text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. MICHIGAN SANITARIUM & BENEVOLENT ASS’N.
    1. Quo Warranto — Charitable Corporations — Conduct for Profit — Information—Sufficiency.
    An information in the nature of quo warranto against a corporation organized as a charitable hospital under Act No. 242, Laws of 1863, which alleges that defendant’s business is not being conducted as a charity but for the profit of its officers, and that it has accumulated a large amount of property which it claims is exempt from taxation, and that defendant was organized under said law for the purpose of claiming the exemption for its property and not as a legitimate charity, states a case under section 9950, 3 Comp. Laws.
    2. Same — Franchises—Right to Exercise — Equity—Propriety of Remedy.
    Though a bill in equity would lie to restrain a corporation organized for charitable purposes under Act No. 242, Laws of 1863, from conducting a hospital and sanitarium for profit, the remedy by quo warranto is also appropriate, both remedies being provided by the statute, sections 9755, 9950, 3 Comp. Laws.
    3. Same — Relief Granted.
    An adjudication of ouster, involving a deprivation of all capacity to administer the trust reposed ih defendant, is not the only relief grantable in these proceedings, but defendant may be prevented by a proper order from exercising any franchises or privileges not conferred upon it by law.
    4. Same — Judgment — Ouster — Effect — Administration of Charity.
    An adjudication of ouster will necessitate the court’s taking control of defendant’s property until a decree can be made which will apply the donation to the proper beneficiaries.
    Certiorari to Calhoun; Parkinson, J., presiding.
    Submitted June 13, 1907.
    (Docket No. 36.)
    Decided March 17, 1908.
    Quo warranto proceedings by the People of the State of Michigan, on the relation of John E. Bird, attorney general, against the Michigan Sanitarium & Benevolent Association to determine the liability of respondent for taxes. There was an order overruling a demurrer to the information, and respondent brings certiorari.
    Affirmed.
    O. 8. Clark (Dallas Boudeman, of counsel), for relator.

      Alfred J. Mills and Jesse Arthur, for respondent.
   Moore, J.

This is a certiorari proceeding to review the action of the circuit judge in overruling a demurrer to an information in the nature of a quo warranto. The following statement as to what is contained in the information is taken from the brief of one of the counsel for relator. It alleges:

“That on the 6th day of July, 1898, articles of association pursuant to, and in accordance with, provisions of Act No. 242 of the Public Acts of 1863, entitled An act for the incorporation of hospitals and asylums in cases where valuable grants or emoluments have been made to trustees for such purposes,’ and the acts amendatory thereto and supplemental thereof, were duly filed and recorded in the office of the secretary of this State by and at the instance of certain persons as incorporators, and said incorporators thereby formed .themselves into a corporate body pursuant to the act above mentioned, under the name of the Michigan Sanitarium & Benevolent Association, having its principal place of business at Battle Creek, Michigan; that the purposes of said alleged corporation were:

“ ‘To found a hospital or charitable asylum within the State of Michigan for the care and relief of indigent or other sick or infirm persons, at which institution may be received also patients and patrons who are able to and do pay for the benefits there received, and which institution shall devote the funds and property acquired and received by it from time to time from all sources exclusively to maintaining itself, improving its condition and facilities, extending its benefits and usefulness, and facilitating and promoting its purposes by such sanitary, dietetic, hygienic and philanthropic reforms and efforts as are germane or auxiliary thereto; all of its said purposes being undenominational, unsectarian, philanthropic, humanitarian, charitable and benevolent, and in no manner, directly or indirectly, for private profit or dividend paying to any one.’

“That while said association formed under the said statute, and while operating and Conducting a charitable hospital and asylum to the extent of administering said trust, the building and grounds upon which it stands, while occupied for the objects and purposes specified, are exempt from taxation; that said association claims that all of its buildings and grounds and personal property are exempt from taxation, though the same is greatly in excess of that which is necessary for the administering of said trust, and said corporation has refused, and still refuses to pay the taxes levied upon its property by the assessor of the city of Battle Creek, covering the State, county, city and school taxes; that said corporation has ever since its organization exercised, and now exercises, certain franchises and privileges not conferred upon it by law and in violation of the act under which it is formed, and under its articles of association; that while claiming to maintain and operate a so-called charitable hospital said corporation has a thoroughly equipped sanitarium, ánd is patronized almost exclusively by patients abundantly able to pay for the care and treatment received; that said institution is not. conducted solely nor chiefly as a charitable institution, as is contemplated and required by the statute under which it is organized; that the charity claimed to be extended by such association, except in rare cases, is not to needy and worthy indigents, but consists in discounts and favors to those able to pay for the care and treatment received; that a majority of' the so-called charity patients are nonresidents of this State, in violation of the provisions of the statute under which said association is organized; that while said association claims to pay no dividends to its stockholders, yet as a matter of fact, it purchases its supplies largely from corporations and associations composed wholly or principally of the officers and managers of the association, and thereby such officers and managers derive and receive large befiefits and profits, contrary to the intent of the statute under which it is organized, and while said association claims to be undenominational and unsectarian, yet it makes discriminations in favor of certain patients by'reason of their affiliation with certain sects or religious organizations, and for otller improper and unlawful reasons ; that prices charged by said association to its patients are not uniform and just, as contemplated and required by law, the prices charged some of its patrons being unjustly exorbitant, while others, financially able to pay for care and treatment, are cared for and treated without charge, or at a discount; that said association is not properly and lawfully administering the trust under which it claims to be operating, and in fact it has incurred indebtedness to the extent of several hundred thousand dollars, which it has attempted to secure by a lien in the way of a mortgage upon its property.

“The information further sets forth the manner in which the property was acquired by the present association from a former corporation known as the Health Reform Institute, which institution was before the formation of the present association carrying on the same business and at the same place as the present association is carrying on, and was formed under a statute of the State, but not formed under the statute which exempted it from taxation ; and that when the present association was formed by certain persons pretending to denote the aggregate sum of $7,000 to certain trustees for the purpose of founding the present association, and the property which was turned over to it by the Health Reform Institution is greater than said $7,000 mentioned; that the Health Reform Institute being formed under another statute of the State made no claim that its property either real or persona] was exempt from taxation, although it extended just as much charity as is extended by the present association.

“ The information further states that while the present association, respondent, purports and claims to have been formed under the statutes of this State, for the purpose of establishing a charitable hospital, it was not, in fact, formed for any such purpose, but was formed, and since its formation has been carrying on its business for the purposes of profit, and not for the purposes of charity and benevolence; and that while purporting and assuming to be a charitable institution does so principally for the purpose of withdrawing or shielding its property from taxation, and for the purpose of accumulating a large amount of property to be held free from taxation; that its general manager is Dr. John H. Kellogg, and his assistant is William K. Kellogg, said’two persons having charge and control mainly of the management of the affairs and financial business of the institution; and that a great amount of the provisions and supplies of said respondent are caused by the said John H. and William K. Kellogg to be purchased of certain corporations and associations in which the said two named persons are. large stockholders, and the said corporations and associations are named in said petition; that said purchases of provisions and supplies from said corporations and associations are made by respondent at such high prices that a large amount of profits arise thereon to said corporations and associations from which said purchases are made, and these profits are divided among the stockholders of said corporations, a considerable amount of which is received by the said J ohn H. and William K. Kellogg as stockholders in said corporation, and other said profits are received by and divided up amongst other stockholders of said corporations and associations who are also interested in the management of respondent’s business, and in this way the business of said respondent is being operated for the profit and individual advantage of the men who control and manage it; that while said respondent purports to be acting as a charitable and benevolent institution, it is cohtinually advertising its business in this State and various other States of the Union, and in various foreign countries, and is by said advertisements attempting to induce, and are inducing large numbers of patrops to come to Battle Creek to be treated by said association for various diseases, and to become roomers and boarders for hire at the building, the legal title of which is in the name of said respondent, and many roomers and boarders are allowed to occupy said building who are not treated for any disease, and are not, in fact eithei indigent, sick or infirm persons, but are allowed to room and board at the building of the association the same as they would do at a public hotel or boarding place; that of the whole number of persons treated by said association for diseases, but a small proportion are treated as charity patients and without charge; a few are occasionally treated free; that of the whole number of persons treated by said association not to exceed 5 per cent, are patients to whom concessions are made in the way of reduced charges, and may be claimed as charity patients; a portion of this number receiving free treatment, a portion receiving treatment at less rate than other patients but are charged in many instances at a rate no less in amount than the actual cost of such treatment; and that of such so-called charity patients many of them come from other States of the Union, and other countries, and are attracted to said association by its advertisements, and such association is spending large sums of money in advertising its business for the purpose of obtaining patronage of persons outside of this State; and of the small percentage of persons to whom charity is extended, less than one-half of the whole number are residents of this State; that while other patients and patrons pay for their board and treatment, said association receives from them large sums of money, as a matter of fact said association is not carrying on its business solely and principally for charity, but in fact is carrying it on principally for the making of personal profits; that the respondent instead of carrying on the business of administering charities and benevolence is operating a general sanitarium for hire and profit; its principal business is the entertainment of patrons, that by its advertisements that are sent broadcast throughout this and foreign countries, it has induced people to come to its buildings for board and lodging; that respondent carries on a series of entertainments for its guests, and in fact its principal business is that of carrying on a general sanitarium or hotel and not a hospital; and that it has various agents engaged in soliciting patronage for it; that it has daily agents at the various railroad trains arriving at Battle Creek soliciting people to come to its institution; that it has in many cases charged very excessive rates, some of which rates are far beyond the customary rates for such accommodations, and out of which large profits are made, charges in some instances being as high as $75 per week, while in other instances much less than this is charged for the same accommodations, and which charges for services are much more than is needed for the successful maintenance of said respondent’s association as a charitable or benevolent institution; that much more money is received than is expended for the legitimate objects of the association; and amongst other business carried on the premises of said respondent is that of printing and, advertising, which brings in considerable profit, and is carried on by a separate association, known as the ‘Battle Creek Sanitarium Co., Limited,’ which last-named company uses and enjoys a considerable portion of the real and personal property of the respondent without the payment of any rent or compensation therefor; and by the use and advertisement of the name of said respondent, said Battle Creek Sanitarium Company, Limited, has been able to obtain large profits or emoluments, and to accumulate large and valuable properties, and to make its business very profitable; that the persons who control said respondent, and who are the same persons who are interested as members of the said Battle Creek Sanitarium Co., Limited, and are members of the other associations and concerns mentioned in said information (and who are receiving profit thereby) have caused to be purchased a large tract of land in the city of Battle Creek, the title of which they have caused to be taken in the name of the Michigan Sanitarium & Benevolent Association, respondent; that upon the lands they have caused to be erected a general sanitarium and hotel building 550 feet in length, 46 feet wide, 6 stories in height, and various additions thereto, a large part of the same having been fitted up in rooms for the purpose of taking patrons for rooming purposes, and for dining rooms attached, to use in boarding such patrons; said building having accommodations for about 600 guests, and said association having in the neighborhood of 5,000 patrons living in and being treated at said sanitarium and hotel per year; that out of the profits of said association about $600,000 has been expended by said respondent in erecting said buildings; that the persons before named have also bought a number of other parcels of land from said profits of its business, the majority of said parcels being improved with dwelling houses thereon, and after having been so¿ purchased, respondent has caused its patrons and boarders coming to its sanitarium to room therein; that while all of said property was formerly tax paying property, not only the land on which said large sanitarium building has been built, but also the dwelling house property purchased as before mentioned, it is now claimed by the respondent and the aforesaid persons who are managers and in control of said association, that all of the said real estate and buildings are now freed from the payment of all taxes and assessments for said State, county, school and city purposes, because of the fact that the title of said real estate now stands in the name of said respondent, and because respondent is formed under a charitable statute before mentioned and by reason of its being so formed, said respondent claims that all of its real estate, buildings and other property are not subject to taxation; and that the same are now exempt from taxation, and it refuses to pay taxes upon any of said property, and that the fair value of the property so claimed by respondent to be exempt from taxation is of the amount of about $1,000,000; that the ordinary amount of taxes which the said property would legally produce for said school, county, city and State purposes, if said property were assessed for taxes the same as other property of like character and situation in the city of Battle Créek, would be in the aggregate for said school, county and State purposes the sum of $10,000 or upwards per annum, a list of which real estate is attached to the information and maked ‘Exhibit A,’and found on pages 22 to 22 of record (this does not include the personal property of respondent); that out of said property and the business of said association the respondent receives a gross income in the neighborhood of $2,000,000, and that the net profit thereof amounts to substantially $100,000 per annum; that year by year said respondent and those managing its business has purchased different and distinct detached lands with the buildings thereon, taking title thereto in its corporate name, and its managers insist that all of its said property, including said detached parcels of land, are free from taxation because the title stands in its name, and refuses to pay taxes thereon.

“It is further alleged that it has not been heretofore the bona fide desire and intent of the persons maintaining the affairs and business of said respondent, either at the time of the formation of respondent association or since, to operate said association or its business, and use its property for the purpose of charity or benevolence, or for a charitable hospital; but that the true object of the formation of said association was for the purpose of accumulating a large amount of property, taking title thereto in the so-called charitable association, to make a large income or profit out of the same, and at the same time to avoid the payment of taxes which are ordinarily assessed against such class of property, and to escape taxation upon the property owned and used for profit and for purposes other than charitable; and that the whole of the funds subscribed and purported to be contributed for charitable purposes at the time of formation of respondent is claimed to have been only the sum of $7,000.

“It is further alleged that the actions and doings of the persons who are in the management and. control of said respondent association and who formed the same, are in fraud of the rights of the State and its people and of the municipalities of the State, which are interested in the taxes accruing from levies upon the property within said State and within said municipalities.

“It further alleges that John H. Kellogg, the manager of said respondent, is a physician and surgeon, and that all medical treatment and surgical operations are under his immediate supervision and control, he prescribing treatment both medical and surgical, and while in many instances said John H. Kellogg performs surgical operations and the charges for the same are paid to said association, yet in other instances said charges for treatment or surgical operations are received by said John H. Kellogg for his own benefit, and he retains the money paid for the same; that while said respondent association claims to have been incorporated under the aforesaid statute for the purpose of administering charities and benevolences, and that its purposes are undenominational and unsectarian, yet as a matter of fact, the business of said association is and has been carried on in the interest of the religious denomination commonly called the Seventh Day Adventists, and t h atnearly, if not entirely all, of the physicians, nurses and attendants employed by said association are members of the Seventh Day Adventists Church Society, and said last named society in fact controls to a considerable extent the respondent association; that the teaching of said church society is promulgated in said association, and said association is being carried forward in a great measure by said church society for the purpose of promulgating its belief; amongst other things, Saturday instead of Sunday being observed as the Sabbath Day; that the said respondent association is not now, and for a long time past has not been exercising acts under its franchise or articles of association; that for a long time it has been, and is, carrying on its business in direct conflict with the provisions and intent of the statutes under which it is formed; that it has substantially abandoned the work of extending charities and benevolences for the relief of the indigent, or other sick or infirm persons, and has used the funds which were purported to have been furnished for the establishment of a charitable asylum as contemplated by the statute of the State, for the purpose of gain and profit to the individuals who purported to act as its trustees and managers of said association ; that said association has formed a general sanitarium resort and hotel for the purpose of obtaining patrons and guests whom it charges excessive sums of money for care, board, treatment and entertainment, the profits of which are not for charitable but private purposes of profit; that respondent has established and is operating a boarding and rooming establishment; that under color of its incorporation under the aforesaid statute of the State of Michigan, respondent has not been carrying out or accomplishing the beneficent purpose contemplated by the law of the State, but in the business of making large investments in lands, buildings and other property for the purpose of obtaining profit out of the same, and at the same time withdrawing said properties from taxation and avoid the levying and collecting of taxes thereon; that its business has become that of profit-making to the persons who have formed it and who are carrying on its operations ; that the object of the statute is to relieve corporations from taxation where their principal business is to care for indigent persons, giving care and treatment where such persons reside in this State and voluntarily seek the benefits of a charitable hospital; that said association has by its various advertisements and solicitors, attracted and obtained from other States and countries indigent persons and others to come into this State to receive care and treatment and entertainment and board at its institution for the purpose of obtaining for the persons maintaining the association large profits in the ways hereinbefore stated and in other ways; that no one outside of thé managers of said institution is given any authority to invite or bring to said association for treatment or care, indigent, sick or infirm persons, and the managers of said respondent association do not generally offer to indigent persons any care or treatment; they do not extend any general invitation to the public to bring to such institution any worthy indigent persons for treatment, and the so-called charities extended by said respondent institution are almost, if not entirely, limited to the members of the Seventh Day Adventists Church; that a large majority of the persons to whom charities are extended are amply able to pay for their care, board, room and treatment; that the business of said respondent association is being carried forward for the benefit of other associations in which its members are interested, and for the benefit of the church society of which its managers are members, and in which they are interested financially and otherwise; that the purposes for which said association purports to have been formed are not being carried on by said association, and have failed in execution; that said association is not principally engaged in charitable work, but mainly in other work; and that the manner in which the managers of said respondent have carried forward its business are in fraud of the people of the State of Michigan and the municipalities of the city of Battle Creek and the State; that said association has forfeited all rights to which it might have been entitled as a charitable corporation, and all rights to further act in a corporate capacity, and its property instead of being exempt from taxation is now, and for years past has been liable to taxation, and said property should now pay its proportion of the taxes of the city, State, county and school, in which said property is located.”"

The important objections of the appellant to the action of the court below are:

“Equity alone has jurisdiction and authority to deal with the propositions submitted by the acts set up in the amended information. As these propositions relate in no way to the life and being of the corporation, but have respect only to the administration of the trust by the trustees, and when properly invoked, courts of equity have inherently the power to compel the trust to be properly and rightfully administered by the trustees. * * *

“Under the statute laws and judicial polity of this State, courts are without power or authority to administer charitable uses of an indefinite nature either as to objects or beneficiaries such as we have in the case of the sanitarium association, hence the donation in that ease would have failed as a trust for charitable uses but for the act under which the sanitarium is incorporated, the courts being without jurisdiction in this State to uphold or enforce such an indefinite charitable trust as was created by the donors in the instrument of gift. * * *

“ The donation upon which the incorporation of the sanitarium association is founded is a gift to charitable uses of a purely public character. The legislature in its capacity as the representative of the sovereign power of the State, by statute authorized its administration by a quasi-public instrumentality, and the courts have power and authority only to see that the trust thus created and the mode and manner of its administration is faithfully and properly exercised by those appointed to do the work.

“ The incorporation of the sanitarium association constitutes a contract between the State and the donors, reserving the right in the legislature alone to provide, if it should deem more expedient for the public interests, some other and different agency for administering the charitable use, for while it may be the method* of administering the charity can not become a vested right in the association, the property donated and all property afterwards acquired is vested in the State through the agency of the sanitarium association, as a perpetual charitable use over which the courts have no control except to require the trustees to faithfully discharge their duties under the trust created by authority of the legislature.”

Has equity alone jurisdiction to deal with the case stated in the information ? It goes without saying that the demurrer admits the truth of the averments that are well pleaded. The statute provides in this State when the remedy by quo warranto may be invoked. The provisions are contained in section 9950, 3 Comp. Laws, and succeeding sections. It will not be necessary to quote them here as a reference to them is so easily made, and will show what they are. A reading of the averments of the information brings the case within the provisions of the statute authorizing the filing of an information in the nature of quo warranto.

But it is said the writ ought not to be allowed because an ample and adequate remedy is found in equity by virtue of 3 Comp. Laws, § 9755 et seq. It is doubtless true that a remedy through the equity court may be available, but it does not follow that for that reason the remedy by quo warranto must fail. Both remedies are provided by the statute. In the case of Attorney General, ex rel. Wolverine Fish Co., v. A. Booth & Co., 143 Mich. 89, a like question was under consideration. Justice Hooker, speaking for the court, said:

“Is quo warranto a proper remedy? We have no doubt that a bill in equity would lie to restrain the unlawful acts of the corporation, done in furtherance of the purposes for which it is alleged to have been organized. See U. S. v. Joint Traffic Ass’n, 171 U. S. 567; Northern Securities Co. v. U. S., 193 U. S. 197. But proceedings in the nature of quo warranto are appropriaté to try the right of a domestic corporation to act as such, and there would seem to be. a close analogy between such a case and one where the proceeding is resorted to for the purpose of inquiry into the right of a foreign corporation to do business in another State than that of its organization, as it would be in the home State if the object was to inquire into a right to exercise franchises in excess of those granted. The following authorities indicate this, and some of them relate to questions arising under statutes similar to ours: People v. Improvement Co., 103 Ill. 491; People v. City of Peoria, 166 Ill. 517; State v. Electric Co., 28 Wash. 490; State v. Somerby, 42 Minn. 55; State v. Insurance Co., 39 Minn. 538; State v. Water Co., 107 Wis. 442; State v. American Book Co., 65 Kan. 847; State v. Insurance Co., 47 Ohio St. 167 (8 L. R. A. 129); State v. Insurance Co., 49 Ohio St. 441 (16 L. R. A. 611); State v. Railroad Co., 116 Wis. 152; People v. Refining Co., 121 N. Y. 585 (9 L. R. A. 33); People v. Milk Exchange, 145 N. Y. 267 (27 L. R. A. 437); State v. Distilling Co., 29 Neb. 700; People v. Trust Co., 130 Ill. 268 (8 L. R. A. 497); Distilling, etc., Co. v. People, 156 Ill. 448.”

The many authorities'cited by him are in point.

There would be great force in the contention that equity-alone has jurisdiction in this case if the only remedy which could be given in these proceedings is to take away respondent’s charter, and to deprive it of all capacity whatever to administer the trust reposed in it. For we do not decide that the case made by the information warrants that relief. Other relief may however be given in this quo warranto proceeding. The case made by the information shows that respondent is exercising a franchise or a privilege not conferred upon it by law. This it has no right to do and this it may be prevented from doing by a proper order made in this case without depriving it of authority to carry on its legitimate business. Section 9950, subd. 5, 3 Comp. Laws, authorizes the filing of “An information in the nature of a quo warranto * * * against any corporate body * * * whenever it shall exercise any franchise or privilege not conferred upon it by law.”

The. other question presented by counsel, that is, what would become of the property in case of an adjudication of ouster, is fraught with great difficulty. It is insisted the donation would be lost to the people who áre to be benefited thereby. If the proceeding was in equity the case also would be attended with great difficulty. If the case stated in the information is true it would be necessary for the court in either method of procedure to take control of the property until such a decree should be made as should do justice.

It is said the case is practically decided by the opinion of this court in Michigan Sanitarium & Benevolent Ass’n v. City of Battle Creek, 138 Mich. 676, in favor of respondent. That opinion was based upon the case as then made which was a very different case from the one before us. The case stated in the information and admitted by the demurrer makes it necessary, if a defense is to be interposed at all, for the respondent to make answer. This it will be allowed to do within a reasonable time.

The order of the court below is affirmed, with costs.

Grant, C. J., and Hooker, Carpenter, and McAlvav, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    GRANT v. MASLEN.
    1. Indemnity — Paving Contractor — Unguarded Excavation-Liability of Indemnitor.
    In an action by a paving contractor against his subcontractor on his contract to indemnify plaintiff from damages arising from his negligence in failing to protect his excavations by proper barriers and lights, proof that defendant did not protect the work as agreed and that another was injured on that account, establishes defendant’s liability.

      2. Same — Judgment Against Indemnitee — Conolusiveness Against Indemnitor.
    While a judgment against an indemnitee is conclusive upon the indemnitor so far as concerns the facts of the rendition of the judgment, its amount, and the cause of action upon which it was rendered, it does not determine the question whether or not the indemnitor is in fact responsible over to the indemnitee, and the indemnitor may set up any defense which, from the nature of the action or the pleadings, he could not have set up in the former action had he been a party to it.
    3. Same — Damages—Judgment as Evidence.
    A judgment against the indemnitee is prima facie evidence of the amount of damages for which the indemnitor is liable, though he was not notified of the former suit.
    Error to Wayne; Brooke, J.
    Submitted October 9, 1907.
    (Docket No. 12.)
    Decided March 17, 1908.
    Assumpsit by John Grant, administrator of the estate of Archibald Grant, deceased, against Frank Maslen, executor of the last will and testament of Andrew Anderson, deceased, for money paid. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Fred A. Baker, for appellant.

      William C. Stuart (A. H. Wilkinson, of counsel), for appellee.
   McAlvay, J.

Archibald Grant, plaintiff’s decedent, in 1894= entered into a certain paving contract with the city of Detroit. This contract among other things required the contractor to protect excavations with proper barriers and colored lights to prevent accidents, and to indemnify the city from damages arising by reason of negligence in that regard. The excavating was done by Andrew Anderson, defendant’s decedent, as a subcontractor, at the price per cubic yard Grant was to receive under the contract. By reason of the negligence of this subcontractor in not putting up guards and colored lights, William Dooley, September 18, 1894, in the night-time, drove with a delivery wagon into the excavation and all of the bones of one of his ankles were fractured. He went about on crutches for three years and was permanently injured. In 1896 Dooley brought suit against the city of Detroit and Archibald Grant for damages for the injury he had sustained. The suit was discontinued as against Grant, and a judgment recovered against the city for $1,500 damages and costs amounting to $66.30. In 1898 the city brought an action against Grant to recover the amount it had paid in satisfaction of the Dooley judgment. The city obtained judgment for $1,995.72 damages and $43.30 costs. This judgment was affirmed by this court (City of Detroit v. Grant, 135 Mich. 626).

In 1895 Andrew Anderson brought suit against Archibald Grant for balance due him on his subcontract for excavation, over and above the sum of $1,200 which he had been paid, claiming $448.95 due and unpaid. Grant defended on the ground that it was Anderson’s duty to guard the excavation and prevent accidents, and because of his negligence resulting in the Dooley injury he had been compelled to deposit a certified check of $421.65 before the board of public works would accept the pavement. On the trial of this case in the Wayne circuit court, there being no disputed facts, the court directed a verdict for defendant. Grant. This judgment was also affirmed by this court (Anderson v. Grant, 114 Mich. 161).

In 1904 Archibald Grant paid the judgment against him in favor of the city of Detroit in full, amounting to $2,220.96, and brought this action against Andrew Anderson for the money so paid. The declaration contains a special count in assumpsit and a common count for money paid out and expended. Defendant pleaded the general issue and gave notice of set-off.

Upon the trial the files and records in the cases referred to were introduced in evidence by plaintiff. The contract for paving was also introduced, with proof as to the subletting of the excavation to Anderson. William Dooley, the plaintiff who recovered against the city for damages on account of injuries sustained by the negligence of Andersofl, was sworn as a witness for plaintiff and testified as to how, when, and where he was injured, and as to the nature and extent of his injuries. He was not cross-examined. The details of the connection of Anderson with the excavation and the amount he was paid, and also the recovery of a judgment by the city against Grant and its payment were proved by the records introduced and the testimony of Archibald Grant, Jr.

Defendant did not introduce any evidence. At the close of the case both parties requested a directed verdict, and by consent the jury were discharged with the agreement that the parties file briefs upon the legal questions raised by counsel, and the court could direct a verdict as if the jury were present. After considering these briefs the court directed a verdict for defendant of no cause of action, and filed a written opinion.

A reversal of the judgment entered in accordance With such direction is asked by plaintiff, for the following reasons:

1. That the court erred in directing a verdict for defendant.

2. That the court erred in refusing to direct a verdict in favor of plaintiff.

Both parties have died since this suit was commenced and the action has been revived by proper proceedings as to their respective representatives.

Plaintiff insists that the judgments in the Dooley case against the city and the city case against Grant are prima facie evidence of the damages suffered by Grant through the default of Anderson.

The learned trial judge said in his opinion:

“ It is not claimed by the plaintiff that Andrew Anderson ever was notified to defend either of said judgments, but it is urged that said judgments are prima facie evidence of the damages suffered by Grant through the default of Anderson, and the defendant in the case at bar offering no testimony upon the question that the court is thereupon warranted in directing a verdict for the amount claimed. I am unable to agree with the conclusion reached by counsel for the plaintiff. It is quite obvious to me that the damages which a jury might render in favor of Dooley as against the city might be and probably were measured by a different standard than they would have been had they been rendered in an action to which Anderson, a private individual, was a party, or at any rate defending his own interest. ”

In this court the defendant relies upon his claim that plaintiff has not made a case against him upon either the question of his liability or the amount of damages. As to liability, plaintiff has proved that defendant’s decedent in making the excavation as subcontractor did not protect the work by guards or lights, and Dooley was injured on that account. Dooley so testifies in this case. In the case of Anderson v. Grant, 114 Mich. 161, the only question was the liability of Anderson for negligence in leaving the excavation unguarded and unlighted. The court said:

“It appears that the plaintiff took the contract from the defendant at the same price at which the defendant had taken it from the city. The contract contained provisions in reference to the keeping up of lights in the night-time and also with reference to saving the city harmless from all damages by reason of any accident, etc.; and plaintiff was to do the work in accordance with that contract. But, whether the contract contained this provision or not, he was bound to guard the work he was in the performance of. He could not leave it in a dangerous condition to passers-by without becqming liable for the consequences.”

The judgment against Anderson was therefore affirmed. The measure of the liability of the city for the damages to Dooley was fixed in the case of Dooley v. City of Detroit, and the measure of liability on the part of the contractor Grant, plaintiff’s decedent, to the city was fixed in City of Detroit v. Grant, 135 Mich. 626.

We come to the consideration of the main proposition in the case, fairly stated as follows by appellee in his brief:

“ The question for discussion therefore is whether or not, under the circumstances of this particular case, the judgment in the former action was prima facie evidence of the amount of the damages.”

The contention of the appellee is that, under the authorities, the former judgments are not conclusive except when actual notice of the suit pending is had by the person who may be liable over, and that this rule should be applied with stringency in cases of damages for personal injuries. We think the weight of authority shows this contention to be correct, when it is sought to make such former judgment conclusive upon the person liable over whether that liability arises from express contract or operation of law.

The authorities also hold:

” While a judgment against the person to be indemnified will be conclusive on the person responsible to him, so far as concerns the facts of the rendition of the judgment, its amount, and the cause of action on which it was rendered, it will not determine the question whether or not the one person is in fact responsible over to the other.” 23 Cyc. p. 1271 et seq., and cases cited in notes.

And such person responsible over may set up any defense which, from the nature qf the action or the pleadings, he could not have set up in the former action, had he been a party to it. 23 Cyc., supra.

It appears that in the case of Anderson v. Grant, supra, plaintiff had notice of the Dooley claim for injuries in the excavation made by him which was filed against the city and pending before the council for allowance; whether he had actual notice of the suit brought later is not shown by the record. This is immaterial where the claim of conclusiveness as to the amount of the former judgment is not urged, and where, as in this case, the plaintiff who recovered in the former suit is produced as a witness, examined at length, and the opportunity for complete cross-examination is not taken advantage of by the person sought to be charged.

In Knickerbocker v. Wilcox, 83 Mich. 200, although not a case similar to the one at bar, yet the question of the conclusiveness of two judgments — one where no notice had been given and the other where the party had actual notice — was involved, this court said:

“As the case must go back for a new trial, I think it is proper to say that the Indiana judgments, while prima facie evidence of the amount which the defendant is liable to pay to indemnify the plaintiff, are not conclusive upon him. He had no notice of the pendency of the first suit, and the judgment in that suit was finally entered by consent. It is open to him to impeach the good faith of this transaction if he can do so.”

To the same effect are Bridgeport Fire & Marine Ins. Co. v. Wilson, 34 N. Y. 275; Lee v. Clark, 1 Hill (N. Y.), 56.

We see no sound reason for the distinction appellee claims should be made between cases where the value of chattels or other visible property is the basis for damages, and cases for damages for personal injuries. The authorities make no such distinction and the claim for it disappears when the same opportunity for cross-examination and establishing a substantive defense is present in both kinds of cases. The defendant sought to be held responsible over has his day in court and may make his defense if he has one.

. The judgments in the former cases were produced to show the adj udication, the amount, and the involuntary payment to the city by this plaintiff’s decedent. The defendant did not take advantage of his opportunity to defend against either judgment as to amount or in any other particular.

Both upon authority and reason the judgment should have been held prima facie evidence of the amount of damages for which the defendant was liable to the plaintiff. The court should have so held and instructed a verdict for plaintiff for the amount of the judgment the plaintiff had paid to the city which was the amount of the Dooley judgment, with interest and costs.

The judgment of the circuit court is reversed, and a new trial ordered.

Grant, O. J., and Blair, Montgomery, and Carpenter, JJ., concurred.


author: Moore, J.

text:
    ATTORNEY GENERAL, ex rel. CITY OF MONROE, v. TOLEDO & MONROE RAILWAY.

    Street Railroads — Franchises—Forfeiture—Grounds.
    The facts that a railroad company, organized under the general railroad act, operating under franchises granted by a city to street-railroad companies whose rights it has acquired, carries freight without authority, charges excessive fares, and obstructs the streets of the city, are not ground for the forfeiture of the franchises, but furnish occasion for the regulation of the business done by the corporation.
    Error to Wayne; Donovan, J.
    Submitted October 10, 1907.
    (Docket No. 31.)
    Decided March 17, 1908.
    Quo warranto proceedings by John E. Bird, attorney general, on the relation of the city of Monroe, against the Toledo & Monroe Railway, the Monroe Traction Company, and the Detroit, Monroe & Toledo Short Line Railway for the forfeiture of certain franchises. There was judgment dismissing the petition, and petitioner brings error.
    Affirmed.

      John E. Bird, Attorney General, Willis Baldwin, and E. It. Gilday, for appellant.

      C. A. Golden {John C. Donnelly, of counsel), for appellees.

       Rehearing pending.

   Moore, J.

This is a quo warranto proceeding. Some information will be afforded in relation to the questions involved by a reference to the opinions in Ilgenfritz v. Railway, 136 Mich. 634, and City of Monroe v. Railway, 143 Mich. 315. By the writ of quo warranto the relator seeks 1o quash the charter of the Monroe Traction Company and to oust the other two defendants from taking, holding, or operating the street-railway franchise granted by the city of Monroe to the Monroe Traction Company. The claim of the relator is summarized in the brief of counsel. It is claimed defendants have violated State law and policy; we quote:

“1st. The Monroe Traction Co. perpetrated a fraud upon the State and the people by its fictitious incorporation.

‘ ‘ 2d. The Monroe Traction Co. has been and is guilty of nonuser.

“ These acts, being negative, cannot be reached by injunction.

“The general railroad companies have been guilty of the following violations of State law and policy:

“1st. They have taken, direct' to themselves, a street-railway franchise on Monroe and Anderson streets.

“2d. They have taken an assignment of a street-railway franchise on Elm street.

. “3d. They are operating a street-railway system through the streets of Monroe.

“4th. They claim the rights and exercise it, of doing a general freight business through the streets of Monroe in operating a street railway.

“ 5th. They are charging fares which are excessive under their incorporation and the State law.

“The first three of these violations cannot be reached by injunction; this court has already decided that. The last two violations might be reached either by information or by injunction, under the principles of the cases above cited.”

Before determining whether the above contention is well founded, it will be necessary to learn more of' the situation than is obtained by reading the opinions in the cases to which reference has heretofore been made.

In September, 1899, the city of Monroe granted to Clarence A. Black and his associates, who were to organize a corporation, a street-railway franchise with the right to—

“Construct, equip, own, maintain, and operate a street railway for the conveyance of persons, property, and merchandise (as far as this city has a legal right to grant said authority), with all the necessary and convenient tracks, sidetracks, switches, turntables, turnouts, and connections, and to erect and maintain all arms, poles, wires, and other equipment necessary to operate such railways during the period hereinafter provided, in, upon, and through the following streets in the city of Monroe.”

The grant specified among others along and through Monroe street, and across the bridge on the River Raisin to Anderson street and through Anderson street to the northerly city limits. Mr. Black and his associates immediately organized the Toledo & Monroe Railway under the general railway act and constructed and put the line in operation to Toledo. The power house was constructed at the intersection of Anderson and Elm avenue near the northerly end of the bridge. In 1900 a separate grant was made to Mr. Black and associates, to be organized into a corporation, with the right to construct a road on Elm avenue to its easterly terminus and then on private right of way to the Lake Shore to be connected with the road on Monroe and Anderson streets so that through cars could be operated to the Lake Shore. Mr. Black and his associates organized the Monroe Traction Company under the train railway act, for the purpose of constructing this Elm street route; the connection was made and through cars were put in operation, the Monroe Traction Company leasing its tracks to the Lake Shore to the Toledo & Monroe Railway. Subsequently the city of Monroe and the Toledo & Monroe Railway and the Monroe Traction Company got into a controversy as to the failure of the Toledo & Monroe Railway to build certain branch lines in the city of Monroe, and because thereof the city of Monroe attempted to and did formally pass an ordinance repealing the two ordinances above named. This controversy was settled, and as part of the settlement the common council of the city of Monroe, oh the 22d day of September, 1902, and after the roads had been constructed and in operation for nearly two years, re-enacted both ordinances and regranted directly to the Toledo & Monroe Railway Company the rights on Monroe street, and Anderson street and the bridge, and to the Monroe Traction Company the rights upon Elm avenue, without any change whatever in the rights, powers, privileges, and franchises that had been granted in the original ordinances as to their extent and character, and still required the connection to be continued between the two lines and the operation of through cars. For these regrants the city received as part consideration the sum of $5,000 in cash. The Detroit, Monroe & Toledo Short Line Railway Company afterwards acquired the rights of the other two defendants. The record discloses that the property owners whose land abuts upon the street have executed releases and have consented to the construction and operation of these lines on the streets of Monroe.

The general railway act, from which the Toledo & Monroe Railway Company and the Detroit, Monroe & Toledo Short Line Railway Company obtain their powers (2 Comp. Laws, § 6234, subd. 5), reads in part as follows:

"To construct its road upon or across, or its railroad tunnel under any stream of water, watercourse, private road, street, lane, alley, or highway, and across or under any plank road, railroad, or canal, which the route of its road or railroad tunnel shall lie along, or intersect; * * * and in case of the construction of such railway upon any public street, lane, alley, or highway, the same shall be on such terms and conditions as shall be agreed upon between the railroad company and the common council of any city, or the village board of any village, or the commissioners of highway of any township in which the samé may be; but such railway shall not be constructed upon any public street, lane, alley, highway, or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway, or private way, and opposite where such railroad is to be constructed either by agreement between the railroad company and each owner or owners, or ascertain as herein prescribed for obtaining property or franchises for the purpose of its incorporation to be paid to the owner thereof, or deposited as hereinafter directed.”

Subdivision 7 has the following:

“ To take, transport, carry, and convey persons and property on their said road or through such tunnel by the force and power of steam, animals, or any mechanical power, or by any combination of them, and to receive tolls and compensation therefor.”

These provisions of the statute would seem to authorize a railway company organized under it to operate its road upon the streets of Monroe, if it obtains the consent of the common council and of the abutting property owners. The common council did consent, and adopted municipal ordinances containing in detail the conditions and terms upon which said road should be operated. It appears clear from the record that by the terms of the ordinance the parties have agreed that a local passenger business in the nature of a street-railway business may be done, and that the rate of fare shall be not to exceed five cents for a ride of any distance on the routes named within the city limits; that both parties to the agreements contained in the grants understood and expressly stated their understanding to be that the railways within the limits of the city of Monroe were to be an integral portion or part of the line of railway extending northerly to the city of Detroit; southerly to the city of Toledo, and by express agreement agreed to and fixed the rate of fare chargeable for passengers taking passage in the city of Monroe to both of the above points. The parties have acted upon these agreements. The city has received a large sum of money. The defendants have made large expenditures. The roads have been built substantially as provided for by the ordinances. They are in operation.

Defendants claim they are now observing all the terms of the ordinances; that any failure to do so at the beginning was only temporary and not the fault of defendants. The only possible ground for complaint is that freight is carried which is not authorized; that excessive fare is charged, and that the streets are obstructed. The defendant the Detroit, Monroe & Short Line Railway Company denies that this is so. Conceding that it may be true, we think it not a cause for the forfeiture of the franchises, but an occasion for the regulation of the business done by the corporation. People, ex rel. Maybury, v. Gas-Light Co., 38 Mich. 154; People, ex rel. Kunze, v. Railway Co., 92 Mich. 524 (16 L. R. A. 752); Attorney General v. Railway Co., 96 Mich. 65.

Judgment is affirmed.

Grant, O. J., and Montgomery, Carpenter, and McAlvay, JJ., concurred.


text:
    MUSSELMAN GROCER CO. v. KIDD, DATER & PRICE CO.
    1. Constitutional Law — Equal Protection of Law — Due Process of Law — Sales of Merchandise in Bulk.
    Act No. 223, Pub. Acts 1905, invalidating sales of stocks of goods in bulk, does not conflict with section 32, article 6, of the Constitution of this State, prohibiting the invasion of personal and property rights without due process of law, nor with the 14th Amendment of the Federal Constitution, guaranteeing the equal protection of the laws. Spurr v. Travis, 145 Mich. 721, followed.
    2. Fraudulent Conveyances — Sales in Bulk — Remedies—Garnishment — Propriety—Receivers.
    Where a debtor has sold his stock of goods without complying with the provisions of the “sales in bulk act” (Act No. 223, Pub. Acts 1905), his creditor is entitled to proceed against the purchaser by garnishment (sections 10601,10632, 3 Comp. Laws), and resort to equity and the appointment of a receiver are not necessary.
    Error to Berrien; Coolidge, J.
    Submitted October 14, 1907.
    (Docket No. 44.)
    Decided March 17, 1908.
    Garnishment proceedings by the Musselman Grocer Company against the Kidd, Dater & Price Company as garnishee of Frank B. Ford. ■ There was judgment for plaintiff, and the garnishee brings error.
    Affirmed.

      George M. Valentine and G. W. Bridgman, for appellant.

      Smedley & Corwin, for appellee.
   Moore, J.

This case calls for a construction of the so-called “sales in bulk act,” Act No. 223 of the Public Acts of 1905. The act is assailed for eight different reasons, but all of them revolve about the following propositions which we quote from the brief:

First. That if Act No. 223 of the Public Acts of 1905 of this State is valid that garnishment proceedings do not lie for its enforcement.

Second. That the said act violates section 32 of article 6 of the Constitution of this State, which provides that no person shall be deprived of life, liberty or property without due process of law.

‘ ‘ Third. That the act is in violation of section 1 of the 14th Amendment to the Federal Constitution, which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

As to the last two of these propositions, though argued at length by counsel, we think it unnecessary to discuss them further than to say we are quite content with what was said in Spurr v. Travis, 145 Mich. 721.

We then come to the question, Will garnishment proceedings lie for the enforcement of the law ? Counsel say the answer should be in the negative because of the provisions of section 3 which reads:

“Any purchaser, transferee or assignee, who shall not conform to the provisions of this act, shall, upon application of any of the creditors of the seller, transferor, or assignor, become a receiver and be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, transfer or assignment: Provided, however, That any purchaser, transferee or assignee, who shall conform to the provisions of this act shall not in any way be held accountable to any creditor of the seller, transferor or assignor, or to the seller, transferor, or assignor for any of the goods, wares, merchandise or fixtures that have come into the possession of said purchaser, transferee or assignee by virtue of such sale, transfer or assignment.”

It is urged that a receiver must be appointed who holds the property for the benefit of all the creditors. It is insisted that in Spurr v. Travis, supra, the court did not pass upon the question because counsel admitted that garnishment would lie if the act was constitutional.

Section 1 of the act provides: ‘ ‘ The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the seller, transferor or assignor, shall be void as against the creditors of the seller, transferor, or assignor,” unless the purchaser shall comply with the provisions of that act, contained in the latter part of the same section.

Section 10601, 3 Comp. Laws, provides as follows:

“ From the time of the service of such writ, the garnishee shall be liable to the'plaintiff to the amount of property, money, goods, chattels and effects under his control, belonging to the principal defendant, or of any debts due or to become due from such garnishee to the principal defendant, or of any judgment or decree in favor of the latter against the former, and for all property, personal and real, money, goods, evidences of debt, or effects of the principal defendant which such garnishee defendant holds, by conveyance, transfer or title that is void as to creditors of the principal defendant, and for the value of all property, personal and real, money, goods, chattels, evidences of debt or effects of the principal defendant, which such garnishee defendant received or held byaconT veyance, transfer, or title that was void as to creditors of the principal defendant; and such garnishee defendant shall also be liable on any contingent right or claim against him in favor of the principal defendant.”

Section 10632, 3 Comp. Laws, reads:

“ If any person garnisheed shall have in his possession any of the property aforesaid of the principal defendant, which he holds by a conveyance or title that is void as to creditors of the defendant, * * * he may be adjudged liable as garnishee on account of such property and for the value thereof, although the principal defendant could not have maintained an action therefor against him.”

It will be seen that each of the foregoing sections have reference to sales ór transfers of property that are void as to the creditors of the seller, or principal defendant; The legislature undoubtedly knew of the provisions of the garnishment law in regard to conveyances that are void as against creditors. We think it would destroy the intent of the legislature in passing the act to require the intervention of a court of equity. See Kohn v. Fishbach, 36 Wash. 69; Wilson v. Edwards, 32 Pa. Sup. Ct. 295; Spurr v. Travis, supra.

Judgment is affirmed.

Ostrander, Hooker, Carpenter, and McAlvay, JJ., concurred.


text:
    HUNKINS v. KENT.
    1. Trial — Argument of Counsel — Opening Case — Refreshing Recollection.
    On the trial of an action of assumpsit for work and labor, it is not error for plaintiff’s attorney, in opening the case to the jury, to refresh his recollection from an account book.
    3. Same — Offer of Inadmissible Evidence — Prejudice.
    A good-faith offer of memoranda in evidence, which is withdrawn on intimation by the court that it is not admissible as primary evidence, is not error where no prejudice results.
    3. Witnesses — Cross-Examination—Previous Trial — Impeachment.
    In an action for work and labor, a witness for defendant who testifies that plaintiff told him that he and defendant had settled, arid 'who on a previous trial testified that he saw plaintiff sign a receipt in full, may be cross-examined with respect to his previous testimony, with a view to impeachment. ■
    4. Appeal and Error — Pleadings as Evidence — Ruling—Prejudice.
    A ruling that defendant’s plea and notice of defense of payment in an action for work and labor is an admission that plaintiff had earned the amount claimed is of no consequence where defendant does not question the amount.
    Error to • Shiawassee; Miner, J.
    Submitted October 16, 1907.
    (Docket No. 80.)
    Decided March 17, 1908.
    Assumpsit by Walter H. Hunkins against Frank W. Kent for work and labor. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Bush & Bush, for appellant.

      E. 8. Atherton and E. D. Lewis, for appellee.
   McAlvay, J.

Plaintiff was a farm laborer for defendant and brought suit in justice’s court for a balance of $45 claimed due. To the declaration on the common counts in assumpsit defendant pleaded the general issue and gave notice of payment in full of the entire amount of wages earned, to wit, $107. From a judgment in favor of plaintiff for¡the amount claimed, defendant appealed to the circuit court for Shiawassee county where a trial before a jury terminated with a like result with interest added. Defendant has assigned 66 errors, most of which are discussed in his brief. We suggest that three or four would have covered the questions raised and saved the attorneys and the court much time and labor in making the necessary investigation of all the errors claimed.

The claim that the court was in error in allowing plaintiff’s attorney, in opening the case to the jury, to refresh his recollection from an account book which he held in his hand, is without merit and requires no discussion.

Several exceptions were taken to the examination of the plaintiff in an attempt to get a certain memorandum of payments made to him by defendant in evidence, and errors are assigned thereon. Under objection of defendant the offer was finally withdrawn. It was undoubtedly made in good faith, and if the intention had been to use it only to refresh the recollection of witness, as the court apparently thought at first, it could have been so used. The intimation of the court that as primary evidence it was not admissible caused its withdrawal. Nothing occurred during this examination relative to this memorandum prejudicial to defendant. Upon this trial plaintiff was the only witness sworn in his behalf. He was not cross-examined. On the part of defendant two brothers were sworn as witnesses, one 16 and the other 21 years old. They were examined in chief only concerning a conversation the younger had with plaintiff on Sunday, October 8 or 15, 1905, in the presence of the elder who later had worked for defendant. This conversation was given by the younger boy as follows:

“ I asked him if he had quit working for Mr. Kent. He said he had. I asked him if he had any trouble. He said he hadn’t. He said they were all right. I asked him if they were all settled up. He said they were. He said they were all right.”

This was the entire affirmative defense to plaintiff’s case.

Defendant who was present during this trial was not produced and sworn as a witness. The foregoing testimony has been given for the purpose of making clear what will be said relative to the cross-examination of this wituess, upon which numerous errors are assigned. It appears that this witness had testified in justice’s court in the case, and it was claimed that he there testified he was present and saw plaintiff sign the following receipt:

“Shaftsrurg, Mich., 6, 1906.

“ Received of F. W. Kent 86 dollars to balance account in full to date.

44 W. H. Hunkins, Shaftsburg, Mich., 5-8, 1906.

“ Filed May 14, 1906.

45 H. H. Hawley, Justice of the Peace.”

We do not find that the court was in error. Under the circumstances the court was warranted in allowing great latitude. It was claimed that the defense had shifted ground since the former trial, and was now attempting to prove a payment by an admission of plaintiff that they had settled, when formerly the defense proved by this witness was that he had seen plaintiff sign the above receipt. The questions were proper cross-examination and admissible as laying a foundation for impeaching the witness.

There was no error in allowing plaintiff to answer certain questions relative to the receipt in question and to any settlement had with defendant. The holding of the court that under the rule the pleading of defendant was an admission of the amount plaintiff had earned was of no consequence for defendant did not question the amount of plaintiff’s earnings.

The remaining errors all refer to arguments of counsel, a discussion of which at length would be of no benefit. We do not find that these exceptions were well taken. Those of any importance were taken care of by the court by reproving counsel, and explicitly charging the jury upon the matters complained of. Defendant presented no requests to charge and makes no complaint of the charge of the court as given. The court was very patient with all the parties concerned and the record shows his ruling during the trial not prejudicial to defendant. We find no reversible error in the case.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Carpenter, JJ., concurred.


author: Montgomery, J.

text:
    ROGERS v. FOWLER.
    1. Evidence — Opinion—Admission—Prejudice.
    Ei’ror in allowing a witness to state whether to his knowledge there was any way a fire could have caught except from a traction engine being propelled along the highway by defendants, and whether any other source of the origin of the fire was suggested at the time, is not prejudicial in the absence of testimony tending to show any other cause of the fire or that any other cause was suggested.
    3. Witnesses — Redirect Examination — Scope.
    Where a defendant, on redirect examination, was asked concerning a conversation with plaintiff’s attorney whether he did not want to settle the case, and he replied that he did, an objection that this was permitting an admission by one of the defendants to be used as evidence against his codefendants is untenable, where the apparent purpose of the inquiry was to repel the inference sought to be suggested by the cross-examination that some agreement had been entered into between plaintiff’s counsel and the witness to relieve him at the expense of his codefendants.

      .3. Negligence — Fire—Cause—Evidence—Question for Jury.
    In an action for injuries by fire claimed to have been caused by the negligent operation of a traction engine on the highway, testimony that certain precautions which witness deemed sufficient were taken is not conclusive, in view of testimony that •fire was emitted and that it could not have been emitted had the precautions been taken, especially where it is admitted that the use of the spark arrester was omitted, but the case is one for the jury.
    4. Master and Servant — Injury to Third Person — Existence of Relation — Evidence—Sufficiency.
    In an action for injuries by fire claimed to have been caused by the negligent operation of a traction engine along the highway, evidence examined, and field, that whether the driver of the engine was in the employ of the defendants or of the seller of the engine was a question for the jury.
    5. Trial — Verdict—Amount—Compromise—Prejudice.
    Defendant is not prejudiced by the action of the jury in returning a verdict for plaintiff awarding him a less amount as damages for the destruction of his property than the testimony of his witnesses shows him entitled to.
    Error to Eaton; Smith, J.
    Submitted October 21, 1907.
    (Docket No. 98.)
    Decided March 17, 1908.
    Case by Clark E. Rogers' against William Fowler, James Mott, and Frank Waterson for the negligent burning of plaintiff’s barn. There was judgment for plaintiff, and defendants Mott and Waterson bring error.
    Affirmed.

      Lyman H. McCall, for appellants.

      Huggett & McPeek, for appellee.
   Montgomery, J.

It is the claim of the plaintiff that on the 21st day of April, A. D. 1904, all of the defendants were jointly engaged in running a steam threshing engine along a highway in the township of Chester, Eaton county, Michigan, and past the premises of the plaintiff on section 17 of said township; that a barn was situate on the premises belonging to the plaintiff, and within 20 feet of the highway; that about five tons of hay were in the barn and a straw stack stood near the barn, all of which was consumed by fire alleged to have been set by said threshing engine while passing along the highway near the barn; that the engine was out of order and repair by reason of defects in the fire box and the want of spark arresters and by reason thereof the fire was started which consumed the barn, hay and straw stack; and that the defendants were jointly liable to the plaintiff for the value of the property so destroyed by fire alleged to have been set by the passing of the engine as aforesaid. The jury before whom the case was tried in the court below, on the trial of the case, awarded the plaintiff damages to the amount of $240.

It is the claim of the defendants Mott and Waterson that they were in no way responsible for any negligence in the case, in case there was negligence, for the reason that they were not in charge of the engine and had not accepted it until delivered to them by defendant Fowler after the fire, and that they had no control over it; that there was no negligence shown in the case on the part of any of the defendants, but on the other hand the utmost care was shown to have been employed by the defendants in moving or running the engine along the highway and past the barn in question.

Error is assigned upon a ruling permitting a witness to answer the question, “Was there any way to your knowledge the fire could have caught except from that engine ? ” It is claimed that the negative answer to this question could be nothing more than an expression of opinion, and that whatever inference was to have been drawn from the facts should have been drawn by the jury. Assuming this contention to be .well grounded, we cannot believe that any prejudice resulted to the defendants from this testimony. There was not offered in the case any evidence tending to show that there was any other cause for the origin of this fire. No other fire was shown to have been in the vicinity, and the evidence clearly showed that immediately after the engine passed the premises of the plaintiff, this fire was discovered, and that it was traced back to a point on the highway from which it had run to the plaintiff’s property. The same may be said as to the question propounded to one of the witnesses as to whether any other source of the origin of this fire was suggested at the time. So far as disclosed, there was no other suggested even on the trial, and the bare statement of the witness that there was on this occasion no other source suggested could not have damaged the defendants.

The plaintiff produced as a witness on the trial the defendant Fowler, and, after cross-examination by the defendants, asked of conversations with the plaintiff’s attorney. He was asked the question, “You wanted to settle it [referring to the case] did you not ? ” and he answered that he did. It is argued that this was permitting an admission by one of the defendants to be used as evidence against his codefendants. It is not apparent that this was the purpose of the inquiry.- It would seem that the purpose was to show what the nature of the conference between the plaintiff’s attorney and this witness was for the purpose of repelling the inference sought to be suggested by the cross-examination that some agreement had been entered into between plaintiff’s counsel and the witness to relieve the witness at the expense of his co-defendants.

Counsel say that the 6th assignment of error presents the most vital point in the case. The question raised under this assignment of error is whether the court should not have directed a verdict for the defendants for the reason that the plaintiff had failed to establish negligence on the part of the defendants that would render them liable. It is contended that the testimony established, if it established anything, that the defendants were entirely clear of negligence. As before stated, the allegations of negligence were that the engine was out of order or repair and that the spark arrester was not in use. The defendant Fowler, as a witness for plaintiff, testified as follows on recross-examination:

“ I considered it perfectly safe to run it down the road without a spark arrester, without drawing any load. There is another way of stopping sparks, by dropping the draft; we did that going up the hill and in going by this barn. Most generally when I go by a building with an engine I drop the draft.”

On redirect examination he testified:

“We always have a spark arrester; it is to stop sparks from flying.

Q. It is the modern way that is in general use at the present time to prevent the sparks from escaping ?

“A. Most generally, we are running with heavy loads in threshing or anything the sparks fly when the damper is up. I didn’t think the fire would run that day. I was running along; the flues were leaking badly. I was firing with green wood; I did not anticipate any fire at all.

“ Q. You knew an engine used where there was debris and the like of that about it that it would catch and run, it was dangerous to run without a spark arrester; you know, do you not, that all engines at the present time have been for many years made with spark arresters for the purpose of preventing fires from sparks catching ?

“A. Yes, sir.

Q. You knew that was one of the appliances at the present time — universal appliances for engines to have spark arresters ?

“A. I knew they most generally run and did run with the spark arrester. I knew they sometimes run without spark arresters.

Q. And every time they do the party who runs them takes the risk in his own hands ?

“A. I couldn t say; I never looked up the law.

“Q. You knew just as soon as that fire was there you got nervous — got almost sick from the fact you had .been running that engine without a spark arrester ?

“A. I don’t know as that was it; but the fire caught and I saw the fire, it made me nervous. I am naturally nervous, anyway.

“ Q. That is what alarmed you becáuse you knew the very moment that the fire was caught you had made a mistake, 'was it not ?

“A. I did not know that the engine had set the fire. I was nervous over it.”

And on recross-examination:

“Q. When the engine is running light or empty you can drop the dampers and prevent the sparks just as well as the spark arrester or better ?

“A. Yes, sir, I think you can, because you take it at night when you are drawing a load and you drop the damper you can hardly ever see sparks come from the engine. In passing this place we did drop the dampers.

“Q. You didn’t open it until after you passed ?

“A. I dropped the damper and also had my throttle shut, run very slow up the hill; I always take all precaution when I run by a building.

“Q. That is as effectual as a spark arrester ?

“A. Yes, sir.”

And on redirect examination :

Q. Where were you when you dropped the damper ?

“A. Right at the foot of the hill. In dropping the damper fire is hardly ever liable to escape running along.

Q. It is liable when you drop the dampers, the coals are liable to come out of there ?

“A. It closes the engine so that it throws the steam and the exhaust; put the sparks out; there is hardly no draft will take the sparks up through.

Q. Would you do that, — would you run that engine at all within 80 or 40 feet of the strawstack with the driving line so near and simply dropping the damper ?

“A. Yes, sir.

“ Q., Would you do that with a high wind?

(‘A. We have done it many a time, with a high wind blowing toward the stack.”

There was further testimony offered by plaintiff showing that there was a rise of ground where the barn was built, and that it was up hill going south and very sandy and a heavy, hard hill to go up, and was not graveled at that time.

We are not prepared to say that this testimony showed conclusively that the damper was closed before the sparks were emitted which caused the fire in question. The straw stack stood at the northeast corner of the barn and near the road, and the engine must have been run with open damper to a point not far from in front of this straw stack from which the fire was communicated to the barn. Furthermore, the evidence that the fire was emitted, and that it could not have been emitted except with the dampers open, was some evidence to show that this precaution was omitted. See Webster v. Symes, 109 Mich. 5.

It was undisputed that one of the safety appliances designed for the very purpose of preventing the emission of sparks was omitted, and that the defendants Mott and Waterson had the spark arrester with them in the buggy following the engine. Under these circumstances, we think it was for the jury to say whether there was negligence.

It is further claimed on the part of the defendants that the testimony shows that the two defendants Mott and Waterson were in no way responsible for the engine and its management at this time. They offered testimony tending to show that they bought the engine from parties in Lansing known as the “Reeves people; ” that the defendant Fowler and his partner McGormley had agreed with the Reeves people to deliver this engine at Lansing, and that when the defendants Mott and Waterson purchased the engine, it was agreed by the Reeves people that Fowler should deliver the engine at Charlotte; that when they went for the engine, Fowler said he could not deliver the engine at Charlotte on account of a bridge being out, and that an agreement was made between him and the defendants Mott and Waterson that he would deliver it as many miles south of his place as Charlotte was; and that while Fowler, still retaining possession of the engine, was engaged in taking it to the point agreed upon, the fire was occasioned by his use of it. It is contended that, under these circumstances, the defendants Mott and Waterson cannot be said to have been participants in the wrong.

This was the defendants’ theory, but the witness Fowler, and his testimony is supported by another witness to some extent, denies that he agreed with Mott and Water-son to deliver the engine at any other place than Charlotte, and alleges that, it being ascertained that the engine could not be taken to Charlotte, he was engaged by them to take the engine by another route and to another point, so that there was a fair question for the jury presented. This question was submitted to the jury with a charge sufficiently favorable to the defendants.

A motion for a new trial was made, based upon the claim that the jury had reached the result which they did by compromise. It is claimed that the plaintiff’s testimony all tended to show damages aggregating from $345 to $395, whereas a verdict was returned for $240. It is true that the witnesses who placed an estimate upon the value of the property destroyed fixed a value of $345 to $395. But on cross-examination their testimony showed that the barn in question was very old and in a state of dilapidation, and it is quite within the range of possibility that the jury, undertaking to exercise their own judgment as to values, accepted the description of the property and fixed their own estimate of value placed upon such description rather than to accept the figures given by witnesses. Whether this was or was not proper, we do not think the defendants are damaged by a verdict for a less sum than the evidence showed the plaintiff entitled to. See Benedict v. Provision Co., 115 Mich. 527.

The judgment will be affirmed.

Grant, C. J., and Blair, Ostrander, and Hooker, JJ., concurred.


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    ROSENTHAL v. ROSENTHAL.
    1. Venue — Joint Defendants — Propriety of Joinder — Burden of Proof.
    Where an action on the case is brought against joint defendants, some of whom are nonresidents of the county in which the suit is brought, and service is had upon the nonresidents under, the provisions of Act No. 225, Pub. Acts 1901, and a plea in abatement is filed denying that the party served in the county is jointly liable, the burden is upon plaintiff to show joint liability.
    2. Conspiracy — Evidence—Admissibility—Acts Prior to Settlement.
    In an action by a wife against her husband’s parents and another for conspiring together to prevent her husband from living with her until she would redeed to his parents property deeded to her in settlement of a previous suit for alienation of affections, evidence of the acts and relations of the defendants previous to the settlement is admissible, not for the purpose of enhancing the damages, but for the purpose of showing that the defendants were acting jointly in what was done subsequent to the settlement.
    3. Appearance — General Plea — Effect as Sustaining Jurisdiction.
    Á defendant by pleading the general issue submits himself to the jurisdiction of the court, and even though a plea in abatement is sustained as to the other defendants it will not affect the jurisdiction of the court as to him.
    Error to Wayne; Hosmer, J.
    Submitted November 12, 1907.
    (Docket No. 163.)
    Decided March 17, 1908.
    Case by Hattie Rosenthal against Gustave Rosenthal, Fannie Rosenthal, and Moses Jacobs for conspiracy to prevent plaintiff’s husband from living with her. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Sloman & Sloman {Alex. J. Groesbeck, of counsel), for appellant. ■

      H. H. Hatch and Graves, Hatch & Wasey, for appellees Rosenthal.
   Moore, J.

Plaintiff, the daughter-in-law of Gustave and Fannie Rosenthal, sued them and Moses Jacobs jointly in an action of trespass on the case. The suit was commenced by summons in the circuit court for the county of "Wayne, to recover damages for conspiring together to prevent the plaintiff’s husband from living with her, until she would redeed to Gustave and Fannie Rosenthal certain real estate they had formerly deeded to her in the settlement of a suit she had brought against them for the alienation of the affections of her husband.

The summons was first served on Moses Jacobs, and proof of service filed by the sheriff of Wayne county who returned that he could not find Gustave Rosenthal and Fannie Rosenthal within his bailiwick, that they resided at Newberry, Michigan.' A summons was then sent to the sheriff of Luce county, who personally served the two Rosenthals in July, 1906, at Newberry. The defendant Jacobs pleaded the general issue. The defendants Gustave and Fannie Rosenthal filed a plea in abatement, the substance of which is as follows:

“And the said Gustave Rosenthal and Fannie Rosenthal * * * come and defend the wrong and injury when, etc., and say that the said plaintiff ought not to have or maintain her ‘aforesaid action against them for the following reasons. * * * Because they say that said suit is not upon an action of trespass on the case against these defendants and Moses Jacobs jointly, but the said Moses Jacobs was not guilty of the wrongs and injuries by reason of which the said suit was brought jointly with these defendants.

“That the defendant Moses Jacobs was not made a defendant jointly with the Rosenthals because he was jointly guilty of the wrongs charged against them, but for the sole purpose of enabling plaintiff to acquire jurisdiction of the Rosenthals in Wayne county under the provisions of Act No. 225 of the Public Acts of 1901, the defendant Jacobs residing and being served at Detroit and the defendants Rosenthal at Newberry, where' they resided.”

A replication was filed to this plea and an issue was framed and tried before the circuit judge and a jury. The circuit judge at the close of plaintiff’s case directed a verdict, not only in favor of defendants Rosenthal, but in favor of all the defendants, with costs to be taxed.

The case is brought here by writ of error. The record discloses that prior to October 11, 1904, Harry Rosenthal lived in Newberry, Michigan. His father and mother, Gustave and Fannie Rosenthal, two of the defendants in this cause, lived in Detroit. The plaintiff and Harry Rosenthal were married October 11, 1904, and went to Newberry to live. It appears from the opening statement of counsel that afterward the plaintiff came to Detroit; that while she was in Detroit Harry Rosenthal commenced a divorce suit against the plaintiff, and soon afterwards the plaintiff brought a suit in the circuit court for the county of Wayne against the defendants Gustave and Fannie Rosenthal to recover damages for the alienation of her husband’s affections. This divorce suit and the suit for alienation of affections were settled in December, 1905, and, pursuant to that settlement, Gustave and Fannie Rosenthal conveyed to the plaintiff real estate in Detroit of the value of $7,000. At the time of the settlement all the parties, the plaintiff, Harry, Gustave and Fannie Rosenthal were in Detroit. About a week after the settlement Harry returned to Newberry and about a week after Harry went, Gustave and Fannie also went there.

It is claimed by plaintiff that part of the terms of the settlement with her was that her husband was to go to Newberry and dispose of his interest in the business there, and ship the household goods which- belonged to him and the plaintiff to Detroit, and enter into business in the city of Detroit; that for the purpose of compelling plaintiff to reconvey the property made to her, the father and mother of her husband brought influence to bear upon. Harry Rosenthal to refuse to live with plaintiff until she should reconvey to Gustave and Fannie Rosenthal the property they had deeded to her, and they succeeded in so influencing her husband that he declined to live with her further unless she would reconvey her property, and that Moses Jacobs jointly acted with them in alienating her husband from her.

A great many assignments of error are argued by counsel. One of them which meets us at the outstart is that the court erred in holding that the burden was upon the plaintiff to show that defendants were acting jointly in order to give jurisdiction to the circuit court for the county of Wayne over Gustave and Fannie Rosenthal, who did not reside in Wayne county. This calls for a construction of Act No. 225, Pub. Acts 1901, the material parts of which read as follows:

“ When an action * * * of trespass on the case * * * shall be brought in any circuit court of this State against, two or more joint defendants, one or more of whom shall not reside or be found in the county where the suit shall be brought, and one or more of the defendants shall be served with process * * * in the county where suit is commenced, * * * the plaintiff in such action may sue out one or more writs of summons * * * directed, to the sheriff of the county where such defendants not so. served may be found * * * to be served on the defendants not elsewhere served in any other county in this State; and it shall be the duty of such sheriff to serve such process * * * and make return thereof to the county clerk of the county where the suit is commenced.’

The records disclose that Moses Jacobs, who was first-served with the summons, was a resident of Wayne county; that the other two defendants were not residents of Wayne county. The jurisdiction of the circuit court for the county of Wayne over the defendants who were not residents of the county depended upon whether or not they were joint defendants with the one who was a resident of Wayne county. This fact having been chailenged by the appropriate plea, it became incumbent upon plaintiff to show joint liability in order to give jurisdiction to the court over the nonresident defendants.

The next important assignment of error to be considered is, Did the court err in refusing to permit the plaintiff to give any testimony as to the relationship of the defendants to each other, or of their acts except as to what occurred subsequent to the settlement ? This settlement occurred in December, 1905. It is the claim of plaintiff that, instead of carrying out that settlement in good faith, the two Rosenthals, defendants, immediately commenced to influence their son against her, and that during the time of the settlement the other defendant, acting with them, attempted to influence the rabbi, who was instrumental in bringing the settlement about, to have him attempt to bring about a divorce between the plaintiff and her husband, and that they continued to act jointly. It is not claimed by the attorneys for plaintiff that they had any cause of action for what occurred prior to and including the settlement, but that it was proper to show what was said and done between the three defendants at that time, to show their relationship with each other, and that they were acting in concert in what followed the settlement. We think this testimony was proper, not for the purpose of adding to the damages which plaintiff would be entitled to recover, for that was not the question involved in this proceeding, but for the purpose of showing whether in fact the defendants were acting jointly in what was done subsequent to the settlement.

It is assigned as error that the court erred in directing a verdict for defendants the two Rosenthals. We think it not necessary to decide that question because, under the ruling which we have already made, the record will be different from the one now presented to us. For the reasons stated, the case should be reversed as to the defendants Rosenthal, and a new trial ordered.

The defendant Moses Jacobs was sued in the proper forum. The plaiptiff was a resident of Wayne county. Mr. Jacobs was a resident of Wayne county. He pleaded the general issue, thereby submitting himself to the jurisdiction of the court, and even though the plea in abatement should be sustained as to the defendants Rosenthal, it would not affect the jurisdiction of the court as to the defendant Jacobs.

The judgment is reversed as to him.

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


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    COMMISSIONER OF HIGHWAYS OF THE TOWNSHIP OF HOPE v. LUDWICK.
    Highways — -Establishment—Propriety—Navigable Waters.
    In the absence of express statutory authority, a highway not within the limits of an incorporated city or village cannot be laid out over or into navigable water for the purpose of making a public wharf or landing place for travelers going to and from the water.
    Error to Barry; Smith, J.
    Submitted November 13, 1907.
    (Docket No. 174.)
    Decided March 17, 1908.
    Proceedings by the commissioner of highways of the township of Hope against Alta L. Ludwick and others to establish a highway. There was judgment for plaintiff, and defendants bring error.
    Reversed,' and judgment entered for defendants.

      Colgrove & Potter, for appellants.

      Thomas & Pryor, for appellee.
   McAlvay, J.

This case involves the proceedings of the plaintiff highway commissioner in laying out a certain road across the premises of defendants. From his decision an appeal was taken by them to the township board, which affirmed the action of the commissioner and assessed defendant’s damages at $75. Under Act No. 195, Pub. Acts 1905, defendants appealed to the circuit court of Barry county, where the case was tried before the court without a jury, and upon the request of both parties findings of fact and law were made and filed by the court, affirming the action of the township board. Errors are assigned upon exceptions to two of the findings of fact and to all of the findings of law. It is unnecessary to print them at length.

The court among other things found as a matter of law that the highway was legally laid out, and affirmed the decision of the township board. Defendants have from the beginning contested the jurisdiction of the commissioner to lay out the proposed highway under the petition and notice, and also his jurisdiction under these proceedings or by authority of law to lay out a highway into the navigable water of this meandered lake 40 feet beyond low water mark.

This proceeding was upon petition praying that a highway be laid out in a part of the township not included within the corporate limits of any city or village. In the petition and the notice served on defendants, the highway to be laid out was described as:

“Commencing at the center of highway running westerly past what is known as Kingsbury’s old mill and the cement church on section 20 in said township: Said center being east of the C., K. & S. tracks and running northerly to a point 40 feet from low water mark in Long Lake.”

Long Lake is found by the court to be a meandered navigable body of water about two and one-half miles in length and with an average width óf 60 rods and upwards; that it is navigable for pleasure, fishing, and resort purposes by steamers of capacity to carry 100 passengers, by launches and row boats; that the highway as laid out extends into the navigable wáter of this lake 40 feet beyond low-water mark; that Long Lake is a public highway upon which people travel to the terminus of this highway in the lake, then along this highway to the village of Cloverdale, and that it is also convenient for school children and farmers to cross the lake and land at the terminus of this highway, and that it is a public necessity.

It is apparent from the record and the findings of the court that this highway is extended 40 feet from low-water mark into the navigable water of the lake for the purpose of making a wharf or landing for travelers going to and from this lake. By these findings the court holds in effect that in Michigan a highway not within an incorporated village or city may be laid out over or into navigable water.

In this State there is no express statutory authority for such action, and in its absence defendants contend it cannot be done. The weight of authority supports the claim of defendants. It is generally held that authority to lay out highways does not include a power to lay one out over navigable waters. 15 Am. & Eng. Enc. Law (2d Ed.), p. 357, citing State v. Anthoine, 40 Me. 435; Inhabitants of Cape Elizabeth v. Cumberland County Com'rs, 64 Me. 456; Inhabitants of Wells v. York County Com’rs, 79 Me. 522; Com. v. Coombs, 2 Mass. 489; Inhabitants of Charlestown v. Middlesex County Com’rs, 3 Metc. (Mass.) 202. See, also, 1 Farnham on Waters and Water Rights, p. 669.

The riparian owner has certain rights in and to the use of his frontage on navigable water for wharfage and other purposes which may not be taken from him except by due process of law. The statutory proceedings for laying out and establishing highways do not in terms or by inference contemplate the condemnation of rights and interests in and to navigable waters and compensation therefor. From the finding of the court “that the damage to the land of defendants is nominal ” it is clear that the court had no such compensation in mind in this case. It was treated from the beginning as the usual case of laying out a highway upon land.

The township authorities propose under cover of establishing a highway to build a public landing place or wharf upon the land of these defendants. Such proceeding is without authority of law. “A highway is not a wharf or landing place.” 1 Farnham on Waters and Water Rights, p. 668.

In two cases in this State where city charters have authorized the building and licensing of public wharves at the end of highways, this court has held that such wharves are not, a part of the public highways. See Horn v. People, 26 Mich. 221; Kemp v. Stradley, 134 Mich. 680.

The court was in error in holding that this highway was legally laid out, and in affirming the decision of the township authorities. The judgment of the circuit court is reversed and set aside, and all proceedings in laying out and establishing said highway are declared null and void. A judgment will be entered in favor of defendants, without costs.

Grant, O. J., and Blair, Moore, and Carpenter, JJ., concurred.