Rediker was the sole owner of the property, as the declaration alleges, then the policy, in the first instance, had issued to one who had no insurable interest in the property.” If this were so, the assertion that the declaration contains two distinct statements, diametrically opposed to each other, would be true; but while, upon demurrer, this might possibly be held to be the effect of the language used, it may receive a more lenient criticism when the question is raised upon the trial. The declaration does say that the policy was issued to Miller & Rediker, and that it was assigned to Rediker, and it does in terms allege that Rediker was the sole owner of the property in fee simple. The allegation is that—

“At the time of the making, execution, and delivery of said policy of insurance as aforesaid, and from the time of. said assignment until and at the time of the loss and damage hereinafter mentioned, he had an interest in said insured property to a large amount, * * being the sole owner thereof, in fee simple absolute.”

This allegation should be read in connection with the preceding statement. It clearly shows that he owned only an undivided interest before the assignment, and that, by such assignment, he acquired a sole interest in the property. This being so, there is nothing left of the question, except that the failure to allege the assignment of Miller’s interest in the property should have jirecluded the introduction of testimony of such assignment, which evidence was taken under objection. We think the declaration shows, first, that at the execution of the policy Rediker was not the sole owner, and as clearly that at the time of the loss he was such owner. This was not the material question, and it was unimportant how he acquired the title. Monaghan v. Insurance Co., 53 Mich. 239.

Was the policy avoided by the mortgage? We think this case falls within the decision in the case of Beebe v. Insurance Co., 93 Mich. 514, and, therefore, that the court did not err in admitting the testimony upon the question of waiver, or in submitting the case to the jury.

The remaining assignment of error is that the verdict is excessive. The verdict was for $200, loss on fixtures, and $675, for loss upon stock. At the time the verdict was rendered, counsel stated that upon the stock it was $25 or $50 in excess of the amount authorized by the testimony. Plaintiff’s testimony showed an aggregate loss of $1,446.95, of which $671.20 appears to have been upon articles in the nature of stock. Our attention is not called to the evidence which warrants our saying that they were not. A small addition of interest would have increased this sum to the amount of the verdict. The loss occurred on September 15,1893, and the verdict was rendered in January, 1895. We cannot, therefore, say that the verdict was excessive.

The judgment will be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
      In re YELL.
    1. Fisheries — Construction oe Statute — Sufficiency of Title.
    Section 2 of Act No. 200, Pub. Acts 1895, prohibiting the use of “any pound, trap, stake, gill, or set nets or seines, or any device of any kind, for taking fish in any of the tributaries of the Saginaw river,” does not prohibit fishing with hook and line, the word “device” meaning a device of like kind as those specified; and the objection that the title of the act, “An act for the protection of fish in the Saginaw river and its tributaries,” is not sufficiently comprehensive to cover an entire prohibition of fishing, is, therefore, without force.
    2. Same — Constitutional Law — Penal Statutes —Excessive Fines.
    The failure of the act to fix a maximum penalty for its .violation does not render it repugnant to section 31, article 6, of the Constitution, prohibiting the imposition of excessive fines. In such case the statute is to be read in connection with the constitutional provision, and the power of the court administering the law is limited thereby.
    Joseph Yell, having been arrested for the violation of a penal statute, and committed in default of bail, sued out a writ of habeas corpus.

    Submitted November 19, 1895.
    Prisoner remanded December 3, 1895.

      Ferdi/nand Bruclcer and Fred H. Allen, for petitioner.

      Riley L. Crane, Prosecuting Attorney, for the people.
   Montgomery, J.

Petitioner was prosecuted in the Saginaw circuit court for a violation of the provisions of section 2 of Act No. 200 of the Public Acts of 1895. He has sued out a writ of habeas corpus, and contends that the act in question is unconstitutional. Two grounds are urged: First, that the title is too narrow and restricted to admit of incorporating the provisions of section 2 of the act; and, second.-, that the provisions of section 5 of the act violate the provisions of section 31 of article 6 of the Constitution, which prohibits the imposition of excessive fines, for the reason that no maximum fine is fixed, the provision of the statute being that a person found guilty shall be punished by a fine of not less than $100, together with the costs of prosecution, and, in default thereof, shall be confined in the county jail until such fine and costs be paid, not exceeding thirty days.

1. The title of the act is, “An act for the protection of fish in the Saginaw river and its tributaries, and to repeal act number thirty-one of the Public Acts of 1893.” Section 2 reads that “it shall not be lawful for any person or persons to set, place, or use any pound, trap, stake, gill, or set nets or seines, or any device of any kind, for taking fish in any of the tributaries of the Saginaw river.” It is contended that the title gives no intimation of a purpose to entirely prohibit fishing in the tributaries of the Saginaw. We need not consider whether, if section 2 were to be construed as an entire prohibition of fishing, it would be within the title of the act, as it is our view that it was not intended by this section to prohibit fishing with hook and line. The term “device” may be broad enough to cover hook and line, but, when read in connection with the other words of the section, it must be construed to mean a device of a like kind. By section 1 it is made unlawful to use any pound, gill, trap, stake, or set net or seine, or any Ulce device, for taking or catching fish in that part of the Saginaw river described in this section. . The word “like” was omitted in section 2, evidently through an inadvertence, but a rule of construction supplies it. See End. Interp. Stat. § 405 et seq.; Roberts v. City of Detroit, 102 Mich. 64. Again, section 4 provides that it shall not be lawful to use any drive or trammel for the purpose of catching or taking fish in the waters of the Saginaw river or its tributaries. Had the provision of section 2 been intended to exclude absolutely fishing in the tributaries, it would have been unnecessary to incorporate any reference to the tributaries in this section.

2. There is no express constitutional requirement that the legislature shall, in enacting penal statutes, fix the maximum penalty. It is true that this is generally done, but, when it is not done, the power to impose a fine is limited by the constitutional provision that excessive fines shall not be imposed. The only case to which our attention has been directed in which the constitutionality of a statute fixing the minimum and not the maximum punishment has been considered is Frese v. State, 23 Fla. 267. In a well-reasoned opinion the constitutionality of such a statute is maintained, and it is pointed out that the precise penalty is not usually fixed in a penal statute, but, where there is a constitutional provision that excessive fines shall not be imposed, the statute is to be read in connection with it, and such constitutional provision limits the power of the court which administers the law.

We think the act in question is not subject to either objection urged.

The prisoner will be remanded.

The other Justices concurred.


author: Grant, J.

text:
    R. P. GUSTIN CO. v. ARN.
    Fraudulent Conveyances — Consideration—Release of Right to Life Support.
    Where land, is conveyed in consideration of an agreement by the grantee to support the grantor for life, a reconveyance to the grantor, reserving a portion of the premises as compensation for the support already furnished, is not void as to the creditors of the grantee, in the absence of an actual intent to defraud, although the land is thereupon conveyed to the wife of the grantee under a similar agreement.
    Appeal from Iosco; Simpson, J.
    Submitted November 19, 1895.
    Decided December 3, 1895.
    Bill by the E. P. Gustin Company against John Arn and Ann Arn in aid of execution. Complainant appeals from a decree dismissing the bill.
    Affirmed.
    In 1888, an old man, named Shepard, deeded to the defendant John Arn a quarter section of land. The consideration expressed in the deed was $2,500. The real consideration was a written contract, executed by Arn to Shepard, by which he agreed to furnish Shepard a due, suitable, and comfortable maintenance during the remainder of his life; to furnish him a suitable and comfortable room in the dwelling house then upon the land, and a garden; to pay him $200 upon his personal demand; and to give him a decent and respectable burial when he •died. This land was at the time mainly wild and uncultivated. Mr. Arn cleared considerable of it, built a house and barn upon it, and performed his contract to the satisfaction of Mr. Shepard. Meanwhile Mr. Arn had engaged in running a shingle mill and store, and among his creditors was the complainant, from whom he had purchased goods to the amount of $2,500, upon which he had paid $1,800 at the time of the transaction hereinafter referred to. .Mr. Shepard ascertained that Mr. Arn was in financial trouble, and feared that he might lose his place and support. He therefore desired to get it back, and so told Mr. Arn. It was thereupon agreed that Mr. Arn should keep the 40 acres upon which he had erected the buildings, in consideration of what he had done, and that Mr. Arn should redeed to him the other 120 acres. This was done December 8, 1890. About the same time Shepard deeded the land — the deed being dated December 10,1890 — to Mrs. Arn, who at the same tima executed to him an agreement similar to that of her husband, which was carried out until Mr. Shepard’s death, in 1892.
    On July 28, 1891, complainant brought suit against Mr. Arn, and on December 17,1891, recovered a judgment for 1740.63. Execution was duly issued, and returned n-ulla bona, whereupon the complainant filed this bill, claiming that the transfers of the property from Arn to Shepard and from Shepard to Mrs. Arn were made with the intent to defraud Mr. Aim’s creditors, and were therefore void. The court below held that no fraud was shown, and dismissed the bill.

      J. L. Stoddard, for complainant.

      M. J. Comvvne, for defendants.
   Grant, J.

(after stating the facts). We must agree with the conclusion of the court below that there was no evidence of an actual intent to defraud. There is no proof that Mr. Arn ever suggested or requested Mr. Shepard to enter into the arrangement. The testimony of Mr. Zeiter, the register of deeds, who drew the papers, was that—

“Mr. Shepard said that he was afraid he would not have a home if he left the property in the position it was in; and that he wished to have it back again, so that he could make a different deed and a different agreement from that he had previously done. ‘I am afraid I will be turned out of house and home. Mr. Arn is getting himself into trouble.’ ”

No one was present at this conversation except Mr. Shepard and Mr. Zeiter. It was very natural that Mr. Shepard should feel uneasy over the situation. Mr. Arn’s debts exceeded in amount the value of this land over- and above -the homestead exemption. If the land was levied upon under an execution against Arn, Arn might refuse further support. No execution creditor would have the right to take Mr. Arn’s place under the contract for his support. It was therefore entirely proper that he should seek to avoid litigation with other parties, and secure the full benefit of this arrangement in his declining years. The settlement with Mr. Arn was entirely fair and valid as to Mr. Shepard, although he knew that the result would be to place the land beyond the reach-of creditors. The transaction being valid as to them, it restored the entire title to Mr. Shepard, and left him free to make any other arrangements for his support by conveying the land to another person. This is not one of those transactions which is a legal fraud, though no real intent to defraud exists, under the rule laid down in Walker v. Cady, 106 Mich. 21.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    SERRELL v. PATTERSON.
    '•Constitutional Law — Eminent Domain — Decision by Majority •of Commissioners — Establishment of Drains.
    Section 2, article 18, of the Constitution, providing that, when private property is taken for the benefit of the public, the necessity for using such property, and the just compensation to be made therefor, shall be ascertained by a jury of twelve freeholders, or by not less than three commissioners appointed by a court of record, does not require a unanimous ■determination by the commissioners so appointed, but should be construed as authorizing the appointment of commissioners clothed with all of the powers exercised by such officers at the time of the adoption of the Constitution, among which was the right to decide all questions by a majority vote, as recognized by Rev. Stat. 1846, chap. 1, § 3, subd. 3 (1 How. Stat. § •2, subd. 3).
    Accordingly, under the statute cited, providing that, in the construction of statutes, all words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority thereof, unless otherwise expressly declared in the law conferring the authority, it was held that a decision by a majority of the commissioners appointed to determine the necessity for a proposed drain was final and conclusive. Kress v. Hammond, 92 Mich. 372, distinguished.

      Certiorari to Oakland; Carpenter, J., presiding.
    Submitted November 19, 1895.
    Decided December 3, 1895.
    Samuel J. Serrell, drain commissioner for the county of ■Oakland, applied to the circuit court for a writ of mandamus to compel Thomas L. Patterson, judge of probate for said county, to appoint special commissioners to determine the necessity for a proposed drain. Relator brings certiorari to review an order denying the writ.
    Affirmed.

      George W. Smith, for relator.

      Aaron Perry, for respondent.
   Long, J.

Application in writing was made to the relator, who is drain commissioner of Oakland county, for the establishment of a drain in the township of Groveland, in that county. Fourteen names were attached to the application. Such proceedings were had as the statute requires of the commissioner, who thereafter petitioned the probate court for special commissioners to determine the necessity of the drain. Citations were issued in February, 1898, by the probate court, which were duly served; but, upon the hearing, the petition was dismissed. In March, 1894, the petition was renewed. New citations were issued, and served, and duly published.' Commissioners were appointed, thereafter met, and entered upon the discharge of their duties, and subsequently made a report to the probate court against the laying out of the drain; two of the commissioners signing such report, and -one reporting in favor of the location of the drain.

In January, 1895, the relator again petitioned the probate court for new special commissioners, on account of the disagreement of the former ones. In this new petition no new matter was inserted, except statements showing the report and disagreement of the former commissioners. Citation was duly issued upon this petition, and a hearing had in the probate court. Two objections were raised to the granting of the petition:

1. That the decision by a majority of the three special commissioners against the necessity of the drain ended all proceedings, and the probate court had no jurisdiction to appoint new commissioners.

2. That the probate court should consider the original application to the drain commissioner for the drain, and, if it were found that six names had been improperly or fraudulently attached to it, then the application could not be a basis for the proceeding.

It appeared that six of the names had been cut from off a former petition, and annexed to the new.

The probate court held that, while it was his duty to appoint new commissioners upon the disagreement of the former ones, yet he should reopen the case for a new hearing upon all the matters in dispute, and that the six names fraudulently attached-to the petition vitiated the entire proceedings, and on that ground refused to appoint new commissioners, and dismissed the petition. Petition was thereupon made to the circuit court for a mandamus to compel the probate court to set aside such order, and appoint the commissioners. A hearing was had upon that application in the circuit court, and mandamus refused, on the ground that the determination by a majority of the commissioners against the drain was conclusive. The case comes to this court by c&iMora/ri to review the action of the circuit court denying the mandamus.

But one question will be discussed. The probate court, in determining the effect of the decision of a majority of the commissioners, it is claimed, followed the case in this court of Kress v. Hammond, 92 Mich. 372, in which it was held that, where the jury in a similar case disagreed, the probate court had jurisdiction to order the summoning of a new jury. That case involved the question only of the right to summon a new jury, and the effect of a decision of a majority of the commissioners appointed under this statute was not involved, though inadvertently, in' the opinion, the words “or commissioners” were used.

Section 2, art. 18, of our Constitution requires that—

“When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.”

In Kress v. Hammond, supra, it was .held that this constitutional provision requires the unanimous verdict of the jury, as the word “jury” means a common-law jury, with all the incidents thereof, and that, therefore, a unanimous verdict was required. In tlie present case the question is presented whether a majority of the three commissioners may make such determination. We think that the word “commissioners,” as used in this section of the Constitution, means commissioners clothed with such powers as prior to the adoption of the Constitution they had been clothed with, — that is, the right to decide all questions by a majority vote; and paragraph 3, § 2, How. Stat., carried into effect the rule by which such decisions were reached by a majority of the commissioners. This section antedates our present Constitution, and provides:

“All words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons, unless it shall be otherwise expressly declared in the law giving the authority.”

Eandolph, in his work on Eminent Domain (section 323), says:

“When a tribunal is invested with powers to be exercjsed in the public interests, it is essential that all the members should act upon the matter in hand; but a majority may decide. The reason for the rule is that matters of public concern should not be delayed, perhaps indefinitely, by insisting upon unanimity in council. This rule has been applied, on principle or by statutory direction, both to boards of commissioners, by whom the necessity of the work is to be determined, and to those charged with the duty of assessing compensation. But, unless the statute plainly permits, the condition that all members of the tribunal must participate will not be relaxed.”

The New York constitution (article 1, § 7) provides, in reference to the taking of private property for the use and benefit of the public, that the necessity for using such property, and the just compensation therefor, “shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law;” and it has been held by the courts of New York, under this provision,- that a majority of the commissioners may determine the questions submitted, and that the decision of such majority is valid and binding upon the parties. In re Church Street, 49 Barb. 455; In re Broadway Widening, 63 Barb. 572; Astor v. Mayor, etc., of New York, 62 N. Y. 580.

We think the ruling of the circuit court was correct; and the order there made will be affirmed.

The other Justices concurred.


text:
    NILES v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    Master and Servant — Injury to Railroad Employé — Contributory Negligence.
    A locomotive fireman who, having been notified that a track over which he is about to run is new, and that he should be prepared to take care of himself in case of accident, voluntarily, and against the warnings of the engineer, assumes a position in front of the cab, upon the side next to an artificial embankment supporting one rail of the track, is guilty of contributory negligence, precluding a recovery for injuries sustained by the overturning of the engine upon the giving way of the embankment.
    Error to Schoolcraft; Steere, J.
    Submitted November 20, 1895.
    Decided December 3, 1895.
    Case by Celia Niles, administratrix of the estate of Frank Niles, deceased, against'the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, for negligently causing the death of her intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      E. C. GJiapin- and A. E. Bright, for appellant:
    An employé assumes the risks usually incident to his employment, and also all those that ordinary observation makes apparent. Kean v. Rolling Mills, 66 Mich. 277, and cases there cited.
    Disobedience of rules and instructions precludes a recovery. Lyon v. Railroad Go., 31 Mich. 429; Grand v. Railroad Co., 83 Mich. 564, 571; Brennan v. Railroad Go., 93 Mich. 156; Wilson v. Railroad Go., 94 Mich. 26; Look-wood v. Railway Go., 55 Wis. 50, 66.
    Where an employé unnecessarily assumes a dangerous position during the course of his employment, and suffers an injury thereby, he cannot hold his master liable. O'1 Neill v. Railway Go., 45 Iowa, 546; Martensen v. Railway-Go., 60 Iowa, 705; Brown v. Byroads, 47 Iud. 435; Wolsey v. Railroad Co., 33 Ohio St. 227; Railroad Go. v. Thomas, 51 Miss. 637; Railroad Go. v. Rush, 84 111. 570; Sinclair v. Berndt, 87 111. 174; Railroad Go. v. Sentmeyer, 92 Pa. St. 276; Sears v. Railroad Go., 53 Ga. 630; Railroad Go. v. Jones, 95 TJ. S. 439; Glover v. Scotten, 82 Mich. 373.
    The question of the contributory negligence of the decedent was one for the court, and should not have been submitted to the jury. Bresee v. Poioers, 80 Mich. 178; Sadowslw v. Gar Go., §4 Mich. 105.

      J. F. Carey (Glark cG Pearl, of counsel), for appellee:
    The question of contributory negligence was properly left to the jury. 1 Shear. & E. Neg. § 86; Railway Go. v.. Bayfield, 37 Mich. 211; Lake Superior Iron Go. v. Erickson, 39 Mich. 492; Swoboda v. Ward, 40 Mich. 424; Teipel v. Eilsendegen, 44 Mich. 462; Fero v. Railroad Go., 22 N. T. 209; Beisiegel v. Railroad Go., 34 N. T. 622; Ernst v. Railroad Go., 35 N. T. 9; Beers v. Railroad Go., 19 Conn. 566; Newboldv. Mead, 57 Pa. St. 487; Gardner v. Railroad Go.,, 150 U. S. 349.
   Hooker, J.

The plaintiff recovered a judgment against the defendant, in the capacity of administratrix of the estate of her husband, in an action for negligently causing his death. The accident occurred upon a spur of the defendant’s railroad, at a point where the road was constructed upon ground formed partly by an excavation in the side of a hill, and partly by the fill made by the excavated earth, whereby one side of the track was apparently upon undisturbed ground, and the other upon made ground. The engine turned over as the track slid ■down the bank, killing the intestate, who was fireman upon’the locomotive, and who, at the time, was standing upon a platform in front of the cab window, upon the side next the fill, engaged in cleaning the dome of the engine. The train was a gravel train, engaged in surfacing up the track, then in process of completion.

The undisputed evidence shows that the superintendent of this work directed the men to proceed with caution, and to be prepared to take care of themselves, for the track was new, and he did not know that an engine had been over it. This was repeated just before the start, and was in the presence of the fireman in both instances. The engineer afterwards told deceased, two or three times, to come to his place in the cab, but he looked at the grade and replied, “Oh, this is all right,” and did not ■come. He was subsequently found, under the dome of the engine, dead.

This evidence, being undisputed, left no question for the jury. The court should have directed a verdict for the defendant, in view of the contributory negligence of the deceased, who, when warned of hidden danger, chose to assume the risk.

The judgment will be reversed, and no new trial ordered.

The other Justices concurred.


text:
    RICE v. RICE.
    Estates of Decedents — Assignment oe Mortgage — Resulting Trust.
    Where a real-estate mortgage is assigned without consideration, and upon an understanding that the beneficial interest shall remain in the assignor, a trust arises in favor of the latter, which, upon his death, passes to his estate, although the assignment be absolute in form.
    Appeal from Ionia; Davis, J.
    Submitted November 20, 1895.
    Decided December 3, 1895.
    Bill by Julia E. Rice, administratrix of the estate of Wallace E. Rice, deceased, against Alonzo Rice, to enforce a trust. From a decree for complainant, defendant appeals.
    Affirmed.

      R. A. Rmoley, for complainant.

      Chite é Chite, for defendant.
   Montgomery, J.

The bill in this case was filed by the complainant to have the defendant declared trustee of the estate of Wallace E. Rice, deceased, and to require the assignment to the complainant, as administratrix, of a certain real-estate mortgage, delivered and assigned to defendant by Wallace E. Rice in his lifetime.

It appears that, in the spring of 1892, Wallace E. Rice was a resident of Ionia county, and was worth about $3,500. He was afflicted with a pulmonary disease, and desired to go to Colorado in hopes of benefiting his health. His property at this time consisted of the mortgage in question, which amounted to $2,000, and some unsecured notes and other personal property. It appears that, before going to Colorado, Wallace executed to the defendant an assignment of the mortgage, absolute in form, and the sole question in this case, as the same appears to us, is whether, by this conveyance, it was intended to vest a beneficial interest in the defendant, or whether the transfer was made for greater convenience in dealing with the security, in the interests of Wallace and his estate; and we are all agreed that the record does not leave this question in doubt, if we confine ourselves to the undisputed testimony and to facts testified to by the defendant. It is proper to say that we are convinced that the defendant has at no time contemplated a diversion of the property to his own use, but has had in contemplation the preservation of the proceeds of the mortgage for the two minor children of the deceased; but we are unable to find any trust in favor of the children. Either the effect of the assignment was to vest in the defendant an indefeasible right, or a trust resulted in favor of Wallace in his lifetime, and a right remained in him which vested in his estate on his decease.

It appears by the testimony that Wallace first prepared a power of attorney to collect the mortgage, and gave it to the defendant. Defendant then said to him, “If you die or something happens to you, I could not collect it.” Wallace then took the mortgage back, leaving the power of attorney, and afterwards brought the assignment, saying to the defendant, “You can use it now.” It also appears from the testimony of the defendant, given on his examination had in the probate court, that no consideration passed to Wallace upon this transfer, and on said examination he (the defendant) further testified:

“I do not think it was a gift to me. I supposed it was placed in my hands for the benefit of his children. Nothing was said about it. I intend to use the mortgage for the benefit of said children.”

On the trial of the present case the defendant gave the following testimony:

“Q. In case he (Wallace) had lived, and you had collected this money, you would have sent it to him, wouldn’t you?
“A. If he had lived, and got well, I presume I should.
“Q. Don’t you know you would?
“A. Why, yes.”

This testimony and statement of defendant show that there was no consideration passing to Wallace; that defendant did not understand that the transfer was a gift, but did understand that the beneficial interest was still in Wallace. If this be so, that interest, in the absence of an express trust in favor of the children, passed, on Wallace’s death, to his estate. There is no evidence of any declaration of trust in favor of the children.

The circuit judge granted the relief prayed, and the decree is affirmed, with costs.

McGrath, O. J., Long and Grant, JJ., concurred. Hooker, J., did not sit.


text:
    BRADLEY v. GRAND TRUNK RAILWAY CO.
    Railroad Companies — Injury to Passenger — Failure to Light Station Platform — Contributory Negligence.
    A passenger at a railroad station, who, upon seeing his train approaching, walks along the platform, knowing it to be insufficiently lighted, towards the place where he thinks the train will stop, and who, in the darkness, steps ofE upon the track, and is struck by the engine, is guilty of contributory negligence, precluding a recovery against the railroad company because of its failure to keep the platform properly lighted. a
    Error to St. Clair; Canfield, J.
    Submitted November 21, 1895.
    Decided December 3, 1895.

      • Case by George J. Bradley against the Grand Trunk Railway Company for-personal injuries. From a judgment for defendant upon verdict directed by the court, plaintiff brings error.
    Affirmed.

      Frank Whipple, for appellant.

      Geer é Williams, for appellee.
   Montgomery, J.

Plaintiff sues to recover for damages sustained by reason of an injury incurred when about to board a train of cars on defendant’s track at a station called “Smith’s Creek,” on the evening of October 1.8, 1890. The sole negligence imputed to the defendant was a failure to properly light its station platform.

It appears by the testimony that the platform was 123-feet wide, and its extreme length 189 feet, extending from the baggage room, on one end, to the watercloset, on the other. The elevation above the track was 9 inches. The platform was lighted with a lamp, with a wick 1-3 or 2 inches wide. The size of the glass in the lamp was 133- by 17-3 inches, and the distance from the lamp to the place where the plaintiff received his injury was about 41 feet.

Plaintiff testifies that he was engaged in conversation with Dr. McDermid; that the doctor said, “There comes your train;” that plaintiff looked down the track, and saw the headlight; that he took a basket of eggs, which he intended to carry to the baggage car, in one hand, and a small satchel in the other, and started to go forward to where he thought the baggage car would stop; that, as he went away from the lamp, it was pretty dark. He stepped off the platform on the track, and was struck by the engine. Plaintiff further testifies:

“I did not know how long the train was. if I had, I might have waited, but I thought I would be sure and get up opposite the baggage car. I knew it was dark, but I thought I would be safe in going up there.”

The circuit judge was of the opinion that the negligence charged was not made out, and also that, if it should be assumed that there was negligence in lighting the platform, plaintiff’s own negligence contributed to the injury, and directed a verdict for the defendant. We are of the opinion that this direction was justified. The testimony is conflicting, it is true, as to whether the light was sufficient to light the whole platform for the whole distance of 189 feet, and the plaintiff’s own testimony ' was to the effect that it was dark as he went away from the light. It is next to incredible, however, that the light did not shine a distance of 40 feet. But, however, this may be, if the light failed to make his way clear, it was negligence for the plaintiff, knowing this fact, to deliberately take the chance of stepping off the platform in front of an approaching train. He "swears that he knew it was dark, but thought it would be safe. Knowing that it was dark, and knowing that the train was approaching, he could not speculate on the chance of making his way, in the absence of light, towards a place of known danger, and claim to be free from negligence contributing to the result which followed. If there was negligence of the company, it was discovered by plaintiff as a precedent condition, and yet he deliberately determined to take his chances. This is not a case of a defect in a way which one is bound to travel. It was, of course, known to plaintiff that this platform had an edge, and that, if he went far enough in the direction of it, he would step off; yet his testimony is that, knowing this, he took his chances, of keeping on the platform, and, in the darkness, stepped off. The fault was chiefly, if not wholly, his.

Judgment affirmed.

The other Justices concurred.


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    MICHIGAN SAVINGS BANK v. CITY OF DETROIT.
    1. Unjust Assessments — Remedy—Boards of Review.
    Boards of review are the proper tribunals for the correction of unjust assessments, and parties will not be heard in the courts until they have exhausted their remedy before these tribunals.
    2. Same — Excusing Failure to Appeal to Board — Action at Law.
    In an action by a bank to recover taxes paid upon its capital stock under protest, it appeared that the assessing .officers, acting under the advice of the city counselor, refused to assess certain real-estate mortgages owned by plaintiff, and to deduct the value thereof from that of its capital stock, as required by the tax law of 1891, on the ground that each of the mortgages contained an agreement that the mortgagor should pay the taxes upon the land. Plaintiff took no steps to have the assessment corrected, either before the board of assessors or the common council, both of which, under the charter, were clothed with the powers of a board of review. While the assessment rolls were still in the hands of the council for review, a decision was rendered by the Supreme Court, holding that mortgages containing such agreements should, for the ■ purposes of assessment, be treated the same as other mortgages. Before bringing suit, plaintiff presented a petition to the council to have the tax refunded, which was denied. Held, that plaintiff could not avoid the effect of its failure to appeal to the board of review' provided for by the statute, upon the ground that its case had been prejudged, and that such action would have been an idle ceremony.
    Error to Wayne; Lillibridge, J.
    Submitted November 21, 1895.
    Decided December 3, 1895.

      Assumpsit to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error.
    Reversed.
    In the spring of 1892 the plaintiff was the owner of real-estate mortgages to the amount of $377,240, in each of which it was agreed that the mortgagor should pay the taxes upon the land. On March 26th the plaintiff made out a sworn statement of its real and personal property subject to assessment, and a complete schedule of these mortgages, which contained the names of the mortgagors, and the description of the property mortgaged, and submitted the same to the board of assessors of Detroit. The assessors did not deduct these mortgages from the value of the capital stock, but assessed to each stockholder the amount of his stock at the assessed value of $137 per share. The plaintiff took no steps to have this assessment corrected, either before the assessors or before the common council. On September 23d the receiver of taxes made a demand upon the cashier of the bank for the payment of the taxes assessed, threatening, in case of refusal, to levy on the properties of the respective stockholders. The cashier thereupon paid the entire amount under protest. The stockholders then assigned their respective claims to the bank, which instituted this suit to recover the amount so paid. Before bringing suit, it presented a petition to the common council of the city for repayment, which was refused. The court, upon a finding of facts and law, entered judgment for the plaintiff.

      John J. Speed, for appellant.

      Wilkinson J Post, for appellee.
   Grant, J.

(after stating the facts). It is unnecessary to cite the numerous authorities of this court to the proposition that boards of review are the proper tribunals for the correction of unjust assessments, and that parties will not be heard in the courts until they have exhausted their remedy before these tribunals. This is conceded, but the plaintiff seeks to excuse the non-performance of this duty by the claim that the assessors and common council had prejudged the plaintiff’s case, and had entered into a scheme to tax the stockholders in plain violation of the law, and that, therefore, it would have been an idle ceremony to appeal to them to correct the error. We do not think the facts justified the plaintiff in taking this position. The case of Common Council of Detroit v. Board of Assessors of Detroit, 91 Mich. 78, was decided March 18, 1892, holding Act No. 200, Pub. Acts 1891, to be constitutional. The board of assessors are required, on or before the 1st day of April in each year, to make their assessment, which is subject to the correction and revision of the common council, and to issue a notice to the taxpayers, to be published in the daily newspapers for two weeks prior to thé 1st day of April, that the rolls have been completed. Any person considering himself aggrieved may appear before the board, adduce proofs, and have the assessment reviewed. The board are clothed with power to correct any such assessment. The board must return the rolls to the common council on or before the third Tuesday of April. Every person aggrieved by the assessment of the board of assessors may appeal to the common council, in whose hands the rolls are required to remain 16 days for that purpose. City Charter, §§ 163, 167-169. After the above decision was rendered, the board of assessors asked the advice of the city counselor as to their duties in assessing to the banks mortgages containing an agreement that the mortgagor should pay the tax. On April 6th the city counselor submitted a written opinion to the board, advising them that such mortgages should not be assessed to the banks, but only those mortgages which did not contain the agreement referred to. Upon this advice the board acted. Plaintiff did not appear before the board to seek a correction, nor before the common council. This point was not directly decided in that case, and there is nothing in the record to show that the city counselor did not act in good faith in giving his opinion. Acting upon this letter, the board of assessors passed a resolution found in Latham v. Board of Assessors of Detroit, 91 Mich. 510. The writ in that case was granted 'May 6th,- and the opinion filed May 11th, the rolls being then in the hands of the common council for review. Whether or not the council might of their own motion have made the change, this did not relieve the plaintiff from its duty, nor are courts at liberty to say that they would not have done it upon appeal. We think the plaintiff has shown no legal excuse for not appealing to the board of review.

The judgment must be reversed, with the costs of both courts,. and no new trial granted.

The other Justices concurred.


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    PEOPLE v. HAWKS.
    Bastardy — Evidence—Attempted Settlement.
    In a prosecution for bastardy, evidence that a brother of the respondent attempted to settle the matter has no tendency to prove the respondent’s guilt, if done without his knowledge.

      Certiorari to Huron; Beach, J.
    Submitted November 21, 1895.
    Decided December 3, 1895.
    Robert Hawks was convicted of bastardy, and brings certiorari.

    Judgment reversed.

      James H. Hall and Atlcmson & AtMnson, for appellant.

      Hiram L. OMpman, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant appeals from a conviction under the bastardy act. Against objection, the prosecuting attorney was permitted to show that, in consideration of money paid to her by the defendant’s brother, the prosecutrix promised to leave, and not bring disgrace upon the family, or attempt to prosecute the defendant. This was done while defendant was absent, and, so far as appears, was without his knowledge or consent, his brother so testifying.

The court, in the charge, said to the jury that—

“There is no direct evidence — that is, the evidence of any witness testifying directly — that Robert Hawks authorized or consented to the payment of money, or knew of the agency, or knew of the agreement, or that William Hawks undertook the matter of the agency for Robert Hawks in that respect, * * * or that he authorized or consented to these things, or adopted them. * * * If these matters are to be considered as corroborating circumstances, it must be by reason of the relationship of these parties alone, so far as any direct evidence is concerned.”

He further said these were “to be considered as corroborating circumstances, by reason of the relationship.”

“As I say to you, at most, if you draw such an inference that Robert Hawks authorized and adopted it,, it would not be a confession of guilt, but a circumstance, only, to weigh in determining the main issue of the paternity of the child.”

In short, the court said, in substance, that the fact that the brother attempted to settle the matter was evidence that the defendant was the father of the child, although done upon his own responsibility, and without the consent or even the knowledge of the defendant. We think this was error.

The judgment must be reversed, and a new trial directed.

The other Justices concurred.


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    PEOPLE v. RESH.
    1. Criminal Law — Witnesses—Duty of Prosecution — Harmless Error.
    The refusal of the prosecution to produce a witness whose name was indorsed upon the information is not ground for a reversal, where the respondent himself afterwards placed the witness upon the stand, and obtained the benefit of his testimony.
    3.Same.
    The prosecution is not obliged to call a witness whose name was placed upon the information at the request of the respondent, such witness being present in court.
    3. Same — Accomplice in Crime.
    It is not obligatory upon the prosecution to call an accomplice of the respondent as a witness, under the rule requiring the production of eye-witnesses of the transaction.
    4. Same — Assault—Intent—Instructions to Jury.
    Where, in a prosecution for an assault with intent to do great bodily harm less than murder, it appears that the assault, which resulted in serious injury, was unprovoked and deliberate, an instruction that a man is presumed to intend the natural consequences of his own acts is proper.
    5. Same — Alibi—Instructions.
    Where the respondent interposes an alibi, it is proper for the court to direct the attention of the jury to the nature of such defense, and to instruct them that all of the evidence bearing thereon should be carefully considered, “and if, in view of the evidence, the jury have any reasonable doubt as to whether the defendant was at some other place at the time the crime was committed, they should give the defendant the benefit of any doubt, and find him not guilty.”
    6. Same — Respondent as a Witness — Instructions as to Credibility.
    It is not error to instruct the jury in a criminal case that, in weighing the testimony of the respondent, they may consider ■his relation to the offense charged.
    7. Same — Presumption of Innocence — Instructions.
    An instruction that the presumption -of innocence continues to surround the respondent until removed by evidence convincing the jury, beyond a reasonable doubt, of his guilt of the offense charged in the information, “ or any other offense," is not reversible error, where there is no evidence of the commission of any offense other than that set forth in the information.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted November 21, 1895.
    Decided December 3, 1895.
    Frederick Eesh was convicted of an assault with intent to do great bodily harm, less than the crime of murder, and sentenced to imprisonment in the state house of correction and reformatory at Ionia for four years.
    Judgment affirmed.

      Nathan P. Allen, for appellant.

      Fred A. Maynard, Attorney General, and Alfred Wolcott, Prosecuting Attorney, for the people.
   Grant, J.

The respondent was convicted of an assault upon one Edward L. Wagner, with intent to do great bodily harm, less than murder.

1. The first alleged error is that the court did not require the people to produce a witness whose name was indorsed upon the information. There are two complete answers to this: (1) The witness was in court, and was called as a witness by the respondent, who had the benefit of his testimony. (2) His name was placed upon the information at the request of the respondent.

The testimony of the people disclosed that another man was with the respondent at the time of the assault. The contention is that this witness was that man; that he was an eye-witness to the transaction; and that it was therefore the duty of the prosecutor to call Mm, under the following decisions: Maher v. People, 10 Mich. 225; Hurd v. People, 25 Mich. 415; Thomas v. People, 39 Mich. 312; People v. Davis, 52 Mich. 573; People v. Swetland, 77 Mich. 57; People v. Belts, 86 Mich. 422. The assault was premeditated; was made in the night, with some blunt instrument; and, as soon as the cowardly blow • was struck, the respondent and his companion ran away, and escaped in the darkness. The above decisions do not hold, nor is there any reason or common sense in holding, that the people should call as a witness an accomplice in crime.

2. Upon the question of intent, the court instructed the jury as follows:

“In this case the intent must be derived from the evidence of the deed committed, in connection with the other evidence in the case; and it is for you to say from the evidence in the case whether or not an intent existed in the mind of the respondent, at the time of the commission of the alleged offense, to commit upon the person of the injured man great bodily harm, less than the crime of murder, or whether he committed a simple .assault and battery, or whether he is guilty of any offense at all.
“The extent of the injury inflicted,no matter how severe or disproportionate to the provocation, if there was any provocation, will not take the case out of that of assault and battery, unless you find the existence of the intent to do great bodily harm, less than the- crime of murder. But the severity and aggravated character of the assault, and extent of the injury received, as well as the weapon with which it was committed, may be considered by you, in connection with other evidence in the case, in your endeavor to find from the evidence whether or not such intent stimulated the respondent’s action.
“If, from the evidence, you find that the respondent struck the complainant with a dangerous and offensive weapon, and that the result was serious bodily harm to the complaining witness, less than the crime of murder, you may take all these facts into consideration in determining whether or not the respondent intended to do great bodily harm, less than the crime of murder, at the time he committed the assault, if he committed an assault at all.
“In this case the intent is the gist of the offense charged in the information, and the law usually presumes that a person intends the natural result of his own acts. And this rule applies in this case, with the usual conditions that if the circumstances and surroundings of the case shown by the evidence establish the fact that there was no intention to do what was done; in the way of inflicting the injury, or leave in your mind a reasonable doubt of such intent, then your duty is to acquit the respondent of the offense charged in the information.”

Counsel in his brief says: “We submit that there is. no evidence in the case to warrant the language used by the court in his charge as to intent.”

The blow was struck so suddenly that Mr. Wagner did not see his assailant. He was rendered insensible; his nose was broken; several of his teeth were loosened; his right eye was closed for three days; and he was treated by a physician for from four to six weeks. The physician téstified that “the nose was flattened on the left side of the face. It was lying on the left side of the face. * * * The bone of the- nose was broken, and the cartilage also.” This was not a sudden affray, nor the use of a stone or other weapon in a fit of sudden anger. No provocation for the assault was shown. The act was done with deliberation, and was a case for the application of the rule that one will be presumed to intend the natural consequences of his act. There was, however, other testimony tending to show the intent, and the jury were carefully instructed to consider it all in determining whether respondent entertained the intent charged.

3. Complaint is made of the following instruction:

“One of the defenses interposed by the defendant in this case is what is known in law as an ‘aUM,’ — that is, that the defendant was at another place at the time of the commission of the crime; and I instruct you that such a defense is as proper and as legitimate, if proven, as any other. And all the evidence bearing upon that point should bo carefully considered by the jury. And if, in view of the evidence, the jury have any reasonable doubt as to whether the defendant Avas at some other place at the time the crime was committed, they should give the defendant the benefit of any doubt, and find him not guilty. The defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal. It is sufficient if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged.”

It requires no discussion to show the correctness of this instruction. The respondent relies on People v. Pearsall, 50 Mich. 233; but the instruction there given is in no respect similar to the instruction in this case.

4. Complaint is also made of the following instruction:

“The respondent has been a witness before you, as he had a right to be; and you have a right to weigh his testimony, and give it such credit as you believe it fairly entitled to. You have a right to take into consideration, in weighing the testimony, his relation to the offense charged in the information.”

We find no error in this instruction. Housh v. State, 43 Neb. 163; St. Louis v. State, 8 Neb. 405; Murphy v. State, 15 Neb. 383.

5. The court gave the usual instruction upon the presumption of innocence, and added:

“That presumption continues to surround him until removed by evidence that satisfies your minds, and beyond a reasonable doubt, of his guilt of the offense charged in the information, or any other offense.”

It is gravely insisted that the use of the term “any other offense” left it to the jury to find the respondent guilty of some other offense than the one for which he was on trial. The information contained only one count, alleging the major offense. Assault, and assault and battery, were also involved, and upon these the court had correctly instructed the jury. If the expression meant anything more than to state a rule of general application, it would naturally direct the attention of the jury to the minor offense of assault and battery. It would, in any event, be absurd to hold that the jury were prejudiced by such a remark, or that they found him guilty of some offense not set forth in the information, and of which there was not a scintilla of proof. Judgment affirmed.

The other Justices concurred.


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    PEOPLE v. BERRY.
    1. Criminal Law — Warrant—Jurisdiction op Magistrate — Examination of Witnesses — Local Option Law.-
    The examination conducted by a justice of the peace prior to the issuance of a warrant of arrest for an offense not cognizable by him need not be reduced to writing, and, therefore, unless the contrary appears, it will be presumed that the justice had before him sufficient proof to confer jurisdiction.
    So held where, in a prosecution under the local option law, it was contended that the return of the justice failed to disclose that, at the time of issuing his warrant, there was any competent evidence before him tending to establish the fact that the law was in force within the county.
    2. Same — Trial—Requests to Charge.
    Error will not lie upon the refusal of requests to charge, the substance of which was covered by the charge as given.
    ■3. Local Option Law — Preliminary Examination — Information —Evidence Warranting.
    Evidence adduced upon the preliminary examination of one charged with a violation of the local option law, tending to show that the respondent kept an ordinary saloon for the sale of intoxicating liquors, is prima facie sufficient to authorize the filing of an information containing the statutory exceptions in relation to druggists and registered pharmacists.
    4. Criminal Law — Witnesses Named on Information — Failure op Prosecution to Produce.
    A conviction will not be reversed because of the failure of the prosecution to produce a witness whose name was indorsed upon the information, where it appears that such witness was beyond the jurisdiction of the court, and that all evidence of the transaction in regard to which he was to testify was stricken out by the trial judge.
    5. Same.
    It is not error for the prosecution to refuse to call a witness whose name is indorsed upon the information, where proof of the fact to which he was to testify has become unnecessary.
    6. Violation op Liquor Law — Evidence.
    On a prosecution for keeping a place where liquors were illegally sold, evidence that persons were seen to enter such place sober, and afterwards come out intoxicated, is admissible.
    Exceptions before judgment from Hillsdale; Lane, J.
    Submitted November 21, 1895.
    Decided December 3, 1895.
    William Berry and Lyman Strang were convicted of violating the local option law.
    Affirmed.

      William G. Ohadwiclc, for appellants.

      Guy M. Chester, Prosecuting Attorney, for the people.
   Grant, J.

The respondents were convicted of a violation of the local option law in force in Hillsdale county.

1. It is first urged that the justice of the peace obtained no jurisdiction to issue a warrant for the arrest of the respondents, and for holding an examination, because his return does not disclose that he had before him any sufficient, competent evidence to establish the fact that the law was in force. The warrant states that he had examined on oath one Mickle and the deputy ■ county clerk. The law does not require these examinations to be reduced to writing, and the presumption, therefore, is that the justice had before him sufficient proof to confer jurisdiction. This point is expressly ruled by People v. Bechtel, 80 Mich. 623, 631.

2. Error is next assigned because the circuit judge did not give certain requests in behalf of the respondents in the exact language of the requests. So far as these embodied the law, they were given in substance in the oral charge, and this was sufficient.

3. The information charges the respondent with keeping a saloon where prohibited liquors were sold, and contained the exceptions enumerated in the statute. It is now claimed that there was no evidence adduced upon the examination before the justice covering the various exceptions in the statute. The testimony taken disclosed the situation and character of an ordinary saloon, and there was enough testimony to make a prima facie case that the respondents were not engaged in the business of keeping a drug store. Similar testimony was adduced upon the trial, and was sufficient for the jury to find that the respondents were not druggists, and were not keeping a place for the sale of liquors such as the statute permits. It was further proven upon the trial by the county treasurer that the respondents had filed no druggist’s bond.

4. Error is assigned in that the court refused to compel the prosecution to call two witnesses whose names were indorsed upon the information. It appeared that one of the witnesses had moved out of the State, and was therefore beyond the jurisdiction of the court. It also appeared that this witness was relied upon to testify to a sale of liquor upon a certain day, and that the judge struck out all evidence of that transaction. Under this state of facts, it was not error to refuse to call the witness. The other witness was secretary of the board of pharmacy, and evidently his name was indorsed for the purpose of showing, if necessary, that respondents were not registered pharmacists. This was not necessary, and it was therefore not essential to call the witness.

5. Testimony was introduced as to the condition of persons seen to go in and out of the defendants’ place. This was entirely competent. Black, Intox. Liq. § 497.

Some errors were assigned upon the admissibility of testimony, but we do not consider them of sufficient importance to discuss. We find no error in admitting it.

The conviction is affirmed, and the court below directed to proceed to judgment.

The other Justices concurred.