text:
    MILLER v. TOLES.
    1. Physicians and Surgeons — Amputation — Malpractice—Negligence — Method oe Treatment.
    Plaintiff was injured in falling from a scaffold. After being treated for a sprain by another physician and after consulting two me.dical practitioners who tried various methods of treatment, plaintiff’s attending physician called in the defendant to obtain his advice whether amputation would be necessary. It was determined in consultation to attempt to save the limb by means of hypodermic injections, known as the Murphy treatment. The method of treatment was not generally accepted by physicians but was undertaken as a last resort to save the foot. The remedy was one which had in certain instances produced good results. Held, that defendant’s inability to save the limb and the fact that subsequent amputation became necessary did not render the defendant responsible for alleged negligence or malpractice.
    2. Same — Skill Required.
    In the treatment of a broken or diseased limb the contract implied between surgeon and patient is not to restore it to its natural condition, but to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the,profession in similar localities, having consideration for the state of medical art at the time and place.

    3. Same — Expert or Opinion Evidence.
    The failure of plaintiff to produce any expert or lay witness who could testify that the course pursued by defendant was improper, or that it in any way contributed to the loss of plaintiff’s foot, the evidence tending further to prove that the effect or injury complained of might have resulted from an exploratory operation, which it was contended that defendant undertook to perform, justified the trial court in directing a verdict against the plaintiff and in refusing to permit the jury to draw any inference of negligent conduct.

      Error to Ingham; Wiest, J.
    Submitted October 13, 1914.
    (Docket No. 80.)
    Decided December 18, 1914.
    Case by Charles M. Miller against Louis W. Toles for malpractice. Judgment for defendant on directed verdict. Plaintiff brings error.
    Affirmed.

      William, A. Fraser and W. H. Howard (E. H. Lyons, of counsel), for appellant.

      Cummins, Nichols & Rhoads, for appellee.

       The authorities on the question of the degree of care and skill required of a physician are gathered in a note in 37 L. R. A. 830.

   Brooke, J.

This is an action for malpractice against defendant, who is a surgeon in active practice in the city of Lansing. The record discloses the following material facts: The plaintiff was injured as the result of a fall from a scaffold on the 24th day of August, 1909. His ankle was badly sprained, and perhaps otherwise injured. He immediately called a physician, Dr. Tooker, who prescribed a liniment which plaintiff applied for some three or four weeks. He later went to Dr. Tooker’s office where the ankle was examined, and the injury pronounced to be a bad sprain. The plaintiff continued to use a liniment upon the limb during the fall of 1909 and the winter of 1909-10. He did some work during this period, but found that when he worked the swelling in his ankle would become greater, and when he stopped work it would subside, in some measure. In the spring of 1910 plaintiff consulted Dr. Hagadorn, a physician of Lansing, who made an X-ray photograph of the ankle. Dr. Hagadorn prescribed different medicines, among them iodine, which was applied externally. Dr. Hagadorn’s treatment was continued a week or two, but the ankle did not respond to the treatment or grow better. In June, 1910, plaintiff consulted Dr. Nottingham, also of the city of Lansing. This physician also took an X-ray photograph of the ankle, and later put the injured member in a plaster cast. This was worn two weeks, taken off, and a second one applied. The second one was worn about three weeks, when it was removed. The ankle was no better. Plaintiff then consulted Dr. Gordon, who treated the injured limb with a hot solution and bandaged it. The swelling became somewhat reduced under this treatment, and during the summer of 1910 plaintiff was able to do some little work. During September of 1910 he undertook to perform ordinary labor, but found that the ankle became extremely painful and very badly swollen, so that he was forced to desist. By November 19, 1910, the ankle had assumed such a condition that Dr. Gordon, the attending physician, advised plaintiff his case was one which demanded surgical rather than medical treatment. Dr. Toles, the defendant, was thereupon called in consultation. What occurred at this consultation is set out in the testimony of Dr. Gordon who was sworn as a witness for plaintiff. In part, he testified as follows:

“I thought the condition at that time justified, and called for, amputation. That is why I called in a surgeon. I told Mr. Miller that I considered the case surgical. I called the surgeon for the purpose of consultation about the patient and advised what to do, but had in view an amputation. It was my judgment that the joint had become useless, and there was no use treating it any longer. Dr. Toles and I made a very careful examination- of the joint, and the doctor said to the patient that he could not promise him anything, but' that there was some chance of saving it. I think he made a remark like that. I knew in a general way of this Murphy treatment. I knew that it was reported in the journals that it had in some instances accomplished remarkable results. I knew that it was a treatment that was being used by Dr. Murphy, of Chicago, for chronic inflammatory condition of joints. Dr. Murphy is very famous as a surgeon of the joints. After the treatment the temperature came down. Along in the early part of February the limb resumed a condition similar to that in which the limb was at the time I called Dr. Toles. There was no time when the limb became anything like normal. Even at the time when the temperature came down and there was some subsiding of the enlargement, it was still greatly enlarged all the time. Even after the exploratory examination I still thought that amputation was advisable. While he was still under the anaesthetic I remarked that it should be taken off. I don’t know just why I said that because the case was really Dr. Toles’ case, and yet I had been interested in the case. I examined the tissues and looked at the leg, and I remarked in a kind of aside— I remembered saying it was better off than on. I did not consider that the ankle would ever become useful. I did not pose as an expert surgeon or anything of that kind. It was just simply my own notion of it.”

As a result of the consultation, it was determined by the defendant to attempt to save plaintiff’s foot and ankle by the use of what is known as the “Murphy Treatment.” This consists in the injection, by means of a hypodermic syringe, of a solution, the nature of which is not disclosed by the record. The first of these injections was administered November 20, 1910; the second December 3, 1910; and the third December 30, 1910. At the time the first injection was administered, the plaintiff’s temperature was about 102°, indicating, probably, that the diseased condition of the ankle was causing a serious constitutional disturbance. It was doubtless this fact which induced the belief expressed by Dr. Gordon that the plaintiff’s life could be saved only by amputation of the diseased limb. As a result of the injections, plaintiff’s high temperature subsided. After each injection, however, plaintiff suffered severe pain, which lasted from one to three days, requiring the administration of opiates for its relief. No marked improvement followed the use of the injection and on February 14, 1911, it was determined to undertake an exploratory operation. This was performed, and the bones on the inside of the ankle were laid bare for examination. The condition in which they were found is not disclosed by any expert testimony, although plaintiff testifies that he was assured by the defendant that the bones were all right and that a complete cure would follow. However, the ankle did not improve, but continued to grow markedly worse, until on August 7, 1912, about 18 months after the exploratory operation, plaintiff’s condition became so alarming (his temperature having arisen to about 104°) that it was obvious an amputation must be resorted to or he would certainly die. The foot was therefore, upon that date, cut off.

It appears from the record that four doctors were sworn on behalf of plaintiff, although the testimony of but two of them, Dr. Gordon and Dr. Holm, is set out therein.

Briefly stated, it was the claim of the plaintiff that the defendant was guilty of malpractice:

(1) In administering the injections which he describes as an experimental remedy; (2) in failing to relieve plaintiff’s pain after the administration of the several injections; (3) in carelessly and negligently conducting the exploratory operation in such a manner as to cut the muscles and tendons on the inside of the injured ankle, and in failing to support the same properly after the operation, so that plaintiff’s foot gradually turned outwards, and when his 'weight was imposed upon it, the foot turned completely over.

Upon the conclusion of the plaintiff’s case a verdict was directed for the defendant, upon the ground that the record contained no evidence tending to show that the treatment administered by the defendant in any of the particulars charged in the declaration was improper or conduced in any way to the loss of the plaintiff’s foot. It is obvious from an examination of this record that at the time Dr. Toles was called plaintiff’s ankle was in an extremely serious condition. It was in such a condition as, in the opinion of his attending physician, demanded amputation. Under these circumstances defendant tried a remedy which appears to have been known and approved by the profession, though perhaps not generally, and which in some instances of diseased joints had achieved remarkable results. It is apparent from the testimony of Dr. Gordon, the plaintiff’s own witness, that a favorable result from such treatment was scarcely to be expected; at most, it could only be hoped for. Inasmuch as the only alternative at that time was immediate amputation, it would, in our opinion, be a strange application of the law which would hold defendant responsible for its failure. In treating a broken or diseased limb, the implied contract between the surgeon and patient is not to restore it to its natural condition, but to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities, giving due consideration to the state of the art at the time. 30 Cyc. p. 1573, n. 35; 39 Cent. Dig. title “Physicians and Surgeons,” §28.

While the facts touching plaintiff’s injury and his subsequent treatment, step by step, are set out in the record by witnesses both lay and expert, there is absolutely no testimony from any witness in the record that the course pursued by the defendant was improper or contributed in any degree to the loss which the plaintiff suffered. No witness, lay or expert, testified that, under the circumstances of the case, the administration of the so-called Murphy treatment was not warranted. No witness, lay or expert, testified that, in making the exploratory operation, the muscles or tendons holding the foot in place were severed by the defendant. There is no testimony tending to show that the gradual turning of the foot, during the months succeeding the exploratory operation, was the result of that operation, rather than the result of the antecedent injury. It appears to be the contention of the plaintiff that, having laid before the jury the facts surrounding the injury, the subsequent treatment, and the ultimate loss of the limb, the jury, in the absence of all testimony of an expert character tending to show malpractice, should be permitted to draw inferences of negligent conduct on the part of. defendant. We have had occasion, very recently, to pass upon this identical question. In the case of Farrell v. Haze, 157 Mich. 374 (122 N. W. 197), the following request to charge was submitted on behalf of the defendant:

“The question whether the loss of the plaintiff’s foot was attributable to anything that the plaintiff claims the defendant did or omitted to do is a scientific question, which the jury cannot determine for itself, and can only be answered by an expert; and, inasmuch as no expert or medical man or surgeon has stated that the loss of the foot, in his opinion, came from anything the defendant did or omitted to do, therefore I charge you that you cannot take the loss of the foot into consideration in this case or hold the defendant liable therefor.”

We held, at page 392 of 157 Mich. (122 N. W. 107), that the preferred request should have been given. Upon the same point see, also, Wood v. Barker, 49 Mich. 295 (13 N. W. 597); Mayo v. Wright, 63 Mich. 32 (29 N. W. 832); Spaulding v. Bliss, 83 Mich. 311 (47 N. W. 210); and Neifert v. Hasley, 149 Mich. 232 (112 N. W. 705).

We are of the opinion that the circuit judge properly directed a verdict for defendant, and the judgment will stand affirmed.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    PEOPLE v. BRAZEE.
    1. Constitutional Law — Title of Act — Employment Agency.
    The title of Act No. 301, Pub. Acts 1913, “An act to provide for the licensing, bonding and regulation of private employment agencies, the limiting of the amount of the fee charged,” etc., also regulating and fixing a license fee for such agencies, is sufficient under the State Constitution.
    2. Same — Police Power — Regulation of Business.
    The “police power” is said to be a power or organization, of a system of regulations tending to the health, order, convenience, and comfort of the people and to the prevention and punishment of injuries and offenses to the public. It is the expression of an instinct of self-preservation and characteristic of every living creature, an inherent faculty and function of life, attributed to all self-governing bodies as indispensable to their healthy existence and to the public welfare. It embraces all rules and regulations for the protection of life and the security of property.

    3. Same — Power of Regulation.
    The business is one which justifies the exercise of the police power to regulate or control it, since persons dealing with them may be exposed to misfortunes from which he cannot be adequately protected without such regulation.
    4. Same — Amount of License Fee.
    The imposition of a license fee of §100 is not an oppressive, arbitrary exaction so as to affect the validity of the statute: the amount is within a lawful exercise of legislative discretion.
    5. Same.
    The commissioner of labor has authority to prorate -the annual fee for such portion of the period as u license may cover. -

      6. Same — Local Legislation — General Law.
    It cannot be held that the provisions of the statute wbich limit the fee of $100 to cities of over 200,000 inhabitants renders the act unconstitutional as local legislation, notwithstanding that only one city exceeds the limit of population so named.
    7. Same — Commissioner oe Labor.
    It cannot be held that the provisions of the statute wbich limit the fee of $100 to cities of over 200,000 inhabitants renders the act unconstitutional as local legislation, notwithstanding that only one city exceeds the limit of population so named.
    Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J.
    Submitted November 5, 1914.
    (Docket No. 159.)
    Decided December 19, 1914.
    Le Roy Brazee was convicted of violating the statute regulating employment agencies.
    Affirmed.

      Grant Fellows, Attorney General, David H. Crowley, Assistant Attorney General, and Allan H. Frazer, Prosecuting Attorney, for the people.

      Proctor K. Owens, for respondent.

       The question of police power to license employment agencies is discussed in notes in 2 L. R. A. (N. S.) 859 and 21 L. R. A. (N. S.) 263.

   Brooke, J.

Respondent stands convicted of a violation of the provisions of Act No. 301 of the Public Acts of 1913, relating to the licensing, bonding, and regulation of private employment agencies. The act provides:

“Section 1. No person, firm or corporation in this State shall open, operate or maintain a private employment agency where a fee is charged to persons seeking employment, without first obtaining a license for the same from the commissioner of labor, and the fee for such license shall be $25.00 per annum except in cities over 200,000 population, where it shall be $100.00 per annum. Every license shall be void after the thirty-first day of December of the year in which it was issued. The form of the license shall be fixed by the commissioner of labor and it shall be nontransferable. The license may be revoked by the commissioner of labor whenever, in his judgment, after full hearing, the licensed agency shall have violated any of the provisions of this act. The commissioner of labor is hereby charged with the enforcement of the terms of this act and empowered to make such rules or regulations as are consistent with it and aid in its enforcement and he shall direct copies or excerpts of this act to be kept conspicuously posted in every licensed agency. The commissioner of labor shall turn into the State treasury all fees collected under this act.”
Section 2 provides for a surety bond in the penal sum of $1,000. Section 8 requires the employment agency to keep certain records. Section 4 requires such agency to give receipts for fees paid. Section 5 provides for a limitation upon such fees and for their repayment under certain contingencies. Sections 6 and 7 prohibit certain practices. Section 8 provides for a penalty, which may be either fine or imprisonment.

Respondent avers that said act is unconstitutional and void, for many reasons which we find it unnecessary to enumerate at large in this opinion. It may be said, generally, that the claim of the respondent is:

(1) That the title of the act is insufficient.

(2) That the fee charged is a tax and as such lacks the equality or uniformity demanded by the Constitution.

(3) That it is unreasonable, oppressive, prohibitory, and not regulative.

(4) That it vests arbitrary, executive, legislative,- and judicial power in the State labor commissioner to say whether any man may engage in this lawful business.

(5) That it is discriminatory class legislation.

Other reasons are urged, which we believe may fairly be considered as covered by those above set forth.

With reference to the first contention, we think it is sufficient to say that in our opinion the title is sufficient and does not offend section 21 of article 5 of the Constitution.

The other reasons urged for holding the act unconstitutional, with the exception of No. 4, may be treated together.

The “police power” is said to be a power or organization of a system of regulations tending to the health, order, convenience, and comfort of the people and to the prevention and punishment of injuries and offenses to the public. It is the expression of an instinct of self-preservation and characteristic of every living creature, an inherent faculty and function of life, attributed to all self-governing bodies as indispensable to their healthy existence and to the public welfare. It embraces all rules and regulations for the protection of life and the security of property. 28 Cyc. p. 692; 31 Cyc. p. 902. It has for its object the improvement of social and economic conditions affecting the community at large and collectively with a view to bring about “the greatest good of the greatest number.” Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction.

This court has had frequent occasion to examine legislative enactments whose validity rests upon a proper exercise of this power. Among these are the following: With respect to meat dealers, Ash v. People, 11 Mich. 347 (83 Am. Dec. 740). Regulating the manufacture and sale of bread, People v. Wagner, 86 Mich. 594 (49 N. W. 609, 13 L. R. A. 286, 24 Am. St. Rep. 141). Regulating pawnbrokers, City of Grand Rapids v. Brandy, 105 Mich. 670 (64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472). Hawkers and peddlers, City of Muskegon v. Zeeryp, 134 Mich. 181 (96 N. W. 502). Regulating the sale of goods in bulk, Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409 [affirmed in 217 U. S. 461 (30 Sup. Ct. 606)].

It is the contention of counsel for respondent that respondent is engaged in a lawful and useful occupation, and that in consequence thereof the legislature was without power to regulate said business as it attempted to do by means of the act in question. In support of this position, the case of People, ex rel. Valentine, v. Berrien Circuit Judge, 124 Mich. 664 (83 N. W. 594, 50 L. R. A. 493, 83 Am. St. Rep. 352), is cited. It is there said:

“The legislature of this State is not empowered by the Constitution to regulate contracts between its citizens who are engaged in legitimate commercial business, or to require any class of persons to pay a fee for the right to carry on business, or to give a bond to perform their contracts which other parties may choose to make with them. The Constitution guarantees to citizens the right to engage in lawful business, unhampered by legislative restrictions, where no restrictions are required for the protection of the public.”

There can be no doubt of the soundness of the principles enunciated in the foregoing quotation. The point in issue is whether the business carried on by the respondent is one which may properly be regulated by the legislature through the exercise of the police power, in the interests of the public.

This question was considered by the Supreme Court of the United States in the case of Williams v. Fears, 179 U. S. 270 (21 Sup. Ct. 128). Mr. Chief Justice Fullee, writing the opinion for the court there, says:

“It would seem, moreover, that the business itself is of such nature and importance as to justify the exercise of the police power in its regulation. We are not dealing with single instances, but with a general business, and it is easy to see that if that business is not subject to regulation, the citizen may be exposed to misfortunes from which he might otherwise be legitimately protected. Nor does it appear to us that the objection of unlawful discrimination is tenable.”

In the case of Price v. People, 193 Ill. 114 (61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306), the court had under consideration section 10 of an act of the general assembly entitled in part “for the regulating of private employment agencies.” (Hurd’s Rev. Stat. 1899, chap. 48, § 62.) This act provided for a license fee of $200, and the execution of a bond in the penal sum of $1,000. That court determined that the act contravened neither the State nor the Federal Constitution. It is there said:

“It is an attribute of sovereign power to enact laws for the exercise of such restraint and control over the citizen and his occupation as may be necessary to promote the health, safety, and welfare of society. This power is known as the police power. * * *
“That the public welfare demands legislation prescribing regulations and restrictions to'protect against the evils of imposition and extortion which have manifested themselves in the conduct of private employment agencies is not controverted by counsel for plaintiff in error.”

In that case, as in the case at bar, it was contended that the license fee of $200 was an oppressive arbitrary exaction. While affirming the right of the court to pass upon the reasonableness of the license fee exacted, it was held that, where the fee was imposed by an act of the general assembly, the court should proceed with great hesitation and caution in passing upon the validity of the enactment.

The same law, in its entirety, was considered by the Illinois supreme, court in the case of Mathews v. People, 202 Ill. 389 (67 N. E. 28, 63 L. R. A. 73, 95 Am. St. Rep. 241). The court there held the entire act to be unconstitutional, but upon grounds not affecting the question at issue in the instant case.

Counsel for respondent cite and rely upon the case of State v. Moore, 113 N. C. 697 (18 S. E. 342, 22 L. R. A. 472). The question was again before the supreme court of that State in the case of State v. Hunt, 129 N. C. 686 (40 S. E. 216, 85 Am. St. Rep. 758), where the holding in the earlier case was distinctly overruled.

In the case of Moore v. City of Minneapolis, 43 Minn. 418 (45 N. W. 719), a municipal ordinance enacted in pursuance of legislative authority, which required a license fee in the sum of $150, was considered and upheld. In a later case (Moore v. City of St. Paul, 48 Minn. 331 [51 N. W. 219]), a license fee of $150 was held invalid upon the ground that it was not apportionable; that is, the applicant, according to the terms of the regulation, was obliged to pay $150 without regard to the time of year at which the application was made, all licenses expiring on the 1st of January.

The infirmity of this provision, if it be conceded to be such, is not found in the act now under consideration. The provision of section 1 is that:

“The fee for such license shall be $25.00 per annum, except in cities over 200,000 population, where it shall be $100.00 per annum.”

Under this provision we think it clear that the commissioner has authority to pro rate the fee according to the period covered by the license.

It was contended in the case of People, ex rel. Armstrong, v. Warden of City Prison, 183 N. Y. 223 (76 N. E. 11, 2 L. R. A. [N. S.] 859, 5 Am. & Eng. Ann. Cas. 325), that an ordinance requiring the payment of a license fee of $25 was unconstitutional, as being in conflict with both the State and Federal Constitutions. The court sustained a conviction under said ordinance on the ground that the character of the business was such as to warrant proper regulation in the exercise of the police power.

In the case of Ex Parte Dickey, 144 Cal. 234 (77 Pac. 924; 66 L. R. A. 928, 103 Am. St. Rep. 82, 1 Am. & Eng. Ann. Cas. 428), the supreme court of that State had under consideration a law limiting the compensation to be received by employment agents, which limitation was practically the same as that provided for in section 5 of the act under consideration. It was there held that the regulation was unwarranted and that the business was “not only innocent and innocuous, but highly beneficial, as tending the more quickly to secure labor for the unemployed.”

A like result was reached in the case of City of Spokane v. Macho, 51 Wash. 322 (98 Pac. 755, 21 L. R. A. [N. S.] 263), the decision going upon the ground that the regulation was not general and impartial in its operation, but preyed upon one class to the exclusion of others in respect to a penal act common to all classes of business, and exceeded the reasonable limit of police regulation. See, also, Shepperd v. County Commissioners of Sumpter, 59 Ga. 535 (27 Am. Rep. 394); State v. Napier, 63 S. C. 60 (41 S. E. 13).

From a careful consideration of all the authorities, we have reached the conclusion that the business is one properly subject to police regulation and control. The character of those with whom the business is likely to be conducted, in point of capacity for self-protection from fraudulent practices, is such that the legislature might very properly determine that a license system should be adopted, to the end that dishonest and disreputable persons might, in a measure, be excluded from a right to engage in the business and means afforded for the detection of fráud and the redress of wrongs. It seems clear that the character of the business is such as to facilitate the practice of fraud upon the ignorant and credulous. •

Nor are we prepared to say that the license fee imposed is excessive. The record contains no evidence tending to show the cost of inspection or enforcement of the terms of the act. Under the circumstances, we are disposed to the view that the sum charged for the license is within the legislative discretion.

The contention of the respondent that the act in question violates article 5, § 30, of the State Constitution, in that under the guise of a general act it is really local legislation, is, in our opinion, untenable. It is true that it provides for a license fee of $100 in cities containing over 200,000 population, and but $25 in other cities, and it is likewise true that at the present time there is but one city in the State of Michigan which has a population of more than 200,000. This fact, however, is not necessarily controlling. The act operates upon all citizens alike, except that a larger sum is charged for the license in larger cities than in smaller ones. Wherever the fee for the license is charged primarily for the purpose of regulation and not for the purpose of revenue, a variable sum may be fixed to meet the varying conditions under which the licensee operates. 25 Cyc. p. 608, and cases cited in note 74. It may well be that the legislature appreciated the fact that inspection for the purpose of proper regulation in large cities would be much more expensive than such inspection in smaller cities, and that the larger sum was fixed for the purpose of meeting such added expense of administration.

4. There remains for consideration only the question whether the act confers upon the commissioner of labor arbitrary powers judicial in their character.

The legislature frequently delegates to boards or commissions the right and power to determine certain facts upon which action is based, and this power has frequently been challenged in our own and other courts. It was considered in this State in the case of Feek v. Township Board of Bloomingdale, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69), where it was determined that the local option law was valid against the objection that it conferred judicial power upon the board of supervisors. And again in the case of Sherlock v. Stuart, 96 Mich. 193 (55 N. W. 845, 21 L. R. A. 580), where the power to determine the question as to whether an applicant was a suitable party to have a license to conduct a saloon was delegated.

The exact point was determined contrary to the contention of respondent in the case of Kennedy v. State Board of Registration, 145 Mich. 241 (108 N. W. 730, 9 Am. & Eng. Ann. Cas. 125). The act there under consideration conferred upon the State board of registration the right to—

“Revoke the certificate of registration, after due notice and hearing of any registered practitioner who inserts any advertisement in' any newspaper, pamphlet, circular, or other written or printed paper, relative to venereal diseases or other matter of any obscene or offensive nature derogatory to good morals.”
It was there urged that the authority delegated was judicial in character, and therefore unconstitutional. In an exhaustive opinion, supported by many authorities, this court denied the contention, and held that the power delegated is not judicial in character and that—
“If, through nonobservance of the statute, complainant or any other physician is deprived of a constitutional right, there is nothing therein which prevents his obtaining adequate redress in a court.”

It is to be presumed that public officials will perform their duty without prejudice or dishonesty* Their failure to act within the limits of their delegated authority may be reviewed in a proper forum.

In the late case of Michigan Central R. Co. v. Railroad Commission, 160 Mich. 355 (125 N. W. 549), the legislation was attacked upon the ground that legislative power was conferred upon the commission. We there said, speaking through Mr. Justice Stone, at page 362 of 160 Mich. (125 N. W. 551):

“It is held that the functions and duties of such commissions are administrative or ministerial, and neither legislative, executive, nor judicial.”

Upon this question, see, also, Union Bridge Co. v. United States, 204 U. S. 364 (27 Sup. Ct. 367); Hubbell v. Higgins, 148 Iowa, 36 (126 N. W. 914, Ann. Cas. 1912B, 822); State v. Railway Co., 76 Kan. 467 (92 Pac. 606); Oregon, etc., Navigation Co. v. Campbell (C. C.), 173 Fed. 957; and Railroad Commission Cases, 116 U. S. 307 (6 Sup. Ct. 334, 388, 1191).

We are of opinion that the act in question is a valid exercise of the police power of the State, and that the judgment must be affirmed.

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


author: Steere, J.

text:
    PEOPLE v. CARLOS.
    1. Seduction — Promise to Marry — Evidence.
    As a foundation for a criminal prosecution for seduetion, under a promise of marriage, it is essential to prove an unconditional promise: a statement that the accused would marry complaining witness if pregnancy resulted does not sustain the charge, as such a promise has no tendency to overcome the natural sentiment of chastity.

      2. Same — Trial—Cross-Examination—Evidence.
    Where the complaining witness testified in justice’s court that the accused agreed to marry her if she should become pregnant, and later, in circuit court, testified that he promised unconditionally to marry her, the attorney for the respondent should have been allowed considerable latitude in the cross-examination of such witness, and the trial court committed prejudicial error in refusing to permit him to ask the witness whether the promise was or was not based on the said condition, although he had already examined the witness along the same line, and the question was objected to on the ground that she had been fully questioned as to the point.
    3. Same — Requests to Charge — Trial.
    The accused was also entitled to have the jury instructed, as requested by him, that if the promise made was, in fact, as she had testified in the preliminary examination, upon the condition that if anything happened, respondent would marry her, the verdict should be for acquittal.
    Error to Genesee; Wisner, J.
    Submitted November 5, 1914.
    (Docket No. 157.)
    Decided December 18, 1914.
    Robert Carlos was convicted of seduction.
    Reversed.

      Grant Fellows, Attorney General, Clifford A. Bishop, Prosecuting Attorney, and William, W. Blackney, Assistant Prosecuting Attorney, for the people.

      Lee & Parker, for respondent.

       Upon the question of promise of marriage conditioned on pregnancy as affecting seduction, see note in 51 L. R. A. (N. S.) 809.

   Steere, J.

At the February, 1914, term of the circuit court of Genesee county respondent was tried and convicted of having, on a certain day of the previous month of September, seduced an unmarried woman named Bessie Howk. The offense was charged under section 11694, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14779), which provides that it shall be a criminal offense punishable by imprisonment or fine for any man to “seduce and debauch an unmarried woman.”

The numerous assignments of error for which a reversal is asked range over and center around the propositions that a verdict should have been directed because the facts proven did not establish the offense charged; because of unwarranted statements by the prosecuting attorney and the attitude of the court in assisting the prosecution during the trial; because of erroneous rulings in the admission and rejection of, testimony; and particularly because of errors in the charge and refusal to give respondent’s requests, in the light of such rulings upon the testimony.

It was and is the claim of the prosecution that an unequivocal promise to marry was the inducement by which the offense was accomplished. It is contended in behalf of respondent that it was, as shown by prosecutrix’s own testimony, at most but a conditional promise to marry her in the event she became pregnant; that seduction cannot be predicated upon such a promise, and a verdict should have been directed for the defense; that, even conceding the testimony raised an issue in that particular, the court erroneously curtailed cross-examination of prosecutrix and failed to properly instruct the jury upon such issue. The last contention calls for serious consideration. We are well satisfied there was testimony in the case tending to prove the essential facts constituting the offense charged, the weight of which was for the jury under carefully guarded instructions, and the court committed no error in refusing to direct a verdict for the defense.

Stated in outline, testimony introduced by the prosecution showed, or tended to show, that at the time of the alleged offense the prosecutrix and respondent both resided in the city of Flint on different streets. He was a recent arrival, and had located in a rooming house on a street in a neighborhood, where there were fortune tellers, living with a woman called “Princess Carlos,” who was practicing the art of palmistry. They represented themselves to their landlady and others as husband and wife. Prosecutrix had been a resident for about two years and was working as a domestic in a private family. She was a woman 26 years of age, who had lived and worked as a domestic in Chicago, Flint, and other places since she was 11 or 12 years old. She was of scant mental vigor and overcredulous, as her manner of testifying and contradictory statements indicate, and is shown to have first met respondent when visiting the neighborhood where he resided to consult a nearby fortune teller named Mann in regard to some of her love affairs. While stopping on the sidewalk to read a sign of a hand on a post she saw respondent on the porch of what proved to be his and Princes^ Carlos’ residence, and he accosted her. Either divining or being informed of her mission, he invited her in to consult the Princess Carlos, who he stated was his mother. She then went in to have a talk with the woman and gave her a dollar for a “reading,” which, it so happened, was interrupted by an officer appearing on the scene and taking the Princess to the city hall. She accompanied the officer and Princess to the steps of the city hall, not knowing, as she states, the Princess was under arrest, and being advised by the officer that she did not have to go, she then went home. In the evening she returned to the house where the reading was interrupted, and found they were not in, but later met respondent on the street and finally went to his boarding house with him. The acquaintance thus begun rapidly ripened into an intimacy resulting in an engagement and her seduction that night. On direct examination she was asked and answered:

“Q. Did he ever take any improper liberties with you?
“A. Yes, in the room. * * *
“Q. Did he ever succeed in having intercourse with you?
“A. Yes, under the promise of marriage, .the very same night.
“Q. Is that the way I understand the matter, he did not succeed in having intercourse with you until after he had promised to marry you?
“A. Yes.
“Q. Would you have yielded to his embraces had he not promised to marry you?
“A. No.”

The record contains much more of her testimony along this line, bearing upon their intimate relations, to the effect that she was not certain whether it was the first night, nor of the date; that she only yielded because of his repeated promises to marry her; that in anticipation of their marriage she gave him her wages; that he explained the absence of his mother by claiming she was in Lansing to get a license for her palmistry; and that their intimacy resulted in her getting in a delicate condition, after which, he disappeared.

Being questioned in cross-examination as to their conversation and promises made by respondent at the time of the alleged seduction, prosecutrix stated that she told him she would not have intercourse with him because she was afraid she would get into trouble; and, being asked if he did not tell her if anything happened he would marry her, she at first answered: “No, he promised to marry me.” When the question was repeated, reference being had to her testimony in justice’s court, after remarking that she might have made a mistake, she answered:

“Yes; he didn’t say that then. He promised to marry me — then told me that afterwards.”

Later attention was called to her testimony taken on the preliminary examination in justice’s court, and, portions of it being read to the effect that it was on account of such conditional promise that she consented to the intercourse, and the following question was finally asked her:

“Q. Now, witness, the agreement with Mr. Carlos and you was, in case you became pregnant he would marry you?”

—which was objected to by opposing counsel “as having been gone over twice and ruled out twice by the court,” whereupon the court said: “That is true. I sustain the objection” — thus ending the inquiry upon that branch of the case.

On behalf of respondent the court was especially requested to instruct-the jury upon the question of a conditional promise, and, amongst others, the following request was presented and refused:

“I further charge you that, if the testimony given by the complaining witness in justice’s court is true and the promise of marriage relied upon in this case was that the respondent should marry prosecutrix should she become pregnant, [it] is not seduction.”

The court, in his charge, recognized the , general rule, but in language which, it is urged, not only failed to advise the jury of its application to this case, but amounted to an intimation that it was of little importance. The portion of the charge where the subject is referred to is as follows:

“Now, our courts have held that it is not necessary even that there should be a promise of marriage in order to constitute the offense charged in this case, seduction, that any deceit or any species of persuasion that leads the mind of the woman astray and leads her from the paths of virtue by some inducement held out to her, the courts hold that is seduction, but they do hold that where it is based purely and only upon a promise to marry in case the prosecutrix should become pregnant, that promise, a bare promise of that kind, will not constitute the offense of seduction. But in this case, if you find beyond all reasonable doubt that this girl was virtuous before that time, and the law presumes that she was, and I do not recall any testimony in this case that she was not, then you further find that she objected to intercourse with this man and stated to him that she would not have intercourse unless he would agree to marry her, and, having made that statement, he then had intercourse with her under a promise that he would marry her, then the offense would be complete.”

In People v. Smith, 132 Mich. 58 (92 N. W. 776), where it is held that a respondent cannot be convicted of seduction when the only inducement to procure the illicit intercourse was a promise to marry the woman if she became pregnant, it is said:

“Such a promise has no tendency to overcome the natural sentiment of virtue and purity. The woman who yields upon such a promise is in no better position than as though no promise whatever had been made. No wrong is done her if she is put in the class with those who commit the act to gratify their desire. She was willing to lose her virtue if some provision was made to conceal its loss.”

The testimony of the prosecutrix made this question a pertinent and important one in the case, upon which the defense was not only entitled to fully examine her, but was also entitled to have the jury fully instructed as to their duty, according as they found the facts on that particular point.

It was shown that prosecutrix testified in her preliminary examination before the justice that respondent had promised, if anything happened to her, in the particular mentioned, he would marry her, and that it was on account of such promise she consented. On the trial she testified that his promise was unconditional; that she might have made a mistake in her previous testimony, but he made the positive promise, and “then told me that afterwards.” The record shows that the defense was allowed to partially examine her upon such apparent contradictions, and then when the direct and legitimate question squarely covering that issue was asked, the court sustained an objection to it on the ground that it had already been gone over twice and ruled out twice by the court, making, according to the statement of the prosecuting attorney and court, in the presence of the jury, three times in all that such inquiry was held inadmissible. The record before us may be incomplete, for it fails to disclose that this question had twice before been asked or ruled upon, but it was. so stated by court and counsel, and further inquiry was stopped by the ruling referred to. With that as the last word in examination of the witness as to- a conditional promise, it cannot be said that a bare statement of the general rule upon the subject in the charge, in the connection it was made, sufficiently advised the jury of its relevancy to the case, and the manner in which it was their duty to consider it when passing upon the testimony. Conceding that in the objection it was intended to say, and the court in its ruling intended to hold, and by what was said all there understood that the subject had been twice before gone over and exhausted to a point where it was within the discretion of the court to restrain annoying and time-consuming repetition (a state of affairs, however, which we cannot find the record discloses), it was nevertheless incumbent upon the court, in view of what had occurred and the testimony before it, to give defendant’s request upon that subject, and to more fully and unequivocally instruct the jury upon that material issue. The line of inquiry to which the rejected question relates was relevant and material under the law of seduction, the question was pertinent and in proper form to be asked upon cross-examination, and upon the face of this record we can discover no reason for its rejection, and are constrained to conclude that the ruling sustaining such objection was prejudicial error.

Of the remaining assignments of error, those which might, under other circumstances, call for serious consideration involve questions not likely to arise upon a retrial, and we, therefore, refrain from discussing them.

For the foregoing reasons we are impelled to the conclusion that the present verdict and judgment of sentence cannot be sustained. They are therefore set aside, and a new trial granted.

McAlvay, C. J., and Beooke, Kuhn, Stone, Osteandee, Bied, and Mooee, JJ., concurred.


author: Moore, J.

text:
    ASPEGREN FRUIT CO. v. ROBINSON.
    Contracts — Modification—Evidence.
    Evidence considered in an action for 'breach of a contract to buy apple waste, being a series of letters between the parties, and held, not to establish an agreement to modify the original contract of sale.
    Error to Berrien; Bridgman, J.
    Submitted November 4, 1914.
    (Docket No. 125.)
    Decided December 18, 1914.
    Assumpsit by the Aspegren Fruit Company against John Robinson for breach of a contract of sale. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      Cady & Andrews, for appellee.
   Moore, J.

At the close of the testimony of the plaintiff, and again at the close of all the testimony, the defendant asked for a. directed verdict. The case was submitted to the jury. From a verdict and judgment in favor of the plaintiff the case is brought here by writ of error. We quote from the brief of counsel for appellant:

_ “This case is brought to' recover loss of profits occasioned by the alleged failure of the defendants to receive goods according to the terms of certain contracts of sale. _ The defendant claims that the times of shipment stipulated in the contracts of sale were changed by mutual agreement, and under the altered contract he was not required to accept the goods at the time they were tendered by plaintiff. The plaintiff by its pleadings admits that the times for shipment were extended, but contends that it had the right to make shipment at the time the goods were tendered. The only question before this court is: What was the modified agreement between the parties as to time of shipment? To answer this question correctly will require a full statement of facts. * * *
“We submit as follows: That, the plaintiff having broken the contract by demanding that the defendant accept the waste prematurely, the circuit court should have directed a verdict in favor of the defendant; that the circuit court was in error in stating to the jury in his voluntary charge that the defendant was liable to the plaintiff for the difference between the market value and the contract price.”

The contract between the parties is contained in the correspondence which passed between them. We shall quote sufficiently therefrom to understand the situation. A previous order was filled, and is not involved here.

“Contract No.-. July 11, 1912.
“Sold to Robinson Cider, Vinegar & Pickle Co., Benton Plarbor, Mich.
“For account of the Aspegren Fruit Co., Sodus, N. 'Y., five cars (12 to 15 tons each) prime bleached apple waste, crop 1912 at l^c. per lb. f. o. b. shipping point.
“Payment sight draft B/L attached, payable after arrival and prompt examination of goods.
“Shipments between Dec. 15/12 and Feby. 1/13.
“Above to be packed in bags, bags to be returned.
“In all cases f. o. b. sales the buyer hereby assumes the risks of transit upon issuance by carrier of a clean bill of lading or shipping receipt, notwithstanding the goods may be shipped to seller’s order.
“Any complaint as to quality to be made within forty-eight hours after arrival of goods.
“Sellers are not responsible for nonshipments or delay in shipment caused by ‘act of God,’ general strikes, or strikes on transportation lines, nor for errors or delays on the part of postal authorities or telegraph companies, or for acts of the broker not authorized by sellers. Each car load to be considered as a separate contract.
“Accepted by Robinson Cider Vinegar Co. (R).
“Accepted. Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
“Benton Harbor, Michigan, 12/10/12.
“The Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“I wish you would hold back shipment on the waste we bought of you as we are very short of room.
“We are making preparations to take care of it but are not ready yet. Try and hold it until January 15th, if you can.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
“Sodus, N. Y., December 14, 1912.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Michigan.
“Gentlemen:
“Your letter of the 10th received, and in reply we beg to state that we will hold back the waste just as long as we possibly can.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”

Then followed some letters which are not important to the controversy here:

“Benton Harbor, Mich., Dec. 31, 1912.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“We have yours of the 27th with invoice of car of waste. As soon as it arrives we will unload it and remit you.
“Do not ship any more until we order it out for we are stored full. And all our tankage is full and we cannot work it out until we have tank room.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
“Sobus, N. Y., January 4, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“Your letter of December 31st received and was not answered before as the writer was out of town. We note that you do not wish us to ship any more waste until it is ordered out by you. We beg to state, however, that we are perfectly willing to hold this waste as long as we can, although you must not forget that we are also crowded at this time of the year. * * *
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
“Benton Harbor, Mich., 1/6/13.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“Inclosed find check for invoice of Dec. 7th $402.50; also the weight of car.
“Do not ship any more cars until we order it out, for we cannot take care cf it if you ship. It will lay here subject to your order.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
“Sodus, N. Y., January 8, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“Your letter of the 6th received, inclosing check with which we have credited your account.
“We note what you write about not shipping any more waste until you order it out. As we wrote you, we are perfectly willing to hold this waste back as much as we can, but we also pointed out to you that we are crowded for room, and in addition to this we have to pay for this waste, and there is no reason why we should have to pay for and carry waste at an expense to us, when we have it sold to you or any one else. You wrote us some time ago that you were making preparation to take care of this waste, and that we should try to hold it until January 15th, if we could. As we wrote you above, we are perfectly willing to do anything within reason, and are also willing to accommodate you whenever we can and we are willing to hold this waste as long as we can do so, but whenever we find that we will have to ship, we will certainly expect you to live up to your contract and take the waste.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
“Benton Harbor, Mich., 1/13/18.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“We have yours of the 8th in answer to ours of the 6th. We will not receive any more waste until we order it out. So if you ship it, it will lay here subject to your order.
“Respectfully yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
The following telegram was sent:
“Sodus, N. Y., January 30, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, M.
“Referring to your letter thirteenth regarding eight cars waste still due we are willing to hold six cars until February fifteenth provided you let us ship two cars now or willing cancel contracts nine hundred fifty dollars. If you do not agree to this in order protect our legal rights must either hold you difference market value or sell out the waste your account. Wire immediate reply. Collect.
“Aspegren Fruit Co.”
No reply was sent to this telegram, and the following letter was sent:
“Sodus, N. Y., February 7, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“On January 30th we telegraphed you as follows: ‘Referring your letter 13th regarding eight cars of waste still due, we are willing to hold six cars until February 15th, provided you let us ship two cars now or willing cancel contracts $950. If you do not agree to this, in order to protect our legal rights must either hold you difference, market value or -sell out the waste your account. Wire immediate reply. Collect.
“You did not wire us in reply to the above, and we therefore inclose herein bill for difference between the contract price and the market value, amounting to $1,072.50, for which we will thank you- to send us remittance at once.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
Later the following letter was sent:
“Sodus, N. Y., February 17,1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“We beg to refer you to our letter of February 7th, in which we inclose invoice covering difference due us on eight cars of waste. We will thank you to kindly send us remittance to cover same by return mail and very much oblige.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
No reply was sent to this letter', and the claim was put in the hands of an attorney for collection, and later defendant sent the following:
“Benton Harbor, Mich., April 3d.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“Upon my return home from the South, I am notified by Cady & Andrews, attorneys, that you have made a claim against us.
“Now we see no reason for that. As we wrote you, we were stored full and asked you to hold the goods until we could get room. We are crowded yet as our sales are light on vinegar.
“However, you can start shipping the stock, send us two cars a week if convenient for you. Be sure and send us prime stock, made of late winter apples, and be sure that they will not have over 20% dampness; for we will have to carry the stock a long time until we can make tank room to store in.
“If you buy this stock from other parties you must know that it is prime waste.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”

Plaintiff declined to act upon the suggestion contained in this letter, and this suit followed. There were other letters which are not important to the controversy here.

We think this correspondence clearly answers the question we quoted from the brief of counsel, which is stated to be the only question in the case against the contention of defendant. It does not show a change made in the terms of the original contract. The most that can be said of it is that plaintiff was. willing to oblige defendant so far as it could, but it is clear it was all the time insisted by plaintiff:

“But whenever we find that we will have to ship, we will certainly expect you to live up to your contract and take the waste.”

The record does not disclose any reversible error.

Judgment is affirmed.

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


author: MOORE, J.

text:
    PEOPLE v. FITZSIMMONS.
    1. Criminal Law — Trial—Evidence—Access to Records, etc.
    Having granted, to the respondent in a criminal case oppdrtunity to examine hooks and records of the private bank from which it was charged that respondent had embezzled funds, the trial court did not commit error in declining to permit him to have access to certain memoranda in the control of the prosecuting attorney, showing the results of the work of experts or accountants upon the hooks of the bank.
    2. Same — Venue—Change—Motions.
    Refusal of the trial court to grant a change of venue to a respondent charged with embezzlement was not prejudicial or erroneous when the respondent did not exhaust his peremptory challenges at the trial, and his attorney announced that he was satisfied with the jury which was drawn.
    3. Same — Prosecuting Attorney — Adverse Interest — Statute.
    A prosecuting attorney, who was a depositor in the hank from which it was charged the respondent had embezzled funds, was so interested in the case, based on the same state of facts, on the civil side, that he was disqualified from trying the case on the criminal side of the court, under the limitation of 1 Comp. Laws, § 2561 (1 How. Stat. [2d Ed.] § 1152).
    Exceptions before sentence from Gogebic; Cooper, J.
    Submitted November 6, 1914.
    (Docket No. 166.)
    Decided December 18, 1914.
    Matthew A. Fitzsimmons was convicted of embezzlement.
    Reversed.

      James A. O’Neill, Prosecuting Attorney, for the people.

      Herb M. Norris (Frank B. Lamoreux, of counsel), for respondent.
   MOORE, J.

This case comes here on exceptions before sentence.

The respondent was charged and convicted under section 11591, 8 Comp. Laws (5 How. Stat. [2d Ed.] § 14646), which provides:

“If any officer, agent, clerk, servant, employee or lessee of any incorporated company, foreign or domestic, or if any agent, clerk, servant, employee or lessee of any private person, or of any copartnership, except apprentices and other persons under age of sixteen years, or if any attorney at law, collector or other person, who, in any manner, receives or collects money or any other property for the use of and belonging to another, embezzles or fraudulently converts to his own use, or takes and secretes with intent to embezzle and convert to his own use without the consent of his employers, master, or the owner of the money or goods collected or received, any money or property of another or which is partly the property of another and partly the property of such agent, clerk, servant, employee, lessee, attorney at law, collector or other person, which has come to his possession or under his care in any manner whatsoever, he shall be deemed to have committed larceny. * * * Provided, further, that failure, neglect, or refusal of such officer, agent, clerk, servant, employee, lessee, attorney at law, or other person to pay, deliver or refund to the proper person, company or copartnership such money or goods entrusted to his care, upon demand, shall be prima facie proof of intent to embezzle.”

The information charged the respondent, in four counts, with the embezzlement, “on the 22d day of July, A. D. 1907, and on divers other days and times between said 22d day of July, A. D. 1907, and the 20th day of May, A. D. 1912,” of $210,000 of the money and property of his employer, Fritz Karste, which came into his possession by virtue of his employment as agent and servant. A count for larceny was also included in the information, which count was abandoned on the trial.

There are upwards of 600 assignments of error, a record of upwards of 2,000 printed pages, and the briefs of counsel for appellant contain more than 1,000 pages. It is apparent that a smaller record, fewer assignments of error, and much less voluminous briefs would have presented every meritorious question. We shall discuss but few of the assignments of error, and shall quote but little of the testimony.

For many years Fritz Karste of Sheboygan, Wis., was the owner of a bank in the city of Ironwood in this State. For many years respondent was cashier of this bank. Mr Karste died in May, 1912. Shortly after the death of Mr. Karste, a special administrator was appointed, and a few days later three accountants were employed, who found a shortage in the funds of the bank of upwards of $100,000. Later this criminal proceeding was instituted with the result already stated. After the conviction of the respondent a motion for a new trial was made, which motion was overruled; the trial judge filing an elaborate written opinion stating his reasons for so doing.

The first group, of assignments requiring attention relates to the refusal of the judge to direct a verdict of not guilty, for the reason that the people had failed to make a case against respondent. It would profit no one to review the testimony. We shall content ourselves with saying that there was an abundance of competent testimony which, if believed, justified the verdict.

Another group of assignments relates to the refusal of the court to require the prosecuting attorney to deliver certain written memoranda in his possession made by the accountants to the attorneys for the respondent. The court had allowed to the respondent and his attorneys the fullest access to the books and papers of the bank. This being so, we think his ruling well within his discretion.

Error is assigned to the refusal of the court to grant a change of venue. But two affidavits were made in favor of this motion. A jury was obtained with which the respondent announced himself as satisfied before his peremptory challenges were exhausted. The court did not commit error in this respect. See People v. Swift, 172 Mich. 473 (138 N. W. 662).

A group of assigned errors relate to the conduct of the prosecuting attorney, and especially to his argument to the jury. As the case must be reversed for a reason which will be stated later, we find it unnecessary to decide whether this was reversible error. While zeal in a prosecuting attorney is to be commended, and it is apparent that the attorneys for the respondent were not without zeal, and their conduct was very trying, to say the least, to the prosecuting officer, we are compelled to say that we think the record would be more satisfactory if some of the language used by the prosecutor had been unsaid. See People v. Gotshall, 123 Mich. 474 (82 N. W. 274); People v. Lieska, 161 Mich. 630 (126 N. W. 636); and People v. Huff, 173 Mich. 620 (139 N. W. 1033).

A group of assignments of error relates to the overruling of a motion that the prosecuting attorney be prevented from taking part in the trial because of being interested. The record shows he was a depositor in the Bank of Ironwood. He acted as counsel for the special administrator in some matters growing out of the administration of the estate, but claims that none of them involved the respondent or his dealings with the bank. We quote from the brief of the prosecuting attorney:

“A petition was filed, asking the appointment, in Michigan, of the Wisconsin administrator, and another who was a resident of the city of Ironwood, and obviously friendly to the interests of respondent, who was under arrest and undergoing examination at that time. As the books and records of the Bank of Ironwood contained a large part of the evidence against respondent and would be delivered into the possession of the person or persons appointed administrator in Michigan, the prosecuting attorney was opposed to the appointment of the administrators which respondent’s counsel sought to have appointed. On request of some creditors, Mr. O’Neill appeared gratuitously in the probate court and objected to the appointment of those persons, or either of them which respondent’s counsel was seeking to have appointed. There was no employment, however, by these creditors of the prosecuting attorney, as their private attorney; that is, there was no hiring for compensation. The statement repeatedly made throughout the entire brief of respondent that the prosecuting attorney was employed by 75 per cent, of the creditors of the bank is absolutely untrue, and is unsupported by the record. No proof at any time was offered of any employment of Mr. O’Neill by any creditor of the bank, and the undisputed evidence is that Mr. O’Neill never was employed as attorney for any of the creditors and never acted as attorney for any of the creditors except in the probate proceedings as before stated.”

The trial judge was in grave doubt about overruling the motion, but finally decided to do so.

Section 2556,1 Comp. Laws (1 How. Stat. [2d Ed.] § 1152), defines the duty of prosecuting attorneys. Section 2561 provides:

“No prosecuting attorney shall receive any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party other than for the State or' county in any civil action depending upon the same state of facts upon which any criminal prosecution commenced or prosecuted shall depend, or in any action for malicious prosecution commenced or prosecuted during his term of office in the county of which he is prosecuting attorney; nor shall any attorney be permitted to prosecute, or aid in prosecuting any person for an alleged criminal offense where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts, against such person directly or indirectly.”

This statute has been frequently construed by this court. People v. Cline, 44 Mich. 290 (6 N. W. 671); People v. Hillhouse, 80 Mich. 580 (45 N. W. 484); People v. Bussey, 82 Mich. 49 (46 N. W. 97); McCurdy v. Insurance Co., 115 Mich. 20 (72 N. W. 996); Harley v. Ionia Circuit Judge, 140 Mich. 642 (104 N. W. 21), and the cases there cited.

In the instant case respondent was defending upon the theory that another than himself caused the shortage in the funds of the bank. The same state of facts which would sustain his conviction if shown would establish his civil liability to the bank. The prosecuting attorney was a depositor in the bank, which gave him a direct interest in its assets, one of which-might be the liability of the respondent. We think this brings him within the language of the statute and the cases cited.

We have examined the other assignments of error, but think it unnecessary to discuss them, as they are not well taken or are not likely to arise again.

The conviction is set aside, and a new trial granted.

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


text:
    COLE v. MAMER BRICK CO.
    1. Master and Servant — Assumed Risk — Personal Injuries.
    It is a settled rule of law that an employee assumes the known risks of his employment, those ordinarily incident to his employment and those arising and becoming known to him in connection with it as carried on during his service.

    2. Same — Promise to Remedy.
    It is also well settled that if the employee continues in his employment with knowledge of dangerous conditions involving an abnormal risk, relying upon a promise of his employer to remedy such conditions, he is relieved of the assumption of the risk for a reasonable time after securing the promise.
    3. Same — Time for Performance of Promise.
    Where the employer agreed tó remedy a dangerous condition of the platform on which the servant’s duties called him to work by placing a cover over a considerable opening in the structure, on the succeeding Sunday, and the work was not done at the promised time as plaintiff was advised, he could not recover for injuries that he sustained several weeks after in falling from the platfornr.
    Error to Berrien; Bridgman, J.
    Submitted November 4, 1914.
    (Docket No. 126.)
    Decided December 18, 1914.
    Case by Luther E. Cole against the Mamer Brick Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      O’Hara, & O’Hara, for appellant.

      Gore & Harvey, for appellee.

       The authorities on the question of the servant’s assumption of risk in continuing work on the master’s promise to remove a specific cause of danger are gathered in a note in 40 L. R. A. 782.

   Steere, J.

On August 2, 1912, plaintiff was injured by falling through, an unguarded opening at the edge of a platform upon which he was working in the upper part of a one-story building of defendant in which brick was being manufactured. Imputing the accident and his resulting injuries to the negligence of defendant, by whom he was employed, through failure to furnish him a safe place in which to work, he brought this action in the circuit court of Berrien county, where he recovered a verdict and judgment of $600, awarded as compensation for such personal injuries. Numerous exceptions were taken during the trial, and errors have been carefully assigned upon them, presenting in various lights defendant’s reasons why the judgment ought not to be sustained, the condensed substance of which is that no negligence on its part is shown, that the platform was in a reasonably safe condition, that plaintiff is shown by his own testimony to have been guilty of contributory negligence; for all of which reasons a verdict should have been directed for defendant and the verdict of the lower court should now be reversed and no new trial granted.

Defendant owned and operated a plant for the manufacture of brick near the city of Benton Harbor. Clay for making the brick came from a nearby bank and was conveyed into the upper part of the factory building by small dump cars operated on a tramway running from the bank into the building through an opening in its gable end, within the pitch of the roof, at an elevation of over 18 feet above the ground floor upon which the brick machine set, with other equipment above it. They were drawn into the building from about 150 feet distant by a cable, power for which was furnished from the building. The tram car dumped at the side and discharged the clay into a hopper conveniently near the track Over the machinery, from where it fell into a so-called granulator, thence passing by gravity through other appliances, essential to the process of manufacture until it reached the brick machine at the bottom. In the southeast corner of the building, adjacent to the place of dumping and slightly below the level of the track, was a platform for the person engaged in caring for and dumping the car to stand upon while doing such work. It was 12 feet long by 7 feet wide, and 18 feet above the ground floor, from which it was reached by a stairway. It extended a little over 6 feet to the east of the car track and, had it continued 5½ feet further east, would have connected with the side of the building near where it joined the slanting roof. This left, from the outer edge of the platform to the roof, an opening variously stated to be from 2 feet 6 inches to 3 feet 2 inches wide. Plaintiff fell through this opening to the floor beneath while engaged in dumping a car, striking first upon the line shaft and from there upon a barrel 11 feet beneath, sustaining, as he testified, serious injuries.

The car, known as the Western Side Dump Car, was a small one, holding from 1% to 2 yards of clay, and was emptied by releasing two chain hooks on one side, revolving or tipping the box of the car until its contents slid out, then pulling back or righting the box and refastening the chains. This could easily be done by hand. It was claimed by defendant that such was the proper way, and plaintiff had been so instructed. It was his custom to right the box by reaching; from where he stood on the platform and catching over the edge of the box with the heel of a shovel, which he used around the place of emptying for various purposes, and then pulling towards him until the box was righted. He claimed this was an expeditious and customary way of doing it, practiced by himself and others, including the Mamer brothers under whom he worked, and he had never been instructed to the contrary.

On the occasion in question, while righting a car in this manner, his shovel slipped and he fell backwards, going through the opening at the edge of the platform and next to the wall “head first — right backwards,” as he described the event.

The ground of negligence upon which plaintiff seeks recovery is that by reason of the opening through which he fell being left uncovered and unguarded defendant was culpably delinquent in its duty to provide him a safe place in which to work. Plaintiff was a man of age and experience, familiar with his work and the conditions which surrounded it. He began his employment there in June, and the accident occurred on August 2d. The opening complained of was seen by him daily, and whatever dangers it created were known to him.

It is a familiar and well-settled rule of law that an employee assumes the known risks of his employment, both those ordinarily incident to the nature of it and those arising, and becoming known to him, in connection with it as carried on during his service. It is also a familiar rule that, if the employee continues in an employment with knowledge of dangerous conditions involving an abnormal risk relying upon a promise of the employer to remedy such conditions, he is relieved from the onus of having assumed such risk during a reasonable time for the promised repairs or changes to be made.

Plaintiff claims to have complained to his employers of the dangers which resulted in his injury and to have remained at his employment on the strength of promises to cover the opening and remove the risk. Defendant, denying the existence of any abnormal danger, or any promise to repair, contends in any event it is shown that plaintiff did not continue in the employ by reason of such promise, nor in reliance upon it, and his own testimony discloses he remained for such an unreasonable length of time after the alleged promise was made that, as a matter of law, it affords him no protection, and he therefore cannot recover. Plaintiff’s counsel clearly state the vital issue in their brief as follows:

“There is only one question in this case: Did the time that elapsed between the promise to repair and plaintiff’s injury ‘preclude all reasonable expectation that the promise might be kept?’ ”

Eliminating all issues raised by conflicting evidence and taking plaintiff’s testimony as true, he testified, amongst other things, that in this building there were four men working besides himself, and he had charge of the “whole thing,” looked after all the machinery, did the oiling, if anything needed fixing about the machines he fixed it, “and looked after everything in that room;” that he rigged a jack “up there” for dumping cars, because they were sometimes loaded heavier on one side and hard to lift; that he added one additional plank to the platform, on his own initiative, and placed a railing on the left side of it, about which he first spoke to “them” and was told to “fix it;” that he looked at this hole a number of times; did not know as he was afraid of it, but thought there was some danger of slipping and falling through it; that it would take but a short time, might take longer than 15 minutes but not over an hour, to cover the opening, requiring but two or three plank, and that there were plank in the yard which could be used for that purpose, and were used after he was hurt; that on one occasion Peter Mamer came up, and, noticing the jack which plaintiff had rigged, asked about it, and spoke in that connection of fixing something else also, in reply to which plaintiff said, “Now, Pete, that arrangement I have got is all right, provided there is some more boards put in the floor so if I slip I would not fall down through there,” to which Peter replied that would be done as soon as they could get to it; that George Mamer came up not very long after and talked about the granulator not working very satisfactorily, saying he thought it would be necessary to put some plank in to hold the clay off the knives, and in discussing it plaintiff suggested, “We can use some more plank in that floor there,” and George Mamer then replied, “Well, I will have George Sterling bring some up from downtown, and we will have Bert Balding come up on Sunday morning and fix the floor and the granulator;” that this occurred “about a month,” or “probably a month,” before the accident. Plaintiff gave this promise as the one upon which he relied at least four times in direct and cross-examination saying, when interrogated as to why he remained in the employment with the opening unguarded, and why he did not cover it himself with available material: “They said they would have Bert Balding come over on Sunday and fix it. * * * They intended to fix it and would fix it next Sunday morning” — his last statement of the promise being, “And he said he would have Bert Balding come over Sunday morning and fix the granulator and the floor,” repeating when asked again, that the last promise to repair was about a month before the accident.

Of the influence of this alleged promise to repair, upon his conduct, he was asked and answered as follows:

“Q. Did you have in mind at any time you were talking to Mamers about quitting their employment?
“A. No, sir.
“Q. Did not?
“A. No, sir.
“Q. So that there was nothing that the Mamers said to you, either George or Peter, on the occasions you refer to, a month or a month and two or three days before the injury, that caused you to change your mind in any regard?
“A. No, sir.”

It is difficult to reconcile this testimony with the theory that plaintiff’s continuation in the service was due to or induced by a promise of his employer to remedy the defect. In Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145), although the plaintiff there testified that he had in mind quitting the employment and “was going to leave” if a promise had not been made to fix a defective machine upon which he worked, and he remained relying upon a statement of the superintendent in charge that the defects would be remedied, this court said:

“It is impossible to reconcile plaintiff’s acts with the theory that he remained at work, after he learned the machine was dangerously defective, relying upon a promise from the defendant that it would remedy the defect.”

It was therefore held plaintiff could not recover and a verdict' should have been directed for defendant.

Generally stated, the law upon the question of relieving promises is that when no specified time is designated by the employer in his promise for restoration or establishment of safe conditions, his right to urge as a defense- the assumption of risk by the employee is suspended for a reasonable time in which to perform the promise,- and in such cases what constitutes a- reasonable time in which the employee may remain in the employ, relieved of all assumption of risk, is, as a rule and within rational limits, for the jury to determine under proper instructions according to the facts of each particular case. We must conclude, however, that plaintiff’s testimony in this litigation presents no such issue.

The promise to which plaintiff testified, and upon which he claimed he relied, fixed the time of fulfillment prior to the accident. He stated distinctly that the promise was to be performed the next Sunday after it was made. Several Sundays intervened before he was injured. This eliminated the element of promise, leaving no issue of fact as to a reasonable time for a jury.

When the period contemplated and agreed upon for removal of the dangerous condition terminated without its performance plaintiff’s position was the same as if no promise had been given and he thereafter reassumed the risk.

“It is clear that in all cases where the circumstances were such that, if the promise had not been given, the servant’s continuance of work would have rendered him chargeable, as a matter of law, with contributory negligence, this defense furnishes a conclusive bar to the action if the injury was received after the expiration of the period during which the servant was justified in relying on the performance of the promise.” 4 Labatt on Master & Servant (1913), p. 3890.

The distinction is pointed out with remarkable clearness in the case of Andrecsik v. Tube Co., 73 N. J. Law, 664 (63 Atl. 719, 4 L. R. A. [N. S.] 913, 9 Am. & Eng. Ann. Cas. 1006). In the concluding paragraph after a thorough review and analysis of the authorities, and discussion of the principles involved, the court says:

“The master, in the making of the promise, and the servant, in acting upon it, fix their mutual relation.
“Where the promise to make the repair is indefinite or inferential as to the time of performance, there may arise a question for the jury of reasonable time — on the part of the master for performance, and consequently on the part of the servant for continuing to incur the risk in the expectation that the master will perform.
“Where, however, the promise is express as to the time of performance, the rule is otherwise.
“A promise made by the master, acted upon by the servant, to repair a specific defect at a definite time thereafter, creates an assumption of the risk by the master. This assumption of risk begins forthwith upon the making of the promise and continues thereafter and throughout the period fixed for the making of the repair; but this undertaking of the master terminates and his liability thereunder ceases at the end of that period. The termination of the master’s undertaking and the termination of the period fixed for the repair are identical.”

In view of these authorities, and for the reasons above given, we are constrained to hold that a verdict should have been directed for the defendant.

The judgment is reversed, and no new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Stone, Os- • TRANDER, Bird, and Moore, JJ., concurred.


text:
    FINCH v. CALKINS.
    Bills and Notes — Place of Presentment — Banks and Banking— Presumption.
    Since a promissory note is presumed to be payable at ..the place where it is made and dated, a note dated at Hornell, N. Y., payable at “First National Bank,” was subject to presentment and payment at the First National Bank of Hornell, and a presentment there was sufficient under section 133 of the negotiable instruments law óf New York.
    Error to Shiawassee; Miner, J.
    Submitted November 10, 1914.
    (Docket No. 155.)
    Decided December 18, 1914.
    Assumpsit by John M. Finch against Beattie W.

      Calkins and another on an indorsement. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      W. J. Parker (John T. McCurdy, of counsel), for appellant.

      Fred J. Northway and Odell Chapman, for appellees.
   Steere, J.

This case presents the single question of whether the words “the First National Bank,” found in the following promissory note, designate its place of payment under the law of negotiable instruments :

“$900. Hornell, New York, July 16th, 1909.
“On June 1st, 1913, after date, for value received, I promise to pay Calkins & Augsbury, or order, nine hundred dollars at the First. National Bank, with interest at 6 per cent, per annum, interest payable annually.”

Said note is signed by nine makers, and, so far as material here, indorsed on the back:

“Pay to John M. Finch, or order.
“Calkins & Augsbury.”

It is sufficient to state without details that when this paper fell due it was presented for payment at the First National Bank of Hornell, N. Y., dishonored there, protested, notice of such dishonor and protest timely mailed to and received by defendants at their place of business in this State, in conformity with the prerequisites essential to establish their secondary liability as indorsers, provided the presentment and demand for payment were made at the proper place.

At the trial of this case in the circuit court, upon the conclusion of the plaintiff's testimony, counsel for defendant moved the court to direct a verdict of no cause of action and enter judgment accordingly, on the ground that it was not shown said note had been properly presented for payment and dishonored, which motion was granted and judgment entered according to such ruling.

Aside from a minor question of pleading, which we do not regard as controlling or demanding review, defendants’ contention, as briefed and orally argued, is that the note was never dishonored nor notice thereof given defendants, so as to hold them liable as indorsers, because no place of payment is sufficiently specified in said instrument; and, in order to hold the indorsers, it was incumbent upon plaintiff to present said instrument, when due, and demand payment at either the usual place of business or residence of the makers, or to them wherever they could be found, or at their last known place of business or residence, as required by the negotiable instrument law of the State of New York, which is the law governing this case, inasmuch as the note was given and is presumably payable in that State. Requirements of the New York law as to presentment are in harmony with those which almost universally obtain, and substantially the same as the negotiable instrument statute which has been adopted in many of the States. The pertinent part is as follows:

“Seq. 133. Place of Presentment. Presentment for payment is made at the proper place:
“1. Where a place of payment is specified in the instrument and it is there presented.
“2. Where no place of payment is specified, but the address of the person to make payment is given in the instrument and it is there presented.
“3. Where no place of payment is specified and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment.
“4. In any other case if presented to the person to make payment wherever he can be found, or if presented at his last known place of business or residence.”

It must be conceded that, if the place of payment is not specified in this instrument, plaintiff cannot recover, and we need spend no time upon the provisions relative to how presentment should be made in other cases.

Upon the trial, no evidence was introduced to supplement what appears upon the face of the instrument as to the place of payment, except by the following stipulation, introduced in connection with depositions of the New York notary, who protested the note, and testified what was done in that connection:

“It is conceded that the city of Hornell is situated and located in the county of Steuben, State of New York, and that the First National Bank of Hornell is also located and situated in that city.”

The note is not in terms which indicate a purpose to make it payable generally. The intent to make it payable at a bank is clearly stated, and the name of the bank is given. The only infirmity is a failure to state distinctly in the body of the instrument where the bank is located, or what “First National Bank” is meant. The language is not ambiguous. The most to be claimed is that it is indefinite. Though a name is stated, it can well be urged that, standing alone, such name is not sufficiently definite and distinguishing, for it is a matter of common knowledge that there are many first national banks scattered throughout the country.

The primary rule of construction is to determine, not alone from a single word or phrase, but from the instrument considered as a whole, the true intent of the parties, and to interpret the meaning of a questioned word, or part, with regard to the connection in which it is used, the subject-matter, and its relation to all other parts or provisions. In the absence of anything to the contrary, a note is held to be made where it bears date; and in Taylor v. Snyder, 3 Denio (N. Y.), 145 (45 Am. Dec. 457), it is said:

“Although the date of a note does not make it payable at that place, still the date may, in one respect, be very important. It raises a presumption that the maker resides there, although it is only presumption. 3 Kent, 96, 97; Lowery v. Scott, 24 Wend. (N. Y.) 358 (35 Am. Dec. 627); Galpin v. Hard, 3 McCord (S. C.), 394 (15 Am. Dec. 640).”

In Baily v. Birkhofer, 123 Iowa, 59 (98 N. W. 594), where the maker of a note promised to pay the sum named at “the First National Bank,” it was said:

“Where no place of payment is named in a note, it is presumed to be payable where the maker resides; and, where a bank is named, it will be presumed, in the absence of language appearing on the face of the note to the contrary, that it was at the maker’s home town.”

A similar question to this arose in Hazard v. Spencer, 17 R. I. 561 (23 Atl. 729). In that case the note under consideration was dated at Providence, R. I., and made payable “at bank.” The maker resided at Bridgewater, Mass. Demand for payment was made, when the note fell due, at a bank in Providence, R. I., and the paper protested in the customary way. An indorser thereafter denied liability because no legal presentment for payment and demand on the maker had been made. In holding he was not released from liability, the court said:

“But as the note in suit not only bears date at Providence, but is also made payable ‘at bank,’ we think the only fair presumption is that it was intended to be made payable at Providence, and hence that the knowledge of the holder that the maker resided elsewhere has no bearing upon the case, * * * for we can conceive of no reason for the making of a note payable ‘at bank,’ unless it be thereby intended to make it payable at some bank in the city or town where the note bears date.
“Moreover, the note being made payable ‘at bank,’ the maker was under no obligation to pay it at any other place, and hence a refusal to pay upon presentment elsewhere would be no dishonor upon which the indorser could be charged.”

In this case the note was not only made payable at bank, but at a bank named, and there was a bank of the name given in the city where the note was dated.

We conclude that, by natural inference, fair construction of the instrument consideréd in its entirety, and reasonable interpretation of the name given in the connection used, the note in question was made payable at the First National Bank of Hornell, N. Y.

The judgment is reversed, and a new trial granted.

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