author: Grant, J.

text:
    FISCHER v. UNION TRUST CO.
    1. Gifts—Conveyanges—Delivery.
    After a deed of gift was signed and acknowledged, the grantor made manual delivery of it to the grantee, who took it and handed it to her brother, evidently to be kept for her. He put it away without recording it. Held, that the delivery was complete.
    2. Same — Agreement by Donor to Pay Mortgage — Enforcement.
    Where the only consideration for a deed by a father to his daughter was love and affection, the daughter could not enforce a provision in the deed that the grantor would pay certain mortgages on the property conveyed when the same became due, and therefore his failure to do so, resulting in an enforcement of one of them by foreclosure, gave her no claim against the estate of her father based on the'appropriation of her property to pay the mortgage.
    Error to Wayne; Hosmer, J.
    Submitted June 9, 1904.
    (Docket No. 6.)
    Decided December 30, 1904.
    Bertha Fischer presented a claim against the estate of William Fischer, Sr., deceased, for damages for an alleged breach of a covenant in a deed. The claim was allowed . by the commissioners, and the Union Trust Company, administrator, appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.
    Reversed.
    On December 21, 1895, William Fischer, Sr., conveyed by warranty deed certain property in the city of Detroit to the claimant, Bertha Fischer, his daughter, who had been incompetent for a number of years, and so remains, and is at present at the retreat for the insane at Dearborn. The deed was a warranty deed, in. the usual form, with a •covenant against all incumbrances, excepting two mortgages, which the grantor “agrees to pay when the same become due.” The land described in the deed comprised the homestead where the father and daughter lived, and the adjoining lot, with the house thereon. Mr. Fischer, after signing and acknowledging it, handed it to claimant, saying, “Here is a deed of the Jefferson and Larned street property.” He said it was a “nice Christmas present.” She took it and read it. One of her brothers gave her a dollar, which she gave to her father, who took it. She then handed the deed to her brother Alexander, and asked him tp take care of it. He put it in his safe, and did not record it until June 30, 1902, about a year after the grant- or’s death, and years after its date. The reason given by the son for not recording is that there were unpaid taxes, in consequence of which, under the statute, it could not be recorded.
    After the delivery of the deed, both grantor and grantee continued to live together on part’ of the property so conveyed. Mr. Fischer continued until his death to manage and control it, and to receive the rents therefrom, just as he had done before the giving of the deed. During that time he took care of his daughter the same as before. At the time of the execution of the deed, the grantor was considered by his sons to be worth about $50,000. He had no debts except the two mortgages, one of $3,000 and the other of $5,000. If he was then worth that amount, the larger part of it was in some way disposed of in his lifetime. The $3,000 mortgage was foreclosed for nonpayment, and satisfied out of part of the property conveyed. The claim at bar is based upon this appropriation of her property to pay the mortgage.

      Russel & Campbell, for appellant.

      Alfred J. Ducharme (John C. Donnelly, of counsel), for appellee.
   Grant, J.

(after stating the facts). The facts and circumstances of the delivery of the deed are nqt in dispute. Counsel differ only in the conclusion to be drawn from them. We think that the conceded facts show a delivery. After the deed was signed and acknowledged, the grantor made manual delivery of it to the grantee. She took it and handed it to her brother, evidently to be kept by him for her. The grantor reserved no control over it, and retained no right to withdraw or cancel it. He never attempted to. Under those circumstances the delivery was complete.

The meritorious question in the case is: Was the claimant in position to enforce the executory contract in the deed against her father while living, and to enforce it against his estate now that he is dead, or to recover damages at law for nonperformance? To say that the one dollar was the real, or such valuable consideration as would of itself sustain a deed of land worth several thousand dollars, is not in accord with reason or common sense. The passing of the dollar by the brother to his sister, and by her to her father, was treated, rather as a joke than as. any actual consideration. The real and only consideration for the deed and the agreement, therein contained, to> pay the mortgages, was the grantor’s love and affection for his unfortunate daughter, and his parental desire to provide for her support after he was dead. The consideration was meritorious, but is not sufficient to compel the performance of a purely executory contract. The deed was a gift, and the gift was consummated by its execution and delivery. The title to the land, subject to the mortgages, passed as against all except the grantor’s creditors. The gift was expressly made subject to the mortgages, and coupled with it was a promise to pay them. This promise has no additional force because it is contained in the deed. It has no other or greater force than would a promise by him to pay mortgages upon her own land, or to pay her $8,000 in money, or his promise to her evidenced by a promissory note for a like amount, and given for the same purpose and the same consideration.

‘ ‘ The doctrine of meritorious consideration originates in the distinction, between the three classes of consideration on which promises may be based, viz., valuable consideration, the performance of a moral duty, and mere voluntary bounty. The first of these classes alone entitles the promisee to enforce his claim against an unwilling promisor; the third is for all legal purposes a mere nullity until actual performance of the promise.

“ The second, or intermediate class, is termed the meritorious, and is confined to the three duties of charity, of payment of creditors, and of maintaining a wife and children; and under this last head are included provisions made for persons, not being children of the party promising, but in relation to whom he has manifested an intention to stand in loco parentis in reference to the parental duty of making provision for a child.

“ Considerations of this imperfect class are not distinguished at law from mere voluntary bounty, but are to a modified extent recognized in equity. And the doctrine with respect to them is that, although a promise made without a valuable consideration cannot be enforced against the promisor, or against any one in whose favor he has altered his intention, yet if an intended gift on meritorious consideration be imperfectly executed, and if the intention remains unaltered at the death of the donor, there is an equity to enforce it, in favor of his intention, against persons claiming by operation of law without an equally meritorious claim.” Adams on Equity (8th Ed.), 97.

This court held that a promissory note given by a father to his son, intended as his share of the estate, could not be enforced against the estate. Conrad v. Manning’s Estate, 125 Mich. 77. The opinion in that case, written by my Brother Moore, cites many authorities which need not be recited here. Duvoll v. Wilson, 9 Barb. 487, is exactly in point, both in the facts and conclusion reached.

“ The consideration of natural love and affection is sufficient in a deed; but a mere executory contract, that requires a consideration, as a promissory note, cannot be supported on the consideration of blood or natural love and affection—there must be something more, a valuable consideration, or it is not good and cannot be enforced at law, but may be broken at the will of the party.” Pennington v. Gittings, 2 Gill & J. 208.

See, also, West v. Cavins, 74 Ind. 265; Hadley v. Reed, 12 N. Y. Supp. 163.

The learned counsel for the claimant cite numerous authorities, but we do not think them applicable to this case.

In Ferguson’s Appeal, 117 Pa. St. 426, a father had deeded to his daughter a lot of land according to a plat which called for a street thereon. The rights of the grantee in the street were the subject of the suit. One of the defenses set up was, the conveyance was voluntary. To this contention the court replied that the conveyance was fully executed. That decision is based upon the obvious principle that, when a grant of land or gift of personalty is consummated by a deed of the land or delivery of the personalty, the grantee or promisee succeeds to all the rights in the property which the grantor or promisor had. Third parties, except creditors, cannot contest the consideration.

So, where the contract of conveyance is fully executed, the grantee may maintain a suit in equity to correct the description in the deed. Hutsell v. Crewse, 138 Mo. 1. In that case the father deeded to his minor child the land for the same purpose as did Mr. Fischer in this case. He had also deeded certain other lands to his other children. His wife died, after which he remarried. After his death, suit was brought against the widow and her children to reform the deed. The basis of the decision is that the contract was executed, the title had passed, and the land was susceptible of identification aliunde. Pickett v. Garrard, 131 N. C. 195; Mason v. Moulden, 58 Ind. 1; Brown v. Whaley, 58 Ohio St. 654; and Ohmer v. Boyer, 89 Ala. 273—are similar cases.

In Lawrence v. McCalmont, 2 How. 426, the consideration was the sum of $1 and the extension of credit, which was held sufficient to sustain a contract of guaranty for the payment of accounts.

In Harvey v. Alexander, 1 Rand. 233, the consideration was natural love and affection. Creditors attacked the conveyance on the ground of fraud. It was held that the deed was not per se voluntary. The question in the case was whether it was competent to show that full value was paid by the grantee. The holding of the case clearly is that love and affection would not be a sufficient consideration to sustain the deed.

In Ross’ Appeal, 127 Pa. St. 10, a man gave a note -of $5,000 to a trustee for his children named therein, due five years after date, with interest. It was sought -to enforce the note after his death, and the transaction was sustained as an executory gift inter vivos. That is clearly in conflict with Conrad v. Manning’s Estate, supra, unless it can be distinguished on the ground -that in the Boss Case the payee was a trustee. Conover v. Brown, 49 N. J. Eq. 156, is in direct conflict with Conrad v. Manning’s Estate, supra.

If claimant' had no promise which she could specifically ■enforce against her father, or upon which she could hase ■a claim for damages, it follows that she is not entitled to .subrogation as against her father or his estate. A void promise cannot be made the basis of subrogation against .an unwilling promisor. The same reason that is a bar to -the one claim is also a bar to the other. However commendable was the promise of Mr. Fischer to give a larger share of his property to his unfortunate daughter than to Ids other children, it was a promise absolutely null and void until it became merged in his voluntary execution of it. His promise to pay was, for some unknown reason, left unexecuted. She paid no valuable consideration for the promise, and cannot, therefore, enforce it. It is, however, urged that Mr. Fischer’s primary liability to pay the ■debt was unaffected by the deed of gift, and, as the. subject of the gift has paid the debt, therefore claimant is en-titled to subrogation. This claim cannot be maintained upon any other theory than that there was a valid gift of the entire land free from all incumbrances. If the promise made by Mr. Fischer to his daughter to pay these incumbrances had been omitted from the deed, clearly he would have been under no obligation as to her to pay them, although the mortgagee could enforce his (Fischer’s) primary liability. In such case the gift would have been only that of the equity of redemption. She would not in that event, by paying the mortgage, have been in position to recover the amount from her father or from his estate, for she would have taken title subject to the mortgage.

It is urged that “the father is already obligated to pay the debt [the debt secured by the mortgage], so that the question is not whether he may agree to pay it, but it is. whether he may make a gift of his property without affecting this already existing agreement to pay it.” If this, logic is sound, it must, in my judgment, follow that every grantee who buys land subject to a mortgage can buy up the note evidencing the debt and sue the mortgagor therefor. This, evidently, is not the law. When a grantee .purchases subject to a mortgage which is expressly exempted from his covenant of warranty, his undertaking-with his grantor is to pay the mortgage if he desires to save his land. The amount of the mortgage is deducted from the purchase price. When such grantee pays the-mortgage, he pays only what he, as against his grantor, has assumed to pay. One by a deed of gift certainly can acquire no more than one acquires by deed of purchase. The conveyance subject to the mortgage entails upon both, grantees the same obligation to pay the mortgage, so far-as the grantor is concerned. No arrangement between, the grantee and the grantor can, of course, change the liability of the grantor and mortgagor to the mortgagee. His already “ existing agreement ” remains the same in. either case, and is always unaffected by any subsequent-transfers of the land. But where he sells and conveys, land by deed, subject to a mortgage, the primary obligation to pay the mortgage, as between the grantor and grantee, rests upon the grantee. If the mortgagee abandons his security and sues upon the note or obligation to which the mortgage is collateral, and by his suit compels payment, such grantor (the mortgagor) is clearly entitled to recover from his grantee the amount thereof, and should be subrogated to the rights of the mortgagee against the land. Our attention has been called to no case where a mortgagee has pursued so extraordinary a course. The universal course in s.uch cases has been to foreclose the mortgage, sell the land, and obtain a personal decree against the mortgagor for the deficiency.

If Mr. Fischer had voluntarily paid the mortgages, he would then simply have carried out his nonenforceable contract and have completed his gift, as, perhaps, he then intended to do. For some reason, perhaps a good one, he chose not to pay them. A void promise is no more effective than no promise, and the void promise in the deed had no more effect than if it had been omitted therefrom. If it is void for one purpose, it is void for all, and cannot be made available, either directly or indirectly. Only performance of the promise can be of any avail to the claimant.

A gift of personalty can be consummated only by an unconditional delivery of the thing. A gift of realty can be consummated only by the execution and delivery of a deed. If either is incumbered, the donor gives only what he had to give. He cannot give the interest of a third party in the property. However clear may be the intention of the donor to pay the incumbrances and thus give the entire property, he can accomplish this only by actually paying them. Neither his promise without a valuable consideration, nor his intention as evidenced by such promise, is of any avail to the donee.

Other interesting questions are raised, but they become immaterial in view of the conclusion we have reached.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    PEOPLE v. JEWELL.
    1. Records—Tax Statement—Abstraction—Criminal Offense.
    A tax statement, made under 1 Comp. Laws, § 3843, and delivered to the supervisor, is, though not sworn to, a public record under 3 Comp. Laws, § 11361, making it a criminal offense to carry away a public record.
    2. Same—Provisional Statement—Intent to Substitute.
    A statement so prepared and delivered is a paper or record “belonging or appertaining to the office” of a township, within the meaning of section 11361, 3 Comp. Laws, although there was kn intention to amend such statement by substituting another therefor, where no such amended or substituted statement was ever prepared.
    3. Same—Criminal Intent.
    In order to constitute the offense of carrying away or destroying a public record denounced by 3 Comp. Laws, § 11361, the act must be accompanied by a criminal intent.
    Exceptions before judgment from Livingston; Smith, J.
    Submitted June 17, 1904.
    (Docket No. 192.)
    Decided December 30, 1904.
    Eobes C. Jewell was convicted of carrying away a public record.
    Reversed.

      Person & Person, for appellant.

      Edmund C. Shields, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of a violation of section 11361, 3 Comp. Laws, which contains the following provision:

“ All books, papers, and records, belonging or in anywise appertaining to the offices of the several townships and school district officers of this State, are hereby declared to be public property, belonging to the people of the State of Michigan, to be used and preserved by and under the direction of said officers, and be by them preserved during their continuance in office; and any person or persons who shall willfully carry away, mutilate, or destroy any of such books, papers, records, or any part of the same * * * shall, on conviction thereof, be deemed guilty of a misdemeanor, and shall be punished by fine not exceeding one thousand dollars, or imprisonment in the State prison not exceeding three years.”

The testimony disclosed that in the spring of 1903 one G-. A. Kirkland was the supervisor of the township of Iosco, Livingston county, and in his official capacity called upon the respondent for a statement of his taxable property. Such a statement was made out and signed by the respondent and left with the supervisor, who took it to his office. The respondent stated that in a certain contingency he might wish to make a change in the statement later. . A few days later the respondent went to the office of the supervisor, the statement was produced, and an attempt made to make a new statement. This was, however, abandoned. The first statement disappeared during the conversation, and respondent, on being asked for it, declared that he must have torn it up and thrown it in the stove. A search of the stove being made disclosed that it was not there, and the inference which the jury drew, that the respondent took it away, was amply justified.

Two questions are discussed in the brief of respondent’s counsel. It is contended, first, that the paper in question does not fall within the terms of the statute. So far as this question depends upon the fact that the statement was not sworn to, section 3843, 1 Comp. Laws, determines its character as a public document, as by the express terms of that statute the supervisor was required to retain the same in his office. It is said, however, that, as there was a declared purpose to amend this statement or substitute another for it, this paper never became a part of the public record. We do not think any such inference is justified. What the effect of substituting another paper for the original may have been is not the question. The statement was signed and delivered to the supervisor, intended to be effective, at least until a substitute was prepared, and this was never done.

The second point relied upon is the failure of the circuit judge to give respondent’s fourth request, as follows:

“ If Jewell did carry away the paper it was not willful if Jewell thought he had a right to carry it away.”

The court did charge the jury as follows:

“ ‘Willfully’ means designedly and intentionally. I don’t think it would be necessary to establish the fact that he did it maliciously, or that his intention must have been to that wicked extent that would be involved in the crime of larceny; but he must have acted knowingly, and must have willfully intended to take that paper away from his office and keep it away from there to deprive the supervisor of that township, the officer, the supervisor, of the custody of that paper permanently. He must have intended to have done that before you can find him guilty; he must have had that intent; the defendant must have had that intent to remove that from that office, to carry it away without justification or excuse.”

What we might conclude upon the merits of this question of good faith is unimportant here. The effect of this charge was to permit the jury to find a man guilty of a State prison offense in the absence of a criminal intent. We do not overlook a class of cases where the question of criminal intent is unimportant, such as cases arising under the game, fish, pure food, and liquor laws. Many such cases are found in our own and other reports. People v. Waldvogel, 49 Mich. 337; People v. Blake, 52 Mich. 566; People v. Roby, 52 Mich. 577; People v. Neumann, 85 Mich. 98; People v. Potter, 89 Mich. 353; City of Grand Rapids v. Bateman, 93 Mich. 135; Wolcott v. Judge of Superior Court, 112 Mich. 311; People v. Snowberger, 113 Mich. 86; People v. Bacon, 117 Mich. 187.

These cases arise upon statutes, and while, in statutory as well as common-law crimes, the necessity of a criminal intent is ordinarily maintained, it is not beyond the power of the legislature to make an act criminal in the absence of such intent. See 12 Cyc. 148, citing People v. Welch, 71 Mich. 548, and other cases, to which may be added Faulks v. People, 39 Mich. 200.

The court in People v. Roby, 52 Mich. 577, asserts that “as a rule there can be no crime without a criminal intent,” and perhaps implies that it becomes a question of legislative intent for the court to ascertain from the statute. See, also, City of Grand Rapids v. Bateman, 93 Mich., at page 138, where the following quotation from People v. Roby, supra, is found:

‘ ‘ Many statutes which are in the nature of police regulations impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible. ”

Also, see cases cited in 12 Cyc. 148, 149, 151.

In our opinion there is nothing in this legislation to indicate an intent to punish an innocent, though intentional, taking away, and we regard the use of the term “willful ” as “implying an evil intent without justifiable excuse.” See cases cited in Highway Corners of Eagle Township v. Ely, 54 Mich., at page 180. The latter case, cited in support of this conviction, does not in our opinion justify it. The present case is more nearly like that of State v. Preston, 34 Wis. 675, which was distinguished from Highway Com’rs of Eagle Township v. Ely in the latter case.

The judgment should be reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, j.

text:
    VAN DEN BOSCH v. BOUWMAN.
    Sales—Contract—Construction—Retaking Possession—Balance Due.-
    A note given for the price of chattels gave the seller right to-take possession at any time before or after maturity, and to-resell the property, or retain the same without sale, and in such case the amount paid on the note was to be deemed “compensation only for use and wear and tear.” Held, not a conditional sale, but that the seller might retake and sell, and, if the price obtained did not equal the amount due, he might collect the balance from the maker of the note.
    Error to Ottawa; Padgham, J..
    Submitted October 5, 1904.
    (Docket No. 15.)
    Decided December 30, 1904.
    Assumpsit by Peter Van Den Bosch against Torn Bouwman on a promissory note. There was judgment, for plaintiff and defendant brings error.
    Affirmed.

      Leonard Y. Devries (Diekema & Kollen, of counsel), for appellant.

      Sooy & Heck, for appellee.
   Montgomery, j.

Defendant, on receiving of plaintiff possession of the property described therein, executed and delivered to plaintiff the following note:

“$160.00.

“Noordeloos, Ottawa Co., Mich., May 27, 1901.

“ After date I promise to pay to Peter Van Den Bosch, or bearer, One Hundred Sixty Dollars, payable at the residence of Peter Van Den Bosch, Noordeloos, Mich., for value received, by monthly payments of $10.00 per month or more; said first payment to be made J une 10th, A. D. 1901.

“The express condition of the sale and purchase of a sorrel horse, harness, and top buggy, for which this note is given, is such that the title, ownership, or possession does not pass from the said payee until this note and interest is paid in full and that the said payee has full power to declare this note due and take possession of said above-described property at any time he may deem himself insecure, even before the maturity of the note, and upon taking possession, either before or after the maturity of the note, said payee may sell the same either at public or private sale, without notice; or said payee may retain the same without sale, and in such case the amounts paid on this note shall be deemed to be compensation only for the use, wear and tear of said property.

[Signed]

“ Tom Bouwman.”

After certain payments had been made, plaintiff took possession of the property, sold the same for a sum less than the amount remaining due, sued for the balance, and recovered. From this judgment defendant brings error.

The contention is that this was a conditional sale, and that, on the plaintiff reclaiming the property, the consideration for the defendant’s engagement to pay ceased, and that under the holding in Perkins v. Grobben, 116 Mich. 172, and McBryan v. Elevator Co., 130 Mich. 111, the vendor is not entitled to recover the contract price. The question is, What does the contract fairly import ? Courts have no right to refine definitions in a manner to override the' expressed intent of the parties. This contract gave the seller two options: (1) He could retake the property and treat the amount paid as payment for its use and “ wear and tear. ” (2) He was authorized to seize and sell the same at public or private sale. He chose the latter. The question is upon whose account that sale was made under the terms of this contract. The purpose of the sale provided for by the contract is plain. It is to satisfy, so far as the amount realized will do so, the amount remaining unpaid. Can it be said that the intention of the parties as expressed was that whatever remained due should be paid by the maker of this note? We think this question should be answered in the affirmative. There is an express promise to pay, and it is not abrogated nor satisfied by authority given to sell and apply the proceeds of the sale in part payment. There is no reason why contracts of this nature should not be construed and enforced according to the plainly expressed purpose of the parties. Dewes Brewery Co. v. Merritt, 82 Mich. 198; Choate v. Stevens, 116 Mich. 28.

The judgment is affirmed.

The other Justices concurred.


author: Moore, C. J. Hooker, J.

text:
    MORGAN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.

    1. Appeal and Error—Questions Presented for Review.
    A question not raised in the lower court and not referred to in any assignment of error is not presented by the record on a writ of error, and will not be considered, though argued in the brief.
    2. Carriers — Personal Injuries — Passenger on Platform — Contributory Negligence.
    Where all seats in a passenger train were occupied, and a passenger became faint because of the badly crowded condition and poor ventilation of the cars, and, as he could not get to a window to relieve his faintness, sought fresh air on the platform, he was not guilty of contributory negligence as a matter of law under 2 Comp. Laws, § 6303. Hooker and Grant, JJ., dissenting.
    3. Same—Pleading—Cause of Injury.
    A declaration in such a case, alleging that, while plaintiff was standing at the car door holding on to the hand railing, he became unconscious by reason of the foul air, and fell from said train while the same was running at a high rate of speed, and struck with great force on the ground, is a sufficient averment that the speed of the train caused him to fall therefrom.
    Error to Lenawee; Chester, J.
    Submitted October 19, 1904.
    (Docket No. 51.)
    Decided December 30, 1904.
    Case by Marion L. Morgan against the Lake Shore & Michigan Southern Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Weaver, Morgan & Priddy, for appellant.

      Bird & Sampson, for appellee.

       Rehearing denied May 12, 1905.

       As to duty of carrier permitting cars to become overcrowded, including liability for injury to persons riding on platform, see note to Lynn v. Southern Pac. Co., (Cal.) 24 L. R. A. 710.

   Moore, C. J.

The plaintiff recovered a judgment for injuries received by him while a passenger on defendant’s road. The case is brought here by writ of error.

There is scarcely any dispute about the facts. Plaintiff resides near Woodstock station on the Ypsilanti Branch •of the Lake Shore & Michigan Southern Railway. The ■defendant advertised an excursion at reduced rates for the Hillsdale fair in 1901. On the last day of the fair, plaintiff purchased a round-trip ticket to Hillsdale and return, good for that day only. On the way to Hillsdale in the morning there were eleven coaches. On the return trip there were only five coaches in the train, and plaintiff claims that all the seats were occupied, and people were standing in the aisles and upon the platforms; that he made his way up onto the rear platform of the fourth car, and when the train started he stepped into the rear end of the coach, and found standing room near the door; that the car in which he stood was badly crowded, men were smoking in the car, and it was hot, the ventilation was poor, and by the time the train had proceeded three or four miles he felt sick, and thought he would faint, and, not being able to get near a window, he opened the door, and stepped oqt on the platform. Thinking that riding backwards might increase his sickness, he stepped across on the opposite platform, and turned his back to the end of the car, leaned against it, and held onto the hand rail. He stood in this position for a few moments, when he lost consciousness, and rolled down the steps and off onto the ground. He also claims the train was running upwards of 40 miles an hour.

The only question involved here is whether the plaintiff, as a matter of law, under all the circumstances, was-guilty of contributory negligence in going out upon the platform to relieve his sickness. The plaintiff claims he was not. The defendant insists he was, and that a verdict should have been directed in its favor.

Before discussing this question it is proper that we should, say that we are not at liberty on this record to consider the questions of defendant’s negligence, and of whether that negligence was the proximate cause of plaintiff’s injury. These questions were not raised in the lower court. The question of defendant’s negligence is not raised in this court. The question of that negligence being the proximate cause of plaintiff’s injury is raised in this court only in this way:

“ In no view of this case can it be said that any alleged act of the defendant was the proximate cause of the accident to the plaintiff. The sole cause of the accident to' plaintiff was his own act in leaving a place of safety within the coach and assuming a perilous position on the outside.”

We are referred to no assignment of error to which this argument is applicable, and diligent search on our part has enabled us to find none. We therefore conclude, as heretofore stated, that this question is not presented by the record. In deciding this case we therefore assume that while plaintiff was on the platform he was injured in consequence of defendant’s negligence—negligence which was the proximate cause of his injury.

The question then presented for our determination is whether, under the circumstances, plaintiff was negligent in leaving the car and going on the platform, so as to bar his recovery for an injury there received as a direct consequence of defendant’s negligence. It must be confessed there is a want of uniformity in the decisions as to whether a person should be chargeable, as a matter of law, with contributory negligence, in going out upon the platform when no seat was furnished him in the car.

The New York court has held that in going upon the platform, where the company failed to furnish a passenger a seat, he was not, as a matter of law, chargeable with contributory negligence. Willis v. Railroad Co., 34 N. Y. 670.

The Wisconsin court has held that where a passenger voluntarily goes upon a platform, where no seat is furnished him, it is a question for the jury to say whether he was guilty of contributory negligence. Ward v. Railway Co., 102 Wis. 215.

The Minnesota court has held—and this holding has been followed by several other States—that where a passenger voluntarily goes out upon the platform, where no seat is provided for him, but there is standing room in the •car, he is guilty of contributory negligence as a matter of law. Rolette v. Railway Co., 91 Minn. 16.

It is the claim of defendant that the last case mentioned is sustained by the great weight of authority, and should control; citing many cases, and especially Cleveland, etc., R. Co. v. Moneyhun, 146 Ind. 147, which it is claimed is a parallel case to the one at bar. While the case resembles this one in many respects, it may be distinguished in some important particulars. It appears from the opinion in Cleveland, etc., R. Co. v. Moneyhun, supra, that the record does not disclose what made the plaintiff sick. It also appears “ he was not content to stop on the platform, but went upon the lower step, and stood there with his back towards the platform and his head leaning outward.” The court was of the opinion that the facts disclosed a clear case of contributory negligence, and so held. In our view of the case we do not need to decide which of these lines of cases is sustained by the weight of authority. All •of them recognize the rule that, if the passenger is necessarily on the platform because of conditions created by the railway company, he is not precluded from recovering damages.

Section 6303, 2 Comp. Laws, reads:

“In case any passenger on any such road shall be killed or injured while on the platform of a car or while in • or on any baggage or freight car in violation of the printed regulations of the company posted up at the time, in a conspicuous place inside its passenger cars then in the train, such company shall not be liable for the injury, if the injury be occasioned by the person being improperly on such platform, or within such baggage or freight car, or after having been notified by the conductor or any other person having charge of any train that such person is not in the proper place: Provided, said company at the time furnished room and seats inside its passenger cars sufficient for the proper accommodation of its passengers.”

This statute clearly recognizes, by inference at least, that conditions may arise where one would be entitled to recover, even though he was riding upon the platform. There was testimony in the case from which the jury might find, not only that the cars were so crowded that all the seats' were occupied, but from which they might easily draw the inference that the passenger became faint because of the conditions existing as the result of negligence on the part of the defendant, and, as he could not. get to a window to relieve his faintness, he sought what is usually an effective remedy, fresh air, at the only place he could find it. We do not think that it can be said, as a matter of law, that this was contributory negligence.

It is said:

“ It was error for the court to charge the jury where the court states, ‘and you find that plaintiff was thrown- off the platform onto the ground and injured by reason of such sickness so caused, and by reason of the speed of the train—that is, the high rate of speed of the train over this track—or the tipping of the platform on a curve in the track, then plaintiff would be entitled to recover.’ And we submit there was no testimony that would justify this charge as to the high rate of speed as affecting plaintiff’s falling from the train. Nor is there any allegation in the declaration that the speed of the train was in any manner the cause of plaintiff falling from the train.”

The question of the high rate of speed being negligence was not raised. We think there was testimony of the high rate of speed. We also think the following averment was sufficient: . ”

“That while he was standing at said door, holding onto the hand railing on the end of the car, he became and was unconscious by reason of said foul and unwholesome air, and fell from said train while the same was running at a high rate of speed, and struck with great force on the ground.”

Judgment is affirmed.

Carpenter and Montgomery, JJ., concurred with Moore, C. J.

Hooker, J.

(dissenting). That one who disregards the rules of a railroad company so far as to voluntarily ride upon the platform of a passenger coach, in face of the well-known and generally recognized danger of so doing, assumes the attendant risks, is so well established by the authorities in this country that counsel do not appear to question-the proposition. They say in their brief that “ in the case at bar we are willing to admit that, if there was standing room in the car, plaintiff’s standing upon the platform was prima facie negligence, and, if no circumstances had been shown which overcame that presumption, then a verdict should have been directed by the trial judge.” They claim that the rule does not apply because the circumstances show that their client did not so ride, but was there from necessity.

Two reasons are given for his going into a place of danger: (1) He found no vacant seat in. the car. (2) The air was warm and vitiated from the breathing of the passengers, and he felt faintness and suffocation.

The rule of law is succinctly stated in 2 Wood on Railroads, § 308, to the effect that railroads are liable when the injured passenger is compelled to ride upon the platform, but not where he is unnecessarily riding there. The cases there cited support the rule. 4 Elliott on Railroads, § 1630.

It has been suggested in our consideration of this case that section 6303 of our Compiled Laws is a complete answer to the defendant’s claim that the plaintiff was negligent in riding on the platform. It reads as follows:

“(6303) Sec. 2. In case any passenger on any such road shall be killed or injured while on the platform of a car, or while in or on any baggage or freight car in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside its passenger cars then in the train, such company shall not be liable for the injury, if the injury be occasioned by the person being improperly on such platform or within such baggage or freight car, or after having been notified by the conductor or any other person having charge of any train, that such person is not in the proper place: Provided, said company at the time furnished room and seats inside its passenger cars sufficient for the proper accommodation of its passengers.”

The case of Willis v. Railroad Co., 34 N. Y. 675, is cited as an authority for a construction of this statute (which is similar to the New York statute), to the effect that under this statute, inasmuch as it provides that one injured while riding on a platform cannot recover, provided he could háve found a seat in the car, the inverse of this must follow, i. e., that if he could not find a seat in the car he could go upon the platform at the risk of the company. We doubt if that case is authority for such a proposition, and, if it were, it should not, in our opinion, be followed. We have frequently shown the danger of extending statutes by indulging in such inferences, especially upon cases that have been discredited, as that case has. It cannot be said that we took that statute with the construction placed upon it by that case, for it was a part of our law long before that case was decided. See 1 Comp. Laws 1857, § 1988. Moreover, the concession ■quoted from plaintiff’s brief, and the failure to make such claim, indicate that plaintiff’s own counsel do not care to contend for such a construction. It is doubtful if the railroad laws of any State in the Union fail to contain a similar statute, and in few, if any, of them has it been permitted to affect the general rule as to contributory negligence above quoted.

Counsel’s admission, then, relieves us from discussing ■the proposition that the failure to find a seat absolved the plaintiff from the ordinary consequences of voluntarily riding on the platform. That fact created no necessity for his doing so. We have nothing left to consider but the ■condition of the car.

It is not claimed that there was not standing room in the coach, and the evidence shows that the plaintiff had ■only a couple of miles or so to ride before the train would reach a station, at which the crowded condition would be measurably relieved, and he testified that he expected that lie could then get a seat, when he entered the car and found all seats occupied. The plaintiff stood near a door, which was shut, according to his testimony. He did not make known his discomfort to the conductor who took up his ticket, nor to the passengers, some of whom were his acquaintances, and ask them to raise the windows. He did not open the door a few inches, and stand with his face to the opening, or throw the door wide open,* and thus ventilate the car. He was acquainted with the road, had only six miles or thereabouts to go from Hillsdale to North Adams, had gone four miles, expected a seat when two miles more should have been traveled, but opened the door and went out. A fair statement is that he felt the need of better air, and that he went into a place, of danger to get it, without any attempt to have the air in the car changed, or to get relief in any other way, or to endure a few minutes longer, rather than to incur hazard to his life. Doubtless, circumstances might arise which would make it proper to leave a dangerous place for one less dangerous, but there is nothing to show that he was in danger of anything serious in the car, yet he jeopardized his life to escape a comparatively slight discomfort.

In Quinn v. Railroad Co., 51 Ill. 495, the court said:

“This brief statement of the facts, about which there is no controversy, shows there is no ground whatever for maintaining this action. It was the negligence of the deceased, not that of the railway company, which caused his death. He was chargeable with extreme carelessness, and we cannot see on what grounds' any material negligence can be attributed to the company. He had voluntarily taken a dangerous .position which resulted in his death, and there is no reason why the-company should be made to pay damages therefor. Admitting, however, as claimed by appellant’s counsel, that the conductor should have advised the deceased to, enter the car, at least while paying his fare, his failure to-do so was as nothing when compared with the gross negligence of the deceased. The death of the unfortunate man can be attributed only to his own recklessness. It is urged, however, that this question should have been left to the jury. The practice adopted by the court cannot be safely followed in many cases. Whenever there is evidence tending to prove the issue, the plaintiff has a right, to take the verdict of a jury. But if this had gone to the jury, and they had found for the plaintiff, the court should have set aside their verdict, or, if it had refused to-do so, it would have been set aside by this court.”

In Camden, etc., R. Co. v. Hoosey, 99 Pa. St. 492, the court said:

“Assuming for the present that the company was justly chargeable with negligence resulting in injury to the plaintiff, and that under the circumstances he was not guilty of contributory negligence in passing from car to car in search of a seat while the train was in rapid motion, can it be pretended that it would not be gross negligence in him to voluntarily take a position near the outer edge-of the platform and remain there until, by an ordinary jolt of the car, he lost his equilibrium and was thrown off ? * * * He was not only in a position of known danger, but was there voluntarily and in disregard of the rules of the company. There is nothing in the testimony from which a jury would be justified in coming to any other conclusion.”

In Worthington v. Railroad Co., 64 Vt. 107, the court said:

“ Negligence becomes a question of law when the facts or circumstances are so decisive one way or the other as to leave no reasonable doubt—no room for opposing inferences. It is, as a matter of law, prima facie negligence for a passenger to be riding on the platform or step of a rapidly moving steam car. The fact that all the seats in the car were occupied, and the aisles were so crowded that the position of plaintiff was one of discomfort to himself, and of evident discomfort and annoyance to others, does not excuse him for voluntarily occupying a position on the platform while the train was in motion. His claim is that the passage where he stood after giving up his seat was crowded, that most of those in the vicinity were ladies, that the swaying and jolting of the car was one of discomfort to himself and evident discomfort and annoyance to others, and that in consequence of this he concluded to go to the smoking car; that after taking his position on the platform or step he thought he would stay there a few minutes, and then go back into the car which he had left. Thus it appears that the plaintiff had standing room in the car, which he might have continued to occupy, but which he chose to leave in order to free himself from discomfort and annoyance, and that he remained on the platform or the step in order to obtain temporary relief from that discomfort, intending in a short time to resume his former position in the car, which he might have done. But passengers, especially on excursion trains, must expect more or less discomfort, and must endure it rather than assume positions of danger and hazard not provided for their occupancy, for the purpose of avoiding danger. Necessity alone can warrant the assumption of such positions.”

The case of Cleveland, etc., R. Co. v. Moneyhun, 146 Ind. 147, is closely in point. It was held:

“A passenger [a minor 15 years old, and of average intelligence] is, as a matter of law, guilty of contributory negligence in going upon the lowest steps of the car to vomit while the train is in rapid motion, though there was only standing room in the car.”

The plaintiff’s intestate in that case became sick, so that he had to vomit, and went to the platform for that purpose.

In Goodwin v. Railroad, 84 Me. 211, the court said:

‘ ‘ The danger of standing on the narrow platform of a passenger car, while the car is moving with the usual speed of railroad trains, is most conspicuous. No prudent man, no man ordinarily mindful of his conduct and of matters about him, would occupy such a position. The greater the speed of the train, the more imminent the danger in such a place. Thoughtful people instinctively shudder when they see persons taking such risks. Curves are necessarily frequent on railroads in Maine, a fact well known to all, and a fact which makes the riding on the platform of a car most perilous. The knowingly incurring such an imminent, visible peril, the choosing to ride in such a conspicuously dangerous place, must be held by all reasonable people to be recklessness in a high degree. The danger, the chance of injury, is visibly imminent and great. No man of reason can fail to apprehend it. No prudent man would fail to avoid it. There seems to us no room for debate or question upon this proposition. * * *

‘ ‘ Viewing all the circumstances in every light suggested by the counsel, or imaginable by us, we see no escape from the conclusion that Goodwin’s conduct was far below the standard of ordinary prudence, and that such lack of prudence directly caused his injury. Such being our opinion, we must for that reason render judgment accordingly, and set the verdict aside. We have examined every authority cited on both sides, but the above proposition seems to us so clear and simple, so consonant with reason, that we forbear to cite or explain other cases. The curious will find them cited and commented upon in the parallel case of Worthington v. Railroad Co., 64 Vt. 107, published since the above opinion was written and concurred in.”

The Case of Worthington, above cited, contains an elaborate discussion of the questions involved here. Conspicuous among them is the mooted question of taking a question of negligence away from the jury, and many cases are cited in support of that duty. We do not quote the case at length, for it can as well be read. The following, however, is so pertinent to the crucial point that we quote:

“But passengers, especially on excursion trains, must expect more or less discomfort, and must endure it, rather * than assume positions of danger and hazard, not provided for their occupancy, for the purpose of avoiding it. Necessity alone can warrant the assumption of such positions. If they are assumed as matter of choice, and they contribute to injury, there can be no recovery. But what woiuld constitute necessity in such cases it is not easy to say. It may, perhaps, be safely said, in a case like this, when nothing is said nor done by those in charge of the train to control nor influence the conduct of the passenger, that the attendant circumstances must be such as not to leave the passenger free to choose; such as to coerce his action and to compel him to assume the position as the best he could do at the time, acting as a careful and prudent man. The testimony in this case did not tend to show any such coercion of circumstances, any such compulsion ; and therefore the case is that the plaintiff was riding as matter of choice, and not of necessity, in a dangerous place, not provided for the occupancy of passengers, which contributed to his injury; hence the court should have directed a verdict against him.”

See, also, the recent case of Rolette v. Railway Co., 91 Minn. 16. It was there said:

“It is undoubtedly the law, as settled in the best considered cases, that the mere fact that there are no seats in the cars does not justify a person in riding on the platform, for, so long as he can find standing room, by reasonable effort, on the inside of the cars, it is his duty to remain there; and also that, where it is unnecessary to stand or ride upon the platform, going there or standing there is such negligence as will prevent a recovery for personal injuries received; and, further, that while it is true that it was a duty incumbent upon the defendant to furnish a seat for the plaintiff, and not merely standing room in the aisle of the car, the mere fact that he was compelled to accept standing room, especially on an excursion train, would not justify him in voluntarily leaving a place of safety, such as the inside of a coach, and going to one of peril—a platform, for instance. It is well known that passengers on excursion trains expect more or less discomfort and must endure it. They are carried at greatly reduced rates; and must anticipate crowded conditions of the coaches. If they assume dangerous places, it must be upon the ground of necessity alone. If such places are assumed as a matter of choice, and injury results, there can be no recovery.”

The Case of Willis, 34 N. Y. 670, is referred to as follows:

“ This case seems to have been tried, upon the part of the plaintiff’s attorney, upon the theory supported by Willis v. Railroad Co., 34 N. Y. 670, that the plaintiff was entitled to a seat, and, if none was furnished him, he was justified in going upon the platform. It is to be noticed that in the Willis Case the accident was caused by an obstruction upon the track, and that in several other cases cited by counsel the accident was caused either by a sudden lurch of the train or by a defective track; a crowded car having nothing to do with the resulting accident. Such cases are not in point, and we expressly decline to adopt the doctrine that, because a seat is not furnished a passenger, he may go into a place of well-known danger, and, if injured, recover damages. The best considered cases, in our judgment, are to the contrary. Worthingtons. Railway Co., 64 Vt. 107; Camden, etc., R. Co. v. Hoosey, 99 Pa. St. 492; Fisher v. Railroad Co., 42 W. Va. 183; Cleveland, etc., R. Co. v. Moneyhun, 146 Ind. 147; Louisville, etc., R. Co. v. Bisch, 120 Ind. 549; 2 Wood on Railroads, § 308, and note; Beach, Contributory Negligence, § 149.”

The case contains the following comment on the question of proximate cause which we have not felt called upon to decide:

“It seems to be well settled that, even though a passenger is compelled to stand upon the platform of a car by reason of his inability to find sitting or standing room inside, the mere fact that he is injured while so standing is not in itself a cause for action against a railway company, for there must be some intervening act attributable to the latter and causing the injury, in order that the passenger can recover. If the accident is caused by the act of plaintiff himself, or by the act of another passenger, the act not being the natural consequence of the company’s negligence, it is not liable.”

The proposition that a ,man who experiences discomfort from the vitiated or overheated atmosphere of passenger trains may, because he feels nausea, go into a place of danger, against the rules of the company, and thereby make the company an insurer of his life, is so unjust that authorities ought not to be required to make it appear. That they are at variance therewith is, however, attested hy the cases cited.

The judgment should be reversed, and no new trial ordered.

Grant, J., concurred with Hooker, J.


author: Moore, C. J.

text:
    WALKER v. CITY OF DETROIT.
    1. Municipal Corporations —Improvements —Sewers—Assessment op Benefits.
    Where the engineer’s certificate shows that the assessment for sewer construction is in accordance with the resolution directing the assessment, and that the assessment is made in proportion to the benefits to the several lots described, and in accordance with the provisions of the ordinance in such case provided, the certificate is conclusive that the lots were assessed in proportion to the benefits received, as well as by area.
    3. Same—Notice of Construction —Sufficiency of Evidence.
    On a bill by a property owner to canoel a sewer assessment, evidence considered, and held sufficient to show notice of ordering construction of the sewer and proof of service of such notice.
    Appeal from Wayne; Rohnert, J.
    Submitted October 21, 1904.
    (Docket No. 74.)
    Decided December 30, 1904.
    Bill by Bryant Walker, administrator de bonis non with, the will annexed of the estate of Joseph A. Moross, deceased, against the city of Detroit and another to cancel and set aside a sewer assessment. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Walker & Spalding, for complainant.

      Timothy E. Tarsney (John W. McGrath, of counsel), for defendants.
   Moore, C. J.

This suit was brought in March, 1898, to set aside and cancel a sewer assessment on certain lots, situated in the block bounded by Woodward, Milwaukee, and Cass avenues and the Boulevard, in Detroit, made in 1894. The grounds were: (a) The assessment was levied on each lot in the proportion which its area bears to the total area of all lots assessed, and that, owing to the shape and situation of these lots and t the uses to which they are or can be put, and the fact that one had sewer connection before, an assessment so levied is not in proportion to the benefits; (5) notice of ordering construction of the sewer was not served, and no sufficient proof of service is on file. The case was tried in open court. The bill of complaint was dismissed. The case is brought here by appeal.

A blue print is filed in the case, which shows the situation. The Moross homestead embraced the entire block bounded on one side by Woodward avenue, on another side by Grand Boulevard, on the third side by Cass avenue, and on the remaining side by Milwaukee avenue. In 1892 the administrator platted this block, leaving on the side next the Boulevard a strip of land having a width of 61.27 feet, fronting on Woodward avenue, running through to Cass avenue, where it had a like frontage. On the Woodward-avenue side were 15 lots fronting thereon running back to an alley. On the Cass-avenue side there were a like number running to the alley. There was left fronting on Milwaukee avenue lot 16, which had 130 feet frontage thereon and ran back 223 feet. On the rear of the lot it had a frontage on the alley of 95 feet. The homestead was upon this lot. It was platted, with an alley on all sides of it except the Milwaukee side. It has 541.54 feet frontage on the alley. Lot 27 is immediately in the rear of lot 16. It has no frontage on a street, but has this alley on two sides of it. Prior to 1894 the administrator sold all of the lots in the block except lots 16 and 27. In 1894 a sewer was built the entire length of this alley, at a cost of $877, a portion of which was paid by the city, leaving $719.79 assessed to the property abutting against the alley, of which $18.75 was assessed to lot 27, and $216.03 was assessed against lot 16, and it is of these assessments complaint is made.

(a) It is claimed by counsel for complainant the assessment was in fact made according to area. It is argued (we quote from the brief):

“ Our contention is not that a sewer assessment may not be laid in proportion to area, but that when so laid it must correspond substantially with the proportionate benefits ; and that, where the charter and the resolution require the assessment to be made on the property benefited according to the benefit derived, and the ordinance requires it to be made in proportion to area, an assessment which corresponds exactly with the proportionate area of each lot is invalid, even though the assessor’s certificate states that it is in proportion to benefits, the certificate also stating that it is made in accordance with the ordinance, and it appearing from the size, shape, and situation of the lot, its uses, present and prospective, and its existing sewer connection, that equal areas are not equally benefited”—citing Warren v. City of Grand Haven, 30 Mich. 24; Thomas v. Gain, 35 Mich. 155.

An examination of the cases cited will show they are not controlling in this case. A certificate was attached to the assessment roll made by the city engineer, which contained the following:

“To the Honorable the Common Council:

“ I hereby certify the above assessment to be correct, and made in accordance with the resolution of your honorable body, directing said assessment to be made upon the lands or lots comprising the taxing district in said resolution, and also herein above described. I further certify that the above assessment is made in proportion' to the benefits derived by the several lots or parcels of land described herein, and in accordance with the provisions of the ordinance in such case made and provided.”

A fair construction of this certificate is that the engineer assessed these lots in proportion to the benefits received, as well as by area, and his certificate must be regarded as conclusive.

(6) Was there want of notice and proof of service there-, of F This claim rests upon the testimony of Mr. Walker, which is not very positive. He testified that he had “ no recollection whatever of any notice relative to this sewer having been served upon me at the time this sewer started;” that among his papers in connection with this estate there was no notice or reference to any notice having been served upon him.

Q. From this fact, and from the recollection which you have just stated here, what is your belief as to whether a notice was served upon you or not ? A. My best knowledge would be that there was not.”

On cross-examination he says that he is administrator and trustee of a number of estates, three or four, perhaps half a dozen.

“Q. Now, if you find in the public works office an affidavit which sets forth that there was served upon you a notice of the construction of this sewer, would you say that it never had been served ? A. No.

“Q. Then it is simply a matter of remembrance ? A. I have no recollection of it.”

He also testified:

“ I do not know when I first learned of this assessment, whether I knew it before the sewer was constructed, or before the sewer contractor came around, or not. The contractor has been in and out several times in the last three •or four years. I cannot tell how soon after the sewer was constructed he came in, or whether it was a year or six months. I cannot place the time at all. * * * I do not make it a practice to keep notices of assessments served upon me in connection with different estates. I very seldom put them in the files of the estate, because we .generally pay them.”

It should be remembered this testimony was given nine years after the sewer was built. Mrs. Oakman, a married daughter of Joseph Moross, was living on lot 16 when the •sewer was built, and testified that she remembered its construction. On the part of the city a paper was put in evidence entitled, “Proof of service of lateral sewer notice.” It contains a description of the alley, a description of the ■several lots of land ultimately included in the assessment roll, the names of the owners, a statement of upon whom served, whether owner or administrator. On the back of the paper is an affidavit, the material part of which reads:

“L. H. Beck, Jr., being duly sworn, deposes and says ■ that he served the foregoing notices (a copy of which is hereunto attached) as herein recorded, on the dates as set forth, upon the persons herein named, and in the manner .stated.

“L. H. Beck, Jr.,

“Service Clerk.”

Indorsed on it is the following:

“ Proof of service of notice for building lateral sewer in alley in block bounded by Cass, Woodward, Boulevard, and Milwaukee avenue.”

And written thereon is the following: “Pile, Bryant

Walker, Adms. of Moross Estate.” The date of the alleged service is given, and was made three days after the council ordered the sewer and fixed the assessment district. We think there was a failure on the part of the complainant to establish this branch of his case.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    A. L. LAKEY CO. v. CITY OF KALAMAZOO.
    1. Municipal Corporations—Obstructing Watercourse—Liability.
    Arcadia creek which runs through the city of Kalamazoo was obstructed by the contents of a warehouse erected over it afe a point where the owner of the warehouse owned both banks and the bed of the stream. The city was not aware of the obstruction until the contents of the warehouse were removed, and it was able to reach the bed of the creek from the inside, when it cleaned the stream for sanitary purposes. The building did not interfere with the natural flow. The creek was not used for sewerage, and the city had no control over it except under its police power to clean the same, and under its charter to regulate, improve, alter, widen, or change its channel on making compensation for the property taken therefor. Held, that the city was not liable for the obstruction.
    2. Same—Natural Accumulations.
    A city is not liable for damages caused by obstructions in a creek flowing through it, not used as an outlet for its sewers, caused by accumulations washed into it from streets and buildings within the natural drainage area of the creek, and it is hot its duty to keep the sanie at its natural depth and width.
    Error to Kalamazoo; Adams, J.
    Submitted November 16, 1904.
    (Docket No. 97.)
    Decided December 30, 1904.

      Case by the A. L. Lakey Company against the city of Kalamazoo for the flooding of plaintiff’s premises. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    The appellant’s statement of the case is not disputed, and we therefore adopt it. It is as follows:
    This is an action for permitting Arcadia creek to over? flow its banks and flood the plaintiff’s cellar. Plaintiff bad verdict and judgment for $1,760. Arcadia creek is a natural watercourse, draining a portion of the area of the ■defendant city. The city is situated in a valley. The ■■creek has always carried off the rainfall within its natural area, and, as the community grew, streets were paved and laid out across the creek, and the gutters fróm the streets were connected with it. Later, as the city grew, underground waterways known as “storm sewers” were installed (which served substantially the same purpose as the old gutters) which were also connected with the creek, but no sewer or gutter connected with it drained any area except the natural watershed. The creek passes through a thickly settled business portion of the defendant city, and substantially all the large buildings of the city are within the drainage area of the creek. The territory occupied by these buildings has been gradually built up, and the water which falls upon the roofs of the buildings collects and is discharged in some instances into the sewers, but usually on the pavements, from whence by •gutter or storm sewer it finds its way into the creek. On ■June 18 and July 2, 1902, heavy rains fell within the drainage area, and the creek overflowed its banks at or near the plaintiff’s place of business, and the water ran into its cellar, whereby it claims damage.
    The city, although it has never admitted that it was bound so to do, has, as a health measure, always cleaned the watercourses within the city, and very shortly before the 18th of June, 1902, the creek was thoroughly cleaned by the city employés, with the one exception that at the building occupied by the Harrow Spring Company, which faces on Edwards street in said city, and which is but a few rods from plaintiff’s place of business, the workmen were unable to reach the bed of the creek, because for a. considerable distance there were private storage sheds built entirely over it. The sheds had been over the creek for a number of years, and entirely upon private property, and there was no method of 'cleaning it at this place unless the floor of the sheds was removed. Upon inspection, the city employés discovered that there were stored within the sheds harrow teeth and other iron material, and in such a manner that it was impossible for them to reach the bed of the creek. After the floods the Harrow Spring Company moved from their place of business, and then the floor of these sheds was taken up, and it was discovered that harrow teeth had fallen through the floor into the creek in such a manner as to catch debris and drift material, making a dam, which undoubtedly to some extent caused the flood.
    The court instructed the jury that the city had the legal right to turn the surface waters of this watershed of the creek into the creek, and that it had turned no more of the surface water into it than it was justified in so doing. The court also instructed the jury that if they found that the city permitted the creek “to become and be so obstructed on the days in question, and that the obstruction caused the creek to overflow its banks and damage the plaintiff’s property, then the plaintiff would be entitled to recover; provided you further find that the rain storms which happened on those days were such as might ordinarily have been expected to occur in this latitude, although happening at rare intervals.” He further instructed them that if the rainfall was unprecedented, and would have caused the creek to overflow notwithstanding the obstructions, then the defendant was not liable. He also instructed them that it was the duty of the city to keep the creek reasonably clear and free from obstructions, and that it was responsible for the obstructions by the Harrow Spring Company.

      Harry C. Hotvard (William B. Fox, of counsel), for appellant.

      Osborn & Mills, for appellee.
   Grant, J.

(after stating the facts). The overflow of the creek so as to flood the basement of plaintiff’s building was caused either by a great rainfall, or by the obstruction of the Harrow Spring Company, or both combined. Of course, but for-the heavy rains the oyerflow would not have occurred. It is very probable that but for the obstruction the water would have remained within the banks of the creek. The evidence is that no such flooding had before been known. Plaintiff’s manager testified that it had occupied the building ever since it was built; that it had never had a flood to that extent before; that only once before had the water reached its basement, and that was about two years previous; that that overflow was caused by a blockade in the bed of the creek by a firm named Bush & Patterson, who were building a mill, and had lumber and brick piled across the creek. After the first flood plaintiff took no steps to remove .its material from-its basement, because, as its manager testified, “they did not think they would have another flood right on the heels of the first. We never had any damage before; it had never been flooded before; and, basing my judgment upon the line of my former experience, I certainly did not think it would happen so soon again.”

The rule is conceded to be that a municipality is not responsible for damages caused by unexpected and unusual rainfalls, but only for those which experience has shown are liable to occur. City of Coldwater v. Tucker, 36 Mich. 474; Seaman v. City of Marshall, 116 Mich. 327.

It was not claimed by the defend ant in the court below, and is not now claimed, that the court erred in leaving to the jury the question whether the rainfall was unprecedented, or one which might have been expected to occur, although happening at rare intervals.

Two questions are raised: First. Was the defendant liable for the obstruction of the creek by the Harrow Spring Company ? The defendant did not cause the obstruction. It was not aware of- it until after that company had removed the contents of its warehouse, built over the creek, and the defendant had been able to reach the bed of the creek from the inside, the only way it appears by which it could be reached and cleaned. The Harrow Spring Company owned both banks and the bed of the stream. So long as it did not interfere with the natural flow of the water, it had the right to erect buildings over it. The building itself did not interfere with the natural flow. The defendant had no control over the creek (except that inherent in municipal corporations under the police power) to cause it to be cleaned for the protection of the health of its inhabitants. Even under its charter it could only ‘c regulate, improve, alter, widen, or change the channel of Arcadia brook, * * * on making compensation to persons whose property may be taken for such purposes.” The fact that it had caused the stream to be cleaned for sanitary reasons did not make it the duty of the city to • protect owners of land from the overflow of water naturally emptying into it. The creek had not been appropriated by the city for the purpose of sewerage. It was no more liable in damages to riparian owners for water running into it, under the circumstances of this case, than it would be for emptying its surface water into the Kalamazoo river, where its general sewerage is conducted. The riparian owners along such streams are entitled to use them for any legitimate purpose so long as they do not affect the rights of other riparian owners or cause a nuisance dangerous to the health of the inhabitants. Knight v. Barr, 130 Mich. 673. It follows that the instruction of the court that the defendant is liable for the obstruction of the Harrow Spring Company is erroneous. Haynes v. Town of Burlington, 38 Vt. 350; Coonley v. City of Albany, 132 N. Y. 145.

Second. Was the defendant liable for obstructions arising from the flow of water into the creek ? While the instruction of the court is not very specific as to the character of the obstruction for which the defendant is liable, we infer from its general character, and from briefs of ■counsel, that it was held responsible for any obstructions caused by the accumulation of sand and mud in its bottom which the water from the streets and buildings washed into it, and that it was the duty of the city to keep the ■creek at its natural depth and width.

Arcadia creek is a natural watercourse. As the city grew, the watershed of the creek became covered with buildings. Parties who owned land on both sides of it ■erected buildings over it, as they had the legal right to do. Paved streets became" necessary. The speedy discharge ■of the water from the buildings and streets into the creek was essential to the business, comfort, and health of the inhabitants of the city. The authorities are apparently unanimous in holding that under such circumstances the city had ■the legal right to construct pavements and storm sewers to speedily carry off the water into the creek through which it was emptied into the river of Kalamazoo, a short distance -away. In this process some dirt and material, necessarily deposited upon the pavements, would be carried into the ■creek. Some of this dirt and material would perhaps set"tle in the bottom of the creek and lodge along its banks.

The cities and villages in this country are usually situated along the banks of rivers and small streams, into which the water falling upon their paved streets and buildings must be conducted. For the dirt and material thus carried into such streams, the municipalities are not liable to the riparian owners, or to others living in the vicinity. If any such owner is damaged thereby, it is damnum absque injuria. Neither does the law impose upon the municipality the duty to keep the bed of the stream at its original depth and width. As a measure of health, the municipality undoubtedly has the power to clean or cause to be cleaned the bed of the stream and thus accelerate the flow of the water, but the municipality has no other control over it. It owns no land along the banks. The creek is. not a trunk sewer owned by the municipality.

Under the facts of this case the defendant is not liable. Its nonliability is founded in sound reason, and is supported by the authorities. Wilson v. City of Waterbury, 73 Conn. 416; Wheeler v. City of Worcester, 10 Allen, 603; Mayor, etc., of Cumberland v. Willison, 50 Md. 138; Fair v. City of Philadelphia, 88 Pa. St. 309; Kavanagh v. Brooklyn, 38 Barb. 232; Gould on Waters, § 270.

The learned counsel for the plaintiff cite and rely upon Ashley v. City of Port Huron, 35 Mich. 296; Rice v. City of Flint, 67 Mich. 401; Seaman v. City of Marshall, 116 Mich. 327; Manning v. City of Lowell, 130 Mass. 21; Brayton v. City of Fall River, 113 Mass. 218; O'Brien v. City of St. Paul, 18 Minn. 176; Clay v. City of St. Albans, 43 W. Va. 539; Noonan v. City of Albany, 79 N. Y. 470; Barton v. City of Syracuse, 36 N. Y. 54; Stanchfield v. City of Newton, 142 Mass. 110; Parker v. Nashua, 59 N. H. 402; Mayor, etc., of Waycross v. Houk, 113 Ga. 963.

In Ashley v. City of Port Huron the city cut a sewer in such a manner as to cause a collection of large quantities of water upon the plaintiff’s land which would not otherwise have flowed there.

In Rice v. City of Flint the city made a dam by raising the grade of the street, so that the water overflowed1 the plaintiff’s premises.

In Seaman v. City of Marshall the city was held negligent in not providing reasonably efficient means to< carry off the water which should reasonably have been ex. pected to accumulate.

In Manning v. City of Lowell the territory which was. drained of its surface water was very much greater than the extent of territory which would be thus naturally-drained without the intervention of the artificial means constructed by the city. In other words, the city took water which would not naturally flow upon defendant’s land, and discharged it upon his land.

In Brayton v. City of Fall River the city drained by its system of sewers a territory of 60 or 75 acres, and emptied it into a creek, whereas only about 15 to 20 acres naturally drained into it.

In O'Brien v. City of St. Paul the area of the drainage through the sewer is not clearly shown. It is stated that by means of the sewer the city conducted to and emptied upon the plaintiff’s premises a greater body of water than the natural flow of water through the watercourse—wore away the banks and soil to a much greater extent than would have been caused by any stream naturally flowing through said watercourse. If it is meant by this that a municipality cannot pave its streets and construct storm sewers so as to convey water more rapidly into the creek than it would naturally flow, it is against the clear weight of authority, and against the instruction of the court in this case.

In Clay v. City of St. Albans we gather from the statement of the case' that the city, by its gutters and drains, collected surface water and cast it in a body onto plaintiff’s land. It is not a case of draining into a creek or natural watercourse.

In Noonan v. City of Albany the water was collected from the lands and streets of a municipality into an artificial channel and discharged upon plaintiff’s lands. The defendant in that case, by means of sewers and manner of grading, concentrated the surface water and sewage of a large territory and discharged it in one body into a ravine where a small rivulet formerly ran.

Barton v. City of Syracuse involves the duty of the municipality to keep its sewers in proper repair and prevent their becoming filled with dirt and rubbish, thus impeding the overflow of the water, and causing it to set back upon the lands of lot owners. Stanchfield v. City of Newton is a similar case.

In Mayor, etc., of Waycross v. Houk the plaintiff sought to enjoin defendant from continuing or from extending a main sewer so that the sewage would be discharged directly upon her land. The basis of the decree in that case was that the nuisance should be abated as dangerous to life and health.

In Parker v. Nashua the liability was based upon the negligent management of the municipality in not keeping a culvert free from obstructions.

We are of the opinion that those cases do not apply to this one.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    SPIER v. CITY OF KALAMAZOO.
    1. Saving Question for Review—Instruction—Sufficiency.
    In an action against a city, a request by defendant for an instruction that, “in order for plaintiff to bring suit, it is incumbent on him to show that he has presented a claim to the city in accordance with the statutory requirements. He has offered in evidence a paper which he says is a claim, but in which he fixes no sum for his damages”—is not sufficient to raise the question that the claim was not presented within the time limited by the charter.
    2. Municipal Corporations—Actions—Notice of Claim—Sufficiency—W AIVER.*
    Where a notice of claim for damages against a city was given, and was recognized and acted on by the city council without objection that it did not state the amount of damages claimed, such objection cannot be raised in an action on the claim.

      3. Same—Contracts—Ultra Vires—Estoppel.
    Where a city, in consideration of its agreement to make certain street improvements, has obtained a deed of land from plaintiff for a street, and has drawn therefrom a large amount of materials for its streets, and plaintiff cannot.be placed in statu quo, the fact that an insignificant part of the contract was void because ultra vires will not defeat the whole contract.
    Error to Kalamazoo; Adams, J.
    Submitted November 16, 1904.
    (Docket No. 98.)
    Decided December 30, 1904.
    Assumpsit by Samuel O. Spier against the city of Kalamazoo for breach of a contract to open and grade a street. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Harry C. Howard (William JR. Fox, of counsel), for appellant.

      A. M. & G. H. Stearns, for appellee.
   Moore, C. J.

This is an action brought upon a contract which plaintiff claims the city made with him. He recovered a judgment. The case is here by writ of error.

It is the claim of plaintiff that the city desired to put a street through his property, and the street commissioner and aldermen composing the street and bridge committee entered into negotiations with him for that purpose; that he made them a proposition that if the city would open up a four-rod street from Davis street to Asylum avenue, and pave the gutters to the top of the hill, and put the street in good shape, he would give the city the right of way across his land. The north side of Wheaton avenue was to be the center of the street through his property, and, if they turned at Short street, it was to be a certain grade at the top of the hill; and, if they went straight through, it was to be of another grade at that point, with a 10 per cent, grade in either event to Davis street. He also claims the street and bridge committee favored the opening of the street, and the street commissioner advised plaintiff that, in order to get the matter before the council, it would be necessary to have a petition for opening the street, and directed him to the chairman of the street and bridge committee, who was present when the proposition was made, and who prepared, or caused to be prepared, a petition for the opening of a four-rod street from Davis street to Asylum avenue, and which petition, the signatures to which were obtained by Mr. Spier under instruction of city officials, was presented to the council May SO, 1895, and referred to the committee on streets and bridges, and by the committee immediately reported back favorably, and the same was adopted by the unanimous vote of the council. He further claims the city took possession of the street, caused same to be surveyed by its engineer, the grade stakes set, and at once commenced hauling out material for filling other streets in the city, which has ever, since been continued by the defendant. That the proposition was known not only to the members of the street and bridge committee, but was discussed in open council. That he afterwards made a deed to the city, and the city council ratified and confirmed the contract in October, 189?, when the deed for the street was accepted. He produced testimony tending to support this claim. The claim of the city will appear in the assignments of error which its attorneys discuss. The first group of assignments of error present the questions of whether (a) the claim was presented within the time limited by the charter. (&) Do the provisions of the charter cover claims of this character ? (c) Was the claim which was presented sufficiently specific as to the details of the claim, and in its statement of the amount claimed ?

We deem it necessary to discuss only “ a ” and b.” As to “a;” It is claimed by plaintiff that no contention was made in the court below that the claim was not presented to the city in time, but, on the contrary, a defense was interposed inconsistent with such a claim. Counsel for defendant insist such a contention was made in the ■court below. All that was said upon that subject in the court below is as follows:

Ninth request: “In order for the plaintiff to bring suit, it is incumbent upon him that he show that he has presented a claim to the city of Kalamazoo in accordance with the statutory requirements. He has offered in evidence a paper which he says is a claim, but in which he fixes no sum for his damages. Therefore he is not entitled to recover, ■as it is a condition precedent to his beginning suit that he present a claim to the city council as above set forth.”

Fourteenth request: “If you find that there was no time in which the alleged contract was to be performed, then you will be justified in finding that the city of Kalamazoo has not unnecessarily delayed the performance of its contract, as in such case it might perform the contract at any time; and, if you find that it was not reasonably possible to complete the street before the beginning of this suit, then your verdict should be for the defendant—no cause of action.”

Fourteenth and one-half request: “If you find that it was impracticable to lay the stone gutters and gravel the street until the abutting property was brought to a point near the street grade, then, in that1 event, you would be justified in finding, and you should find, that there had been no unreasonable delay on the city’s part, and your verdict should be for the defendant—no cause of action.”

Additional request: “ The court is requested to charge that any claim under the alleged contract is barred by the statutes of limitation, and therefore the plaintiff cannot recover.”

It will be observed that the ninth request does challenge the attention of the court and counsel to the infirmity in the claim which was presented, and states the infirmity to be that no sum for his damages was fixed therein by plaintiff. When this was followed by requests 14 and 14^-, it is very clear neither court nor counsel was advised that objection was made because the claim was not presented in time.

The additional request to charge is to be read in the light of the fact that the statute of limitations was pleaded as a defense, and it was the claim of defendant upon the trial that the contract was made in 1895, while the suit was not begun until June, 1903, and for that reason could not be enforced. When so read, we think it clear the additional request did not refer to the contention that the claim of plaintiff was not presented to the common council in time. Under these circumstances, we think the point cannot be urged here.

(6) Was the claim presented to the common council too-indefinite ? May 7, 1900, Mr. Spier sent to the common council a sworn claim against the city, in which he recited at length his relations with the city, and concluded with the following:

“That by reason of the failure of said city to perform its obligations and contracts in regard to the opening of said street for five years past, that he has been greatly damaged in not being able to put his lots upon the market and to sell them, and also by the unsightly condition in which said premises have been placed by the removal of the sand, gravel, and other materials taken from his said premises, and of which the city has had the benefit; and he therefore claims that said city is indebted to him in a large sum of money on account thereof, and prays that he may be reimbursed therefor,” etc.

This claim was minuted on the records of the council meeting, and referred to the committee on claims. Mr. Spier was notified to appear before the committee, and was in attendance at the time and place mentioned, but nothing was done. In this case the notice was given. The council recognized it was received. A claim was made therein for damages. No suggestion was made that it ought to be for a stated amount. Had such a suggestion been made, it could easily have been remedied. The claim now made is technical. The principle involved had our attention in Holtham v. City of Detroit, 136 Mich. 17, and Beattie v. City of Detroit, 137 Mich. 319. We do not think this defense is well taken.

The next question calling for consideration is, Was the contract ultra vires, as claimed by defendant ? This contention is based upon the claim that the contract created an indebtedness, and that the city had an indebtedness already to the limit of the amount it was allowed to create. This claim is disputed by the plaintiff. He also contends that, even though this claim was true in 1895, it should not control this case, in view of the results which have come to the city by the transaction. His claim is that the city has obtained a deed for a street which it retains; that it has caused to be drawn away a large amount of material for its streets, which it has not offered to return; that it has not placed plaintiff in statu quo, and the case is governed by Coit v. City of Grand Rapids, 115 Mich. 493. In this case there is a full discussion of the defense of ultra vires, with citation of many authorities. We think the case at bar comes within the Coit Case.

The other assignments of error have had our consideration, but we do not think it necessary to discuss them.

Judgment is affirmed.

The other Justices concurred.