author: Brooke, J. Ostrander, J.

text:
    SHEPHERD v. JUDGE OF THE RECORDER’S COURT OF THE CITY OF DETROIT.
    1. Constitutional Law — Title of Statutes — Criminal Law— Oleomargarine, Sale of — Advertisement.
    Under art. 5, sec. 21, of tie Constitution, requiring the object of any statute to be single and to be expressed in the title, Act No. 147, Pub. Acts 1899 (2 How. Stat. [2d Ed.] § 3225), is invalid: the title “An act in relation to the manufacture and sale of oleomargarine or imitation butter” is insufficient to fairly apprise the reader that it was intended to prohibit thereby the association of the word butter with any advertisement of oleomargarine and to create a punishable offense.
    2. Criminal Law — Advertising—Oleomargarine—Sales.
    Mandamus should not issue to compel the trial court to vacate an order quashing an information against respondent for violating Act No. 147, Pub. Acts 1899 (2 How. Stat. [2d Ed.] § 3225), forbidding tbe use of tbe words butter, etc., in any advertising matter relating to tbe sale of oleomargarine, and charging respondent with publishing tbe following advertisement, to wit: “Why pay high prices for butter? Let us send you a trial order of our fresh churned rolls at 22c and 25c lb., etc.”
    Mandamus by Hugh Shepherd, prosecuting attorney for the. county of Wayne, to compel William F. Connolly, judge of the recorder’s court of the city of Detroit, to set aside an order quashing an information
    and to proceed with the trial of Frank G. Lafer. ’
    Submitted January 14, 1913.
    (Calendar No. 25,389.)
    Writ denied May 28, 1913.

      Roger I. Wylces, Attorney General, Hugh Shepherd, Prosecuting Attorney, and Robert M. Toms, Assistant Prosecuting Attorney, for relator.

      Ormond F. Hunt, for respondent.
   Brooke, J.

This is an application by the prosecuting attorney of Wayne county for a writ of mandamus requiring the respondent, associate recorder of the city of Detroit, to set aside an order quashing an information against one Frank G. Lafer, and to proceed with the trial of said Lafer under the information filed in said cause. The information was filed under Act No. 147 of the Public Acts of 1899 (2 How. Stat. [2d Ed.] §3225), the title and applicable provisions of which are as follows:

“An act in relation to the-manufacture and sale of oleomargarine or imitation butter.”
“Sec. 4. No person shall use in any way, in connection or association with the sale or exposure, for sale or advertisement of any substance designed to be used as a substitute for butter, the word ‘butter,’ ‘creamery’ or ‘dairy,’ or the name or representation of any breed of dairy cattle, or any combination of such word or words * * * or symbols or combinations thereof commonly used in the sale of butter.”
“Sec. 7. Whoever violates any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars, nor more than five hundred dollars, and the costs of prosecution, or by imprisonment in the county jail or State house of correction and reformatory at Ionia, for not less than six months nor more than three years.”

The information follows:

“In the name of the people of the State of Michigan, Hugh Shepherd, prosecuting attorney in and for the said county of Wayne, who prosecutes for and on behalf of the people of said State in said court, comes now here in said court, in the July term thereof, A. D. 1912, and gives the said court to understand and be informed that Frank G. Lafer, late of said city of Detroit, in said county, heretofore, to wit, on the 16th day of March, in A. D. 1912, at the said city of Detroit, in the county aforesaid, did unlawfully use in connection and association with the sale and advertisement of a certain substance, to wit, oleomargarine, designed to be used as a substitute for butter, the word ‘butter,’ which said advertisement is in words and figures as follows, to wit:
‘Wliy Pay High Prices for Butter? Let us send you a trial order of our fresh churned rolls, at 22c & 25c lb. 5-lb. rolls, $1, $1.10, $1.25. Let the goods convince you that we are selling something a great deal better than our competitors. Our goods are always fresh, sweet and wholesome — fit for the best table In the land — satisfaction guaranteed. Fresh oleomargarine, 12%c, 14c, 18c lb.’
“And which said above-described advertisement he, the said Frank G. Lafer, did cause to be printed and published in an issue of the Detroit Journal, under date of March 16, 1912, a daily paper printed, published, and circulating in the said city of Detroit, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.
“Hugh Shepherd,
“Prosecuting Attorney.”

After examination in the police court, Lafer was held to trial in the recorder’s court, where he filed the following motion:

"Now comes Frank G. Lafer by Ormond F. Hunt, his attorney, appearing specially for this motion only and not appearing generally, and moves the court that an order be entered quashing, vacating, setting aside, annulling, and holding for naught the information and warrant in this case upon grounds as follows:
“First. The recorder’s court of the city of Detroit has no jurisdiction to prosecute said defendant upon said information.
“Second. The information and warrant in this case are void upon their face in that no criminal offense against defendant is alleged and set forth therein.
“Third. Act No. 147 of the Public Acts of Michigan for the year of 1899 is unconstitutional, null, and void for reasons as follows: (a) It contravenes the provisions of the Constitution of the State of Michigan. (b) It contravenes the provisions of the Constitution of the United States and the amendments thereto.”

Upon the argument of this motion the court below held that the provisions of section 4 were not fairly within the title, and therefore that, as to those provisions, the act was invalid under section 21, art. 5, of the Constitution:

“No law shall embrace more than one object which shall be expressed in its title.”

This law is penal in character. One convicted for a violation of its provisions is liable to both fine and imprisonment.

The title of the act here under consideration is extremely broad and general. It is urged on behalf of respondent that one reading this title would not know whether the provisions of the act were to prohibit the manufacture and sale of oleomargarine or merely to regulate and restrict such manufacture and sale, nor whether the act was civil or penal in character. It is particularly asserted that the words, “in relation to the manufacture and sale of oleomargarine,” give no hint to the reader that the body of the act contains a clause making it a penal offense to use, in an advertisement of any substance designed to be used as a substitute for butter, the word “butter,” etc.

It is clear that the use of the words in question, in the manner described, would be entirely innocent but for the inhibition of the statute. In the case of Grosvenor v. Duffy, 121 Mich. 220 (80 N. W. 19), this court had under consideration an act entitled “An act to prohibit and prevent adulteration, fraud, and deception in the manufacture and sale of articles of food and drink.” The respondent was charged with selling oleomargarine colored in imitation of butter, contrary to the provisions of the statute. This court, speaking through Mr. Justice Grant, said:

“This brings us to the only questions we need to determine, viz.: Is the title to the act broad enough to include the sale complained of? Would any person reading the title to the bill, in the legislative journals or elsewhere, suppose that the bill would make criminal an act which in itself was entirely harmless, honest, innocent, and contained no element of wrongdoing? Or that it would change the well-known definition of a word so as to include within it things which were in no sense akin to it, and which could only be included in it by the most arbitrary legislative enactments ? Would a manufacturer of or a dealer in butter or oleomargarine be notified by the title that the harmless coloring of either was not only to be prohibited, but to be punished by fine or imprisonment or both? There can be but one answer to these questions. When the legislature attempts to change definitions, and to make acts criminal which per se are innocent and contain no element of wrong, there must be something in the title to show such purpose or object, under section 20, art. 4, of the Constitution. The title contains not even an intimation that an entirely innocent act is to be made a crime” — citing cases.

See, also, People v. Beadle, 60 Mich. 22 (26 N. W. 800) ; In Matter of Lamphere, 61 Mich. 105 (27 N. W. 882) ; People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578); In Matter of Hauck, 70 Mich. 396 (38 N. W. 269); In re Snyder, 108 Mich. 48 (65 N. W. 562).

In no case brought to our attention has there been an attempt on the part of the legislature to pass a law-penal in character under a title so broad and unilluminating as that here under consideration. It may-well be doubted whether the advertisement in question comes within the inhibition of the statute even conceding its constitutionality. As the prosecution must fall for the graver reason, however, it is not necessary to discuss this point.

The writ is denied.

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

Ostrander, J.

In my opinion the advertisement is not in violation of the statute, and for this reason I think the recorder was right. I concur in denying the writ.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    DORRANCE v. MICHIGAN UNITED RAILWAYS CO.
    1. Carriers — Street Railways — Ice and Snow — Evidence.
    Where defendant claimed, in an action for personal injuries, that plaintiff, a passenger on its street car, fell because of the sudden application of the brakes, and plaintiff claimed that she fell because of accumulated snow and ice in the vestibule of the car, upon testimony showing that the weather was snowy and melted snow accumulated in the vestibule of the car, that she did not fall forward but slipped down feet foremost, and on plaintiff’s testimony supporting her contention, the question was for the jury.
    2. New Trial — Motions—Negligence.
    Evidence as to the cause of plaintiff’s fall being in conflict, and the weight thereof being for the jury, it was proper to deny a motion for a new trial.
    3. Carriers — Negligence—Due Care.
    Whether the employees in charge of defendant’s car had a reasonable opportunity to remedy the accumulation of snow in the vestibule of the car when it reached the end of the line and the trolley was changed before the trip on which plaintiff was hurt, was a question of fact.

    4. Same — Evidence.
    Unsupported by any testimony that the condition of the car on a subsequent trip remained the same as when plaintiff slipped on the accumulated snow, evidence relative to the condition at the later time was incompetent and prejudicial when admitted for other purposes than to show the climatic condition.
    Error to Kalamazoo; Knappen, J.
    Submitted January 14, 1913.
    (Docket No. 105.)
    Decided May 28, 1913.
    Case by Marie C. Dorrance against the Michigan United Railways Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Sanford W. Ladd, for appellant.

      Edward J. Anderson, for appellee.

      On the question of the duty of a carrier of passengers to keep steps of cars free from snow and ice, see note in 35 L. R. A. (N. S.) 592.

   KUHN, J.

This is an action brought for damages arising from personal injuries occasioned, as claimed by the plaintiff, by slipping on an accumulation of ice in the vestibule of one of defendant’s cars.

The route upon which this car was running in the city of Kalamazoo was known as the Washington and West street car line. The car started at the Michigan Buggy Works on Reed street and ended at the top of the West street hill, and the running time from one end of the route to the other was about 25 minutes. The cars operated on this route are known as pay-as-you-enter, double-end, double-truck cars, with closed vestibules at both ends; the conductor and motorman changing ends when arriving at the end of the line. The passengers entered the rear platform on the right-hand side and would leave the car from the front platform on the same side. The car in question left the car barns at 6:05 a. m. on the 7th day of January, 1911, the day of the accident, and was starting on its second round trip when plaintiff boarded the car at 7 o’clock a. m. at the corner of James street and Washington avenue. There is no dispute that when the car reached Rose street Mrs. Dorrance attempted to leave the car at the front door and fell in the front vestibule; and the matters in controversy are how the accident happened and the extent of plaintiff’s injuries. It is also undisputed that there was snow on the ground on the day of the accident.

The defendant, by assignments of error, raises the question that a verdict should have been directed for the defendant for the reason that before the plaintiff could recover it was incumbent upon her to show that there was ice in the vestibule which was apparently dangerous, that it must have remained there for an unreasonable length of time, and that defendant’s employees must have had an opportunity to remove the accumulation, if there was any, before the time of the accident.

The plaintiff testified that as she was about to leave the body of the car and stepped into the vestibule she noticed a little lump of ice, but did not see it in time to avoid stepping on it; that she fell on her back; and that her head struck upon the irons on which the doors slide. It was the theory of the defendant that the accident occurred because of the sudden application of the air brakes, which caused the plaintiff to fall, and it is claimed that the testimony of the plaintiff is not corroborated sufficiently to warrant the circuit judge in allowing the verdict to stand, because it. is claimed that it is clearly against the weight of the evidence.

Henry Kremer, who was a passenger on the car, was a witness offered by the defendant, and testified as follows:

“I noticed a lady while the car was on its way from Burdick to Rose street. I noticed that she got up before the car stopped.
“Q. What did she do?
“A. She walked to the front door, or nearly to it, and stood there, and the car was coming to a stop; her feet seemed to go from under her, and she fell in the front vestibule.
“Q. Did you notice anything about the air going on?
“A. No more than usual. * * *
“Q. You didn’t notice any jerking, jerking her off her feet?
“A. No, sir; I didn’t see her step down into the vestibule. I can’t tell how she fell. I saw her strike against the step. I couldn’t say where she struck. She fell hard.
“Q. Did her feet slip out from under her when she fell?
“A. They seemed to, to my knowledge; yes, sir.
“Q. She didn’t sit down on her feet, then?
“A. I don’t think so; no, sir. I couldn’t see her after she had fallen.
“Q. How flat was she on the vestibule floor when you first saw her down?
“A. Her feet seemed to be nearly to the motorman. The motorman took hold of her and helped her up by the arm.
“Q. Well, she didn’t step down, stand there behind the motorman before she fell, did she?
“A. No. sir.”

F. M. Meredith, another witness for the defendant, testified as follows:

“A. There was a lady on the car, and when it got about halfway between the two blocks she got up and walked into the front vestibule and stood right behind the motorman, and when they got up to Rose street they put on the air, and as the car stopped she fell down right back of him in the vestibule, went over backwards, down in kind of a heap right back of him.”

The motorman, Ernest Middleton, testified as follows :

“I stopped the car for Mrs. Dorrance to alight at Rose street. I didn’t notice her until she got on the platform. I opened the vestibule exit door for her. I didn’t open the door going out of the car where the seats are into the vestibule.
“Q. She is supposed to open that herself?
“A. That door is always open.
“Q. How far down did she have to step to get into the vestibule?
“A. It is about a nine-inch drop, I think; I am not positive. I opened the exit door.
“Q. Did you notice any trouble there that morning when she was going from the car where the seats are down into the vestibule?
“A. In what way do you mean? I noticed she fell on that platform. Why, as she stepped down on the platform, she fell, fell down on the platform. I was not watching her. I was turned around to open the door like this, and my head was turned, I should say, when she started to fall.
“Q. Did she fall with any force?
“A. She fell about as heavy as any one could fall that distance; I don’t know what you call force. She struck on the platform, her bottom I should judge. I do not think her back and shoulders and head and neck struck any part. I am not positive. * * * The first thing that attracted my attention was that she fell on the platform. At that time I was facing west, the front of the car. As the motorman reaches over to open the exit door he has to turn slightly. When I reached to open the door, I naturally looked over my shoulder, so I knew that some one was there. When. we stop the car I naturally would look around to see if any one is going to get out or not. As I reached over to open the door I saw her step on the platform of the vestibule, and I saw her start to fall; of course, when she started to fall I stepped around naturally to help her. I had opened the door before. When I stepped around to help her> she was facing directly west, the front end of the car. Her legs were straight out on the platform. I assisted her to rise. I asked her if she was hurt, and she said she didn’t think she was. I asked her for her name; she didn’t give me any name. She started away.”

We think there is sufficient in this testimony to corroborate the theory of the plaintiff that her fall was caused by her feet slipping out from under her. Several witnesses testified that she fell backwards and that her limbs projected out into the vestibule. The jury were warranted in accepting this theory of the case rather than the one that the fall was caused by the sudden stopping of the car, which, under ordinary circumstances, and it could reasonably be claimed, would have resulted in her being thrown forward.

The question of the weight of the evidence is clearly one for the jury. Curry v. Traver-Bird Co., 167 Mich. 17 (132 N. W. 463) ; Johnson v. Railway Co., 162 Mich. 301 (127 N. W. 271); Tietz v. Railway Co., 166 Mich. 205 (131 N. W. 710). As was said by this court in the case of Galloway v. Railway, 168 Mich. 343, 346 (134 N. W. 10, 11):

“To entitle the defendant to a directed verdict, there must have been no evidence tending to show its culpability in the premises.”

As the evidence in this case was clearly conflicting, we think that the trial court properly denied the motion for a new trial on the ground that the verdict was against the weight of the evidence. See Grimme v. Fraternal Aid Ass’n, 167 Mich. 240 (132 N. W. 497).

The trial judge charged the jury upon the liability of the defendant as follows:

“If you find from the evidence in this case that in operating this car snow had been tracked into its vestibule and become hard and packed and two or three inches high in the vestibule just in front of this door, as claimed by plaintiff, and that such snow had been tracked in there and formed, as claimed by her, and that it was the duty of the defendant, in operating this car in which this plaintiff claims she took passage, to sand or chip off the hard snow which had been tracked into the vestibule, if it had been, when en route the other way, and that on this morning before the plaintiff entered this car other persons had tracked into this vestibule, when said car was going the other way, snow which had fallen the night previous, or at some other time, and that it had been packed and was hard and formed a rise at the foot of the step from the car proper so that it was not reasonably safe for passengers in leaving this car to pass over, and that the defendant carelessly, recklessly, and negligently failed to observe its duties in that behalf and allowed this snow to remain in this vestibule in this condition, if it were so tracked in there, and that these employees had at the Washington avenue end of its run, just before plaintiff took passage, a reasonable opportunity and time in which to chip off or sand the same, and that it was not snowing that morning and had not been since said car first commenced to run, as plaintiff claims, and upon leaving this car that morning while using due care and diligence she stepped down upon this ice, and that she did not see it until she was stepping down and could not refrain, and in stepping upon it she slipped and fell from which she received injuries to her person, then I charge you she would be entitled to recover from the defendant whatever lawful damages she has proven, if any, were sustained by her.”

It is contended that, even if ice had accumulated in the front vestibule of the car, no reasonable opportunity had been afforded the defendant to remove it before the time of the accident. On the first round trip this front vestibule was used as a rear vestibule, and, under the theory of the plaintiff, the snow and ice was carried into the front vestibule while the car was making the return trip of its first round trip. It, however, proceeded to the end of the line, and there, according to the testimony, the only thing that was done was to turn the trolley pole. At this point, when this change was being made and the motorman and conductor changed places, the car being stationary at the end of the route, we think it can properly be claimed that a reasonable opportunity was afforded the defendant to remove any accumulations of ice or snow in the vestibule, and that it was its duty to do this before starting out on another trip. This question was properly submitted to the jury by the trial court. See Foster v. Railway Co., 182 Mass. 378 (65 N. E. 795).

While it has been repeatedly held that it would be impracticable and beyond the duty which the railroad company owes its passengers to require it to immediately and continuously remove snow and ice from trains or cover them with sand or ashes in such manner that no slippery places shall at any time be exposed, nevertheless, as was said in Neslie v. Railway Co., 113 Pa. 300, 304 (6 Atl. 72, 73):

“It may be impossible in the winter to prevent deposits on the step by falling snow, or from the feet of persons entering the car, and which in either case may result in the formation of ice. The main question in regard to this is whether it remained there for such time and in such form as to establish the negligence of the defendant, and that this negligence contributed to the injury of the plaintiff.”

See, also, Riley v. Rhode Island Co., 29 R. I. 143 (69 Atl. 338, 15 L. R. A. [N. S.] 523), and cases cited in note, 17 Am. & Eng. Ann. Cas. 50.

On the trial of the cause the husband of the plaintiff was offered as a witness, and testified as follows:

“I followed her down town that morning.
“Q. On what car? (Objected to as incompetent and immaterial. Exception.)
“A. I followed, I believe, with the same crew.
“Q. You may state whether or not there was any. snow on the ground?
“A. Yes, sir.
“Q. Where did you enter that car; from what end? (Objected to as incompetent and immaterial and prejudicial to the defendant in this case, and subsequent to the time of this accident. Overruled; exception.)
“A. At the rear end.
“Q. To what place did you go?
“The Court: Go ahead. (Exception for defendant.)
“A. To the corner of Portage and Main streets.
“Q. At what end of the car did you leave?
“A. At the front end.
“Q. You may state what the condition of the floor of the car was when you left it? (Objected to as incompetent.)
“The Court: I have already ruled on that, and I shall adhere to the same ruling.
“Mr. Mills: I understood when counsel undertook to state it to the jury the court did not pass upon it.
“The Court: When one witness was on the stand I allowed him to testify to the condition of the car on the subsequent trip. (Exception for defendant.)
“A. It was in an uneven condition, the front end of the car, frozen snow; looked like as though it was tracked in and frozen up, humped up like, uneven.
“Mr. Mills: I move that go out as irrelevant and incompetent. (Overruled; exception.)
“Mr. Mills: There is nothing to show that the car was in the same condition as it was at the time of the accident.
“The Court: That is a question for the jury.
“I didn’t see Mrs. Dorrance that day after I got off the car until probably 12:30; 12:30 at the Michigan Central Depot.
“Mr. Anderson: In offering the testimony of this witness in regard to the condition of the vestibule of that car, I intended to get upon the record the purpose for which we offered it; but I forgot it.
“The Court: You may, if you wish to.
“Mr. Mills: The court ruled it in, I supposed.
“The Court: I think that is so. I ruled in your favor and allowed it to go in, as Judge Mills says. I think on the argument to the jury you can state for what purpose you wish it in.
“Mr. Ladd: Suppose we make a motion to strike out all the testimony in reference to the condition of the car as testified to by Mr. Dorrance, for the reason that it is incompetent and immaterial, in view of the fact that it was subsequent to the time of the accident,- and there is no proof that the car was in the same condition.
“The Court: That will be denied by the court with an exception.
“Q. In which vestibule of the car was this hard snow?
“A, It might have been in both. I noticed it when I was leaving the car.
“Q. Where was it with reference to the inner door; . to the front end of the car?
“A. Directly in front as you. enter the vestibule from the car.”

It is contended by counsel for the defendant that it was error to allow Mr. Dorrance to testify as to the condition of the vestibule without its having been shown that the condition then was the same as it was when the plaintiff fell. The rule as to showing the condition of a place subsequent to the time in question is stated in 11 Enc. of Ev. p. 820, as follows:

“Again, upon the question of the probable condition of a thing or place at a particular time, evidence of its condition both prior and subsequent to the time in question is admissible where it is shown that there has been no change in the meantime, as where it appears that the condition is a permanent one in its nature and not subject to change, or that it is of such a nature as to warrant the inference that no change has taken place.”

To make the testimony competent it must at least raise an inference that the condition at the time the vestibule was seen by the witness was the same as when the accident occurred. The cases cited in support of plaintiff’s contention ane all cases where such an inference could be drawn. It does seem, however, that in the instant case, considering the character of the substance alleged to have caused the injury, the fact that it changes in form so readily, the fact that in the vestibule the snow was melting, that passengers had entered and left the car through the vestibule during the interim, that snow had undoubtedly been tracked into the vestibule, as it is admitted that snow was on the ground — if any inference is to be drawn, it would be that the conditions were not the same when the witness observed them as when the accident occurred. Under these conditions and the complete absence of any positive showing that the conditions were the same, and no such inference being deducible, we think it was improper to allow the witness to testify as to the condition of the vestibule as he found it. Counsel claim that an attempt was made to limit the purpose for which the testimony was offered to show the climatic conditions on the day of the accident. At the time the jury was being charged the following occurred:

“Mr. Anderson: I would like to have the jury instructed, in substance, that the only thing they can consider the testimony of Fred Dorrance, in regard to snow being on the front vestibule when he was on the car, is for the purpose of determining the climatic conditions that morning and for determining whether or not snow could have been tracked into that vestibule on the first return of the car back before Mrs. Dorrance boarded the car. That is all we claim for it.
“The Court: If that is all you claim for it, the jury have heard what you claim. The testimony is before the jury for all purposes.
“Mr. Mills: The jury can consider it for all other purposes.
“The Court: Yes.
“Mr. Anderson: If they want to.
“The Court: They should consider his testimony the same as any other witness in the case. That is all you claim for his testimony. I understand you to say that you don’t claim anything for his testimony on the question of snow and ice there, except to show the condition of the car on that morning and the climatic conditions surrounding it.
“Mr. Anderson: The condition of the car when it made — not to show the condition of the car, but to show that snow could have been tracked into that car.
“The Court: That is a matter of argument. I do not think I will give any charge upon that.”

From the foregoing it appears that, although counsel for plaintiff attempted to limit the purpose to the showing of climatic conditions, the court admitted it for all purposes and especially to show the condition of the car. We are satisfied that it was proper to admit the testimony to show climatic conditions, to show that snow was tracked that morning and that it was congealing. It was improper, however, to admit it to show the condition of the car at the time of the accident, and this was prejudicial error.

It is unnecessary, in view of the foregoing, to review the other assignments of error.

The judgment is reversed, and a new trial granted.

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


author: Kuhn, J.

text:
    GRAND HAVEN ARBEITER UNTERSTUTZUNGS VEREIN v. SOULE.
    1. Taxation — Equity Pleading — Bill of Complaint.
    A bill of complaint, filed for the purpose of removing a cloud from a title and to redeem from a tax sale, was improperly filed in the proceedings for a tax decree and sale instituted by the auditor general, and incorrectly entitled in that cause; it was not a bill of review and should have been entitled as an original bill and for purposes of the case will be so treated on appeal.
    2. Same — Confirmation—Res Judicata — Statutes.
    After confirmation of a tax sale no objections lie to the regularity of the proceedings which are not open to collateral attack under Act No. 262, Pub. Acts 1899 (1 How. Stat. [2d Ed.] § 1839), except in case the taxes have been paid or. the property is exempt; failure of the treasurer to adjourn the sale from day to day is not a valid ground of objection.
    3. Same — Filing Objections.
    ' If it is desired to object to the regularity of a tax sale, a notice in writing filed with the treasurer is insufficient, since the tax law requires objections to be filed within 28 days with the county clerk. 1 Comp. Laws, § 3893, as amended by Act No. 262, Pub. Acts 1899 (1 How. Stat. [2d Ed.] § 1839).
    4. Same — Redemption.
    Since the amendment of 1907, Act No. 34, the owner of lands appearing on both State tax land list and tax record, and sold by the county treasurer from both lists, is not entitled to redeem except by paying the hundred per cent, penalty upon the entire price paid, etc., and securing a reconveyance from the purchaser.
    5. Same — Equity—Demurrer—Parties.
    The objection that one of several defendants was improperly made a party cannot be raised by general demurrer, and no appeal lies from an order overruling it.
    Appeal from Ottawa; Cross, J.
    Submitted January 16, 1913.
    (Docket No. 130.)
    Decided May 28, 1913.

      Bill by the Grand Haven Arbeiter Unterstutzungs Verein against Charles E. Soule and others for removal of a cloud from complainant’s title and to redeem from a tax sale. From a decree overruling a demurrer to the bill, defendant Soule appeals.
    Reversed.

      Dan F. Pagelsen (Walter I. Lillie, of counsel), for complainant.

      Soule & Soule, for defendant Soule.
   Kuhn, J.

The amended bill of complaint in this cause was filed to remove a cloud from the title of land and to redeem from a tax sale. It attacks the validity of a county treasurer’s sale and was entitled:

“In the matter of the petition of the auditor general of the State of Michigan, for and on behalf of said State, for the sale of lands delinquent for the taxes of 1909, Ottawa county, Mich.”

By demurrer the defendant Soule raises the question that the bill of complaint, being filed in the tax sale case, is a bill in the nature of a bill of review, and that, having been filed without leave of court, it should be dismissed by virtue of Chancery Rule 27. The bill does not seek to review any of the proceedings which led up to the decree, nor does it attack the decree, and so it could not properly be said to be a bill in the nature of a bill of review. 3 Enc. of PI. and Prac. p. 570.

No proceedings are questioned, except the manner of sale and the right to redeem, and although we consider it improper to have filed this bill in another proceeding, as it should have been filed as an original bill, for the purposes of this case we shall consider it as such.

The bill recites that the sale commenced on May 7, 1912, and on May 9, 1912, Charles E. Soule went into the county treasurer’s office and bought the land described in the bill, in the name of Lewis H. Blanchard, at private sale, for the taxes of 1908 from the State list, and for 1909 from the advertised list, at private sale, and received a certificate for the 1909 and also for the 1908 tax, which was then on the so-called State list; that on the 7th day of May, there was no bid made on said lots; and that no adjournment of said sale was had, and no announcement of an adjournment was made. It is claimed that as a result the sale made on the 9th day of May was invalid.

There are no averments in the bill that objections were filed with the clerk to the confirmation of the sale before June 5th, the end of the eight-day limit provided by law, and as a result the sale stood confirmed. Section 70 of the tax laws (section 3893, 1 Comp. Laws; amended by Act No. 225, Pub. Acts 1897; amended by Act No. 262, Pub. Acts 1899) (1 How. Stat. [2d Ed.] § 1839), provides:

“That no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation.”

In our opinion, the sale standing as confirmed, no objections can now be urged as to the regularity of the sale, with the exception of the cases enumerated in the statute.

A notice in writing was served on the county treasurer calling his attention to the claimed irregularity in the sale because of the so-called adjournment, and protesting against any one obtaining any rights because of the sale as made. This can have no legal effect, however, as the county treasurer had no other duties to perform but to make his report of the sale to the county clerk within 20 days, as provided by said section 70, and the objections should have been filed with the latter officer, if it was desired to take any advantage of the claimed irregularity.

Another question raised by the pleadings is whether, under the law, the owner of land in Michigan can redeem from the sale thereof from the delinquent list without paying the 100 per cent, when said lands are also at the same time offered for sale from the State tax list. The land involved in this controversy being held on the State tax list for taxes of 1908 and on the tax record for the taxes of 1909 at the time of the annual sale for taxes at the office of the county treasurer in May, 1912, it was incumbent upon the purchaser to purchase from both lists at one and the same time; and, if this was not done, it was the duty of the county treasurer to reject the bid.

Section 70 of the tax law, supra, provides as follows:

“Provided, that if any parcel sold under the provisions of this section shall also be offered at the same sale as State tax lands, the purchaser must also at the same time become the purchaser from the State tax land list, and pay the taxes, interest and charges remaining unpaid thereon,” for all years for which such land is held as State tax land.

Section 80 of the tax law (1 Comp. Laws, § 3903, 1 How. Stat. [2d Ed.] § 1850) provides:

“In all cases where a description of land is offered as State or county tax land, and the same description or any part thereof shall be offered in the list of lands delinquent for taxes, as provided in this act, the county treasurer shall inform the person bidding for the same of that fact, and such person shall be required to purchase- said dscription at the same time, and if he refuses so to do, the treasurer shall refuse his bid, and shall again offer it as if no bid had been made thereon.”

In the instant case, there was one sale and to the same individual. It is the claim of the defendant Soule that, as the lands sold were bought from both lists, the prevision in the law with respect to redemption, which would apply if the land had only been sold for the taxes of 1909, does not apply, and the only remedy the property owner has is under the reconveyance feature of the general tax law, viz., section 140 of the tax law et seq. Section 140 requires the owner, in order to obtain a reconveyance, to pay 100 per cent, and $5 per description in addition to the amount the purchaser was required to pay as a condition of his purchase. Section 141 (1 How. Stat. [2d Ed.] § 1912), which provides:

“The owner of the tax title, or of any and all such certificates of sale, * * * shall forthwith deliver to said register a release and quit claim of all rights acquired by him under said tax purchase, running to the person making such payment, and shall also deliver to said register the tax deed, certificates of purchase, tax receipts, and all other conveyances relating to said tax title or tax interest before he shall be entitled to receive the money paid to said register as herein provided”

—seems to make it apparent that the requirement above referred to applies to county treasurers’ sales. The case of Monaghan v. Auditor General, 136 Mich. 247 (98 N. W. 1021), is relied upon by complainant, but since this decision, by Act No. 34, Pub. Acts 1907, sections 81 and 82 of the tax law were amended, leaving out the provisions for redemption upon which that decision was based. Section 81, as amended, no longer requires the certificate of the county treasurer upon payment of the purchase money to be issued “in such form as is prescribed by section 71,” but provides that it shall be “in such form as the auditor general shall prescribe.” The words, “after the period of redemption provided in this act shall have expired,” which appeared in section 82 at the time of the •Monaghan decision, by the amendment of 1907 have been omitted. This section now reads:

“The auditor general or his deputy, on presentation and surrender of such certificate, shall issue to the purchaser, his heirs or assigns a deed of conveyanee, except when it shall appear that the land has been redeemed or the taxes paid prior to date of sale thereof: Provided, that such deed shall have the same force and effect as is given by section seventy-two of this act.”

Under the law the owner might have redeemed for the taxes of 1908 at any time prior to the sale by the county treasurer in May, 1912, and if he had so redeemed a deed would not have issued. But in case of no such redemption and the taxes not being paid, as in the instant case, the auditor general was authorized by said section 82 to issue a deed immediately upon presentation of the certificate of purchase to that official. These amendments to the law eliminated the redemption after the date of the sale from both lists by the county treasurer, and the only redress the owner had was, under the reconveyance feature of the law already referred to, by paying the amount bid at the county treasurer’s sale, adding thereto 100 per cent, and $5 for a description fee, as the land was sold as one description. Because of these amendments to the law, this case is brought within the ruling of this court in the case of Cheever v. Land Co., 134 Mich. 604 (96 N. W. 933), where the following language was used:

“We do not think that the effect of this construction is to repeal section 74. It is true, it makes that section inapplicable where the tax for which the land was sold has been paid by a purchaser of the title of the State.”

In case the land had not been sold at the county treasurer’s sale, it would have thereafter been subject to private sale at the office of the auditor general under the provisions of section 84 of the general tax law (section 3907, 1 Comp. Laws; 1 How. Stat. [2d Ed.] §1854).

The point is made that Mr. Soule is not a proper party defendant, but this cannot be raised by general demurrer; misjoinder of parties being properly the subject of special demurrer, from which no appeal can be taken. Story’s Equity Pleadings, § 527; Kerr v. Rupp, 144 Mich. 269 (107 N. W. 1059). The complainant has not stated grounds in its bill of complaint which entitles it to relief, and the demurrer of the defendant should have been sustained.

The decree of the court below is reversed, with costs.

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


text:
    MURPHY v. GREAT LAKES DREDGE & DOCK CO.
    1. Master and Servant — Lighting—Negligence.
    In conducting excavation at night by means of steam shovels and of engines and cars to haul away the dirt, running into a pit 30 feet in depth between high walls, it was the employer’s duty to provide such a reasonably sufficient lighting system as to render the operations safe for its employees; particularly when it appeared that trains were not subject to any set rules, schedules or regulations, and lights were necessary to safely operate them.
    2. Same — Evidence.
    Testimony in plaintiff’s behalf that the lights became smoky or dim and some of them were out, that the night was stormy and dark, and that a collision occurred with some empty cars left on the track where it had not been customary to leave them, presented a question for the jury as to defendant’s negligence, notwithstanding evidence offered by defendant to show that the lights had been inspected and were burning properly.
    3. Same — Assumption oe Risk — Incidental Dangers.
    Unless the risk was incident to plaintiff's employment or he knew of the existence of the danger encountered, he could not be held to have assumed it.

    4. Same — Custom—Negligence.
    The issue whether it was customary to leave empty cars on the track where the collision occurred being supported by conflicting evidence on either side, it was open to the jury to infer that the engineer had a right to assume that his track was clear and that his negligence was not the cause of the collision.
    5. Same — Charge.
    The trial court correctly charged the jury that plaintiff could not recover if the cause of the accident was the negligence of his fellow-servants, that if it was an ordinary or frequent occurrence to leave cars on the track in question, the engineer must have known of the possibility of danger and if fog or.mist obscured his sight, or the lights were insufficient, he should have approached so carefully as to avoid an accident, that plaintiff knew his employment was dangerous when he went to work, and if he knew that the work was being carried on in such a way that an accident was likely to occur, he assumed the risk of it by remaining in the employment.
    Error to Chippewa; Shepherd J., presiding.
    Submitted January 30, 1913.
    (Docket No. 137.)
    Decided May 28, 1913.
    Case by Frank Murphy against the Great Lakes Dredge & Dock Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Davidson, Hudson & Green, for appellant.

      M. M. Larmonth, for appellee.

       The question whether a servant may assume the risk of dangers created by the master’s negligence is treated in notes in 4 L. R. A. (N. S.) 848 and 28 L. R. A. (N. S.) 1215. And upon the assumption of obvious risks of hazardous employment, see note in 1 L. R. A. (N. S.) 272.

   KUHN, J.

In the spring of 1910 the defendant company was engaged in a large excavation job at Sault Ste. Marie in this State, known as the canal-widening job. The excavating work was done by steam shovels, and the dirt was removed by means of small cars operated by engines on tracks built for that purpose. When the work of this construction was first started, ,a single track was used; but during the fall and winter prior to the accident which resulted in the present litigation another track was installed, known as track No. 2.

The plaintiff was engaged as a brakeman, and on the night on which it is alleged the injury occurred he, together with the engineer on the train on which he was working, named Cameron, took the train from the place near the water tank, which was at the top of the incline, down past the double track, and up on what was called the Vulcan track, below switch A, which was the junction of the two tracks near the scene of the operations of the steam shovel and where a railroad bridge crossed the cut. On the night in question three trains were at work on these operations, in charge of the following engineers, Cameron, Monkman, and Knox. The operations on this night were conducted as follows: The shovel, which was located east of switch A, would load a train of these cars, and the engine would then shove the train up the incline on track No. 2. In making this incline he would be assisted by two other engines, one having backed down from the train which had preceded him up the incline, and the other engine, which had left its train of empty cars on track No. 1, would drop in behind the loaded train and thus help it push up the hill, and then this engine would back down again and take its train of empties to the shovel. When the loaded train would get to the top of the hill, it would be taken over by another engine, known as the “snapper” engine, which engine would take it to the dumping grounds and would have the train ready for its engine upon the return from having assisted the next train in coming up the hill. The empties would then be taken by their engine down track No. 1, with the engine backing down, followed by its train of empty cars.

The plaintiff, Murphy, made but one trip on the night in question. He went up with his load, uncoupled and came down track No. 2, and assisted in pulling Knox’s train up. He then took his train of empties and backed down track No. 1 and collided with Monkman’s train of empties, which were on track No. 1 near the railroad bridge. It is the claim of Murphy that it was his duty in coming down this hill, sitting on the engine, to look back and see that none of the cars of his train left the track, and that he did not look down the incline on the night in question, but relied on Cameron, who was his engineer, whose duty it was to keep a lookout to see that the track was clear. In the collision which occurred Murphy was seriously injured by falling under some of the cars and several of the empties were derailed. Suit was instituted and resulted in a verdict for plaintiff, upon which judgment was had, and the cause was brought here by writ of error.

It is the claim of plaintiff that the accident was due to the negligence of the defendant company because it had not formulated and put into effect a schedule and rules to govern the operation of these trains and also because the place where the work was being done was improperly lighted, and that because of that fact the company had not provided a sufficiently safe place for the employees to work. The company, appreciating that, and in order to make the place safe for the men to work at night, had, prior to the time of the accident, put in over the track from the top of the hill down to the bridge or near switch A a string of lights. They were 16 candle power and were on poles 15 feet high and were placed at different distances; on the crest of the hill at the place of the greatest curve they were about 10 or 12 feet apart, an d from that down the distance between them varied from, approximately, 15 to 25 feet at the bridge. It is the claim of plaintiff that these lights were insufficient and that they had become dim from the smoke and fog, so as to make it impossible for the engineer to see any considerable distance in going down the incline.

It is the claim of defendant that there was no showing of negligence on the part of the defendant which contributed to plaintiff’s injury and that plaintiff, being a man of mature years, of more than average intelligence and experienced in the line of work in which he was engaged, assumed the risk incident to the employment.

A request was made, at the close of plaintiff’s proofs and again at the conclusion of the trial, by defendant’s counsel for direction of a verdict, and error is assigned because of the failure of the court to direct a verdict as requested.

It must be conceded that the operations being conducted were of a dangerous character, as we have the men operating these construction trains in a pit 30 feet in depth with a high wall on three sides and a grade on the fourth side. The work being carried o.n in the night, it was the duty of the company to make the operations reasonably safe by providing suitable lighting. This it attempted to do, as described; but can it be said that its duty stopped here? With its four or more engines operating constantly it is reasonable to assume that the lights would be affected and become dim and smoky, and it follows that their usefulness for the purpose for which they were installed would be impaired. The plaintiff testified that on the night of the accident it was stormy and dark, some of the lights were out, and others smoky. In view of the character of these operations, the trains being operated without any set schedules or rules governing them, it was the duty of the defendant to keep the lights in such a condition as to make the operations of the trains reasonably safe. The rule that it is the duty of the master to furnish the servant a safe place to work is so well established and so universal that no citation of authorities need be given to support it. Testimony was introduced on the part of the defendant to show that the lights were bright and had been inspected. Whether or not the lights served their purpose, or whether the condition of the lights was the proximate cause of the accident, were questions of fact for the jury and were properly submitted to them by the trial court. Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591).

It being claimed that the injury to plaintiff resulted from the negligence of the defendant in not lighting the premises in such a manner that Cameron, the engineer, could have seen the other train in time to have stopped his engine and thus avoided the accident, it cannot be said, as a matter of law, that this was a risk incident to plaintiff’s employment. In the case of Milbourne v. Power Station Co., 140 Mich. 316, 324 (103 N. W. 821, 824, 70 L. R. A. 600), which in some particulars is a very similar case, Mr. Justice Carpenter said:

“Neither do we think that the court can say, as a matter of law, that plaintiff assumed the risk which occasioned his injury. We cannot say that plaintiff assumed it unless we can say that the risk was incident to his employment, or that he knew or should have known that the loaded cars were on the spur. See Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929). If his injury resulted from the negligence of his employer, the risk was not incident to plaintiff’s employment. It does not avail defendant to say that plaintiff assumed the risk of the shock resulting from cars coming together on the siding ‘with customary force.’ For, from the evidence, it may be inferred that the shock of the collision was much greater than the shock ordinarily resulting from cars coming together on the siding. It certainly cannot be said that plaintiff knew that the loaded cars were on the siding. And if those in charge of the train were not bound to know that they were there — and we have held that they were not — neither was plaintiff bound to know it.”

Whether it was customary to leave a train of empties to the west of switch A, at or in front of the railroad bridge, while empty trains were coming down track No. 1, was a matter in dispute. Cameron, the engineer, was not produced as a witness. If, as claimed by the plaintiff, it was not customary to leave cars at the place where the accident occurred, so as to give the men employed notice, Cameron had a right to assume that the track was clear, and it cannot be said that he would be guilty of contributory negligence, as a matter of law, if he operated his train with reasonable care in view of all the conditions. With reference thereto and the assumption of risk the court charged the jury as follows:

“Now, there is another matter here. The plaintiff cannot recover if the accident was the result of the negligence of his coemployees, who, for instance, would be Cameron, or would be Monkman. If the accident was the result of their negligence, then it was not the negligence of the company, naturally, and a person cannot recover in Michigan, if he can anywhere else, for personal injuries when those injuries are the result of the negligence of his coemployees— of his fellow-servants. So, if Monkman, by having his train there, was negligent, thereby causing the accident, plaintiff cannot recover.
“And, further, I charge you that Murphy is charged with knowledge of occurrences which, by reason of their frequency before the accident, any prudent man would expect to occur again. And if it was an ordinary or frequent occurrence that cars were left on track No. 1, westerly from the railroad bridge, Cameron, the engineer, with whom Murphy was riding, must have known, or had every reason to expect, it would occur again, and if, by reason of fog or failure of light, Cameron could not see whether any train was there, still he should have approached so carefully as not to have caused an accident, and is chargeable with the failure so to do. And if you find it was a frequent custom to leave cars on that track, and that any prudent, careful man would have known it, you should return a verdict for the defendant.
“There is another doctrine that might defeat the plaintiff’s action, one which lawyers call the doctrine of assumption of risk. Now, this is a dangerous employment, and the plaintiff knew it when he went there to work. The defendant company did not insure their employees against accident. They do not agree that in every accident that occurs they will compensate them in damages or make it right for them. Murphy must have known this was a dangerous employment, and it was his duty to use prudence and care accordingly. Furthermore, if he knew that this work was being carried on- in such a manner that an accident was liable to occur, it was his duty to quit, and if, knowing that, knowing and appreciating the risk that was involved in continuing to work there, if he continued on in his employment he is deemed to have assumed the risk, and the company is released from liability, and he cannot recover.
“There has been some contradictory testimony — to the best of my recollection it was testified to differently by different witnesses — in regard to mist or fog down there. Naturally the company would not be liable for mist or fog, if the mist or fog alone was the cause of the accident. They are not liable unless their negligence, the negligence of the company, as pointed out, together with mist or fog, was the proximate cause of the injury complained of in this case.”

The case was properly submitted to the jury, and the judgment is therefore affirmed.

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


author: Ostrander, J.

text:
    KLETT v. KLETT.
    1. Specific Performance — Contracts—Oral Agreement to Convey Lands — Parent and Child.
    Complainant, in a suit to specifically enforce an oral contract to convey real and personal property to him in consideration of support and services to be rendered to the father and mother of complainant, was not entitled to the relief prayed upon a record showing that they stipulated as a part of the arrangement that if the son became dissatisfied or the parties were unable to live peaceably together he was not bound to continue to perform the contract; that the condition so introduced into the contract was a material provision thereof, and that the parties had been unable to live together in peace.

    2. Same — Performance.
    Where the defendants became dissatisfied and attempted to terminate the arrangement without sufficient grounds, after complainant had for ten years and upwards endeavored in good faith to carry out the conditions of the contract and had expended considerable sums upon the property or farm in controversy in pursuance of the agreed conditions, he was entitled to an equitable lien upon such portion of the farm as was not exempt for homestead purposes to reimburse him for the improvements made, and the sums expended in maintaining his parents, after deducting the amount received from the land.
    S. Homestead — Lien—Deeds—Oral Contracts.
    Rights growing out of an oral contract cannot affect the homestead interest of the owner of real property or of his wife.
    Appeal from Muskegon; Sullivan, J.
    Submitted January 29, 1913.
    (Docket No. 87.)
    Decided May 28, 1913.

      Bill by Henry R. Klett against Christopher Klett and others for specific performance. From a decree for complainant, defendants appeal.
    Reversed.

      Cross, Vanderwerp, Foote & Ross, for complainant.

      R. J. Macdonald and William H. Simpson, for defendants.

      On the specific performance of an oral contract to devise or convey land in consideration of performing services or furnishing support where no possession taken or improvements made, see notes in 15 L. R. A. (N. S.) 466 and 38 L. R. A. (N. S.) 752.

   Ostrander, J.

The relief prayed for in the bill of complaint is that the court determine the rights and interests of complainant in a farm and personal property belonging to defendants; that an injunction issue restraining defendants from selling or disposing of the farm and personal property; that at the final hearing the injunction be made permanent during the lifetime of the defendants or until the further order of the court; and that the complainant have such other and further relief as to the court shall seem proper. In disposing of the case, the learned trial judge said:

“If the bill is not specific enough, the bill may be amended to pray for a specific performance of this contract, and a specific performance of the contract will be granted.”

The decree which was entered finds that there was an arrangement between the complainant and the defendants, his father and mother, by which it was agreed that complainant, with his wife, should come upon the land, live with the defendants, care for them as long as they should live, and, as a consideration, -should have the entire property of the defendants, including the farm; that complainant and his wife performed the agreement for ten years and upwards and until the 30th day of May, 1911, when defendant Christopher Klett, father of complainant, without cause and against the protest of complainant, left the farm, refused to return there to live, and has since executed deeds of the real estate which were delivered and have been recorded, but not until after the filing of a notice of the pendency of this suit; that complainant is entitled to have the contract carried out and these deeds set aside. The decree is for specific performance and for the cancellation of the said deeds and for permanent injunction restraining the defendants from disposing of the real estate or personal property. It authorizes defendant Christopher Klett to return to the farm, make his home there—

“And both of said defendants are to be supported, and cared for by said complainant and his wife on said farm as long as they shall live; that upon their death, in case said complainant performs his part of said contract, the said complainant will be entitled to the said real estate and personal property belonging to defendants situate thereon.”

The real estate in question is owned by the defendants as husband and wife. The agreement which it is charged in the bill was made is that defendants proposed to complainant to come with his wife to the farm and live with defendants upon it and care for and support them, and if he would do so he could have everything there was upon the place and the farm when defendants were through with the property; that complainant accepted the proposition made by defendants and agreed to remove with his family from the city of Muskegon to the said farm of the defendants and work the said farm and care for and support the said defendants as long as they lived, with the understanding and agreement made by the said defendants that upon their death he (complainant) should have the entire property of the said defendants, including the farm.

The making of this agreement is denied by defendants in their joint answer, and whether any such agreement was made is the principal question of fact in the case. Defendants also deny that complainant has cared for and supported them; that he has made valuable improvements upon the farm; that he has paid the taxes and insurance. They admit that complainant and his wife came to the farm to live in April, 1901, and say the arrangement was that complainant was to take the farm and work it, support defendants, live with them, do all the work in a workmanlike manner, furnish everything, have the proceeds, crops, and returns from the farm, pay all expenses and taxes, keep the buildings insured, do thereon what defendants theretofore had done, and remain as long as the parties should agree to the arrangement. When complainant became dissatisfied, he should redeliver the property delivered to him, replacing that which had been sold, parted with, worn out, or destroyed, so that defendants should again have their farm in as good condition as when taken or the equivalent thereof.

The legal propositions argued upon the part of the defendants are:

(1) That, under the arrangement claimed by complainant to exist, there was no obligation upon his part, and the alleged contract was not mutual.
(2) That there was no joint action on the part of the defendants in making the alleged arrangement with complainant, and that, the title being held by the defendants jointly, some joint action on their part was required.
(3) That defendants’ homestead was upon the farm, and under the Constitution a parol agreement to dispose of the homestead interest is void; that, although the value and extent of the property exceed the statutory limits of a homestead, the alleged contract was an entirety and cannot be enforced as to the excess either of quantity or value.
(4) That if there was such a contract as complainant claims, and it was mutual, and no question of title by the entireties or of homestead rights interfered, there could be no decree for specific performance because, defendants having become dissatisfied with the performance attempted by complainant, no court can interfere to supervise or direct the character of services agreed to be performed by the complainant.

After an examination of the testimony, I am satisfied that the complainant and his wife went to live upon the farm of the defendants, with the defendants, pursuant to an understanding and arrangement substantially, but not fully, stated by the trial judge. The father and mother both wanted the complainant to come with his wife and live with them, work the place, and take care of them. Both of them told him that if he did he could have the farm and whatever there was on it when they, or the survivor of them, died. There was, however, a contingency, a qualification, which is clearly evidenced by the testimony of the complainant, and, as I regard it as important, I refer particularly to the testimony. Complainant testified that, answering in person a letter which his mother had written to him, he had a conversation with her, the first one upon the subject and about the terms upon which he and his wife would live upon the farm. He said to his mother:

“ ‘My wife is practically a stranger to you, and she never was on a farm and didn’t know anything about farming, and of course she would have to learn a whole lot; her ways wouldn’t be your ways.’ Well, she was willing to submit to anything; that she had had enough of this living the way they had had to live the two years that I was away. They didn’t want to have to put up with that, and they didn’t know what they was going to do if I didn’t come. Well, I said to her, ‘You know that you are kind of hard to get along with. You didn’t get along with your own daughters very well, never did, and you wouldn’t want a stranger to come into your house and run things.’ Well, she said she didn’t care. She said, T have had enough of this and I know;’ and she said, ‘You have got an awful nice wife and that I like her; I think lots of her; and I don’t see why we couldn’t get along.’ ‘Well,’ I said, T don’t see why you couldn’t either if you wanted to.’ . And she told me, too, that I needn’t think that she was like some of the other old women that was around that country that had their sons living with them and had to skiddoo — get out because they couldn’t stand it with them. She said, T don’t want you to think I am like them. Do you think I am?’ she says. I says, ‘Well, I don’t know. I can tell better after I have lived with you a while that way first;’ and finally after we had talked along that way I told her that— Well, she said then, ‘You can see father in the morning, and,’ she said, T know it will be all right with him because we have talked about this and everything will be all right with him.’ Well, of course I told her then that if everything would be satisfactory— She told me too, she said, ‘You will have the place, and,’ she said, ‘you are the only one that is entitled to it anyhow, because you have been to home the most, and father will be willing to let you have it, and so will I, if you will only come.’ Well, of course I wouldn’t go under any consideration; I wouldn’t go there for fun.”

The complainant describes some of the difficulties which he and his wife had after they went to live upon the place. Upon one occasion his father and his wife were engaged in a quarrel of words, and complainant interfered.

“I told him he had better quit and that he had been talking about her a good deal, and I didn’t calculate to say anything about it, ‘but you started this now,’ and I said, T will tell you.’ He jumped up and said, ‘If this is the feeling you have got we might as well break up.’ I said, T am ready any time you are, providing you settle with me.’ I said, ‘When I left you before I left you with everything and I took nothing, but this time I want something.’ He said, ‘You ain’t got nothing; you never had anything; and you can’t get nothing.’ And he talked pretty mean to me and my wife. * * * During the ten years that I have been on the place, when we had little troubles, my wife and my mother, I would speak about leaving, and my mother would say then when she would think I was going to leave because I had told them— I said if we had any trouble that I wouldn’t stay, and as soon as they would have it I would say, T will leave; I ain’t going to stay here and live if you can’t live peaceably together.’ She would say, ‘There is no need of your going. You are going to get the place anyhow. No one else wants it. Why don’t you stay?’ And then I said, ‘Why don’t you let us alone so that we can stay if you want us to?’ ”

His attention being directed to a particular trouble occurring some five years before the cause was tried, complainant testified:

“We had been having quite a little serious trouble then with my mother, five years ago last September. I told my father that I couldn’t stand it any longer; that mother and my wife couldn’t get along; and that it didn’t make it pleasant for us. And that I was going to leave, told him I wanted to settle up and move, and he didn’t know what to do. We talked along for three or four days that way, and finally he came to me one day (I was out in the field husking corn), and he says, ‘Henry,’ he says, T can’t have you go.’ He said, ‘If you do, it is going to break up the home. Then,’he said, T won’t have any.’ He said, ‘If you are going to go and we have got tq divide up, then,’ he says, ‘you won’t have no home and I won’t have any. Of course,’ he said, T can go and live with Louis if I want to, but I don’t want to do it. I want to stay here. I want to live and die here.’ ‘Well,’ I said, T would like to stay, but,’ I said, T can’t do it.’ I said, ‘The place isn’t worth the trouble that I am having over it.’ That is, I meant the trouble we was having in the family. I said, T would rather lose everything than to have to live this way any longer.’ ‘Well,’ he said, ‘you know your mother is crazy, and,’ he says, T have had to live with her all these years and you ought to stand it a little while.’ ‘Well,’ he said, ‘You know she has either got an ugly disposition or else she is crazy; I don’t know which.’ * * * And I said, ‘You will have to talk with my wife about it; if she won’t stay I won’t; I can’t have this any longer.’ So he went and talked with her about it, and he fixed it up with her so that we stayed, on his account principally. * * . * After this arrangement was made five years ago, it went worse for a couple of years; that is, with the women, my mother, she didn’t like it. She didn't like the arrangement father made with us. And so she made it pretty warm for him. This second arrangement, you know, she didn’t like that very well, and so—
“Q. You mean she would rather you had gone?
“A. She would rather we had went at that time. That is what she said, but the fact of the matter was she never wanted us to go, because when we would have trouble and I would speak about leaving — she did after that — I told her I wouldn’t stay; I would just as soon leave as not anyhow. When she thought I meant it she would say, ‘There is no need of your going, you are going to get the place anyhow.’ ”

Complainant’s last trouble was with his father, who himself left the farm, and, if complainant is to be believed, without any adequate excuse. This testimony of complainant supports, to some extent, the claim of defendant that there was an understanding, or that it was a part of the understanding and arrangement entered into, that complainant was not bound, in any event, to remain upon the land and support defendants. And I think we are required to find that such was the understanding. I am as well convinced, from the testimony, that the reason and only reason for this reservation was the contingency that the parties should not be able to live together in peace, and that there was involved a mutual undertaking to do nothing to disturb the peace. The arrangement was of considerable importance to all of them, and as time passed it became more imperative that amicable relations be maintained. Otherwise complainant might work for years agreeably with the understanding and then find himself ousted by the declaration of defendants that they were dissatisfied. Such a condition of things is, in my opinion, presented by the record. Complainant has for ten years reasonably performed the agreement. Defendants now attempt to dispossess him, empty-handed, claiming they are dissatisfied. Under such circumstances, may a court of equity grant complainant any relief ? The court cannot compel the parties to live together, nor can it harmonize their differences. It can inquire whether defendants are wholly at fault; whether they are honestly and reasonably dissatisfied. If they are at fault and acting from caprice and without reason, it should, if it can, award to complainant some compensation. I am of opinion that defendants are at fault and that it would be inequitable to dismiss complainant without some compensation.

Does the law interpose insuperable obstacles in the way of granting relief? No question of the statute of frauds is involved. The land consists of 200 acres, some of it in a lake, about 147 acres of it dry land. The title, when complainant entered upon the performance of the agreement, and until recently, when defendants attempted to convey it away, was held by defendants jointly, as husband- and wife. Both of them understood, were parties to and joined in the contract and agreement with complainant. These facts present no legal obstacle to granting relief.

Defendants had lived on the land for 30 years, and it appears to be admitted they have no other home, and that they have a homestead interest in the land. It does not appear that they have selected and set apart any particular 40 acres as a homestead. Neither the contract nor any rights growing out of it can affect the homestead interest. Lott v. Lott, 146 Mich. 580 (109 N. W. 1126, 8 L. R. A. [N. S.] 748), and cases cited in the opinion. There are 100 acres of land unaffected by the homestead interest.

Upon this record, the decree will be that the decree of the court below be reversed; that defendants be' given leave and opportunity for 30 days to select and designate a homestead in the land; that complainant have a lien upon the remainder of said land and the personal property for his rightful compensation, which may be enforced by a sale or by partition; that the record be remanded to the circuit court for the county of Muskegon, in chancery, to ascertain and determine the value of the premises at the time complainant began performance of his contract and now, and if said land has increased in value to ascertain and determine whether, and to what extent, the increase in value is the result of complainant’s work and the improvements he has made upon the same, and how much is due to other causes; that a like ascertainment and determination be made with respect to the personal property; that the court also .ascertain and determine what sum and sums, if any, complainant has expended, over and above the sums realized from said land, to maintain defendants, himself and family; that complainant be finally decreed to be entitled to receive of and from defendants the amount of the increased value of real and personal property due to his work and to the improvements he has made, and such sums as he has expended over and above those received from the land in the support of the family, including defendants. The result may or may not appear to give adequate compensation to complainant. However, it will be in addition to all such support and sums as he has derived from the premises during his occupancy thereof. His tenure has at all times been somewhat precarious, and, considering his reserved right to leave when conditions became unsupportable, I can discover, after reflection, no more equitable adjustment of the respective rights of the parties. Neither party as against the other will recover costs of this appeal; but the cost of preparing and printing the record will be equally divided between complainant and defendants.

A decree will be entered in this court agreeably with this opinion, and the record remanded for further proceedings.

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


text:
    FLETCHER PAPER CO. v. DETROIT & MACKINAC RAILWAY CO.
    1. Injunction — Railroads—Michigan Railroad Commission.
    Independently of some express statutory authority, the court of equity has no jurisdiction to grant a preliminary injunction restraining defendant in the bill from tearing up or interfering with a spur track connected with defendant’s railway, pending the determination of the Michigan railroad commission in a proceeding before it instituted by the same complainant to secure an order of the commission requiring the railway company to transport logs over the spur track in question: no authority to preserve the status quo being conferred by the act creating the railroad commission (Act No. 300, Pub. Acts 1909, §§ 46, 47 [3 How. Stat. (2d Ed.) § 6524 et sisq.J), a preliminary injunction issued for that purpose was void, and contempt proceedings thereon unwarranted.
    2. Contempt — Injunction—Void Interlocutory Injunction.
    Contempt proceedings cannot be based on an interlocutory injunction that the court of equity had no power to issue.
    Appeal from Alpena; Emerick, J.
    Submitted Jamr ary 15, 1913.
    (Docket No. 108.)
    Decided May 28, 1913.
    Contempt proceedings based on an injunction issued in a suit instituted by the Fletcher Paper Company against the Detroit & Mackinac Railway Company and another. From a decree adjudging respondents, the Detroit & Mackinac Railway Company and the Lob-dell & Churchill Manufacturing Company, guilty of contempt, both respondents appeal.
    Reversed.

      Gillett & Clark, for complainant.

      Stevenson, Carpenter & Butzel, for defendant Lob-dell & Churchill Manufacturing Co.

      Henry, Henry & Henry (James McNamara, of counsel) , for defendant Detroit & Mackinac Railway Co.
   Ostrander, J.

Upon the record before us it is made to appear that in the month of September, 1910, the Fletcher Paper Company, as complainant, filed its bill of complaint in the circuit court for the county of Alpena, in chancery, against the Detroit & Mackinac Railway Company, sole defendant, in which it prayed that the said defendant be restrained from taking up its steel and rails on a certain spur or branch of its road, called the Tubbs branch, and that it be required to continue to operate over and upon said branch, place cars for the loading of forest products, and, as it had theretofore done, haul loaded cars to its main line and upon its main line to the points designated by complainant. The defendant answered the bill and in its answer asked, as affirmative relief, that the complainant be enjoined—

“From in any wise molesting this defendant in the disposition of its property along such track, and from proceedings in the courts in any wise to molest or interfere with this defendant’s disposition of its property along the line of this branch, and that the rights of this defendant and the rights of the complainant respecting such branch and respecting the property on and along such branch be determined in this court and in this cause.”

So much of the answer as is in its nature a cross-bill was answered by complainant, the cause was brought to a hearing, and a decree dismissing the bill of complaint was entered in May, 1911.

It is sufficient for present purposes to say that it was the theory of the complainant in the action that the court had power to compel defendant to continue to operate the said spur or branch; that it was the theory of defendant that the court had no such power and the spur or branch had no public character, it having been laid pursuant to private arrangements with a corporation other than complainant upon and over land belonging to said other corporation, upon ties furnished by it and a roadbed prepared by it, which contract relations with said other corporation were terminated and it had been ordered to remove its rails from the land. The decree was upon the merits.

Before the decree was rendered, and in January, 1911, the Fletcher Paper Company filed its petition with the Michigan railroad commission, setting up, among other things, that the Churchill Lumber Company provided the right of way, graded and placed the ties for the construction of said Tubbs branch, the Detroit & Mackinac Railway Company laid the steel and operated the branch by hauling logs over it for the said Churchill Lumber Company, for the complainant, and for one other from the time the spur was completed until on or about September 8, 1910, when it caused a portion of the rails to be removed and refused to operate the spur; that the said railway company published and filed with said commission freight tariffs, including said Tubbs branch, fixing rates for transportation of freight over and upon and from said Tubbs branch; that the Fletcher Paper Company had in August, 1910, purchased from the Churchill Lumber Company all its rights, title, and interest in the right of way of said Tubbs branch; that it had 100,000 feet of logs banked, ready to ship out over said branch, and more than 20,000,000 feet of timber, standing and cut, tributary to said branch. Specifically the petition prayed that the said railway company be required to transport logs over and from said branch to Alpena in accordance with its published tariff M. R. C. No. 277, or any subsequent tariff.

The pendency of this proceeding before the Michigan railroad commission was brought to the attention of the court, and in its decree dismissing complainant’s bill of complaint it provided that it should be dismissed “without prejudice to complainant to file its petition for relief with the Michigan railroad commission.” After the entry of the said decree, before the Michigan railroad commission had decided the matter, and on July 19,1911, the Fletcher Paper Company filed its bill of complaint in the Alpena circuit court, in chancery, against the Detroit & Mackinac Railway Company and the Lobdell & Churchill Manufacturing Company, charging as true most of the facts herein already recited, and further that it had learned on July 14, 1911, that the Lobdell & Churchill Manufacturing Company was engaged in tearing up and removing rails from the said Tubbs branch, claiming to have leased the rails from the Detroit & Mackinac Railway Company to use elsewhere. The fact that the railroad company had discontinued the operation of the branch without notice to the Michigan railroad commission is set up, as well as the claim of irreparable injury if the operation of the said branch should be discontinued and the absence of any remedy, except in equity. The prayer of the bill is that the said defendants be restrained from tearing up and removing the railroad track as now laid on the Tubbs branch of said railroad. Upon the filing of the bill, a temporary injunction issued, the interdict of which is—

“That you do absolutely desist and refrain from tearing up or removing the rails or in any way changing or moving the railroad track as now laid of the Tubbs branch of the said Detroit & Mackinac Railway Company, which branch is sometimes called Martin-dale spur, * * * until further order of this court.”

It was served on the railroad company July 19th, and on the defendant Lobdell & Churchill Manufacturing Company July 21, 1911. The complainant petitioned July 31, 1911, for an order to defendants to show cause why they should not be adjudged guilty of contempt for disobedience of the injunction. The order issued, cause was shown, a hearing was had at which testimony was introduced, and September 11, 1911, an order was entered adjudging both defendants guilty of contempt and imposing upon each a fine of $100. The cause is in this court upon an appeal from this order.

The questions discussed by counsel are: (1) Whether the court had jurisdiction to issue the injunction; (2) whether the former decree of the court, upon the merits, is res adjudicada the right of complainant to any equitable relief; (3) whether there is any evidence of a violation of the injunction. We find it necessary to consider the first point only.

The purpose of the bill of complaint, filed in the suit in which the order appealed from was made, is to maintain a condition of things existing when the bill was filed until such time as the Michigan railroad commission ordered, or refused to order, the defendant railroad company to restore and operate the spur or branch road. Its purpose was not to preserve property, or a status quo until the court should determine the rights of the parties litigant. The court had expressly determined that it would not grant to complainant the relief which, at the time the injunction was granted, it was seeking in another non judicial tribunal. It was stated by the trial court:

“The injunction in the present case was not granted in any suit to determine what the rights of these parties were in this branch. That had been determined, so far as this court is concerned, for reasons which were entirely satisfactory to the court and which I have never yet heard successfully assailed., But this was what the court intended to do by the second injunction, as it is termed, the injunction involved here. These parties had sought the jurisdiction of the railway commission. It was granted them by the laws of this State. That board exercises a jurisdiction which is different, they‘say, from any jurisdiction possessed by the circuit court, in chancery. Taking administration of the affairs of a railway corporation does not come under any recognized head of equity jurisdiction that I have ever heard. But they say they have it, and this court said, ‘Well, if you have, this complainant shall be protected while you exercise it in this caseand for the purpose of protecting the complainant while this railway commission proceeded to exercise this jurisdiction, to adjudicate and determine the rights of the parties, these respondents were restrained, pending the existence of that litigation, from destroying the subject-matter of the litigation, to wit, the Tubbs branch.”

The bill, whatever its averments, must be treated for the purposes of this case as if the complainant invoked jurisdiction only because it had applied to the Michigan railroad commission for certain relief, which might or might not be granted, and desired, meantime, that a court of equity restrain defendants from doing anything inimical to its interests if the relief should be granted. There can be no doubt, therefore, that the circuit court, in chancery, for the county of Alpena, in granting the injunction, asserted jurisdiction to temporarily control the owners of property with respect to the use and disposition thereof, while denying jurisdiction to determine the respective and relative rights of such owners and the complainant; the purpose being to merely prevent the doing of something until some other tribunal had determined whether it ought or ought not to be done. Respondents contend that the court has no such jurisdiction, and that the order for the injunction is void. Complainant has advanced no argument and has cited us to no authority supporting the existence of any such general jurisdiction of the court. It is not claimed that, independent of statute, a court of equity, having no jurisdiction to grant final equitable relief, has jurisdiction to grant a preliminary injunction.

The contention of complainant is that under the “statutes of the State”' the court “has jurisdiction to preserve the status quo pending a hearing before the Michigan railroad commission.” The statute referred to is sections 46 and 47 of Act No. 300, Public Acts of 1909 (3 How. Stat. [2d Ed.] § 6524 et seq.), which is the statute creating and prescribing the powers of the Michigan railroad commission. These sections read as follows:

“Sec. 46. This act shall not have the effect to release or waive any right of action by the State or by any person for any right, damage, penalty, or forfeiture which may have arisen or which may hereafter arise under any law of this State, and all penalties and forfeitures accruing under this act shall be cumulative, and a suit for and recovery of one shall not be a bar to the recovery of any other penalty or damage.
“SEC. 47. In addition to all the other remedies provided by this act for the prevention and punishment of any and all violations of the provisions hereof and of all orders of the commission, the commission, and likewise any person, firm or corporation interested, may compel compliance with the provisions of this act and with the orders of the commission by proceedings in mandamus, injunction or by other appropriate civil remedies.”

It is possible — the point, except as herein indicated, is not presented for decision — that these provisions enlarge to some extent the general jurisdiction of courts of equity. But we find in them no intimation that it was intended to impose upon courts of equity the duty to restrain, or to aid, suitors to the Michigan railroad commission, or the duty to act as depositaries, or custodians, of property until the commission decides what shall be done with it. We find no intimation of an intention to confer upon courts of equity power to control the acts of individuals, or of corporations, the character of which they may not themselves finally determine.

We are therefore of opinion that the court was entirely without jurisdiction, the injunction void, and its judgment imposing a fine in the proceedings for contempt is reversed, with costs of both courts to respondents, which costs complainant is ordered to pay. 2 High on Injunctions (4th Ed.), §1425; Brewer v. Kidd, 23 Mich. 440.

Steere, C. J., and Moore, McAlvay, Brooke, and Stone, JJ., concurred. Kuhn and Bird, JJ., did not sit.