text:
    JANKOWSKI v. SKUPNY.
    1. Appeal and Error — Issues—Trial.
    Where* in an action for personal .injuries to plaintiff by a gunshot wound, the issue as to whether defendant did the shooting was decided by the jury in favor of defendant, the question of damages became unimportant.
    2. Same — Damages.
    Error of the court, if any, in instructing the jury on the question of damages, held, not prejudicial
    3. Sams — Trial.
    Affirmance of a judgment does not imply approval of all that was said to the jury.
    4. Same — Miscarriage of Justice.
    Where it does not affirmatively appear that the error complained of resulted in a miscarriage of justice, under 3 Comp. Laws 1915, § 13763, the case will not be reversed. j
    Error to Wayne; Mandell (Henry A.), J.
    Submitted January 14, 1920.
    (Docket No. 88.)
    Decided February 27, 1920.
    Case by John Jankowski against Thomas Skupny for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      John H. Dohrman and William K. Campbell, for appellant. ,

      Leonard L. Szymanslci, for appellee.
   Stone, J.

This is an action on the case to recover damages for a personal injury consisting of a gunshot wound of plaintiff claimed to have been inflicted by the defendant. About one o’clock Sunday morning, November 4, 1917, the plaintiff was accidentally shot in the right thigh while, with his wife, returning home from a call at a friend’s house, and while walking along on the sidewalk on Ferry avenue, near the corner of Elmwood avenue, in the city of Detroit.

Plaintiff upon the trial gave positive testimony that he saw the defendant, who was having an altercation with another person, fire the shot which struck him. He was corroborated by the testimony of other witnesses. On the other hand the defendant, and a number of other witnesses, testified positively that the defendant did not shoot, and did not have a revolver, but that the shot which inflicted the injury upon the plaintiff was fired by another person. There was thus presented to the jury a clear issue of fact, upon a sharp conflict in the testimony. The plaintiff testified as to the extent of the injury, which was not claimed ■to be a very serious one, as follows:

“I went to Dr. Roberts that same day and was home for two weeks; then I went to Dr. Muenz. I got a different job at Ford’s, for the leg hurt me when I stood on it for eight hours. I lost five or six days after I started working. When I walk far now, the leg pains me. * * * I was earning $5 a day at
Ford’s. After being home two weeks, I went back to work, and was home six days after that.”

Dr. Muenz testified to an examination of the plaintiff in December or the latter part of November, 1917. He said:

“He came to my office and complained of pain in the right thigh. I examined him and found a scar just below the gluteal fold. I ordered an X-ray taken, and it showed no foreign body in the wound. I couldn’t state definitely the depth of the wound. This wound evidently severed some of the small sciatic gluteal nerves, from the symptoms that the man complained of. There was evidently damage to the superficial nerves which are present in that region.”

The plaintiff requested the court to charge the jury as follows:

“Wilful trespasses, assaults, and batteries, libels and slanders, false imprisonment, and perhaps other actions where the injury is in part to the feelings of the plaintiff, to his shame and humiliation, are cases where increased damages may be given. In such cases increased damages are permitted for circumstances and aggravations in the wrongdoing, but they are not given by the law, as interpreted by this court, in punishment of the wrongdoer, but as extra compensation to the person wronged, for the reason that the injury is considered greater because of such circumstances of aggravation, and therefore the compensation ought to be greater.”

These requests were refused.

The case was submitted to the jury in a lengthy charge, in the course of which the jury were instructed as follows:

“(1. I may say that if one is defénding himself or his property, and it becomes necessary, one has the right to actually use a revolver, and if one is using a revolver in defense of himself or his property, and shoots to defend himself or his property, and some innocent person unfortunately is hit, there is no redress. That is not the situation here altogether, for the reason that the defendant says that he did not do the firing, therefore, gentlemen of the jury, you will have to take the situation just exactly as you find it.) Who did do that firing? Who did that shooting? If it was the defendant, why then the defendant is liable because he does not come in and say: *1 was defending my life, and by mischance this innocent person was injured.’ He does not show anything of the kind. He simply bases his defense upon a denial of the use of the revolver.”

Also as follows:

“Now, there is another issue, and it becomes important only, should you determine the issues I have just spoken of, in favor of the plaintiff, that is, how seriously was he hurt?
“(2. The question is naturally suggested heie: Does the plaintiff exaggerate his injury? He has told you how badly he was hurt. Was this a superficial wound, or was it a wound that would be likely to lay a person up some time and cause him inconvenience and suffering? The doctor who attended this man, unfortunately, is not here, and we do not know what he would have testified to, but someone who attended him afterwards and looked for the bullet could not find it, so it is probable that this was, as one witness declared, a mere superficial wound in the buttocks or below.) ”

Also as follows:

“But what in dollars and cents is that wound worth ? How would you compensate him for what he says he suffered?
“(3. Did he suffer much, or did he come in here thinking that this is a gold mine, and thinking he can get a large amount of money for some small wound?)”

Also as follows:

“(4. There are a great many things that might be said, a great many thoughts that occur to one listening to the testimony in this case but perhaps they had better be unsaid.)
“The whole case resolves itself into issues of fact, and those issues should be determined by the jury without any idea of inflicting upon the defendant any punishment, but simply with the idea of giving what is known in law as compensation.”

The jury returned a verdict for the defendant, and a judgment for the defendant was entered accordingly.

The plaintiff has brought the case here for review, and error is assigned upon the refusal of the court to charge the jury as above requested; also upon that part of the general charge as indicated in the parentheses above noted.

It will be observed that the requests to charge, as well as those parts of the charge upon which error is assigned, all related to the subject of damages in case the jury found for the plaintiff upon the main question. A square issue of fact was presented to the jury upon the question of whether the defendant did the shooting. And the jury were explicitly charged that if the defendant did the shooting he was liable, and that defendant based his defense upon a denial of the use of the revolver. This was the vital issue. In the light of this verdict it must be said that the jury found that the defendant did not do the shooting, and therefore was not, guilty. The question of damages was therefore not important. In Blumeno v. Railroad Co., 101 Mich. 325, cited by appellant, in which it was held reversible error for the court to instruct the jury that the plaintiff had not sustained serious injury, his testimony to the contrary notwithstanding, the jury .had found a verdict for the plaintiff, and had awarded him $30 damages, only. But in the instant case the verdict was for defendant. The cases are readily distinguished. If the court erred in the matters complained of, such error was not prejudicial.

We are constrained to say that we cannot approve of all the language used in the charge, especially that relating to “a gold mine.” We have frequently had occasion to say, however, that “affirmance of a judgment does not imply approval of all that was said to the jury.” Lewis v. Brick Co., 164 Mich. 489, 501; Schneider v. C. H. Little Co., 200 Mich. 361, 374.

Section 28 of chapter 50 of the judicature act (3 Comp. Laws 1915, § 13763) provides that no judgment shall be reversed on the ground of misdirection of the jury unless in the opinion of the court after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. An examination of this record satisfies us that the jury did not reach, or consider, the question’ of damages, and that the errors complained of were harmless; and we cannot say in the light of the issue involved that such errors resulted in a miscarriage of justice.

The judgment of the circuit court is therefore affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ,, concurred.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    TIFFIN v. TIFFIN.
    1. Divorce — Decree—Appeal and Error. — Duty oe Supreme Court to Pass Upon Evidence on Appeal.
    While the Supremo Court ought not lightly to reverse a decree in a suit for divorce, where the chancellor has seen and heard the witnesses, and has had the advantage of determining their credibility, nevertheless it is not thereby relieved of the duty of exercising its own judgment in passing upon the evidence in the case.
    2. Same.
    In divorce proceedings, on appeal from a decree dismissing the bill of plaintiff wife, evidence, held,, not to sustain the finding of the court below that the parties were equally to blame.
    S. Same — Extreme Cruelty — Personal Violence.
    Where it is undisputed that defendant husband was guilty of repeated acts of personal violence, amounting to extreme cruelty, decree will be granted to the wife, although she has not been entirely blameless.
    4. Same — Condonation—Evidence—Sufjtcienoy.
    An attempted reconciliation and resumption of marital relations after the filing of the original bill, held,, under the evidence, not to amount to condonation of defendant’s wrongful conduct on the part of plaintiff.
    5. Same — Aiimony.
    Where defendant’s property consists of an apartment building worth from $17,000 to $20,000, with a mortgage against it of $6,500, and he owes about $2,500 besides, plaintiff is awarded permanent alimony in the sum of $5,000 in lieu of dower, also costs, including an attorney fee of $150, all to be a lien upon defendant’s property until paid, under the circumstances an award being preferable to an undivided interest in the property.

      On sufficiency of evidence to establish condonation of cruelty, see note in 6 B. R. C. 626.
    The question of money decree for permanent alimony or a separate maintenance as a lien on real property is discussed in a note in 25 L. R. A. (N. S.) 132; L. R. A. 1916B, 651.

      Appeal from Wayne; Perkins (Willis B.), J., presiding.
    Submitted January 8, 1920.
    (Docket No. 33.)
    Decided February 27, 1920.
    ■ Bill by Phigenia A. Tiffin against Walter E. Tiffin for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered.

      George P. Palmer, for plaintiff.

      Walter M. Trevor, for defendant.
   STONE, J.

The bill of complaint herein was filed by the wife, on February 6, 1915, to obtain a divorce from the husband on the grounds of extreme cruelty and failure to support. The bill charges the defendant with personal violence and many other marital offenses. These charges are all denied by the defendant in his answer, and claiming the benefit of a cross-bill he charged plaintiff with extreme cruelty, refusal to perform her duties as a housewife and with many acts of marital misconduct. After the filing of the original bill, the parties resumed marital relations for a time under an attempted reconciliation, but it is claimed in and by a supplemental bill,'which was filed November 12„ 1915, that the conduct of the defendant was such that plaintiff found it impossible to further live with him, and the case proceeded to a hearing.

The defendant is a practicing physician in the city of Detroit. The parties were first married on September 16, 1891, while defendant was a student of medicine in the Detroit College of Medicine, and it appears that by mutual consent the parties did not live- together, and plaintiff returned to the home of her parents in the Province of Ontario.

Subsequently, the defendant graduated in his course of medicine, commenced the practice of his profession in Detroit, and a second marriage ceremony was performed on November 17, 1896, after which time the parties cohabited as husband and wife continuously until a short time before the filing of the original bill of complaint.

The record is a large one, and in both the pleadings and the testimony of the parties there is much of acrimony, consisting of accusation and counter accusation. In fact it is seldom that a record shows so much of crimination and recrimination by the parties as is here shown. A fair sample of this bitterness is shown in that part of defendant’s answer and cross-bill wherein he says of the plaintiff:

“She has no sense of propriety nor truth, and is a most unmitigated liar.”

We have read the entire record with great care, and have duly considered it, but we are of the opinion that no possible good could follow the spreading of the differences of the parties upon the pages of the reports of this court. The record shows much incompatibility, but we think it shows much more.

After the hearing the trial court, evidently with some reluctance, announced its conclusion as follows:

“In considering the whole case I believe that justice will be subserved by separating these parties, granting to the plaintiff the relief prayed, and awarding her as permanent alimony the sum of $2,000 and costs to be taxed, together with a solicitor’s fee of $100.”

Subsequently a rehearing was granted, and further testimony was taken as to the value of the defendant’s property, the plaintiff having prayed for permanent alimony. About a dozen witnesses, mostly real estate dealers, were examined in June, 1918, upon the subject of the value of defendant’s property — No. 1870 Woodward avenue. Later, and on June 28, 1918, the trial judge filed a memorandum opinion in which he reached the conclusion that relief should be denied to both parties. He said:

“To grant a decree to one may work an injustice to the other. To arbitrarily divide the property between them may likewise be inequitable. Such an adjustment was attempted, in the suggestions made in the opinion already filed. These suggestions have met the distinct and emphatic disapproval of both parties. Under these circumstances, and following the usual rule, both parties being equally to blame for the conditions complained of, the bill of complaint and the cross-bill in this case will be dismissed, and it is so ordered.”

A decree was entered accordingly. The plaintiff has appealed.

We recognize the rule that this court ought not to lightly reverse a decree, where the chancellor has seen and heard the witnesses, and has had the advantage of determining their credibility; nevertheless we are not thereby relieved of the duty of exercising our own judgment in passing upon the evidence in the case.

A careful consideration of the evidence has led us to differ from the opinion of the trial court that the parties are equally to blame. The extravagant charges contained in defendant's cross-bill have not been supported by any testimony save his own, in many important instances. By this we do not mean to hold that under the testimony the plaintiff has been entirely blameless. That she has been imprudent appears by her own cross-examination. That the defendant has been guilty of repeated acts of personal violence, amounting to extreme cruelty, is undisputed. Immediately before the filing of the original bill the following incident occurred, which was described by plaintiff as follows:

“On the 31st of January, 1915, after I had come home from church and was providing my own food, I had prepared my dinner, and set it on the table in the kitchen — he came out and asked if I expected him to eat a meal. Occasionally he would get his breakfast there himself. I don’t remember what answer I made him, but I do remember that he rushed at me right and left, struck me over the head, and I raised up to defend myself as good as I could, and he shoved me against the window and broke the windowpane out, and when he satisfied himself on me, stood against the wall and asked me if I had had enough, and I said, ‘Well, you are a low dirty pup.’ He rushed at me again and pounded me again. There was an empty bottle standing on the table, and I grabbed that and threw over his head, and he threw me down on the floor, and sat on my back and put his hands on my back, until the prints of his fingers were on my skin for several days. He has not charged this as an assault on him, and that is the way it occurred.”

The defendant in his testimony gave this version of the transaction:

“I judge that she wanted some grounds for divorce; she thought I would strike her. She mentions the fact that I struck her, and this is how it was. She was getting her breakfast, or I was, I don’t know which, but anyway, I gave her a good shove with my fist, and shoved her right over to the other side of the kitchen table. She picked up a milk bottle and cut my head open with it. In grabbing her I don’t know whether I grabbed her to prevent her striking me again, but I caught her aflound here (indicating), threw her on the floor and held her there until she promised she would behave. I didn’t strike her. I didn’t touch her outside of holding her, only the first shove. She promised to behave and I let her up, and learned afterwards she ran out of the door and across to the church, and told a policeman about it. I heard it. However, she went upstairs, she hadn’t been to church that morning, she said she had. She went upstairs and stayed there the rest of the day. The next morning or some time after that, she .filed this bill for divorce. She had understood and I had understood, it was impossible for us to live together, the way we were living.”

Earl W. Watson, a young man about 21 years of age, testified to the following conduct of the defendant in 1909:

“I roomed and boarded at Dr. Tiffin’s residence. I took lunch where I worked, but generally had breakfast, and dinner there in the evening. There was no servant kept in the Tiffin house when I was there. Mrs. Tiffin did the usual work of the house. * * * I have eaten a number of meals in the house, and the treatment that Dr. Tiffin gave his wife, in my estimation, was very bad. I have seen him treat her with contempt, and throwing sarcastic remarks at her without any provocation at all on her part. I have seen him throw a dish of gravy in her face, breaking up the meal. I absolutely saw him throw gravy in her face. I didn’t see any provocation for that. There were some words that preceded this, but I cannot recall the words that led up to it. It was a number of years ago. I know it was really started by Dr. Tiffin. I left rooming there because I didn’t like it. I didn’t think Dr. Tiffin was treating his wife right, and we were not wanted around there; simply moved. My brother was with me at this time.”

We shall refrain from copying further testimony. We are of the opinion that plaintiff is entitled to a decree of divorce upon the ground of personal violence amounting to extreme cruelty. As this court said in Utley v. Utley, 155 Mich. 258, we repeat here:

“We are impressed that the parties should be relieved entirely of the relations entered upon with their marriage, and that a disposition of the property should be made which will render personal relations of any kind unnecessary and unlikely to occur.”

The parties have drifted so far apart, and such bitterness of feeling exists between them, that we are satisfied they can never live together in any proper manner. Under the evidence in the case we do not think that defendant’s conduct, above referred to, has been condoned by plaintiff. Austin v. Austin, 172 Mich, 620; Creyts v. Creyts, 133 Mich. 4; Creech v. Creech, 126 Mich. 267; Eistedt v. Eistedt, 187 Mich. 371; Hazelton v. Hazelton, 162 Mich. 192.

The property of the defendant — all accumulated after the marriage — consists of an apartment building known as 1870 Woodward avenue, Detroit. The title to this property is in defendant. The defendant testified that the lot and building cost him $12,000 some years ago — about 1906. The testimony of the witnesses as to the value of this property in 1918 varied widely. Our best judgment is. that its value is from $17,000 to $20,000. There is a mortgage upon it of $6,500 and the defendant owes about $2,500 besides. The plaintiff asks that this real estate be divided, between the parties, subject to a part of the mortgage. We think that this would be impracticable for the reasons stated. All personal relations, should be severed, in our opinion.

We think that a decree from the bonds, of matrimony should be granted to the plaintiff; that she should be awarded permanent alimony in the sum of $5,000, to be paid by the defendant within four months from the date of the decree of this court, the said amount to be and constitute a lien upon all of the real estate of the defendant, including the said premises; which award and allowance shall be in lieu of dower of the plaintiff in the property of the defendant, and in full satisfaction of all claims which the plaintiff may have in any property which the defendant owns ' or may hereafter own, or may have an interest in. In our opinion such award is preferable to an undivided interest in the property. It is better for both parties. Plaintiff has some property and means of her own, and she can protect her lien against the mortgage as well or better than she could her interest, if she owned an undivided part subject to the mortgage. Plaintiff will be awarded the costs of both courts, including an attorney or counsel fee of $250, which will be in full of all attorney fees, and the-same will be a lien upon defendant’s property until paid.

The decree of the circuit court will be reversed, and -one entered here in accordance with this opinion. •

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


author: Sharpe, J.

text:
    LABRANCHE v. PERRON.
    1. Reformation of- Instruments — Land Contracts — Mistake— Equity.
    Where, by mutual mistake, a land contract was executed, although the intent of the parties was merely to secure to the vendees therein an undivided one-half interest in the premises conveyed, they having advanced money to make the purchase, the court of equity will correct the instrument so as to make it express the actual agreement.
    2. Evidence — Parol Evidence — Written Contract — Mistake.
    In case of a mutual mistake in the execution of a written contract, evidence to show what the terms of the contract actually were, held, admissible, and not open to the objection that it tended to vary or contradict the terms of a written contract.
    Relief from mistake at law as to effect of instrument as grounds for reformation of instrument, see note in 28 L. R. A. (N. S.) 785.
    Appeal from Menominee; Flannigan (Richard C.), J.
    Submitted January 8, 1920.
    (Docket No. 39.)
    Decided February 27, 1920.

      Bill by Louis Labranche against Menazip Perron' and another for the reformation of a land contract. From a decree for plaintiff, defendant Perron appeals.
    Affirmed.

      John J. O’Hara (George W. Barstow, of counsel), for plaintiff.

      N. C. Spencer, for appellant.
   Sharpe, J.

There is very little dispute about the facts in this case. The plaintiff has a small store and sawmill in Menominee county. On November 25,1913, two brothers, Celestine and Elginas Boissonneault, approached the plaintiff with the proposition that they go in together and purchase 13 forties of land belonging to one John Gasman. The purchase price was $14,500. The brothers paid to plaintiff $7,000, the advance payment required. Plaintiff saw Gasman and made the purchase, receiving a land contract, which acknowledged the payment of the $7,000 and provided for the payment'of the balance in one and two years. The contract ran to plaintiff alone, as he explains, because the brothers were not there to sign. One of the brothers had gone to Canada for the money and sent it to the other, who paid it to the plaintiff. When the brother returned from Canada, there was talk about what security they had for the payment and plaintiff told his bookkeeper, Belanger, to give them a copy of the contract. Belanger prepared a contract, similar to that given by Gasman to plaintiff, from plaintiff to the brothers. They are all agreed that this was merely to be evidence that the brothers had advanced the $7,000 which was paid to Gasman and that they were each entitled to an undivided one-half interest therein. The parties did some lumbering on the lands but, owing to the failure of a company to whom they sold a considerable quantity of logs, the job was abandoned.

On July 23, 1918, the Boissonneault brothers approached the defendant to sell him their interest in the land. An option was prepared and signed by them, in which it is said:

“The interest of the parties of the first part in and to the said described premises is hereby represented to be one-half interest undivided.”

Defendant had the right to purchase at any time within 60 days for the sum of $9,140. He had the land looked and took up the option. On making payment he secured from the brothers a-quitclaim deed of the entire land. He then asserted his right to the entire interest, subject to the amount due Gasman, and offered to settle with plaintiff in that way.

Plaintiff then filed this bill, alleging, in substance, the facts as stated and asking that the contract given by him to the brothers be canceled and held for naught, that he be decreed to be the owner of a one-half interest, and that partition be had. Pending the trial, plaintiff had paid to Gasman the balance due under the contract and secured a deed to the lands. The defendant testified:

“I bought the interest of the Boissonneault brothers in the land contract that is here in evidence. I bought the right in that land contract — understanding that this land contract was the same as any other land contract and could be transferred, and that they had a right to sell it. I bought all the interest they had by quitclaim deed. They brought this contract down to me and told me that if Mr. Labranche didn’t want to join with them in the sale, they had the right to sell the whole thing. I took it and went into possession of the land. * * * I had this option prepared, and in the option I received it was understood that the interest of the parties of the first part, who were the Boissonneault boys, in the premises was represented to be an undivided one-half.”

No opinion was filed by the trial judge, but in the decree appears the following finding:

“The court * * * does find that the material allegations of said bill of complaint as amended have been sustained by clear and convincing proof; and it appearing to the court that the land contract heretofore on the 26th day of November, 1913, executed by the plaintiff to Celestine and Elginas Boissonneault, as described in said bill of complaint, was intended as security that the said plaintiff would pay to John Gasman the remaining portion of the purchase price of said lands, and that the plaintiff would convey an undivided one-half of said lands to said Celestine and Elginas Boissonneault; it further appearing to the court that the plaintiff has paid to the said John Gasman the remaining portion of the purchase price of said lands, and that the said lands have been by the said John Gasman duly conveyed to the plaintiff and it also appearing that the defendant Menazip Perron is purchaser and owner of all the right, title and interest at any time had or possessed by said Celestine and Elginas Boissonneault in and to said lands; thereupon,”

■ — followed by an order granting relief to plaintiff in accordance therewith. From this decree the defendant appeals.

The claim of the defendant, broadly stated, is that the court erred in admitting evidence tó vary or contradict the terms of the written contract executed by plaintiff to the Boissonneault brothers and that, under ,the bill filed, the plaintiff is not entitled to the relief granted him in the decree. He insists that such evidence can only be admitted in case of fraud, accident, or mistake, and that no such claim is made in the bill of complaint, and that plaintiff’s counsel made no such claim at the hearing.

The bill as amended alleges that the contract was given by plaintiff to the Boissonneault brothers as evidence of the fact that they were to have an undivided one-half interest in the land and had advanced the $7,000 which had been paid on the contract. One of the prayers for relief is:

“That the aforesaid contract * * * be reformed so as to express the true intent of the parties.”

While the word “mistake” may not have been used, and while plaintiff’s counsel may have used language from which it may be inferred that he did not claim a mistake was made, it is apparent, as found by the trial judge, that the contract given by plaintiff to the brothers— /

“was intended as security that the said plaintiff would pay to John Gasman the remaining portion of the purchase price of said lands, and that the plaintiff would convey an undivided one-half of said lands to said Celestine and Élginas Boissonneault.”

This was the understanding of, these parties, and the testimony satisfies us that it was so understood by the defendant at the time he secured the option.

We have here a case of mutual mistake. The parties do not differ as to their oral understanding. The rule by which courts of equity will place these parties just where they intended to place themselves is aptly stated in 4 Wigmore on Evidence, § 2417:

“This sort of mutual mistake can rarely occur in oral acts, but it is common enough in written acts. The case is the simple one of an oral agreement which, when reduced to writing for signature, contains terms varying from the actual understanding of the parties, but is nevertheless signed by them both in ignorance of the variance. No one appears ever to have doubted that in such cases the instrument should be judicially amended to represent the actual agreement.”

The contract was in no way altered or reformed by the decree. The writing executed as evidence of the agreement of the parties was corrected so as to make it express what the parties actually agreed to. Conlin v. Masecar, 80 Mich. 139; Bush v. Merriman, 87 Mich. 260; Cutler v. Steele, 93 Mich. 204; Church v. Case, 110 Mich. 621; Johnson v. Wilson, 111 Mich. 114.

The decree will be affirmed, with costs to plaintiff.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
    CARLAND v. UNITED ENGINEERING CO.
    1. Mechanics’ Liens — Statutes — Proceedings to be Strictly Followed.
    While all the proceedings required by the statute to create a mechanic’s lien must be strictly followed, after the lien has once attached the statute becomes remedial and should receive a reasonable construction so that its provisions beneficial to the lienors be not frittered away.
    2. Same — Notice.
    All persons entering into1 contracts in which the construction of buildings is involved are chargeable with notice of the provisions of said statute.
    3. Same — Interest Attached.
    Under 3 Comp. Laws 1915, § 14796, the lien attaches not only to the buildings erected, but to the interest of the party erecting them, the owner, part owner, or lessee.
    4. Same — Lien on Building.
    Under section 14,798, if the person contracting for the erection of the building has no legal title to the land the lien attaches to the structure erected.
    5. Same — Foreclosure—Sale oe Building Alone ie Severable.
    Under section 14809, the court may order the sale of the land and buildings together, or the buildings separately if severable from the land.

      6. Same — Decree Modified.
    Although the building upon which the lien attached was erected by one defendant on land belonging to another, under a contract to operate a plant therein for ten years, a decree ordering the sale of same, with option of removal in case of default in payment of amount found due, but without barring any future proceedings in case the purchaser did not carry out the terms of the contract, is affirmed, on appeal, but modified to provide that, in case of removal, the premises are to be restored to substantially the same condition as before the construction of the building.
    Appeal from Lenawee; Hart (Burton L.), J.
    Submitted January 27, 1920.
    (Docket No. 61.)
    Decided February 27, 1920.
    Bill by John C. Carland against the United Engineering Company, the Continental Sugar Company and others to foreclose a mechanic’s lien. From a decree for plaintiff, defendant sugar company appeals.
    Modified, and affirmed.

      Herbert R. Clark, for plaintiff.

      Baldwin •& Alexander and B. D. Chcmdler, for defendant appellees.

      John A. Riley and J. N. Sampson, for defendant appellant.
   Sharpe, J.

The defendant sugar company operates a plant at the village of Blissfield, in Lenawee county, for the manufacture of beet sugar. Among its waste products was a liquid known as Steffens water. This it was compelled to store at some expense, as it developed an offensive odor and could not be run into the river. The defendant engineering company believed that by a process of evaporation this waste product could be converted into a valuable by-product, and apparently so convinced the sugar company. On June 6, 1917, an agreement was entered into between these corporations whereby the engineering company, at its own expense, agreed to install a plant for such, purpose on a part of the sugar company’s premises, the net profits to be divided between them. The contract was to terminate in 10 years from October, 1917. The sugar company had the option to purchase at any time after three years. With the additional, or more specific, provisions of this contract, we are not herein concerned.

The engineering company, on August 17, 1917, let to the plaintiff, as J. C. Garland & Company, the job of constructing and installing the plant. In such construction, the other defendants furnished labor or materials. Payment not having been made by the engineering company, liens were filed therefor. Plaintiff filed the bill in this case to foreclose his lien, and the other defendants ask similar relief under the statute. There is no dispute about the amounts due, nor as to the legality of the proceedings. It appears that the plant was fully completed and operated for a few months, but was then closed because its operation was not profitable. The decree fixes the amount due to the plaintiff and defendants, and finds such amounts to be a “lien upon said refining or potash plant, equipment and appurtenances and leasehold rights,” and orders the engineering company to pay the same on or before July 7, 1919, and, in default thereof—

“that all and singular the said premises, or so much thereof as may be sufficient to raise the several amounts as aforesaid decreed to be due the parties, respectively, with interest thereon and the costs in this case and the costs and expenses of sale, together with said leasehold rights, be sold at public auction, * * * that the purchaser or purchasers at such sale shall have the option of removing said plant and buildings from said lands, in which event all leasehold rights in and to said lands, acquired at such sale by such purchaser or purchasers, shall terminate.”

After other usual provisions, the decree concludes:.

“And it is further ordered, adjudged and decreed that if the purchaser or purchasers at the sale do not carry out the terms of said contract, dated June 6, 1917, between the defendants, the Continental Sugar Company and the United Engineering Company, relating to the construction of the plant and buildings upon which the liens herein allowed have been decreed to attach, this decree shall not bar future proceedings for defaults under said contract, and shall in no way change the duties or liabilities of the parties, their successors or assigns, growing out of and by virtue of said contract.”

From this decree, the Continental Sugar Company appeals. Its claim is thus stated by its counsel:

“It is the claim of the appellant that even though there should be a sale of the property against which liens are claimed, it should be a sale only of the rights of the United Engineering Company under its contract without in any way impairing the contract rights of the Continental Sugar Company. As we understand it, a purchaser at such a sale would take the rights of the United Engineering Company charged with the performance of the contract, the same as would be required of the engineering company. This would mean the continued operation of the plant, during the period of ten years, subject to purchase by the Continental Sugar Company in case it so elected under the contract.”

Counsel rely on Wagar v. Briscoe, 38 Mich. 594, in which it is said:

“The lien is to attach to the contractor’s entire interest in the land and its additions made by aid of the contract, but it cannot exceed the interest of the contracting party.”

While all the proceedings required by the statute to create a lien in this class of cases must be strictly followed, after the lien has once attached the statute becomes remedial and should receive a reasonable construction so that its provisions beneficial to the lienors be not frittered away. Smalley v. Terra-Cotta Co., 113 Mich. 141; Lacy v. Power & Heat Co., 157 Mich. 544. All persons entering into contracts in which the construction of buildings is. involved are chargeable with notice of its provisions. The lien attaches, not only to the buildings erected, but to the interest of the party erecting them, the owner, part owner, or lessee (3 Comp. Laws 1915, § 14796). If the person contracting for the erection of the building has no legal title to the land, the lien attaches to the structures erected (§ 14798). Under section 14809, the court may order the sale of the land and buildings together, or the buildings separately, if severable from the land. Eaton v. City of Monroe, 63 Mich. 525.

In view of these several provisions of the statute and of the construction which should be given them by the courts, we are of the opinion that the decree should be upheld. Should the purchaser remove the buildings, we think the claim of the sugar company that the premises should be restored to substantially the same condition as before the construction of the plant is well founded.

A decree will be entered here modifying the one appealed from in that respect. Otherwise, it is affirmed. As the sugar company obtains substantial relief, it will recover its costs in this court.

Moore, C. J., and Steere, Brooke, Fellows, Stone, and Clark, JJ., concurred. Bird, J., did not sit.


text:
    PEOPLE v. SHARAC.
    1. Criminal Law — Homicide—Information—Variance.
    Where an. information for manslaughter -charged the commission of the offense on or about May 13, 1917, while the proofs showed that although the shooting occurred on above date' deceased died on November 20, 1917, said variance held, not fatal in view of 3 Comp. Laws 1915, §§ 15739, 15746, time not being of the essence of the offense.
    2. Same — Amendment.
    Where defendant’s counsel, in moving for his discharge on account of said variance, did not claim surprise or that it could not be cured by an amendment, the Supreme Court will not, in view of the remedial provisions of section 15746, set aside the verdict and sentence because no amendment was made.
    3. Same — Evidence—Admissibiutt.
    Testimony of physicians tending to show that deceased died from the effects of the wounds inflicted on him by the revolver fired by defendant, held, admissible.
    4. Same — Admission oe Grim to Examining Magistrate Admissible — Not Privileged.
    Admission of guilt made by defendant to the justice While before him for examination, where no inducement was held out to him to make the same, held, not privileged, although the justice did not advise him that any statement he might make could be used against him.
    5. Same — Arrest—Duress.
    The mere fact that defendant was under arrest when he made said admission of guilt did not constitute such duress as to exclude it.
    6. Same — Trial—Instructions—Charge as Whole.
    Where the charge as a whole protected the rights of defendant, there is no reversible error, although there may have been language In the charge open to criticism.
    On the general rule of charge of time and place in indictment for homicide, see note in 3 L. R. A. (N. S.) 1019.
    Error to Genesee; Black (Edward D.), J.
    Submitted January 15, 1920.
    (Docket No. 105.)
    Decided February 27, 1920.

      Fred Sharac was convicted of manslaughter, and sentenced to imprisonment for not less than 7 nor more than 14 years in the State prison at Jackson.
    Affirmed.

      Clifford A. Bishop, for appellant.

      Roy E. Brownell, Prosecuting Attorney, and Homer J. McBride, Assistant Prosecuting Attorney, for the people.
   Sharpe, J.

The respondent was convicted of man-

slaughter. The information was in the statutory form for murder, and charged the offense as having been committed on one Bogo Sharac, at the city of Flint, on or about the 13th day of May, 1917. The respondent and deceased were Servians, related to each other, and born and reared in the same town in that country. Respondent first came to this country. He married while living at South Bend, Indiana, and after a time the deceased lived with him in his home there. An intimacy sprang up between deceased and respondent’s wife, and they left South Bend and came to Flint. Without knowledge as to their whereabouts, respondent also came to Flint, and there found them living together as husband and wife. On May 13, 1917, all of the parties met at a baptismal ceremony at a neighbor’s. A friend sought to bring about a reconciliation • and respondent claims that deceased then admitted his intimacy with respondent’s wife and that he then lost all control over himself. It is not disputed that he pulled a revolver he had been in the habit of carrying for some time and fired a number of shots into the body of deceased. A charge of assault with intent to murder was preferred against him. He was dis-' charged on this, and after the death of deceased, on; November 20,1917, at the city of Flint, he was apprehended and brought to trial on the charge of murder, which, resulted as before stated. At the close of the people’s case, respondent’s counsel moved for the discharge of respondent on account of the variance between the charge in the information and the proofs, the former alleging the crime to have been committed on or about May 13, 1917, while the proofs showed the deceased died on November 20, 1917. This was denied. No application to amend was made by the prosecuting attorney. There are many assignments of error, that most strongly relied on being the refusal of the court to grant such motion. The claim of respondent’s counsel as to this is thus stated:

“It is claimed by respondent that one of the vital elements of the offense of murder or manslaughter, is the death of the party assaulted, and that the completed offense cannot be charged prior to the date of the death, also that there is no doctrine of relation which could alter the date or time of death and no rule which could anticipate the death and complete the crime earlier.”

He relies on the opinion of Chief Justice CAMPBELL in Chapman v. People, 39 Mich. 357, to support this contention. The information in that case charged that the respondent—

“on the twelfth day of November, one thousand eight hundred and seventy-six, at the township of Meridian, in said Ingham county, with force and arms did make a felonious assault in and upon the body of one John F._ Morley, in the peace of the people of the State of Michigan then and there being, and then and there willfully and of his malice aforethought did kill and murder the said John F. Morley,” etc.

The proofs showed that an assault was committed on the deceased at the township of Meridian on November 12th, that he was removed to his home in the city of Lansing, and died on November 27th. Justice Campbell points out that while the statute dispenses with the details of the crime required by the common law,—

“when a description is found in an information which uses common-law phrases and references, it must be assumed as intended to have its common-law interpretation.”

He calls attention to the fact—

“that the offense is misdescribed in two respects: first, in setting forth the assault and death as concurrent in time, and second, in averring them — which would perhaps have necessarily followed — as concurrent in place,”

—and concludes that, as the crime is not completed until death follows the assault, the averment of the crime as having been committed in the town of Meridian was not supported by proofs of death in the city of Lansing.

The following sections of our criminal law must be considered. Section 15739, 3 Comp. Laws 1915, provides:

“That in all indictments for murder and manslaughter, it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did willfully, and, of his malice aforethought, kill and murder the deceased; and it shall be sufficient, in any indictment for manslaughter, to charge that the defendant did kill and slay the deceased.”

Section 15746 provides:

_ “No indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words ‘as appear by the record/ nor because any person mentioned in the indictment is designated by a name of office, or other descriptive appellation, instead of his proper name, nor for omitting, to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding the indictment, or any impossible day, or on a day that never happened, nor for [want of] a proper venue, nor for a want of a proper and formal conclusion, nor for want of the statement of value or price of any matter or thing, or the amount of the damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offense.”

In People v. Hamilton, 76 Mich. 212, the evidence disclosed the fact that the deceased died three days after the date alleged in the information, in which respondent was charged with murder. An amendment was asked for and granted. It was therein said:

“Time was not of the essence of the offense charged.”

Such holding seems to be supported by the authorities. In 1 Michie on Homicide, p. 483, the rule is thus stated:

“It may be stated as a general rule that time is not an essential element of the crime of homicide, and the statement in the indictment for such offense as to when the crime was committed is not material further than to show that it was committed before the finding of the indictment and within the statute of limitations. The averment of the time of the commission of the offense not being material need not be proved as laid.”

See, also, 21 Cyc. p. 870; 1 Wharton’s Criminal Evidence, p. 299; 8 Words and Phrases, p. 7283; and Commonwealth v. Snell, 189 Mass. 12 (75 N. E. 75, 3 L. R. A. [N. S.] 1019).

There is no claim on the part of respondent of surprise, or that the variance could not have been cured by an amendment on the trial. In fact, the language used by his counsel in presenting the motion was an invitation to the prosecuting attorney to ask that the amendment be made. Under the remedial provisions of section 15746, supra, we are constrained to decline to set aside the verdict and sentence for this reason.

Error is assigned on the action of the trial court in admitting, against respondent’s, objection, testimony of physicians tending, to show that the deceased died from the effects of the wounds inflicted on him by the revolver fired by the respondent. There would seem to be no question from the testimony thus given that the deceased died as a result of such wounds. While some of the questions were subject to the objections made, a reading of the entire record fails to satisfy us. that any error prejudicial to the respondent was committed in the respect claimed.

William L. Landon, the justice before whom respondent was brought on the charge first preferred against him, and who formerly practiced law, was permitted to testify as to statements then’ made to him by respondent. The claim is made that it was the duty of the justice to have explained to the respondent that he need’ not answer any questions and that any statements made by him might be used against him on his trial, and, as this was not done, that such testimony should not have been received. It is also claimed that the communication was privileged, within the rule laid down in People v. Pratt, 138 Mich. 125. In that case, the respondent said to the prosecuting attorney that he would like to talk to some attorney before he went before the grand jury and asked if he could see and talk to Judge Person, the circuit judge before whom the grand jury proceeding was pending. The prosecutor took him to the judge’s office and introduced him. Judge Person testified that he told him he could not advise him as an attorney, that he was not obliged to testify to any matter that would incriminate him, but that if he would testify to “tell the truth, whatever it is.” Pratt then burst into tears and told facts to the judge without which his convicfcion could not have been had. The court held the statement inadmissible and discharged the respondent.

In the instant case, the justice testified:

“I asked him as to whether or not he wanted an examination in this court, and I explained to him at that time that if certain conditions existed that he would want an examination, and if certain conditions did not exist, that he would want to waive .that examination and go into the circuit court. * * * He didn’t seem to comprehend, didn’t seem to understand what I was asking him when I was explaining things from the complaint, and I then told him that if he did the. shooting, as stated in the complaint and warrant, that he would want to waive his examination and go into the circuit court ; that if he didn’t do it, that he would want an examination in my court.”

That the respondent then said:

“ ‘He got my wife, I shoot him, hope he: die, I kill the son of a bitch.’ ” • '

We do not think these facts bring the question presented within the rüling in the Pratt Case. No relation of attorney and client here existed, nor could the respondent have so understood. He did not go to the justice for legal advice, nor can we find from the record that he believed the justice was advising him as an attorney. While the record does not so state, it is apparent that at least the officer who had him in charge was also present. There was nothing said by the justice to induce the respondent to make the statement that he did, nor can we conclude that it was in any way privileged.

Was the statement made by him a voluntary one? In other words, was it the duty of the justice to first say to him that he need not answer any questions and that any statements made by him might be used against him on his trial? In People v. Owen, 154 Mich. 571, the rule is thus stated;.

“Only when confessions are obtained by threats or promises, or under circumstances which legally constitute duress are they inadmissible.”

See, also, People v. Warner, 104 Mich. 337.

The respondent was sworn as a witness in his own behalf. While he denied making the statement testified to by the justice, there is no claim on his part that any inducement was held out to him or any threat made which caused him to make a statement. The mere fact that he was then under arrest does not constitute such duress as to exclude the testimony. There is no such claim made by his counsel, his argument being based on the duty of the justice to advise him that he need not say anything tending to incriminate himself. Under the circumstances here presented, we do not think this assignment well founded. See 1 Wigmore on Evidence (Confessions), § 815 et seq.

The defense of temporary insanity was interposed by respondent. After testifying that deceased, on the occasion of the shooting, had in effect admitted his intimacy with respondent’s wife, he was asked:

“Q. What happened then?
“A. I couldn’t see anything then any more, everything was turning around me. I only heard somebody say to go out.
“Q. What was the next thing you remember?
“A. I only know when they caught me by the hand and asked me what I was doing.
“Q. Where were you at that time?
“A. I was out on the street.
“Q. Where was Bogo at that time?
“A» He was on the ground.”

He further testified that he did not remember hearing any shots fired and that he had no “intention of shooting Bogo or hurting him in any way.” As to this defense, the court charged the jury at considerable length. After stating fully the nature of the claim made by respondent’s counsel, he said:

“It must appear in this case that the defendant is a man of sound mind. Now, by ‘sound mind’ is not meant a mind which is the equal of any mind possessed by any mortal in the world. We all know that there is a difference in the minds of our acquaintances. Some men are very bright, others are very dull; but they are held accountable. Perhaps it would be enough to say — and to leave it right here — that if, by reason of disease, the defendant was not capable of knowing he was doing wrong in the particular act, or if he had not the power to resist the impulse to do the act by reason of disease or insanity, that would be an unsound mind. But it must be an unsoundness which affected the act in question, and not one which did not affect it. There is a. simple question for you.”

He gave the following requests presented by respondent’s counsel:

“I charge you if respondent was laboring under such a defect of mind and reason as not to know the nature and quality of the acts he was committing and incapable of forming a criminal intent, he should be acquitted, and that it is incumbent upon the people to prove beyond a reasonable doubt that he had the capacity to form intent to commit the crime, and also incumbent upon the people to prove that he was of sound mind at the time the act was committed.
“I charge you that if you find that the respondent at the time of the shooting was laboring under such a defect of mind and reason as not to know the nature and quality of the act he was doing and was incapable of forming a criminal intent, he cannot be convicted of the offense charged.”

While there may be language in the charge somewhat open to the criticism of counsel, an examination of it as a whole satisfies us that the respondent’s rights in this respect were fully protected.

The other assignments of error have been carefully considered. Several of them are, in effect, passed upon by what has been already said. We deem it sufficient to say as to the others that a reading of the entire record satisfies us that they are without merit. We feel constrained to find that the respondent had a fair and impartial trial, that his rights were fully protected by the court and by his counsel, and that there was no miscarriage of justice in his conviction and sentence.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
    DAVIS v. GREAT EASTERN CASUALTY CO.
    1. Insurance — Accident Insurance — Unnecessary Extosure to Obvious Danger.
    In an action on an accident policy, where the defense was that insured met his.death while “unnecessarily exposing himself to obvious danger,” contrary to the terms of his policy, by attempting to leave a moving elevator, the trial court properly instructed the jury that plaintiff could not recover if deceased attempted to get out of the elevator while it was in motion nor when the doors were being closed preparatory to- setting it in motion, but that he had a right to get off the elevator when it was standing still, and if,' while in the act of getting off, the elevator started and he was injured, that his estate could recover.
    2. Same — Common Carrier — Public Conveyance — Elevators— Construction oe Policy.
    Where the. policy in one clause provided for indemnity against accident while traveling within “any common carrier’s public passenger conveyance,” and in another “while a passenger within an elevator provided for passenger service only,” held, to be apparent that an elevator was not deemed to be a “public passenger conveyance,” within the terms of the policy, and that insured was indemnified against two different and unconnected risks: one while riding in a conveyance, and the other while a passenger in an elevator.

      The question of exposure to obvious risks of injury or obvious danger within the meaning of accident insurance is passed upon in a note in 50 L. R. A. (N. S.) 1218.

      3. Same — Pubiic Conveyance — Eeevatoes.
    The provisions of the policy limiting liability if the injury to the insured is received “while entering or leaving, or attempting to enter or leave, or while upon the step or steps, or platform or running board of any conveyance,” TielcL, not applicable where the injury was received while leaving a passenger elevator.
    Error to Kent; Perkins (Willis B.), J.
    Submitted January 14, 1920.
    (Docket No. 92.)
    Decided February 27, 1920.
    Assumpsit by Elvert M. Davis, administrator, with the will annexed, of the estate of James W. Hunter, deceased, against the Great Eastern Casualty Company on a policy of accident insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Travis, Merrick, Warner & Johnson, for appellant.

      James H. Campbell (E. M. Davis, of counsel), for appellee.
   Sharpe, J.

On June 10, 1917, the defendant company issued to James W. Hunter an accident and sickness policy. It insured the deceased— ,

“against the effects of bodily injuries caused directly, solely and independently of all other causes by external, violent, and accidental means, * * * and also against the effects of sickness as follows:
Accident Benefits.
In First Annual After
Section A. Year of Policy Increase for five years 5th year
For loss of life.......$2,000 $200 $3,000
* only when such injuries are sustained in the manner specified in Section C, clauses 1, 2 and 3. * * *
“Section C. — 1. While traveling as a passenger in a place regularly provided for passengers, within any common carrier’s public passenger conveyance (animals, aerial machines or conveyances excepted); or
“2. While a passenger within an elevator provided for passenger service only; or
“3. While within any burning building except a shop or factory, by being burned by fire or suffocated by smoke, provided the insured shall not be assisting or acting as a volunteer or paid fireman.” * * *

Under “Additional Provisions,” it is provided:

“(5) _ This insurance does not cover * * '* loss * * * from injuries fatal or otherwise resulting
wholly or in part directly or indirectly from * * * unnecessary exposure to obvious danger” * * *
“(e) This insurance does not cover loss from injuries, fatal or otherwise, received by the insured while entering or leaving, or attempting to enter or leave, or while upon the step' or steps, or platform or running board of any conveyance except under section T>, E or F.”

On July 2, 1917, the deceased, while attempting to pass out of an elevator at the third floor of the Browning Hotel in the city of Grand Rapids, sustained injuries resulting in instant death. The plaintiff was appointed administrator with the will annexed of his estate. Proofs of loss were furnished the defendant. Upon payment being refused, plaintiff brought this suit to recover the $2,000 provided for in said policy to be paid in case of death.

The defendant, in a notice attached to its plea, alleged that the injuries which caused the death of plaintiff’s decedent were received—

“while entering or leaving or attempting to enter or leave a conveyance, to wit, the passenger elevator in the Hotel Browning”-.-

■ — and also that the injury was caused by the deceased “unnecessarily exposing himself to obvious danger.”

The circuit judge submitted both questions to the jury. He defined the latter, and as to the former said that the deceased—

“had a.right to get off the elevator when it was standing still, and if while in the act of getting off, the elevator started and he was injured, that his estate can recover.”

The jury found for the plaintiff in the amount of $2,000, with interest, $137.50. Judgment was entered therefor, and defendant -appeals.

1. Did the deceased- unnecessarily expose himself to an obvious danger? The only witness to this unfortunate occurrence was John Henry Guest, the man who was running the elevator. His description of the elevator itself and how it was operated was as follows:

“The elevator runs from the basement to the top floor and is operated by electricity. The doors at the different floors are double doors, in two parts. They open both ways and are placed on wheels or iron pulleys. at the top of the doors. The doors slide together in the middle like little barn doors and when closed fasten together. After they were closed they cannot be opened only from the inside. The doors were hung on two iron rods at the top. The wheels at the top of the doors run along these rods from side to side. The doors are attached to the elevator opening. The doors are on the inside of the elevator shaft. The doors at each floor are arranged so that they open and close together. The elevator is operated, started and stopped by a lever at the righthand side of the elevator. The operator faces the south, that is, toward the halls running from the elevator shaft. The doors open and close with a device we had, a little patent device we had, we put our hand on as soon as we reached the floor. We attach this little device and the doors opened, and when we got ready to leave the floor we would close them. The device opened and closed both doors at once:
“* * * The elevator was ascending and Mr. Hunter stepped on the elevator and a lady stepped on the elevator at the same time; the lady was going to the third floor and Mr. Hunter I supposed was going to the fourth floor. They got on the elevator at the, lobby or office floor. The lady stepped into the ele-' vator first and then Mr. Hunter. The lady didn’t say anything about what floor she wanted. I knew what floor she was on and wanted. The lady was Mrs. Mooney. She was stopping at the hotel. Mr. Hunter had just taken apartments in the hotel, on the fourth floor. He called for the fourth floor when he got on the elevator; when they both got into the elevator I started the elevator up< after closing the door, and when I got to the third floor I stopped the elevator to let Mrs. Mooney out. Mr. Hunter stood directly behind Mrs. Mooney. I opened the doors on the third floor and Mrs. Mooney stepped out and started down the hallway, I closed the door and Mr. Hunter stepped out on the same floor.
“Q. Did you close the doors of the elevator before you started the elevator?
“A. Yes, sir, I was closing them.
“Q. Had they been closed when you started the elevator?
. “A. The doors were closed nearly that far (indicating) when I started the elevator at the third floor. Mr. Hunter was directly behind Mrs. Mooney as she stepped out and started down the hall. Mr. Hunter stepped to the door, the elevator door, and he stepped out, and as he stepped out I hollered to him that this was not his floor. As he stepped out, I says: ‘This is not your floor.’
“Q. You said that when you say that he was stepping out?
“A. No, before. I couldn’t see him right good. I know he was standing behind the lady but I was paying attention to the floor. I opened the door at the third floor; Mrs. Mooney stepped out. I saw Mr. Hunter draw near.. I said: ‘This is not your floor, Mr. Hunter.’ I shut the door. He was then on his way out to follow the lady. He had a paper in his hand and his hat was in his hand.
“Q. What happened?
“A. The elevator, well, I should judge, went up about three feet before Mr. Hunter’s head struck^ the top, and I reversed the car. His head struck the iron casing at the top of the door, that is, the iron rail in .casing on which the wheels of the door run. As the elevator went up, it carried Mr. Hunter along with it and his head struck this rail. Mr. Hunter had partly stopped. I tried to grab him with this hand. I hollered at him first and then I tried to catch him and pull him. He had stepped then so that I couldn’t and I reversed the elevator after we had gone up about three feet. The door is about seven feet high. At that time one foot was out of the elevator and the other was on the floor of the elevator. I think he had stepped out with his right foot. It didn’t seem to me that the foot that he extended out of the elevator reached the floor of the hall.”

On cross-examination he was asked:

“Q. Did Mr. Hunter make any move to step off the elevator before you started up again?
“A. I couldn’t see Mr. Hunter until I had seen him stepping out. He was directly behind Mrs. Mooney. At the time I seen him stepping out the elevator was then moving. I supposed the doors were nearly closed and I seen Mr. Hunter do this, and I hollered to Mr. Hunter. He got one fbot clear out of the elevator.”

There are apparent contradictions in his testimony as to the position of the doors when the- deceased attempted to alight therefrom. One cannot but be impressed with the conviction that he was seeking to excuse himself from blame in starting the elevator before the door was closed. It was a physical impossibility for the deceased to step out, or attempt to step out, of the elevator after the doors were closed, as he states. The jury might well have found, as they apparently did find, under the charge of the court, that Guest started the elevator before closing the door and at the very moment deceased was in the act of stepping out. If such were the fact, it cannot well be said that he. unnecessarily exposed himself to obvious danger. This language is so plain, and so easily understood, that the jury needed no instruction as to its meaning. It was, however, defined by the trial judge, and we find no criticism thereof. The jury were also specifically instructed that the plaintiff could not recover if the deceased attempted to get out of the elevator while it was in motion or when the doors were being closed preparatory to setting it in motion.

2. Does the limitation in paragraph (e), above quoted, relieve the defendant from liability? We are fully in accord with the claim of defendant’s counsel,—

“that every word in an insurance policy means something and was put there for a purpose. Every provision has some meaning and the interpretation by which a provision in a policy is made useless and of no effect is avoided by the courts where another interpretation would make the provision mean something”

■ — and with the quotation from page 416 of volume 1 of Corpus Juris,—

“A policy of accident insurance must if possible be so»construed as to give effect to all the language used,” —cited by them.

This language is plain, and should be easily understood. The deceased was to be indemnified if injured, first, while traveling as a passenger in any public passenger conveyance, and, second, while a passenger within an elevator provided for passenger service only. It is apparent that an elevator was not deemed or considered as a “public passenger conveyance,” else the specific provision as to it would not have been added. The insured was indemnified against two different and unconnected risks. One was while riding in a conveyance, and the other while a passenger in an elevator. To this his attention was called in plain and unmistakable language.

Let us now turn to paragraph (e), in which the limitation of liability relied on is found. In it, the defendant is relieved if the injury to the insured is received “while entering or leaving, or attempting to enter or leave, or while upon the step or steps, or platform or running board of any conveyance.” We believe that the understanding of any person accepting such a policy would be that the words “any conveyance” so used referred to the “public passenger conveyance” specified in section C — 1, and had no connection with the word “elevator” in section C — 2. We feel strengthened in this conviction by a consideration of the entire paragraph. There is greater danger of accident “when entering or leaving, or attempting to enter or leave, or while upon the step or steps, or platform or running board” than when riding in such a conveyance. From this extra hazard, the defendant sought to relieve itself to the extent to which its liability was lessened under other provisions as to payments. Should the death of deceased be held to have occurred while alighting, etc., from such a conveyance, its liability would be but $50. Elevators have no platforms, steps or running boards. The use of these terms in connection with the word “conveyance” is persuasive that it was intended and understood by the contracting parties to mean a vessel, vehicle or car so equipped, and employed in the general conveyance of passengers. Giving this interpretation to the language of paragraph (e), we find no error in the charge of the court prejudicial to the defendant. The only question for the consideration of the jury was whether deceased unnecessarily exposed himself to obvious danger. The jury found that he did not.

The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
    PHELPS v. BEARD.
    1. Wills — Mental- Incompetency — Undue Influence — Directed Verdict.
    In a will contest on the ground of mental incompetency and undue influence, there being no duty upon the trial judge to weigh the testimony, his action in directing a verdict for proponent, to be justified, must have been based on a lack of any competent evidence to submit to the jury on said questions.
    2. Same — Opportunity for Undue Influence.
    The extreme age of the testator, and the fact that at the time the will was made he and his wife were living with the proponent as members of the family, held, to entitle the contestant to a very careful scrutiny of the proof submitted.
    3. Same — Evidence—Sufficiency—Directed Verdict.
    Evidence of mental incompetency and undue influence, held, insufficient to go to the jury.
    4. Same — Evidence—Sufficiency—Inferences.
    While undue influence may be established by indirect and circumstantial evidence, it must be of such a nature that the inference may Jairly be drawn therefrom that such influence was in fact exercised; mere opportunity for its exercise being insufficient.
    On the question of inference of undue influence from meretricious relations between testator and beneficiary, see note in 17 L. R. A'. (N. S.) 477.
    Error to Montcalm; Davis (Frank D. M.), J.
    Submitted January 7, 1920.
    (Docket No. 22.)
    Decided February 27, 1920.
    Walter S. Phelps presented for probate the last will and testament of John Williams, deceased. The will was allowed in the probate court, and Jennie V. Beard appealed to the circuit court. Judgment for proponent on a directed verdict. Contestant brings error.
    Affirmed.

      Griswold & Cook (Isabella R. Ganton, of counsel), for appellant.

      Frank A. Miller and Hawley & Eldred, for appellee.
   Sharpe, J.

The last will and testament of John Williams, an aged resident of Montcalm county, was admitted to probate on the 9th day of May, 1918. Jennie V. Beard, a daughter of the testator, appealed from the order of admission to the circuit court. After the testimony in that court had all been submitted, the jury, under the direction of the trial judge, rendered a verdict affirming such order. The contestant brings the matter here for review, the allegations of error all relating to such action of the trial judge.

The claim of the contestant is that there was competent testimony tending to show the mental incompetency of the testator to make a will, and also that undue influence had been exercised over him in its execution. The trial judge, in directing the jury, said:

“In this connection I want to say to you there is no sufficient evidence in this case to warrant the jury in guessing at whether he was competent or not. There is no sufficient evidence to indicate 'that he was not competent to make a will. The proof is otherwise. The testimony even on the part of the two contestants substantiates that view in my opinion. Many times discussions were had reaching right up to a point even after the time this will, was made in relation to his business matters with them and his ’dealings with them, whether théy owed him or not, when they did to balance up or give notes, what he said at various times about selling some of his land and buying other lands, measuring up values, everything on the part of the contestants'in the testimony goes to strengthen the view that he wasi competent toj make a will. He could take into consideration the extent of his property, the ordinary methods of doing business, that he expressed himself as to how he wanted the property to be taken care of, offering to sell and a refusal on the part of the contestants to accept the offer, his discussing the fact that he had made a will and was here at the judge of probate’s office in the presence of other parties and how it was done. It seems to me that for a man of eighty-three years old he was possessed of that vigor, mentality and capacity necessary to make a will.
“There is one other question left and that is the question of whether undue influence was exercised upon him, whether any question of evidence ought to go to the jury or whether it was simply a suspicion_or a guess. In order to be undue influence it must be influence exerted over his mind that he did not make a will according to his intentions. In other words, somebody else’s will or mind was substituted for his by coercion or by not — not always easy to define that so it is understood by the layman, but it must be something that operates upon his mind to lead him away from his own intentions and make it the will of those that had influence over him. Simply kindness to him, or his being there at the home of other parties, or having an opportunity is not sufficient, standing alone, of itself to indicate undue influence was used.
■ “I find an absolute lack of proof in this case to leave to the jury for them to guess at or presume there might have been undue influence used. There must be some substantial testimony to be submitted to the jury and for them to say how strict or how much it would be.
“I think this case lacks that quality of testimony to submit to the jury.”

As this is not a case in which the duty rested on the trial judge to weigh the testimony, but his action, to .be justified, must have been based on a lack of any competent evidence to submit to the jury on the questions presented, it becomes the duty of this court to carefully examine the record. The extreme age of the testator, and the fact that at the time the will was made he and his wife were living with the proponent as members of the family, entitle the contestant to a very careful scrutiny of the proofs as submitted.

The testator had but two children, Mrs. Phelps and Mrs. Beard. In 1912, apparently with the consent of these daughters and their husbands, he made a will, in which he devised all of his personalty to his wife. He at that time possessed two farms, on which the daughters and their families severally lived. This will provided that his wife might live with either daughter, as she might choose, and that the other should pay her $12.50 per month so long as she lived-A joint life estate was devised to Mrs. Phelps and her husband of the 100 acres of land on which they lived, with remainder over to their children then living. A similar estate was devised to Mr. and Mrs. Beard in the 80-acre farm they were then occupying, with a similar remainder over. There was a provision that, in case of the death of a grandchild with issue, such issue should take the share of the child-This will was drawn by Mr. Griswold at his office in. Greenville.

The will admitted to probate was prepared by Mr. Miller, the prosecuting attorney then and now of Montcalm county, at his office in Stanton, May 28, 1917. Pie testified that Mr. Phelps came to the office with testator, but left before the will was talked about. After giving instructions about it to Mr. Miller, testator went out. The will was prepared, but before execution Miller met testator on the street and he told him of a change he wanted made therein. A new will was prepared by Miller and executed by testator, at his request, in the back part of a store, as it tired bim to climb the stairs. This will differed from that executed in 1912 in that it gave to Mr. and Mrs. Phelps the fee title in the 100-acre farm. It gave the remainder over in one 40 of the Beard farm to one of the Phelps children and provided that, in the event of the death of the Beard child, they having only one, before his father and mother, the remaining 40 should go to the then living children of Mr. and Mrs. Phelps. It charged the land devised to Mr. and Mrs. Phelps with the support and maintenance of the testator’s wife during her life. The material difference between it and the one earlier drawn on the same day was in the provision relative to the one 40 of the Beard 80 going to the Phelps children in case of the death of the Beard child before his father and mother. In the first will drawn that day, the remainder over was devised to the Beard child unconditionally. ■

We have stated the provisions of these several wills at some length, as counsel for contestant insists that the last will is so unfair to the Beard family as to raise an inference that its execution was procured by undue influence. It should also be stated that Mr. Beard had made very considerable improvements on the 80 acres, as he claims in reliance on the provisions of the 1912 will.

The testator died on March 18, 1918. Mr. and Mrs. Phelps had four children and, as before stated, Mr. and Mrs. Beard had but one. There is considerable testimony tending to show that the relations between testator and Mrs. Beard had not at all times been very friendly. The testator was 82 years of age at the time the 1917 will was made. In 1907 he had had a severe illness, and his life was despaired of. He was affiicted with Bright’s disease and heart trouble. The physician who then attended him, Dr. Black, died before 1917. Dr. Pinkham, of Belding, who had- consulted with Dr. Black in 1907, prescribed for him at his office from time to time. In October, 1917, he was called to attend him at the home of Mr. and Mrs. Phelps. He testified:

“At that time he was very feeble, he didn’t have good control of his bladder and bowels; he was sitting in the' room, and seemed like a feeble old man. His mind was showing signs of feebleness at that time but not so far advanced as the feebleness of his body. * * *
“I saw him again in November and December, 1917, once in each month, I believe. His physical difficulties were developing gradually, getting more and more embarrassed about his bowels and kidneys and bladder. That physical condition troubled his mind, it irritated him. He was anxious to pass on or to get relief; he felt he was too miserable to enjoy life unless he could be cured. He remarked to me once or twice in 1917 that he desired to have this life end and end his troubles; I think when I saw him at the farm and the last time I saw him in Greenville; that would be in October and December; he said he wished it might be over.
“He was afflicted with a complication of diseases; heart trouble, kidney disease and prostatic; those are usually allied. The effect of those diseases continuing for a period of years upon a man’s mentality depends upon how old he is. At the age of eighty and past it renders him more and more incompetent, emotional, peevish and dissatisfied. I do not know that they have any particular effect upon his will. I don’t know as that would affect his determination or positiveness of character; as to whether it would affect his competency I would not feel able to make a statement. After suffering from this complication of diseases for a period of years, he would not be as competent mentally as he was prior to his suffering. * * *
“When Mr. Williams was in the fulness and maturity of his powers he was a strong man physically and intellectually, a man that had quite a high degree of intelligence for a man that had never had any college education. * * *
“On the last occasion when I saw him, in December, wé didn’t have much talk only about his disabilities. * * * He stated in a clear and definite way his symptoms and his conditions. I did not discover in his talk at that time any sign or symptom of hallucination. I did not discover at any time that he was entertaining any delusions. He always talked in a clear rational way whenever I saw him. He did not talk much to me of his personal private business affairs, very little. He was apparently a man who was closemouthed about his business affairs. That trait of, character remained with him as long as he lived so' far as I know. * * * Í
“Upon each occasion his mind was entirely clear in regard to the matters he was talking to me about— his wife and himself. He talked in a logical and straightforward manner on each occasion, both in October, 1917, and the preceding date. * * *
“Q, Outside of the matter of forgetfulness, did you note any other symptoms subsequent to that illness of 1907?
“A. No;
“Q. His mentality was the same except he became slightly forgetful?
“A. Yes, sir. * * *
“At the time I saw him six months or a year before October, 1917, I considered his mind was in normal condition for a man of his age.
“Q. At that time did he possess sufficient memory •and mental capacity to know who the natural objects of his bounty were, that is, his two daughters, and the amount and extent of his property, and carry it in his mind long enough to make a will of two or three pages?
“A. I should think so.”

We have quoted the doctor’s testimony at considerable length. The other witnesses testified to his failing memory and incidents peculiar to advanced age in many persons, such as repeating things said by him and worry over his physical condition.

It appears that Mr. and Mrs. Beard were informed by Mrs. Phelps some little time before the will was made in 1917 that the testator was talking about changing his will. On the morning of the day this will was drawn, she told Mrs. Beard over the telephone that she was going to Stanton to see about some matter in which she was acting as a guardian of one of her children and that “father and mother are going along to fix this business.” The first positive knowledge the Beards had of the new will was about July 8th. The testator talked with both of them about it, and, as they were dissatisfied, he asked them to meet him and Mr. and Mrs. Phelps at Stanton and see if it could not be “fixed up satisfactory.” They did so meet at the office of the judge of probate, and one cannot read the testimony of what there occurred without being fully satisfied that the téstator knew what he was doing and was making a great effort to satisfy the Beards that he was doing right in the changes he had made in his will. He visited the Beard farm several times after that. Mrs. Beard testified:

“On the last occasion he was there, November 9, 1917, he broached the subject to us about his papers, he said the north forty there was turned back, that is go back to Walter’s children. I told him if that paper was to stand we couldn’t settle it up. He said Walter’s folks would not give us any trouble if we did not them, he did not want us to have any trouble over it. I do not remember of anything else.”

On the occasion of a former visit, before the meeting at Stanton, she testified:

“Q. Well, so far as you knew then, your father still remembered what was in that will on July 8th, that he had that talk with you at your house?
“A. I suppose he did.
“Q. Well, he told you so, didn’t he, told you that north forty was turned back to the Phelps’ children after you were through with it? He remembered that, didn’t he?
“A. I suppose he did.
“Q. He still remembered it on November 9th, when he was there at your place?
“A. I think he did.
“Q. He told you so. didn’t he?
“A. Yes, sir.”

Counsel for contestant, in a carefully prepared brief, and also in their oral argument, review the last years of the life of the testator at length, and urge that the incidents to which they call attention, when considered in connection with the fact that the new will is an unfair and inequitable division of his property among his children, present sufficient proof, both of a lack of mental capacity and undue influence, to entitle them to go to the jury on both these questions.

The business transacted by the testator after making this will, and the fact that, understanding it, he made so many efforts to satisfy the contestant that he was doing what he thought fair and equitable, negative the first claim made. There is not a scintilla of direct proof of undue influence. It is true that, as the testator and his wife lived with the Phelps family, the opportunity existed therefor. While undue influence may be established by indirect and circumstantial evidence, it must be of such a nature that the inference may fairly be drawn therefrom that such influence was in fact exercised. The character of such proof and the rules of law governing it are discussed at length by Chief Justice Brooke in Re Williams' Estate, 185 Mich. 97. We content ourselves with a reference to this case, in which many authorities bearing upon the questions presented are discussed and analyzed.

Further quotations from the testimony of the witnesses will serve no useful purpose. We are convinced, after a careful examination of the entire record, that the action of the circuit judge in withdrawing the consideration o'f these questions from the jury was justified.

The judgment entered in the trial court is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.