text:
    PEOPLE v. DAILY.
    1. Criminal Law — Statutes—Bribery.
    In a prosecution of the sales agent of a foreign corporation for bribing the warden of the State prison at Jackson to accept second-hand, used and worn machinery in the place of new machinery ordered for the twine and cordage plant, respondent should be sentenced under 3 Comp. Laws, § 11385 (5 How. Stat. [2d Ed.] § 14894), which is the later statute, and provides that any person interested directly or indirectly in a contract with a State or county institution who shall corruptly give, offer or promise to any officer of such institution any bribe, gratuity, etc., with intent to improperly influence his official action under such contract, shall be punished by a fine not exceeding $500. The prior statute, 3 Comp.” Laws, § 11311 (5 How. Stat. [2d Ed.] §14724), is broader in its scope, and offenses within the provisions of the subsequently enacted statute are governed by the later enactment.
    2. Same — Statutory Construction — Repeal.
    A statute covering the same ground as a former act supersedes it for all further cases without the necessity of repealing words, and, in so far as the provisions are inconsistent, repeals it.
    3. Same — Evidence—Bribery—Letters.
    Testimony that the warden received from the son of respondent a package which contained $1,500 and a note addressed to the warden, signed by respondent, saying, “The book I am sending- you is one of great value, keep it,” was admissible, together with the money, and with certain letters relating to the purchase of machinery and used to compare the writing with that of the note, which the prosecution alleged had been written by respondent.
    4. Same — Evidence—Hearsay—Witnesses.
    The rule that one who has been charged with a crime should produce evidence within his control, or his failure to do so may be considered against him by the jury, does not apply to a respondent who is privileged not to produce the proof: and if a statement is made by one whom he is not called upon to notice, his silence will not be taken as an admission, nor will it if he is restrained by fear or by doubt of his rights.
    5. Same — Rights of Accused.
    It was error to permit the introduction of stenographic minutes of the testimony of a witness taken at the hearing, in a foreign State, of extradition proceedings: the statements of such witness could not be treated as admissions of the accused.
    Exceptions before sentence from Jackson; Parkinson, J.
    Submitted June 13, 1913.
    (Docket No. 124.)
    Decided January 5, 1914.
    Milton Daily was convicted of bribery.
    Reversed.

      Thomas E. Barkworth, for the people.

      Allan H. Frazer and Benjamin Williams, for respondent.
   Moore, J.

The respondent was indicted by the grand jury, on the charge of having bribed the warden of the State prison. The respondent stood mute at the arraignment, and a plea of “not guilty” was entered by the court.* The jury returned a verdict of guilty. The case is here upon exceptions before sentence. •

There were several counts in the indictment. Upon the trial a discontinuance was entered as to all of them except the second and the fourth. The second count reads as follows:

“And the grand jurors aforesaid, upon their oath aforesaid, do further present that heretofore, to wit, on the 1st day of. June, 1907, and from thence hitherto, one Allen Ñ. Armstrong was an executive officer of the said State of Michigan, to wit, warden of the Michigan State prison at Jackson in said State, and was duly appointed, qualified, and acting as such warden, and was then and there, under the provisions of Act No. 211 of the Public Acts of the year 1907, authorized and empowered, in connection with the board of control of said State prison at Jackson, to purchase for said State of Michigan the necessary-machinery for the equipment of a twine and cordage plant in said prison, and was then and there by said act empowered and authorized to act, vote, and decide in his, the said Allen N. Armstrong’s, official capacity as warden of said State prison as aforesaid on the matter of such purchase, its kind and character, and the acceptance of bids for the furnishing and sale to the said State of Michigan of such machinery, and one Milton Daily, late of the city of Chicago, State of Illinois, then and there being interested as a bidder for the furnishing and sale of such equipment of said plant to said State of Michigan and the furnishing of machinery therefor, both in his, the said Milton Daily’s, individual capacity and as sales agent for the Hoover & Gamble Company, a corporation of the State of Ohio, located at Miamisburg, Ohio, said Milton Daily, being desirous of entering into a contract with said State of Michigan, acting through the said Allen N. Armstrong as warden and the board of control of the Michigan State prison, for the sale by said Hoover & Gamble Company and said Milton Daily to the said State of Michigan of certain machinery and equipment for the said twine and cordage plant, and then and there knowing that said board of control desired and intended to purchase new machinery for the equipment of said.twine and cordage plant, and that said board did not desire or intend to contract for or purchase used, worn, and secondhand machinery therefor, the said Milton Daily, well knowing the premises and that the action, vote, judgment, and decision of said Allen N. Armstrong, in his official capacity as warden of said prison as aforesaid, was, under authority of law, essential to the completion, of said purchase, and well knowing that said board of control did not desire or intend to purchase secondhand, used, and worn machinery, did on, to wit, the 22d day of July, 1907, by corrupt and fraudulent agreement with the said Allen N. Armstrong, submit to the said board of control and said Allen N. Armstrong, as warden, a certain-bid and offer in writing to sell to said State of Michigan certain machinery at a certain specified price therefor, to wit, $29,680.
“Said offer containing the provision that said machinery should be all new machinery, and having then and there, by corrupt agreement with said Allen N. Armstrong, induced the said Allen N. Armstrong to consent to substitute for certain of said new machines so agreed to be furnished certain other worn, used, and secondhand machinery of like description, to wit, one coarse breaker, one special breaker and spreader, one regular spreader, three drawing frames, coarse, medium, and fine, two finishing drawing frames, four two-spindle balling machines, one layer or tie cord machine, one tow picker, twenty-eight double flyer spinners, two geared spinners, and one tow card, which said secondhand, used, and worn machinery it was corruptly agreed should be furnished by said Milton Daily in place and stead of the new machinery so described above in said bid and offer, and having through such corrupt agreement with said Allen N. Armstrong secured the acceptance of said secondhand, used, and worn machinery by said Armstrong and said board of control, said board being in ignorance of such proposed substitution of said secondhand, used, and worn machinery for such new machinery, and said Milton Daily, acting through and in conjunction with said Hoover & Gamble Company, having thereafter furnished to the said State of Michigan and to said Allen N. Armstrong, as warden of said State prison, and installed in said twine and cordage plant, such secondhand^ worn, and used machinery, through and in conjunction with said Hoover & Gamble Company, and having received therefor full payment from said State of Michigan at the prices fixed in said contract for said machinery as new, said Milton Daily, well knowing the premises, did thereafter, to wit, on the 13th day of May, 1908, at the city of Jackson, in said county of Jackson, corruptly give to the said Allen N. Armstrong, then and there acting as such executive officer and warden, as aforesaid, a gift or gratuity, to wit, $1,500 of lawful money of the United States, with the intent then and there to influence said Allen N. Armstrong in his action in his official capacity as warden of said State prison as aforesaid to continue his consent to the furnishing and acceptance of said secondhand, used, and worn machinery so substituted as aforesaid as a compliance with, said contract, and to refrain and abstain from communicating to the proper officers of said State or to said board of control the fact of such substitution and to permit the retention by the said Hoover & Gamble Company and the said Milton Daily of the moneys so received by them and each of them from said State of Michigan as the purchase price of said machinery and equipment, so contracted to be furnished by the said Milton Daily and said Hoover & Gamble Company in accordance with the bid and offer and contract before set forth, contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the State of Michigan.”

The fourth count was a very long one, giving in detail the transaction which it is claimed constituted the offense of respondent. The count concluded as follows:

“He, the said Milton Daily, was endeavoring to fraudulently substitute for and in the place of an equal amount and kind of new machinery in the carrying out of the terms and conditions of said contract between the said State of Michigan and the said Hoover & Gamble Company, entered into a corrupt agreement with the said Allen N. Armstrong, as said warden of the Michigan State prison, to permit the said Milton Daily to fraudulently substitute for and in the place of an equal amount and kind of new machinery provided for in said contract between the said State of Michigan and the said Hoover & Gamble Company, said secondhand, used, and worn machinery for the manufacture of twine and cordage then and there owned by the said Milton Daily or then and there under the supervision and control of the said Milton Daily as aforesaid, and whereby he, the said Allen N. Armstrong, was to refrain and abstain from communicating to the proper officers of said State or to said board of control of the Michigan State prison at Jackson the fact of such substitution and to permit the retention by the said Hoover & Gamble Company and the said Milton Daily of all moneys received under or by reason of said contract between the said State of Michigan and said Hoover & Gamble Company as the purchase price of said machinery and equipment so fraudulently delivered or to be delivered under said contract to said State of Michigan.
“And the said Milton Daily and the said Hoover & Gamble Company, having thereafter furnished and delivered to the said State of Michigan, in accordance with the said corrupt agreement, so as aforesaid made between said Milton Daily and the said Allen N. Armstrong, such secondhand, used, and worn machinery above described 'in place and stead of like new machinery which said contract provided should be sold and delivered by said Hoover & Gamble Company to the said State of Michigan, and said Milton Daily and the said Hoover & Gamble Company having received therefor from said State of Michigan the following purchase price provided in said contract for said new machinery, to wit, the sum of $29,680, he, the said Milton Daily, for the purpose of completing, consummating, and carrying out his, the said Milton Daily’s, corrupt agreement with the said Allen N. Armstrong, did thereafter, on, to wit, the 13th day of May, 1908, corruptly give to the said Allen N. Armstrong at the city Of Jackson, in said county of Jackson, a gift or gratuity, to wit, the sum of $1,500 of the lawful money of the United States, with intent then and there to influence the act, vote, opinion, decision, and judgment of the said Allen N. Armstrong in the matter of the purchase of machinery for the manufacture of twine and cordage as aforesaid, the same being a matter required by law to come before said Allen N. Armstrong, as such warden in his official capacity, and to induce said Allen N. Armstrong, then and there acting in his official capacity as warden of said State prison, and in violation of his lawful duty as such warden, to continue his consent to the nonperformance of said contract, and the acceptance of said secondhand, used, and worn machinery, so substituted as aforesaid, as a sufficient compliance with said contract, and to refrain and abstain from communicating to the proper officers of said State or to the said board of control the fact of such substitution, and to permit the retention by said Hoover & Gamble Company and the said Milton Daily of the moneys so received by them and each of them from said State of Michigan as the purchase price of said machinery and equipment so contracted to be furnished by the said Milton Daily to the said Hoover & Gamble Company in accordance with the contract before set forth, contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the State of Michigan.”

A great many assignments of error are presented by the record. In our view of the case it will be unnecessary to consider all of them. A motion was made for a directed verdict and objection was made to the admission of testimony for the reasons: First, that the statute upon which the indictment in this case is brought, section 11311, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14724), is repealed by a later statute, section 11385, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14894); second, because both of said sections cover the offense with which respondent is charged, and as section 11385 fixes a smaller penalty, and is a later statute, it repeals the earlier one. The court was also requested to instruct the jury that if respondent was convicted at all it must be under the later statute. The record discloses that the trial judge was in grave doubt as to what he ought to do. He concluded to give the people the benefit of the doubt and overruled the motion and directed the jury that if the respondent was convicted it must be for an offense under section 11311, 3 Comp. Laws.

It now becomes important to refer to the statute. In 1846, the legislature passed the bribery act, so called (section 11311, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14724), which reads:

“Every person who shall corruptly give, offer or promise, to any executive, legislative or judicial officer, after his election or appointment, and either before or after he shall have been qualified, or shall have taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding which may be then pending, or may by law come or be brought before him in his official capacity, shall be punished by imprisonment in the State prison not more than five years, or by fine not exceeding three thousand dollars, and imprisonment in the county jail not more than one year.”

In 1873, by Act No. 107, the legislature passed an act with reference to the giving or receiving of bribes. It is section 11385, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14894), which reads:

“Any person interested directly or indirectly in a contract with a State or county institution who shall corruptly give, offer or promise to any officer of such institution any bribe, gift, or gratuity whatever, with intent to improperly influence his official action under such contract, shall be punished by a fine not exceeding five hundred dollars.”

It is clear that the former section is much wider in its scope than the later section. It is equally clear that the later section deals with any person who shall corruptly give, offer, or promise to any officer of a State or county institution, any bribe, gift, or gratuity with intent to improperly influence his official action in relation to any contract in which the person so corruptly giving, offering, or promising is directly or indirectly interested. A reference to the counts in the indictment which we have quoted shows that those counts come directly within the provisions of section 11385. There is no great difference of opinion as to the effect of the enactment of a later statute covering the same subject-matter as an earlier statute.

In Porter v. Edwards, 114 Mich. 640 (72 N. W. 614), Justice Long, speaking for the court, said:

“The rule is well settled that a new statute covering the same ground as the former act supersedes it for all further cases, without the necessity of repealing words. People v. Hobson, 48 Mich. 27 [11 N. W. 771]. A statute is repealed by a later one in so far as its provisions are inconsistent with it, or are covered by it. Attorney General v. Amos, 60 Mich. 372 [27 N. W. 571].”

See, also, Board of Supervisors v. Hubinger, 137 Mich. 72 (100 N. W. 261, 4 Am. & Eng. Ann. Cas. 792), and the many cases cited therein; Pierre Viaus Maple Co. v. Dairy and Food Commissioner, 154 Mich. 73 (117 N. W. 553); and the many other cases cited in the brief of counsel. Applying these principles of law to the instant case, we think it must be said that the case stated in the indictment comes within the later section of the statute, and that the jury should have been instructed that if respondent . was found guilty at all it should be under the later statute.

If there was no other error in the case, it is probable the respondent might be sentenced under the later statute, making a new trial unnecessary. See People v. Farrell, 146 Mich. 264 (109 N. W. 440).

In the course of the trial the warden testified in substance that the son of the respondent brought and delivered to him a package containing $1,500 and a note reading:

“Dear Armstrong: The book I am sending you by Frank is one of great value. Keep it. Yours, Daily.”

This note was offered in evidence. It was objected to for several reasons, one of which was that there was no proof that the signature was the respondent’s signature. For the purpose apparently of covering this objection, other letters were introduced in evidence which had been written by Mr. Daily to the warden, in due course of the business, and the jury were allowed to compare these signatures. This is assigned as error. There is no uniformity in the courts with reference to permitting handwriting to be introduced solely for the purpose of comparing handwriting. It is insisted on the part of the people that it was competent to show what was done to procure the contract which was in fact made, and to introduce in evidence the correspondence which occurred in relation to the transaction, and that when the correspondence was once in it was competent to permit the jury to compare the handwriting. Dietz v. Fourth Nat. Bank, 69 Mich. 287 (37 N. W. 220). An inspection of these letters shows they relate to what was done in procuring the contract and installing the plant, and we think it cannot be said it was error to admit them. The letter contained in the package was admissible in evidence just as the money contained therein was competent as being part of the transaction, and might have been received in evidence without any proof in relation to handwriting. When in evidence the jury were warranted in drawing therefrom such inferences as sensible men in the everyday transactions of life would be justified in drawing therefrom.

Another group of assignments of error require attention. We quote from the brief of counsel:

“That the court permitted the witness, Samuel B. Dennison, to read in evidence the stenographic notes of the testimony of one Leonard Busby, as well as of testimony of defendant, given in a habeas proceeding before Judge Landis in Chicago, 111. Dennison was sworn as a witness. His testimony shows that he was not an official court stenographer but under salary in the State’s attorney’s office; that he was working shorthand in the office; that they get all their notes there by talking machines; that he had left out parts of the testimony. Objections to this testimony were made, overruled, and exceptions taken. Later in the trial Mr. Dennison was recalled by the State, to again read his transcripts and notes of the testimony given on the Chicago proceedings by one Leonard Busby. No foundation for the testimony whatever was laid. It was not shown that Busby was absent from the State of Michigan, or why he was not produced in court. No testimony to this effect was produced. The objection made' to this testimony at the time by defendant’s counsel, is as follows:
“Mr. Frazer: I object, may it please your honor, to his reading the testimony of Mr. Busby at Chicago * * * on the grounds: First, that any statement made by Mr. Busby there, or any testimony that he gave there, is incompetent, irrelevant, and immaterial. Second, upon the ground that any statement or testimony given in the proceedings in Chicago are not binding upon Mr. Daily, nor such as he is called upon, or was called upon, to answer. Third, for the reason that the testimony now proposed as coming from Mr. Dennison, who was present and heard him make these statements — such testimony is not admissible here against Mr. Daily, for the reason it is hearsay. Fourth, that it is not. proper redirect examination. This witness was here and has been excused. * *
* Sixth, that the testimony given under the circumstances upon that hearing was not such as called for an answer from Milton Daily, nor could his silence be considered as assenting to the statements alleged to be made by the witness Busby upon such hearing. Seventh, for the reason that the witness Busby is not present, and we are debarred by this method, of the cross-examination of Mr. Busby in regard to his statements. Eighth, the testimony proposed, so far as the defendant Daily is concerned, is purely hearsay. I desire, your honor, to interpose another objection to the testimony of this witness, upon the ground that putting in Mr. Busby’s testimony through the witness Dennison, the stenographer, it deprives my client of his constitutional privilege of being confronted with the witness, and for the further reason deprives him of the right of cross-examination of this witness.”

We perhaps cannot state the position of the people as to the admissibility of this evidence better than to quote from the brief of the prosecutor:

“It was the contention of the prosecution at the trial, and it is here reaffirmed, that this testimony was proper as an admission of respondent, under the familiar rule that, where one is charged with a crime and remains silent under the imputation, it may be taken into consideration by the jury as bearing upon the question of his guilt.”

This contention does not impress us favorably. In Howell’s Fourth Edition of Tiffany’s Criminal Law, p. 561, it is said:

“There is no doubt that a jury may regard with suspicion a failure of a party to produce testimony which is in his power, and which would throw light upon matters left without other proper evidence. But this rule has never been applied to those cases where the law, on grounds of public policy, has established privileges against being compelled to produce it. Thus, it is well settled that, where a man avails himself of his privilege to decline answering questions, no unfavorable inference can be allowed to be drawn from his silence.”

At page 636 it is said:

“Confessions may also be inferred from the conduct of the defendant, and from his silent acquiescence in the statements of others respecting himself, and made in his presence. If a statement is made in the hearing of another in regard to facts affecting his rights, and he makes a reply, wholly or partially admitting the truth, then the declaration and reply, it is said, are both admissible; the reply, because it is the act of the party, who will not be presumed to admit anything affecting his own interest, unless it be true, and the declaration, because it may give meaning to the reply. In some cases where a similar declaration is made in one’s hearing, and he makes no reply, it may be a tacit admission of the facts. But this depends on whether he hears and understands the statement and comprehends its bearing, and whether the truth of the facts embraced in the statement are within his knowledge, and whether he is in such situation that he is at liberty to reply, and whether the statement is made under such circumstances and by such person as naturally calls for a reply, if he did not intend to admit it. But if the statement is made by one whom he is not called on to notice, or if he is restrained by fear, or by doubts of his rights, or by a belief that his security is best promoted by silence, then no inference can be drawn from that silence.”

For a discussion at length of the law applicable to admissions, see People v. Courtney, ante, 137 (144 N. W. 568).

A reference to the record shows that respondent was resisting extradition, one of his claims being that he was not guilty. We think the testimony was incompetent.

The last assignment of error requiring comment is to the effect that the people failed to make a case, and the court should have directed a verdict of not guilty. The record is a very voluminous one. The competent evidence contained therein is too long to be set out here. A reading of it, however, satisfies us that, if believed by the jury, the competent evidence offered on the part of the people and the inferences to be fairly drawn therefrom made a question of fact to be passed upon by the jury.

We do not deem it necessary to discuss the other assignments of error. For the reasons stated, the verdict of guilty is set aside, a new trial is ordered, and the case is remanded for further proceedings.

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


source: Caselaw Access Project

author: Brooke, J. Ostrander, J.

license: Public Domain

text:
    TOWNSHIP OF CUSTER v. DAWSON.
    1. Eminent Domain — Damages—Easements—Highways.
    The compensation to be awarded to the owner of real property taken for a public highway, is not the full value of the fee, since the title remains in the owner, but under the Constitution, art. 13, § 1, he is entitled to receive the value of the easement, or the full value of the interest taken.
    2. Same — Damages—Compensation—Benefits.
    In determining the damages to which such owner is entitled, the jury should consider the benefits which accrue to the property by reason of the improvement, as provided by Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2196).
    3. Same — Certiorari—Appeal and Error.
    It is only if no other remedy exists that courts review special proceedings by certiorari; and in eminent domain proceedings to lay out a highway, appealed to the circuit court, an aggrieved party may review the judgment by writ of error, since the legislature indicated a purpose by said act to permit appellate review in the Supreme Court.
    Brooke, J., dissenting.
    4. Same.
    Where the petitioners in eminent domain brought the proceedings into this court by writ of certiorari, and no rule had been made governing the practice in such cases, and no injury could result from such course, the writ of certiorari may be treated as a writ of error and the cause sent back for a new trial for errors committed by the circuit court. Brooke, J., dissenting.
    Certiorari to Sanilac; Beach, J.
    Submitted October 8, 1913.
    (Docket No. 10.)
    Decided January 5, 1914.
    Eminent domain proceedings by the township of Custer against William Dawson and others. A judgment in circuit court on appeal from the highway-commissioner and township board is reviewed by petitioner on writ of certiorari.
    Reversed, and new trial granted.

      C. F. Gates, for appellant.

      W. H. Burgess, for appellees.
   Brooke, J.

Plaintiff township is undertaking to condemn lands belonging to defendants for the purposes of a public highway under the provisions of Act No. 283, Public Acts of 1909 (2 How. Stat. [2d Ed.] §2173 et seq.). Defendants, being dissatisfied with the determination of the highway commissioner, appealed to the township board and thence to the circuit court for Sanilac county. Plaintiff township now seeks to review the determination there reached, upon certiorari.

The first question requiring consideration is the propriety of the remedy. We determined in the case of Hartz v. Wayne Circuit Judge, 164 Mich. 231 (129 N. W. 25), that certiorari was the proper remedy under the law as it stood when that decision was rendered. Act No. 195, Public Acts of 1905. It is the contention of defendants that since the enactment of the act of 1909, which in section 8 (2 How. Stat. [2d Ed.] § 2181) provides for an appeal to the Supreme Court, the remedy is changed so that a review may be had now by writ of error only. We cannot agree with this contention. The right to “appeal,” conferred or affirmed by the statute, means no more than that the party aggrieved may, by appropriate writ, review the proceedings in this court. The act of 1909 does not in any manner change the inherent character of the proceeding. It is still “purely statutory and not after the course of the common law.” The writ was providently issued. We will therefore proceed to a consideration of the questions raised.

The petition for the writ, which was adopted by the learned circuit judge as his return, recites that:

“Upon the trial of said issue the learned circuit judge refused to permit any testimony either as to the benefits that would accrue to the owners of the several parcels of land, or as to the actual damages that would be sustained by the several owners of the land along said route, or as to the value of the easement acquired by the public, or as to the damages that would be sustained by the property owners, or the difference in value between the easement that would be secured by the public and the title in fee simple to the entire strip of land four rods in width over which the easement would extend, but restricted the proofs offered therein by the township to the actual value in full of the entire fee simple of the lands.”

The court directed a verdict in favor of the defendants for the several sums, shown by the testimony admitted, to the entire value of the land taken, undiminished by any possible “benefit” to the owners thereof.

This ruling of the learned circuit judge, to which exception was properly taken by plaintiff in certiorari, raises two questions: First, as to the proper measure of damages; and, second, whether those damages may be diminished by possible benefits to the owners of the lands taken.

Touching the first question, the Constitution (article 13, § 1) provides:

“Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.”

What is “just compensation” within the meaning of the Constitution? Does it mean in the case here considered, as held by the court below, the full value of the fee? Counsel for defendants contends that the words mean “payment for private property taken for public use at its full value — full compensation (citing Spring Valley Waterworks v. City of San Francisco [C. C.], 124 Fed. 574). We quite agree with this contention. The compensation must be just — full value —for the property taken. What, then, is the property taken in the case at bar? Clearly it is not the fee. That remains in the owner. There are many incidents of such ownership. For instance, if the public discontinues use of the property taken as a highway, it at once reverts to the owner of the adjoining lands from which it was taken. If valuable minerals underlie the highway, they belong, not to the public, but to the owner of the adjoining lands. Should a steam railroad company desire to lay a track upon the highway, the adjacent owner would be entitled to compensation for the new servitude thereby imposed. Other and lesser incidents of such ownership may be found in the right of the owner to the timber growing upon the lands taken, the right to plant trees, etc. It may be said, indeed it is urged by defendants’ counsel, that the easement taken is perpetual in character and practically equivalent to the full value of the fee. It is in effect argued that the ownership of the fee, charged with the easement in perpetuity, carries with it nothing of real value. In many instances this may be true, but there are conceivable cases where the value of the fee retained would be many times greater than the value of the easement taken. But, whether the ownership of the fee carries with it rights of great or little value, those rights are substantive, and their value (if any) should be determined by the jury under proper instructions and deducted from the full value of the fee in order that the public may be compelled to pay no more than “just compensation” for the property taken.

Second. Section 23, chap. 7, of the act in question, provides:

“If any discontinued highway shall be upon lands through which a new highway shall be laid out, the same may be taken into consideration in estimating the damages sustained by the owner of such lands; and in like manner the benefits accruing to owners of lands by reason of laying out or altering any highway shall be taken into consideration.”

The court below held that, where the owner of the lands to be taken made no claim for damages to the land retained as distinguished from the value of the land taken, “the question of benefits does not arise and cannot arise.” And further:

“The court holds that the damages in this case are confined to the value of the land and any compensation for any inconvenience the landowner is put to in rearranging fences and possibly bridges.
“Mr. Gates (counsel for township) : And eliminates any advantages he can have by the laying out of the highway?
“The Court: Too remote. Too intangible to be a reduction of damages.”

We think the court was in error as to both propositions. What the statute, under the Constitution, aims to do is to give to the owner fair value for what is taken. In other words, to place him in such a position that the value of what he retains, plus the damages awarded, shall equal the value of his property before the highway was laid out.

If the new road adds nothing to the value of his lands by reason of the fact that he has other adequate approaches thereto or for any other reason, then he is not benefited and nothing should be deducted. But if, on the other hand, his remaining lands are increased in value by reason of the improvement, why should he not, in right and justice and within the statutory limitation, be charged with such increase? We can perceive no reason. The language of the statute is unequivocal and is founded on principles of sound public policy and equity. Similar provisions with reference to drains (section 4328 et seq., 2 Comp. Laws; 2 How. Stat. [2d Ed.] §3385), have long been a part of our law and have received constant and unquestioned application. The difficulty and lack of precision in ascertaining the value of such benefits affords no reason for refusing to permit the jury to consider them. Their ascertainment must rest more or less upon the opinions of witnesses, and in this respect the situation is one constantly confronting us in the assessment of damages.

The exact question here involved seems never to have been presented to this court. Many cases are cited by defendants’ counsel in which the question of the value of the lands to be taken is considered, but in none of them is the question of benefits involved. Other jurisdictions, however, have had occasion to review the question, and the following cases will be found to express conclusions in accord with this opinion: Young v. Harrison, 17 Ga. 30; Trinity College v. City of Hartford, 32 Conn. 452; Commissioners of Pottawatomie County v. O’Sullivan, 17 Kan. 58; Hire v. Kniseley, 130 Ind. 295 (29 N. E. 1132).

The record shows that defendants did not question the necessity for the improvement which it is conceded is more than one-half mile distant from any parallel highway.

The proceedings in the circuit court should be quashed.

Ostrander, J.

(concurring). If no other remedy is provided in special proceedings, the remedy to correct errors of law has been by certiorari. See the cases collected in the opinion in Hartz v. Wayne Circuit Judge, 164 Mich. 231 (129 N. W. 25). But the courts exercise caution in granting and are indisposed to grant the writ in cases where another remedy exists. Farrell v. Taylor, 12 Mich. 113; Tucker v. Drain Commissioner, 50 Mich. 5 (14 N. W. 676); Galloway v. Corbitt, 52 Mich. 460 (18 N. W. 218); Hartz v. Brown, 165 Mich. 660 (131 N. W. 75); Loomis v. Hartz, 165 Mich. 662 (131 N. W. 85).

The proceeding now in hand is a special proceeding. In 1909, by Act No. 283 (2 How. Stat. [2d Ed.] §2173), the legislature added to the statute governing such proceedings the words, “subject to the right of appeal to the Supreme Court according to law.” How ought this provision of the statute to be construed? Mr. Justice Brooke determines that it added nothing to the law; that it is declaratory merely of the right of a party to sue out a writ of certiorari. I do not agree with him, believing, as I do, that the statute provision should be given some effect. Reasons urged in some of the cases above cited why the remedy by certiorari is inadequate may have influenced, and undoubtedly did influence, the legislature to provide some other remedy. The law provides for an appeal from the determination of the township board to the circuit court in which—

“The same proceedings shall be had thereupon, as near as may be, and with a like effect as in cases of appeal from judgments rendered before justices of the peace. * * * And either party to said proceedings on said appeal shall be entitled to have the issue in such proceedings tried by a jury, as in ordinary suits in said court.”

There is no practice which permits the reversal of a judgment and a new trial in certiorari proceedings. And yet it is evident, in the matter at bar, that relief ought to go no further than to remedy the action of the circuit court which is found to be erroneous. Just such relief can be granted, and the proceedings anterior to the committing of error can' be saved, if the errors of the circuit court are reviewed in this court by writ of error.

In Re Mower’s Appeal, 48 Mich. 441, 447 (12 N. W. 646), which was an appeal from the allowance of an administrator’s account, it was urged that errors, if any, of the circuit court could not be reviewed and corrected in this court on writ of error. In overruling the contention, this court said:

“We also think this case is properly brought to this court by writ of error. The statute provides that:
“ ‘In all cases not otherwise provided for any person aggrieved by any order, sentence, decree, or denial of a judge of probate, may appeal therefrom to the circuit court.’
“The jurisdiction of the probate court is such that very different proceedings requiring wholly different treatment in the circuit court may be brought up by appeal, and they must be proceeded with in that court according to their nature and proper analogies. Where the proceeding in the probate court involves common-law questions and stands in the place of a suit at law, it naturally assumes the form of a common-law suit in the circuit court, and it is very proper and not unusual to provide for the making up of a common-law issue. The trial of such an issue will not be different from any common-law trial, and exceptions may be settled and writ of error had as in other cases. But appeals from interlocutory orders cannot take that form: Churchill v. Burt, 32 Mich. 490; nor proceedings for the removal of an administrator: Conrad v. Button, 28 Mich. 365; or for the appointment of a guardian: Cameron v. Bentley, 28 Mich. 520. But in several cases appeals from the final accounting of an administrator have been proceeded in as common-law cases without difficulty or confusion. Hall v. Grovier, 25 Mich. 428; Brown v. Forsche, 43 Mich. 492 [5 N. W. 1011].
“But it does not follow that the case is to be tried in the circuit court exactly as an ordinary suit at law would be, and all questions disposed of in the same way. So far as the case is peculiar, it must have peculiar treatment, afid if the questions are such as it is improper to submit to a jury, the right of trial by jury cannot be demanded in respect to them; and to that extent the ordinary course and practice of the court must be conformed to the case. Now in the case of administration accounts there are questions of this character, and the question which is most earnestly contested on this record is one of them. The statute provides for certain definite allowances to executors and administrators for their services as such; but it also provides that ‘in all cases such further allowances may be made as the judge of probate shall deem just and reasonable for any extraordinary services not required of an executor or administrator in the common course of his duty.’ Comp. L. § 4491. It is not contested that a settlement including such an allowance may be appealed to the circuit court; but it was never contemplated that when the case reached that court the judgment of a jury might be substituted for the discretion of the judge in respect to such allowances. The case of a guardian’s accounting is strictly analogous, and we have heretofore had occasion to explain that, when the case is brought into the circuit court, it is to be dealt with as an equitable proceeding rather than a legal. Gott v. Culp, 45 Mich. 265 [7 N. W. 767]. But as no provision is made for appealing as in chancery cases from the circuit to this court, the undoubted appellate authority of this court over these as well as all others, requires for its exercise the employment of the writ of error; and there is no difficulty in reaching by means of it all questions that are reviewable.”

In other words, the court, while refusing to exercise anything but judicial power, in such cases, fixed upon the writ most adaptable to such exercise of power in reviewing the action of the circuit court. In proceedings by railroad companies to condemn land, the statute gives a right of appeal to this court from orders confirming awards. In such cases this court has confined itself to the review of alleged errors of law. In other cases, where proceedings are had before boards or public officers, as in cases disposed of by the Michigan railroad commission, the right of review in this court is given in the statute, with more or less of attempt to state what this court may do in cases which are appealed. So, in the present case, while the legislature has not pointed out the method of review nor the order or ruling which this court may make, it has saved the right to a review. It is not contemplated that this court will exercise other than judicial powers. It is contemplated that it shall use such powers, and I construe the law as affording a review by the means most effective in discovering and correcting such errors as the circuit court, exercising the jurisdiction which it exercises, has committed. Clearly the effective method to be employed is the writ of error. A reversal of the conclusion reached in the circuit court, which under the statute can involve only the question' of the necessity for laying out the highway and the value of the property taken, for errors of law committed in that court, will affect the trial only and a new trial may then be had. The practice at the trial and thereafter may conform to the remedy to be sought. There will be no confusion and all rights will be duly protected.

No rule having been made governing the practice in such cases, and no injury resulting from such a course, we should treat the writ of certiorari in this case as if it were a writ of error and enter judgment accordingly. This decision should and will have all of the force and effect of a rule of court governing the practice in similar cases.

I agree with Mr. Justice Brooke with respect to other conclusions he reaches and am of opinion that the judgment of the court should be that the judgment of the circuit court be reversed, and a new trial granted.

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


author: Ostrander, J.

text:
    COURT OF HONOR v. HERING.
    1. Equity — Jurisdiction—Insurance—Fraud.
    In a suit brought to restrain any action at law upon an insurance policy which the insurer had never delivered, and which it charged in good faith was procured by fraudulent representations, also averring nondelivery, and it appeared from the testimony that the policy had never been delivered to the insured while he was in good health, as provided by the rules of the society, the court should have retained jurisdiction on the latter ground, although the alleged fraud was not sustained by the evidence.

    2. Same — Fraternal Beneficiary Associations — Delivery.
    Where it was provided by the rules of a mutual benefit assurance society that no policy should be in effect until it should be delivered to the applicant while in good health, and a similar clause was contained in his application, which also contained the statement that he had been acquainted with the rules, also where he became afHicted with paresis and was an inmate of an asylum before the policy was sent to the local officials of the association for delivery, and no undue delay or neglect on the part of complainant took place, the policy never went into effect, and although the applicant had been initiated into the society, being apparently in good health, a decree should have been entered for complainant association on its bill to enjoin an action on the certificate.
    Appeal from Wayne; Codd, J.
    Submitted October 16, 1913.
    (Docket No. 24.)
    Decided January 5, 1914.
    Bill by the Court of Honor against Minnie Hering for an injunction. From a decree for defendant, complainant appeals.
    Reversed.

      Beaumont, Smith & Harris, for complainant.

      McHugh, Gallagher, O’Neil & McGann, for defendant.

      Upon the effect of stipulation in application or policy of life insurance that it shall not become binding unless delivered to assured while in good health, see notes in 17 L. R. A. (N. S.) 1144 and 43 L. R. A. (N. S.) 725.

   Ostrander, J.

Complainant, a fraternal beneficiary society, organized under the laws of the State of Illinois, was applied to by Julius Hering for a benefit certificate, payable to defendant, Minnie Hering, his wife. The written application having been considered, and the said Julius Hering having been examined by the complainant’s physician, a certificate was prepared and was forwarded to an officer or to officers of complainant’s district court in Detroit. The application was dated March 26, 1910, and Hering was examined by the physician during the evening of that day. It was received at the office of the supreme court April 5, 1910; a certificate was issued that day, recorded April 6th. Hering paid the fee of the examining physician. He presented himself for initiation at the local court April 4, 1910, paid an assessment and certain dues, and was initiated. On or about April 11, 1910, the certificate was received at Detroit, but it was never delivered to Hering or to any person for him and was not demanded by him. On April 8, 1910, Hering broke down — collapsed— while at work, and on April 9th was taken to St. Joseph’s Retreat in Dearborn; his ailment being there diagnosed as general paresis. He remained at this hospital until May 7, 1910, when he was removed to Eloise, another sanitarium, where he died November 8, 1910. He was in both institutions treated as a patient suffering from general paresis.

The beneficiary in the certificate brought her suit at law to recover the indemnity therein provided for, whereupon the insurer filed its bill of complaint, charging that the attempt of the deceased to procure the certificate and the contract undertaking therein evidenced was fraudulent, that various untrue representations were made by Hering and were evidenced in' his application and various warranties made by him were breached, that the certificate was never delivered and could not have been delivered to him while in good health, that when the application was made'and accepted and the certificate was issued and forwarded he was ill with the disease from which he later died. The bill prays for an injunction restraining the prosecution of the suit at law and the prosecution of any other suits to recover upon said certificate, that the undelivered certificate be adjudged to be void and to have never been in force, and for general relief. An injunction was granted. Defendant, while concluding her answer with a demurrer clause, pleaded to the merits, there was a replication, a hearing at which testimony was taken in open court, and a decree dissolving the injunction and dismissing the bill. In a written opinion the trial court examined the charges of fraudulent misrepresentations and concluded that fraud had not been established. As to the matter of the nondelivery of the certificate, the opinion is:

“In regard to the other matter, as to the delivery of the policy, it is shown that the insured presented himself upon the 4th day of April for initiation. That at that time he was in good health and was accepted. That at the time in question he paid his initiation fee, or whatever charge was made, and was accepted by the company. That his certificate was made out, and through no fault of his it was not at the meeting that night to be delivered to him. That the other policy to his wife, and to others came the next week and they were received by the other members who were initiated under the same conditions, the evening that the deceased was initiated. The only reason he did not receive his was because of his absence. As stated before, I do not believe that this court would_ have jurisdiction to pass upon that matter. But, if the court of review determines that that is a matter which can be passed upon by this court, I believe it is my duty to incorporate my view upon that point here and now for the purposes of the record.”

The complainant has appealed, and in its brief presents the contentions:

“I. The fraudulent representations charged in the bill of complaint were established by the proof, and equity has therefore jurisdiction to cancel the certificate.
“II. Equity having taken jurisdiction will retain it to prevent a multiplicity of suits and to determine whether the proposed contract of membership was ever consummated; that is, whether the certificate, not having been delivered to Hering, became effective and created any contract rights.
“III. The certificate was not delivered to Hering while in good health, nor was it ever delivered to him. It was not signed by him nor accepted by him. The certificate, therefore, was never in force.”

There was testimony introduced which tended to prove fraudulent representations on the part of the applicant, and in the light of the undisputed oral testimony fraud was conclusively established if the application, signed by the deceased, is treated as his intelligent act. Testimony was introduced tending to prove that the various warranties contained in the written application were not intelligently made, or were not made at all, because the medical examiner did not propound to the applicant various of the questions but himself wrote answers to them and the deceased did not read, although he signed, the application. We are not disposed to- review the finding of the trial court upon this subject, being of opinion that the case should have been disposed of in favor of complainant upon the ground that no completed contract of indemnity is made out. We find the allegations of fraud were made in good faith, that the issue upon the question of the delivery of the certificate was tendered in the bill, that the court had jurisdiction of the parties and the subject-matter and should have retained jurisdiction to grant the relief prayed for upon the ground that the certificate was not delivered to the deceased while he was in good health.

In his application the deceased represented that he was in sound bodily and mental health and agreed for himself and heirs and beneficiaries to waive all claims to benefits until the benefit certificate “issued to me in pursuance of this application shall have been delivered to me while in sound health.” In his application he professed to be acquainted with the rules of the association and agreed to be bound by them. One of them reads as follows:

“Sec. 122. No certificate of benefit membership shall be in force until the applicant shall have been initiated or obligated at a meeting of the district court, or obligated under a dispensation granted by the supreme chancellor, under seal of the society, and until he shall have signed and accepted said certificate and made full payment of the assessment and dues as provided in the constitution. And before the recorder shall deliver a benefit certificate the initiate must, in person, while in good health, sign the certificate in his presence.”

Whether he did or did not in fact have knowledge of the foregoing rule or law of the association, it cannot be held that the risk was assumed until the law was complied with or compliance therewith was waived. There was no waiver. It does not appear that the certificate was unduly delayed in transmission to the local officers of complainant, or that in the regular course of business it could have been delivered to the deceased while in apparent good health or while he was apparently in as good health as when the medical examination was concluded and his application accepted. When the certificate was delivered to (received by) the local officer of complainant, the deceased was an inmate of the retreat.

We therefore hold that the decree of the circuit court should be reversed, and a decree entered making perpetual the injunction heretofore granted. There is no occasion to refer to a court of law the decision of a question which upon the record, upon undisputed testimony, is a question of law. Complainant will recover costs of both courts.

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


text:
    CURTIS v. GRAND TRUNK RAILWAY CO. OF CANADA.
    1. Negligence — Nuisance — Contributory Negligence — Infancy —Railroads.
    It was not error to submit to the jury the question of defendant’s negligence in an action for personal injuries resulting from burns sustained by a boy 13 years old, who fell in a pool of hot water discharged by defendant railway company into a portion of a public street, although the plaintiff fell into the pool when he was scuffling with another boy and attempting to take from him a suit of bathing trunks.
    2. Same — Highways and Streets — Waters—Drains.
    A duty not to cast hot water in a public street in such a quantity as to form a pool so hot as to injure a person who might fall into it, might be held by the jury to arise from the fact that a person might sustain injury in the lawful use of the street.
    3. Nuisance — Streets.
    The presence of a pool of hot water in a street, unguarded, would ordinarily be considered a public menace and nuisance.
    4. Negligence — Minors—Due Care.
    Plaintiff should be held to the exercise of the care which normal boys of his age usually exercise: he should apprehend consequences which his experience tells him are likely to result.
    5. Same — Proximate Cause.
    The existence of the pool of water was not a mere condition, nor the conduct of the boys the probable cause of the accident, as matter of law, so as to relieve the defendant of liability.
    Error to St. Clair; Law, J.
    Submitted October 14, 1913.
    (Docket No. 39.)
    Decided January 5, 1914.
    Case by Leo Curtis, by his next friend, against the Grand Trunk Railway Company of Canada for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      Clifford W. Crandall (Burt D. Cady, of counsel), for appellee.
   Ostrander, J.

In the city of Port Huron, River-view street runs east and west; its eastern terminus being St. Clair river. It is 4 rods wide, opened and used to the bank of the river; but there are no sidewalks and no business places or dwellings at its easterly end. Some gravel is drawn from the river. In the street on the north side, is a public drain, made of three lines of tile 24 inches in diameter, emptying on the surface of the road some 50 feet from the water line. The drain was constructed to carry the waters of a creek known as McNeil creek, and an engineer witness called it a covered drain. At a distance of some 300 feet from the easterly end of the drain the defendant for years had discharged into the southerly crock of the drain hot water from its shops. This water and other water emptying upon the street at the end of the drain formed a small pool, and, running from the pool in a small stream, was discharged into the river. We assume that this was not a public sewer; there being no testimony that anything but water was discharged from it, and it appearing that, when the temperature of the water permitted, boys sometimes sat in the pool which formed at the end of it. The flow of water in McNeil creek was not constant, and, accordingly, the temperature of the water in the little pool at the end of the drain was variable, being very hot when the flow from the creek was small. In the summer boys used to bathe in the river at or near the end of the street.

In the afternoon of August 25, 1909, some boys were in the street, including Leo Curtis, then 13 years old, and his brother Albert, then 8 years old, who were near the end of the drain disputing with each other the possession of some bathing trunks. Each endeavored to take the trunks from the other, and, Albert succeeding, one consequence was that Leo, who was near the pool, fell into it, and was burned in the hot water. By his next friend, he sued defendant, alleging in his declaration that it was the duty of defendant to refrain from putting anything into the street which would jeopardize the personal safety of persons lawfully using the street, and that, unmindful of duty, it discharged into the street large quantities of hot water at a point where it knew boys were in the habit of meeting and playing; that plaintiff,' making lawful and proper use of the street, and exercising due care and caution, fell into the said hot water, and was injured.

The court submitted to the jury as questions of fact (1) whether it was negligent or was reasonable and prudent conduct for defendant to use as it did the system of drainage, (2) whether plaintiff was negligent, and advised them that, if the proximate cause of the injury was the controversy and scuffle indulged in by plaintiff and his brother, plaintiff could not recover. Upon the subject of plaintiff’s negligence, the jury was advised that he was not to be- charged with negligence if—

“In all he did in this street, at the time in question, he was using the care and caution and conducting himself as boys of his intelligence and discretion usually and ordinarily do on like occasions, with the knowledge he conceded he had of the character of the water that usually ran out of the crock drainage pipe at the place where he received his injury.”

The jury returned a substantial verdict for plaintiff, upon which judgment was entered March 19, 1913. In this court, defendant contends that it was error to refuse a peremptory instruction to the jury in, its favor for the reason that upon the undisputed evidence the proximate cause of the injury was the scuffle, and the hot water was, at most, a condition, and the remote cause of the injury; that plaintiff was himself guilty of contributory negligence; that the discharge of the water into the drain was not an act of negligence. In this order, these contentions are discussed in the brief.

The facts are not much in dispute. Plaintiff had observed, during the month of August, that nothing but hot water was running in the drain — he used to put his hands in the water to see how hot it was. He was not playing in the pool when he was injured, nor making use of the street except to physically contest with his brother the possession of the bathing trunks. He testified: .

“Q. And you fell in there because you lost your balance when Sam pulled the trunks out of your hands ?
“A. Yes, sir.
“Q. And that is what caused you to be injured was the fact that Sam pulled the trunks out of your hands, and you lost your balance?
“A. Yes, sir.”
And, further:
“Albert (Sam) and I had been scuffling for about five or ten minutes. No blows had passed. We would sometimes have a little quarrel before this. We never before fought for five or ten minutes without one striking the other. We were not fighting on the day in question. I was angry at him for trying to keep the tights when I wanted them, and I was trying to take them from him. I was three or four inches the taller at that time. I had been attempting for five or ten minutes to take the tights from him; he had them, and I did not get hold of them in that five minutes. He had hold of them, and I had hold of him; but I could not get hold of the tights. I did finally get hold of them, and when I did so we pulled steady, and then he gave a jerk, and jerked them out of my hands. I was pulling towards the south; I was on a little lower ground that he was. I had that bank for a purchase, and I was leaning back and pulling. He gave a quick jerk and pulled the tights out of my hands. They were wet and kind of slippery. When he pulled them out of my hands, I lost my balance and fell backward into the water.”

From the shops of defendant the view of the street at the end of the drain was not interrupted, and it may be assumed that defendant was chargeable with knowledge that the street at or near the end of the drain was frequented by boys as herein described. It is assumed, too, upon this record, that the city had knowledge that defendant made such use of the sewer and street as it did make.

If defendant was not negligent, other questions need not be considered. It cannot be said, as matter of law, that it owed no duty to the public to refrain from casting the hot water upon the street, by means of the drain or otherwise, when the volume of the water discharged, the constancy of the flow, and that it formed a pool of hot water in the street, are considered. Such a duty might arise from the fact that it was reasonably to be apprehended that some one lawfully in the street would thereby be injured. Ordinarily the presence of a pool of hot water in a street, unguarded, would be considered a public menace and nuisance.

The serious question is whether the undisputed facts preclude plaintiff from insisting that his injury is in law the result of defendant’s want of care. If his own negligence contributed to the result, he, of course, cannot recover. Whether he was negligent is not to be determined by the result alone. It goes without saying that, if a boy leaning backward over or near the margin of a pool of water is unable to recover his equilibrium, he may fall in the water. Whether, in a given case, a boy should apprehend such a consequence — i. e., that he will not be able to recover balance before falling — may, and in this case must, depend upon a number of circumstances. He should exercise the care which normal boys of his age generally do exercise. He should apprehend consequences which his experience has told him are likely to result. We are impressed that whether plaintiff was himself free from negligence was a question of fact.

It is said that the pool of hot water in the street was a mere condition, not the cause, at least not the proximate cause, of the injury; that the proximate cause of the injury was the peculiar conduct of the lads. Plaintiff was not intentionally pushed into the water by his brother. What happened was not intended by either of them. Plaintiff was not trying to use that portion of the street in which the pool of water was; he did not walk into it, was not deceived about the temperature of the water, and, if he had deliberately gone into the water, could not have held defendant responsible for his injuries. But, if one uses a street in which there is a dangerous nuisance, with knowledge of the nuisance, and with reasonable regard and care for his own safety, notwithstanding the nuisance, it cannot be said that, if he nevertheless falls into it, and is injured, his conduct, and not the condition of the street, is the proximate cause of the injury. The controlling question is the one of plaintiffs care for his own safety in view of conditions known to him. That question, as we have said, was for the jury under proper instructions. Upon this subject, the instructions given are not criticised.

The judgment is affirmed.

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


author: Stone, J.

text:
    LOCKWOOD v. WYNKOOP.
    1. Corporations — Bills and Notes — Estoppel.
    A partnership engaged in banking, which discounted a note* held by defendants who were organized as a corporation,' but had not completed the preliminaries necessary to legal existence as a corporation, could not recover against the stockholders as partners, on the indorsement of the company. Having dealt with the defendants as a corporation, plaintiff was estopped to deny the existence and powers of the corporation.
    2. Same.
    And where the franchise fee was paid on the day the note was discounted, it will tie presumed that corporate organization was completed before plaintiff discounted the note; and the members of the corporation could not be charged as partners, individually.
    Error to Saginaw; Kendrick, J.
    Submitted November 5, 1913.
    (Docket No. 75.)
    Decided January 5, 1914.

      Assumpsit by George S. Lockwood and others, doing business as Lockwood & Barnard, against Fred Y. Wynkoop and others on a promissory note. Judgment for. plaintiffs. Defendants bring error.
    Reversed; new trial denied.

      Gallup, Rogner & Gallup, for appellants.

      Brooks & Cook, for appellees.
   Stone, J.

This was an action on a promissory note. The plaintiffs were copartners conducting a banking business at the city of Saginaw. In December, 1910, the defendants entered into an arrangement which resulted in the signing and acknowledgment of articles of association on the 10th day of December, 1910, forming the Valley Brokerage Company, the capital stock of which was $3,000, under the provisions of Act No. 232 of the Public Acts of 1903. The articles of association were first received at the office of the secretary of State on December 17, 1910, together with a remittance of $6.20, and were returned for correction on the same date. They were again received at said office on December 31, 1910, together with an additional remittance of $7.50. They were again returned to the company for further correction on December 31st, and were finally received at the office of the secretary January 3, 1911. After being recorded, they were returned to the company on January 5, 1911, together with the over-remittance of $7.10.

The defendants were first introduced to the plaintiffs some time after the 10th day of December, 1910, and before December 17, 1910, and an arrangement was entered into for conducting the banking business of the company with the plaintiffs, and as a part of such business the plaintiffs agreed to discount the promissory note in question, which note was then prepared by Mr. Lockwood, one of the plaintiffs, and was taken away by defendant Wynkoop to-be signed. The note was in the words and figures following:

“Saginaw, Dec. 14, 1910.
“Ninety days after date, we promise to pay to the order of the Valley Brokerage Co. $150.00 (one hundred and fifty and no hundredths dollars) value received, at Lockwood and Barnard Banking office, with interest at 7 per cent, per annum after maturity.
[Signed] “F. J. Martin.”

Indorsed on back:

“Mrs. Martha H. Martin. Valley Brokerage Co., by F. Y. WYNKOOP, Treasurer.”
This note was discounted by the plaintiffs for the Valley Brokerage Company on December 17, 1910, and had been received at the plaintiffs’ bank in a letter reading as follows:
“12/16/10.
“Lockwood & Barnard,
“Saginaw, M.
“Gentlemen:
“Inclosed please find note and check which kindly credit to our account.
Note, F. J. Martin............................. $150 00
Check ........................................ 38 31
Total .................................. $188 31
Less discount ................................ 2 25
Total .................................. $186 06
“Yours truly,
“Valley Brokerage Co.,
“F. Y. Wynkoop.”

The plaintiff Lockwood testified that at the time he took the note he considered and supposed that he was dealing with the corporation, and that the Valley Brokerage Company opened the account with the plaintiffs on December 13, 1910. The note not being paid at maturity, the defendants were sued as partners. Upon the trial in the circuit court, the evidence was conflicting whether or not the defendants, prior to the making of the articles of association, had been partners. The defendants gave evidence tending to show that they had not been partners, and the testimony on the part of plaintiffs tended to show that they had been partners, but did not claim to have had any prior dealings with them. The trial court did not leave that question to the jury, but directed a verdict for the plaintiffs for the amount of the note, and judgment followed. The defendants, have brought the case here for review, and by their assignments of error they claim that the trial court erred in not directing a verdict for the defendants, as requested, upon the ground that the corporation should have been sued; and in directing a verdict for the plaintiffs.

We think it clear from this record that the plaintiffs dealt with the corporation, and not with the defendants as individuals; that the account was with the corporation, and the note was sued upon and offered in evidence by the plaintiffs. We think that the case is controlled by the recent case of Newcomb-Endicott Co. v. Fee, 167 Mich. 574 (133 N. W. 540), and the authorities there cited.

The contract relations were entered into on December 17, 1910, the day the franchise fee was paid. It is a familiar doctrine that a person dealing with a corporation as such, is estopped from denying, its corporate existence, for the purpose of charging the incorporators as partners.

We are of the opinion that, under the evidence, it will be presumed that the franchise fee was paid on December 17th, before the note was discounted. The due organization of the corporation was perfected, and the plaintiffs continued to do business with it, for months afterwards. Both parties should be held to be estopped from making any claim of invalidity of contract because of the claim that the payment of the franchise fee was after the contract. Wright v. Sugar Co., 146 Mich. 555, 556 (109 N. W. 1062).

We are of opinion that the court erred in refusing to direct a verdict for the defendants, and in directing a verdict for the plaintiffs.

The judgment of the circuit court is reversed, and no new trial will be granted.

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


text:
    HAIGHT v. SMITH.
    1. Fraudulent Conveyances — Preferences — Insolvency — Corporations — Sale of Assets.
    Where an Insolvent corporation made a conveyance of its real estate and fixtures to a brother-in-law of the president and manager, and it received in cash the fair value of the property, using the proceeds to pay labor debts and other obligations of the corporation, and the transaction being authorized by the board of directors for the purpose of paying debts, the complainant, a purchaser of all the assets of the company through bankruptcy proceedings, was not entitled to vacate the conveyance as fraudulent.

    2. Corporations — Fraud—Debtor and Creditor.
    In Michigan it is not held that as soon as a corporation becomes Insolvent its directors become trustees for all its creditors; but until steps are taken to wind up its affairs, it may give preferences to any of its creditors, even though they may be stockholders or directors.

      Appeal from Muskegon; Sullivan, j.
    Submitted .November 4, 1913.
    (Docket No. 61.)
    Decided January 5, 1914.
    Bill by Louis P. Haight against Frank M. Smith, George R. Ross and Henry L. Palmer to set aside a deed. From a decree for defendants, complainant appeals.
    Modified and affirmed.

      William Carpenter, for complainant.

      Charles V. Hilding and Charles A. Watt, for defendants.

      The question of preferences among creditors given by insolvent corporations is considered in a note in 22 L. R. A. 802.

   Stone, J.

The bill of complaint in this case was filed to set aside a conveyance from the Ross Manufacturing Company, made on the 7th day. of January, 1911, to the defendant Frank M. Smith, of lot 2 of block 558 of the revised plat of the city of Muskegon. At the time the conveyance was made and delivered the complainant had a judgment against the company for damages and costs, amounting to upwards of $3,750, and other judgments had been entered against the company, and it was financially in an embarrassed condition. The defendant George R. Ross had been the principal stockholder of the company, and its president and business manager since its incorporation, in 1908. The complainant claims that the deed above mentioned was made at the instigation of defendant Ross to defendant Smith without any consideration, for the purpose of hindering, delaying, and defrauding the creditors of the said company, and is therefore null and void as to them. The answer denies all fraud, claims a fair consideration was paid for the deed, and that the consideration paid, which was $1,000, was used to pay the then existing debts of the corporation, and it denies that the conveyance was intended to defraud, hinder or delay creditors. The deed was made in pursuance of the following proceedings of the board of directors of the Ross Manufacturing Company, to wit:

“Minutes of a special meeting of the board of directors of the Ross Manufacturing Company, held at the office of said corporation on the seventh day of January, 1911, at 8:00 a. m.
“A majority of the directors of the corporation were present at said meeting and expressly waived notice of the time, place and object of the meeting.
“The question as to the expediency and advisability of selling the manufacturing establishment, buildings, stock, lumber, notes, accounts receivable, and such other property as the company may have that will enable them to pay their present indebtedness was discussed and fully considered. And on motion duly considered was unanimously carried, the following resolution was adopted:
“Resolved: That George R. Ross, president, and Alta V. Ross-Hoover, secretary, of the corporation, be and they are hereby authorized, empowered and directed to execute in the name of and for and in behalf of the corporation, a deed, bill of sale, and such other papers as shall be necessary to convey title of as much of their property as shall be necessary to meet the outstanding accounts and judgment against the corporation upon such terms and conditions as will be to the best advantage of said corporation. And provided that George R. Ross, Pres., and Alta V. Ross-Hoover, Secretary, be and they are hereby further authorized, empowered and directed, either jointly or severally, to execute in the name of and for and in behalf of the corporation any documents necessary, expedient, and proper to carry into effect the objects and purposes of the said sale.
“No further business being presented at said meeting, the same was duly adjourned.
“George R. Ross, President.
“Attest: .Alta V. Ross-Hoover, Secretary.”
“We, the undersigned, constituting the majority of the directors of the said Ross Manufacturing Company, do hereby certify that the foregoing minutes of a special meeting of the board of directors of said Ross Manufacturing Company, held at the time and place therein named are true and correct; and that we, and each of us, do hereby ratify and confirm the business transacted at said meeting.
“George R. Ross,
“Alta V. Ross-Hoover, “Henry L. Palmer,
“TV PPP'ItíT’C!
“[Seal of the Company.]”

Pursuant to that action the deed was made and delivered to the defendant Smith for the consideration of $1,000, paid by him in cash to the president of the company, the premises conveyed being subject to a certain valid mortgage for $2,000, theretofore given to one Mary Shaw Atwood. The deed was immediately placed on record. The evidence tends to show the embarrassed condition of the company as above stated.

The defendant Smith is a brother-in-law of defendant Ross. The testimony of defendant Smith tends to show that he was visited by defendant Ross, who informed him that the manufacturing company needed some help, and he wanted to raise some money to pay the debts of the company, and asked defendant Smith to help him. His testimony tended to show that the property was worth not to exceed $3,000, including the incumbrance. They also had, at the same time, a certain other deal with reference to the sale of the personal property of the company, the consideration for the latter sale being $1,000, which property was later sold back by the defendant Smith to defendant Ross, and the $1,000 returned to defendant Smith.

The evidence of defendant Ross tends to show that the company had been much annoyed by suits and garnishments, and, desiring to raise some money with which to settle the claims against the company, the negotiations were entered into with defendant Smith. There is no doubt that both defendants Smith and Ross at this time knew that the company was embarrassed in its finances, and that defendant Ross, acting for tie company, was endeavoring to raise some money to pay off its floating indebtedness, and eventually to adjust a settlement with all of its creditors.

An examination of the record satisfies us that $3,000 was a fair valuation for the real estate in question. In fact the trustee in bankruptcy, later appointed, testified that, including the boiler and engine, with the building, he did not consider the property worth to exceed $2,000 without the mortgage, and that, in his judgment, defendant Smith gave all that the property was worth, taken subject to the mortgage.

By reason of the garnishment by another creditor of some moneys due the company in the State of New York, the condition of the company was brought to a crisis, and on the 3d day of February, 1911, the company, on its own petition, was adjudged a bankrupt, and one Charles E. Moore was appointed its trustee in bankruptcy. On the 12th day of January, 1912, the trustee conveyed to the complainant all the assets then remaining of the Ross Manufacturing Company, for which the trustee was paid a very inconsiderable sum; and the claim is made here by the complainant that the trustee having, under the bankruptcy law, the right to institute proceedings to set aside the conveyance of the real estate made to defendant Smith, he, the complainant, by virtue of the assignment of the assets of the bankrupt company to him, had the same right, and the suit was brought for that purpose.

The trial court found in its opinion the following facts as to the value of the property, which appears in the record:

“It may be said that while the proof is not as clear and definite as it might be, it sufficiently appears that for the real estate Mr. Smith paid $1,000 in cash; that there was a $2,000 mortgage thereon that was assumed by him. The proof is quite clear that $3,000 was a fair market value for the land, and, equally so, that the greater part at least of this $1,000 cash was used in paying debts of the corporation.”

The testimony tends to show that the $1,000 received by defendant Ross from defendant Smith was used in paying the company’s pay roll for labor, for taxes, interest, lights, and for some lumber which was used by the company; and, in fact, it was all used in paying the debts of the company, expenses, taxes, and lights, including $50 which the company owed to Mr. Hoover, the son-in-law of defendant Ross. The circuit judge was of the opinion that the transaction of the sale and deed to defendant Smith was intended to hinder and delay creditors of the company, and that, though defendant Smith may have paid a fair price for the land, he, being cognizant of the embarrassed financial condition of the company, was equally guilty with defendant Ross in carrying out the design, and that the sale was void, as to creditors. After a careful reading and consideration of this record, we are unable to agree with the circuit judge that the transfer in question was made with the intention of defrauding, hindering, and delaying the creditors of the company, as that term is used in the law. It undoubtedly did result in hindering the complainant from the collection of his claim, but the corporation had as good a right as an individual has to prefer its creditors; and, if it saw fit, to pay its labor, and other claims that might have preference, under the law it might rightfully do so, and it cannot be said that the transfer was void and in fraud of creditors.

Complainant says that two questions are involved in the case:

“(1) Was the deed fraudulent as to creditors?
“ (2) If it was, is the complainant in this case entitled to have it set aside?”

The conduct of defendant Ross, as an officer of the company, was consistent with the utmost good faith, and was in pursuance of the action of the board of directors, in the effort to pay off the indebtedness of the company. The case requires, in our opinion, the application of the principles discussed and applied by this court in the cases of Bank of Montreal v. Lumber Co., 90 Mich. 345 (51 N. W. 512), and O. W. Shipman Co. v. Railway, 140 Mich. 589 (104 N. W. 24). In the first case cited, it was held that it is not in this State unlawful for a corporation, although insolvent, to give preference to its creditors; that it is not the law of this State that as soon as a corporation becomes insolvent its directors become trustees for all of its creditors alike, in such a sense as to prevent their giving valid security by way of preference even to a stockholder or a director, and that the rule has been established since the case of Town v. Bank of River Raisin, 2 Doug. (Mich.) 530, that a corporation may, in the absence of legislative restriction, deal with its property precisely as an individual may, and may prefer one creditor over another; and hence its assets do not become a trust fund for pro rata distribution among all of its creditors, until steps are taken under the statute to wind up the corporation.

It appearing to us that the sale involved was a fair one, made in good faith and for an adequate consideration, the object and purpose being to obtain funds with which to pay the debts of the concern, we think the complainant is in no position to complain because he has not been paid in preference to certain other creditors. O. W. Shipman Co. v. Railway, supra.

Having reached the conclusion, therefore, that the deed was not fraudulent as to creditors, the complainant is not entitled to any relief, and it becomes unnecessary for us to discuss the second question suggested by counsel. The court below dismissed the bill of complaint upon the ground that complainant had no standing in court under the second proposition. In dismissing the bill, however, it did so—

“Without prejudice to any action the said complainant or the trustee in bankruptcy of the Ross Manufacturing Company may take for the purpose of enforcing their rights in the premises heretofore mentioned.”

This clause should be stricken out of the decree below, and the bill should stand dismissed absolutely. With this modification, the decree below will be affirmed, with costs to the defendants.

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


text:
    JEWEL THEATER CO. v. STATE FIRE MARSHAL.
    1. Constitutional Law — Statutes — Objects—Title—Fire Marshal.
    Act No. 257, Pub. Acts 1913, is properly entitled as “an act to regulate the construction and operation of moving picture shows and theaters showing moving pictures, in which celluloid films are used, to provide for an inspection fee for operating the same, and to place supervision of such shows and theaters under the department of the State fire marshal.”

    2. Same — Police Power — Fires—Theaters and Shows.
    Its object is single and it effects a valid police regulation, saving and protecting human life and property by prescribing where and how moving picture shows shall be conducted. It Is prospective in operation and uniform in application.
    3. Same — Local Legislation.
    Provisions of the statute prohibiting theaters from exhibiting moving pictures on other than the first or main floor of any building, do not interfere with local legislative authority under the Constitution, and do not conflict with, but properly supplement, an ordinance of the city of Detroit providing that theaters containing a seating capacity of not more than 400 persons and occupied for moving picture shows, etc., not in actual operation at the time of passing the ordinance, shall not be located above the ground floor.
    4. Theaters and Shows — Demurrer—Police Power.
    On demurrer to the bill of complaint of a moving picture theater company which was .engaged in conducting moving picture exhibitions at the time Act No. 257, Pub. Acts 1913, was passed, attempting to enjoin the State fire marshal from enforcing the statute, on the ground that it is unconstitutional, defendants’ objection that the bill shows complainant to have been conducting a show in violation of law on the second floor of a building, is sustained and the bill dismissed; and the act is held to be a valid regulation of a business subject to the police power of the legislature.
    Appeal from Wayne; Murphy, J.
    Submitted November 10, 1913.
    (Docket No. 147.)
    Decided January 5, 1914.
    Bill by the Jewel Theater Company against John T. Winship, State fire marshal, and others, for an injunction. From an order overruling a demurrer to the bill of- complaint, defendants appeal.
    Reversed.

      Elton R. Nellis (Frank F. Bumps, of counsel), for complainant.

      Grant Fellows, Attorney General, and Samuel D. Pepper and Thomas A. Lawler, Assistant Attorneys General, for defendants.

      Act No. 257, passed at the 1913 session, and given immediate effect, is entitled—
    “An act to regulate the construction and operation of moving picture shows and theaters showing moving pictures, in which celluloid films are used, to provide for an inspection fee for operating the same, and to place supervision of such shows and theaters under the department of the State fire marshal.”
    Sections 1, 4, 14, and 20 of the act read, respectively, as follows:
    “Section 1. No moving picture machine using celluloid films shall hereafter be installed in any building to which the public is admitted except as hereinafter provided, and no audience room in which exhibitions of moving pictures are given shall hereafter be opened to the public except when in full compliance with the requirements of this act.”
    “Sec. 4. The floor of any audience room in which moving picture exhibitions are given shall be the first or main floor of the building in which said room is located. For the purposes of this act, the first or main floor of any building shall be held to be any floor approximately on the level with the street in front of the main entrance of such room.”
    “Sec. 14. Whenever the provisions of this law are not conformed to, or where defects of installation exist, the State fire marshal, assistant State fire marshal or any deputy fire marshal five days after a written notice is served on the proprietor is hereby empowered to cut off all electric current from said room or building and the supply; of electric current shall not be restored by any one until all the provisions of this law are complied with.”
    “Sec. 20. Provided, however, that in municipalities having ordinances providing for the regulation and installation and operations of -moving picture machines, nothing herein shall be construed to abrogate such local regulation, but the jurisdiction of the State fire marshal shall in such cases be concurrent with that of the municipal authorities.”
    In the city of Detroit, it is provided by an ordinance, adopted in 1911, defining the duties and powers of the department of buildings, and establishing a building code for the city, that:
    “Any building or such part of any building which shall contain a seating capacity of not more than 400 persons, and which shall be occupied by and used for penny exhibits, phonograph exhibits, nickelodeons, novelty theaters, exhibits of moving pictures and all shows, exhibits and amusements of like character, shall be a minor theater within the meaning of this ordinance.”
    “Minor theaters which are not in actual operation at the time of the adoption of this ordinance, shall not be located above the ground floor of any building within the city limits, nor shall any minor theater contain a balcony or gallery to be occupied by an audience.”
    Complainant operates a moving picture show on the second floor of a building at No. 30 Woodward avenue, and was there carrying on such business when the said ordinance was adopted, and when the statute was enacted. In July, 1913, it was notified by the State fire marshal to discontinue the use of motion pictures at its theater within five days, attention being especially directed to section 4 of the law. Complainant sought and obtained a temporary injunction against threatened action of the State fire marshal, and seeks to have the injunction made perpetual. To its bill, filed for this purpose, the State fire marshal, by the attorney general, demurred. The demurrer was overruled, with leave to answer the bill, and from the order so made the defendant has appealed. In this court, the ground of demurrer relied upon is that by the bill itself it appears that complainant is conducting a moving picture show on the second floor of a building, and it is therefore disobeying the law.
    The range of controversial discussion in the briefs is somewhat broad, complainant insisting, among other things, that the title of the act does not indicate a purpose to close existing theaters, and, if such a purpose is found in the act, it is invalid; that the statute powers of the State fire marshal and his threatened action invade the right of local self-government; that the duties and powers of the State fire marshal are defined in Act No. 79, Public Acts of 1911 (3 How. Stat. [2d Ed.] § 7883), and that the title of the act in question indicates no purpose to confer other and more extensive powers upon that official, although such powers are in terms conferred.
    The brief for appellant states the questions involved to be:
    “By the bill of complaint and the demurrer thereto the following propositions of law are necessarily raised:
    “(1) Is Act 257 of the Public Acts of 1913 wholly prospective in its operation — that is to say, is its operation confined only to such theaters as. are constructed and operated after the passage of the act —or, on the other hand, does it apply to all such theaters alike, whether constructed and in operation before or after the passage of the act?
    “(2) There being an ordinance in the city of Detroit relative to the so-called minor theaters, the same being a part of the general building code of the city of Detroit, which ordinance provides that ‘minor theaters which are not in actual operation at the time of the adoption of this ordinance, shall not be located above the ground floor of any building within the city limits, nor shall any minor theater contain a balcony or gallery to be occupied by an audience,’ and section 20 of Act 257 of 1913 containing the provision, ‘Provided, however, that in municipalities having ordinances providing for the regulation and installation and operation of moving picture machines, nothing herein shall be construed to abrogate such local regulation, but the jurisdiction of the State fire marshal shall in such cases be concurrent with that of the municipal authorities’ — in view of these two provisions, the one in the local ordinance, and the other in the State law, does the State law have any application to the subject-matter within the city of Detroit?”

      As to regulations affecting moving picture shows, see note in 40 L. R. A. (N. S.) 193.

   Ostrander, J.

(after stating the facts). The act in question embraces a single object, which is expressed in its title. ■ Its provisions do not conflict with the local regulation to which attention has been called, and the act is a valid exercise of the police power of the State. Its object is to save human lives and property by prescribing where and how moving picture shows shall be conducted. There is nothing in the act which is not calculated to accomplish its object, nothing which is not germane to the legislative purpose expressed and suggested in the title. It does not conflict with the local regulation, but goes further. It disturbs what the local regulation does not disturb, namely, moving picture shows conducted on floors of buildings above the first floor. The local regulation is not abrogated, but is supplemented. The local regulation conferred upon complainant no right to give such exhibitions on the second floor of a building. It did not disturb it there. The statute is prospective in its operation and uniform in its application. If the business of giving moving picture shows was innocuous in itself, and if the reasonableness of the particular regulation with which we are concerned was questioned, a different question might •be presented. The business is innocuous in so far as it is true that, if neither an explosion nor a fire attends it, it is not harmful to life, limb or property. But the general reasonableness of a regulation forbidding the giving of such shows on other than the first floors of buildings is not questioned. And we may take notice of the fact, which experience has demonstrated, that peculiar hazards attend the handling and exposing of the films in the giving of exhibitions; that the hazard to human life and limb is increased as the means of exit from the places of exhibition are limited. Kegulation, in such a case, extends as well to designating the place where a thing may be done as to prescribing the way in which it may be done. If the public safety or welfare demands that a particular business shall not be conducted in a particular place, the legislative power may be exercised to prevent it. Generally it is by experience only that the necessary regulations of business are indicated, and the legislative power is not limited because the thing which experience has demonstrated should not continue is continuing when the legislature speaks. In effect, but not in terms, the legislature has declared that moving picture exhibitions, unless given under the restrictions of the act, are nuisances, and it has provided that after notice to proprietors all electric current may be cut off from the rooms and buildings by the State officers designated in the act. We are of opinion that the bill of complaint establishes that complainant is conducting an exhibition in violation of law.

The order overruling the demurrer is reversed, an order will be entered in this court sustaining the demurrer, and the record will be remanded to the court below.

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