text:
      In re WILLIAMS’ ESTATE. McKEAND v. JONES.
    1. Wnxs — Competency—Insanity—Testamentary Capacity.
    Evidence tending to show that the testator was a man of more than average education and intelligence, was subject to fits of anger, nervousness and irritability, that he used extravagant and profane expressions, and including testimony of three witnesses who stated their opinion that he was incapable of making a testamentary disposition of his estate, held, insufficient to require the court to refuse to admit the will to probate.
    2. Same — Business Ability.
    Although business ability may be evidence of mental capacity sufficient for the execution of a valid will, the fact that the testator had disposed of funds he had received from the sale of property prior to his death was not evidence of insanity or mental incapacity.
    3. Same — Evidence—Extravagance.
    The court did not commit reversible error at the trial of a will contest in excluding from the evidence deeds of the testator of $28,000 worth of real property that he was alleged to have disposed of during the last twelve years of his life. The proof which was offered to show bad business judgment was not sufficient to establish that he had disposed of more than was necessary to decently maintain the testator and preserve his remaining property.
    4. Same — Undue Ineluence — Suspicion.
    Undue influence cannot be based upon mere suspicion: there must be direct or circumstantial evidence which tends to establish that actual improper influence was exercised; the fact that testator disposed of his property by will in favor of his intimate friends who were not shown to have requested such disposition was insufficient ground to establish undue influence.
    5. Same.
    Evidence considered and held, insufficient to show that the beneficiaries of testator’s will exercised any improper influence upon, the decedent.
    6. Same.
    Nor could undue influence be presumed or inferred from the fact that the testator devised a considerable portion of his estate to an intimate friend who had been his business adviser in relation to his property and the methods of preserving and disposing of the same, whose services, however, had been voluntary: no confidential relation existed which could give rise to a presumption that decedent’s judgment was improperly affected. Opportunity alone is held not to warrant the inference of undue influence.

      7. Same — Unnatural Disposition — Omission of Kin.
    The fact that testator omitted from his will a sister from whom he had been estranged for a long period of time and whose children were remembered in the will was insufficient to require the court to submit the question of undue influence to the jury.
    Error to Oakland; Smith, J.
    Submitted January 22, 1915.
    (Docket No. 72.)
    Decided March 18, 1915.
    James E. Jones presented for probate the last will of Julien Williams, deceased. From an order admitting the same to probate Mary F. McKeand appealed to the circuit court. Judgment for appellee. Said appellant brings error.
    Affirmed.

      Perry & Lynch, and Robert T. Speed, for appellant.

      John H. Patterson, Sylvester Pheney, and Lloyd L. Axford, for appellees.
   Brooke, C. J.

On the 22d day of January, 1909, Julien Williams made the following will:

“I, Julien Williams, of the township of Waterford, county of Oakland and State of Michigan, being of sound disposing mind and memory, do make, publish and declare this my last will and testament in manner following:
“First. After the payment of all my just debts and funeral expenses, I give and devise to my nephew, Ferdinand W. Tilden, of Detroit, Michigan, his heirs and assigns, my farm of two hundred (200) acres situated in the township of Waterford, Oakland county, Michigan, in sections seventeen (17), eighteen (18), and eight (8>, and I hope my said nephew will retain possession of the property, this old homestead, in memory of his grandfather and grandmother, Ferdinand and Phoebe Williams, who passed the best years of their lives there.
“I also give and devise to my said nephew, Ferdinand W. Tilden, his heirs and assigns, the following real estate in the city of Detroit, Wayne county and State of Michigan, to wit: Lots numbered thirty-seven (37), thirty-eight (38), thirty-nine (39), and forty (40) of F. Williams subdivision of out lot numbered thirty-seven (37) of private claim number thirty (30).
‘T also give and bequeath to the said Ferdinand W. Tilden the sum of one thousand ($1,000.00) dollars, to be used and expended by him in procuring a new monument of granite when needed to replace the marble one in the Drayton Plains cemetery and in caring for the graves of his grandfather and grandmother and his uncle Saxton, and also the graves of his uncles Ferdinand, Jr., and Theodore, on the bank of Williams Lake on the farm.
“I also give and bequeath to the said Ferdinand W. Tilden all my books, book cases, pictures, papers and household furniture, all my guns, revolvers and arms and the collection of Indian arrow heads and spear heads, &c., gathered by my father and self.
“It is my wish that my said nephew shall place this collection of guns, revolvers, arms and Indian relics, when he is done with them, in some public museum, where they can be kept together and protected. I also give to my said nephew my gold watch and some silver spoons and some gold, silver and copper specimens, as also my large iron safe.
“Second. I give and devise to my • nephew Mc-Kinstry Burt, of Detroit, Michigan, son of my sister Flora, and to his heirs and assigns, lots one (1), two (2), and three (3) of F. Williams subdivision of out lot numbered twelve (12) in private claim number thirty (30) situated in the city of Detroit, Wayne county, Michigan.
“Third. I give and devise to Howard Davenport, of Pontiac, Michigan, son of my niece Flora Davenport, and to his heirs and assigns, my out lot of forty (40) acres in section six (6) situated in the township of Waterford, Oakland county, Michigan, and also my silver stem-winding watch which belonged to my brother Saxton.
“Fourth. I give and bequeath to my niece Flora Davenport or her heirs, the sum of two thousand ($2,000) dollars.
“Fifth. I give and bequeath to my esteemed cousin the Rt. Rev. G. Mott Williams, bishop of Marquette, Michigan, two solid silver spoons, one table and one dessert spoon, heirlooms of the Mott and Williams families, bearing the initials respectively ‘G. E. M.’ and ‘J. M. W.’ believing that my said cousin will appreciate these relics more highly than any of my nearer relatives.
“Sixth. I give and devise to my two highly valued friends, James R. Jones and his wife, Alice Isabell Jones, of Holly, Oakland county, Michigan, and to their heirs and assigns, the following real estate situated in the city of Detroit, Wayne county, Michigan, to wit: Lot numbered four (4) of Williams subdivision of private claim number thirty (30) lying on the south side of Jefferson avenue, west, at the foot of Summit street, according to the plat thereof recorded in the office of the register of deeds for said Wayne county.
“I also give and devise to them lots numbered one (1), two (2), three (3), four (4), and five (5) of F. Williams subdivision of out lot numbered thirty-seven (37) of private claim number thirty (30) situated on the south side of Toledo avenue, in the city of Detroit, Wayne county, Michigan.
“In making the aforesaid bequests to my friends, Mr. and Mrs. James R. Jones, it seems proper for me to state, in justice to each of them, that neither of them have at any time mentioned the subject of my leaving them any property, nor have they exercised or attempted to exercise any influence over me to cause me to remember them in this my will, and our relations have always been of the most honorable character from beginning to end. But they have both shown me great kindness and true friendship for many years, during which time their house has been mostly my home.
“Seventh. I give and bequeath to my esteemed young friend, Miss Fay Maybee, daughter of my friend, John Maybee, of Independence, Oakland county, Michigan, the sum of $1,000.00.
“Eighth. I give and bequeath to my niece, Florence Cooper, or her heirs, the sum of two thousand ($2,000) dollars, West Branch, Michigan.
“Ninth. I give and bequeath to my old schoolmate and friend of my sister Flora, Mrs. Carrie Wilcox Hoyt, of Pontiac, or her heirs, the sum of one thousand ($1,000) dollars.
“Tenth. I give and bequeath to my old friend, Mrs. Manuel R. Phillips, of Waterford, Oakland county, Michigan, the sum of five hundred ($500) dollars, in appreciation of her kindness and the good and faithful services she rendered my sisters Emily and Elizabeth and my mother during their last sickness.
“Eleventh. I give and bequeath to my friend Prof. Homer Robbins, of Ann Arbor, Michigan, son of my much esteemed friend Elmer Robbins, deceased, of Waterford, Michigan, the sum of five hundred ($500) dollars.
“Twelfth. I give and devise to my executors hereinafter named, and to their successor or successors, the following real estate in trust, and I hereby direct, authorize and empower, them to sell and convey the same by good and sufficient deed or deeds as soon as it can be done by them, without sacrificing the property, and apply the proceeds derived therefrom in paying the debts and various legacies named in this instrument, such legacies are not to bear interest, to wit: Lots numbered four (4) to twenty-two (22), both inclusive, and the north twenty-one (21) feet of lot numbered twenty-three (23), all in F. Williams subdivision of out lot twelve (12) private claim number thirty (30), situated between Fort street and the Wabash R. R. track, on the west side of Ferdinand St., in the city of Detroit, Wayne county, Michigan. Also lot numbered five (5) of P. Williams subdivision of out lot thirty-one (31) of private claim number thirty (30), situated on the south side of Dix avenue, in the city of Detroit, Wayne county, Michigan.
“Thirteenth. All the rest, residue and remainder of my estate, both real and personal, of whatever kind and description, I give, devise and bequeath to Ferdinand W. Tilden, of Detroit, Michigan, and James R. Jones, of Holly, Michigan, in equal shares.
“And lastly I do nominate and appoint my friend James R. Jones, of Holly, Michigan, and my nephew Ferdinand W. Tilden, of Detroit, Michigan, the executors of this my last will and testament, hereby revoking all former wills by me made.
“In witness whereof, I have hereunto set my hand and seal this 22d day of January in the year of our Lord one thousand nine hundred and nine (1909).
[Signed] “Julien Williams. [L. S.]
“The foregoing instrument was. at the date thereof signed, published and declared by the said Julien Williams to be his. last will and testament, in the presence of us, who, at his request, and in his presence and in the presence of each other, have signed our names as witnesses thereto.
“Chables A. Wilson, Holly, Michigan.
“William L. Plumee, Holly, Michigan.”

The will was admitted to probate in the probate court for Oakland county, and an appeal was taken to the circuit court, where its probate was contested by Mary F. McKeand, a sister of the testator, upon two grounds: Those of mental incompetency and undue influence.

A brief historical sketch of the testator will be found interesting, if not valuable. Julien Williams was born in 1840. He was the son of Ferdinand Williams and the grandson of John R. Williams, who in his lifetime was a man of considerable prominence in the city of Detroit. Testator’s mother died in 1892, and his father in 1896. The testator was graduated from the legal department of the University of Michigan in 1863, shortly after married, and lived with his wife in the city of Detroit for a time. She, however. in a few years obtained a divorce from the testator, and thereafter he remained single. No children were born of this union. After his graduation he opened a law office in the city of Detroit, which he continued for about ten years. He did little legal business, except to look after the property interests of his father and mother, which seem to have been rather considerable. For a time after leaving Detroit, he lived with his mother at the village of Waterford, in Oakland county, and after her death he lived upon a farm that was owned by his father in the same county. This farm consisted of about 200 acres, mostly covered by lake and forest. The record discloses that the testator was not a farmer, in the ordinary sense of the word; that he whs fond of fishing and hunting, frequently going upon trips indulging in these pastimes. He lived a life of leisure for the most part, and seems to have been somewhat of a recluse, much of the time residing upon the farm in question and doing his own cooking. Upon the death of his mother, he seems to have inherited some property, and, when his father died testate in 1896, he inherited a very considerable estate from that source. The will of his father had been made some 30 or 40 years prior to his death. Under its terms Julien Williams claimed to take as residuary legatee all of his father’s estate, except that specifically devised to others. A considerable portion of the estate seems to have been acquired by his father after the making of the will, and his older sister, Mary F. McKeand, took the view that .such portion should descend to his heirs at law as undevised property. A contest was had between the testator and his sister Mrs. Mc-Keand, in which this court determined that the contention of Mrs. McKeand was proper. This contest occurred between the years 1897 and 1899. It involved a considerable amount of expense for counsel, and seems to have engendered in the testator a very bitter feeling toward his sister Mrs. McKeand. He seems to have rested under the belief that he had been wrongfully deprived of a portion of the patrimony his father had intended him to enjoy. After the death of his father, the testator, who had been on fairly friendly terms with his sister up to that time, ceased all communication with her. The record discloses but one or two exceptions. In 1911 he appears to have sent her by her daughter’s hand a jar of honey, and upon one other occasion is said to have written her a note inviting her to wHit him. This letter was not produced.

James R. Jones and his wife, who are devisees under the will of property of the appraised value of $18,600 and one-half of the residue of the estate, were friends and acquaintances of the testator for more than 30 years prior to his death, which occurred in November, 1912. For a time Jones was in business at the village of Waterford, and at an early day seems to have joined the testator in various hunting and fishing trips. They usually had a camping party once each year, and the testator and Jones and his wife were members of the party, which usually contained 15 or 20 persons. Later Jones moved to the village of Holly, where he likewise was engaged in business. The testator was a frequent and welcome visitor at his house, usually spending a day or two at ■ a time. On one occasion he boarded with the Jones family for about three months, sleeping at home. Within the past 15 years, the testator, Jones, and his wife made three trips to Florida and one to the Pacific coast. On these occasions Jones paid the expenses of himself and wife, while the testator paid his own. The first services rendered by Jones to the testator seem to have been in connection with the will contest over the estate of the testator’s father. The exact character of these services the record fails to disclose, but that such were rendered there is no question. About the year 1904 an arrangement was made between the testator and Jones, by the terms of which Jones agreed to assist the testator whenever required, in the care or disposition of his property, consisting principally of a large number of lots in the city of Detroit, in consideration of which the testator agreed to pay Jones more than he had been receiving up to that time, which appears to have been $65 to $75 per month. Under this arrangement, very many transactions were handled on behalf of the testator in whole or in part by Jones. Lots were sold, taxes paid, rents collected, sidewalks cleaned, and many other services of like character were rendered by Jones for Williams from time to time from the date the arrangement was made up to the time Williams died. During this period Williams continued to live mostly alone upon his farm in Oakland county, while Jones and his wife lived in Holly. The business being carried on required a considerable correspondence between the parties, and many letters from Jones to the testator were produced by the contestant and offered in evidence. After a careful examination of these letters by the court below, they were excluded. Contestant likewise offered in evidence some '29 deeds bearing date during the years 1901 to 1912, inclusive. These deeds were made by the testator to various persons. They covered certain lots in the city of Detroit, and the aggregate consideration was in the neighborhood of $28,000. After considerable argument, the learned circuit judge likewise excluded these deeds. .At the conclusion of the testimony received on behalf of contestant, and again after all the testimony introduced on both sides was in, counsel for proponent moved the court for a directed verdict upon the ground that no evidence had been introduced tending to show either incompetency on the part of the testator to make the will in question, or that the execution of said will had been induced by the exercise of undue influence on the part of James R. Jones or his wife. After full argument on said question, the learned trial judge withdrew from the consideration of the jury the question of undue influence, but permitted the case to go to the jury upon the ground of mental incompetency. The jury returned a verdict sustaining the will, and the case has been removed to this court on writ of error.

The errors assigned upon the admission or exclusion of testimony, with the exception of those relating to the letters and deeds, have been examined and are, we think, without merit. Those relating to the deeds and letters will be considered later. As. bearing upon the question whether proponent’s motion for a directed verdict should have been granted at the close of the testimony offered on behalf of contestant, it is pertinent to examine that testimony so far as it relates to the mental incompetency of the testator.

The first witness tendered by the contestant was James H. McDonald. He had known the testator since 1878, and had occupied an office with him for ten years. He testified that the testator was a very nervous man. That

“he could not stand and argue a question without getting all wrought up, and when he became wrought up he would jump up, and if the argument got pressing at all he would run off across the room, usually with an oath or strong words, something of that kind. Something that ought to finish the argument, as he thought, and it was impossible to get him down to close argument; that is to say, to get him down to the point of argument or anything of that sort. * * * I would say that his will power was not strong. * * * He would worry over what would, I think, seem to the ordinary man to be a trifle.”

Mr. McDonald was asked the following question:

“Mr. McDonald, taking into account your knowledge of the deceased, Julien Williams, and your knowledge of the extent of his property and his relations, what would you say as to whether he had sufficient strength of mind at the time this instrument purports to have been executed to comprehend and appreciate his relation to his family and those who are or ought to be the objects of his bounty and his obligation to them, if any?
“A. The fact is, I don’t think he would. Now, if I am able — ”

On cross-examination the witness was interrogated categorically as to whether he believed the testator knew his relatives and the amount of his property, and he testified that he believed he did, and finally:

“Q. Well, wouldn’t he understand the whole of it?
“A. Well, I guess, as to the legal aspect of the whole of it, I think so.”

On redirect examination, when asked by counsel for contestant why he had expressed an opinion against the mental competency of the testator, he answered:

“The reason I answered the question as I did was that Mr. Williams was so nervous by nature and was so easily agitated by very small and trifling things that I did not believe he could trust his own judgment even to decide between his relatives and friends what should be done with-his property after his death.”

The record discloses that Mr. McDonald appeared for the contestants in the probate court, and at the time of his examination was acting as advisor to the contestant, so that he hardly stands in the position of an unprejudiced witness.

The next witness, William Norton, testified that he had occasionally seen the testator in fits of anger. On one occasion testator became angry with him because the witness had failed to meet him at a certain train according to an agreement.

George H. Chapman testified to seeing the proponent in an outburst of passion some 12 years prior to the hearing, and at other times since. Upon one occasion, when testator became angry, he was being annoyed by some boys on Halloween.

Walter W. Whitfield, Jr., a neighbor of the testator, testified to an exhibition of passion on the part of testator on an occasion arising over the failure of the witness to secure for the testator some wire fencing which he had ordered and which did not arrive as early as testator believed it should.

William Tode testified to a disagreement with the testator some six years ago, in the course of which he said the testator put his hand behind his back, the inference being that on the occasion in question the testator had threatened to shoot him, and on another occasion testator had said to him, “Why, damn you, I will shoot you.” The trouble upon this occasion arose out of a charge made by the testator that the little boys of the witness had been meddling with the testator’s mailbox.

George Tuller testified to an occasion in 1852, when the testator was about 12 years of age, that he drew a revolver or pistol and threatened to use it upon some boys who were annoying him.

William Tuller testified:

“He was very liable to fly into a passion. He frequently did. All the time that I knew him.”

Hr. Frederick Thompson, a nephew of the testator, testified:

“He would stand no opposition. If any opposition was made to my uncle he would fly into a rage, and very likely after expressing himself in a vigorous manner he would get out, take his hat, and go away. In expressing himself in that vigorous manner, the character of his language was profane and abusive in the extreme, and he was fluent. He grew worse as he grew older, in that respect. If not opposed in any way, he was a very agreeable person. He was very liable to — very susceptible to flattery. During my acquaintance with him and experience with him he became angry at me a very great many times. He was very nervous. He could not sit down and talk a few minutes with you without — if there was the slightest difference in the argument he couldn’t sit down and argue it out and come to the end by mutual agreement. He couldn’t stand it. He would get up if things grew tedious and would move.”

This witness expressed the opinion that the testator’s mental condition was such that he did not know his relatives and comprehend their claims, if any,

upon him. On cross-examination he testified in part as follows:

“Q. Don’t you think that Mr. Williams in 1909 knew who his relatives were?
“A. By name.
“Q. Don’t you think he knew how many he had?
“A. Perhaps in number he could recall; very likely.
“Q. You don’t think he knew your mother was his only surviving sister?
“A. I think he did.
“Q. Don’t you think that he appreciated the fact that McKinstry Burt was the only son of his deceased sister?
“A. Very likely.
“Q. Don’t you think that he knew that Ferdinand Tilden was his nephew?
“A. I do.
“Q. And that he was the son of his sister, Mrs. Til-den, who is dead?
“A. Yes, sir. *
“Q. Don’t you think that he knew also that Mrs. Cooper was his niece?
“A. I think very likely he did.
“Q. Don’t you think he had mind enough to retain in his memory the fact that these persons I have named were his only relatives who would be his heirs at law, without a will ?
“A. It is hard work to answer without a qualification, but I think very likely he did.
“Q. You had no doubt but what your uncle Julien Williams knew that Mrs. Davenport was your sister?
“A. No, I don’t.
“Q. And that Howard Davenport was her son?
“A. Yes.
. “Q. Do you have any doubt but what he knew what property he had when he made that will?
“A. I think he very likely did.
“Q. Do you think that your uncle knew that your mother had received property from her father and uncle James Mott Williams?
“A. He did.
“Q. Do you think that he had mind enough to appreciate the fact that you and Mrs. Coopei and Mrs. Burt received property from J. Mott Williams?
“A. Yes, sir.”

Mrs. Nellie Woodruff had lived upon the Williams farm for 7*4 years, in a part of the house, the other portion of which was occupied by Williams. She did some of the household work for Williams, and occasionally cooked for him. She expressed no opinion as to the competency of the testator to make the will in question, but testified that the testator objected to obtaining his milk from a certain family, assigning as a reason that he was afraid he would be poisoned.

Mrs. Mary F. McKeand testified that her brother, the testator, was always fretful and wanted his own way in everything and that he frequently indulged in threats toward the person against whom he had his anger. She expressed no opinion upon the question of competency.

Her daughter, Mrs. Flora Davenport, testified:

“My uncle was very nervous, and he would get angry very easily. When angry he was generally very profane, and was not very particular what he said to you.”

On cross-examination this witness testified that she visited her uncle in either 1910 or 1911 and had a considerable conversation with him; that she stayed about three-quarters of an hour.

“Q. Your uncle seemed to be all right mentally when you saw him on that occasion at the farm, didn’t he?
“A. As far as I know.
“Q. You didn’t notice anything wrong with him then?
“A. No.
“Q. You never noticed anything wrong with him mentally?
“A. Well, no, I can’t say that I ever have.”

Albert Davenport, husband of Flora Davenport, testified that after 1895 the correspondence between the testator and the wife of witness had ceased. On direct examination he expressed no opinion as to the mental capacity of the testator. On cross-examination he said:

“The last time I had any conversation with Julien Williams I could not say that I noticed anything wrong with his mind or his mental capacity.”

Mrs. Carrie Brazington, who lived for a time in the same house with the testator, said of testator:

“Why, he was very pleasant, and sometimes he was not so pleasant. * * * He didn’t have anything to do with us, nor wouldn’t speak to us at all until he got over his spell, and all at once he would come around and be all right and be pleasant and seem to be all right, but he never would say anything.”

She detailed circumstances of a demand made by the testator upon her for an old cook stove which she had understood had been given to her by the testator.

George Richardson testified that nine years before the trial he was fishing on the lake upon testator’s farm. He said:

“I was on the shore, and he was in a boat. He told me to get off and stay off. I hollered and told him who I was. He didn’t make any reply. I got off.
“Q. Was he angry at that time, whether he acted angry?
“A. Why he talked quite loud, as though he might be angry. Afterwards I received a printed notice, a newspaper clipping. It was in regard to trespassing on his place.”

Daniel Kinney testified of an occasion when he, in company with two others, were fishing upon the lake, when the testator ordered them off:

“On that occasion from where he stood on the bank he hollered out. He must have been 25 or 30 rods from me at that time. I was on the part of the lake covered by his deed, I think. He hollered to us to get off from there, and he up and shot twice, and he didn’t have any more time to say anything. I suppose he shot at us. Anyway, he came out on that point and came on the bank and told us to get off, and we didn’t have time to turn around before he shot. I don’t know whether he shot at us or not. I don’t know what direction he fired exactly. I know we moved right away, because he said he would go up and get his ‘44’ if we didn’t move off, and of course we moved.”

Alvin Wright gave testimony tending to show that the testator, while hunting in the north woods, wore a red cloak and red hat.

McKinstry Burt, son of Flora Williams Burt, a niece of testator, testified to seeing testator in fits of anger; that the testator was very nervous and eccentric. In his direct examination the following testimony:

“Q. State from your knowledge of Julien Williams and your acquaintance with him, since you came back from New York, whether in your opinion, since you have been acquainted with him, he has had sufficient mental ability to know his relatives and comprehend their claims, if any, upon his bounty?
“A. Mental ability?
“Q. Yes.
“A. I think so.
“Q. You do think so?
“A. He knew his relatives.
“Q. I didn’t ask you that. Now you may state from your knowledge of Julien Williams and your acquaintance with him, since you came back from New York, whether in your opinion, since you have been acquainted with him, he has had sufficient mental ability to know his relatives and comprehend their claims, if any, upon his bounty?
“A. No, sir.”

This witness on cross-examination, when questioned categorically, gave it as his opinion that his uncle knew the extent of his property and the names of his relatives:

“Q. Well, I will ask you this question: If Mr. Williams had made a will, conveying by the terms of that will to members of his own family, w'ould you have any hesitancy to say that he was mentally competent to make it? Answer that ‘Yes’ or ‘No.’
“A. Yes, sir.
“Q. You would have?
“A. Yes, sir.
“Q. Is that because you think that he did not have mind enough to know who his relatives were?
“A. (witness hesitating). Well, I can’t say yes or no; may I say anything else?
“Mr. Perry: If he cannot answer it ‘Yes’ or ‘No,’ I don’t think he is obliged to say ‘Yes’ or ‘No.’
“The Court: There isn’t any other answer he could make to that, except one that is responsive, and Mr. Perry will give you an opportunity to explain.
“A. I say ‘yes’ on the assumption that the conditions are the same as they are now. * * *
“Q. If Mr. Williams had made a will, conveying by the terms of that will to members of his own family, would you have any hesitancy to say that he was mentally competent to make it? Answer that ‘Yes’ or ‘No.’
“A. That answer — I think that former question and answer I want to change; if he left it to his relatives, I would have thought he had mind enough.”

Aside from the documentary evidence offered, the foregoing constitutes practically all of the evidence introduced on behalf of the contestants bearing upon the question of competency. We have set out the substance of the testimony thus at large in order that it may be apparent upon what our conclusions hereinafter stated are based. Of all these witnesses, it is to be noted .that but three expressed the opinion that the testator was incompetent to execute the will in question, in 1909, when it was made. The first of these was McDonald; the second is McKinstry Burt, a nephew and devisee of $5,500 worth of property in the will; and the third is Dr. Frederick Thompson, son of Mrs. McKeand, testator’s sister. The substance of the testimony of each of these witnesses is set out supra, so far as it affects the question under consideration. In our opinion a careful reading of the testimony of each of these witnesses tends rather to establish the mental competency of the testator than to bring it in question. Taking their testimony together with that of all the other witnesses who, while not expressing an opinion, testified to acts from which an inference of incompetency is sought to be drawn, we think it should be held that the most that can be said is that the testator is described as a person of.education and intelligence above the average; somewhat eccentric in his habits and method of life; somewhat nervous and irritable; and upon occasions subject to fits of anger, and extravagant, and perhaps profane expression.

No one of these characteristics, nor all of them, taken together, no matter how definitely established, are sufficient under the law of this State to stamp a man, otherwise of sound mind, as mentally incompetent to make a valid disposition of his estate by will. In reaching this conclusion we have, as we are bound to do, given the testimony offered on behalf of the contestant its greatest probative force, and have not considered the testimony offered on behalf of the proponents of upwards of 20 witnesses, men of standing in the community, who had known the testator for a great many years, and who asserted without reservation that at the time the will was executed, in their opinion, he was mentally competent.

We next come to the question of the exclusion of the deeds. Counsel for contestant claimed the right to introduce said deeds, for the purpose of showing that in the last 10 or 12 years of the life of the testator he had disposed of about $28,000 worth of his real estate, and at the time of his death this money had practically disappeared. The argument sought to be based upon this showing was that the testator was a bad business man and had squandered a very considerable portion of his patrimony. While excluding the deeds in question, the learned trial judge offered to permit contestant to show the details of any transaction in which it was claimed the testator had made a bad or foolish bargain, or any instance in which the testator had foolishly spent or squandered his money. Neither of these offers was accepted by the contestant. The record fairly discloses that the testator was possessed of a considerable amount of Detroit real estate, which was in the main, if not wholly, unproductive, and that he had no fixed income, except for a few years a small amount received from the sale of gravel, taken from one of the Detroit lots. This, amount seems to have been inconsiderable. It is apparent that to preserve the body of his estate, pay taxes, and exist himself, it would become necessary for him from time to time to sell some portion of it. This he appears to have done. There is nothing in the record tending to show, nor is there any offer of proof to the effect, that the testator sold more of his estate than was necessary for his decent maintenance and for the preservation of what he retained.

While we have held that good business ability is evidence of mental capacity to be properly considered in will cases, we have never held that, because a testator had not in his possession at death the purchase price of property sold by him during his lifetime, that fact might be considered as tending to show incapacity to make a will. We are of opinion that the deeds were properly excluded.

It is strongly urged by counsel for contestant that reversible error was committed by the learned trial judge in withdrawing from the jury consideration of the question of undue influence upon the testator’s mind exercised by Mr. and Mrs. Jones. In this connection it is proper to state that there is not a word of affirmative testimony in the record showing or tending to show that either Mr. or Mrs. Jones had at any time asked the testator to leave them, or either of them, any portion of his property. Both were placed upon the stand by counsel for the proponents, and both categorically denied that they had ever sought to influence the testator either duly or unduly. An inference of such undue influence is sought to be drawn by counsel for contestant from several sources. They say that the testator was very nervous, did very little business, and that his will power was weak. They point to the relations between the testator and Mr. and Mrs. Jones, and argue that both had the opportunity to exercise undue influence over the mind of the testator, and that the result shows that they did exercise such influence. They urge that the clause in the will in which the testator distinctly negatived any such influence on the part of Mr. and Mrs. Jones, and recited that the relations existing between himself and them had always been of the most honorable character, “is capable of a construction that would lead to an inference of undue influence and furnish another circumstance to be weighed by the jury in determining that question.”

We do not lose sight of the fact that undue influence need not be proven by direct evidence, but can be established by indirect and circumstantial evidence. This principle has been laid down in many Michigan cases, the last two of which are In re Loree’s Estate, 158 Mich. 372 (122 N. W. 623), and In re Du Bois’ Estate, 164 Mich. 8 (128 N. W. 1092). But we are of opinion that the contestant must introduce evidence from which inferences may fairly be drawn that such influence was exercised. The fact that Jones and his wife were made beneficiaries under the will is not alone sufficient nor is contestant aided by the fact that it is shown that testator and Jones and his wife were intimate friends for many years. The latter consideration serves rather to show why Jones and his wife became objects of the testator’s bounty. Maynard v. Vinton, 59 Mich. 139 (26 N. W. 401, 60 Am. Rep. 276); Severance v. Severance, 90 Mich. 417 (52 N. W. 292); Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887). Opportunity alone cannot give rise to a valid inference that undue influence has been exercised. In re Shanahan’s Estate, 176 Mich. 137 (142 N. W. 573); In re Foerster’s Estate, 177 Mich. 574 (143 N. W. 616).

The record discloses the fact that the testator made an earlier will on January 27, 1900, almost exactly nine years prior to the date of the will in question. In that will he devised to Jones and his wife certain real estate, or in lieu thereof the sum of $30,000. The will itself was placed in the custody of Jones by the testator, with injunction to read it. This Jones did in the presence of his wife, and, • so far as he knew, no other will had been made. Although not material, it seems that the provision made for Jones and his wife in the latter will is not so liberal as that in the earlier one. The conduct of Jones and his wife toward the testator during the last 12 years of his life must be viewed in the light of their knowledge of the fact that they were to be beneficiaries under the last will of the testator at his death. A very succinct and exhaustive discussion of the question of undue influence is expressed in the case of Ginter v. Ginter, 79 Kan. 721 (101 Pac. 634, 22 L. R. A. [N. S.] 1024), as follows:

“To vitiate a will there must be more than influence. It must be undue influence. To be classed as ‘undue/ influence must place the testator in the attitude of saying : ‘It is not my will, but I must do it/ He must act under such coercion, compulsion, or constraint that his own free agency is destroyed. The will or the provisions assailed does not truly proceed from him. He becomes the tutored instrument of a dominating mind, which dictates to him what he shall do, compels him to adopt its will instead of exercising his own, and, by overcoming his power of resistance, impels him to do what he would not have done had he been free from its control. A testator’s favor expressed in a will may be won by devoted attachment, self-sacrificing kindness, and the beneficent ministrations of friendship and love. These influences are not undue. We expect partiality to attend them. They bring preferment as their natural reward, and they do not become unrighteous, although they establish a general ascendancy over the testator, leading him to find comfort and pleasure in gratifying the wishes and desires of the person exercising them. Other less worthy influences may make equally strong appeals and may result in the same general dominion and still be suffer-able in contemplation of the law. Influences to induce testamentary disposition may be specific and direct without becoming undue. It is not improper to advise, to persuade, to solicit, to importune, to entreat, and to implore. Hopes and fears and even prejudices may be moved. Appeals may be made to vanity and to pride; to the sense of justice and to the obligations of duty; to ties of friendship, of affection, and of kindred; to the sentiment of gratitude; to pity for distress and destitution. It is not enough that the testator’s convictions be brought into harmony with that of another by such means. His views may be radically changed, but so long as he is not overborne and rendered incapable of acting finally upon his own motives, so long as he remains a free agent, his choice •of a course is his own choice, and the will is his will, and not that of another. * * * Tt is not the influence of friendship or affection that can be complained of, nor the.influence of argument or entreaty, nor the impression made by kindness or prudence, nor even the effect wrought by servile compliance or mean endurance of wrong. It must be something which destroys free agency. Motives of almost every conceivable kind may be offered, and if the mind of the agent, free to reject or adopt the motives, yields its assent, the act is the act of the agent.’ Means v. Means, 5 Strob. (S. C.) 167, 192.
“ Tn order to cause a will or deed to be set aside on the ground of fraud and undue influence, it must be established to the satisfaction of the court that the party making it had no free will, but stood in vinculis.’ Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001.
“ ‘Upon contest of [a] will for undue influence, the question is “whether the will is the will of the testator, or that of another.” It is not influence that vitiates, but undue influence; and it must go to the extent of depriving the testator of his free agency, and amount to moral coercion which he is unable to resist.’ Peery v. Peery, 94 Tenn. 328 (29 S. W. 1).
“ ‘The influence which the law denominates undue, and which vitiates a will executed under it, must amount to moral or physical coercion, destroying free agency, and constraining its subject to do that which, but for it, he would not do.’ Westcott v. Sheppard, 51 N. J. Eq. 315 (25 Atl. 254, 30 Atl. 428).
“ ■‘Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. It may be exercised through threats, fraud, importunity, or by the silent, resistless power which the strong often exercise over the weak and infirm; but, however exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time it was made, so that the instrument in fact expresses the mind and intent of some one else, and not his own.’ Schmidt v. Schmidt, 47 Minn. 451 (50 N. W. 598).”

The record before us fails to establish the power of Jones and his wife to unduly influence the testator, which, even if shown, would be insufficient. Maynard v. Vinton, 59 Mich. 139 (26 N. W. 401, 60 Am. Rep. 276). The most that can be said of the evidence in the case at bar is that, through constant association and friendly acts, Jones and his wife had the opportunity to exercise an unlawful and undue influence over the testator. That they did so is not to be inferred from the evidence adduced. Indeed, the record discloses that, for many years prior to the death of the testator, Jones devoted a very considerable portion of his time to the interests of the testator without compensation, but under the assurance that he would ultimately be paid more than he had theretofore been earning. Mere suspicion Is not sufficient, as was said by the Supreme Court of the United States in Beyer v. Le Fevre, 186 U. S. 114, 22 Sup. Ct. 765:

• “The will of a person found to be possessed of sound mind and memory is not to be set aside on evidence tending to show only a possibility or suspicion of undue influence. The expressed intentions of the testator should not be thwarted without clear reason therefor.”

Under our view of the case, the question of the admissibility of the letters from Jones to the testator is unimportant. These letters have all been read with care. They show that during a number of years Jones was very active in and about the transaction of the testator’s business. They indicate, perhaps, that the testator relied upon the advice of Jones in his business affairs. They express on the part of the writer a very sincere friendship for the testator. This friendship may have been real or assumed, but in any event, if such expression had any effect upon the testamentary activity of Williams, it was not such influence as the law, under the decisions, characterizes as undue. It should be observed, too, that these letters were all written, with the exception of four, which were dated in 1899, subsequent to the execution of the earlier will, and at a time when Jones knew that he was to become the object of the testator’s bounty.

The claim made on behalf of contestant that this case should be viewed upon the assumption that Jones acted in a fiduciary capacity toward the testator, such as a physician toward his patient, a spiritual advisor toward his penitent, or a lawyer toward his client, is, in our opinion, untenable. The matters in which the testator sought, and often followed,' the' advice of Jones were those of an ordinary business character. They related for the most part to the price to be asked for real estate, the conditions to be inserted in the contracts, and perhaps the terms of leases. It is not shown nor intimated that Jones ever profited to the extent of a penny in any transaction in which he gave advice to the testator, nor is it shown that either he or Mrs. Jones had anything to do with the preparation of the will which was holographic, as was also the one of earlier date. These facts clearly distinguish the case at bar from In re McMaster’s Estate, 163 Mich. 210 (128 N. W. 259), cited and relied upon by appellant. To hold that a friend or neighbor could not give such advice to another without being charged with the exercise of undue influence under a presumption of fact growing out of the relationship would be to extend the rule beyond warrant of law.

It is said that the will in question is an unnatural one. With this assertion we cannot agree. The testator left an estate of about $52,000. In his will he remembered every one of his legal heirs, with the single exception of Mary F. McKeand. Bequests of considerable sums were made to her daughter and grandson. That the testator should have failed to devise or bequeath anything to his sister is, we think, most natural, under the situation disclosed in this case. In the first place, his sister was ten years his senior, and at the time the will was drawn was upwards of 80 years of age. Then, too, the testator had become estranged from his sister, and his mind was embittered toward her, because of her activity in the contest against him over the estate of his father.

A careful examination of this entire record convinces us that the learned trial judge was correct in withdrawing from the jury a consideration of the question of undue influence, and was in error in submitting to the jury the question of mental incompetency. It therefore becomes unimportant to consider the assignments of error based upon the court’s refusal to charge as requested and upon the charge as given.

The judgment is affirmed.

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


source: Caselaw Access Project

author: McAlvay, J. Ostrander, J.

license: Public Domain

text:
    KELLEY v. DAVISON.
    1. Master and Servant — -Personal Injuries — Loas and Logging— Insufficient Tools.
    Where plaintiff, who was engaged in work of a teamster, was sent hy defendant’s son and superior agent to get a load of lumber, and upon examining the chain which was provided for the purpose of loading the materials the plaintiff discovered that there was no grab hook attached to the chain and complained about it to the son, who ordered him to use the chain which was so provided, and where the load shifted by reason of being insufficiently secured, throwing plaintiff to the ground and seriously injuring him, plaintiff, who knew what kind of tools and implements were required for the purpose in question, was charged with the assumption of the risk arising from the fact that the chain was not suitable.
    2. Same — Appeal and Error — Directed Verdict.
    The direction of a verdict for the defendant on the ground, that plaintiff had failed to show any negligence on his part, while not justified upon such ground, was a proper disposition of the case ’and must be affirmed if a sufficient reason existed for directing a verdict in defendant’s favor.
    Error to Alpena; Emerick, J.
    Submitted January 21, 1914.
    (Docket No. 5.)
    Decided March 18, 1915.

      Case by August Kelley against Samuel Davison for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Frank D. Scott and C. S. Reilley, for appellant.

      Joseph H. Cobb, for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant to recover damages for personal injuries received by him while in the employment of defendant, claimed to have been caused by the negligence of defendant’s representative. At the close of plaintiff’s case defendant moved for a directed verdict in his behalf against plaintiff. This motion was granted, and a judgment upon said verdict was afterwards entered. From such judgment plaintiff has removed the case to this court for review and reversal upon errors duly assigned. The facts in the case, briefly stated, are as follows:

Plaintiff, a young man of the age of 27 years, an experienced teamster, was employed by defendant on July 9, 1910, to drive one of his teams, with wages fixed at the rate of $1.75 per day, and was told that defendant’s 'son would give him his orders what to do. He was ordered by the son on that day to go to the farm and get a load of hay. He did this, hauling the hay to Alpena the same night.

On Monday morning following he went to defendant’s barn, where he saw defendant, and in his presence received orders from defendant’s son as to the work for the day. He unloaded the hay which he had hauled on Saturday, and was then ordered to go to Long Lake that afternoon to bring down a load of lumber. Plaintiff stated for such work it would be necessary to get a tire set on the wagon, have the team shod, and get chains together. He said he required two chains, and was told by the son only one chain was necessary for that work. He replied that he had never hauled lumber with one chain. He then went to the barn with the son to look up chains, and found a big logging chain, and plaintiff was asked how that would do for one. He said it was not the right kind of chain to use to bind lumber, and explained that it was an ordinary logging chain used in the woods, that it would not do on account of large links, and it had no grabhook. Defendant’s son then looked for other chains in the barn.' He found some cross chains on a set of logging sleighs and wanted to know how they would do. Plaintiff said they would not do unless they were fixed, and offered to^take them to the blacksmith shop for that purpose. The son would not allow this on account of the expense. He said:

“You take that big chain and go up there this afternoon and fetch down that load of lumber. While you are gone I will find a new one for you. If I don’t, you Will have lots of time tomorrow to get that one fixed.”

Plaintiff, leaving his wagon at the blacksmith shop, did as he was ordered, and took his team six miles from Alpena to Beck’s mill to get the lumber. When he arrived at the mill two workmen had already begun to load the wagon he was to use. Plaintiff helped finish the load, and used the logging chain, which had been furnished him for that purpose, to bind it. He put a plank on top of the load, put the big chain •around it, drawing the end through the ring, pulled it up as tight as he could, and put two half hitches in it. This chain was 16 or 18 feet long, with very large links made of one-half inch iron. To make it tighter, he held on to the end of the chain where he had tied it, and the two men got on top of the load, one raised the front end of the plank, and the other put a plug, or block, underneath it. This was a load of hemlock plank. The plank used to tighten the chain was 10 inches wide and 18 feet long.

Plaintiff then hitched on his team and started back with, the load, riding on top, sitting on the front end of the plank, which was raised up, and his weight upon it tightened the chain. In the mill yard there was sawdust for some distance, which made the pulling heavy. When he got through the sawdust he stopped the team, got down and looked over the load, which appeared all right, then drove along the road to a bridge which was quite rough. After crossing the bridge a boy came along and asked if he could ride, which was permitted. When the boy got on the wagon plaintiff got off and asked him to drive up the little hill just in front and wait for him at the top. This was done, and plaintiff, coming up to the wagon, again looked at the load and found it all right. He then got on and, after driving a short distance, this plank on which he was sitting suddenly swung to one side of the load, throwing him off upon the ground, and one of the wagon wheels passed over his leg, breaking it. It was so severely injured that amputation was necessary a few days later.

The principal error assigned and relied upon relates to the action of the court in directing a verdict for the defendant.

The negligence which plaintiff relies upon in this case is that defendant failed and refused to furnish him a suitable chain with which to bind the load of lumber upon the wagon; that the chain he furnished was a large, heavy logging chain which had no grab-hook upon the end of it, by reason of which it was unsuitable for such work. Plaintiff, at the time he took this chain, examined it thoroughly, knew exactly its size, length, and condition, and also that it had. no grabhook. It appears that he called the attention of defendant’s son to the fact that he did not consider it a suitable chain to use for the purpose intended, and, being ordered to take and use it, he did so.

Plaintiff was an experienced teamster, well acquainted with hauling lumber by team. He took the chain and assisted in placing it around the load, as he testifies, drawing it as tight as possible, he fastened it with two “half hitches.”

It is urged by defendant that plaintiff, upon his own admission, must be held to have assumed the risk of using this chain. If this chain was defective, it was as well known to him as to the defendant, and he used it with such knowledge.. We agree with this contention, and cannot avoid the conclusion that plaintiff, upon his theory that the chain was not suitable for the purpose of binding this load of lumber, took it with such knowledge and used it to bind the load, and must be charged with the assumption of the risk of injury therefrom. This rule is too well settled to require the citation of authorities.

There are other questions presented in the case relative to whether there was negligence shown on the part of defendant and as to the contributory negligence of plaintiff. We do not think it necessary to discuss them, as the case is disposed of on the ground already considered.

The learned trial judge held that no negligence on the part of defendant had been shown, and directed a verdict upon that ground. The plaintiff was not entitled to recover, and therefore it was not error to direct a verdict for defendant. The fact that the reason given by the trial court why plaintiff could not recover is not the one which this court relies upon does not make the direction of the verdict erroneous, for the reason that the result was the correct one.

The judgment of the circuit court is affirmed.

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

Ostrander, J.

I concur upon grounds stated in the opinion, and the further ground that no negligence of defendant is shown.


author: Stone, J.

text:
    LYDMAN v. DE HAAS.
    1. Master and Servant — Personal Injuries — Negligence — Defective Appliances.
    Act No. 10, Pub. Acts 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.), abolishing the fellow-servant rule deprives the employer who has not elected to be governed by the provisions of the law, of the defenses of contributory negligence (unless wilful), assumption of the risk of the fellow-servant’s negligence and assumption of the risk from failure to provide safe premises, safe appliances, or risks inherent in or incidental to the nature of the employment, but in order that plaintiff may recover it is necessary to show that the defendant is chargeable with negligence.
    2. Same — Personal Injuries — Evidence of Negligence.
    Plaintiff operated a lath machine which the evidence tended to show frequently got out of alignment and required to be rebabbitted. On the day of the injury plaintiff’s evidence showed the machine had been repaired more than once. It is claimed that one of the bolts which plaintiff passed through the machine broke by reason of improper action of the machinery and stuck in front of the saws. The declaration charged that because of the improperly constructed chute below the saws broken pieces of material lodged and it became necessary to remove them in order to permit the further operation of the machine, that in so doing his hand came in contact with the saws and was injured. The testimony showed that the saws were properly guarded. The testimony failed to show that the accident was due to the defective chute; plaintiff relying upon the theory that the saws had become out of alignment and caused the bolt to break. There was no evidence that tended to show defective coiidition of the saws or want of alignment as charged by the plaintiff, whose testimony supported defendant’s contention that sufficient repairs had been made shortly before the accident. Held, that the trial court should have directed a verdict for the defendant on the ground that there was insufficient proof of defendant’s negligence.

      3. Same — Proximate Cause — Contributory Negligence.
    Defendant’s contention that plaintiff’s contributory negligence was the proximate cause of the injury, was not sustainable under the above mentioned act, unless such negligence was the sole cause of the accident, and defendant was guilty of no failure to perform his duty. A negligent act of plaintiff, contributing to his injury, could not be considered to be an independent intervening cause.
    4. Same — Inspections — Failure to Stop Machinery — Contributory Negligence.
    The court was in error in submitting to the jury the issue whether as matter of custom plaintiff was not required occasionally to reach in between the saws in order to remove pieces of bolt or lath, in the absence of evidence that he had been so instructed, and upon a record which tended to establish that he might have caused the machinery to be stopped, before removing the pieces of material.
    Error to Baraga; O’Brien, J.
    Submitted November 4, 1914.
    (Docket No. 41.)
    Decided March 18, 1915.
    Case by Oscar Lydman against Nathan Mitchell De Haas for personal injuries. Judgment for plaintiff. Defendant brings error.
    Keversed.

      W. S. Hill (C. F. Button, of counsel), for appellant.

      A. W. Kerr, for appellee.
   Stone, J.

This action was brought to recover damages for an injury to the left hand of the plaintiff, received on September 9, 1912. This was a few days after the workmen’s compensation act took effect, and about a month before the defendant went out of business; the said defendant not having elected to pay compensation under the said act.

The defendant, ás lessee, had been running a sawmill at Skanee, Baraga county, for about 20 years. The plaintiff had worked for defendant for some time about six years before, and during the summer of 1912 he worked for defendant abaut two months altogether; first behind the slab saw, then outside at various duties, and finally back in the mill running the lath machine — “shoving lath,” as it is called. This lath machine was on a bench or table approximately waist high, about 3 feet wide from front to back (the front being the plaintiff’s position), and some 8 feet long from left to right. The machine consisted of two lath saws about 12 inches in diameter, hung on a horizontal shaft just below the bed of this bench, so that the saws came up through the bench some 3 or 4 inches. The bench extended to the left of the saws toward the bolter saw about 5 feet. In front of these saws there was a pair of feed rollers, one lying in the bed of the bench and the other immediately over it. These rollers were about 3% inches from the saws, were about 1% inches apart, and had jagged teeth. They turned toward the saws so that if a block of wood were shoved against them they engaged it with their teeth and carried it along and forced it against the saws. There was another pair of similar rollers behind the saws, which took the block after it had passed the saws, and a man. was stationed there to receive it and the laths that had been cut from it. At the right hand of the plaintiff there was a lever which raised, simultaneously, the upper roller of each pair so as to disengage both pairs from any timber between them and permit its removal, if it projected out from the machine far enough on either side to permit the man on that side to grasp it, or, if it did not so project, to permit the insertion of another piece to dislodge it.

All of this machinery was covered in front and above so that there was no way for a man’s hand to come in contact with the saws except through these rollers. By reaching around to the left of and behind the rollers, however, the saws could be reached. Beneath the bench and the saws was a chute which conveyed the sawdust, broken pieces, chips, etc., to the burner. There was a side guide against which the bolt was pressed when it was shoved against the front rollers. One lath was cut between this guide and the nearest saw, and another lath was cut between the two saws. The saws and rollers were on the left of this guide, occupying a space of about 5 by 18 inches, while all the bearings and means of driving the saws and rollers were on the right of this guide, as the plaintiff stood at his work. All the machinery, shaftings, bearings, pulleys, saws, and rollers occupied a space approximately 2 feet square on the bench, and extended above the bench about 6 inches. The opening on the left side is this 6-inch space between the bench and the covering over the machinery above mentioned. Next to the right from this guide came the first bearing of the saw shaft, then the pulley which drove the saws, and farthest to the right was the second bearing. The belt which drove this shaft ran down through the floor to the power pulley, so that should the bearings wear away, or the babbitt melt and run out of the bearings, as the plaintiff claimed often happened, and thus gave the shaft additional space in the bearings, the tension of the belt would pull the shaft down to the bottom of that space, and the effect would be to lower the shaft and the saws. The plaintiff, on the trial, contended that the bearing next the saws frequently became thus worn; that because thereof the end of the shaft carrying the saws often was lowered; that at such times the saws ran in a plane slightly out of a true perpendicular, and made a wedge-shaped and unmerchantable lath; and that this position of the saws tended to increase the breaking of bolts, and to increase the liability of pieces becoming lodged around the saws.

At the time of the injury plaintiff was operating this lath machine, i. e., was “shoving lath.” Four days before this, Goodreau, the regular lath shover, had gone away for a visit. Plaintiff, then working outside, was instructed to go into the mill and pick edgings, but refused, saying: “I don’t like to pick edgings. If I am going in thé mill, I will take Goodreau’s place” — and this he did. The lath were manufactured from the refuse of the sawmill. The slabs and edgings that were discarded in the manufacture of lumber were cut into four-foot lengths, and such of them as were suitable for lath were taken to the bolter saw, where they were cut into bolts. The bolts vary greatly in width, being as wide as the material from which they are cut will permit. Some were wide enough to make two laths, some six or eight. These bolts, from the nature of their origin, were defective .and frequently broke from no other cause than inherent weakness, such as knots, cross-grain, dry and checked hemlock, broken slabs, etc. Plaintiff was shoving these bolts into this lath machine. A man stood behind the lath machine and received the lath and remnant of bolt. If the remnant had sufficient width, he passed it back to the plaintiff, and it was fed through again. This was repeated until the bolt was used up. The bolter saw was located at the left end of the lath machine bench, about five feet distant from plaintiff’s position. The man who operated this bolter saw as the bolts were cut piled them on the lath machine bench between the bolter saw and the lath saws. This brought the pile of bolts to the plaintiff’s left hand. Shortly before the accident, a bolt, on its last cut when its liability to break was at the greatest, broke, and a piece of it stuck in front of the saws in some way not explained. Until this piece was removed it prevented further making of lath. This condition existed for some little time before the accident.

The defendant claims that the theory on which the plaintiff relied at the trial was altogether different from the theory set forth in his declaration; that the theory of the declaration was, in a word, an improperly constructed chute, viz., that the accident resulted solely because the chute below the bench and lath saws was so improperly constructed that, instead of permitting the pieces of broken bolts to fall away as they ought, caused them to lodge therein; and that the condition of the babbitt and saws only increased the frequency of the breaking of the bolts; and our attention is called to the language of the declaration, as follows:

“That the plaintiff while engaged in cutting a bolt of wood into lath, a bolt of wood broke, and a piece of said bolt became lodged in the chute hereinbefore mentioned in such a manner as to prevent the further manufacture of lath until the same was removed. That, in order to remove said piece of bolt, plaintiff reached his left hand into said chute and was injured by coming in contact with the saw. * * * That the defendant owed the duty of informing the plaintiff of the increased danger of bolts breaking, and that he failed in that duty.”

It is urged by defendant that these are the only allegations contained in the declaration in any way indicating the cause or manner of the accident, and that they conclusively show that, even if the saws were in such a condition or position as to increase the frequency of broken bolts, as claimed, still the accident would not have happened if the chute had been so constructed that the piece could not lodge therein; and that thus, on the theory of the declaration, the condition of the saws was not the proximate cause of the accident, and was immaterial. It is further urged that upon the trial' this theory was not supported by any testimony. While plaintiff attempted to show the insufficiency of the chute, he failed to show that this broken bolt lodged in the chute, or that he reached into the chute, but showed that the piece lodged in front of the saws, and that he reached around above the bench to the left of and behind the rollers, in an attempt to remove the broken piece, and that because of this testimony the trial court instructed the jury to pay no attention whatever to the chute, saying, “The chute has absolutely nothing to do with this case.”

The defendant contends that upon the triad the plaintiff’s theory was that, because of the melting out of the babbitt in the bearings, the shaft would drop down, causing the saws to run at a slant, and thus to cut a wedge-shaped lath, with a tendency to increase the breaking of the bolts and the lodging of the broken pieces in or around the saws; that this condition and these results had been frequent during the summer; that under this theory the plaintiff was compelled to rely upon the condition of the saws as the proximate cause of his injury, but it is urged that he produced no evidence that the bearings and saws were in any such condition at the time of the breaking of the bolt in question; that in fact the testimony of the plaintiff directly negatived such a condition, he having testified, on cross-examination, as follows:

“Q. Now, you said that the saws were hanging in such a way that they broke this bolt?
“A. I never said such a thing.
“Q. How did this bolt become broken?
“A. I don’t know. The bolt was of the ordinary run that we were using in the mill. I was having-unusual troubles in sawing lath that day. Everything was not going on as usual and all right. The lath machine was bucking; the whole machine. It wouldn’t run; it was blocked up. I saw Mr. De Haas that day. I never took time to tell him it wouldn’t run. I saw Mr. Beckstrom (the foreman) and told him it wouldn’t run. He was fixing it up, and it bucked again. He put in new babbitts in the boxes the same day I got hurt. Twice that day, if I ain’t mistaken. I can’t remember exactly. I told Mr. Beckstrom the machine was bucking. This block was 10 or 12 inches long and was partly between the rollers and up to the saw. This board, after going through the rollers and coming to the saw, broke. When it broke it was standing up in this position, kind of slanting.
“Q. How much of the slab was sticking out from the rollers towards you?
“A. You mean outside of the rollers?
“Q. Yes.
(‘A. About a foot.
“Q. And you took hold of that slab on that foot to pull it back?
“A. Yes, sir. There is a lever there to raise the rollers and separate them. I used that lever. It does not raise them high enough when it is sticking up in front of the rollers. * * *
“Q. You mean you reached around endwise and put your hand behind the roller and the saw?
“A. Yes, sir. I got hold of the bolt, and the bolt jerked my hand onto the saw; it drawed it endwise. I put my hand around the outside of the rollers and reached the bolt, and reached the saw when- the bolt pulled me there. I reached around to take hold of the bolt from the side behind the rollers in front here. That is the only way you could get it out from there. I couldn’t get it between the rollers and out that way.’’
The plaintiff described the accident as follows on direct examination:
“Q. Now, what happened when you got hurt, Mr. Lydman ?
“A. The bolt was broke off and stuck up in front of the saws there, and I couldn’t get it out. I tried by shoving lath to shove it out and couldn’t, and we were in a hurry because we were blocked off. We were in a hurry to catch up, and I took the hand to jerk it out of there. The piece that was stuck in there was 10 inches or a foot, and it stuck right in front of the saw, standing this way (indicating). As soon as I took hold of it, it jerked my hand right on the saw and it was all gone. That is all I can say. The fingers that are missing were taken off as a result of that injury. * * *
“Q. Now state to the jury, Mr. Lydman, just how that piece of 10 or 12 inch stuff was lodged or jammed in there.
“A. As far as I understood, she was bound in against the saw some way in there. I don’t know what it was. That is more than I can say, because I am not any machinist. It stuck up in a position this way (indicating). I took it here behind the roller, and I took it with my hand. I had mitts on and it jerked. I didn’t have time to think or anything when it happened. It took this way and jerked the hand on the saw.”

Besides the methods used by the plaintiff, there was evidence tending to show that there were two othér methods ordinarily in use on occasions of the block becoming fast or stuck in the machine, viz.: The man behind the saws would sometimes take a piece of lath and shove it through the saws from behind to dislodge the broken bolt; and, if this method failed, then the lath shover would step down to the floor beneath, and run off the belt and stop the saws. Neither of these last two methods was used, probably because the plaintiff, as he testified, was in a hurry.

Upon the close of the plaintiff’s case, and again at the close of alj the testimony, the defendant moved the court to direct a verdict of no cause of action on two grounds:

(1) Because no negligence on the part of the defendant had been shown; and (2) that the negligence claimed was in no wise connected with the actual injury.

Which motions were overruled, and to which ruling the defendant excepted. The trial resulted in a verdict for the plaintiff in the sum of $1,200 damages, and the defendant has brought the case here upon writ of error.

The third and fourth assignments of error were because the court erred in overruling the motions of the defendant, last above indicated, for instruction of verdict.

The sixth assignment of error is as follows:

“Because the court erred in charging the jury upon its own motion as follows: Tt is the claim of the plaintiff * * * that by reason of that fact (the babbitt in the bearings being partially melted away so as to cause the saws to run out of true) the bolts would occasionally catch in the saws and were held there in such a way between the saws and the rollers so that the plaintiff would occasionally be compelled to reach in between the saw or saws and the rollers in order to pull away a piece of the bolt, or a piece of lath which might be held by the saw in that way.’ For the reasons that there was no claim in the plaintiff’s declaration and no testimony to show that the bolts occasionally would catch, or that the bolt in question did catch in the saws and be held there in such a way between the saws and the rollers so as to occasionally compel the plaintiff to reach in between the saws and the rollers to pull same away, and because there was no claim or evidence that the plaintiff was compelled to reach into the saws.”

The seventh assignment of error is as follows:

“Because the said court erred in charging the jury upon its own motion as follows: ‘The plaintiff also claims that the defendant was negligent in failing to warn the plaintiff that pieces of wood or pieces of the bolt would occasionally catch in the saw and be held there so that he would be compelled to reach his hand in and pull them out.’ For the reason that there was no claim in the declaration, and no proof upon the trial, that plaintiff was compelled to reach his hand in, and for the further reason that there was no allegation in the declaration of negligence in failing to warn, that pieces of wood or bolt would catch in the saw so as to compel plaintiff to reach his hand in.”

Ninth assignment of error:

“Because the court erred in charging the jury upon its own motion as follows: T will say right here now, as a matter of law, that there was no wilful neglect on the part of the plaintiff as contemplated by that statute (the Michigan workmen’s compensation statute), none whatever; so that, so far as the plaintiff’s negligence is concerned, you need pay no attention to that, or argue about it, or discuss it in any way. It is not in the case. The only questions for you to decide will be the questions that I give you during the course of these instructions.’ For the reason that the latter portion of the foregoing was not necessary to the earlier portion relating to wilful negligence, and in effect eliminated the defendant’s claim that the plaintiff’s negligence was the primary, proximate, and sole cause of his injury, and gave the jury to understand that no action of the plaintiff should be considered by them in the case as affecting any of the issues therein.”

Tenth assignment of error:

“Because the court erred in charging the jury upon its own motion as follows: Tt is the claim of the plaintiff that on account of the machine getting out of line and sticks would catch in the machine so often that it became more than ordinarily often; in fact, so often that it became necessary for him, as a matter of custom, to reach his hand in there and pull them out.’ For the reason that there was no claim in the declaration and no evidence on the trial that it was necessary, or that it was the custom, for the plaintiff to reach his hand into the machine to pull out sticks.”

It is worthy of passing note that, the defendant not having elected to pay compensation in the manner and to the extent provided by the workmen’s compensation act, the following defenses were not available to the defendant:

(a.) That the employee was negligent, unless and except it should appear that such' negligence was wilful; and (6) that the injury was caused by the negligence of a fellow-employee; (c) that the employee had assumed the risks inherent in, or incidental to, or arising out of, his employment, or arising from the failure of his employer to provide and maintain safe premises and suitable appliances.

1. It should still be borne in mind, however, that there can be no recovery in this case in the absence of evidence of negligence on the part of the defendant. In order for the plaintiff to prevail, it was necessary for him to show that the defendant was guilty of the negligence complained of, on the day in question. We have examined this record with care, but in vain, to find any evidence of the negligence complained of, on the day of the plaintiff’s injury. There was some general evidence of the working of the machine prior to the afternoon of the accident, but it appears that the foreman had made repairs upon the machine on one or two occasions during the day the plaintiff was injured. Especially did it appear that the machine had been rebabbitted twice that day. We think that evidence of the working of the machine or the condition on prior days was not sufficient to show evidence of the condition of the machine on the day in question, especially in view of the testimony of the plaintiff that the machine had been repaired that day. The plaintiff’s own testimony indicates that he does not know what caused the bolt to break, or that the same was caused by the slanting of the saws. A jury should not be permitted to speculate upon this subject. We are constrained to hold that the plaintiff did not sustain the burden of proof required to show that the defendant was guilty of the negligence complained of, and that the court erred in not directing a verdict for the defendant, as complained of in the third and fourth assignments of error.

2. The sixth and seventh assignments of error complain because the court submitted to the jury the question whether the plaintiff was not compelled occasionally to reach in between the saws and the rollers in order to pull away a piece of bolt or lath. We are unable to find any evidence in the case that warranted this charge. We find no evidence that the plaintiff was, by instruction or otherwise, compelled by any act or instruction of the defendant to reach into the place of danger as indicated. This machinery seems to have been properly covered and protected. There is no claim that the plaintiff did not understand that by going below the machinery could have been stopped and the broken piece or block taken out, and there was no evidence that he was instructed otherwise.

3. By the ninth assignment of error the defendant complains because the court instructed the jury in the manner indicated relative to the plaintiff’s negligence, for the reason that it eliminated the defendant’s claim that the plaintiff’s negligence was the primary, proximate, and sole cause of his injury, and gave the jury to understand that no action of the plaintiff should be considered by them in the case as affecting any of the issues therein. It seems to be the claim of the defendant that the plaintiff’s negligence was the proximate and sole cause of his injury. Of course, if the plaintiff’s negligent conduct was the sole cause of his injury, this may be another way of stating that the defendant was guilty of no negligence, and that matter we have already .considered. If the defendant was guilty of any negligence, it is very evident that he cannot here claim the benefit of any contributory negligence on the part of the plaintiff as a defense, by reason of the act which we have referred to; and he cannot defeat recovery by claiming that the contributory negligence of the plaintiff was the proximate cause of the injury. We have examined the numerous cases cited by defendant’s counsel. It is true that in the case of Charters v. Industrial Works, 179 Mich. 1 (146 N. W. 128), some language was used by the writer of this opinion which would seem to justify the claim of counsel. In that case, in speaking of the conduct of the plaintiff in failing to relight his lantern, and in walking where he did in the dark, we held he was guilty of contributory negligence, and we said, in speaking of such conduct:

“If this did not constitute contributory negligence, it is difficult to state what would constitute such negligence. It is not necessary to cite our own cases holding that, where there is a comparatively safe and a more dangerous way of discharging a duty, it is negligent to select the more dangerous.”

There was then added the following dictum, which might well have been omitted:

“We agree with defendant’s contention, also, that the extinguishment of the lantern was not the proximate cause of the plaintiff’s injury. The extinguishment of the lantern was followed by another independent intervening cause which could not reasonably be anticipated, namely, plaintiff’s voluntary act in walking towards the approaching car, between the weights and the track, after his lantern was extinguished. This, we think, was the proximate cause of the injury, and for this act defendant was not responsible.”

Manifestly, a negligent contributory act of the plaintiff would not constitute “an-independent intervening cause,” as that term is usually applied in the doctrine of proximate cause, so as to deprive such act of the nature or quality of contributory negligence.

Plaintiff’s counsel have also called our attention to other cases where this court has held, in suits brought for injuries to minors under the statutory age for employment at hazardous work — landlord’s duty to install gates for elevators, etc. — that the defense of negligence of plaintiff was not available to defendant, and assert that the unlawful employment or failure to install gates, under the statutes, barred the defense of contributory negligence. In this we think counsel are mistaken. Beghold v. Auto Body Co., 149 Mich. 14 (112 N. W. 691, 14 L. R. A. [N. S.] 609); Barfoot v. White Star Line, 170 Mich. 349 (136 N. W. 437); Pequignot v. Germain, 176 Mich. 659 (142 N. W. 1092). In those cases, notwithstanding the statutory duty upon the defendants, the defense of contributory negligence was not taken away. The rule that, since the employers’ compensation act took effect, contributory negligence of the plaintiff is not a defense, should not be frittered away in an action for damages, as in the instant case, by saying that such negligence was the proximate cause of the injury. If counsel simply mean that the sole cause of the injury was the conduct of the plaintiff, and that the defendant was guilty of no negligence, then we agree with them that the plaintiff cannot recover. We do not think that the point urged in the ninth assignment of error is well taken.

4. Under the tenth assignment of error, complaint is made because the court charged the jury that they might consider whether it became necessary for the plaintiff, as a matter of custom, to place his hand where he did when he received the injury. We do not find any evidence in the record either that it was necessary for the plaintiff to do as he did, or that there was any evidence of such custom, or that he relied upon, or claimed to know of, any such custom. We think that this portion of the charge was misleading and prejudicial.

We find no other errors in the record.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

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


text:
    YUND v. EXCELSIOR WRAPPER CO.
    1. Pleading — Plea in Abatement — Motions—Service of Process —Foreign Corporations — Want of Jurisdiction.
    The issue of want of jurisdiction of the defendant foreign corporation on the alleged ground that there was not valid service of process should be raised by a plea and the framing of an issue of fact; the question will not ordinarily be determined upon affidavits; but where the record showed there was no issue of fact and that the affidavits presented simply a question of law for the court as to want of jurisdiction the court may be warranted in determining the questions raised upon the record.
    2. Process — Foreign Corporations — Local Business — Venue— Judgments — Jurisdiction.
    An action commenced in the county of plaintiff’s residence against the defendant which is engaged in business in the State of Michigan, though a foreign corporation, having a factory and resident manager in this State and having complied with Act No. 266, Pub. Acts 1911, authorizing the secretary of State to issue a certificate to foreign corporations carrying on business in this State and conferring all powers and privileges given to corporations organized under the statutes of this State, was improperly brought in a county other than that in which defendant’s business was conducted and in which service of process was obtained. 3 Comp. Laws, § 10442 as amended (5 How. Stat. [2d Ed.] §13521).
    Error to Berrien; Bridgman, J.
    Submitted January 5, 1915.
    (Docket No. 5.)
    Decided March 18, 1915.
    Assumpsit by Philip Yund against the Excelsior Wrapper Company, a foreign corporation. Judgment for plaintiff. Defendant brings, error.
    Reversed.

      Clapperton, Owen & Hatten, for appellant.

      John J. Sterling, for appellee.
   Stone, J.

The defendant and appellant is a corporation organized under the laws of- Wisconsin, and operates a plant and business in that State; Subsequent to the time of its organization there, the corporation complied with the requirements of Act No. 206, Pub. Acts 1901 (4 How. Stat. [2d Ed.] § 9647 et seq.) of this State, and obtained a certificate from the secretary of State to do business in Michigan under Michigan laws, and establish a plant and business in the city of Grand Rapids, Kent county, Mich., in charge of a resident manager, and was so engaged at the time of the commencement of this suit. It appears and is uncontradicted by this record that the factory and business at Grand Rapids is entirely separate and distinct from the plant and business in Wisconsin. The certificate of the secretary of State of this State shows:

“That the Excelsior Wrapper Company, a corporation organized under the laws of the State of Wisconsin, has fully complied with the requirements of Act No. 206, Pub. Acts 1901, entitled ‘An act to prescribe the terms and conditions on which foreign- corporations may be admitted to do business in Michigan,’ and is admitted to carry on business in this State for the purpose of manufacturing a covering for bottles and other manufacturing business, with all the rights and privileges, but subject to all the restrictions, requirements and liabilities of a corporation organized under the provisions of Act No. 232, Pub. Acts of 1903, and for the period of time set forth in its charter, or articles of association, but not exceeding the period of thirty years.”

The plaintiff and appellee is a resident of Berrien county, Mich. On March 19, 1912, the declaration in this cause was filed as commencement of suit in the circuit court for the county of Berrien, and the only service of declaration, as appears by the record, was made in Kent county on March 29, 1912, on W. F. Mueller, agent of the defendant. On May 7, 1912, the defendant appeared specially and moved that proof of service of said declaration be quashed, for the reason that no legal service of process had been had upon said defendant, as appeared by the files and records of said court, and the return of service therein. Said motion was supported by affidavit and by the said certificate of the secretary of State. The record does not disclose that any counter affidavit was-filed on behalf of the plaintiff. It appears that the order denying the motion to quash was made on December 26, 1913. On January 24, 1914, the default of the defendant was entered, and on February 18, 1914, judgment for the plaintiff for the sum of $6,889.23 was entered by default. On April 30, 1914, a motion to set aside the default and judgment was entered by defendant. Among many other reasons upon which said motion was based was the following:

“Because the service of the declaration in said suit was not made in pursuance of the statute in such case made and provided, and was void.”

The motion was denied May 11, 1914.

The defendant has brought the case here on writ of error, and the assignments of error fairly raise the questions of the validity of service of declaration, and of jurisdiction to enter the judgment.

The plaintiff raises the question of practice, and claims that a motion to quash the service of declaration was not the proper remedy to attack the jurisdiction of the court. We think that the language used by us in Daniels v. Railway Co., 163 Mich. 468, at page 470 (128 N. W. 797), is applicable here. The question was there raised by motion, supported by affidavit. We there said:

“This court held in Sherrill v. Railway Co., 161 Mich. 495 [126 N. W. 830], where a similar question was raised, that it would refuse, in such a proceeding, to try disputed questions of fact upon affidavits, and that the proper practice was to frame an issue by a proper plea. As it appears, however, by an examination of the affidavits filed in this case, that there are no disputed questions of fact raised, we shall proceed to dispose of the question here presented.”

If the judgment is void for want of jurisdiction of the defendant, we think the question is properly here. It will be noted that there was no general appearance of the defendant in the case.

It was provided by Act No. 266, Pub. Acts 1911, which was an amendment of Act No. 206, Pub. Acts 1901, under which this defendant qualified to do business in Michigan, as follows:

“The secretary of State shall in the certificate which he issues state under what act such corporation is to carry on business in this State, and such corporation shall have all the powers, rights and privileges and be subject to all the restrictions, requirements and duties granted to or imposed upon corporations organized under such act.”

It is the claim of the defendant that it appearing that it had a factory in Michigan, in charge of a resident manager, and was there conducting a local business which was entirely separate and distinct from the business in Wisconsin, and that it had complied with the laws of this State in obtaining from the secretary of State a certificate authorizing it to carry on business in this State, with all the rights and privileges of a corporation organized under the provisions of Act No. 232, Pub. Acts 1903' (4 How. Stat. [2d Ed.] § 9460), it was for the purposes of suit and service of process a domestic corporation, with its business in the city of Grand Rapids, and amenable to 'the provisions of the statute relating to service upon domestic corporations; that, in the case of a domestic corporation, the plaintiff could bring his action in the county wherein he resides, if process could be served there, otherwise he must bring his action where service could be obtained; and that section 10442, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13521), and the amendment thereto (Act No. 3, Pub. Acts 1909), were designed to afford a resident plaintiff greater advantage in an action against a foreign corporation transacting interstate commerce business in the State.

As we understand the argument, it is that the defendant has become in effect a domestic corporation, with a local factory and business at Grand Rapids, and is entitled to the same rights and privileges as a domestic corporation, as it is also subject to all the restrictions, requirements, and liabilities of such cor-poration.

In Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640, 133 Am. St. Rep. 376), this court said:

“The effect of the statutes regulating the transaction of local business in this State by foreign corporations is to make such corporations, as to such business, domestic corporations organized under the act specified in the certificate of the secretary of State entitled to and subject to the same remedies as such corporations in the courts of this State. We are of the opinion, therefore, that section 10442, 3 Comp. Laws, should be limited in its application to foreign corporations transacting interstate commerce business in this State” —citing Barrow Steamship Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526.

In the Kane Case Justice Gray said:

“The constant tendency of judicial decisions in modern times has been in the direction of putting corporations upon the same footing as natural persons in regard to the jurisdiction of suits by or against them.”

We are aware that the decision in the Showen Case was before the amendment of section 10442, in 1909; but we are of the opinion that since, as well as before, the amendment, its application should be limited to foreign corporations transacting interstate commence business in the State. Such was the holding and application of the statute in Daniels v. Railway Co., supra. See Sherrill v. Railway Co., supra; Matthews v. Mining Co., 183 Mich. 541 (150 N. W. 127); International Harvester Co. v. Kentucky, 234 U. S. 579, 34 Sup. Ct. 944.

We are of opinion that the circuit court erred in refusing to grant the motion to quash the service of declaration, and in entering judgment in favor of the plaintiff. It did not obtain jurisdiction of the defendant.

For these errors the judgment of the circuit court is reversed, and the service of process is set aside.

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