author: Grant, J. Blair, J.

text:
    ABREY v. DUFFIELD.
    1. Wills — Construction—Bequest to Scrivener.
    Where it is claimed that a will bequeaths the residuum of a trust estate to the trustee, who was also the scrivener who drew the will, and was a lawyer familiar with the phrases and language commonly used to create a devise or bequest, the circumstances not only invite great circumspection, but authorize the court to construe the provision as unfavorably to 'the claim of the trustee as the language used will permit.
    2. Same — Testamentary Trust — Construction — Residuum to Trustee.
    Where a will bequeaths a fund to the scrivener in trust, and provides that in case any remainder be left after execution of the trust ‘ ‘ he shall appropriate the same to the defraying of the expenses of this trust, or in such other or different manner as he may deem best,” the trustee does not take the residuum personally, but the clause should be construed as directing the trustee to devote the remainder of the trust fund to some undefined purpose apart from an individual use, and the clause being inoperative for vagueness and uncertainty, the residuum passes to the heirs as intestate property. Grant, J., McAlvay, C. J., and Carpenter, J., dissenting.
    3. Attorneys — Ethics—Bequest to Scrivener.
    It is contrary to the spirit of the code of ethics for a lawyer to draft a will making dispositions of property in his favor, and the court looks upon such dispositions with suspicion.
    Cross-appeals from Wayne; Brooke, J.
    Submitted October 17, 1906.
    (Docket No. 43.) (Docket No. 1.)
    Reargued June 10, 1907.
    Decided July 13, 1907.
    Bill by Catherine A. Abrey and others against Bethune Duffield and another for a construction of- the last will and testament of Theresa Abbott, deceased. From the decree rendered, complainants and defendant Duffield appeal.
    Affirmed.
    Mrs. Theresa Abbott died testate April 2, 1890. The material parts of her will are as follows:

      “First. I direct my executor, hereinafter named, to see that I am buried in the lot of my beloved daughter Alice T. Chesebrough, now deceased, in the Elmwood Cemetery at Detroit, and to do all things necessary in connection therewith in the way of a monumental stone or stones.
    . ‘ ‘ Second. I direct that my debts remaining unpaid, whether on mortgage or otherwise, shall be by my executor fully paid, together with all expenses and charges of closing my estate and performing the trusts in this will contained.

      “Third. I hereby give, devise and bequeath all my real and personal estate with full power to sell and convey and convert the same into money unto D. Bethune Duffield, my executor and trustee, to whom I commit the same with instructions as far as he can and in the exercise of his best discretion to carry out my wishes as herein expressed, viz.:
    “1. That in case my son Thomas H. Abbott survives me that he, my executor and trustee, will pay so much each year and no more as will secure an economical and comfortable support to him while he lives; and in case he should become enfeebled by disease and helpless, then that he be provided with comfortable support and quarters at Harper Hospital in the city of Detroit and to this end my executor is here instructed and directed, leaving it to the discretion of my executor whether under special circumstances he should be allowed anything over this annual provision made for him. * * * ”
    Then follow several specific bequests unnecessary to mention. , The fourth, fifth, and sixth clauses are as follows :
    “ In case any remainder be left in the hands of my executor and trustee, then he shall appropriate the same to the defraying of the expenses of this trust, or in such other or different manner as he may deem best.
    “In case of the death of said D. Bethune Duffield, executor and trustee as aforesaid, before these trusts shall have been fully carried into effect, then I here name his son Bethune Duffield as his successor in this trust with like powers as are herein conferred upon his father, and both are hereby relieved from the necessity of entering into bonds as such executor and trustee.
    “ I direct my executor to set apart a certain sum to keep the lot in Elmwood Cemetery in neat and orderly shape and condition forever.”
    She made three codicils. The second codicil contained the following provision:
    “ I hereby revoke the provisions of my said will relative to the disposition of my piano and direct that my son Thomas is to have the use and possession of it during his life, but that the same is not to be disposed of by him. At the death of my said son, my executor is to make such disposition of my piano among my relatives as provided in my said will as he may deem best.”
    Mr. D. Bethune Duffield, the first executor and trustee, died March 13, 1891, and the defendant Bethune Duffield was immediately appointed as the administrator de bonis non with the will annexed. The defendant trustee regularly filed annual statements of his accounts, and was allowed each year compensation for his services. Thomas H. Abbott died April 28, 1901. The respondent and his father in his lifetime carried, out the trust. The estate has been converted into cash, and there remains in the hands of the defendant $2,569.55, subject to the payment of $300 for the care of a cemetery lot, as provided in the will, and also to any further claim for services. Complainants áre the heirs of Mrs. Abbott, and filed this bill to obtain a construction of the will. The court held that the title to the entire estate was conveyed to the trustee by the third clause of the will; that the whole estate was taken absolutely in trust; that the fourth clause contained no language equivalent to a gift or a devise, but was simply a direction to the trustee what to do with the trust funds possibly remaining in his hands after the specific object of the trust had been performed, and that such direction was void for uncertainty. Decree was entered for a distribution of the funds in the defendant’s hands among the complainant heirs, directing the probate court to fix the amount of defendant’s compensation and charging him with interest from the filing of the bill. Both parties appeal.

      Graves & Hatch, for complainants.

      William J. Gray, for defendant Duffield.
   Grant, J.

(after stating the facts). Probably, in the multitude of cases that have come before the courts of this country and of England for construction, the provisions of no two wills or trust deeds are exactly alike. The courts and law writers recognize that—

“No general rule can be stated that will determine when a conveyance will carry with it a beneficial interest, and when it will be construed to create a trust; but the intention is to be gathered in each case from the general purpose and scope of the instrument.” 1 Perry on Trusts (4th Ed.), § 151.

In each case, where the language is unambiguous, courts must ascertain from the four corners of the instrument the intention of the testator, and enforce that intention, unless unlawful.

Counsel for complainants say that the “familiar canon of construction is that the intention of the testatrix must be ascertained, and, if legal and adequately expressed, must prevail.” The same counsel quote the language of Ralston v. Telfair, 2 Dev. Eq. (N. C.) 255, as well stating the doctrine:

“ There is a distinction between an express trust for an indefinite purpose, and those cases where, from the indefinite nature of the purpose, the court concludes that a proper trust could not have been intended, though words may have been used, which, had the objects been definite, would by construction import a trust. In the first description of cases the devisee does not take beneficially; in the latter, he does. ”

The language of the will in question contains no ambiguity. If the testatrix intended to vest in her trustee complete and uncontrolled dominion over the residuum after the execution of the trust the defendant is entitled to a decree.

The testatrix had other children, but the chief object of her solicitude was her son Thomas. Eor reasons which do not appear, and which are immaterial, she evidently considered him incompetent to manage his estate. She therefore desired to provide for his maintenance and care to the extent of the expenditure of all of her estate if necessary. Nocontest was made.over the will. She chose as her executor and trustee a man of high character and repute, to whom she referred in her last codicil, executed shortly before her death, as her friend. She chose to provide that in the event of his death his son should succeed to the trust. She had confidence in them, and the result shows that the confidence was not misplaced. The annual accounts rendered showed that the defendant advanced money of his own for the care of his cestui que trust for several years; one year the balance due him being $1,368.17. She evidently contemplated that the two executors named would live to execute the trust. She also contemplated that the entire estate might be used in its execution, and also that there might be a residuum after its execution. It is clear, also, that she intended to make a testamentary disposition of her entire estate, both real and personal.

The third clause of the will conveyed the entire title, as the judge found, to the executor named. It is clear that she did not intend the residuum, if any there were, to go to her other children. The language of the fourth clause cannot be construed to indicate any such intention. She did intend to dispose of it otherwise'. If the fourth clause were eliminated, then, under the universal rule in this country and in England, since the enactment of 1 Wm. IV, chap. 40, the residuum must be divided among the heirs. 1 Perry on Trusts (4th Ed.), § 155. Even prior to that enactment the courts of England were astute to find'language which would make the executors trustees rather than beneficiaries, and * ‘ therefore a little matter was sufficient to show that intent.” Bishop of Cloyne v. Young, 2 Ves. Sr. 91, decided in 1750. The trust was exclusively for the benefit of her son, except as to a few specific bequests. It ceased with his death. She clearly intended that it should. She could dispose of the residuum as she pleased. She attempted to do so. What did she intend ? is the sole question.

The fourth clause provided for no trust after the first trust had been executed. She provided that he should appropriate it to defraying the expense of the trust, viz., the trust for the benefit of her son, or in such other or different manner as he should deem best. No secret trust is even hinted at; no suggestion of a desire to make any one the object of her bounty; nothing upon the face of the will to indicate that the testatrix had any object or person other than her "trustees in mind to whom she desired the residuum to go. The common expression “in trust” does not appear in the clause. The language clearly indicates that she gave it to him to appropriate as he should deem best. If there had been no trust, if the will had simply devised the property to him to appropriate as he should deem best, under the authorities, the title would have passed to him, and he could appropriate it to himself or to others. With the trust executed, the same rule of construction must apply. The language itself excludes the idea of a trust. It conveys dominion over the entire property, not for any trust, expressed or implied, but to use as the devisee should see fit: There is no room for the application of the doctrine of an express trust for an indefinite purpose.

In all the cases cited by counsel for the complainants, there is language from which it may fairly be inferred that the executor or trustee took it in trust for some purpose, as in Minot v. Attorney General, 189 Mass. 176, where the testator provided that his residuum should be distributed by his executors ‘ ‘ to charitable or worthy objects, or such as I may designate during my lifetime,” etc. The court correctly held that it was the intention of the testator to create a trust of some kind. Similar cases are Morice v. Bishop of Durham, 9 Ves. Jr. 899; White v. Crossman (N. J. Eq.), 64 Atl. 168; Forster v. Winfield, 142 N. Y. 327. The following cases appear to support the conclusion which we have reached: Beck’s Appeal, 116 Pa. 547; Powell v. Powell’s Ex’rs, 2 Murph. (N. C.) 326; Gibbs v. Rumsey, 2 Ves. & B. 294; Bulfer v. Willigrod, 71 Iowa, 620; Taft v. Taft, 130 Mass. 461; Jacob v. Macon, 20 La. Ann. 162; Apreece v. Apreece, 1 Ves. & B. 364; Paice v. Archbishop of Canterbury, 14 Ves. Jr. 370; Jones v. Jones, 25 Mich. 401.

The learned circuit judge held that under the contention made by the defendant the residuum, in case of the death of the successive executors before the execution of the trust, would go to a stranger, whom the court would appoint, and that it cannot be supposed that the testatrix would have disposed of such residuum to a trustee, an entire stranger. The correctness of that conclusion may be doubted. That question, however, is not before us. She did provide expressly that either of the two named should appropriate the residuum in any manner he chose, and gave him exclusive dominion over it. What the courts would hold in the event of the death of both execu-. tors before the execution of the trust, it is unnecessary to consider. The possibility of the result named has no influence upon the question of her intent as found in unambiguous language. No case cited, or any that I have found, refers to the possible contingency of the death of the executor or trustee before the full execution of the trust as having any influence in the construction of the language used.

Decree should be reversed, and decree entered in this court for the defendant. No costs* will be allowed.

McAlvay, C. J., and Carpenter, J., concurred with Grant, J.

Blair, J.

I think that the circuit judge arrived at a correct conclusion in this case, and that his decree should be affirmed. While the intention of the testatrix is the main subject of inquiry, it is necessary to specify in this case the particular intent to be made the subject of inquiry. In my opinion, it is wholly immaterial, for the purpose of this inquiry, whether the testatrix intended to give anything to complainants. Their case is planted upon the proposition that, she did not intend to give it to them, but has failed, through the vagueness and uncertainty of her will, to give it to anybody else. Neither is the fact that testatrix intended to dispose of her entire estate important. Complainants’ position is,-substantially, that she did intend to dispose of her entire estate, but has failed to state how she intended to dispose of the particular part of it in controversy here, which, therefore, passes to them as though she had died intestate. The particular intention to be ascertained, therefore, is whether the testatrix intended to give the residuum of her estate to her executor and trustee. If she did, the decree should be reversed.

There is no claim that the original executor or his successor acted otherwise than in the utmost good faith, but in determining the meaning of this will we can have no reference to the characters or conduct of the persons named as trustees. This is practically an amicable suit to obtain a construction of the will, desired by both parties. As said by the court of appeals, in Forster v. Winfield, 143 N. Y. 337:

“Before a gift to executors eo nomine can be held to vest in them individually, the intention that it should so vest must be plainly manifested.”

Furthermore, this will was drawn by the original trustee, himself a lawyer, and familiar with the phrases and language commonly used to create a devise, or bequest. This circumstance not only invites great circumspection, but authorizes the court to construe the language used as unfavorably to the claim of defendant as the language will permit.

There is no devise, gift, or bequest contained in the fourth clause of the will. The grant is in the third clause, and that is not to the individual, as an individual, but as a trustee. The fourth clause simply contains a direction what to do with the remainder of the trust fund. The amounts to be paid by the executor for the support of the son Thomas, and to contribute to the support of her sister, Jane Lovell, are largely left to the discretion of the executor, and the exercise of that discretion would directly affect the amount of the residuum. While this circumstance would not invalidate a gift of the residuum to the executor, it is worthy of consideration in determining whether the testatrix intended to make such a gift. If the testatrix desired to give the remainder of her estate to the executor, no reason is perceived why the executor, when drawing the will, could not have so stated in a few clear words. I am of the opinion that, 'if such had been the intention, there would have been no room for doubt in its expression in the will. This clause, in my judgment, should be construed as directing the executor to devote the remainder of the trust fund in his hands to some undefined purpose apart from an individual use, and falls within the principle of Minot v. Attorney General, 189 Mass. 176, and Forster v. Winfield, 142 N. Y. 327.

In Forster v. Winfield, the testator, after providing for the payment of debts, proceeded as follows:

“ And the net residue after payment of all such debts, I give to my said executors and to the survivor of them as joint tenants. I have entire confidence that they will make such disposition of such residue as, under the circumstances, were I alive and to be consulted, they know would meet my approval.”

The court say:

“ The last part of this clause does not qualify what precedes it. There he says: ‘ I have entire confidence that they will make such disposition of such residue, as, under the 'circumstances, were I alive and to be consulted, they know would meet my approval.’ This language does not necessarily imply that they were to take the land or its proceeds as individuals. It was just aa appropriate in its relation to them as executors. He gives the real estate or its proceeds to them upon some undefined trust, a confidence not disclosed. The testator evidently supposed that the secret trust would be carried out, and possibly that it could legally be enforced.”

In the case before us the provision is:

“ In case any remainder be left in the hands of my executor and trustee, then he shall appropriate the same to the defraying of the expenses of this trust, or in such other or different manner as he may deem best.”

If this provision had ended with the word “trust,” there could be no question that the trustee would not take the remainder, as an individual, but would hold it in trust. In my opinion, the rule of noscitur a sociis should be applied to the alternative clause, “or in such other or different manner as he may deem best.” The disposition of the remainder under the alternative clause, like the disposition of the remainder under the original clause, was to be a disposition of property by a trustee holding it in trust; the difference being that in the one case the trust is disclosed, in the other case it is not disclosed. This construction is strengthened by the provision which gives the successor in the trust “like powers as are herein conferred upon his father,” clearly indicating the view of the scrivener as well as of the testatrix that she was clothing him and his successor with powers over a trust estate, and not investing them with property rights.

The whole will manifests the extreme confidence of the testatrix in the executor and his son, and her willingness to leave the disposition of her estate very largely to their discretion. The amount to be paid for a monumontal stone'; the amount to be devoted to the support of the son, and the additional provision that “my executor shall appropriate and pay to him, in case he shall deem it for his best interests, the sum of two hundred dollars per year, or such other or different sum as he may think best;” the provision for her sister, Jane Lovell, and the amount which should be set apart for the cemetery lot— in fact, the most important provisions of the will, depend for their execution largely upon the discretion of the executor. In view of this confidence, it appears to me reasonable to suppose that the testatrix was willing to leave the disposition of the remainder of the trust fund to such trust purposes as her trustee, acting as a trustee and not as an individual, should think best. The case of Beck’s Appeal, 116 Pa. 547, is cited as opposed to this conclusion. The same court refer to that case in McCurdy’s Appeal, 124 Pa. 99, as follows:

“ But the doctrine of Beck’s Appeal ought, if possible, to be restricted rather than extended. Its practical application in that case was a disposition of the testator’s residuary estate apparently very different from that which he intended himself, because, if he meant so to do, he could by his will easily have given his whole residuary estate to his executor by name, without referring to ‘ objects, persons, or institutions.’ Besides, it is entirely repugnant to all our ideas of integrity and honesty that an executor should take to himself absolutely the' estate which was given to him in confidence that he would appropriate it to other objects and purposes, and in any case, where such a disposition of a testator’s estate is claimed, it seems to us that the strictest construction of the will should be invoked to prevent its consummation.”

If, as defendant’s counsel contends, and I believe correctly, the intention of the testatrix is to be ascertained and enforced, it clearly follows that the decision in Beck's Appeal should not be f óllowed. It seems improbable to me that a lawyer of Mr. Duffield’s ability understood that the testatrix wished in effect to make an absolute gift to him of the remainder of her estate, and then expressed that intention in the language of this will. Furthermore, to so hold would, in my opinion, be a matter of evil import to be avoided, if possible. By statute, a bequest to a subscribing witness, necessary for proving the will, is declared absolutely void (3 Comp. Laws, § 9268), and this, though the subscribing witness may be and generally is ignorant of the contents of the will. Although there is no statute to invalidate a bequest to a scrivener, the reasons are, at least, as strong for such a statute as in the case of the subscribing witness. I believe it to be generally recognized by the profession as contrary to the spirit of its code of ethics for a lawyer to draft a will making dispositions of property in his favor, and this court has held that such dispositions are properly looked upon with suspicion. Dudley v. Gates, 124 Mich. 440. I, therefore, do not believe that Mr. Duffield supposed that he was making provision for his own benefit, and it seems clear from his letters that his son had no such supposition until he was so advised by counsel.

I am for affirming the decree, but without costs.

Montgomery, Ostrander,.Hooker, and Moore, JJ., concurred with Blair, J.


source: Caselaw Access Project

author: Cabpenteb, J.

license: Public Domain

text:
    PEOPLE v. MIX.
    1. Arson— Prosecution — Circumstantial Evidence — Suffi- ! oiency.
    On an information for feloniously burning a dwelling house belonging to respondent with intent to injure a fire-insurance company, evidence examined, and held, circumstantially sufficient to sustain a finding that respondent was actually and personally present at the burning or set fire to or burned the building, though there was no direct testimony that he was present or set the fire, and there were witnesses who testified that he was four miles away when the building burned.
    3. Same — Evidence—Admissibility — Motive — Yalue of Property.
    A proof of loss sworn to by respondent describing the house, its contents, and the barn and its contents, was admissible in evidence to show the property burned and its value, as showing a motive for the burning.
    3. Same — Absence of Motive.
    Respondent was entitled, for similar reasons, to show that property not included in the proof of loss was destroyed.

      4. Witnesses — Reputation—Change of Domicile — Admissibility of Evidence.
    Where a witness has recently changed his domicile, evidence as to his reputation for truth and veracity at his previous places of residence is admissible within reasonable limits as to time.
    5. Criminal Law — Argument of Counsel — Departure from Evidence.
    Where it appears that certain of the people’s witnesses have been posted as common drunkards, it is prejudicial for the prosecuting attorney to charge inferentially in his closing argument that the posting was done by respondent, there being no testimony to justify such argument.
    6. Arson — Information—Description of Property.
    In an information for burning to injure an insurance company, under section 11544, 3 Comp. Laws, the building burned may be described as a dwelling house, it having been intended to be occupied as a residence, though respondent was not occupying it as such at the time of the burning.

      Exceptions before judgment from Barry; Smith, J.
    Submitted June 13, 1907.
    (Docket No. 123.)
    Decided July 13, 1907.
    James B. Mix was convicted of burning a building with intent to defraud an insurance company.
    Reversed.

      Colgrove & Potter, for appellant.

      Lee H. Pryor, Prosecuting Attorney ( Thomas Sullivan, of counsel), for the people.
   Cabpenteb, J.

Respondent was convicted of feloniously burning a certain dwelling house belonging to himself, with intent to injure a certain fire-insurance company who had insured the same against loss by fire. This dwelling house was vacant. It was situated in the township of Castleton, Barry county, about four miles away from the village of Nashville, where de- ' fendant resided. The fire destroyed the house and its contents and an adjacent barn and its contents, all belonging to defendant. We are asked to set aside the conviction on several grounds:

First. It is insisted that there was no evidence which justified the jury’s finding — as they were compelled4 to find under the charge of the court and under the law governing the case (Meister v. People, 31 Mich. 99) — “that the defendant was actually and personally present at the burning or set fire to or burned the building in question. ” It is true that there was no direct testimony tending to prove that defendant himself set the fire, or was personally present when the building burned. There is, however, circumstantial testimony. That circumstantial-testimony is as follows: That defendant endeavored, and unsuccessfully endeavored, to procure others to burn the building; that when he failed in this endeavor, he stated he would burn it himself; that he placed a jug containing, as the jury might infer, either kerosene or gasoline, in the house, and so arranged that it could be readily ignited; that after the building burned he endeavored to divert suspicion to others by procuring false testimony; and that the building was insured for more than its value. We think this circumstantial evidence warranted an inference of defendant’s guilt. It is very similar to that in the case of Hamilton v. People, 29 Mich. 173, where this court was of the opinion that an inference of guilt could be drawn. It is contended, however, that this inference cannot be drawn, because other witnesses testified that defendant was at his home in Nashville, four miles away, when the fire occurred. It cannot be said that the testimony of all these other witnesses was inconsistent with defendant’s guilt. He might have set fire to this building, and still have been in Nashville at the time testified to by some of them. One of these witnesses had a criminal record. Others may have made a mistake in testifying to the time they saw defendant. We cannot say that the jury were bound to credit their testimony. Neither can we say, as defendant asks us to say, that their verdict was against the weight of the testimony.

Second. For the purpose of showing the articles which were burned, and their value, the people were permitted to introduce in evidence the proof of loss sworn to by defendant. This proof of loss described the house in question, its contents, and the barn and its contents. We think this evidence was properly admitted. It had a bearing upon defendant’s motives. It was admissible under the decision of Hamilton v. People, 29 Mich. 173. There the court said:

“ Objection was made to the reception of certain evidence of the amount of hay in the barn. * * * We think that the fact of the fullness or emptiness of the bam might have a very clear bearing upon the question of motive in burning the barn, and we can see no reason for excluding any circumstance showing the extent of the fire and of the property burned. ”

Defendant was prevented from proving that the fire ' destroyed certain other property not included in the proof of loss. We think this testimony should have been admitted. Within the rule which justifies the admission of the proof of loss, it had a bearing on defendant’s motive.

Counsel for the people contend that the exclusion of this testimony was harmless, because the property omitted from the proof of loss was trivial in value. Whether or not he is right in this contention we need not determine, since the conviction must be reversed upon other grounds.

Third. It is contended that-the trial court erred in excluding certain testimony offered by defendant for the purpose of impeaching Horace Worden, a witness sworn for the people. Worden was not an unimportant witness. He testified that after the fire defendant offered to pay him $25 if he would give false testimony tending to prove that one Bert Parmeter burned the building. At the time of the trial he resided in the village of Nashville. He had lived there only a few weeks. During the preceding two years, ending with the summer of 1906, he had lived upon a farm in Eaton county, just across the line from Barry. Prior to that time for two or three years he had lived in Nashville; and prior to that, in Yermontville (Yermontville and Nashville are only three miles apart), where he had resided for many years. The testimony excluded tended to prove that Worden had a bad reputation for truth and veracity at the time he lived in Nashville and in Yermontville. We think the court erred in excluding this testimony. It is within the rule laid down in Hamilton v. People, 29 Mich. 173, where it was said :

“ Where an impeached witness has changed his domicile, there appears to be no objection to showing his reputation in both places within a reasonable limit of time.”

See, also, Keator v. People, 32 Mich. 484. Mr. Wig-more, in volume second of his work on Evidence, in section 928, says:

“On principle, the correct solution seems to be that •prior character at any time may be admitted, as being relevant to show present character, and therefore, indirectly, to show the probability as to truth-speaking. The only limitation to be applied would be that applicable to all use of a former condition to show a present one, * * * i. e., that the character must not be so distant in time as to be void of real probative value in showing present character; this limitation to be applied in the discretion of the trial court.”

In support of . this proposition many authorities are cited. The objection to the contrary rule, which was in this case adopted by the trial court, is forcibly presented by Campbell, C. J., in Norwood v. Andrews, 71 Miss. 641. He says it would—

“Preclude the possibility of impeaching the character of one who had changed his residence in many cases. The rule must work both ways, and, under the rule we condemn, one who had maintained an unblemished reputation through along life, in case of removal and occasion in his new home to prove his good character where he had spent his life, would be denied the right to call witnesses who had known him at his former residence, because not acquainted with his reputation at his new place of abode; and one who had not lived long enough at a place to become known there would not be able to prove reputation at all.”

It is believed that the decisions of this court are in harmony with the rule stated by Mr. Wigmore. In making this statement, I have not overlooked Webber v. Hanke, 4 Mich. 198, where this court held that, where a witness had a fixed abode for five years (and that is not this case), it is within the discretion of the trial court to exclude testimony of his reputation in the country where he lived before that time. We cannot say that the error in excluding this testimony was harmless. Had it been admitted, it may have led the jury to utterly discredit Worden’s testimony and to acquit the defendant. The ruling was therefore not only erroneous, but it was prejudicial.

Fourth. It appeared, on cross-examination of certain witnesses for the people, that they bad been posted as common drunkards in the village of Nashville. During the closing argument of the assistant prosecuting attorney, he used language which, by inference, charged that this posting was done by defendant. There was no testimony to justify this. The prosecuting attorney should have used more guarded language.

Fifth. The information described the house that was burned “as the dwelling house of defendant.” Defendant’s counsel requested the court to charge the jury that they could not convict the defendant unless this house was ‘ ‘ actually used or occupied as a place of abode by the defendant.” This request was refused, and defendant alleges error. This court has held (People v. Handley, 93 Mich. 46) that the term “ dwelling house ” used in certain statutes means a house that is actually occupied as such. The term itself, however, has a broader meaning. In common parlance, and according to Webster’s Dictionary, “a house intended to be occupied as a residence” is a dwelling house. It was in this sense that the building in question was described as a dwelling house, and there is no objection- to so describing it, for the guilt of defendant (he was convicted under section 11544, 3 Comp. Laws) did not depend upon the character of the building he burned, or upon the use to which it was put.

No other question demands discussion.

The conviction is set aside, and' a new trial ordered.

Mn At.vav, C. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    PEOPLE v. SANFORD.
    Indictment and Information — Included Offenses —Indecent Liberties — Assault and Battery.
    An assault and battery is necessarily involved in the crime of taking indecent and improper liberties with a female child under the age of 14 years, as provided in section 11719, 3 Comp. Laws, and a conviction of assault and battery may be had on an information for that offense.
    Exceptions before judgment from Mason; Rose, J.
    Submitted June 13, 1907.
    (Docket No. 126.)
    Decided July 13, 1907.
    Volney Sanford was convicted of an assault and battery.
    Affirmed.

      A. A. Keiser, for appellant.

      John E. Bird, Attorney General, Henry E. Chase, Deputy Attorney General, Thomas Ambrose Lawler, Assistant Attorney General, and App. M. Smith, Prosecuting Attorney, for the people.
   Grant, J.

The indictment in this case contains two counts. The first charges a felonious assault upon one Mary I. Batson, a female 13 years of age, with intent to commit the crime of rape. The second charges the respondent with taking indecent and improper liberties with the person of Mary I. Batson, without committing, or intending to commit, the crime of rape. The respondent was convicted of assault and battery. The evidence on the part of the people is that the respondent pursued the girl, who ran from him, caught her, threw her upon the floor, and put his hand upon her person under her clothes above her knee, and tore her underskirt. The respondent testified that he had a scuffle with her on the porch, but that it was a friendly scuffle; that she grabbed a pocket piece from his hand; and that he got hold of her and took it away from her.

The evidence was sufficient to sustain a verdict of assault and battery, if the jury believed the story of the girl. They found the assault and battery, but evidently without the intent to commit the crime of rape, or without having taken any indecent liberties with her person. The judge instructed the jury as follows:

“ If you are not able to say beyond a reasonable doubt that thé respondent is guilty of one of these two offenses, to wit, of assault with intent to commit the crime of rape, or taking indecent or improper liberties with her person, if you should find beyond a reasonable doubt that he took hold of her in an insulting and lustful manner, threw her down on the floor, or placed his arms around her waist in an insulting and improper manner, you would be justified in finding him guilty of assault and battery.”

The main point raised is that the crime of assault and battery is not included in either of the offenses charged in the information, and the court erred in instructing the jury that he might be convicted of that crime. We need not determine the question whether the respondent could have been convicted of assault and battery under the first count, where no battery is specifically alleged. A battery is not necessarily, though usually, involved in an assault with intent to commit rape. The better practice is for the prosecutor to allege a battery if he intends to rely upon it. An assault and battery is necessarily involved in the crime of taking indecent and improper liberties with a female child under the age of 14 years,, as provided in 3 Comp. Laws, § 11719.

"Any indecent liberties taken with the person of a female against her will is an assault and battery.” Tiffany on Criminal Law (4th Ed.), p. 685.

It follows that the respondent was properly convicted under this count. No requests were preferred upon this point. Other errors are assigned, but they are not of sufficient importance to discuss.

We find no error, and the conviction is affirmed.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


author: Hooker, J.

text:
    HAWKINS v. BAY CITY.
    Municipal Corporations — Police—Compensation — Suspension. Under the charter and ordinances of Bay City, a police officer is not entitled to compensation during the time he is suspended and renders no “active service.”
    Case made from Bay; Collins, J.
    Submitted June 14, 1907.
    (Docket No. 101.)
    Decided July 13, 1907.
    Assumpsit by Hiram J. Hawkins against the city of Bay City for services rendered. There was judgment for plaintiff for less than the amount claimed, and both parties appeal.
    Affirmed.

      Brakie J. Orr, for plaintiff.

      S. G. Houghton, for defendant.
   Hooker, J.

The plaintiff is a policeman in Bay City. He was suspended by lawful authority on June 30, 1905. He was tried for neglect of duty and conduct unbecoming an officer, and four of the five members of the committee before whom the trial- was had found him guilty of the charges, and recommended that he be discharged. The other member filed a minority report, to the effect that he was not guilty, and recommended that he be reinstated. The council adopted the minority report, but it was vetoed by the mayor. This occurred on August 17, 1905. ‘

The plaintiff afterwards presented himself frequently and asked to be assigned to duty, but this was refused, and upon November 13, 1905, he filed a petition for mandamus, to compel the mayor and chief of police to assign him to duty and asking compensation. The learned circuit judge held that the mayor had no authority to veto the action of the council, and that, even if he had such authority, the subsequent inaction of the council had operated to dismiss the charges, and he ordered that the relator be reinstated.

Upon the subject of compensation, it appeared that on September 18, 1905, the plaintiff had presented a bill for compensation claimed from June 30 to September 15, amounting to $152. This was referred to a committee of the council and was reported not a legal charge, for the reason that plaintiff had rendered no service, and it was not allowed. The judge held that he was entitled to such compensation only as the council should allow, and suggested in his order that the council would, doubtless, pass upon the entire claim in the manner provided for in the ordinance. It does not appear when this order was made3but the plaintiff was assigned to duty on March 13, 1906. Subsequently the council allowed him $140, as full payment of his claim against the city. He refused to accept this, and began this action to recover his salary, at $60 per month, for the full period that he had been suspended, amounting to about $500.

The cause was tried upon stipulated facts, and the court found s

“ 1. That between the 30th day of June, 1905, and the 12th day of March, 1906, both inclusive, the plaintiff was not engaged in ‘active service’ on the police force as a policeman of the city of Bay City, and therefore is not entitled to the salary payable to a policeman in ‘ active service,’ namely, a salary of $60 a month.

“2. That between said dates the plaintiff, though a member of the police force of said city, was under suspension and therefore only entitled to such, compensation as allowed by the common council during the period between said dates.

“3. That the plaintiff is entitled to a judgment against the defendant for the sum of $140 with interest at five per cent., from April 1, 1906, to date, together with costs of suit, and judgment is ordered for the same accordingly.”

Both parties have appealed.

Act No. 514, Local Acts 1903, § 90, provides:

“The common council shall, by ordinance, prescribe the powers and duties to be exercised by said committee, and shall place under the direction of said committee, subject to the supervisory control of the council, the care, control and management of the police force, its organization, government, and discipline, and the custody and control of all public property, books, records and equipments thereunto belonging.”

The following ordinance provides for compensation:

“Sec. 3. Such committee shall have the power to appoint a chief of police, and one or more captains, lieutenants, sergeants, court officer, sanitary and truant officer, turnkey, police matron, and such number of policemen with pay, and such number of policemen or watchmen without pay, as it shall deem expedient, which appointments other than chief, shall be made from the members of the police force, and may be revoked at any time when, in the judgment of said committee, the best interest of the city demands it, and the officer affected by such revocation be detailed for such duty as shall be designated by the committee, all such appointments and revocations, however, to be subject to the approval of the common council. For the time engaged in active service, the chief, captains and members of the police force shall be paid such sums as shall be recommended by the police committee and approved by the council.”

The case is ruled by Wilkinson v. Saginaw Common Council, 111 Mich. 585, and the judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    BLISS v. LIVINGSTON PROBATE JUDGE.
    Executors and Administrators — Allowance to Widow — Post-nuptial Agreement — Effect.
    A postnuptial agreement, by ■which the wife receives certain property 1 ‘ in full satisfaction of all my dower rights or inter-' ests in the lands and property of said H. B. * * * intending to bar myself of all rights and interests in any and all the property of said H. B. to which I might, become entitled by reason of being the wife of the said H. B. except the right of support and maintenance out of said property during the lifetime of said H. B.,”does not bar her right to the statutory allowance for her support out of the estate during administration.
    Certiorari to Livingston; Miner, J.
    Submitted June 18, 1907.
    (Calendar No. 22,300.)
    Decided July 13, 1907.
    Mandamus by Mary Bliss to compel Arthur A. Montague, probate judge of Livingston county, to fix an allowance for relator’s support and maintenance pending the settlement of an estate. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      William P. Van Winkle and Arthur E. Cole, for relator.

      S. 8. Abbott and E. A. Stowe, for respondent.
   Montgomery, J.

Relator is the widow of Horace Bliss, deceased, whose estate is being administered by the probate court of Livingston county. She applied to the probate court for an order fixing an allowance under section 8940, 3 Comp. Laws. The probate judge. decided that she was entitled to no allowance. Thereupon application was made to the circuit court of Livingston county for a mandamus requiring the probate judge to fix a reasonable allowance to relator. Such an order was made, and is now before us for review by certiorari.

The probate judge was of the opinion that relator had barred herself of the right to ask for an allowance by a postnuptial agreement, which, in consideration of a conveyance of certain land by her husband to her and of naming her as the beneficiary in a life-insurance policy, relator acknowledged that she accepted the above-named conveyance and agreement—

“ In full satisfaction and discharge of all my dower rights or interests in the lands and property of the said Horace Bliss, that he now owns as well as all that he may accumulate or acquire, intending to bar myself of all rights and interests in any and all the property of the said Horace Bliss to which I might become entitled by reason of being the wife of the said Horace Bliss, except the right of support and maintenance out of said property during the lifetime of the said Horace Bliss.”

And the question for determination is whether this agreement should be construed to bar the right to support during the settlement of the estate.

The statute was before the court for consideration in Pulling v. Wayne Probate Judge, 85 Mich. 34. In that case by an antenuptial agreement it was agreed by the relator that in consideration of a payment made and love and affection she, the second party,—

“ Hereby agrees to release, and does release, all claim which, upon the death of the first party, she as his widow may have in his estate, whether in right of dower or as her distributive share in the personalty or otherwise, under the laws of this State.”

It was said of this provision.:

“The agreement here was intended to bar relator’s ‘ right of dower, and all of her right to share in the estate,’ and cannot be extended to include statutory ‘ allowances pertaining to administration.’ The claims referred to are those which she, as widow, would be entitled to make at the time of the distribution of the estate.”

We are of the opinion that the language of the agreement in question in this case is no broader to exclude the right of the widow to sustenance during the settlement of the estate than was that in Pulling’s Case. The reference is to the interests which relator as wife of Horace Bliss should have in his property. This just as clearly means the rights which she would take as distributee as did the clause in the agreement in Pulling’s Case. They relate to her right which she as widow might have, whether the right of dower or her distributive share in the personalty or otherwise.

The point is made that the exception of the right of support and maintenance out of the property of Horace Bliss during his lifetime should be held to exclude the right to support and maintenance after his death. This contention has some plausibility, but, as the preceding language indicates that the purpose was to bar relator from special rights and interests in property which would come to relator upon distribution of the estate, we think this exception must be held to have been inserted out of abundant caution to exclude any possible claim that from the date of the contract responsibility for relator’s support during the lifetime of Horace Bliss was assumed by herself. It is quite as clear that this instrument does not relate to statutory allowances pertaining to administration as that the instrument construed in Pulling’s Case did not.

The order of the circuit judge is affirmed.

McAlvay, C. J.,' and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    JOLIET BRIDGE & IRON CO. v. FREEMAN.
    Drains — Bridges—Contracts—Irregularity—Effect.
    Where a lawful drain has been regularly laid out and established, the drain constructed, the benefits legally assessed, and the assessments practically all paid, the drain commissioner cannot refuse to draw an order upon the drain fund for the price of bridges and culverts erected as a part of the construction of the drain, on the ground of irregularities in the proceedings of his predecessor in letting the contract for said bridges and culverts.
    Certiorari to Isabella; Searl, J., presiding.
    Submitted July 2, 1907.
    (Calendar No. 22,337.)
    Decided July 13, 1907.
    Mandamus by the Joliet Bridge & Iron Company to compel Clarence H. Freeman, drain commissioner of Isabella county, to issue orders for the payment of certain bridges. There was an order denying the writ, and relator brings certiorari.
    Reversed, and writ granted.

      James H. Davitt (I. A. Fancher, of counsel), for relator.

      F. MacNamara and F. H. Dodds, for respondent.
   Hooker, J.

This record shows that the respondent’s predecessor, acting in the capacity of county drain commissioner, laid out and established the Lewis Drain, assessing benefits upon the township of Isabella at large. No certiorari was taken, and therefore we are justified in saying that the drain was a lawful drain.

Contracts were let for the excavating in sections, and a separate contract was let to the relator, a builder of iron, bridges, for nine bridges and two culverts, i. e., steel tubes, bids for bridges and tubes being first advertised for. These contracts were performed, and the drain commissioner aforesaid certified to the performance of relator’s contract, and accepted the bridges and tubes as satisfactory, in 1904, and they have been in use from that time to this. Subsequently, this respondent having become drain commissioner, relator made a demand upon him for orders upon the drain fund for the amount due to it upon the contract, and this was refused. Thereupon an application for a mandamus to compel it was filed in the circuit court, upon denial of which-relator removed the proceeding to this court by certiorari.

The respondent’s defense is rested upon the alleged invalidity of the relator’s contract, and is made by the drain commissioner in reliance upon the case of Kenyon v. Board of Sup’rs of Ionia Co., 138 Mich. 544, where we refused a mandamus asked for by the drain commissioner against the board of supervisors to compel the ordering of a drain tax. In that case it w;as held that, while the law authorized a purchase of drain or sewer tile for the drain under a separate contract, it was necessary for the commissioner to advertise for bids, and let the contract to the lowest responsible bidder, and not having done so, the subject was open to review; the acts rendering the proceeding fatally defective having occurred more than 10 days after the final order of determination by the drain commissioner, and the refusal of the board to act and the institution of the mandamus proceeding having occurred before any work had been done to construct the drain. This decision appears to have been based on section, 3860, 1 Comp. Laws, which allows the board to hear objections made by any taxpayer to be affected, and, if it shall find the proceeding defective, to require such defect to be corrected.

In the present case no relief is sought against the board of supervisors, who, so far as we know, has not criticised the proceeding, or attempted to secure a correction of any defect before ordering the tax, nor is it alleged that any taxpayer liable to be affected has asked or sought to be heard by the board. Moreover, the taxpayers have permitted the relator to complete the performance of its contract. This contest appears to be made at the instigation of the supervisor, Gray, and a highway commissioner, Dunn. Their opposition appears to have taken this form. Both having been'present at the letting of the drain sections, and not satisfied with the bid offered upon the bridges, they sought to have another bid made, and claim that they were not afforded'an opportunity to ascertain the details of the bridges required. After the contract was executed they joined in filing a bill in chancery against the then acting drain commissioner, in which they alleged their official character, and stated that they filed the bill in behalf of the township; that one-third of the expense of the drain was to be spread at large upon the township; that in their opinion most of the proposed expense of bridges could be saved by using old bridges then erected at or near by; that the contract advertised was not let at the time advertised, but at private sale, at an exorbitant price; that the highway commissioner should have been, but was not, consulted in regard to such bridges. The bill prayed an order requiring Eldred, the drain commissioner, in building these bridges, to meet with said highway commissioner, and co-operate with him in building and placing said bridges, and that said drain commissioner readvertise and relet the contract for furnishing nine bridges and two tubes for said drain. A temporary injunction was issued directing Eldred “ not to proceed with the sale of the bridges, nor the placing of said bridges, nor to close the said contract with relator, nor to pay it any money on the same until the further order of the court.” This bill was ultimately dismissed by stipulation, after which relator’s demand was made on respondent, and he refused to issue the orders. It is inferable that all benefits assessed against private persons have been paid, except $1.60, that one-half of the amount apportioned to the township has been spread and paid, that the board of supervisors have not acted as to the remainder [in conformity to the wishes of Supervisor Gray, counsel state because relator will not accept less than the contract price in"full payment of its claim). >

We have, then, a case where- there is a valid drain, completed and accepted by the drain commissioner. No one is disputing its validity, or asking any correction of the proceeding. The only point? in dispute relate to technical irregularities in advertising and letting the contract for bridges, and the amount agreed to be paid therefor. Neither of said irregularities was alleged in said bill, or otherwise raised, until after the work was done and payment demanded, when they are raised by the drain commissioner as a ground for repudiating the contract of his predecessor after full performance and acceptance. The case is not different than it would be had Eldred remained drain commissioner, and were now refusing to issue an order upon a contract made by himself upon a technical defect which no one else cared to assert before performance. We -have often alluded to the inequity of attacks upon assessments made by those charged with benefits after they had secured such benefits, and have refused to permit such to succeed. The law attempts to prevent such abuses by requiring a certiorari at an early stage of the proceedings, and this is supplemented by the application of the rule already stated to irregularities arising at a later stage. By not seasonably moving in this matter, the inhabitants of the town affected may reasonably be held to have waived these defects, which may have been cheaper than to have delayed proceedings for correction, and it is not within the province of the commissioner to repudiate his contract, and his acceptance upon the ground of his own or his predecessor’s mistake, of which no one else has complained.

The order of the learned circuit judge must be reversed. • The writ will issue as prayed, with costs of both courts.

McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


text:
    DOLPH v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Evidence — Former Trial — Absent Witness.
    Where it is shown that a witness who testified at a former trial of the case is beyond the jurisdiction of the court, his testimony given at the former trial may be read to the jury.
    2. Trial — Argument of Counsel — Credibility of Witnesses— Railroad Defendant.
    In an action against a railroad company for negligent fire, arguments of plaintiff’s counsel to the effect that defendant’s witnesses are not to be believed because defendant is a railroad company are prejudicial and warrant setting aside a verdict for plaintiff.
    3. Railroads — Fires—Negligence—Unoontradicted Evidence-Question- for Jury.
    When, in an action against a railroad company for negligent fire set by its locomotive, defendant establishes by reputable and uncontroverted evidence that its appliances were such as good railroading requires, that they were in the condition required by law, and properly managed, the statute (section 6295, 2 Comp. Laws) does not require the question of negligence to be submitted to the jury, but the question is one of law for the court.
    Error to Lenawee; Chester, J.
    Submitted June 8, 1906.
    (Docket No. 61.)
    Reargued April 8, 1907.
    Decided July 15, 1907.
    Case by Wira H. Dolph against the Lake Shore & Michigan Southern Railway Company for the negligent burning of plaintiff’s buildings. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    Plaintiff’s house, a small one, situated about 100 feet from the track of the defendant’s road, and woodshed, situated about 80 feet from the track, were destroyed by fire. No one was in the occupancy of the house at the time; neither was any one near when the fire started. The house had been vacant for about two months. It was an exceedingly dry time. The grass along the right of way was dry. A very strong wind was blowing directly across the track towards the buildings. The ground was burnt over at one point to within 81 feet of the track. The point at which the fire started and its distance from the track are of course unknown. The negligence charged in the declaration is “the failure to keep its engines in proper condition and repair so as to prevent the escape of sparks.” In reply to special questions, the jury found that the engine was properly managed, but that it was not in good order. The case was submitted to the jury, who rendered a verdict for the plaintiff of $750.

      Weaver, Morgan & Priddy and Dallas Boudeman, for appellant.

      Bird & Sampson and John A. Biley, for appellee.
   Grant, J.

{after stating the facts). 1. One McKenzie was a witness for the defendant on a former trial. He was not called by it upon this trial. After the defendant had rested its case, plaintiff was permitted to read to the jury the testimony of this witness upon the former trial. It seems to have been conceded that the witness was beyond the jurisdiction of the court. If the plaintiff failed to show that the witness was beyond the jurisdiction of the court, it was error to admit the reading of his testimony. If he had established the fact, that the witness was beyond the jurisdiction of the court, , then the testimony was admissible under Hudson v. Roos, 76 Mich. 173, 180.

2. Counsel for the defendant strenuously insist that there is no evidence that the engine was out of repair. They base this insistence upon the testimony of those who examined the smokestack and appliances shortly before and shortly after the fire. Without detailing the evidence, we are unable to hold that there was no evidence to sustain the verdict.

3. In addressing the jury, plaintiff’s counsel said:

“Any one who may have a fire will find some one coming from the railroad company to testify that the engine was in proper repair. * * * You and I may be in error. You make mistakes and so do I; but you will not make any if you are a railroad man, and if a request is made to your company to pay some man whose house was burned.”

Speaking of a witness for defendant, counsel said:

“But my brother says: ‘Here is Mr. Osier, and he comes here, and he isn’t interested at all. He is not working for the Lake Shore now.’ Well, but he was working for the Lake Shore when he swore here upon the other trial. He tells you he left there in February some time. He is on record. He can’t go back now and change his testimony. He was just as much under the thumb of the Lake Shore this time as before, because he was already on record in this court.”

Again:

“ It has been said that juries will find verdicts against the railroad companies simply because they are railroad companies. * * * If railroad companies have earned that sort of a reputation, who is to blame for it but the railroad company itself ? The treatment that" they have given the people has driven to that, if that is the case.”

(This last statement does not seem to be referred to in defendant’s brief. We do not therefore treat it as a reversible error, but look at it only to ascertain the spirit with which the former statements were made.) Here is clearly an appeal to the prejudice of- the jury. They are asked, in effect, to discredit defendant’s witnesses because defendant is a railroad company. It is as if counsel said: “Don’t give railroad companies a fair trial, because they’ are railroad companies.” I think every one will concede the injustice of such arguments. It is clearly our duty to condemn them, and to protect litigants from their injurious consequences. That duty compels us to set aside plaintiff’s verdict, and to grant a new trial.

4. The principal and most important question presented upon the record is, Does the statute (2 Conap. Laws, § 6295) require the issue of fact to be submitted to the jury, where the prima facie case, made by the setting of the fire, is met by uncontradicted evidence that the engine had the necessary appliances — was in good condition and properly managed ? Upon this question a reargument was ordered, and the court had the benefit of able arguments and an exhaustive discussion of the authorities. The learned counsel for the plaintiff insist that the statute leaves the question to the jury. Legislatures may make, and have made, railroads absolutely liable for all fires set by their engines. Campbell v. Railway Co., 121 Mo. 340 (25 L. R. A. 175); 2 Thompson on Law of Negligence, § 2341. The making of a prima facie case by simple proof of the setting of the fire arose out of the difficulty of a plaintiff to prove the defect, and from the fact that the construction, condition, and management of the engines are peculiarly, if not exclusively, within the knowledge of the company’s employés. The rule is reasonable. The railroad company must show that its engines are of the kind and in the condition required by the law. Where witnesses, whose integrity there is no reason to doubt, testified that they made at the time personal examination, and that everything was in good order, and, it being a conceded fact that the best of engines will sometimes set fire, does the law mean that a jury, under these circumstances, can ignore such testimony, and base a verdict of “guilty of negligence” upon the bare fact that the fire was set by the engine ? The statute does not so provide in terms. Its language does not necessarily imply that the legislature intended to make the question solely one for the jury. It is a radical departure from the just rule of the common law that he who asserts a tort must prove it. The statute provides :

“ That such railroad company shall not be held so liable if it prove to the satisfaction of the court or jury, that such fire originated from fire by engines whose machinery, smoke-stack or fire-boxes were in good order and properly managed.” 2 Comp. Laws, § 6295.

The statute shifts the presumption of nonnegligence to a presumption of negligence. See Fisk v. Railroad Co., 114 Mich. 248. We there said:'

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

Counsel for plaintiff cite but one case in Michigan bearing upon the subject. Hagan v. Railroad Co., 86 Mich. 615. In that case there was evidence of negligence ample to sustain the verdict of the jury. The court said :

“The jury were entitled to consider, as bearing upon the question of negligence, not only defendant’s testimony as to the condition of the locomotive, the competency and skillfulness of the engineer and fireman, and the proper management of the locomotive on that occasion, but also the testimony as to the poking of the fire, its effect upon the emission of sparks, and, in that connection, defendant’s testimony that it was unnecessary to poke the fire.”

There was also testimony in that case that an engine in good order and .properly managed could not possibly throw fire 160 feet from the track. Counsel cite Hemmi v. Railway Co., 102 Iowa, 25 (2 Am. Neg. Rep. 128). That case is based upon Greenfield v. Railway Co., 83 Iowa, 270. The statute in Iowa provides that the railroad company “ shall be liable for all damages by the fire that is set out or caused by operating of any such railway.” In terms that statute imposed an absolute liability. The court construed it as not imposing an absolute liability, and held that the liability depends upon the fact of negligence. The court held that the proof of damages raised the presumption of negligence, and that “ negligence being presumptively established, has for its support every fact by which it might have been established upon proof.” The court then proceeds to show that the evidence on the part of the company did not negative every possible act of negligence. The court further said that the construction of this section required a holding of absolute liability for such fires, or such a rule as this as to presumptions. The difference between the two statutes is apparent. The case of Burud v. Railway Co., 62 Minn. 243, does not sustain the plaintiff’s position. The court in that case expressly say:

“There is no doubt of the correctness of the propositions, urged by defendant’s counsel, that the statutory presumption is a disputable one of fact, which may be rebutted by showing that the defendant did use due care and was not negligent; that the effect of the statute is-merely to cast the onus or burden on the defendant to prove that it was not negligent; also, that, if the evidence to that effect is conclusive, a verdict for the plaintiff could not be sustained.”

We do not think that the statute of Michigan makes an issue of fact that must, under all circumstances, be left to the jury. When the railroad company has established by reputable and un controverted evidence that its appliances were such as good railroading requires, that they were in the condition required by the law, and properly managed, we think the question is one of law for the determination of the court, and not one of fact to be decided by the jury. Suppose the engine setting fire was new and on its first trip; that its makers testified that it was all the law required; that it was established beyond controversy that it was properly equipped and properly managed, and it was a conceded fact that all properly constructed engines will sometimes emit fire; can it be said that there is any tangible evidence of wrongdoing on the part of the company ? We think not. The'company in such case has completely rebutted the prima facie case which the statute has created, and is entitled to have a verdict directed in its favor. In Daly v. Railway Co., 43 Minn. 319, it was held that the evidence introduced by the defendant was as broad as the presumption, and satisfactorily rebutted any legal inference of negligence. In Smith v. Railroad Co., 3 N. Dak. 17, it was held that “when the whole case, independently of this artificial presumption, shows that there was no negligence, the presumption cannot be considered for the purpose of making an issue for the jury.” In Menominee River Sash & Door Co. v. Railroad Co., 91 Wis. 447, it was held that under the statute the presumption “was indulged in merely for the purpose of putting the company to proof, and compelling it to explain and show, with a reasonable and fair degree of certainty, * * * that it had performed its duty in this, particular.” It was held that the proof overcame any inference arising from the mere fact that sparks and cinders escaped and communicated fire. Without discussing the authorities further, the same holding may be found in Southern R. Co. v. Pace, 114 Ga. 712; St. Louis, etc., R. Co. v. Ludlum, 6 Kan. App. 700; Spaulding v. Railway Co., 38 Wis. 582; Kentucky Cent. R. Co. v. Talbot, 78 Ky. 621. The rule is founded in justice and sound reason. See, also, Ann Arbor R. Co. v. Fox, 34 C. C. A. 497. .

I do not deem that the words “to the satisfaction of the court or jury ” are of any significance, or tend to show any intention to take a question of law from the court and submit it to the jury. These words are purely expressive of the common-law rule, for in every case the proofs must justify a verdict or a judgment to the satisfaction of the court or jury before which the case is tried. The statute with these words eliminated would mean exactly the same as it does with them in. Under our Constitution and system of jurisprudence the determination of questions of law belongs to the court, and, as a general proposition, the legislature has no power to take that determination away from, the judges and transfer it to a jury. The intention of the legislature to take away that power from the judges cannot rest upon presumption, but upon language from which no other intention can be inferred. In every suit at law the plaintiff must by proofs make a case to sustain a verdict and judgment. When the evidence is concluded, the court must determine whether in law there are facts shown to sustain the plaintiff’s claim. If different conclusions can be drawn from conceded facts, or if the facts are in dispute, the question belongs to the jury. I do not discuss the question whether this power exists as to railroad corporations. It is sufficient in this case to hold that no such intention can, in my judgment, be inferred from the terms of the statute.

For want of a better term I have said in this opinion that the setting of the fire makes a prima facie case for plaintiff. This may not be strictly accurate, but names are immaterial. The statute imposes a liability for fires originating in the operation of the road only when the company fails to make the proof of the facts which are a complete defense.

Judgment reversed, and new trial ordered.

McAlvay, C. J., and Carpenter, Blair, Montgomery, Ostrander, and Hooker, JJ., concurred. Moore, J., took no part in the decision.


author: Mooee, J.

text:
    HARRIS v. PHŒNIX ACCIDENT & SICK BENEFIT ASS’N.
    Insurance — Action -on Policy — Limitation—Waiver.
    The action of an accident and sick benefit insurance company-in writing to the insured in relation to a proposed compromise of his claim that it will hold the matter in abeyance for a few days awaiting a further Communication from him, that the proposition made is purely one of compromise, and that the company will in no way waive the conditions of the contract, does not waive a provision of the policy that no action shall be begun thereon after six months from the date on which proofs of loss are required to be filed.
    Error to Shiawassee; Wiest, J., presiding.
    Submitted January 33, 1907.
    (Docket No. 88.)
    Decided July 15, 1907.
    Assumpsit by Sanford Harris against tbe Phoenix Accident & Sick Benefit Association on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      IS. J. Adams, for appellant.

      Albert L. Chandler, for appellee.
   Mooee, J.

The plaintiff, a painter by trade, obtained on May 7, 1904, a certificate of membership in the defendant association. May 19, 1904, he received an injury which he contends gave him a claim against the defendant. This suit was brought to enforce that claim.* From a judgment in his favor, the case is brought here by writ of error.

Assignments of error in relation to the remarks of counsel, the admission of testimony, and certain portions of the charge, have been examined, but we deem it unnecessary to discuss them. The following conditions are to be found in the certificate of membership:

Section 13, condition B:

“Unless affirmative proofs of loss * * * so furnished to the company, * * * within thirty days from date of * * * termination of disability.” * * *

Condition C:

“No action at law shall be maintained before three months, or after six months from the date on which this policy requires proof of loss to be filed.”

Condition M:

“ If the assured is disabled by accident or illness for more than one month, he or his representatives shall, as a condition precedent to recovery hereunder, furnish every thirty days, a report from his attending physician or surgeon, fully stating his condition and probable duration of his disability.”

The defendant claims a failure to comply with these conditions should prevent a recovery. The circuit judge ruled that both of these conditions had been waived. He based this holding upon the correspondence and upon Turner v. Casualty Co., 112 Mich. 425 (38 L. R. A. 529). In the last-named case it appears the delay in bringing suit was caused by the company. We quote from the opinion:

“While the plaintiff was not bound to wait before bringing suit, yet it is apparent that he did wait at the request of the company.”

In this case can it be said the delay was caused by the company? The plaintiff says, “Yes.” The defendant says,. “No.” It becomes necessary to look at the correspondence.

The final proofs of loss were filed December 14, 1904. January 11, 1905, would be the last day in which they might be'filed. The suit was commenced July 21, 1905. On the 5th of May, 1905, the defendant wrote to the at- ' torney of plaintiff, stating the claim was invalid, but suggesting a doubt as to the first month of disability. The answer to this letter was sent June 8, 1905. The part material to this controversy reads as follows:

“ Now, whether or not the technical defense which you suggest has been waived or lost to him 'is a question of fact which probably would not be profitable for us to discuss here. I do not think he. is willing to accept the pay for one month. This probably would not pay his doctor’s bill. If you can allow him 50 per cent, of his claim, I think he would take it rather than go into litigation; but if you do not care to make a good fair offer, perhaps you better refuse it entirely, and let him take such course as he thinks is best for him. ”

On the following day a reply was sent. The material part bearing upon the question of waiver reads as follows:

“ Will say, however, that he has never to my knowledge endeavored to get a settlement with the company except to demand full amount claimed in the final proofs and as he failed entirely to comply with the conditions of the policy as heretofore mentioned, I am under the. opinion that he will not be entitled to over one month indemnity, and feel that it is hardly possible to take a claimant’s financial circumstances into consideration in the settlement of claims. The policy itself is a commercial contract, and indemnifies the claimant only to the extent of the conditions provided therein, and the amount of premium he pays will not purchase indemnity under any other conditions. We should regret any litigation in this matter, but there is a principle involved which is of more importance than the amount involved, and I believe when the company agrees to pay all that is provided for in the contract it is all the claimant should reasonably expect.

“ I will hold this matter in abeyance for a few days, awaiting further communication from you. It is to be understood, however, that the proposition of one month’s indemnity is purely a compromise, and we will in no way waive the conditions of the contract.”

In the case of Turner v. Casualty Co., supra, a delay was asked until an adjuster of the company could see the claimant or his attorney. In this case the statement is, “I will hold this matter in abeyance for a few days awaiting further communication from you,” and this was accompanied by a further statement that the company would not waive the conditions of the contract. The further communication was not sent. The suit was not commenced within the six months required by the contract, but was delayed until July 21,1905. ' It is readily seen the case is a very different one than Turner v. Casualty Co. We think it cannot be held there was a waiver. See Law v. Accident Ass'n, 94 Mich. 266, and cases cited therein; Peck v. Insurance Co., 102 Mich. 52; Klass v. City of Detroit, 129 Mich. 35; Cooper v. Benefit Ass’n, 141 Mich. 476.

The conclusion reached above makes it unnecessary to-Consider the other assignments of error.

Judgment is reversed, and new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.