author: Brooke, J. Ostrander, J.

text:
    ERICHSEN v. TAPERT.
    1. Covenants — Building Restrictions — Contracts.
    Where the owners of a portion of the lots along a public street entered into a mutual agreement restricting the location and kind of buildings to be erected on the lots, understanding that not all the owners of such property could be induced to sign the agreement, which described the parties as the owners of one or more lots numbered from 25 to 74 inclusive, the contract bound those who signed it, no intention being declared by the terms of the agreement that it should not be binding until all the lot owners executed the contract.
    2. Same — Consideration.
    The mutual agreements of the signers to conform to the restrictions was sufficient consideration to support the contract.

      8. Same — Assigns.
    The word “assigns,” used in such contract, includes those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent, or aot of law.
    4. Same — Deeds—Incumbrances.
    A grantee of one of the lots, the owner of which executed the contract, was bound by the restriction that, under the terms of the writing, the signers agreed upon “for our and each of our heirs, executors, administrators and assigns.”
    5. Same.
    The restriction could be created by a separate instrument that was not a deed of conveyance.
    6. Same — Waiver—Breach.
    That the complainant’s premises contained a barn, erected after the execution of the agreement, notwithstanding the covenant not to erect any building except a dwelling house on the premises, did not operate to waive the restriction.
    í
    7. Same.
    Complainants, as owners of the adjacent lot and a lot next thereto, were entitled to an injunction to prevent the erection of a flat or row of stores on the lot owned by defendant.
    MoAlvay and Ostrander, JJ., dissenting.
    Appeal from Wayne; Murfin, J.
    Submitted April 11, 1912.
    (Docket No. 138.)
    Decided November 8, 1912.
    Bill by Amelia Erichsen and others against Robert T. Tapert and others to enjoin the breach of certain building restrictions. From a decree granting a part of the relief prayed, both parties appeal.
    Modified and affirmed.

      E. 8. Clarkson, for complainants.

      A. G. Pitts, for defendants.
    The bill in this case is filed to enjoin a threatened violation of certain building restrictions claimed by complainants to cover the premises involved. The lot in question is No. 49, lying at the southwest corner of Chandler and Oakland avenues in the city of Detroit. A single family dwelling house now occupies the front portion of said lot facing Chandler avenue. The present owners desire to utilize the rear portion of the lot by building stores thereon facing Oakland avenue. Complainants insist that no structure can be erected upon said lot except a single dwelling house. The deed conveying this lot to the first owner after subdivision contained the following restriction:
    “ It is further expressly understood that the said above premises are subject to the building restriction now existing on said subdivision, and that said party of the second part assumes all obligations in conformity with said building restriction.”
    In October, 1904, an attempt was made by certain of the lot owners on said street to make the restrictions covering lots numbered from 25 to 74 more certain. To that end, the following agreement was executed by the owners of 26 of the 50 lots:
    “ Know all men by these presents that we and each of us being the owners of one or more lots in the Chandler avenue subdivision of park lot five (5) of the subdivision of section fifty-seven (57), ten thousand acre tract, Hamtramck, Wayne county, Michigan, described as lots fifty (50) to seventy-four (74), both inclusive, situate on the north side of said Chandler avenue, and also lots numbered from twenty-five (25), to forty-nine (49), both inclusive, situate on the south side of Chandler avenue, in consideration of the mutual covenants herein contained, do hereby agree to and with each other, and for our and each of our heirs, executors, administrators and assigns, as follows: That, for the purpose of making and maintaining said Chandler avenue as a desirable residence street for private families, we do hereby, agree for the consideration hereinbefore mentioned that we nor either of us will erect or cause to be erected any other than a single dwelling house on each lot planned and designed to be occupied as a dwelling for a single family; that we will not build such dwelling house nearer than twenty (20) feet from the Chandler avenue street line, said twenty feet (20) feet not to include the porch of such dwelling house, nor nearer than five (5 ) feet from the side line of our said lots, so that a distance of ten (10) feet between the buildings shall be maintained on said Chandler avenue; that said buildings shall be built of either brick, stone or frame, and shall cost at least the sum of twenty-five hundred dollars ($2,500).
    “ It is also agreed between the parties hereto that ‘Exhibit A,’ hereto attached and made a part of this restrictive agreement, shows the number of the lot in said addition that each of the persons executing this agreement owns, and that said ‘Exhibit As shall have the same force and effect for the purposes of this agreement as if the same were written into the body of this agreement.
    “ In witness whereof we have hereunto set our hands and seals this 26th day of October, A. D. 1904.”
    This contract was executed by Fred "Vogt, who was at that time the owner of lot No. 49. It was also executed by the owner of lot No. 47, lying next west of 49, and by the owner of lot No. 45, lying next west of 47. The agreement was duly acknowledged and placed of record. The question of the character of the general restriction covering this street was considered by this court in Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 1025). A reference to that opinion will aid to a correct understanding of the situation. The court below enjoined the defendants from proceeding with the erection of the stores under the authority of Tillotson v. Gregory, but declined to construe the contract relied upon by complainants or to determine its effect upon the matter in controversy. The decree did not enjoin the erection of a structure upon the premises to be used for residence purposes, but provided—
    “ That this decree shall be without prejudice to complainants’ right to take such further action as they may .desire in case of a threatened or attempted violation of the agreement of October 26, 1904.”
    From the decree entered, both parties appeal.
   Brooke, J.

(after stating the facts). The bill seems to ,have been filed solely in reliance upon the contract, and the answer meets the averments of the bill. The prayer for relief is that defendants be enjoined from erecting or causing to be erected upon said lot any building or buildings other than a barn or other outbuildings appurtenant to a single dwelling house for said lot, and, that they be perpetually enjoined from using any dwelling thereon for any other than dwelling purposes for a single family. It is obvious that the decree as entered affords no protection to complainants if, as they aver, defendants should conclude to build in place of the stores a flat building for residence purposes only, upon the rear portion of the lot in question. In such event, complainants would be compelled to file another bill to determine whether they are entitled to the relief sought in this proceeding. We think the meaning and effect of the agreement was fairly in issue in the court below, and that a determination of that issue should have been there made. In holding the defendants precluded from erecting structures for business purposes upon said lot, the court was clearly right, under our former decision. That decision did not, however, rest upon the agreement here in question. If it was in existence at the time of the trial of Tillotson v. Gregory in the lower court, it was not produced.

To fully define the rights of the parties, it is necessary to pass upon the agreement. Defendants contend that the agreement by its terms was not to go into effect until executed by the owners of all of the 50 lots, and that, as only a bare majority (26) signed, the contract never became effective or binding on those who did sign. A careful examination of the contract convinces us that it will not support this construction. The parties are described as—

“Owners of one or more lots in the Chandler Ave. subdivision * * * described as lots 50 to 74 both inclusive, situate on the north side of said Chandler Ave. and also lots numbered from 25 to 49 both inclusive, situate on the south side of Chandler Ave.”

Nowhere in the contract does it appear that the owners of all of the lots described (numbered from 25 to 74) must sign the contract before it shall become operative or binding upon those who did sign. Moreover, the testimony in the case clearly shows that, when the contract was circulated among the lot owners, those who signed were advised that it was not thought possible to secure the signatures of all those who owned lots in the specified area.

We think the mutual agreement to observe the restriction was an adequate consideration passing from each signer to the other signers, and likewise that it was valuable, clearly not so valuable as if all had signed, yet having a tendency to raise and maintain the character of Chandler avenue as a residence street.

It is next contended by defendants that the agreement constitutes a purely personal covenant, binding upon nobody but those who signed, if binding upon them. The contract reads:

“In consideration of the mutual covenants herein contained (we) do hereby agree to and with each other, and for our and each of our heirs, executors, administrators and assigns, as follows.”

The word “assigns” comprehends all those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent or act of law. 1 Words & Phrases, p. 577, and cases cited. There is no doubt that these defendants, who hold their title from Vogt, who signed the contract, come within the legal definition of the word. The expressed purpose of the contract, and the fact that it was so executed as to entitle it to record, clearly demonstrates that it was intended to be binding not alone upon the signers but upon all their successors in title as well. That the remedy may be had by and against the grantees of the respective parties, is authoritatively settled. Watrous v. Allen, 57 Mich. 362 (24 N. W. 104, 58 Am. Rep. 363); Whitney v. Railway Co., 11 Gray (Mass.), 359 (71 Am. Dec. 715); De Gray v. Club House Co., 50 N. J. Eq. 329 (24 Atl. 388); Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 (13 Am. Rep. 556); Brouwer v. Jones, 23 Barb. (N. Y.) 153; Hubbell v. Warren, 8 Allen (Mass.), 173. See, also, 5 Am. & Eng. Enc. Law (2d Ed.), p. 11 et seq.

The fact that the restriction is created in an instrument independent of the deed conveying title is of no consequence, as long as there is a valuable consideration moving to and from the signers.

It is further urged that the restriction has been waived. by the complainants as to lot 49. It is shown that upon the rear end of said lot a barn some 35 by 37 feet was erected without protest, after the contract was executed. We are not .called upon here to determine what outbuildings are reasonable and necessarily appurtenant to a dwelling house for a single family. The erection of the structure contemplated by defendants, whether a flat building or stores, cannot be justified upon the ground that it is a necessary appurtenance to a single dwelling. The fact that it may be less obnoxious than the barn has no bearing upon the question.

The claim is made that to enforce the restriction as to the rear portion of lot 49 would be of no advantage to complainants, while it would cause serious loss to the defendants. We do not think it can be said that the erection of such a structure would not be injurious to lots 45 and 47, owners of both of which signed the contract.

The view presented by the rear end of a row of stores or of a flat building is, we believe, considered neither attractive nor artistic. This building would abut upon the easterly line of lot 47 for nearly half its length, and would be but 50 feet distant from lot 45.

The decree of the court below will be so modified as to enjoin defendants from erecting any structure upon lot 49, except such as are permitted by the restrictive covenants contained in the agreement. Complainants will recover costs of this appeal.

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

Ostrander, J.

(dissenting). I am unable to agree with my Brother Brooke. As he states, the original deed to lot 49 of the subdivision in question contained the restriction:

“It is further expressly understood that the said above premises are subject to the building restriction now existing on said subdivision, and that the said party of the second part assumes all obligations in conformity with said building restriction.”

In Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 1025), the subject of the building restriction imposed upon lots in this subdivision was considered. It was said:

“A careful reading of the tabulation made of the conditions in the deeds will not disclose a general, uniform, and certain plan of improvement, except that these lots were to be used for residence purposes, as distinguished from business pusposes, and the building line was to be 20 feet from the street line, and the houses were to cost not less than $2,500 and $4,000, according to location.”

This ruling supports the injunction against erecting stores upon lot 49, which affords complainants relief from the injury immediately threatened.

However, I agree that the force and effect of the instrument made in October, 1904, by some of the lot owners, is involved and ought to be determined, and upon that point am of opinion that the covenant contained in the instrument is not binding upon the present owner of lot 49. In the first place, the instrument intended to apply to 50 lots was executed by the owners of but 26 lots. In and of itself, therefore, it would not, and could not, accomplish the purpose therein stated, which was—

“ That for the purpose of making and maintaining said Chandler avenue as a desirable residence street for private families, we do hereby agree, for the consideration hereinbefore mentioned, that we nor either of us will erect or cause to be erected any other than a single dwelling house on each lot planned and designed to be occupied as a dwelling for a single family; that we will not build such dwelling house nearer than twenty (20) feet from the Chandler avenue street line, said twenty (20) feet not to include the porch of such dwelling house, nor nearer than five (5) feet from the side line of our said lots, so that a distance of ten (10) feet between the buildings shall be maintained on said Chandler avenue; that said buildings shall be built of either brick, stone or frame, and shall cost at least the sum of twenty-five hundred dollars ($2,500).”

In fact, the record discloses that Chandler avenue is not a street of single dwellings, and not one on which the dwellings erected are uniformly distant from street and side lines. In the second place, the instrument creates no easement upon lots, and is not binding upon the assigns of those who executed it. It contains a covenant, which is simply a contract, and is purely personal to those executing the instrument, relating only to their own acts. Easements —incumbrances on land — must be created by apt words, and a perpetual easement is not to be inferred from language clearly consistent with a mere personal undertaking.

“ In construing the covenant, it is to be observed that the grantor, although speaking for himself and his successors, to the grantee and his successors, confined the restriction to himself alone, by agreeing that he, the grantor, would neither erect nor cause to be erected any building that should be regarded as a nuisance. According to the literal, and hence natural, interpretation of this language, the parties meant that the grantor should not personally do or cause to be done any of the inhibited acts. No doubt could arise as to the correctness of this construction, if the parties had not agreed in behalf of themselves and their assigns. The substance of the covenant, however, is limited to the covenantor, and purports to restrict his action only. While the capacity in which he assumes to contract is in behalf of himself and others, the actual contract, or the thing agreed not to be done, is limited to his own acts. Clearly the inconsistency cannot be dispelled . by subordinating substance to form, or by holding that the actual agreement is of less importance than the capacity in which it was made.”

This is the language of the court of errors of New York in construing a covenant contained in the very deed of the land. Clark v. Devoe, 124 N. Y. 120, 124, 125 (26 N. E. 275, 27 Am. St. Rep. 652). The reasoning of the court in that case is sound, is applicable here, and the case is authority for holding that the agreement of October, 1904, does not create an easement, and that lot 49 is subject only to the general restriction stated in Tillotson v. Gregory.

McAlvay, J., concurred with Ostrander, J. Bird, J., did not sit.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    WALLIN v. ARCADIA & BETSEY RIVER RAILWAY CO.
    1. Railroads — Master and Servant — Negligence — Intoxication of Employe — Personal Injuries.
    Under 2 Comp. Laws, §§ 6284, 6285 (3 How. Stat. [2d Ed.] §§ 6638, 6639), prohibiting the employment by railroads of servants who use intoxicating beverages, there is no civil liability arising against the corporation for violation of the statute, which is penal in its nature and adds nothing to the common-law liability.

      2. Master and Servant — Railroads—Incompetent Servants.
    Accordingly, the master was not liable to an employé injured by the negligence of a freight conductor while under the influence of intoxicants, unless the conductor had become incompetent by reason of his use of intoxicating liquors, and the railroad company knew or ought to have known of the alleged incompetency: and the trial court erred in submitting the case to the jury on the theory that defendant was liable if it had notice of his use of intoxicants.
    3. Same.
    Where plaintiff attempted to open with his hand a coupler which had failed to work when the. engineer had attempted to make the coupling, and had entered between the cars while they were standing at rest, believing that the locomotive would not be moved until he gave the signal, and where the conductor appeared and gave the signal without plaintiff’s knowledge, plaintiff was not chargeable with contributory negligence, as a matter of law, for taking the dangerous way to perform the duty.
    4. Same — Assumption oe Risk.
    Plaintiff did not assume the risk of the conductor’s intemperate habits, of which plaintiff had knowledge, since defendant violated a statutory duty. 2 Comp. Laws, § 6284,3 How. Stat. (2d Ed.), §6638.
    5. Same — Statutes.
    It was not necessary that plaintiff plead the statute in order to avail himself of it in defense of the charge that he assumed the risk.
    Error to Manistee; Withey, J.
    Submitted January 16, 1912.
    (Docket No. 76.)
    Decided November 8, 1912.
    Case by Charles A. Wallin against the Arcadia & Betsey River Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Kleinhans & Knappen (Hovel & Hovel, of counsel), for appellant.

      H. G. F. Warner (Smurthwaite & Belcher, of counsel), for appellee.
   Brooke, J.

Plaintiff recovered a judgment for damages for injuries received on February 19, 1909, while in the employ of defendant. Defendant operates a railroad 21 miles long between Copemish and Arcadia. Upon this road it runs a single mixed train, one round trip each day. The train crew at the time of the accident consisted of Conklin, the conductor, Lang, the engineer, and plaintiff, who acted as fireman on the road and brakeman at switching points. This position plaintiff had held for a total period of three years, one-half of which immediately preceded his injury. At Copemish there is a union depot used by the Ann Arbor Railway, the Manistee & Northeastern Railway, and defendant. Upon arrival at the depot at about 10:20 in the morning, it is customary for Conductor Conklin to take the mail from that point to the post office. After discharging the passengers, the train is run a few hundred feet to a switch, then upon a side track in a northwesterly direction to defendant’s freight depot. Necessary switching operations are then carried on; plaintiff doing the switching when the conductor is absent.

On the morning in question, the conductor absented himself from the train as usual. The “peddler ” or local freight car had been left in front of the freighthouse, and plaintiff and Lang, the engineer, had done the necessary switching; the conductor being absent. The engine was then run back to the freighthouse to be coupled to the “peddler” for the return trip. When the tender of the engine was first pushed against the “ peddler,” the coupling failed to “ make.” The impact pushed the “ peddler ” some four feet away from the tender. Plaintiff, who had been standing upon the tool box at the back of the tender, jumped off and crossed to the “ peddler,” and with his hand attempted to open the coupler on that car. While in the act of opening the coupler, the engineer, in obedience to a signal from Conklin, who, it was claimed, had returned without plaintiff’s knowledge and was standing on the freighthouse platform, backed the tender against the “ peddler,” crushing plaintiff’s hand between the couplers.

Four negligent acts of defendant are counted upon by plaintiff. The first three were eliminated by the circuit judge. As the plaintiff does not appeal, it is necessary to consider only the fourth, which is as follows:

“ That the conductor of the train was incompetent, in that he was in the habit of getting intoxicated and was unfit to discharge the duties of a conductor, which was known to the defendant, and that at the time of the injury he was under the, influence of intoxicating liquors to such an extent as to make his condition the real or proximate cause of the injury.”

Upon this question, the court charged the jury as follows :

“ It was the duty of the defendant in this case to use reasonable diligence to know that its conductor on that train was a sober man, not in the habit of drinking intoxicating liquor as a beverage. That was a continuing duty. A duty that was upon the defendant all the time. From the time that it employed Conklin until the accident in question. , If the defendant neglected that duty, and did not observe its duty in regard to it and exercise such diligence by observation and inquiry, as a reasonably prudent employer should and would have done, and the plaintiff’s injury is attributable to that neglect, then the plaintiff is entitled to recover. It is an undisputed fact in this case that some of the officers of the defendant knew that the conductor, Conklin, drank intoxicating liquors more or less, because they came upon the stand and told you that they knew it, and drank with him in saloons. So that it appears without contradiction in this case that the conductor drank intoxicants as a beverage. So they were chargeable with the knowledge of the fact that he did drink intoxicating liquors as a beverage. But this alone would not entitle the plaintiff to recover, and it would not in itself afford a basis for recovery for the plaintiff, but it is a fact which is proper for' you to consider to determine in connection with all the evidence in the case, whether or not the habits and condition of the conductor was the moving cause of the plaintiff’s injury. The term, ‘ drunk,’ or 4 being drunk,’ and 4 intoxicated,’ 4 being intoxicated,’ those terms have been used very frequently in your presence in this case. I say to you in that connection, that if on the occasion in question, the conductor, Conklin, was not in the normal, natural, legitimate exercise of his natural functions, and that he was appreciably out of the normal condition, so that he could not exercise the same ready care and judgment that he would do if he did not indulge in the drinking of intoxicating liquor, and that it contributed in an appreciable degree to his conduct on this occasion when he signaled back this engine, as he said he did, and wrought the injury to the plaintiff, without negligence on the part of the plaintiff which contributed thereto, the plaintiff is entitled to recovery in this case. On the other hand, if the drinking of Conklin on that day, if he did drink any, or on any other day, if he did drink any, did not disturb his mental balance, and left his judgment as alert, as keen, and accurate as it would be normally, and in no manner contributed to his conduct, and to the fact of his signaling back the engine as he did, then the plaintiff is not entitled to recover, because it would not be the approximate cause of the injury. The inquiry, you see, narrows itself within close limits. It is in saying what the conductor’s condition of mind was, and what his judgment and his alertness of mind might have been at that time, his correctness of judgment in what he should do and what he should not do. In determining that, you should take into consideration the testimony in the case bearing upon that subject. The testimony before you in regard to his drinking in the saloon, in regard to his drinking in the f reighthouse when they were in the habit of eating lunches there. And his drinking at any time or place which the evidence points out. And you should take into consideration the testimony of the plaintiff for what you say it is worth as to his manner and the way in which he behaved himself and walked with him after the accident occurred, immediately after the accident occurred, and from there to the doctor’s office, and while he was in the doctor’s office, .you should take into consideration the identical circumstances of the accident itself. Say whether a man of his experience, whose mind was clear and in its normal condition, whose j udgment was without interference, would do as he did there, or would not do so unless it was interfered with. Take all these things into consideration and determine the truth of the matter, whether the conductor, Conklin, was at that time incompetent in the sense that he was not his natural self because of the use of intoxicating liquors. If he was not, the plaintiff may recover, if he was not himself negligent. If the conductor was his normal self, and acted as such on that occasion, then the plaintiff cannot recover in this case. * * * If you find the fault lay with Conklin, as I have described it to you, and that this was proven by the preponderance of evidence, as I have instructed you, then it is your business to find a verdict for the plaintiff. If you find that is not the case, that the responsibility was not with Conklin, because of his conduct, then the plaintiff is not entitled to recover, and he is not entitled to recover if his negligence contributed to the injury.”

It is apparent from a perusal of the record that the ' learned circuit judge was of opinion that the statute ( 2 Comp. Laws, §§ 6284, 6285, 3 How. Stat. [2d Ed.] §§ 6638, 6639) imposed upon the defendant a different and greater civil liability than it rested under at common law. The proviso to section 6285 we think clearly negatives this view. These sections occur under the caption “Police Regulations,” and are penal in character. They add nothing to the common-law civil liability of the defendant.

The eleventh request preferred by defendant is as follows:

“If plaintiff is entitled to recover in this case at all, it is only because of defendant’s alleged negligence in employing and continuing to employ, its conductor, Conklin. Defendant was not negligent in keeping in its employ its conductor, Conklin, unless Conklin was incompetent because of his alleged use of intoxicating liquors, while in charge of the train, and unless defendant had knowledge, or notice, of such alleged incompetence and thereafter retained him in its employ. Unless, therefore, you shall find, under the evidence, that Conklin was incompetent to perform his duties because of the- use of intoxicating liquors, and that defendant had knowledge thereof, or that he was an habitual drunkard so that defendant would be charged with notice thereof, plaintiff cannot recover.”

Under the theory upon which the case went to the jury, we are of opinion that this request should have been given. The declaration charges habitual intoxication on the part of Conklin and a knowledge thereof on the part of defendant. The charge as given predicates defendant’s liability upon the fact that it had knowledge of or was chargeable with notice of the fact that Conklin used intoxicating liquor as a beverage. Such knowledge or notice, unaccompanied by knowledge or notice of incompetency, would be insufficient ground upon which to base a common-law liability, and the statute is not by the declaration, and in our opinion cannot properly be invoked as a basis of liability. While the use of intoxicants in any manner or degree by those charged with the responsibility of caring for the movement of trains is to be reprehended, if is nevertheless a matter of common knowledge that many men are able to indulge in such use in moderation through a long lifetime without any appreciable diminution of their faculties. The basis of defendant’s liability at common law lies in the fact (if it be a fact) that its servant had become incompetent through the use of intoxicants of which fact defendant had knowledge or notice. Hilts v. Railway, 55 Mich. 437 (21 N. W. 878); Johnson v. Railway Co., 162 Mich. 301 (127 N. W. 271).

The claim of defendant that plaintiff should not be permitted to recover because he selected the dangerous rather than the safe way of preparing for the coupling is without merit. When he attempted to open the coupler, both cars and engine were at rest, and he believed the engine would not move until its engineer received a signal from himself. Had they ■ remained stationary, there would have been no danger. We think he was not bound, as a matter of law, to apprehend that the conductor would appear and give the signal for the operation. His conduct, under the circumstances, in all its detail, was a proper subject for the consideration of the jury upon the question of his negligence.

It is urged that, because plaintiff was aware of the alleged intemperate habits of Conklin, he therefore should be held to have assumed the risk of injury arising from Conklin’s incompetency, induced by such habits, and that, by himself continuing in the service after he acquired such knowledge, he was guilty of contributory negligence. We are of opinion that one cannot be charged with contributory negligence simply because he continues in his employment after knowledge of the breach of a statutory duty, and so long as his own acts in such emnloyment are not negligently performed.

Were the duty imposed upon the defendant simply a common-law duty, it is, we think, clear that, with such knowledge of its breach as plaintiff possessed, he should be held to have assumed the risk by his contract of employment. Davis v. Railroad Co., 20 Mich. 105 (4 Am. Rep. 364). But, where a duty is imposed by statute, we have held that the master may not legally contract for its violation, and, therefore, that the servant does not assume the risk of such violation. Sipes v. Starch Co., 137 Mich. 258 (100 N. W. 447); Sterling v. Carbide Co., 142 Mich. 284 (105 N. W. 755); Murphy v. Veneer Works, 142 Mich. 677 (106 N. W. 211); Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110); Syneszewski v. Schmidt, 153 Mich. 438 (116 N. W. 1107); Kleinfelt v. Coal Co., 156 Mich. 473 (121 N. W. 118, 132 Am. St. Rep. 532); Van Doorn v. Heap, 160 Mich. 199 (125 N. W. 11); Rivers v. Electric Co., 164 Mich. 696 (128 N. W. 254, 131 N. W. 86).

We are of opinion that it was not necessary for plaintiff to plead the statute in order to avail himself of it as a relief from the charge of assumption of risk.

It is unnecessary to discuss other assignments of error. The judgment is reversed, and a new trial ordered.

Moore, C. J., and Steers, McAlvay, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: ,Steers, J.

text:
    PEOPLE v. SWIFT.
    1. Venue — Change—Motions—Appeal and Error.
    The denial of a motion for a change of venue is only reviewable if the court abused its discretion. Act No. 67, Pub. Acts 1909.
    2. Criminal Law — Change oe Venue.
    It was not an abuse of the court’s discretion to deny a change of venue on motion of respondent, who claimed that adverse newspaper comments had aroused local sentiment against him; newspaper reports are ordinarily regarded as too unreliable to influence a fair-minded man, and a juror, although he may have formed- an opinion from reading such reports, is competent if he states that he is without prejudice, and can try the case impartially according to the evidenoe, and if the court is satisfied that he will do so.

    3. Same — Time, Lapse of.
    After the lapse of more fhan a year from the date of the alleged offense the court might take into consideration the tendency of public interest and prejudice to abate, in arriving at a determination of the question of changing the venue.
    4. Same — Second Trial.
    He might also take notice of facts coming to his knowledge during the first trial of the same case in which he presided, and was warranted in deferring his final determination until the examination of the jurors as to their qualifications upon the second trial demonstrated that a fair and impartial jury could be and was selected.
    5. Trial — Opening Statement — Prosecuting Attorney —Misconduct of Prosecutor — Criminal Law.
    Though the prosecuting attorney fails to prove allegations made in his opening statement to the jury, it is not necessarily an indication of bad faith.
    6. Same.
    Where the prosecuting attorney in opening his case to the jury stated that it was expected to show that respondent, charged with grossly immoral and indecent conduct, practiced hypnotism, and the witness who should testify to the crime was under respondent's control, but no proof of the facts stated was offered, the court charging the jury that they should not consider that phase of the case, prejudicial error did not appear.
    7. Criminal Law — Evidence of Prior Offenses. .
    Evidence of two prior offenses between the same parties was properly admitted as having a tendency to show the secret criminal relations of the accused and the witness, and to show facts from which the crime naturally arose.
    8. Same.
    It does not lie with the accused to object to the admission of competent evidence on the theory that it was of so heinous a nature, and so prejudicial to respondent, that it ought not to be used against him.

      9. Same — Trial—Curing Error.
    The exclusion of evidence of a conspiracy against respondent, where the court later on permitted his attorney to develop the matters at length, was not prejudicial error.
    • 10. Trial — Argument—Conduct of Counsel.
    Alleged prejudicial remarks made by the prosecuting attorney in arguing the case were not sufficient ground for a new trial when the statements were called out by the argument of respondent’s attorney.
    11. Criminal Law — Time of Offense — Videlicet.
    Under an information charging that the offense occurred “heretofore, towit, on the 23d day of November, 1909,” evidence of a crime relied on by the prosecution occurring about a week before the day stated was admissible: proof of respondent’s absence from the county on the 23d of November was not a conclusive alibi.
    12. Same — Alib^Charge.
    The charge of the court that if the crime was committed during the month of November, defendant might be found guilty, that if defendant was not at the plaoe alleged when the evidence of the prosecution showed he was there, he could not be held guilty, that an alibi was as legitimate a defense as any other, etc., sufficiently covered the points and was a correct statement of the law.
    13. Same — Instructions to Jury.
    The court rightly instructed the jury as to proof of previous misconduct that, even though they believed the accused guilty of such offenses, they must find him not guilty unless they were satisfied beyond a reasonable doubt of his committing the offense charged.
    14. Same — New Trial — Affidavits of Jurors.
    Affidavits of jurors cannot be received to impeach their verdict.
    15. Same.
    Evidence examined, and held, to support a verdict of guilty.
    Exceptions before sentence from Charlevoix; Mayne, J.
    Submitted April 18, 1912.
    (Docket No. 41.)
    Decided November 8, 1912.
    Hermon L. Swift was convicted of the offense prohibited by Act No. 198, Pub. Acts 1903.
    Affirmed.

      Franz G. Kuhn, Attorney General, Dwight H. Fitch, Prosecuting Attorney, and A. B. Nicholas, Assistant Prosecuting Attorney, for the people.

      E. N. Glink {Philip H. Travis, of counsel), for respondent.

      The authorities on the question of a disqualification of a juror in a criminal case by opinion gained from newspaper are discussed in an extensive note in 35 L. R. A. (N. S.) 985.

   ,Steers, J.

In December, 1910, respondent was convicted by the verdict of a jury in the circuit court of Charlevoix county under an information charging him with having, on November 23, 1909, committed an act of gross indecency with a boy named Merrill Griffin, in violation of Act No. 198 of the Public Acts of 1903, which provides: 0

“That any male person who in public or private commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be deemed guilty of a felony*” etc.

The offense is charged to have been committed at the “ Beulah Land Farm for Boys,” located near Boyne City in Charlevoix county, an institution promoted and conducted by respondent and of which said Merrill Griffin, a lad about 11 years of age, was an inmate. The place was commonly called the “Beulah Home.” It was advertised and conducted as a farm home for the detention, care, and training of wayward boys. It was supported by contributions from charitably inclined persons in various parts of the State, payments made by parents and guardians of boys detained there, and the products of the farm upon which the boys were required to work. At the time of the alleged offense there were some 25 or 30 boys at the Home, whose ages ranged from 8 to 15 years.

It is sufficient, without going into the unsavory details, to say that the information clearly stated facts which constitute the offense charged under the statute, and the boy Griffin positively testified to such facts. /The act complained of is claimed to have been committed secretly in respondent’s room in the Beulah Home; there being no witnesses to such conduct but the two participants. Respondent’s denial was by a plea of not guilty. The substantive case necessarily rested on the evidence of Merrill Griffin, the only direct witness who testified. .The testimony introduced by the defense was an attack upon the credibility of the witness Griffin, and in support of a claim of alibi and a conspiracy against respondent to depose him from management and control of the Beulah Home.

The bill of exceptions presents for our consideration 127 allegations of error claimed to. have been made by the circuit court during the trial of the cause. While they have all been examined and considered, many of them call for no comment beyond crediting defendant with saving all possible questions for review. It would be a remarkably versatile court which could freight with that many errors a case in which the controlling issue was a question of the veracity of one small boy.

After sorting over these allegations with a view to classifying them, they seem to condense into the questions of whether there was prejudicial error in the court denying defendant’s motion for a change of venue; in a statement made by the prosecuting attorney in his opening as to hypnotic powers possessed by respondent, which was not later substantiated by testimony; in the admission and rejection of certain testimony, as to similar previous acts between the parties, and an alleged conspiracy against respondent; in certain remarks made by the prosecutor in his argument to the jury; in the charge of the court; and in its refusal to grant a new trial. The case had been previously tried, resulting in a disagreement of the jury. When it was again called up for consideration, before the second trial began, respondent moved for a change of venue, presenting lengthy affidavits by himself, his attorneys, bondsmen, and others, together with various newspaper clippings and other matters which occupy 66 pages of the printed record.

The motion was based on a claim that respondent could not obtain a fair and impartial trial in Charlevoix county because of local prejudice against him arising from several sources. It was claimed that on his previous trial the language and conduct of the court officers were prejudicial ; that a civil suit in chancery was pending against him, instituted by the purported trustees for the Beulah Land Farm by reason of which they indulged in talk derogatory to his character; and that the newspapers of the county had published false and defamatory statements against him touching said chancery suit and the criminal case then about to be tried — all of which tended to prejudice and disqualify people of the county who otherwise would be competent to act as jurors on the trial. After argument said motion was denied; the court saying:

“ At the time of the selecting of the jury, if it appears that the jurors have not the qualifications that they should possess, then a change of venue can be ordered, but at this time the motion is denied.”

After the case was called for trial and some time had been consumed in examining jurors as to their qualifications, and respondent had exhausted his peremptory challenges, the motion for a change of venue was renewed; respondent presenting in connection with such renewal further newspaper clippings, the most pertinent of which read as follows:

“The jury has been called back next Tuesday when the Swift Case will be taken up in circuit court. Judge Mayne has recently held that Mr. Swift is sole owner of Beulah Home and all of the funds derived from subscriptions and donations valued at $10,000.”— Charlevoix County Herald, Dec. 24, 1910.
“ This paper does not wish to do Mr. Swift an injustice. It does not wish to prejudice his case nor to prejudice him. It is confident he will get a fair trial. We have seen some signs, however, that various means were being used to create public sentiment favorable to him; trying to create the impression that he was a martyr. Frankly we think Mr. Swift has been guilty of trying to ‘ work ’ the papers.”— Boyne City Evening Journal, Dec. 28, 1910.

The motion was again denied and a. jury subsequently obtained. The time occupied in obtaining the jury is stated by counsel for the respective sides at from a little over a day to a day and a half. In his reasons for denying the change of venue, given by the court when deciding respondent’s motion for a new trial, he said:

“ That the decision upon the motion was without prejudice is shown by the examination of the jurors as made upon the trial of the cause when challenged as to their competency to sit as jurors. In no important criminal case within my experience has the absence of prejudice in those summoned as jurors been more marked. That the overruling of this motion did not result in injury to the respondent is shown by the fact that none of the examination of the jurors is set forth in the bill of exceptions i submitted and now under consideration by me. Prom this I assume that, in the opinion of counsel, no error could be predicated upon the answers of jurors upon their voir dire examination.”

Act No. 67 of the Public Acts of 1909 provides:

“ Each of the said courts, upon good cause shown, may change the venue in any cause pending therein,” etc.

It is only “ on good causé shown ” that the court has any power to act, and then he may grant the change in his discretion. In the early case of Greeley v. Stilson, 27 Mich. 153, it was said:

“A motion for change of venue is, unless where otherwise provided by law, a matter which rests in discretion, and is not subject to review.”

It is, however, now recognized that where rulings on such motions are a clear abuse of discretion, manifestly subversive of justice, they may be reviewed and corrected on writ of error.

It is an elementary general rule that in criminal cases the respondent must be tried in the county where the crime is charged to have been committed; but the court may, in exceptional cases, where a special showing makes it. plain that the ends of justice so demand, or where statutory provisions expressly so provide, change the venue to another county. Where there are no mandatory statutory provisions, it is now settled beyond question that the court’s action in ordering such a change or refusing it is discretionary, and not to be disturbed on review, unless there clearly appears a palpable abuse of discretion. 12 Cyc. p. 243, and cases cited.

A considerable portion of the newspaper clippings presented with the motion for a change of venue relates to the chancery suit over the Beulah Home. The result of that suit is stated in the clipping of December 24, 1909, from the Charlevoix County Herald, presented when the motion was renewed at the trial. By that clipping the public was advised that respondent had been vindicated and found to be in the right in his suit with the purported trustees of the Home, who he claimed had slandered him, and it would also appear in that connection that the judge who heard that suit, and who was presiding in the criminal case, could and would fairly and impartially dispose of matters coming before him in which respondent was interested. The clippings, taken as a whole, seem to be such as are often found in local newspapers in relation to somewhat sensational events and criminal proceedings thought to be of general interest. They purport to report the charges .against respondent and events as they took place in that connection, in court and out. With one possible exception, no positive opinion was offered as to the guilt or innocence of the respondent. On the whole, they are of that class of publications usually appearing in the public press when such matters arise and with which all newspaper readers are more or less familiar.

“ Newspaper reports are ordinarily regarded as too unreliable to influence a fair-minded man when called upon to pass upon the merits of a case in the light of evidence given under oath; and it is now a well-settled rule that a juror, although he may have formed an opinion from reading such reports, is competent if he states that he is without prejudice and can try the case impartially according to the evidence, and the court is satisfied that he will do so.” 24 Cyc. p. 298.

This offense is charged to have been committed in November, 1909. The motion for a change of venue was passed upon over a year later, when the case was on the calendar for a second trial. The lapse of time which intervened was a matter proper for the court to take into consideration; it being well known that, even in cases where adverse public sentiment and prejudice are aroused at the time, public feeling and interest soon abate. This is so well recognized that counsel for defendants in criminal cases are prone to seek delay.

It has been held that the court is not precluded from acting in part on personal knowledge possessed by it. Giese v. Schultz, 60 Wis. 449 (19 N. W. 447). This is particularly applicable to certain charges in the affidavit of counsel for respondent relative to prejudicial conduct of other members of the bar and officers of the court in connection with the case. The warrant was issued in this case on complaint of the marshal of Boyne City after an investigation made by city and county officials. Some of the official misconduct complained of is charged to have occurred during the progress of the first trial, in and around the courtroom. Charlevoix county is large geographically, with a population in the neighborhood of 20,000. The judge had presided at the trial of this case once before in that county at a time less remote from the date when the offense was charged to have been committed, had officially acquired knowledge of the prevailing sentiment amongst those called as jurors at that time, and knew something of what would be encountered in passing upon jurors’ qualifications at the second trial.

■ It was proper and lawful for him to defer final determination of the motion until after the examination of the jurors in the case as to their qualifications, and if a fair and impartial jury could be obtained, as appears to have been the result, it is held that this may justify denying the motion, even though other facts apparently entitling the accused to its being granted may have been shown, for the actuality of the main fact “demonstrates the possibility of its existence.” 12 Cyc. p. 249, and cases cited. It has even been held that a failure, or delay, or difficulty in obtaining impartial jurors is not conclusive in such a case. But that does not seem to have occurred here. The length of time spent in getting a jury, or the fact that respondent exhausted his peremptory challenges, is not of controlling significance. Under the dilatory system of examining and selecting jurors which often prevails, days, and sometimes weeks, are spent in such examinations in sensational cases, and, if that could be made a controlling ground for change of venue, it would offer special inducement for counsel to exhaust their peremptory challenges and delay the case to the limit when examining jurors. We are not advised how many jurors were excused in this case, or the nature of their preliminary examinations, except as the judge, who has been upon the bench for many years, states:

In no important criminal case within my experience has the absence of prejudice in,those summoned as jurors been more marked.”

It is difficult, and often impossible, for appellate courts to see matters as they actually existed and appeared on the trial to the presiding judge, and that should not be overlooked in passing upon a question of the proper exercise of discretion. We are not prepared to say that there was an abuse of discretion in this instance.

After concluding his opening statement, the prosecuting attorney asked permission of the court to make a further opening, which being granted, against objection, he stated to the jury that the prosecution expected to be able to prove that respondent practiced hypnotism, and that the witness Merrill Griffin was subject to hypnotic suggestion exercised over him by respondent. No proof on that subject was introduced or offered during the trial. In his charge the court commented on this failure and said to the jury:

“ Nothing has been said or done, no evidence has been introduced up to this time of any hypnotic power, if such a thing exists, and I do not say whether it does or not, and it is quite immaterial whether it does or not on the part of the respondent. So you will not consider this phase of the case at all.”

It is asserted by the prosecution that this statement was made in the utmost good faith, and an explanation was offered, which does not appear in the record and should not appear in their briefs. All this court can consider is that in his opening the prosecuting attorney stated he expected to be able to prove certain things relative to the exercise by respondent of hypnotic powers over the witness; that he failed to do so; that the judge cautioned the jury to disregard the subject — and then determine whether or not those incidents embody prejudicial error. We cannot assume that the statement was made in bad faith. It is asserted that it was not.

“ It is true that counsel referred to some" matters not established by the testimony. In the opening of a case some latitude must be allowed counsel in stating what they expect to prove. That on the trial they may not be able to show all that they claimed is not necessarily an indication that the statement was not made in good faith.” State v. Crafton, 89 Iowa, 109 (56 N. W. 257).

Failure to prove what it was stated to the jury the prosecution expected to be able to prove, can well be urged as more disconcerting and, at least, as prejudicial to the prosecution as to the defense, and it will open the door to the defense for a caustic argument to the jury, which is not usually overlooked when such opportunities present themselves. The judge in his charge emphasized the failure of the prosecution in that particular and did what he could to eliminate the subject from the deliberation of the jury.

A failure to prove all that the prosecuting attorney, in his opening to the jury, in good faith stated he expected to prove, is not ground for reversal.” People v. Ecarius, 124 Mich. 616 (83 N. W. 628).

/The prosecution was permitted to introduce testimony ''of two previous acts of misconduct between the same parties similar to the one relied on for conviction, in one of which a small dog figured as an interested spectator and to a limited degree as a participant. This is strenuously urged to have been prejudicial error under the well-settled rule that the prosecution may not prove another and distinct offense of the same kind for the purpose of rendering it more probable that he committed the offense for which he is on trial. To this rule there are numerous exceptions, one of which, long recognized and well established, is in prosecutions involving sexual offenses. The reasoning in support of that exception is significantly applicable to the cases like the one before us. Here peculiar secret criminal relations are involved and testified to, which, unconnected with anything leading up to them, would appear in a marked degree unnatural and incredible. The fácts preceding and inducing this transaction are most essential to an understanding of the situation. Where previous acts of intercourse between the same parties are shown, it is something more than merely proving the commission of similar offenses — it is rather proving a repetition of the same offense between the same parties, identical in its criminal features. The following language, in an early case, by Judge Ohristiancy, in which the admission of such testimony was upheld, is particularly applicable here:

In the order of nature, facts do not occur single and independent — isolated from all others — but each is connected with some antecedent fact, or combination of facts, from which the fact in question follows as an effect from a cause. Torn from this necessary connection, and exhibited alone, many real occurrences would appear under the guise of falsehood, and truth itself would be máde to lie.
“ To permit the evidence, therefore, of an isolated transaction, which could only be made to appear probable by exhibiting the antecedent facts which induced it, and yet to exclude from the investigation all such antecedent facts, would be to set at defiance the order of nature, and the laws of truth which God has stamped upon the human mind.” People v. Jenness, 5 Mich. 324.

The principles there laid down have more than once'been cited with approval and followed. People v. Clark, 33 Mich. 112; People v. Burns, 67 Mich. 537 (35 N. W. 154); People v. Hendrickson, 53 Mich. 525 (19 N. W. 169); People v. Skutt, 96 Mich. 449 (56 N. W. 11); Matthews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243); People v. Nichols, 159 Mich. 355 (124 N. W. 25); Wigmore on Evidence, §§ 216, 357, 360, 398.

"We think the testimony objected to comes within the exception and was admissible under the above authorities. The so-called “dog incident” complained of was a pertinent part of the “ things done ” in one of those transactions —a concomitant of the act.

“ The proper inquiry, when the circumstance is offered, is, Does it fairly tend to raise an inference in favor of the existence of the fact proposed to be proved ? If it does, it is admissible whether such fact or circumstance be innocent or criminal in its nature. It does not lie with the prisoner to object that the fact proposed as a circumstance is so heinous in its nature, and so prejudical to his character, that it shall not be used against him, if it bears upon the fact in issue.
“ The atrocity of the act cannot be used as á shield under such circumstances, or as a bar to its legitimate use by the prosecution.” People v. Wood, 3 Parker Cr. R. (N. Y.) 681.

It was claimed by respondent that his prosecution was the result of a conspiracy, instigated by one of the older boys named Mack and a hired hand on the farm named Jones, in which some of the younger boys were induced to participate; the purpose being to depose respondent from control and secure his position for Jones, after which Mack and the other boys would have easier times, and, with Jones’ acquiescence, might ultimately escape from the farm. In- the early stages of this inquiry, various questions propounded by counsel for the defense, relating particularly to Jones’ words and acts, were objected to and sustained, but' later in the trial the court said to defendant’s counsel:

“I will say that there were some questions excluded yesterday that I think might be material, considering the testimony that was later introduced connecting Mr. Jones and the other party. I did state then, that if, later, Mr. Jones was sufficiently connected with the transaction, I would let the statement be considered. So you may cover that point if you wish — that is, present them — and I will pass upon them again.”

After this statement by the court, further testimony relative to a conspiracy, including what Jones said and did, was introduced. That subject was quite fully gone into, and we think ample opportunity was given defendant to present all legitimate testimony offered.

It is urged that the case should be reversed on account of certain unfair and prejudicial remarks of the prosecuting attorney in his argument to the jury. We have no hesitation in concluding that some of them are perfectly legitimate argument; others, in the fragmentary and manifestly incomplete form they appear in the record, without context or that to which it might be implied they are a reply, seem intemperate and perhaps prejudicial. In his reasons for denying a motion for a new trial, the court said:

“These remarks, if prejudicial, which I do not so consider, were in direct answer to allegations of fact made by respondent’s counsel in his argument that respondent ■personally and other witnesses had testified to certain facts. This statement by counsel was incorrect. If the prosecuting attorney were to deny these assertions of fact by counsel for the defense at all, he must use either the exact language which he employed or other language of the same import. He cannot, in justice to the people’s cause, allow these statements to go unchallenged.”

Respondent was not sworn, and of course did not personally testify.

We are unable to say from the record that these remarks were not justified by the arguments of opposing counsel or warranted by the evidence, or that the court did not properly exercise the discretionary control which we have held rested with him. People v. Tubbs, 147 Mich. 1 (110 N. W. 132); People v. Peck, 147 Mich. 84 (110 N. W. 495); People v. Davis, 171 Mich. 241 (137 N. W. 61); People v. Neely, 171 Mich. 249 (137 N. W. 150).

Numerous errors are assigned on refusal of the court to give defendant’s requests to charge and on the charge as given. Twenty-two requests were presented. While none of them was given in the language of the request, and they were all marked refused,” the material substance of many was given and the subjects they presented covered beyond the possibility of being seriously questioned. Counsel particularly complain of failure to give seven enumerated requests relating to the alibi feature of the defense, which it is stated were intended specifically to call attention to that subject ‘ in such a way as to get the proper benefit and advantage of the same in case the jury found the facts involved therein in his favor, or in case they were not able to agree on adverse findings as to such facts.” Three requests are pointed out as unquestionably entitled to be given under People v. Hare, 57 Mich. 505 (24 N. W. 849). They are as follows:

‘c (10) I charge you that if the evidence offered on the part of the defendant, to the effect that the said Hermon L. Swift was in the southern part of the State at the time the people claim the offense was committed, raises a reasonable doubt in your minds as to whether he was present at the Beulah Land Farm at Boyne City at the time the evidence of the people alleges the offense to have been committed, then you should not convict the respondent.
(12) The defense of an alibi, as it is called, is as legitimate a defense as any other defense, and you are to give the same credit to witnesses who testified concerning it as to those who testified to anything else, and, if you believe it to have been established, then you are bound to acquit the defendant.
“(13) I further charge you that you must all be of one mind as to whether the defendant, Hermon L. Swift, was at home at the time the evidence in this case alleges the act to have been committed, and you are not at liberty to convict the defendant, part of you believing that he was in the southern part of the state at that time and part of you believing that he was at home, and if you cannot all agree that the defendant, Swift, was at home at that time you should not convict the defendant.”

No. 12 is copied from request No. 17 in the Hare Case, and No. 13 here closely follows No. 21 in that case. Hare was charged with the murder of one McCrone on a certain date. McCrone might have been murdered by others on that date in Hare’s absence. A witness named Billing-ton gave evidence that he was present and saw Hare commit the deed; testifying positively as to the place, particular day, and time of the day. His was the only testimony as to time, and from his testimony McCrone could not have been killed at any other time. Under such testimony it was held certain specific requests as to alibi should be given. In this case the offense is charged under a videlicet as occurring “heretofore, to wit, on the 23d day of November, A. D. 1909.”

Time was not of the essence of this offense. It could be stated in the information as one time, and the proof might show another; evidence could be given of such an act within the jurisdiction of the court and the statute of limitations, and the act indicated by the evidence could thenceforth be deemed the act charged. The boy Griffin was unable to give the exact date, by month and number. The prosecution appears to have early recognized that he could not clearly do so. Counsel stated to the court that he relied on a specific act committed a week or two before the date set up in the information, “on or to wit, on or about that date, it might have been a week or two weeks before that.” Griffin testified to three distinct transactions — one in the summer, in August, in “ Willis Roberts’ room,” one before that in the “guest room,” and the one on which the prosecution relied for conviction in respondent’s room.

“A little before Thanksgiving Day the last act was committed — about a week or two before.” “About a week before I went to Rowan’s,” “ when I went up in his room the last time he gave me one-half dozen postal cards. * * * He had a whole lot of them packed in his suit case. The suit case was open the time I saw it. This last act of indecency occurred before he went away and that was in November.” “I have no means of remembering except the post cards.”

In answer to suggestive questions as to dates, his testimony was inharmonious and unsatisfactory. His best knowledge of the time was manifestly by its relation to the season of the year and other events which would naturally interest a young boy. It appeared from other testimony that respondent was away from the Home on a trip of 10 or 12 days, returning on the evening of November 24th. Griffin testified to his going on that trip, though unable to give dates, and consistently maintained the act took place shortly before.

So far as the principles involved in the requests quoted apply to the facts in issue in this case, we think the instructions given were sufficient. On that branch of the case the court said in part:

“ Now, as to the time of committing this offense, * * * I will say it is not necessary for the people to allege the identical day of the month upon which the offense was committed. It is charged as being on the 23d day of November. If you find that this act took place as claimed by the people, but that it was not on the 23d but on some other day prior thereto during the month of November, that is sufficient. * * * The defendant in this case asserts an alibi. Now an alibi means that this defendant was not there at the particular time and place testified to by Merrill Griffin; that he was somewhere else, in the southern part of the State. Now an alibi is as legitimate a defense as any other; in fact, it is a perfect and conclusive defense. Mr. Swift could not commit this offense if he was in the southern part of the State; he must have been at Beulah Home and in that room of the Home with Merrill Griffin when he committed it. Now some testimony has been admitted as to a trip that Mr. Swift made. This offense, if committed at all, must have been committed prior to his making that trip; it could not have occurred during his absence. Of course you need no law to tell you that, gentlemen. The question is, Did it occur as claimed by the boy ? And it must have occurred before taking that trip if it did occur at all.”

On the questions of reasonable doubt, and the jurors all being of one mind before they could convict, we think the court charged fully and correctly, in language as plain and easy for the jury to understand as that contained in the request presented by counsel.

We think the court also sufficiently instructed the jury as to the manner in which proof of previous offenses should be considered by them. He stated to them that, even though they should believe such previous offenses had been committed, they could not find respondent guilty unless • they were satisfied beyond reasonable doubt that he committed the third specific offense, on which the prosecution relied; that the others could only be considered as bearing upon the relationship which existed between Merrill Griffin and respondent, in so far as that relationship might throw light upon the facts and circumstances proven in connection with the offense specifically charged; concluding:

“ So you will determine in this case the guilt of respondent solely with relation to the offense charged.”

As to the individual responsibility of jurors, the court said:

“There are 12 of you jurors, each one of you having an individual responsibility equal to that of each and every juror in the case. You are to take this testimony and harmonize it; it is your duty to harmonize it, if possible, with the innocence of the accused, because under our law it is the duty of jurors in every criminal case to enter upon the trial of the case with the presumption of innocence and harmonize all the testimony in the case in accordance with the presumption that he is innocent.”

Without referring further to the exceptions taken to the charge of the court, we are satisfied that the case was fully and fairly submitted to the jury by a charge which covered all material issues involved, advising the jurors of the nature of the case and their duties in that connection. The issue of fact for them to decide was well defined and simple. The rules of law for them to follow in deciding the facts were elementary. If once clearly stated to them in plain language that is, as a rule, sufficient; subsequent technical elaboration in varying phraseology, with delicate distinctions over which counsel themselves might, and often do, disagree, would seldom aid and often bewilder.

After the verdict, respondent’s counsel made a motion for a new trial, basing his application on the court’s denial of a change of venue and various other errors alleged to have arisen in the case. This motion was denied and later renewed; counsel alleging that the verdict was against the weight of evidence and that certain jurors convicted respondent against their inclination, claiming to have misapprehended the charge of the court and to have been improperly influenced by the persuasions of other jurors. In support of the latter proposition the affidavits of certain jurors were presented.

No question of extraneous influence was raised, and it is well settled that the affidavits of jurors cannot be received to impeach their verdict. People v. Stewart, 163 Mich. 1 (127 N. W. 816), in which the court said:

“ This motion is based upon the affidavits of two jurors to the effect that the jury considered the failure of respondent to take the stand as a witness in her own behalf and that they consented to the verdict of conviction largely for this reason. As we have heretofore held, the affidavits of jurors are not receivable to impeach their verdict.”

This question* is fully discussed and authorities cited by Judge Montgomery in Re Merriman’s Appeal, 108 Mich. 454 (66 N. W. 372).

It is most strenuously urged in support of the motion for a new trial, that the verdict is manifestly against the weight of evidence and a gross injustice which should be righted by this court. To sustain this contention, the testimony and character of the witness Griffin are reviewed and vigorously attacked. It is urged that his testimony is so full of contradictions, inconsistencies, and omissions as to be wholly unworthy of belief. We are told in counsel’s brief—

“ That Merrill Griffin, at the time these charges were made and this trial was had, was still an unmitigated liar is so clearly shown by the record in this case that no one can fairly question it.”

That there are contradictions in his testimony is apparent; that he was a mauvais sujet, a wayward boy, and intrusted to respondent’s care for that reason, is undisputed. All his shortcomings and the inconsistencies of his story were thoroughly sifted and emphasized before the jury. When he was on the witness stand, skilled counsel, equipped with the testimony he had twice previously given, before the justice and on the former trial, 'subjected him to a grueling cross-examination which laid bare all the shortcomings of his short life and disclosed from every angle the weak points in his testimony. He was a boy 11 years old, evidently of immature intellect, in no sense competent to hold his own in such an endurance run, or by cunning to either meet or evade the searching quiz of respondent’s attorneys. He was before the eyes of the jury to be observed and studied; they saw and heard the worst. His story was undisputed, except by its alleged self-contradictions and the impeachment of his character and veracity. Apparently he was not altogether bad if respondent’s measure of him is to be credited. About the time these troubles arose, in a letter to the boy’s father dated November 10, 1909, respondent wrote:

“ I am glad to report that he is doing fine in school and everywhere, and in fact we have not been able to find any fault with him whatever; he is O. K.”

We are asked to set aside this verdict, against the judgment of the jury and the trial judge, on the ground that the testimony was a malicious falsehood, instigated by Jones, the hired man, and some of the boys on the farm, in a conspiracy to compass respondent’s ruin and get rid of him, to which the public officials were party, either knowingly and maliciously or as ignorant and misled tools. Their conduct and motives are questioned and impugned.

In reviewing that proposition, we can with propriety consider somewhat the nature and history of this case as disclosed, not only by the testimony taken at the trial, but the record as a whole. It is a criminal prosecution, instituted in the name of the people of this State, presumably in the public interest, for the suppression of crime and protection of society. While such is the presumption in all criminal proceedings, it is not always the fact. In this case matters were taken charge of by public officers; the complaint was made by the city marshal after an investigation of conditions at the institution had been made both by city and county officials. The matter was first called to their attention by one George Snell, a contractor and builder of many years’ residence in Boyne City, who happened to be working at the Beulah Home. He is not shown to have had any interest or motive beyond that of any other citizen, and testifies that he has not. He says that he first learned of such conditions from Jones, who told him something of certain talk among the boys; that he himself then interviewed the boys and got the facts from them; that in such interviews he particularly admonished them to tell nothing but the truth; and, after talking with them, he later, accompanied by Jones, laid the matter before the officers. Jones, when called as a witness, frankly corroborates this; states that he overheard the boys talking among themselves; that he told Snell of it, who questioned the boys and said it should be reported to the officers. He emphatically denies that he had any thought of a conspiracy or any motive of personal interest, or made any attempt to influence the boys in any way. He denies that he ever even talked with the witness Griffin about the matter. To set aside this verdict is to find that this young boy, under the circumstances which the history of this case discloses, was able with a fabricated story to fool and deceive Snell, the city and county officials, the jury who heard the case, and the judge who denied the motion now under consideration, all of whom were on the ground, with opportunities to hear and see and judge the facts not available to one with only the printed record before him.

It is to be borne in mind that in the trial of criminal cases the special prerogative of the jury is to judge the facts and in that connection pass upon the credibility of witnesses, to be confronted by whom, in the presence of the court, is the constitutional right of the accused when put upon trial — a provision of law which emphasizes the importance of those who are to judge hearing and seeing the witnesses — thus in effect making hearing and seeing part of the evidence. In reviewing the decision of the trial court denying a motion for a new trial, based upon the claim that the verdict was against the weight of evidence, the appellate court does not pass upon the facts in the case further than to determine whether or not there was manifest abuse of discretion. We are unable to conclude that such waB the case here. 3 Comp. Laws, § 11963, provides:

“ Section 1. The court in which the trial of any indictment shall be had, may, at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial, for any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct.”

This case was. tried in December, 1910. The first motion for a new trial is dated April 26,1911, and the second September 5, 1911. The official designation of times for holding terms of the circuit court in Charlevoix county-shows that a February term intervened before the first motion was made. Counsel for respondent, with commendable professional candor, advert to this and say:

“Unless the failure of the prosecuting attorney to raise this point in either the circuit or the Supreme Court is a waiver of the right of the people to insist upon the time limit for making motions for a new trial, the court may feel that, under former decisions, the motion was made too late.” — citing Frazer v. Judge of Recorder's Courts 112 Mich. 469 (70 N. W. 1042).

In view of the facts that counsel for0 the prosecution have remained silent upon the subject, while counsel for the defense have so frankly called attention to it, and that both sides have fully briefed the motion, we have thought it best to treat the same as though the point was waived, although not satisfied under the case above cited that this can be done.

/For the reasons heretofore stated, the conviction is af/Brmed.

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


author: McAlvay, J.

text:
    CITY OF DETROIT v. DETROIT UNITED RAILWAY.

    1. Mandamus — Stipulations — Street Railways — Municipal Corporations — Pavements.
    Respondent railway company operated under a franchise from the township of Springwells requiring the railway company to pave between its tracks with cobblestones. The franchise had been granted to another corporation at a time when the line was operated by horse and the traffic was light. Becoming the assignee of the franchise rights, respondent electrified the system and traffic greatly increased. Subsequently, the village of Delray, in which the franchise was in force, adopted brick pavement with a concrete foundation, and, on respondent’s refusal to change accordingly the pavement between its rails, brought mandamus to compel a compliance with the requirement. An agreement or stipulation was entered into between the parties, without prejudice to the rights of either, to permit respondent to lay a macadam pavement which was constructed accordingly, and, as re- ■ lator claims, for an experiment: under the stipulation, the . mandamus proceedings remained suspended until such time as the village council might direct. The village being annexed to the city of Detroit, the city council brought the proceedings on for hearing. Held, that conditions had not so changed that the proceedings ought to be dismissed without prejudice.
    2. Municipal Corporations — Street Railways.
    In granting franchises and privileges to public utility corporations to construct and maintain roads in streets, etc., the municipality does not and cannot surrender or circumscribe its right to the exercise of general police powers, or limit its authority to maintain the streets in reasonably safe condition.

    3. Same — Constitutional Law.
    It was not unreasonable to require respondent to change the pavement, or to bring the tracks to a grade uniform with the streets, or to require it to cut off the ties projecting beyond the outer rails.

      Certiorari to Wayne; Donovan, J.
    Submitted April 16, 1912,
    (Calendar No. 25,042.)
    Decided November 8, 1912.
    Mandamus by the city of Detroit to compel respondent, the Detroit United Railway, to pave between certain of its tracks and make other required improvements. An order dismissing the petition is reviewed by relator on writ of certiorari.
    Reversed.

      Bernard F. Weadock (Richard I. Lawson, of counsel), for appellant.

      Brennan, Donnelly & Van De Mark {John J. Speed, of counsel), for respondent.

       This cause was removed to the United States Supreme Court by writ of error, January 8, 1913.

      As to municipal power to impose conditions when giving consent to railway in street, see note in 36 L. R. A. 33.

   McAlvay, J.

This caséis before the court upon a writ of certiorari to mandamus proceedings to the Wayne circuit court. Relator asked for a writ of mandamus to compel the paving with brick of the space between its tracks by respondent, as required by resolution of the village of Delray. In such proceedings, by reason of the fact that the territory in question had been annexed to the city of Detroit, by an order of the court made in this case, the city was substituted for the village. Before such annexation and after issue joined in the mandamus proceedings, an agreement was entered into between the village authorities and the respondent, without prejudice to the continuance of the mandamus suit or to the rights of either party, under which a macadam pavement was laid. Later the common council of the city of Detroit, by resolution, directed its officers to bring these proceedings to a hearing as soon as possible. Upon a hearing of the case before Judge Donovan, an order was granted that respondent repair this macadam pavement within 30 days, and upon proof of such repair the petition be dismissed.

The franchises to respondent’s predecessor in title were granted by resolutions adopted by the township of Spring-Wells, dated, respectively, July 26, 1886, December 14, 1891, and December 26, 1891. The requirements as to pavement between the tracks were as follows: In the first grant to be paved in the same manner and maintained as certain other portions of its track described; and in the second and third grants “to be paved with cobblestones in the same manner as the balance of the track is now paved.” The portions of the track mentioned in the first grant were also paved with cobblestones.

The petition for mandamus sets up the facts above stated, and, further, the adoption by • the village of Delray of a certain pavement — brick with a concrete foundation —and the contract entered into for the purpose of constructing the same, and shows that for that purpose it will be necessary to bring the tracks of the railway to the grade established, to cut off the ties projecting beyond the outer rail, in order to prevent injury to the new pavement by vibration; that under the grant to respondent it was its duty to pave between the outer rails of the tracks operated by them, and was and is its duty to observe and obey the reasonable orders of the council in respect to such paving; that it was originally paved in cobblestone, which, for the purposes of the new pavement, are no longer practicable or proper by reason of the soft foundation and vibration; that originally the road was operated by horse cars of light weight and but little used; that the railway at present is operated by electricity, by suburban passenger and freight cars of very great weight; that River street, where this railway is located, is the main street through Delray, which had a population in 1905, when these proceedings were begun, of 6,000 inhabitants. Due notice was given of this action taken by the village of Delray, and of the requirements under it to be performed by respondent.

In its answer to this petition, respondent admitted the material facts above stated as to the origin of its franchises and its duty under its franchises to pave between the outer rails of its tracks operated by it, and also admitted the later action relative to requiring brick pavement upon a concrete foundation to be put in by respondent, and admitted notice of such requirement and its refusal to comply with the resolution. It denied that the ties were laid, as alleged, upon a poor foundation, and are appreciably of different lengths, and denies that, in order to properly grade and pave the street, it is necessary that any portion of the ties be cut off, and that the passage of cars will, by vibration or otherwise, injure the concrete pavement alongside of the rails, or destroy the same, or make the highway dangerous for passage. It denies that cobblestone construction is obsolete, or that the foundation is poor, and that the contractor is unable to lay the concrete and brick pavement by reason of the refusal of the respondent to conform with the requirements of the council; and it claims that, while admitting it is its duty to raise its tracks to the proper grade and repave between the outer rails with the material mentioned in the grants, it is not its duty to cut off the projecting ends of the ties, which, it claims, is unnecessary, as it has learned from long experience to allow them to so project, and that if cut, as required, it will be impossible to spike, brace, or adjust its rails to the ties supporting the traffic, and work irreparable injury; that its rails are from 77 to 100 pounds weight to the yard, and the track would collapse in case the ties were cut off as required. And, further answering,' says that it has been willing, and is now willing, to place its tracks upon a foundation of crushed stone, extending the full width of its ties, of about 21 inches deep, thoroughly tamped and rolled, between the ties, and to fill the space between the outer rails and the ties with macadam pavement of first-class construction, which, it alleges, is demonstrated to be the best pavement now in use for such purposes. And, further, that the expense of such pavement, as contemplated by the city, will be $40,000 in excess of the cost to it of the construction as contemplated by respondent, and is not as serviceable or durable; and further claims that the requirement of the village to make this pavement different from that required by the terms of such grants is in violation of its rights under the Constitution of the United States, by impairing the obligation of existing contracts.

It appears from the record that under a temporary agreement respondent brought its tracks to grade on this street and constructed a macadam pavement the entire distance between the outer rails of its two-track system, and also a foot of brick pavement on each side, beyond such rails, the same as the brick pavement, with concrete foundation, upon the remaining portion of the street.

The claim is made and strongly urged by counsel for respondent that, by reason of the fact that under the agreement entered into between the parties, without prejudice, respondent proceeded to and did put in the macadam pavement, that conditions are so changed from those existing at the time of joining issue in this case that no determination by this court of the rights of the respective parties to this proceeding can or ought to be made, but that the petition should be dismissed without prejudice to relator. This contention does not appeal to us, under the circumstances upon which the macadam pavement was put in by respondent. In making such claim it appears to the court that counsel for respondent have overlooked the terms and conditions of the agreement entered into between the parties. By its express terms the mandamus proceedings were suspended until a date certain—

“And until such time as the village council may direct; it being understood between the parties hereto that neither party shall gain or lose any of its substantial rights by this agreement, and that it is without prejudice to the rights of said village and said railway, as asserted in the petition and answer above referred to.”

This agreement was entered into May 13, 1905. The proceedings under it were suspended until September 19, 1911, when the city of Detroit, successor to the village of Delray, directed its proper officer to proceed to a hearing of the case. Under these facts, the court must hold that both parties contemplated a determination of their rights upon the petition and answer, in the same manner as if the macadam pavement had not been constructed. It is claimed by the relator that it was put in as a test pavement, and we do not find such claim to be contradicted by respondent; and the court, upon the case presented by the record before us, will proceed as if no such agreement had been entered into.

It is the contention of respondent that under its franchises, the requirement as to the kind of pavement authorized having been complied with, such requirement cannot be changed, and that to do so would be in violation of the Constitution of the United States, in that it would impair the obligation of an existing contract. In other words, that by these franchises respondent acquired a vested right to always maintain a cobblestone pavement.

It is not contended directly that a municipality cannot retain that control over the public streets and highways which is necessary for the protection and proper use of the public; but by indirection the contention of respondent goes to that extent. A municipality, in granting franchises and privileges to public utility corporations to construct and maintain their roads in and .upon the streets and highways, does not and cannot surrender or circumscribe its right to the exercise of general police powers. If the contention of respondent in this respect should be accepted, such would be the result, regardless of the change of conditions and circumstances, or the requirements necessary to maintain the streets and highways of a municipality in a reasonably safe condition for the use of the public. It would be impossible, during the life of the franchise, to make the necessary changes required for the public use and safety.

In our opinion, the great weight of authority is against such contention. The law upon this proposition is well stated by an eminent text-writer, as follows:

“ It is a general rule that the right to exercise the police power cannot be alienated, surrendered, or abridged, either by the legislature or by the municipality acting under legislative authority, by any grant, contract, or delegation, because it constitutes the exercise of a governmental function without which the State would become powerless to protect the public welfare. Hence, when a franchise or privilege is granted to use the city streets for a public service, the grantee accepts the right upon the implied condition that it shall be held subject to the reasonable and necessary exercise of the police powers of the State, operating either through legislative enactment or municipal action.” 3 Dillon on Municipal Corporations (5th Ed.), § 1269.

To the same effect are the decisions of this court.

A case in point is where a street railway had used a T-rail, claimed to be unsuitable for streets paved with brick, and the municipality, by ordinance, required the railway to substitute a grooved rail. We quote from the opinion:

“Under respondent’s contention, it could practically prevent any improvement in paving, or the adoption of new and better material, unless it could be used in connection with the T-rail, which the respondent had the right to lay when the road was constructed, and which it now claims the right to relay and maintain. It could not be compelled to substitute the grooved rail for the T-rail, even if the city should offer to pay the expense; for it claims that the right to lay the T-rail was a part of the contract, which cannot be taken away. The amended ordinance does not impair the franchise conferred upon the respondent. The city recognizes respondent’s right to the use of the street, to run its cars, and to charge the fares fixed by the ordinance. It only claims that conditions have changed, requiring essential changes in the character and manner of paving, and that the respondent must so construct and equip its road as to meet these changed conditions. In other words, the relator only claims that the respondent must lay new and different rails, at greater cost than that of the old ones. The respondent is deprived of none of its property, unless the increase in cost in consequence of the improvement amounts to such deprivation. It is essential that municipalities retain that control over the public streets and highways which is necessary for the protection and proper use of the public. Courts will jealously guard the right of such control. It must be a very plain provision, indeed, in a contract, -which will justify the courts in holding that this power has been conveyed away. Where doubt exists, such contracts will be construed against the surrender of such power.” City of Kalamazoo v. Traction Co., 126 Mich. 525, at page 531 (85 N. W. 1067).

See, also, Taylor v. Railway Co., 80 Mich. 77 (45 N. W. 335); People v. Railway Co., 116 Mich. 132 (74 N. W. 520); Detroit, etc., Railway v. Commissioner of Railroads, 127 Mich. 219 (86 N. W. 842, 62 L. R. A. 149); City of Detroit v. Railway Co., 90 Mich. 646 (51 N. W. 688).

It is suggested that these cases depended upon a construction of ordinances which, unlike the grants in the instant case, reserved certain rights, and- are therefore not in point. The grants in those cases were with reservations of-rights in the municipalities; but it is evident from the opinions that this court decided the cases upon the ground that the grants were accepted “subject to the reasonable and necessary exercise of the police powers of the State.” We are convinced that the trend of the authorities and the attitude of this court is favorable to the protection of the rights of the public in the reasonable and necessary exercise of such powers, and hold in the instant case that these grants to use the public streets were accepted upon the implied condition that they should be held subject to such power, the necessity for the exercise of which is to be determined by the municipal authorities. In the exercise of its powers reserved to it to maintain its streets in a safe condition for the public use, the municipality is the judge for the necessity for repairing the pavement and repaving its streets, and its rights to do so cannot be surrendered: and it may impose such reasonable requirements upon the grantees of franchises given to street railways as to conform with changes which may be determined to be necessary and essential for the protection of the public.

The remaining question to be considered is the question of the unreasonableness of the requirement of the municipality in the changes imposed upon the respondent. Considering the situation as of the time when the respondent was notified and requested to conform with these requirements, this court cannot hold that they were unreasonable. Clearly not as to the requirement to put a pavement between the rails similar to that on the balance of the paved street, for the reason that it is apparent that to have a uniform pavement the whole width of the street would be the most satisfactory and safe. It is conceded that to bring the track to a uniform grade with the new pavement was not unreasonable. The other requirement, relative to cutting the ties projecting beyond the stringers under them, was before this court in the case of City of Detroit v. Railway Co., supra, which is now a portion of respondent’s system, where the same contention of unreasonableness was made; and it was held by the court that such requirement was not unreasonable. It is true that that decision might have been based partly upon a concession made in the case; but the same conditions upon which the court then acted are present in the instant case. In our opinion, the requirement was not unreasonable.

The order of the court dismissing the petition is reversed, and a writ of mandamus will issue according to the prayer of the petition.

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