text:
    NORTH PARK BRIDGE CO. v. TOWNSHIP OF WALKER.
    Taxation — Bridge Companies — Specific Taxes — Statutes.
    A bridge company organized under the general railroad law (Act No. 198, Laws 1873), and owning a bridge leased to and used exclusively by a street railroad company, is not subject to assessment by the State board of assessors under Act No. 173, Pub. Acts 1901, as amended by Act No. 45, Pub. Acts 1903, and the payment of a tax so assessed is no ground for the recovery back of a tax paid under protest to the township in which the bridge is situated.
    Case made from Kent; Wolcott, J.
    Submitted February 8, 1906.
    (Docket No. 111.)
    Decided April 30, 1906.
    Assumpsit by the North Park Bridge Company against the township of Walker for taxes paid under protest. There was judgment for defendant, and plaintiff appeals.
    Affirmed.

      Mnappen, Kleirihans & Knappen, for appellant.

      Grove & McDonald, for appellee.
   Blair, J.

This case comes up on a case made from the circuit court for the county of Kent. It is a suit to recover taxes for the year 1904, paid by the bridge company to the township of Walker under protest. The case was tried before Judge Wolcott without a jury, and he made written finding of facts and law. The facts are not in dispute.

In April, 1902, the bridge company was organized as a corporation under the general railroad law, being Act No. 198 of the Laws of 1873. During the year 1902, the corporation built a bridge across Grand River at North Park, near the Soldiers’ Home. The east half of the bridge is in the township of Grand Rapids, and the west half in the township of Walker. The bridge company was organized for the purpose of constructing this bridge to be used by the Grand Rapids Street-Railway Company, which is a corporation organized under the street railway act, the same being Act No. 35 of the Laws of 1867. Before the bridge was completed, it was leased to the street railway, and has been used by it exclusively in the operation of its street railway.

In the year 1904, the State board of assessors, claiming to act under the provisions of Act No. 173 of the Public Acts of 1901, as amended by Act No. 45 of the Public Acts of 1903, assessed taxes on this bridge amounting to the sum of $845.58, which were paid by the bridge company. The bridge company is not a railroad company,, union station and depot company, an express company, a car loaning company, stock car company, a refrigerator or fast freight line company, and does not and never did own, lease, run, or operate any engines, motors, or freight, stock, refrigerator, or any other cars.

The township of Walker, which is one of the municipal townships of Kent county, assessed the west half of the bridge and levied taxes thereon under the general tax law for the year 1904. No question is made as to the regularity or validity of this assessment, if the west half of the bridge was legally taxable under the general tax laws. On or about February 18, 1905, the treasurer of the township demanded payment of these taxes from the bridge company, which paid the same, amounting, with collection fees, to the sum of $178.26, under protest, which protest is in writing. The grounds of the protest are, briefly, that the State board of assessors had assessed the said bridge for the year 1904, as above stated, at the sum of $845.58, which was paid by the bridge company, and that said bridge was subject to assessment for taxes only and exclusively by the said State board of assessors under the acts above mentioned, and was not subject to assessment for taxes by the assessing officers of the township, and that the township assessment was a double and improper-taxation of the property, which it was claimed in the protest was illegal and void. The treasurer of the township, at the time of the payment of the taxes and collection fees aforesaid, made a minute of the fact of such protest on the tax roll, and on the receipt which he gave to the bridge company, and this suit was brought for the money so paid to him under protest, within 80 days after the payment thereof.

The original title of Act No. 198 of the Laws of 1873 (which is chapter 164, 2 Comp. Laws), was:

“An act to revise the laws providing for the incorporation of railroad companies, and to regulate the running and management, and to fix the duties and liabilities of all railroad and other corporations owning or operating any railroad in this State.”

This title remained unchanged until 1899, when it was amended to read:

“An act to revise the laws providing for the incorporation of the railroad bridge and tunnel companies, and to regulate the running and management, and to fix the duties and liabilities of all railroad, bridge, tunnel and other corporations owning or operating any railroad, bridge, or tunnel within this State.” Act No. 266, Pub. Acts 1899.

Section 1 of article 1 of this act (Act No. 198, Laws 1873) provided for the organization of corporations, “for the purpose of constructing, operating and maintaining a railroad, railroad bridge or railroad tunnel.” Section 3 of article 3 provided that “every company formed under the provisions of this act shall, on or before the first day of July in each year, pay to the State treasurer * * * an annual tax'upon the gross receipts of said'company, etc.” This section was amended (Act No. 174, Pub. Acts 1891), to read:

“ Every railroad company formed under the provisions of this act, or which now is or may hereafter be brought under the provisions of the general law of this State, for the taxation of railway or railroad corporations, and every railroad company owning or operating any railroad situated in whole or in part in this State, shall, on or before the 1st day of July in each year, pay to the State treasurer * * * a specific tax,” etc.

This section was further amended-(Act No. 129, Pub. Acts 1893), but in no manner affecting the issue here involved. It was further amended (Act No. 228, Pub. Acts 1897) to read: n

“ Every railroad company and union railroad station and depot company owning or operating any railroad situated in whole or in part in this State, shall, on or before the first day of July in each year, pay to the State treasurer * * * a specific tax, etc.”

There has been no amendment of this section since. And since the amendment of 1891 to section 3 of article 3 of said Act No. 198 of the Laws of 1873, under which the plaintiff was organized, that law has contained no requirement for the payment of a specific tax by bridge and tunnel companies organized under it.

No authority exists for the assessment of specific taxes against or upon the property or business of bridge and tunnel companies which do not own or operate railroads, nor own, lease, or operate freight, stock, refrigerator, or any other cars, unless found in Act No. 173 of the Public Acts of 1901, as amended by Act No. 45 of the Public Acts of 1903. -

This act makes the board of State tax commissioners ex officio a State board of assessors, and by its title provides for the assessment of the property of railroad companies, union station and depot companies, express companies, car loaning companies, stock car companies, refrigerator car companies and fast freight line companies. ” Such is the provision of the title, and section 4 of this act makes it the duty of said board to make an annual assessment of the property of railroad companies, union station and depot companies, express companies doing business within this State, car loaning companies and. refrigerator and fast freight line companies, and all other corporations owning, leasing, running, or operating any freight, stock, refrigerator or any other cars not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over and upon the line or lines of any railroad or railroads in this State. And section 5 of this act declares that:

“The term company, corporation or association, wherever used in this act, shall apply to and he construed as referring respectively to any railroad company, union station and depot company, express company, car loaning company or refrigerator or fast freight line company, and any and all other corporations subject to taxation under this act.”

We think it clear that the plaintiff does not belong to any class of corporations designated in this act or intended to be affected by its provisions.

The conclusion of the learned circuit judge that the plaintiff was not entitled to recover was correct, and the judgment is affirmed, with costs to defendant.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    PATTERSON v. SPOONER.
    1. Replevin — Instructions—Confusion of Goods.
    Where defendant in replevin admits that he authorized plaintiff to remove his property, and only complains that he also took away certain of defendant’s material, no instruction on confusion of goods is necessary.
    2. Same — Property Wrongfully Taken.
    Where there is evidence to support defendant’s contention; that plaintiff unlawfully took certain of defendant’s property on the writ, defendant, having elected to take judgment for its value, is entitled to have his claim submitted to the jury.
    Error to Van Burén; Carr, J.
    Submitted February 9„ 1906.
    (Docket No. 126.)
    Decided April 30, 1906.
    Replevin by Charles E. Patterson against Henry M.. Spooner. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Barnard & Lewis, for appellant.

      Wick'sall & Gogshall, for appellee.
   Blair, J.

This action was commenced in justice’s’ court by writ of replevin November 15, 1904. Affidavit and bond filed on said date and writ issued on said date, and the usual writ and declaration in replevin was filed irt said cause, claiming damages for $100, or under, for certain type, leads, metal furniture, etc., and also three packages of circular letters and an envelope card. The' defendant pleaded orally the general issue. No defense was put in in the justice’s court, and a judgment was. rendered in favor of the plaintiff in the sum of $10.24 damages and the sum of $3.80 costs, and against the defendant. The cause was afterwards duly appealed to the circuit court for the county of Van Burén. Plaintiff secured a verdict for six cents damages, and the court ordered that no costs be awarded to either party.

Appellant contends that the court erred in not properly presenting his theory of “ confusion of goods,” and in finally taking this theory away from the jury. There is no room for such theory under the evidence in the case. Defendant admits that he authorized plaintiff to remove his property. He only complains that he also took away a few dollars’ worth of defendant’s material.

Defendant requested the court to instruct the jury as follows:

“You are further instructed in this case that defendant claims that plaintiff took certain material belonging to the defendant on the writ of replevin of the value of $10. If you find from the evidence in this case that this is a fact, and that the value of the said property is as claimed by the defendant, then I charge you that you also have a right to bring in a verdict in favor of the defendant for the value of the property so taken, even if you also find that plaintiff is entitled to a judgment, as that is what is known in the law of replevin as a double verdict.”

The court gave the substance of this instruction, but after the jury had retired they were called back and instructed to disregard the defendant’s claim to judgment for the value of the property which he claimed was unlawfully taken upon the writ. This, we think, was erroneous. There was testimony to support the defendant’s contention, and, having by his request elected to take judgment for the value of the property, he was entitled k> have his claim submitted to the jury. McCabe v. Loonsfoot, 119 Mich. 323.

The judgment is reversed, but without costs to either party.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Grant, J.

text:
    WEITZEL v. VILLAGE OF FOWLER.
    1. Municipal Corporations — Highways and Streets — Personal Injuries — Sidewalks—Notice of Defect.
    Notice to the street commissioner of a village of defects in a sidewalk is notice to the village (§§ 2744, 3443,1 Comp. Laws).
    2. Highways and Streets — Defective Sidewalks — Personal Injuries — Actions—Evidence.
    In an action against a village for a personal injury received on a defective sidewalk, evidence of the general defective condition of the walk in the vicinity of the place of the accident is competent. *
    3. Same — Repairs—Subsequent Notice of Defect.
    Evidence that a private citizen repaired a defective sidewalk upon which an injury afterwards occurred is not evidenoe of such repairs as the statute contemplates and does not require plaintiff, suing for the injury, to prove that the walk had become out of repair after the repairs made by the private citizen.
    4. Evidence — Reputation—Materiality.
    Where, in a personal injury case, the issue is whether plaintiff’s leg was broken, and plaintiff employed two physicians, one of whom testifies that the leg was broken, it is improper to ask a professional witness offered by defendant if plaintiflE’s physicians are not reputable physicians.
    5. Same — Harmless Error.
    Error in admitting evidence on the issue of whether plaintiff’s leg was broken is harmless to defendant where the smallness of the verdict shows that the jury did not find that the leg was broken.
    .Error to Clinton; Stone, J.
    Submitted February 13, 1906.
    (Docket No. 146.)
    Decided April 30, 1906.
    Case by Jacob Weitzel against the village of Fowler for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Plaintiff recovered a verdict and judgment for $150 for damages claimed to have been received by falling on a defective sidewalk of the defendant village. He and his wife were walking home from a visit to a neighbor. She ■ stepped upon a loose plank, the other end of which flew up and tripped the plaintiff, in consequence of which he fell. He claimed that his leg was broken. The place of the accident was in front of the lot owned by a Mrs. Gadt, and near the line between her lot and that of one Mrs. Whittaker.
    The defenses are:
    1. That notice to the street commissioner of the village, of the defective condition of the walk, was not notice to the village.
    2. That notice of the defective condition in front of the Whittaker premises was not notice of the defect in front of the Gadt premises.
    3. That it was error to permit evidence of the condition of the walk about 25 feet distant from the point where the accident occurred.
    4. That some repairs were placed upon the walk about a week previous to the accident, and there was no evidence that the walk was out of repair after that time, or of notice to defendant.

      John G. Patterson {Booling & Kelley, of counsel), for appellant.

      H. jE. Walbridge, for appellee.
   Grant, J.

{after stating the facts). About two weeks before the accident, notice of the defect was given to the street commissioner by one who fell within two or three feet of this same place, in substantially the same way. Defendant claims that the street commissioner had no duty, under the law, to inform the council of the defect in the walk, and no authority to repair without their instruction. Under the statute—

“Street commissioners, * * * having special charge of highways, streets, bridges, sidewalks, cross-walks and culverts, and the care or repairing thereof are hereby made and declared to be the officers of the village, * * * and shall be subject to the general direction of such township, village, city, etc.” 1 Comp. Laws, § 3443.

By section 2744 it is made the duty of the street commissioner to perform such labor, repairs, etc., upon streets, sidewalks, etc., as the council shall direct, and to oversee and do whatever may be required of him in relation thereto by the council.

It is true that the law does not expressly provide that the street commissioner shall give notice to the common council of defects in streets and sidewalks that come to his knowledge. It is also true that he cannot of his own motion make repairs. He is, however, the proper officer to look after the streets, and to be notified of defects. Re.gardless of any express provision of the statute, it his duty, ■upon being notified of defects, to inform the common •council, in oi’der that they may be remedied. The very name “street commissioner” implies that he is the proper ■channel through whom the council may be informed of defective streets and sidewalks. The case of Corey v. City of Ann Arbor, 134 Mich. 376, does not apply. In that •case it was held that a patrolman and city clerk had nothing whatever to do with the streets, and therefore notice or knowledge to them was no notice or knowledge to the •city. The street commissioner testified that, whenever he heard that a sidewalk was out of repair, he notified the street committee, and that in this instance he did notify the committee.

It was entirely competent to give evidence of the general defective condition of the sidewalk in the vicinity of the place of the accident. Will v. Village of Mendon, 108 Mich. 251; Styles v. Village of Decatur, 131 Mich. 443. This covers the second and third defenses.

Evidence that one Briggs, a private citizen, of his own motion, put in one plank in.place of two broken planks about two weeks before the accident, is not evidence of such repairs as the statute contemplates on the part of the city, and did not therefore require the plaintiff to prove that the sidewalk had become out of repair after the repair made by Mr. Briggs.

Plaintiff employed two physicians, a father and son. The son, a witness for plaintiff, testified that he and his father attended plaintiff, and that his leg was broken. It was the contention of the defendant that his leg was not broken, and that, if it had been, it would have been impossible for him to walk, as he did, from the place of the accident to his home. The defendant introduced a physician, who on cross-examination was asked if the two physicians who attended the plaintiff were not reputable physicians. The testimony was incompetent, but it is entirely clear that it was not prejudicial. The smallness of the verdict shows that the jury did not find that the plaintiff’s leg was broken. Its admission was therefore error without prejudice.

Judgment affirmed.

McAlvay, Blair, Montgomery, and Moore, JJ., concurred.


text:
    J. E. GREILICK CO. v. TAYLOR.
    Mechanics’ Liens — Statement of Claim — Amount Due — Error —Effect.
    Where a materialman furnishes materials to a contractor for several jobs simultaneously, and makes no application of the money paid him by the contractor, until the contractor becomes unable to pay, when he arbitrarily fixes an amount, which he subsequently concludes is 25 per cent, too large, as the proper share of the debt of the contractor to be made a lien on the property of the owner, and files a statement therefor, he acquires no lien (§ 10714, 3 Comp. Laws).
    Appeal from Grand Traverse; Mayne, J.
    Submitted February 14, 1906.
    (Docket No. 156.)
    Decided April 30, 1906.
    Bill by the J. E. Greilick Company against Maud Taylor and David Smith to enforce a mechanics’ lien. Front a decree for complainant, defendant Taylor appeals.
    Reversed, and bill dismissed.
    Complainant is a dealer in building materials. Defendant Smith is a building contractor. Smith made a written contract with defendant Taylor’s husband to erect a dwelling “on the south side of Fifth street, Traverse City, Mich.,” for #1,680. In fact the house was erected on lots 12 and 13, of block 4 of Hannah, Lay & Company’s Sixth addition, Traverse City, owned in fee by Mrs. Taylor. Mr. Smith was at the same time erecting three other buildings in Traverse City for which the complainant furnished material. This building was erected for a homestead. Mrs. Taylor mortgaged the property for the purpose of raising money to erect it. Mr. Smith completed the building and was paid the full contract price. Complainant did not keep a separate account of the material furnished to contractor Smith for each job. Its books showed a general account. The sole means of identifying the material furnished for each building were the orders for' the material and the delivery tickets or checks issued to the teamsters, who delivered it. Mr. Greilick testified that from those orders and slips he was able to say that he furnished material for the Taylor job to the amount of $934.04. The total amount due on the general account from Smith to complainant was $688.47. Smith failing to pay, complainant filed its notice of lien and took the proper steps to enforce it. It obtained a decree in the court below for $434.04 and interest.

      Govell & Gross, for complainant.

      Farm, G. Gilbert, for appellant.
   Grant, J.

(after stating the facts). In the sworn statement of lien, filed with the register of deeds, the amount due was stated at $550, which sum it was averred remained due and unpaid over and above all legal set-offs. Afterwards, in the petition to enforce the lien, it was admitted that the sum should have been only $434.04. Mr. Greilick in his direct examination gave evidence tending to show the total amount furnished for the Taylor job to be $934.04. When asked by his counsel how much he had received and applied on this account, he said “$500,” leaving unpaid $434.04. He made no explanation of the discrepancy between his sworn statement of lien and the amount stated in the petition and in his testimony.

On cross-examination he testified that the total balance due from Smith on the four jobs for which petitioner furnished material was $688.47. When asked how much of that was on the Havilandjob, he could not tell. When asked how much was on the Dean job, he replied:

‘ ‘ Why we believe the man, Smith, to be owing something on all the jobs.
“Q. Well, how much?
“A. I am not sure that I could tell you. * * *
“Q. Then, you don’t know how these amounts were paid, or who paid on the Taylor account ?
“A. No, sir.
“Q. Nor how there came to be.$500 credited on the Taylor account ?
“A. Why, we know that he was receiving money from Taylor and must have paid some on his account, or applied on his account. He never specified when he paid money.
“Q. And this account commenced July 10, 1902 — March, 1902. Is that the beginning of his account ?
“A. Yes, sir.
UQ. Now, from there on down, beginning on page 425, down through to October 21, 1902, that shows all the transactions on these four jobs and charges to Smith ?
“A. It shows his summer’s business, that is.
“ Q. I ask you, then, if you made any entry here giving him any credit on any particular job, or whether it is simply a general credit ?
“A. It appears to be a general credit.
“ Q. Then how do you tell us that there is a balance due on each one of those jobs, and you can tell just how much is back and due on the Taylor job ?
“A. I don’t think I have told you that.
Q. Didn’t you swear he had only paid $500 on the Taylor account ?
“A. That is the amount I told you we had credited to the Taylor job.
.. “ Q. Well, where is it credited on that account? Sir, show it to me on that book (shows ledger).
“A. It doesn’t appear on that book.
Q. You said also there was a balance of $434.04 due on the Taylor job, didn’t you ?
“A. Yes, sir.
Q. Where does that show on your books ?
“A. Our invoices and our tickets will show the amount of the material delivered to—
Q. Yes, but I am calling your attention to the way you keep your account here with Smith. You have a balance of $688.47 charged against Smith?
“A. Yes, sir.
Q. And you have got that amount charged against Smith to-day ?
“ A. Yes, sir.
Q. And which one of these payments credited here to. Smith belonged to the Taylor job, and'what is there here to indicate it ?
“A. There is nothing there to indicate it.
Q. And when you said you credited this much here you simply did it for the purposes of this suit ?
A. This was done some time ago.
“ Q. When?
A. Soon after the papers were filed.
'* ‘ Q. And that is the way you adjusted it at that time ?
“A. Yes, sir.
Q. So you made up your mind then that you would ■credit $500 to the Taylor job and scatter the rest round on the others ?
A. Yes, sir.
Q. And you did that some time after these papers were filed ?
“A. Yes, sir. * * *
Q. Well, when you made that statement of lien in the ■first place, you didn’t know how much was due, did you ?
A. No, I don’t believe we did.
Q. How did you get at that $550 ?
A. Well, it was the best we could do, and we wanted to make it big enough. We were given to understand that we could correct it later.
Q. You simply wanted to make it big enough and take your chances on it, is that it ?
“A. I have explained that.
Q. Well, you had a balance at that time against Smith on your books of $688.47 ?
“A. Yes, sir.
Q. Now, how did you change that, so as to make it $550 against Taylor; that is what I want to know — when you made that statement ?
“A. It was a matter of guess work, I presume, as near as we could get at it.
Q. Will you tell me what computation you made from this account to get at it, to bring it to that sum ?
“A. I couldn’t do it.
Q. You just thought that that would he big enough, and as near as you could, get it, anyway, and that that would do. Isn’t that the truth about it ?
“A. Yes, sir; I think I stated so before.
Q. And you made it without any knowledge that it’ was correct or incorrect ?
“A. Yes, sir; but we did correct it as soon as we could.
Q. How long had Mr. Cook been away from here when this statement of lien was made ?
“A. I don’t know. He was in*the TJuited States court at Grand Rapids. He might have been away a month,I think, and he might have been away only a few days, and he might have been away three weeks.
Q. You had never taken any pains to go over the account with him before ?
“A. No, sir.
Q. And when you did go over it afterwards you just split up the payments and just agreed in a general way on what you should credit to him ?
A. Yes, sir.
“ Q. You didn’t change the condition of the account in any way ?
A. No, sir.
“ Q. Only just agreed among yourselves how you would give the credits ?
“A. Yes, sir.
Q- Well, why couldn’t you agree on that before Cook came home as well as after. Cook didn’t have anything by which he could tell you how much credit to give to Taylor, did he ?
“A. I think after we filed the lien Mr. Smith paid us $317, and at that time, if he did, that would leave the account nearly $1,000.
“Q. You think that $317 was paid after the 1st of November, 1902 ?
“A. I don’t know the date it was paid.
“Q. Well, your affidavit is sworn to on the first of November, 1902, so you will have to guess again.
“A. No, I thought it was earlier than that.
“Q. Well, then, that wasn’t the reason, was it ?
“A. No, sir.
“Q. Then I ask you again, what was there to prevent you or the members of your company, if you were going to make any adjustment of these credits, sitting right down and doing it, just as well before Cook came home as afterwards ?
“A. Because I was very much pressed for time that afternoon that I did that.
Q. So you thought you would make the amount big enough and figure it out correctly when you got ready ?
“A. Yes, that’s it.
“The Court: What relation did Mr. Cook sustain to the company at that time ?
“A. Simply bookkeeper.”

Evidently Mr. Greilick did not keep his account with Mr. Smith with any view to the enforcement of a lien. As payments were made he applied them on his general account without any inquiry from whom Smith received the money, or on what job it should be credited. Evidently not until Smith became unable to pay did he think of attempting to enforce a lien. Then he arbitrarily fixes $550 as the proper share of Smith’s debt to him to be made a lien upon the property of Mrs. Taylor, and subsequently concludes that it should be $434.04. Mr. Greilick, under his own testimony, made and filed the sworn statement of lien without the requisite knowledge. As this court, as well as others, has frequently said, these lien proceedings are harsh and must be strictly followed, and the law will not permit one to recklessly make an affidavit of the amount due without any knowledge, thinking he may afterwards correct it, when, in fact, the claim made is 25 per cent, too large. The statute [§ 10714, 3 Comp. Laws] requires a verified statement to be filed, which must contain a just and true account of the demands over and above all legal set-offs. The affidavit must be made by one who knows the facts. This statement, when filed, creates the lien, and the law excuses only an honest mistake in stating the amount due, made by one cognizant of the facts. The case is ruled by Gibbs v. Hanchette, 90 Mich. 657; Brennan v. Miller, 97 Mich. 182; and Meyer v. Berlandi, 39 Minn. 438 (1 L. R. A. 777).

This decision renders it unnecessary to discuss the other questions raised.

Decree reversed, and bill dismissed, with costs of both courts.

McAlvay, Blair, Montgomery, and Moore, JJ., concurred.


text:
    MILLER v. DETROIT UNITED RAILWAY.
    1. Witnesses — Impeachment—Contradictory Statements.
    In an action by a boy for personal injuries, written ^statements by the boy and his mother as to how the accident happened, which are contradictory of their testimony in the case, are admissible for the purpose of impeachment.
    2. Evidence — Burden of Proof.
    In an action by a boy against a street-railroad company for personal injuries arising from his being ejected from a car as an intruder, it is error to refuse to instruct that the preponderance of evidence is upon plaintiff.
    Error to Wayne; Donovan, J.
    Submitted February 13, 1906.
    (Docket No. 140.)
    Decided April 30, 1906.
    Case by Leonard Miller, by nest friend, against the Detroit United Railway for personal injuries. There was judgment for plaintiff and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Joseph B. Nolan and Dohany & Dohany, for appellee.
   Grant, J.

Plaintiff, a boy 10 years old, jumped from the running board of the defendant’s car near the crossing of the tracks on Woodward and Michigan avenues, in the city of Detroit, and was injured. He claims that he boarded the car to sell a newspaper to a passenger; that the conductor came along the running board, ordered him off, and threatened him with his fist; and that for this reason he jumped/ He' recovered verdict and judgment.

After the accident the plaintiff and his mother made a written statement of how the accident occurred. Their testimony was contradictory to some of the written statements. Defendant offered the written statement in evidence as tending to impeach the statements made by the witnesses upon the stand. The court refused to admit it, for the reason: “I think there is better evidence in having the living witnesses.” It is clear that the evidence was admissible.

The court refused the request to instruct the jury that the preponderance of evidence was upon the plaintiff, and did not in his charge refer to the question. The charge should have been given, or at least covered by the oral charge.

Error is also assigned upon the intemperate language of plaintiff’s counsel in arguing his case to the jury. As there is no probability that the like language will be used again, it is not necessary to make further reference to it.

Judgment reversed, and new trial ordered.

McAlvay, Blair, Montgomery, and Moore, JJ., concurred;


text:
    CROMWELL v. HUGHES.
    1. Boundary — Dispute—Remedy—Ejectment—Improvements.
    Where defendant is in possession of a house built partly on land claimed by complainant and partly on land conceded to be owned by defendant, complainant’s remedy is by ejectment, where the question of improvements may be litigated as provided by the statute (§§ 10994-10996, 3 Comp. Laws).
    2. Injunction — Disputed Title — Relief — Restraining Waste.
    On a bill to restrain defendant in possession from removing a house built partly on land claimed by complainant and partly on land conceded to be owned by defendant the only appropriate decree is one to restrain waste pending ejectment to determine title.
    Appeal from Missaukee; Chittenden, J.
    Submitted February 14, 1906.
    (Docket No. 166.)
    Decided April 30, 1906.
    Bill by Joseph W. Cromwell against Frank Hughes to enjoin the removal of certain buildings. Defendant filed an answer in the nature of a cross-bill to quiet title to .land. From a decree for complainant, defendant appeals.
    Modified.
    Complainant filed this bill to enjoin the defendant from removing a house built partly on land claimed by complainant and partly upon land conceded to be owned by the defendant. The prayer is for an injunction restraining defendant from removing said building and from entering upon the strip of land claimed by complainant. The answer denies complainant’s title, and by cross-bill asks to have complainant’s deeds, by which he claims title, set aside as a cloud upon defendant’s title. One of the issues is the location of the boundary line known as the “ One-Eighth Line ” between the S. i of the N. W. £ of ■ section 30, owned by the defendant, and the N. $ of said N. W. i.

    The circuit judge found that the proofs were not sufficient to establish just where the eighth line was, and that therefore the only relief he could grant was an order “restraining defendant from removing the buildings or from entering upon the land north of the eighth line to be established.” The decree as entered found that this strip of land in dispute was about 60 feet wide; that the dwelling house projected feet over the south side of said eighth line upon land belonging .to defendant; that the dwelling house and barn belonged to complainant; that defendant threatened to remove them; that complainant was the owner of said strip of land lying north of said eighth line, between that line and the south side of the village of Owens — and restrained the defendant perpetually from entering upon or interfering with the possession of said land, and from removing said buildings.

      F. O. Gaffney, for complainant.

      F. F. Sawyer, for defendant.
   Grant, J.

(after stating the facts). The record is in a very unsatisfactory condition for the proper determination of the rights of the parties. One McBain, the original owner of the N. W. {? of section 30, platted the village of Owens; When it was platted is not stated in any of the pleadings or shown by the evidence. When this house was built does not appear. It does appear, according to the evidence on the part of complainant, that when Mr. McBain platted this village on the N. -J- of the N. W. \ he left a strip on the south part of said N. -J outside the village plat; that a street was established on the south side of said plat running the entirelength of the village, called Elm street; that Mr. McBain placed a fence on the south side of Elm street more than 15 years before the commencement of this suit, inclosing the disputed strip with the S. i of said N. W. J; that said fence has remained as originally located and the land south of it occupied as one parcel; that'Mr. McBain mortgaged the S. % of said N. W. i; that the mortgage was foreclosed in 1898, and upon the sale the Dewey Stave Company bought a part of it and complainant the other part; that defendant obtained his title from the Dewey Stave Company ; that soon after the- purchase by complainant and the stave company he discovered that the plat did not include the entire N. \ of said N. W. and that this strip of land was not a part of the S. -J- according to the government survey. He thereupon obtained deeds from the heirs of Mr. McBain conveying to him all that part of the N. -J of the N. W. £ of section 30 which was not included within the village limits. He testified that he had a parol arrangement with the Dewey Stave Company by which it was to have title to that part of said strip opposite the land owned by it. Meanwhile the Dewey Stave Company sold to the defendant. Defendant purchased this land in the belief that the north boundary line was the south line of Elm street. Probably the house and buildings were built with that understanding. The only access to said land during all this time was from Elm street. An access to a public highway could be obtained on the west by crossing a railroad. Under the decree complainant has obtained title to the dwelling house, including that part located on defendant’s land.

If it should be determined that complainant owned this strip of land and the boundary line had run through the center of the house, who would own the house? Certainly the complainant obtained no title to that part of the house located on defendant’s land. Defendant was in possession. An action of ejectment was the proper remedy, where the question of improvements might be litigated, under 3 Comp. Laws, §§ 10994-10996. The effect of this decree is to oust one in absolute possession, claiming title, by a decree in equity to restrain waste.

We, think, under this record, the only appropriate decree would have been the restraint of waste, pending a determination of the title in the appropriate action of ejectment.

The decree will be so modified, with costs to the defendant.

McAlvay, Blair, Montgomery, and Moore, JJ.„ concurred.


text:
    McCORMICK v. WEAVER.
    1. Nuisance — What Constitutes — Obstruction in Street — Question of Pact.
    Whether an obstruction of a public street constitutes a nuisance presents a question of fact and not of law.
    2. Municipal Corporations — Saginaw Charter — Powers of Council — Obstruction of Streets.
    The charter and ordinances of the city of Saginaw do not empower the council to authorize the obstruction of a business street by a permanent outside stairway occupying a portion of the sidewalk needed for pedestrians.
    3. Nuisance — Outside Stairway.
    The erection of a permanent outside stairway in one of the main business thoroughfares of a city, that will occupy a portion of the sidewalk needed on certain days for foot passengers, constitutes a nuisance.
    4. Same — Encroachment on Street — Injunction — Suit by Private Person.
    It being a necessary consequence of the building of an outside stairway constituting a nuisance that it will obstruct the view of an adjoining building, the owner of such building is entitled to maintain suit to enjoin its construction.
    Appeal from Saginaw; Beach, J.
    Submitted February 14, 1906.
    (Docket No. 168.)
    Decided April 30, 1906.

      Bill by Edward W. McCormick and others against Nancy M. Weaver and others to restrain the erection of an obstruction in a public street. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      John F. O'Keefe, for complainants.

      Fugene Wilber, for defendants.
   Blair, J.

Complainants are the owners of a five-story brick office building in the heart of the business center of the city of Saginaw. The defendants are the owners of a three-story office building upon an adjacent lot. Both buildings are substantially flush with the west line of Franklin street. This street extends north and south, and is one of the main thoroughfares of the city. It was dedicated to the public in 1850, and has been used as a public highway for upwards of 40 years. The street is paved and has cement sidewalks in front of these buildings. The Weaver building has a frontage on Franklin street of 80 feet. The McCormick building has a frontage on Franklin street of 42 feet. The McCormick building is equipped with an elevator, and the offices are rented principally to dressmakers who have a large patronage. On an average, upwards of 800 people daily pass to and from this building. The entrance to the building is on Franklin street. The defendants intend to construct an iron stairway 3 feet wide on the outside of the Weaver building on Franklin street appurtenant to the building, to extend one story high, 15 or 18 feet, on and over the west side of said street. The south wall of the Weaver building is adjacent to the north wall of the McCormick building. The stairway, if built, will occupy 3 feet in width of the west sidewalk of said street.

The complainants filed a bill in the circuit court for the county of Saginaw, in chancery, alleging that the construction of such a stairway at this place would be a private nuisance, and asked the court to restrain the defendants from erecting the stairway over the street as contemplated. Testimony was taken in open court, and the circuit judge dismissed their bill, holding that the defendants were authorized by the common council of the city of Saginaw to erect this stairway. The complainants have appealed from the decree entered by the circuit judge, and claim:

1. That the common council had no power to authorize a permanent encroachment upon this street.

2. That the erection of the proposed stairway would constitute a nuisance.

3. That the complainants have such a special interest in the subject-matter that they may maintain this suit.

The important question for consideration in this case is whether the erection of the proposed stairway would constitute a nuisance. If this question must be answered in the affirmative, the case, in our opinion, is ruled by Freud v. Forbes, 139 Mich. 280. As early as 1849 it was held by this court that whether an obstruction of a public street constituted a nuisance presented a question of fact, and not of law, and from that day to this that doctrine has never been questioned, but has frequently been cited with approval. People v. Carpenter, 1 Mich. 273.

In Everett v. City of Marquette, 53 Mich. 450, it is said:

“But it is not necessary in this case to determine whether the permission given by the village council was in due form for the purposes of a permanent appropriation, or even whether the council had the power to consent to such an appropriation. It is undoubted that the council had general control of the streets under the village charter; and it was a part of its duty to prevent the creation of any public nuisance . within them. It is not to be assumed that consent would have been given to such a nuisance, and when, by formal resolution, the council assumed to give permission to complainant to make the openings and build the stairways complained of, it must have been done in the belief that no public inconvenience would follow. If the permission was effectual for no other purpose, it at least rebutted any presumption which might otherwise have existed that this partial appropriation of the street was per se a nuisance.”

The trial judge based his decree dismissing the bill of complaint upon his conclusion that as a matter of law the city of Saginaw had authority under its charter and ordinances to grant permission to defendants to obstruct the public street by the stairway. He does not otherwise express any opinion upon the facts.

The provisions relied upon by the circuit judge are as follows:

“Title 6, § 1, of the charter (Act No. 465, Local Acts 189?) of the city of Saginaw, provides:

“ ‘The common, council of the city of Saginaw shall have full power to lay out, open, widen, alter, close, fill in or grade and vacate or abolish any highway, streets, avenues, lanes, alleys, public grounds or spaces in said city.’

“Section 5, p. 203, of the compiled ordinances of the city of Saginaw, among other things, provides:

“ ‘ No person shall erect or maintain any sign, show-case or stand which shall extend more than three feet from the building into or over any street or sidewalk.’

“ Section 20 of said ordinances also provides:

“ ‘No person shall erect any balustrade or balcony to extend beyond the line of any street less than twelve feet from the ground without permission from the common council, and in the event of permission being granted, iron braces and railing shall be used in the construction of any such balustrade or balcony, and the same shall not project beyond the line of the street more than three feet.’”

Counsel for defendants cites, in addition, section 8, tit. 3, of the charter, which provides:

“The common council, in addition to the powers and duties specially conferred upon them in this act, shall Lave the management and control of the finances, rights, and interests of all property, real and personal, belonging to the city, and make such orders and by-laws relating to the same as they shall deem proper and necessary.”

The temporary or permanent character of the obstruction must necessarily have an important influence in determining whether it was a nuisance or whether the common council had authority to permit it. It satisfactorily appears from the evidence that the improvement contemplated was a permanent one, for the benefit of the People’s Savings Bank, one of defendants’ tenants. The existing inside stairway was to be taken out and replaced with this outside- stairway, which would furnish the only means of access to the upper stories. In our opinion the sections cited from the charter and ordinances do not empower the council to authorize such an obstruction to the street. On the contrary, we think it is expressly prohibited by the provisions of section 8, tit. 17, of the city charter (Act No. 465, Local Acts 1897), which reads:

“ The common council shall not grant * * * exclusive privileges to the use of the streets or public grounds of said city.”

Taylor v. Railway Co., 80 Mich. 77; Horner v. City of Eaton Rapids, 122 Mich. 117; Detroit Citizens’ St.-Ry. Co. v. City of Detroit, 110 Mich. 384, 388 (35 L. R. A. 859); Freud v. Forbes, supra.

Since the stairway in question has not been erected, its effect can only be determined by inference from other facts and circumstances. The great weight of authority holds that a permanent obstruction like the one in question is a nuisance per se, and under our own rule we do not think it necessary to go further than to show the permanent character of the obstruction, the width of the street and sidewalk, the character of the locality, whether business- or residence, the extent of the business or traffic, the amount of travel, and the effect of similar obstructions under similar circumstances.

It appears from the record that Franklin street is one of the main business thoroughfares of the city, and that at times the portion of the street in question is much traveled; that on Saturday nights and circus days and other public occasions the entire width of the sidewalk is likely to be required for foot travelers; that, unless prevented, idle people will be likely to congregate about the stairway, expectorate upon the walk, and be offensive to passersby, and particularly to ladies; that numerous complaints have been made to the police force of such stairways; and that it is difficult to enforce observance of the ordinances and prevent obstructing and expectorating upon the walks.

We think that the erection of the stairway, in view of the facts and circumstances disclosed by this record, would be a nuisance. It is a necessary consequence of the erection of the stairway that it will obstruct the view of complainants’ building, and complainants are entitled to complain thereof under the rule laid down in Freud v. Forbes, supra.

The decree is reversed, with costs of both courts to complainants, and a decree may be entered in accordance with this opinion.

McAlvay, Grant, Montgomery, and Moore, JJ., concurred.


text:
    PEOPLE v. HARRIS.
    1. Criminal Law — Appeal and Error — Denial oe New Trial —Review.
    Where the record on error in a criminal case does not contain the reasons for denying a motion for a new trial, this court cannot review the ruling.
    2. Same — Preliminary Examination — Waiver.
    By pleading not guilty to an information, without raising the objection of want of examination, respondent waives the objection.
    3. Same — Appeal and Error — Review.
    Where the record of a criminal case does not indicate that an attorney participating in the prosecution as assistant to the prosecuting attorney was disqualified, and no objection was made on the trial to his acting as assistant, and the court, on conflicting affidavits on a motion for a new trial, finds that he was not disqualified, the question of his disqualification is not re viewable on error.
    4. Same — Assault and Battery — Indeoent Assault on Female Child — Evidence.
    Where, in a prosecution for taking improper liberties with the person of a female child, respondent alleges that it was because of his sickness that the child’s presence was required in his bedroom, and he is permitted to testify fully as to his physical condition, the refusal to, permit him to state the cause of his illness is not erroneous.
    5. Same — Trial—Admission oe Evidence — Correotion oe Error.
    On a trial for taking indecent liberties with a female child and for assaulting her with intent to ravish, the prosecutrix testified without objection to the fact that she told the city marshal and a patrolman about the occurrence in question. Accused’s counsel withdrew objections to the patrolman’s testimony on the subject, on the court ruling that in cases of attempted rape it was proper to show that the prosecutrix had made complaints. Held, that the subsequent testimony of the marshal, in which he narrated a conversation with the prosecutrix, in which she gave the details of the crime, was not prejudicial, where the court charged that the jury could not consider what the child had said to others, but only the fact that she had made statements to others, and that the charge of assault with intent to ravish was withdrawn.

      Error to Manistee; McAlvay, J.
    Submitted February 15, 1906.
    (Docket No. 216.)
    Decided April 30, 1906.
    Ebenezer Harris was convicted of taking indecent liberties with the person of a female child and sentenced to imprisonment for not less than seven and not more than ten years in the State prison at Jackson.
    Affirmed.

      Frank L. Fowler (Carl Heim, of counsel), for appellant.

      E. J. Richmond, Prosecuting Attorney, for the people.
   Blair, J.

Respondent prosecutes this writ of error to reverse a conviction of taking “indecent and improper liberties with the person of Aimee Boulanger,a female child under the age of 14 years, without committing or intending to commit the crime of rape upon such child,” etc. The complaint, warrant, and return of the examining magistrate describe and relate only to the above-mentioned crime. The information filed by the prosecuting attorney contained two counts — one following the complaint and warrant; the other charging assault with intent to ravish. Although the record does not so disclose, counsel for both parties state in their briefs that respondent pleaded not guilty to this information., No objections were presented to the information generally, nor to the count charging assault with intent to ravish, until after verdict, when, for the first time, objections were raised in motions for new trial.

The record discloses that Peter T. Glassmire participated in the trial as assistant to the prosecuting attorney, and there is nothing in the proceedings prior to the verdict, as disclosed by the record, to indicate any disqualification for the position on his part. The record does not contain any order appointing him, and we understand it to be admitted that no such order was entered of .record. No objection was made upon the trial to Mr. Glassmire’s acting as assistant prosecutor, but in one of the affidavits in support of the motion for a new trial facts are alleged which, if true, would disqualify him. The alleged facts set up in this affidavit, however, are denied by Mr. Glass-mire and his stenographer, and it is shown by his affidavit and that of the prosecuting attorney that he was actually appointed by the courts

The first assignment of error relates to the refusal to grant the motion for a new trial. As the record does not contain the reasons why the court denied the motion for a new trial, we cannot review its action. Stevenson v. Railway Co., 118 Mich. 651; People v. Ecarius, 124 Mich. 616, 626.

The second, third, fourth, and fifth assignments complain that respondent, by the information, was placed on trial for an offense for which he had had no examination. By pleading to this information, and not raising the question till after verdict, respondent waived the objection. People v. Jones, 24 Mich. 215; People v. Hanifan, 98 Mich. 33; People v. Turner, 116 Mich. 390. Furthermore, before the close of the case, the count charging assault with intent to ravish was withdrawn, and consideration of the proofs was limited to the crime for which respondent had had an examination, and of which he was convicted by the jury.

The sixth assignment questions the appointment of Mr. Glassmire. There is nothing in the record for our consideration under this assignment. The facts alleged in support of the motion for a new trial were controverted by the affidavits for the' people, and were evidently not accepted by the trial court. We cannot presume that Mr. Glassmire was disqualified nor overrule the trial judge’s findings of fact unless they are properly brought before us. In the case of People v. Bussey, 82 Mich. 49, the prosecuting attorney admitted his disqualification.

The assignments, from the seventh to the forty-sixth, both inclusive, with the exception of the twenty-sixth and twenty-seventh, relate to the rulings of the court admitting or rejecting testimony. The only ones of these assignments which are based upon exceptions are the twenty-third, twenty-fourth, twenty-fifth, and twenty-eighth.

The twenty-eighth complains that the court refused to permit the defendant to testify as to his physical condition. The assignment is unfounded in fact. Respondent was allowed to testify fully as to his physical condition, the only limitation being as to the cause of his condition or •sickness, which the judge thought immaterial. Respondent alleged that it was because of his sickness that the girl’s presence was required in his bedroom, and, clearly, the cause of his illness could have had no bearing upon that contention.

The twenty-third, twenty-fourth, and twenty-fifth assignments question the correctness of the judge’s ruling permitting the city marshal, Souve, to narrate a conversation with Aimee Boulanger on .October 26th, in which Aimee gave to him, in response to his questions, the details of the alleged crime of October 24th. In passing upon these assignments, it is necessary to consider all of the rulings of the court upon this subject. Souve was the last witness for the prosecution. Prior to the giving of his testimony, Aimee had been permitted to testify, without objection, to the fact that she had told him and his patrolman, Nord, about the occurrences in question, and respondent’s counsel had withdrawn their objection to Nord’s testifying upon the subject. "When Nord was upon the stand the following took place:

“ Q. I call your attention, Mr. Nord, to the 24th of October last, and ask you to state what conversation you had with Aimee Boulanger, this girl here, and how you ■came to be at her house, or her father’s house, if you were. State all circumstances connected with that.

Mr. Dunlap: We object to any statement as to the issue here in this case. If it is only preliminary, or something of that kind, we do not object to it; but in relation to his stating facts in connection with that girl, I •object to it.

‘ ‘ The Court: On what grounds ?

“ Mr. Dunlap : On the ground that it is hearsay.

Mr. Qlassmire •' We give you notice now, of course, that we will prove the fact as soon as the girl takes the stand, we will do that later. We contend we have a right to show by this officer what she said in relation to this matter. (Court hears argument.)

‘ ‘ The Court: In these cases of attempted rape and. assault it is always admissible to show that the party made complaint, and especially if the complaint or statement of the party has been made at once, or within a reasonable time, and the courts have gone to the extent of stating that the length of time, if it is explained .why the statement was not made, if more than an ordinary length of time, cuts no figure.

“ Mr. Dunlap: If that is the object, I will not object.”

Aimee became 10 years of age in March preceding the date of the alleged offense. She testified:

“ He said not to tell my parents that I came there. I did not tell my parents, because I was afraid of a licking, and because he told me not to tell. * * * I talked with the marshal then, and told him about the matter. I never told my father or mother about Harris putting me on the bed because Mr. Harris told me not to tell. ”

In the course of his charge, the court, having stated to the jury that the count for assault with intent to ravish had been withdrawn, instructed them that they could not consider what the child had said to others, but only the fact that she had made statements.

“ I desire to make this clear to you, and this is my only opportunity to do so. That the story in detail as given to this officer, you need not and must not consider. I wipe that out of this case and simply allow you to consider that she did make statements.”

Whether the ruling of the court admitting the testimony of Souve was correct or not under the decisions of this court in People v. Gage, 62 Mich. 274, People v. Marrs, 125 Mich. 376, and other cases cited in the brief for appellee, we do not find it necessary to determine in this case. As limited by the court in the charge, the testimony of Souve could not have prejudiced respondent, since substantially everything that he testified to was already in the case without objection.

The motion to direct a verdict of acquittal was clearly frivolous,- and we find no merit in the errors assigned upon the charge under the statute.

A motion was made after the submission of this case to correct the circuit judge’s certificate so that it should certify that the bill of exceptions contains all of the evidence taken upon the trial of the cause. Without determining that such a motion could properly be made in this court, we have decided the case upon the theory that the record does contain the substance of all of the evidence in the case.

The judgment is affirmed.

Grant, Montgomery, Hooker, and Moore, JJ., . concurred.


author: McAlvay, J.

text:
    PEOPLE v. PROVOST.
    Criminal Law — Trial—Instructions — Failure of Accused to Testify.
    Where accused in a criminal case does not testify it is error to refuse to give a requested instruction that no presumption of guilt can be indulged in by the jury on account of his failure to testify. Section 10211, 3 Comp. Laws.
    Error to Houghton; Streeter, J.
    Submitted February 15, 1906.
    (Docket No. 213.)
    Decided April 30, 1906.
    Frank X. Provost was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than five years in the branch of the State prison at Marquette.
    Reversed.

      Louis N. Legris and P. H. O’Brien, for appellant.

      A. W. Kerr, Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was informed against on a charge of an assault with intent to commit the crime of murder. The evidence against him was entirely circumstantial. He was not sworn as a witness in his own behalf. H© was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to a term of not less than five years in the State prison at Marquette.

But one question of law is raised in the case. This question was raised in the court below by a request to charge, which was refused, and afterwards by a motion for a new trial based upon the refusal to charge. The request refused was as follows:

“ The defendant in this case had a right to go upon the witness stand and testify in his own behalf, if he chose to do so. The law, however, expressly provides that no presumption adverse to him is to arise from the mere fact that he does not place himself upon the witness stand. So, in this case, the mere fact that this defendant has not availed himself of the privilege which the law gives him should not be permitted by you to prejudice him in any way. It should not be considered as evidence either of his guilt or innocence. The failure of the defendant to testify is hot even a circumstance against him, and no presumption of guilt can be indulged in by the jury on account of such failure on his part.”

The statute in this State which makes a defendant in a criminal case a competent witness reads:

“No person shall be disqualified as a witness in any criminal case or proceeding, by reason of his interest in the event of the same as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility: Provided, however, That a defendant in a criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment. -to be made to or upon such neglect.” Section 10211, 3 Comp. Laws.

The consideration of statutes similar to this has been before the courts of several States. It will be noted that the statutes of some of these States differ in some respects from the statute in this State.

In Missouri and Minnesota, both court and counsel are prohibited by statute from making any comments whatever upon the fact that a defendant has not testified. State v. Robinson, 117 Mo. 649; State v. Pearce, 56 Minn. 226.

In Iowa and Texas, where the statute prohibits the attorney for the State from referring to the fact that defendant has not testified, and makes such reference a misdemeanor and cause for new trial, the courts hold that a charge instructing the jury that such failure to testify raises no presumption against him was not prohibited. State v. Weems, 96 Iowa, 426; Fulcher v. State, 28 Tex. App. 465. See, also, State v. Skinner, 34 Kan. 256.

The same was held in Ohio under a statute practically the same as in this State. Sullivan v. State, 9 Ohio Cir. Ct. Rep. 652.

In New York, a charge'given by the court, on its own motion, broader than the charge requested in the case at bar, was held not to be erroneous. People v. Hayes, 140 N. Y. 485 (23 L. R. A. 830), citing and approving Ruloff v. People, 45 N. Y. 213. See, also, People v. Fitzgerald, 20 App. Div. 139.

In several States it has been held proper to give such a charge, but not error to omit it in the absence of a request to do so. People v. Flynn, 73 Cal. 511; Metz v. State, 46 Neb. 547; Felton v. State, 139 Ind. 531.

In Maine and Illinois the question raised in the case at bar was squarely before the courts. In State v. Landry, 85 Me. 95, the court said:

‘ ‘ The requested instruction should have been given. It was in exact verbal accordance with the rule laid down in State v. Banks, 78 Me. 490. The legal proposition was relevant to the issue. It was founded upon the statutory provision that the fact that the person accused does not testify in his own behalf shall not be taken as evidence of his guilt. The respondent was entitled to have the jury know of the existence of the statute and understand the effect of it. If not so, then a statute expressly created for the benefit of a class of persons is wholly useless to them. The natural inclination of the jury would lead them to adopt the presumption which the statute was designed to prevent. * * * ”

The request refused by the court was “that, in determining their verdict, they should entirely exclude from their consideration the fact that the defendant did not elect to testify, substantially as if the law did not allow him to be a witness.” The judge did not cover the request in his charge. It also appears in this case that the jury must have been present when the request was discussed. The court said:

“The refusal of the judge to give the instruction asked for in the present case must have led the jury to believe that the principle invoked by the counsel for the defense was incorrect, and that belief would naturally be intensified by the remark of the judge that the government’s case was uncontradicted.”

In Illinois the statute is identical with the statute in this State. The defendant did not testify, but his codefendant did. We quote from the opinion:

“An instruction was asked on behalf of plaintiff in error to the effect that no presumption of guilt should be indulged against him because he had not testified in his own behalf, but it was refused. Section 426, chap. 38, Rev. Stat., expressly provides that the neglect of a defendant, on trial charged with crime, to testify, shall not create any presumption against him. No reason whatever is suggested for the refusal of the instruction asked. The giving of it became doubly important to the plaintiff in error by the giving of one on behalf of the people as to the weight to be given to codefendant Norton’s testimony, by which the attention of the jury was directed to the statute making defendants in criminal causes competent to testify in their own behalf. The instruction should have been given.” Farrell v. People, 133 Ill. 244.

The supreme court of Nebraska (which had previously held, under a statute similar to, but not in the exact words of, ours, that it is not error for the court on its own motion to charge with reference to the provisions of the statute and a defendant’s rights under it), in a case where' defendant sought a reversal upon the ground that the charge of the trial court was given without a request and was too indefinite, said:

“If counsel for accused did not regard the words, ‘Nothing shall be taken against him because he did not testify,’ sufficiently specific and definite, he should have drafted and presented to the court an instruction embodying his views upon that subject. Having failed to do so, he cannot complain of the vagueness of the instruction.” Ferguson v. State, 52 Neb. 432.

And, further, after quoting its own language used in Metz v. State, supra, said:

“The fair and reasonable inference to be drawn from this language is that it is discretionary with the trial judge whether he will instruct or will not charge the jury upon the question.where no request has been made to so instruct. * * * When a prisoner is not sworn, it is the duty of the court to inform the jury, if requested so to do, that they are not to draw any inference of guilt from the fact that he did not testify.”

In support of this proposition, the court quoted the Illinois statute, and cited the case of Farrell v. People, supra.

In the case at bar the learned circuit judge filed an opinion which is before us, and in which he reviews at length some of the cases to which we have called attention. His conclusion was that, nothing having occurred in this case to call attention of the jury to the fact that defendant had not testified, the court was not warranted in making any reference whatever to defendant’s rights under the statute.. He held that “under a reasonable construction of the statute, in ordinary cases, the court itself has no right to make any reference to the fact that the accused has failed to testify.” This question has never been before this court. This statute was considered in People v. Hammond, 132 Mich. 429, where error was claimed because the prosecutor, in answer to statement of respondent’s counsel, had referred to the fact that he had not testified. The majority opinion stated that, under the circumstances,—

“We are not, therefore, prepared to hold that it waB error, particularly in view of the fact that the jury were instructed that the fact that the respondent did not take the stand in his own behalf should not weigh against him in any manner.”

Eliminating from our consideration those cases where the court is by statute prohibited from referring to or commenting upon the fact that a defendant has not testified, we find from an examination of all these authorities that they may be classified as follows:

1. It is not error for the court on its- own motion to give such a charge as was requested in this case.

2. That the court is not required to give such a charge, in the absence of a request so to do.

3. That, where such a request to charge has been made, it is error to refuse to give it.

From the reasoning of the decisions in the first class of cases, it would seem to follow logically that they would hold it erroneous to refuse a request so to charge. If it is proper, as a matter of law, for the court to so instruct the jury on its own motion, the conclusion cannot be escaped that a defendant would be entitled to require such statement of the law. In the second class, the courts of California and Indiana intimate strongly that it would be erroneous to refuse to give such request, and in Nebraska the court has.so held. Ferguson v. State, supra.

It is contended that in the Maine and Illinois cases the circumstances were such that such a charge was made necessary, and the decisions are to be accounted for on that ground. We do not so construe these opinions. In both States the courts hold defendants were entitled to have the law in this regard stated to the jury. The peculiar circumstances are mentioned as emphasizing the proposition. Where such request to charge has been made, we find no authority warranting its refusal. The contention of respondent in this case is founded both upon reason and-authority. A respondent is protected in his right under the statute to elect not to testify. A jury, upon his request, should be informed of that right, to prevent the creation in their minds of any presumption of guilt by reason of his silence. The court was in error in refusing to give the request as presented.

The judgment is reversed, and a new trial ordered.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


text:
    GRAY v. ELDRED.
    1. Equity — Chancery Practice — Answer—Demurrer—Trial.
    When defendants in a chancery suit have answered and inserted in their answer the usual demurrer clause denying that plaintiff is entitled to any part of the relief demanded, ate., and replications have been filed, the case must go to a hearing on the issues joined, and to final decree; it being improper for the court to determine the legal questions so raised prior to the hearing on the proofs.
    s 2. Appeal and Error — Chancery Appeal — Interlocutory Decree.
    Where, in a chancery suit, the. legal questions, raised by the usual demurrer clause contained in the answer, to which replications were filed, are considered and passed upon by the trial court before a hearing on the proofs, followed by an appeal from the order entered, the order will be set aside and the case remanded for hearing upon proofs.
    Appeal from Isabella; Dodds, J.
    Submitted February 16, 1906.
    (Docket No. 188.)
    Decided April 30, 1906.
    Bill by Thomas Gray, supervisor, and John Dunn, highway commissioner, of Isabella township, against Sherman D. Eldred, county drain commissioner, and the Joliet Bridge & Iron Company to enjoin the closing of a contract for the purchase of certain bridges. From an order overruling certain legal objections to complainants’ right to maintain the bill raised by the answers and determined before proofs were taken, defendants appeal.
    Order set aside and case remanded for hearing upon proofs.
    The complainants, Gray, as supervisor, and Dunn, as highway commissioner, of the township of Isabella, on July 3, 1904, filed a bill of complaint for and in behalf of said township against the defendant Eldred alone, as county drain commissioner, to restrain said commissioner from proceeding to close a contract with the Joliet Bridge & Iron Company for the erection of nine bridges and two tubes, in the public highways of said township over which a ditch was laid out, and to direct said drain commissioner to relet said work at public sale. An answer was duly filed denying all the material allegations of the bill. Subsequently the bill was amended by making the Joliet Bridge & Iron Company a party defendant, and by an allegation in the bill that the complainants Gray and Dunn filed the amended bill in their own behalf as individuals, as they had property in said township liable to assessment for benefits, and also for and in behalf of said township. To the amended bill the defendants filed answers denying all its material allegations. The answers contained the usual demurrer clause, denying “that complainant is entitled to the relief or any part thereof, * * * and prays the same advantage of this answer as if it had pleaded or demurred to said bill of complaint.” The case being at issue, due notice was given of the hearing and of taking proofs in open court. Some proofs were taken on the day set for the hearing. Upon the statement of counsel for the defendants that he intended to raise questions of law going to complainants’ right to maintain the bill, it was agreed that these questions should be argued before taking further testimony. The principal legal questions raised were: (1) That the complainants as individuals could not maintain the suit; (2) that the township could not maintain the suit. The judge overruled these claims, and entered a decree overruling the supposed demurrer, from which the defendants have appealed.

      F. McNamara and F. H. Dodds, for complainants.

      I. A. Fancher, for defendant Eldred.

      James'H. Davitt, for defendant Joliet Bridge & Iron Go.
   Grant, J.

(after stating the facts). No such practice is known to the courts of this State. When defendants in a chancery suit have answered, and in their answer have inserted the usual demurrer clause, and replications have been filed, the case must go to a hearing upon the issues joined and a final decree rendered. It is neither proper nor good practice to permit parties to then take advantage of a demurrer and bring the case into this court by piecemeal. The result would be two trials, and possibly two appeals to this court to determine the issues, and great delay. We cannot sanction such a practice, even at the request of the parties litigant.

Without determining the questions raised, the order of the court will be set aside, and the case remanded for hearing upon proofs, should the parties desire to introduce any. No costs will be allowed.

McAlvay, Montgomery, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    GARRAN v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Injuries at Crossing — Contributory Negligence-Question for Jury.
    A pedestrian, before starting across a street on which trains were operated, looked and listened. He saw freight cars some distance away, but could not see that they were moving. He looked again when about half way to the track and saw the cars, but could not see that they were moving. There-were no lights on the cars. He listened and heard no signals until just as he got to the track when he was struck by cars backed down the street at a speed of about 18 miles an hour, without, ringing the bell, without signal lights, and without, any man on the cars to warn persons in the street. Held, that the pedestrian was not guilty of contributory negligence as a matter of law.

      2. Evidence — Opinions—Witnesses—Competency.
    Persons living near a railway track who can tell when trains-are going at a high rate of speed, and when they are going at a slow rate, and who have observed trains to see about ho,w fast they run, are competent to give an opinion on the subject of the rate of speed of a particular train.
    Error to Wayne; Brooke, J.
    Submitted February 16, 1906.
    (Docket No. 176.)
    Decided April 30, 1906.
    Case by Peter Garran against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    O. E. Butterfield (Henry Russel and Ashley Pondf of counsel), for appellant.

      Edward McNamara (David E. Heineman, of counsel), for appellee.
   Moore, J.

The plaintiff recovered a judgment for injuries received at a street crossing from a train belonging to defendant. A motion for a new trial was made, which motion was overruled. The case is brought here by writ of error.

It is the claim of defendant that the record shows from the testimony of plaintiff’s witnesses that he was guilty of contributory negligence and that a verdict should have been directed in favor of defendant. No witnesses were sworn on the part of defendant. Joseph Campau avenue runs north and south. At its foot is the dock where the ferryboats stop. Two blocks from the river Guión street, running east and west, crosses Joseph Campau avenue at right angles. There is an electric light near the intersection of these streets. The defendant company operates an industrial railroad on Guión street, the main design of which is stated in the ordinance to be to transport freight for the accommodation of the heavy traffic along the river front to and from the factories. No passenger trains are run, and it is provided that the trains and cars may be run at irregular hours. This portion of the city is thickly settled. An ordinance of the city limited the maximum speed of trains to six miles, and required the cars after sunset to have red signal lights in front except when moved by steam engines when it required the train to be provided with the usual signal lights.

It is the claim of plaintiff that at about half past & o’clock in the evening he started from the southwest corner of these two streets to cross the street diagonally to the northeast corner to go thence home. He had seen a locomotive and freight cars go west some time before this. He testified that before starting across the street he looked and listened; that he could see freight cars some distance away to the west, but could not see that they were moving; that he looked again when he got about half way to the track, and while he could still see the cars he could not see they were moving; that there were no lights on the cars he saw; that he listened and heard no signals until just as he got to the track when he was struck. It is his claim that the electric street light was burning dimly; that a locomotive attached to the cars •was backing them down this street from the west at a speed of 18 to 20 miles an hour without ringing the bell, without signal lights, and without any man on the cars thus approaching the intersecting street to warn persons lawfully in the street of the approaching train. This claim of his was supported by an abundance of testimony tending to establish its truth. Under this state of facts we think it cannot be said, as a matter of law, that plaintiff was guilty of contributory negligence. See Palmer v. Railroad Co., 56 Mich. 1; Ryan v. Railway Co., 123 Mich. 597; Smith v. Railroad Co., 136 Mich. 224; Coffee v. Railroad Co., 139 Mich. 378.

It is said the court erred in permitting the witnesses McGarry and Dorrington to give their opinions as to the rate of speed of the train. The record discloses that each of these witnesses had lived for two or three years in houses fronting upon this railway track not more than three or four rods from it. The following also appears in McGarry’s testimony:

“Q. How rapidly was that train going — the cars? Have you been accustomed to examine the speed of cars going down there ?

“A. Well, no. I can tell when they are going at a pretty good rate of speed, and I can tell when they are going slow.

“Q. You have seen them out there before this ?

“A. Yes.

“Q. State to the jury, in your opinion, how rapidly they went.

“Mr. Butterfield: I object to that as incompetent.

“The Court: For what reason ?

“Mr. Butterfield: For the reason that the witness has not shown himself competent to express an opinion as to the speed of. the train.

“The Court: The value of- the testimony is for the jury; anybody can express an opinion. You may have an exception.”

Mr. Dorrington testified:

“I have a great fashion every night of watching them trains go by.

‘ ‘ Q. Did you' notice .the train going when it went by ?

“A. Yes, sir.

“Q. Have you examined the trains down there to see about how fast they go — before that ?

‘A. Oh yes.

“Q. How rapidly would you say the train was going after it went on ?

“A. She was goiñg close to 17 or 18 miles an hour.”

The testimony also discloses that when plaintiff was struck one of the witnesses took a red light, which was a danger signal put in the street on account of paving which was being done, and swung it, when the engine was stopped but the freight cars ran on for 300 feet before they were stopped. In a question like this Justice Cooley used the following language:

“Any intelligent man, who had been accustomed to observe moving, objects, would be able to express an opinion of some value upon it the first time he ever saw a train in motion. The opinion might not be so accurate and reliable as that of one who had'been accustomed to observe, with timepiece in hand, the motion of .an object of such size and momentum, but this would only go to the weight of the testimony, and not to its admissibility. Any man possessing a knowledge of time and of distance would be competent to express an opinion upon the subject.” Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99.

See, also, Guggenheim v. Railway Co., 66 Mich. 150; Mertz v. Railway, 125 Mich. 11. We think the court did not err in his ruling.

Judgment is affirmed.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.