author: Carpenter, J.

text:
    TAYLOR v. TAYLOR’S ESTATE.
    1. Bills and Notes—Execution—Proof.
    On the hearing of a claim against an estate on notes alleged to have been executed by the decedent and lost, testimony of a witness that she had been told by the decedent that the claimant held notes against him, and that she had seen the notes of which he spoke, and testimony by another witness that he had seen decedent’s signature a number of times, and had seen the notes, and, in his judgment, the signature to the notes was that of decedent, was sufficient evidence of execution to go to the jury; and it was not error to refuse to direct a verdict for the estate.
    3. Same—Consideration—Presumptions.
    Where there was evidence that certain lost notes in suit were negotiable in form, it will be presumed that they were based on a consideration, though they did not. contain the recital “for value received.”
    3. Same—Burden of Proof.
    Proof of the execution of promissory notes makes out a prima facie case, and, where there is no evidence of want of consideration, the burden of proving consideration is not imposed upon the plaintiff.
    4. Same—Notes Payable at Death —Character as Bequest.
    Notes executed by a decedent and payable at his death are not 'in the nature of a bequest, and need not be executed with the formalities prescribed for wills,
    5. Same—Payment—Burden of Proof.
    The burden of proving payment of promissory notes rests on the party who claims to have made it, though that party is the estate of a decedent.
    6. Witnesses — Decedents’ Estates — Claimants — Pacts Equally Within Knowledge of Decedent.
    On the hearing of a claim against an estate on notes alleged to have been executed by the decedent, testimony by the claimant that she did not have the notes in her possession; that they were lost while owned by her and in her possession; that she had made search therefor, the particularity of which she stated—was not a violation of 3 Comp. Laws, § 10212, forbidding claimant from testifying to facts equally within the knowledge of the deceased.
    Y. Executors and Administrators — Claim Against Estate — Character of Claimant—Evidence.
    On the hearing of a claim against an estate by the decedent’s wife on notes alleged to have been executed by him, it was not error to exclude testimony that claimant had another husband living when she married decedent, and that she had been unchaste.
    -8. Examination of Witnesses—Further Development on Redirect.
    While claimant was testifying, counsel for the estate introduced a note other than those sued on, and proved by her that she had signed her husband’s name thereto as maker. Held, that on redirect examination her counsel might show why, and the circumstances under which, she so signed said note, to rebut the inference that she had also signed her husband’s name to the notes in suit.
    9. Same —Comparison of Handwritings — Documents not in Evidence.
    On the hearing of a claim against the estate of a decedent on notes alleged to have been executed by him, a witness who had testified to the genuineness of decedent’s signature to the notes was, on cross-examination, shown the signatures to certain documents not in evidence, purporting to be signed by decedent, and asked if such signatures were genuine Held, that he might decline to answer unless he was permitted to examine the documents.
    10. Evidence—Unidentified Documents — Signatures — Admissibility.
    The signatures to unidentified documents not in evidence are properly rejected when offered in evidence for the purpose of comparison.
    11. Depositions—Use on Appeal.
    A deposition, taken for use on a previous hearing before commissioners on claims, showing that the witness was over 80 years of age and unable to travel, is properly admitted on the trial in circuit court, under 3 Comp. Laws, § 10142, as it cannot be presumed that the cause for taking the deposition had been removed.

      12. Executors and Administrators — Claim Against Estate-Widow—Estoppel to Assert.
    A recital in a will by which testator disputes a claim of his wife against him does not preclude her enforcing her claim against his estate, though she accepts the provisions in the will for her support in lieu-of dower.
    13. Examination op Witnesses—Bias—Cross-Examination.
    On the hearing of a claim by a widow against the estate of her deceased husband, on notes alleged to have been executed to her by him, her stepson having testified oh direct examination for the estate that his relations to plaintiff were friendly, she was entitled on cross-examination to show his conduct toward her.
    14. Instructions—Credibility op Witnesses — Preponderance op Evidence.
    An instruction, which, construed with the remainder of the charge, told the jury that, after rejecting the testimony of witnesses discredited by them, their verdict should be for claimant, if there was more testimony—that is, a preponderance of testimony—tending to establish the validity of her claim, and, if there was not, their verdict should be for the estate, was correct.
    Error to Muskegon; Russell, J.
    Submitted November 17, 1904.
    (Docket No. 105.)
    Decided December 30, 1904.
    Elizabeth Taylor presented a claim against the estate of Amos R. Taylor, deceased, for the amount of certain promissory notes. The claim was disallowed by the commissioners. Claimant appealed to the circuit court, where she had judgment, and the estate brings error.
    Affirmed.
    Elizabeth Taylor presented a claim against the estate of Amos R. Taylor, her deceased husband, for the amount of certain promissory notes claimed to have been executed by him in her favor, payable at his death, and which she claimed to have lost. Decedent’s will, after leaving all his property to the children of his first wife subject to claimant’s support, contained the following recital:
    “ Having heard of some claim of my wife, Elizabeth, has against my estate, I wish to state the facts relating thereto for the purpose of preserving them. That the receipts she claims to have for money paid out and other claims were procured first by taking my mother, Mrs. Shannon, to take care of. We took her to our home and one Hamilton, whom she married after Shannon died, and there was about seven hundred dollars coming from the Shannon estate for the support of my mother. I furnished everything for her support, my wife doing the work with the other members of my family and she got this money and used it and took receipts for bills paid and claims it as her money and against me; and for the care of Hamilton for five years we were to receive ten dollars a month, and did, and this when paid was taken by her and bills paid and receipts taken by her as so much money paid out by her, making a claim of about fourteen hundred dollars. While I furnished everything for the care and support of these parties, and paid the funeral expenses of my mother, and all receipts were taken without my consent or knowledge, and as I believed, for the purpose of taking my estate from my children by my first wife after my death.”

      Walter I. Lillie {Stephen H. Clink, of counsel), for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, foxappellee.
   Carpenter, J.

The claimant, Elizabeth Taylor, recovered in the court below on three promissory notes which it was claimed were executed by decedent and held by her.

It is contended that the court erred in not charging the jury to render a verdict in favor of the estate because (a) there was no evidence tending to prove the execution of the notes; and (6) there was no evidence of consideration.

(a) We think there was abundant evidence of the execution of the notes. Such evidence is furnished by the following testimony of Sarah Bradley:

“Mr. Taylor told me that Lib [claimant] had notes against him. * * *

Q. What notes was he talking about at that time? A. Those three notes I seen the last time I saw them at Ferris Center.”

Proof of execution may also be inferred from the testimony of Hon. George A. Farr, a witness for plaintiff. He testified that he had seen decedent’s signature a number of times, and, in his judgment, the signature to those notes was his.

(b) We are bound, also, to say that there was evidence of consideration. It is true that the notes did not contain the recital “for value receivedbut there is evidence that they were negotiáble in form, and there is a presumption that such notes, though lacking the recital just mentioned, are based upon a consideration. See Carnwright v. Gray, 127 N. Y. 92; Dean v. Carruth, 108 Mass. 242.

As there was no evidence tending to prove want of consideration, the court did not err in refusing to charge that the jury must find not only that decedent signed the notes, but also that they must find “ by a fair preponderance of the evidence in this cause ” that they were based upon a valuable consideration. The proof of the execution of the notes made out a prima facie case, and it is only when there is evidence of want of consideration that there is imposed upon the plaintiff the burden of proving consideration by a preponderance of testimony. See Manistee Nat. Bank v. Seymour, 64 Mich. 73, 74; Farnsworth v. Fraser, 137 Mich. 296; Rood v. Jones, 1 Doug., at page 193; Young v. Shepard’s Estate, 124 Mich. 552.

The trial court refused to charge the jury, as requested by the estate, that these notes were in the nature of a bequest, and that the burden of proving nonpayment rested, upon claimant. The notes certainly were not in the nature of a bequest, and it is an elementary principle of law —a principle which we must hold as applicable though an estate is party to a suit-—that the burden of proving payment rests upon the party who claims to have made it. The court therefore properly permitted interest to be computed upon the assumption that payments had not been made.

Claimant was permitted to testify that she did not have the notes involved in suit; that they were lost while owned by her and in her possession; and she was also permitted to testify to the particularity of the search made to find them. It is contended that, in giving this testimony, claimant violated the statute (section 10212, 3 Comp. Laws) which forbade her testifying to facts equally within the knowledge of the deceased. In giving this testimony, claimant w'ent no further than it was necessary for her to go to establish the loss of the notes. This she was compelled to do in order to furnish an excuse for not producing them. Appellant’s contention that she thereby testified to the existence of notes executed by decedent will not bear anaylsis. From claimant’s testimony that she still owned, could not find, and had lost the notes involved in the suit, no inference that those notes were executed by her husband—indeed, no inference of any fact known to deceased—could be legitimately drawn. The testimony was properly admitted. See Choate v. Huff, 4 Tex. App. Civ. Cas. 480.

It was not error for the trial court to exclude testimony tending to prove that claimant had another husband living when she married decedent, and that she had been unchaste. See People v. Mills, 94 Mich. 630; Knickerbocker v. Worthing, ante, 224.

While claimant was on the witness stand, counsel for the estate introduced a note—not one of those for which she recovered judgment—and proved by her that she herself signed her husband’s name thereto as maker. Complaint is made because on redirect examination claimant’s counsel was permitted to show why, and the circumstances under which, she signed said note. We think this testimony was properly permitted. It was needed to rebut the inference—an inference suggested by counsel for the estate—that might otherwise be drawn that claimant had also signed her husband’s name to the notes in suit.

On the cross-examination of a witness who had given testimony tending to prove the genuineness of decedent’s signature to the notes in suit, counsel for the estate presented to him certain documents, not in evidence, purporting to be signed by deceased, and asked him if such signatures were genuine. The witness declined to answer unless he was permitted to examine the documents. Complaint is made because the trial court sustained his position. The decision of the trial court was correct. See North American Fire-Ins. Co. v. Throop, 22 Mich., at pages 160-162. The trial court very properly refused to permit counsel for the estate to introduce these signatures in evidence. As they had not been identified, they were clearly not admissible.

The court permitted claimant to use in testimony the deposition of Sarah Bradley, which had been taken for the hearing before the commissioners on claims. This deposition was taken under sections 10136-10143, 3 Comp. Laws.

Section 10142 reads:

“ Depositions under this act may be read and considered in evidence at the trial or on any hearing, and on appeals and retrials of the same cause of action, but the court shall have power to regulate the use, to prevent abuses thereof, and may order the retaking of testimony, or the production of the witness, if within the jurisdiction, notwithstanding that his deposition has been taken.”

The statute above quoted is sufficient authority for using the deposition on appeal. But it is claimed that there was no showing that the witness was then sick and unable to attend court. The record does not disclose that this objection was made in the trial court. Moreover, it appears from the deposition that the witness was over 80 years of age and unable to travel; and it cannot, therefore, be presumed, under the case of Emlaw v. Emlaw, 20 Mich. 11, relied upon by appellant, that the cause for taking the deposition had been removed.

Appellant contends that the court erred in not admitting in evidence the files of the probate court showing the will and the administration of the estate. It is contended that by this it would have appeared that claimant accepted the provisions of the will, and that those provisions are inconsistent with her right to maintain this suit. It is a sufficient answer to this contention to say that, in our judgment, those provisions did not affect claimant’s right to recover in this case.

Complaint is made because on the cross-examination of George Taylor, a witness for appellant, claimant’s counsel was permitted to show his conduct toward claimant, his stepmother. We think that the door for the admission of this testimony was opened by appellant when, on direct examination, this witness testified that his relations to his stepmother were friendly.

In concluding his charge to the jury, the trial court said:

“ It is for you to say * * * as to whether all of the witnesses that have been sworn here have told the truth. * * * If you find that they have not, of course you will reach a verdict from the evidence which under all the circumstances you think is true, when you have collected that evidence together—if there is more of it that satisfies you that the claim of the claimant is valid thdn there is on the other side, taking everything into consideration, you will find for the claimant; if there is not, you will find for the estate.”

Appellant contends that, as all the testimony relating to the execution of the note and its consideration was produced by claimant, this charge was misleading, and, in effect, told the jury to render a verdict for the claimant. This argument has no foundation, if the language is, as it should be, properly construed. Construing it in connection with the remainder of the charge, as it certainly should be, the jury were told that, after rejecting the testimony of witnesses discredited by them, their verdict , should be for claimant, if there was “ more ” testimony— that is, a preponderance of testimony—tending to establish the validity of her claim; if there was not, their verdict should be for the estate. As thus construed, the charge was correct, and is not open to the objection urged by appellant.

We have examined appellant’s other complaints, and, in our judgment, no other assignment of error demands discussion.

The judgment is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CARSON, PIRIE, SCOTT & CO. v. FINCHER.
    1. Bills and Notes—Checks—Presentment—Negligence—Defenses as Against Drawer.
    Delay in presentment of a check for payment, and failure to give notice of dishonor, is no defense to the drawer, where the latter had no funds in the bank to meet the check, and had no expectation that it would be paid.
    2. Same—Question eor Jury.
    Where, in an action by the holder against the drawer of a dishonored check, there was evidence that the drawer at the time he uttered the check had a balance in the bank less-than the amount of the check, and had notice that the bank was weak, and of the dishonor of other checks, but gave no intimation thereof to plaintiff, plaintiff was entitled to go to the jury on the question whether the drawer had funds, or an expectation that the check would be paid, when it was drawn, though plaintiff was guilty of negligence in presentment, etc.

      Error to Oceana; Russell, J.
    Submitted November 17, 1904.
    (Docket No. 106.)
    Decided December 30, 1904.
    Assumpsit by Carson, Pirie, Scott & Company against Francis W. Fincher and Charles Jensen, copartners as F. W. Fincher Company, to recover the amount of a protested check. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Hartivick & Skeels, for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellees.
   Hooker, J.

The first trial of this cause was reviewed by us, and the opinion filed therein will be found in 129 Mich. 687, where a general outline of the case is stated. Upon a second trial the court directed a verdict for the defendants, and the plaintiff has appealed.

The judgment must be reversed if there was any question that should have been submitted to the jury. Our former decision sustained defendants’ claim that a question of fact was raised as to whether defendants had funds in the bank, when the check was received by the bank, sufficient to pay this and all outstanding checks, and that defendants had a right to have that question submitted to the jury. It was also said in the opinion that if there were sufficient funds to defendants’ credit at that time, and the bank had funds, and the check would have been paid had it been duly and properly presented over the counter, the defendants would have been discharged through the method of presentment; i. e., sending the check to the drawee by mail, with request to remit—in other words, making the drawee plaintiff’s agent for' collection.

In this case the evidence shows that the plaintiff did not use diligence in presenting the check, inasmuch as it sent the same to the drawee, who did not pay it. It would follow that, in case of a loss by reason of the failure of the bank, such loss would fall upon the plaintiff, rather than the defendants, if they can be called innocent defendants. Authorities are numerous that delay in presentment and failure to give notice of dishonor cannot be successfully interposed as a defense in an action against the drawer, when it can be said that the drawer had no funds in bank, and had no expectation that the check could be paid.

It is contended in this cause that the defendants had issued checks to the full amount of their credits, and had not sufficient funds in bank to pay the check, and also for the reason that they had notice of the condition of the bank. Counsel claim that whereas it did not conclusively appear in that case that the bank had in its possession checks drawn by defendants and drafts sufficient to exhaust their balance, before they drew the check in question, on this trial there was such evidence, and again it is said that at the previous trial it did not appear that defendants had notice of the dishonoring of their checks before drawing the one in question, while upon the last trial that was shown by the introduction of a letter written to and received by defendants shortly before drawing the check in question, notifying them that their check had not been paid, and saying that, if their checks could not be paid more promptly, the writer could not accept them.

If the rule be as claimed, that want of notice is not a defense when the defendants knowingly overdrew and had no expectation of payment, as counsel apparently concede the rule to be, we think that plaintiff had a right to go to the jury upon that question. It is claimed that with a balance of less than the amount of the check in the bank, and with notice that the bank was weak, of which there was some evidence, and actual notice of the dishonor of its checks, defendants overdrew their account without intimation to the plaintiff of the dangers of the situation. It does not necessarily follow that the check was drawn without an expectation of payment, but the evidence tending to show these things, and that in denial and explanation and an agreement to honor overdrafts, raise a question of fact.

We must therefore reverse the judgment. It is so ordered.

Moore, C. J., and Carpenter and Grant, JJ., con-¿ curred. Montgomery, J., did not sit.


author: Montgomery, J.

text:
    AUDITOR GENERAL v. CARPENTER.
    1. Taxation—Tax Sales —Objections —State Tax Homestead Lands.
    A landowner, contesting tax sale proceedings as the owner of the government title, cannot claim that, under sales of prior years, the land has become State tax homestead land, and that, therefore, the taxes in question should have been canceled.
    3. Same—Lien—Bar.
    Where the auditor general in 1893 included certain lands in his petition to foreclose the lien for the taxes of 1889, and, on tardy objections being filed by the owner, the petition was dismissed as to those lands without prejudice, the State’s lien under section 36 of the act of 1885 (Act No. 153) was not thereby barred.
    3. Same—Failure to Inolude Prior Taxes.
    Failure of the auditor general to include certain lands in his petition for the foreclosure of tax liens thereon the succeeding year after a petition to foreclose had been dismissed without prejudice did not bar the lien.
    4. Same—Lien—Procedure to Enforce—Lack.
    That there was a time during the existence of a tax lien that no procedure was provided for its enforcement did not extinguish. the lien.
    Appeal from Osceola; McAlvay, J.
    Submitted November 17, 1904.
    (Docket No. 203.)
    Decided December 30, 1904.
    Petition by Perry F. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by Eugene Carpenter. Prom a decree for petitioner, contestant appeals.
    Affirmed.

      Charles A. Blair, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for petitioner.

      Eugene Carpenter, in pro. per.
   Montgomery, J.

Under date of January 13, 1904, Perry P. Powers, auditor general of the State of Michigan, filed a petition in the circuit court for the county of Osceola, in chancery, pursuant to section 61 of the general tax law (being Act No. 206, Pub. Acts 1893, as amended by Act No. 225, Pub. Acts 1897), praying for a decree for the sale of the northwest quarter of the southeast quarter of section 14, town 18 north, range 10 west, for the taxes assessed thereon for the year 1889, which, including interest, collection fee, and charges, as shown by the tax record, amounted to $12.81, and also for the. taxes of 1901, the total amount of which, including interest, collection fee, and charges, amounted to $7.02. Upon the filing of said petition an order was duly made fixing the time ■ for hearing of said petition, which order was published as required by the general tax law. Prior to the hearing on said petition, Eugene Carpenter, claiming to be the owner of the original or government title to said land, appeared in said proceeding and filed certain objections to the granting of a decree for the sale of said land for the taxes so assessed, together with interest, collection fees, and charges. Upon the hearing in said court the various objections made were overruled, and a decree entered directing that this land be sold for the taxes of said years, together with the interest, collection fee, and charges, as hereinbefore indicated, at the next annual tax sale thereafter, to be held commencing on the 3d day of May, 1904. From this decree the contestant appealed to this court.

The contestant has furnished us with briefs to the extent of 120 pages, and it is fair to assume that all has been said in opposition to these taxes that the case warrants. We think the case may be decided with more regard for brevity.

As to the taxes of 1901, the contestant, while appearing to contest on the ground that he is the owner of the original government title, made the claim that the land had been sold by the State for taxes for prior years, and was held by the State as State tax lands; that it should have been deeded to the State by the auditor general, and placed in the class of homestead lands; and that, if this had been done, the taxes for subsequent years, including 1901, would have been canceled. It does not appear by evidence in the record that the land was held as State tax land. If it were, it can scarcely be regarded as the function of a delinquent whilom owner to direct the administrative arm of government in the management of its property.

As to the taxes of 1889: These were assessed under the tax law of 1885 (Act No. 153, Pub. Acts 1885). Section 26 of that act provides:

“The amounts assessed on any real property shall, on the first day of December, become a lien on such real property, and the lien for such amounts, and for all interest and charges thereon, shall continue until payment thereof.”

In 1892 the auditor general included these lands in his petition, and sought to foreclose for the taxes of 1889. The present contestant filed tardy objections to the taxes, and, as the time was not sufficient for their consideration, the petition was dismissed without prejudice. The State’s lien continued in force, under the above-quoted section 36 of the act of 1885. By an oversight these lands were not included in. the petition of 1893. The lien, of course, continued to exist, however.

In 1893 the present tax law was passed, but at first contained no provision for foreclosure for liens prior to 1891. This omission was supplied by an amendment in 1899 by adding the present sections, 138 and 139 (Act No. 169, Pub. Acts 1899). The fact that there was a time during which machinery was not provided for enforcing the tax does not establish that the lien was extinguished. Croskery v. Busch, 116 Mich. 288. It will be seen that the lien of these taxes has never been discharged.

The only attempt to show any error in assessment was the introduction of some testimony tending to show that certain mortgages appearing to be in force were not assessed. But the testimony was too vague to impeach the official conduct of the assessors. It was not shown that the residence of the mortgagees would have rendered the mortgages subject to assessment in the county.

Thfe constitutionality of the provisions of this tax law has been often affirmed, and we decline to reconsider the questions settled by our decisions.

The decree is affirmed.

The other Justices concurred.


author: JContgomery, J.

text:
    CLARK v. WOLVERINE PORTLAND CEMENT CO.
    1. Master and Servant—Injuries to Servant—Safe Plage to Work—Assumption of Risk.
    Where an employé is sent into a place provided by the master, ■where discovery of a defect is difficult, he has a right to assume, in the absence of any circumstances creating a doubt in his mind, that his safety has been reasonably provided for.
    2. Same—Negligence—Evidence—Question for Jury.
    In an action against a master for the death of a servant, alleged to have been caused by a loose plank in a walk alongside a coal conveyor which deceased was required to oil, evidence examined, and held to justify submission to the jury of the issue of defendant’s negligence.
    Error to Branch; Yaple, J.
    Submitted November 18, 1904.
    (Docket No. 111.)
    Decided December 30, 1904.
    Case by Charles Clark, administrator of the estate of Thomas Russel, deceased, against the Wolverine Portland Cement Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      H. H. Barlow and B. E. Barlow, for appellant.

      Lockerby & Cowell, for appellee.
   JContgomery, J.

The plaintiff recovered for an injury to his intestate causing death. The deceased, Thomas Russel, for whose estate this action is brought, was at the time of his death 27 years of age. He had been employed at the Quincy plant of the Wolverine Portland Cement Company for some three months prior to his death. For some two weeks prior to his death he was employed as oiler of the coal conveyors at the Quincy plant aforesaid. His duty, among other things, required him to oil the conveyors two or three times in 12 hours. The conveyors consisted of a bottom and two sides (wood), in which framework there revolved an endless screw, by which means the coal was conveyed from the north to the south end of the conveyor. About every 12 feet along the conveyor there was an oil hole. The conveyor was situated some 20 feet above the floor of the factory, and ran from north to south. On the west side of the conveyor, and even with the bottom thereof, there was a plank walk 20 inches wide running parallel therewith. On the west side of said walk there was a partition extending nearly to the roof of the factory. The conveyor was divided into two sections, each section .being about 150 feet in length. The north section was higher than the south section. Some 3 or 4 feet from where the two sections of the conveyor join, a steam pipe 5 inches in diameter passed through the partition and over the walk parallel with the south conveyor. Across this pipe was placed a plank. The level of this plank was lower than -the walk along the north section of the conveyor, and higher than the walk along the south section. The plank was unfastened. At a point opposite this plank the conveyor required oiling from four to six times in 12 hours. The defendant company supplied its employes whose duty it was to oil the conveyor with torches.

On the morning of the 27th of December, 1902, the decedent came to the Quincy plant aforesaid, to enter on his regular employment. On arriving at the plant, he was told by Frank Boone that the screw conveyor at the point where the two conveyors joined needed oiling, and that he had better attend to it at once. The decedent started to oil the conveyor. Some 10 or 15 minutes later he was heard to call out, and Andrew Boyer, on going to the conveyor, found Mr. Russel caught in the conveyor at a point opposite this loose plank. Shortly after Mr. Russel was found in the conveyor he stated to Mr. Boyer that he fell into the conveyor by reason of the tipping of the plank. Some 30 minutes after he was found by the said Andrew Boyer the decedent died as a result of his injuries there received.

The circuit judge took from the jury the question as to whether the open conveyor and the failure to light with other means than torches was open and apparent, and charged that these hazards were assumed by the decedent, Russel, but left to the jury the question as to whether the risk resulting from this loose plank was open and apparent and assumed by said Russel.

The only question argued in this court is whether the circuit judge should have directed a verdict for the defendant on the ground that the plaintiff assumed the risk of this loose plank. We think the question was for the jury, under proper instruction, and, as the instructions given are not complained of, no error is made to appear.

Recognizing fully the rule for which defendant contends that an employe assumes the obvious risk of his employment, and that the servant owes the duty of care to avoid injury and ascertain the conditions surrounding his work, we also understand that where an employé is, as in this case, sent into a place provided by the master, where discovery of such a defect as that here involved must be known to be difficult, he has a right to assume, in the absence of any circumstances creating a doubt in his mind, that his safety has been reasonably provided for. It is said that decedent could have discovered that this plank was loose by pushing it with his foot. But why push it with his foot? The plank appeared to have been placed there as a part of the walk. The testimony shows that at times in walking over the plank it would rock, but that at times it appeared solid. Until decedent knew or had reason to believe that defendant had been so reckless of the lives of its employés as to leave this plank unfastened, he was not bound to assume that it had been so negligent. And whether, in his work there, he had discovered the fact, was a question for the jury.

Judgment affirmed.

The other Justices concurred.


text:
    MICHIGAN SANITARIUM & BENEVOLENT ASS’N v. CITY OF BATTLE CREEK.
    1. Taxation—Recovery of Taxes Paid—Pleading.
    Illegal taxes paid under protest may be recovered as money had and received under the common counts.
    2. Same—Payment by Check.
    The fact that one paying his taxes under protest as illegal did so by giving a check for the amount, which was subsequently cashed, does not prevent his recovery of the taxes.
    3. Same—Postponement of Collections.
    The fact that a taxpayer obtained a postponement of the time for the payment of his city taxes, until the warrant for the State, county, and school taxes was received, in order that they might all be paid together under protest, does not prevent his recovery of the same, the payment having been made under protest, and the agreement under whioh the postponement was obtained contemplating a payment under protest.
    4. Same—Exempt Property—Sanitarium—Use of Funds.
    On the question whether a sanitarium association, incorporated under chapter 224, 3 Comp. Laws, used all its funds exclusively “for the purposes thereof, as set forth in its articles,” as provided by section 6, so as to render its property exempt from taxation, as provided by section 7, it sufficiently proved that it had not paid dividends, where it proved that none of its funds had gone to its members, except as it had paid wages or salaries.

      5. Same—Use oe Funds Within State.
    Purchasing supplies outside of the State is not a violation of section 6 of the sanitarium act, requiring an association, incorporated under that act, and exempting its property from taxation under section 7, to use its funds wholly within the State. Chap. 224, 3 Comp. Laws.
    •'6. Same—Burden of Proof—Instruction—B[armless Error.
    On the question of whether the funds of plaintiff, a sanitarium association organized under chapter 224, 3 Comp. Laws, were used wholly within the State, as required hy section 6, the •error, if any, in charging the jury that the “burden of proving that the funds were used without the State rested on defendant,” was harmless, where all the testimony on the subject showed that the funds were properly used.
    7. Appeal and Error—Questions Considered—Objections Not Raised Below—Briefs.
    An objection not raised in the trial court, nor in appellant’s original brief, but only in a supplemental brief, will not be considered in this court.
    8. Taxation—Exempt Property—Charities—Sanitariums.
    A sanitarium association, incorporated under chapter 224, 3 Comp. Laws, is sufficiently charitable in its character to entitle its property to exemption from taxation, under section 7 of that act, where the charges collected for services are not more than are required for its successful maintenance.
    .9. Same—Funds and Property Exempt.
    Section 8294, 3 Comp. Laws, exempting from taxation the property of charitable hospitals or asylums established with trust funds, exempts from taxation not the original trust fund, but “the property on which such asylum or institution building stands * * * while occupied for the objects and purposes thereof,” whether it is or is not a part of the original trust fund.
    10. Same—Including Nonexempt Property.
    The owner .of exempt property erroneously assessed for taxes does not lose the entire benefit of the exemption because some nonexempt property is included in the assessment.
    11. Same—Use of Exempt Property.
    A sanitarium association, incorporated under chapter 224, 3 Comp. Laws, is not required to use all of its funds “for the care and relief of indigent or other sick and infirm persons within this State,” to exempt its property from taxation, under section 7 (3 Comp. Laws, § 8294), since such requirement would prevent the association from using its funds for the* proper maintenance of the institution.
    12. Same—Estoppel to Claim Exemption.
    A corporation whose property is exempt from taxation because of the character and purposes of the concern is not estopped from claiming the exemption by acts or declarations of the officers of another corporation to whose property the new corporation succeeded.
    Error to Calhoun; Winsor, J.
    Submitted October 18, 1904.
    (Docket No. 49.)
    Decided December 30, 1904.
    Assumpsit by the Michigan Sanitarium & Benevolent Association against the city of Battle Creek for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      0. S. Clark and D. C. Salisbury, for appellant.

      Charles A. Blair, Attorney General {Charles W. McGill, of counsel), amicus curiae.

      Steven S. Hulbert (A. J. Mills and Jesse Arthur, of counsel), for appellee.
   Carpenter, J.

Plaintiff brings this suit to recover from defendant city taxes for the year 1899 on its real estate, which it claims was exempt from taxation, and which it paid under protest. Plaintiff recovered a verdict and . judgment in the court below, and defendant asks a reversal of that judgment on many grounds.

The declaration consists of the common counts and two special counts. Many of defendant’s complaints are based upon the proposition that plaintiff’s cause of action is not properly described in the special counts. We are spared the trouble of considering these complaints, because plaintiff had a right to recover for money had and received under the common counts. See 2 Cooley on Taxation (3d Ed.), p. 1508; City of Grand Rapids v. Blakely, 40 Mich. 367; County of Garland v. Gaines, 47 Ark. 558.

It is urged that plaintiff cannot maintain this suit, because it paid its taxes, not in money, but by a check, which was subsequently cashed by defendant. This case is very different from Turnbull v. Township of Alpena, 74 Mich. 627, relied upon by defendant. There it was held that a note payable in the future could not be regarded as payment. The distinction between such a note and a check payable and paid at once is obvious.

Defendant’s treasurer, who made the collection, testified that the city taxes were not paid when due; that the payment was extended because plaintiff ‘ ‘asked me not to enforce collection of them until I got my warrant for the State, county, and school taxes, as they intended to pay them both at the same time.” Upon this testimony defendant asked the court to charge:

“If * * * payment was postponed at the request of plaintiff * * * on the promise of the plaintiff that it would pay such taxes later, though under protest, then I instruct you the payment was voluntary, and the plaintiff cannot recover.”

In support of its contention that error was committed by the trial court in refusing this request, defendant relies on Gachet v. McCall, 50 Ala. 307. In Gachet v. McCall it was held that if a taxpayer obtain an extension of time to pay his taxes under a promise to pay the same, a protest made at the time of payment will be ineffectual. The ground upon which this opinion rests is that the taxpayer was bound to pay in accordance with his agreement. If that principle is applied in the case at bar, it would not prevent recovery, because here the facts indicate, as shown by the request under consideration, that the agreement under which the postponement was obtained contemplated a payment of the taxes under protest.

Plaintiff became incorporated in July, 1898, under chapter 224 of the Compiled Laws of 1897. Section 1 of that chapter (section 8288, 3 Comp. Laws) provides that ‘ ‘ in all cases where lands, or any other property, amounting in value to five thousand dollars or upwards, have been or shall hereafter be given, granted, devised, or bequeathed to one or more trustees for the purpose of founding or ■ endowing a hospital or other charitable asylum within this State, for the care or relief of indigent or other sick or infirm persons, * * * then the trustees in whom said lands and other property are for the time being vested, may become incorporated. * * * ” Section 2 (section 8289, 3 Comp. Laws) specifies what the articles of incorporation shall contain, and requires, among other things, that “the objects of said corporation shall be stated with all convenient fullness and certainty.”

Section 6 (section 8293, 3 Comp. Laws) provides:

“All the funds of said corporation shall be faithfully and exclusively used for the purposes thereof, as set forth in its articles, and the same shall be wholly used within this State. Said corporation may invest its funds by loan, on mortgage security, or by purchase of any city, county, State, or United States bonds, or by loan on pledge of the same: Provided, that no loan of such funds shall be made to any trustee, officer, or servant of such corporation.”

Section 7 (section 8294, 3 Comp. Laws) provides:

“The property on which said asylum or institution building' stands, together with said building, shall, while occupied for the objects and purposes thereof, be exempt from taxation.” '

The object of plaintiff’s corporation, as set forth in its articles, is as follows:

“ To found a hospital or charitable asylum within the State of Michigan for the care and relief of indigent or other sick or infirm persons, at which institution may be received also patients and patrons who are able to and do pay for the benefits there received, and which institution shall devote the funds and property acquired and received by it from time to time from all sources, exclusively to maintaining itself, improving. its conditions and facilities, extending its benefits and usefulness and facilitating and promoting its purposes, by such sanitary, dietetic, hygienic and philanthropic reforms and efforts as are germane or auxiliary thereto; all of its said purposes being undenominational, unsectarian, philanthropic, humanitarian, charitable, and benevolent, and in no manner, directly or indirectly, for private profit or dividend paying to any one.”

The property upon which the taxes in question were paid was the property and sanitarium or hospital building situated thereon of plaintiff. And it claims that the same was exempt from taxation under section 8294, above set forth. This property was transferred to plaintiff after its incorporation. It had formerly been the property of another corporation called the “ Health Reform Institute,” and was called the “ Battle Creek Sanitarium.” Plaintiff took possession of this property July 6, 1898, and thereafter operated the same as a hospital or sanitarium.

Plaintiff’s testimony shows that at this sanitarium it received and treated sick and infirm persons; that its total receipts from this sanitarium from July 6, 1898, to January 1, 1900, was $764,976.09; that its total disbursements during this same period were more than $20,000 in excess of its receipts; that during this time many patients had been treated free, and that many had paid less than the full price; that if these patients had paid full price, plaintiff’s receipts would have been greater by the amount of $35,490.96; that none of plaintiff’s funds had ever gone to any member of the association, except as it went to pay wages or salary; and that none of those funds had been used outside of the State except as they were used for the purpose of purchasing supplies.

Defendant contends that this evidence did not warrant a verdict in plaintiff’s favor, because: (a) It does not appear that plaintiff did not pay dividends upon its stock; (5) it does not' appear that plaintiff’s funds are wholly used within the State, as required by section 8293, 3 Comp. Laws; and (c) that plaintiff is not using said alleged exempt property for the business and purposes specified in the act under which it is incorporated.

(a) Plaintiff sufficiently proved that it had not paid dividends when it proved that none of its funds had gone to its members except as it paid wages or salary.

(5) We sufficiently answer defendant’s contention respecting the use of plaintiff’s funds by saying that the only evidence contained in the record which touches this question shows that those funds were not used outside the State except for the purpose of purchasing supplies. Unless we hold that such a purchase of supplies is a use of the funds without the State prohibited by the statute (section 8293, 3 Comp. Laws)—and clearly we cannot so hold —we are bound to say that plaintiff proved that its funds were used within the State within the meaning of the statute. From this evidence no inference that the statute was violated could be drawn.

In this connection we consider the complaint of defendant that the court erred in charging the jury, in effect, that the burden of proving that the funds were used without the State, in violation of the statute, rested upon defendant and not upon plaintiff. Even if this charge was erroneous, as defendant contends—which we by no means affirm—we are bound to say that as all the testimony introduced upon the subject shows that the funds were properly used, the error, if error it was, was not prejudicial.

(c) The contention of defendant that plaintiff did not occupy this property for the business and purposes specified in the act under which it is incorporated is based upon the claim that the business there carried on by plaintiff was not the charitable business which the statute contemplated. Plaintiff used the property for a hospital in which, it treated sick and infirm persons. Some of these persons were treated free, some at reduced rate, but apparently most of them paid a regular schedule of prices fixed by plaintiff’s management. The total receipts were less than the total disbursements. How much of those total disbursements were used for improvements we are not informed. But as this was a matter defendant could have made clear had it chosen, we have no right to assume that any of these disbursements were illegitimate. At least, it may be inferred that the charges collected from patients, were not larger than were necessary to the successful maintenance of the institution. Nor is there any testimony from which it may be inferred that there was any unjust discrimination in making those charges. The point is made in appellant’s supplemental brief that there is no definite showing of the necessities of the beneficiaries; that is, that those who received treatment free, or at reduced prices, were needy and deserving. The proposition upon which this objection is based is that plaintiff did not have full discretion to select these beneficiaries. If this proposition is sound—which we do not affirm—it is sufficient to say that we will not consider it, because it was not made in the trial court nor in appellant’s original brief. It is obvious from this testimony that we cannot say that a verdict should have been directed in defendant’s favor without holding that a hospital organized under the law in question cannot collect from patients treated by it sufficient funds for its proper maintenance. If we so hold, we declare that persons who dedicate a hospital to the public must pay taxes on that hospital unless they maintain the same from their private means. The act contains nothing to warrant such a holding. It expressly exempts from taxation “the property on which said asylum or said institution building stands * * * while occupied for the objects and purposes thereofthat is, while occupied “for the care or relief of indigent or other sick or infirm persons.” Such a corporation is sufficiently charitable to entitle it to the privileges of the act when the charges collected for services are not more than are needed for its successful maintenance. See Philadelphia v. Pennsylvania Hospital for the Insane, 154 Pa. St. 9; Episcopal Academy v. Philadelphia, 150 Pa. St. 565; Cawse v. Nottingham Lunatic Hospital, L. R. 26 Q. B. Div. 585; St. Joseph’s Hospital Ass’n v. Ashland County, 96 Wis. 636; County of Hennepin v. Brotherhood of Gethsemane, 27 Minn. 460; Linton v. Lucy Cobb Institute, 117 Ga. 678; Emerson v. Trustees of Milton Academy, 185 Mass. 414; and Yale University v. Town of New Haven, 71 Conn. 316. It follows from what we have said that in our judgment the court did not err in refusing to permit defendant to show the number of operations in plaintiff’s sanitarium that were paid for; nor in refusing to permit defendant to inquire from plaintiff from what source it obtained the excess of its disbursements over receipts.

Complaint is made that defendant’s right of cross-examining plaintiff’s accountant was unduly restricted by the trial court. This accountant, who was familiar with the plaintiff’s books of account, and to a large extent knew the facts respecting the entries therein made, produced plaintiff’s books of account. These books were offered in evidence, and an opportunity given to defendant’s counsel to examine them. No complaint is made that this opportunity was not sufficient. Instead of reading the items in said books of account into the record, said accountant testified generally as to what they showed. We must assume that defendant acquiesced in this course, for we do not discover that it made any objection, except in one instance, and in that instance the witness testified to the fact from his own knowledge. It is claimed that on the cross-examination of this witness defendant was improperly prevented from showing that the sanitarium was really conducted as a profit-making institution; that it obtained funds from conducting a business forbidden by the statute, and that it used its funds for endowing other institutions of a like character outside the State. We are bound to say that not one of these complaints is well grounded. It is true that the trial court refused to permit defendant to ascertain by the cross-examination of said accountant the number of free operations performed at the institution, and the source of the - excess of disbursements over receipts, but the testimony sought to be elicited by these questions clearly would not—and it was not claimed on the trial that it would—prove or tend to prove that plaintiff was carrying on a profit-making business in violation of the statute. It is also true that defendant was not permitted to prove that plaintiff had a branch institution outside the State, but it was permitted to inquire whether any funds were used for such an institution—and this was as far as a material inquiry would go—and to this question the witness answered that they were not. A diligent search of the record does not disclose that in any other particulars . defendant’s cross-examination of this witness was restricted.

In the brief filed in this case by the attorney general it ¿ is said that “it is not the purpose of the act to exempt from taxation the property of the corporation, although organized in the first instance for the purpose of administering such trust, where the administration of such trust is merely incidental to the business carried on, and the business actually carried on actually exceeds that necessary to the administration of the trust by thousands of dollars.” By this we understand it to be asserted that because the plaintiff corporation was, as it should be under this act, organized by trustees, who in this case had a fund of only S?,000, the hospital of large value, subsequently acquired by the corporation, is not exempt. We cannot assent to this contention. Section 8294, the section upon which plaintiff’s right to exemption depends, exempts from taxation, not the original trust fund, but “the property on which said asylum or said institution building stands * * * while occupied for the objects and purposes thereof.” If said property is used for the business and purposes contemplated by the statute, a subject which we have already discussed, it is exempt, whether it was or was not a part of the original trust fund.

Included in the description of the exempt property was some property of inconsiderable value not exempt. The trial court charged that it was the duty of defendant to separately assess this property, and having failed to do so, it did not affect plaintiff’s right to recover. Defendant contends that this was error. To adjudge this error we must hold that plaintiff lost the benefit of the entire exemption because a small portion of the property was not exempt. We decided otherwise in Grand Rapids, etc., R. Co. v. City of Grand Rapids, 137 Mich. 587.

Defendant complains because the court did not charge “if the jury find that the plaintiff is using its funds or any part of the same for any other purposes than the care and relief of indigent or other sick and infirm persons within this State, then plaintiff cannot recover in this case.” This request lays down a rule which is not required by the statute, and would, if applied in this case, prevent plaintiff using its funds for the proper maintenance of its institution. It was therefore properly refused.

Defendant also requested the court to charge “ the only direct uses to which the plaintiff can put its property on which its buildings stand, and the only direct objects for which the same can be occupied, to exempt it from taxation, are the care and relief of indigent or other sick or infirm persons.” Assuming that this request correctly states the law, defendant was not prejudiced by the refusal to give it, because all the testimony indicates that the property was used for the care and relief of sick and infirm persons.

Defendant claims that the court improperly refused to permit the introduction of testimony which would have proved that plaintiff was estopped from claiming this exemption. A portion of this testimony consisted in the acts and conduct of the officers of the Health Reform Institute, the corporation which owned the same property before the organization of plaintiff. This corporation, it seems, was not exempt, because, presumably, it was not organized under chapter 224 of the Compiled Laws of 1897. It is too clear for argument that the declarations, acts, and conduct of the officials of the old corporation could not estop the new.

It is urged that the court erred in not permitting defendant to prove that it built a fire station near plaintiff’s property late in 1898, because one of plaintiff’s officers in the latter part of the summer of 1898 made the statement that plaintiff was the third largest taxpayer in the city of Bat-tie Creek. It is not claimed that this statement is in any respect untrue. (Indeed, presumably because plaintiff did not acquire the ownership of the property until July, 1898, it paid its taxes for that year.) But it is claimed that because of this statement defendant had a right to believe, and did believe, that plaintiff would continue to pay its taxes; that is, that it would waive its statutory exemption. It is a sufficient answer to this contention to say that from the statement made to it, which we must assume to be true, defendant could not infer that plaintiff would continue in the future to be a large taxpayer. Neither is it shown that the officer who made said statement had authority to speak for the plaintiff corporation.

Defendant complains of no other error which in our judgment demands discussion, and as plaintiff has waived its request that the court review the decision of the trial court which denied its right to be exempt from taxation on its personal property, the judgment of the court below will be affirmed, without costs.

Moore, C. J., and Montgomery and Hooker, JJ., concurred. Grant, J., took no part in the decision.


text:
    TEAGAN TRANSPORTATION CO. v. BOARD OF ASSESSORS OF CITY OF DETROIT. DULUTH & ATLANTIC TRANSPORTATION CO. v. SAME. WOLVERINE STEAMSHIP CO. v. SAME.
    1. Taxation — Situs of Property — Navigation Companies.
    Under section 3834,1 Comp. Laws, where the only business a corporation transacts at the place named as its office in its articles of incorporation is the annual meeting of stockholders, its residence for the purpose of taxation is the place where its principal business is conducted, such as receiving and disbursing its funds.
    2. Same — Uniformity—Constitutional Provisions.
    The proviso of section 3834, 1 Comp. Laws, that “the personal property of all corporations of the State for the purpose of maritime commerce and navigation shall be assessed only in the city, village, or township which is stated in their articles of association to be the location of their general office for business,” attempts to confer on such corporations the special privilege of fixing the situs of their property for the purpose of taxation, in violation of section 11, of article 14, of the State Constitution, requiring a uniform rule of taxation.
    Certiorari to Wayne; Mandell, Frazer, Brooke, Donovan, Rohnert, and Hosmer, JJ.
    Submitted October 4, 1904.
    (Calendar Nos. 20,618, 20,614, and 20,615.)
    Decided January 30, 1905.
    Separate applications for mandamus by the Teagan Transportation Company, the Duluth & Atlantic Transportation Company, and the Wolverine Steamship Company to compel the board of assessors of the city of Detroit to strike certain assessments from the tax rolls. To review orders denying the writs, relators bring certiorari.
    Affirmed.

      Graves & Hatch, for relator Teagan Transportation Co.

      Angelí, Boynton, McMillan & Bodman, for other relators.

      Timothy E. Tarsney, for respondent.
   Carpenter, J.

Writs of certiorari bring before us for review three mandamus proceedings determined in the circuit court for the county of Wayne. Each of the above-named relators is a corporation engaged in transporting goods by water, and each asks for a mandamus (which the lower court refused to grant) compelling respondent to strike from the assessment rolls an assessment on account of certain steamboats owned by it. Said steamboats during the season are engaged in navigating the Great Lakes, and are seldom in the city of Detroit. In the articles of incorporation of the first two relators the township of Hamtramck, Wayne county, is named as the location of their general offices for business. In the articles of incorporation of the last-named relator, viz., the Wolverine Steamship Company, the village of Utica, Macomb county, is named as the location of its general office for business. At the place named as the location of their offices relators never had any regular business office. All they did there was to use the office or house of another for their annual stockholders’ meeting, and in case of the Teagan Transportation Company also for the first meeting of the directors elected at said stockholders’ meeting. Substantially all the other business of said Teagan Transportation Company which was not done on its boats was done in the city of Detroit. The management of the ordinary business of the last two named relators was carried on by their agent at Cleveland. Their funds, however, except those required “to pay the ordinary running expenses df the boats and the officers and crew,” were received and disbursed by their treasurer at Detroit; and it may be inferred that this official at Detroit decided any business matters “outside the ordinary course” not necessary — that is, as we infer, which he may decide to be not necessary — to submit to the board of directors.

The question of whether relators’ property is taxable in the city of Detroit depends upon the constitutional validity and construction of section 3834, 1 Comp. Laws. That section reads:

“All corporate property, except where some other provision is made by law, shall be assessed to the corporation as to a natural person, in the name of the corporation. The place where its office is located in its articles of incorporation shall be deemed its residence: Provided, Its business is actually transacted at such office; but if it shall establish its principal office in any other place than the place named in its articles of incorporation, then the place where it transacts its principal business shall be deemed its residence for all the purposes of this act. If there be no principal office in this State, then at the place in this State where such corporation or agent transacts business: Provided, further, That all the personal property of all corporations heretofore or hereafter organized under the laws of this State for the purpose of engaging in maritime commerce or navigation shall be assessed only in the city, village, or township, which is stated in their original articles of association or in any amendment thereof heretofore or hereafter made to be the location of their general office for business.”

This section was section 11 of the general tax law passed in 1893. See Act No. 206, Pub. Acts 1893. As originally enacted, the section contained no special provision for the taxation of property of corporations engaged in navigation. The proviso relating to the taxation of such property (the last proviso above quoted) was put in the section by amendment in 1895. See Act No. 229 of the Public Acts of 1895. It is obvious that, if this proviso is constitutional, relators’ property was not taxable in Detroit, but was taxable at the place named for the location of its general office for business. The contention of respondent’s counsel that this property is taxable in Detroit compels them to affirm these two propositions: (1) That the proviso is unconstitutional; (2) that the statute, with the proviso eliminated, properly construed, makes relators’ property taxable in the city of Detroit. We will consider each of these questions, but, as we should not determine a statute to be unconstitutional until it is shown that such determination is necessary to a disposition of the case, we will consider them in inverse order.

2. If we eliminate the proviso, the constitutionality of which is in question, the statute made the property taxable ‘ ‘ where its office is located in its articles of incorporation: * * * Provided, Its business is actually transacted at such office; but if it shall establish its principal office in any other place than the place named in its articles of incorporation, then the place where it, transacts its principal business shall be deemed its residence for all the purposes of this act. If there be no principal office in this State, then at the place in this State where,such corporation or agent transacts business.”

The court below, by a majority opinion, denied the mandamus. It must be assumed that the court found as a fact that relator’s business was not actually transacted at the office-named in their articles of incorporation, and was transacted at the city of Detroit. We cannot review this finding of fact if there was evidence to support it. We can only inquire whether there was such evidence. It appears that all that was done at the office named in the articles of incorporation was to hold the annual meeting of stockholders, and in the case of the Teagan Transportation Company also the first annual meeting of directors elected by the stockholders. Unless we decide that the holding of annual meetings of stockholders and directors is the principal business of said corporations, we must hold that that principal business was not transacted at the place named in the articles of incorporation. It is true that we held in the City of Detroit v. Lothrop Estate Co., 136 Mich. 265, that the principal business was done at the office where the manager resided, and where the managers and shareholders “meet to do whatever is necessary for them to do.” This by no means decides that the annual meeting of stockholders constitutes the principal business of the corporation. To so hold would, in my judgment, clearly frustrate the legislative purpose. It is said that the personal property of the corporation should be taxable at the place “ where its office is located in its articles of incorporation : * * * Provided, Its business is actually transacted at such office.” By “business” the legislature meant something more than the annual meeting of stockholders and newly chosen directors. If it did not, other and more appropriate language would surely have been used. We come, then, to the question, Had the lower court the right to infer that the relator corporations did such business in the city of Detroit as to make their personal property taxable there? We have shown that substantially all the business of relator the Teagan Transportation Company was done in Detroit; that the treasurer of the other relators resided in Detroit, had (and, it may be inferred, there exercised) superior powers of business management, and that he there received and disbursed the funds of said corporation except those disbursed for the ordinary running expenses of their boats. If the holding of annual meetings of stockholders and directors did not constitute the principal business of the corporations (and we have stated that in our judgment it did not), it follows that the personal property of the corporation was taxable either at the place where it established an “ office for the transaction of its principal business, or, if it had no principal office, then at the place in this State where such corporation transacts business.” It is immaterial whether we say that the place where the corporation did its business in Detroit was “its principal office for the transaction of business,” or whether we say that it had no principal office in that city. The fact that it transacted business of the character already stated — business which was obviously more than clerical — made that the place where its personal property was taxable under the hypothesis that the proviso of 1895 was unconstitutional. We come to the consideration of the question:

1. Is the provision that “The personal property of all corporations heretofore or hereafter organized under the laws of this State for the purpose of engaging in maritime commerce or navigation shall be assessed only in the city, village, or township which is stated in their original articles of association or in any amendment thereof heretofore or hereafter made,” constitutional ? It will be noticed that this provision is not confined to “vessel property,” so called, but extends to all the personal property of corporations “engaged in maritime commerce or navigation.” While the personal property of individuals is taxable at their place of residence, and while the property of other corporations is taxable at the place of their principal business office, corporations engaging in maritime commerce or navigation may have their property taxed at whatever place they may choose to designate in their articles of incorporation. As the rate of taxation varies much in different localities, it gives to the latter corporations the right to select that place in which the rate of taxation is lowest. It thus gives to them the privilege of paying less taxes than must be paid by other corporations or by individuals engaged in precisely the same business. Neither can it be said that individuals .have the same right to select the place in which their property will be taxed because it will be taxed at the place in which they may choose to reside. It is true that individuals may determine where they will reside, and corporations in general may determine where they will do business, but, in order to make their property taxable at that place, the individuals must actually reside there (see Beecher v. Common Council of Detroit, 114 Mich. 228), and the corporations must actually do business there (see Detroit Transportation Co. v. Board of Assessors of Detroit, 91 Mich. 382). Neither such corporations nor individuals have the same right to determine the situs for the taxation of their personalty as this statute undertakes to give to corporations engaged in maritime commerce and navigation.

The question arises whether such a law does not violate the provision contained in section 11, art. 14, of our Constitution, requiring a uniform rule of taxation. In Western Transportation Co. v. Scheu, 19 N. Y. 408, and Oswego Starch Factory v. Dolloway, 21 N. Y. 449 (cases relied on by relators), laws like that under consideration were enforced; but those cases throw no light on the constitutional question before us. There no constitutional question was raised — perhaps none could be raised — and no such question was considered by the court.

In Cooley on Taxation, after demonstrating the proposition that perfect uniformity and perfect equality in taxation is unattainable, it is said:

“But when, for any reason, it becomes discriminative between individuals of the class taxed, and selects some for an exceptional burden, the tax is deprived of the necessary element of legal equality, and becomes inadmissible. It is immaterial on what ground the selection is made— whether it be because of residence in a particular portion of the taxing district, or because the persons selected have been remiss in meeting a former tax for the same purpose, or because of any other reason, plausible or otherwise; for, if the principle of selection be once admitted, limits cannot be set to it, and it may be made use of for the purposes of oppression, or even of punishment.” 1 Cooley on Taxation (3d Ed.), p. 260.

In the note to this text is the following quotation from the opinion of the court in Atchison, etc., R. Co. v. Clark, 60 Kan. 826 (47 L. R. A. 77):

“ Absolute equality in taxation is, of course, unattainable ; but a law the manifest purpose and legitimate result of which is discrimination and inequality cannot be sustained.”

In Standard Life & Accident Ins. Co. v. Board of Assessors of Detroit, 95 Mich. 466, this court held that a law which subjected banks and insurance companies to a higher rate of taxation than that of other individuals and corporations was unconstitutional.

In Pingree v. Auditor General, 120 Mich. 95 (44 L. R. A. 679), and Detroit Citizens’ St. Ry. v. Common Council of Detroit, 125 Mich., at page 694, similar decisions were made.

It follows from these decisions that, if the legislature had attempted to impose an onerous burden of taxation upon the property of corporations engaged in maritime commerce and navigation, such legislation would be void. But the act in question, instead of imposing an onerous burden upon such corporations, confers upon them a special privilege.

The question arises — and this is a question not argued by counsel, but which must necessarily be determined before we adjudge the lkw unconstitutional — whether the act can be sustained as a partial exemption" from taxation. It cannot be supposed that the legislature enacted this law upon the ground that the property of corporations engaged in maritime commerce and navigation should be exempt. So far as that property consists of vessels engaged in commerce, it in no respect differs from vessels belonging to individuals engaged in commerce. So far as it consists of other tangible or intangible personal property, it in no manner differs from such property belonging to other individuals and corporations. This law cannot be sustained as a law partially exempting property from taxation unless the legislature has power to single out individuals or corporations from the class to which they belong, and capriciously exempt them from taxation. We are forced to say that the legislature has not that power.

In 1 Cooley on Taxation (3d Ed.), pp. 381, 382, it is stated:

“ It is difficult to conceive of a justifiable exemption law which should select single individuals or corporations, or single articles of property, and, taking them out of the class to which they belong, make them the subject of capricious legislative favor. Such favoritism could make no pretense to equality. It would lack the semblance of legit- _ imate tax legislation.”

See Hamilton v. Wilson, 61 Kan. 511 (48 L. R. A. 238); City of Lexington v. McQuillan’s Heirs, 9 Dana (Ky.), 513. We are bound, therefore, to declare that the constitutional provision requiring uniformity of taxation prevents the legislature enacting a law which it must be presumed was intended to and does tax property at a rate different from that imposed on all property of precisely the same class. Tested by this principle, the law (the proviso) under consideration is unconstitutional, for, as we have already shown, it clearly taxes (and we must assume that the legislature intended that it should tax) the property of corporations engaged in maritime commerce and navigation at a rate different from all other property of the same class. But it is said that this result is brought about in an unusual manner, viz., by selecting the situs for taxation. And it is earnestly contended that the constitutional requirement of uniformity does not affect the legislative power to determine that situs. If this argument is sound, it leads to some peculiar consequences. In the case before us it permits a particular class of corporations to have their property assessed for taxation at that place in the State where taxation is lowest. If relators’ argument is sound, it would be competent for the legislature to declare that such property should be taxed at that municipality in the State whose rate of taxation was highest. If such a law were passed, would it not be clear that relators could successfully maintain that their property was taxed at a rate higher than that imposed on other property of the same class ?

In support of their argument that the requirement for uniformity does not affect the power of the legislature to determine the situs for taxation, relators cite State v. Runyon, 41 N. J. Law, 98; Crawford v. Linn County, 11 Or. 482; City of Winston v. City of Salem, 131 N. C. 404. What is decided in State v. Runyon, supra, is sufficiently shown by the following quotation from that opinion:

“The framers of the constitutional amendments did not aim at the impossible. They contented themselves with the accomplishment of so much of good as was attainable under the single requirement that ‘property shall be assessed for taxes under general laws, and by uniform rules, according to its true value.’ In other respects the legislative power over taxation was left unimpaired. If property be such in its nature as, upon ordinary principles of taxation, to be capable of having a twofold situs for taxation, the legislature may select either as the place where the tax shall be laid. ”

Conclusive proof is furnished that the court did not intend by this statement to assert the proposition contended for by relators by other language in the opinion, which I quote:

“The object of this constitutional provision was the equalization of taxation in its relation to the several parts of the State, and the prevention of unjust discriminations in the apportionment of the public burdens among its citizens liable to taxation.”

In Crawford v. Linn County, supra, it was held that the constitutional provision requiring uniformity was not violated by a law which taxed mortgages covering land in two or more counties at the place where the mortgagee resides, and which taxed other mortgages where the mortgaged land was situated. This decision proceeded upon the ground that the court could not say that this determination of situs was favorable or burdensome to either of these two classes of mortgagees. And it was said, “If the court could know judicially that the one or the other were hurt, it would be sufficient.” It is true that it is said in this opinion, “A limitation on the power of the legislature to fix rates of assessment and taxation has nothing to do with the power of the legislature to fix the situs of personal property for the purposes of taxation. ” If by this the court intended to assert the proposition contended for by relators, it has no more than stated a dictum.

In City of Winston v. City of Salem, supra, it was decided that a law which made personal property generally taxable at one’s place of residence and the personal property of partnerships and corporations taxable at their places of business was constitutional. It may be said in this case, as was said in the case of Crawford v. Linn County, that the court could not judicially know that this method of taxation discriminated in favor of or against either of these classes of taxpayers. In saying in its opinion that the constitutional provision requiring uniformity left the legislature “free, as always heretofore, to prescribe regulations as to the situs of personal property,” the court went far beyond the requirements of the case, and, like the Oregon case, has merely stated a dictum.

We are bound to say from this examination of authorities that there is nothing but dicta to sustain relators’ contention. We are therefore free to determine on principle whether the constitutional requirement of uniformity affects the legislative authority to determine the situs for the taxation of personal property. This is not a difficult inquiry, especially if the proposition be stated in different, but in equivalent, language, viz., can the legislature, in determining the situs for the taxation of personal property, disregard the constitutional provision requiring uniformity ? The legislature derives its authority to determine the situs for the taxation of personal property — and it certainly has that authority (see Common Council of Detroit v. Board of Assessors of Detroit, 91 Mich. 78 [16 L. R. A. 59]) — not from any express constitutional grant, but from the grant of general authority to legislate. The provision requiring uniformity of taxation is a constitutional limitation on that authority. To contend that in determining such situs the legislature may ignore the constitutional requirement of uniformity is to contend that in exercising its general authority the legislature may ignore the constitutional limitation 'on that authority. This argument nullifies all constitutional limitations on legislative authority, and is therefore unsound. We are therefore forced to conclude that the legislature, in determining the situs for the taxation of personal property, must regard the constitutional requirement of uniformity, and the disregard of that requirement makes the law under consideration unconstitutional and void. We do not, by our decision, negative relators’ claim that it is unjust that their property (which, like much other property similarly located, receives no benefit from the expenditures of municipal tax in Detroit) should contribute toward their payment. Neither do we declare that it is beyond the power of the legislature to enact a law which will remedy this injustice. What we do say is that any such law — unlike that before us — must regard the constitutional requirement of uniformity.

It follows that the lower court was right in refusing a mandamus, and their decision is affirmed, with costs.

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


text:
    SCOTT v. LONGWELL.
    1. Waters And Watercourses — Percolation—Actions—Pleading — Defenses Under General Issue.
    In an action for injuries to plaintiff’s land by water from defendants’ mill race, the right under a deed and by prescription to do the acts complained of are affirmative defenses, which, under Cir. Ct. Rule No. 7, cannot be shown under the general issue.
    2. Same — Percolation from Mill Race — Care Required.
    The owner of a mill race must use care “ proportionate to the danger ” to prevent the water from escaping and percolating through the banks to the injury of adjacent property owners.
    3. Same — Adjoining Landowners — Damages—Duty to Lessen.
    Even if it be the duty of the owner of property adjacent to a mill race to construct a drain on his property to prevent injury from percolation of the water through the banks, he is only bound to use ordinary care.
    Error to Van Burén; Carr, J.
    Submitted October 7, 1904.
    (Docket No. 38.)
    Decided January 30, 1905.
    Case by Charlotte Scott against George W. Longwell, Sr., and the First National Bank of Paw Paw for damages caused by flooding. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Thomas J. Cavanaugh, for appellants.

      David Anderson, for appellee.
   Carpenter, J.

Defendants maintain an artificial mill race in the village of Paw Paw. Plaintiff is the owner of residence property adjacent to said race. Twice — once in 1897, and again in 1902 — the water was out of said mill race for several months. When the water was let in, and for several months thereafter, the water from said race, as we must assume from the verdict in this case, seeped through the banks into plaintiff’s cellar, and on her land. To recover damages for said flooding, plaintiff brought this suit, and recovered a verdict and judgment in the court below. We are asked to reverse that judgment on several grounds.

It is contended that the only ground upon which plaintiff can recover is that of negligence, and that no negligence is averred in the declaration. It is a sufficient answer to this complaint to say that, in our judgment, defendants’ negligence is averred in the declaration.

Defendants urge that they had a right to do the acts complained of as wrongful, ■ by virtue of a reservation in a certain deed, and that by prescription they had a right to flood the land of plaintiff. Itv is a sufficient answer to these claims to say that they afforded affirmative defenses, and were not, therefore, under Circuit Court Buie 7, admissible under defendants’ plea of the general issue.

Complaint is made because the trial court did not give the following instructions to the jury, preferred by defendants :

“You are further instructed that the defendants had a legal and lawful right to keep and maintain the mill race, and keep and maintain the water therein, for the purpose of operating their mill; and if you find from the evidence that they did so keep and maintain the same, and did keep and maintain water therein for the purpose of operating their flouring mill, and that the same was kept in an ordinarily prudent manner, and that the defendants at no time were guilty of negligence in maintaining and keeping water therein or in repairing the same, then plaintiff cannot recover, and your verdict should be for defendants.
“If you find from the evidence that the defendants were using their property, to wit, the milling property and mill race, in an ordinarily prudent manner; then any injury that might befall any property next adjoining said mill race on account of any water percolating or seeping through the banks or bottom would, in law, be a mere incident to the proper use of such milling property and race; and, unless the defendants were guilty of negligence in repairing said race, or in keeping or maintaining water therein, your verdict should be for defendants.
“You are further instructed that no damages can be recovered by the plaintiff in this case on account of the fact that the defendants maintained or kept the mill race, and that such mill race contained water that percolated or seeped through the bottom or sides of said race and undermined plaintiff’s house, so long as said water was in said race for a lawful purpose, and was being used by defendants for a lawful purpose, and did not escape therefrom on account of the negligent conduct of defendants.”

In our judgment, under the peculiar circumstances of this case, the giving of these requests would have misled the jury and diverted them from the precise question in controversy. To make this clear, a somewhat more detailed statement of the case is necessary. Plaintiff complains of being damaged by the escape of water from the race, not on ordinary occasions, but on two extraordinary occasions. It is shown that, preceding each of these occasions, the race had been emptied for several months: that on the second of these occasions defendants scraped the bottom of the mill race, and cleaned out the rubbish which had accumulated therein. The undisputed testimony— and it comes from defendants’ millwright who planned the improvements — is that “ a mill race, when first constructed, is likely to leak, and after it has stood for some time the mud will work so it will be water-tight. The effect of drawing off the water would be nearly the same as scraping — as a new construction...So Jhat, after it stands awhile empty, when the water is turned back in it will seep — water-soak—through, to a certain extent, on account of the ground cracking'"dbgp if left dry for some time. If dry a- short time and scraped, it would have the same effect as a new .construction.” This testimony affords the explanation of-plaintiff’s injury, for her property was not flooded, except 'when the water was turned in after the race had for' a’’, long* time stood empty, on the occasions specified. This'téstim'dny is also important as indicating the obligation imposed upon defendants.

The precise obligation imposed by law upon one who collects waters in an artificial reservoir is a subject of grave •dispute. In Rylands v. Fletcher, L. R. 1 Ex. 265, L. R. 3 H. L. 330, it was declared that no amount of diligence is a legal excuse, if such water escapes and damages another. The correctness of this doctrine has been much discussed by law writers and courts. If has been approved in Massachusetts (see Gorham v. Gross, 125 Mass. 232); and Minnesota (see Cahill v. Eastman, 18 Minn. 324). It has been disapproved in other States. See Losee v. Buchanan, 51 N. Y. 470; Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126; Marshall v. Welwood, 38 N. J. Law, 339.

We need not, however, in this case, as we shall point out, undertake to determine its correctness. According to all authorities, there is imposed upon a person who collects water in an artificial reservoir an obligation to use care ‘£ proportioned to the danger of injury from the es•cape.” See Cooley on Torts (2d Ed.), p. 680. If we impute to defendants, as we must, under the law (see Pollock on Torts [Webb’s Am. Ed.], pp. 26, 27), a knowledge and skill possessed by competent millwrights, we must presume that they knew that the water would escape through the banks of the race which had been so long empty, and they were bound to take precautions to prevent it. If there was any evidence that precaution was taken, it is to be found in the following testimony of defendant Longwell:

‘ ‘ I used all the caution and judgment that I could to do a good job, and did not for a moment apprehend that I was doing any one any harm. There was fat holes along there — muskrat holes, we call them. We tried to fill them up, and did, with the dirt we scraped from the sides. I instructed Mr. Goss and John Chapman to take their hoes and shovels and dig the dirt that was scraped up on the sides, and level it off, poke it up under the sod and grass that grew long there, and to look out for all rat holes that they could find, and fill them up.”

In view of the undisputed fact that such a race was likely to leak on account of the scraping and cracks, I think that we could safely say, as a matter of law, that defendants were negligent in not taking proper precautions to prevent the water escaping. At any rate, defendants were bound to use care proportioned to the danger. If the question of defendants’ negligence was one for the jury, the material circumstances to be considered by the jury were these: The probability of the escape of the water, and the precautions taken by defendants to prevent such escape. None of these circumstances are contained in defendants’ requests. But on the other hand, the jury are asked to consider in that connection circumstances wholly immaterial, and circumstances which would operate prejudicially in favor of defendants, viz., the lawfulness of their purpose in maintaining the race, and the care used in operating their mill. Even if defendants were entitled to have the jury charged that their obligation was only that of ordinary care — that is, the care that an ordinarily prudent person should have exercised under the circumstances —the instructions preferred are faulty, in that they undertake to state those circumstances, and state them incorrectly, to plaintiff’s prejudice. .

It is also complained that the court erred in refusing to give this request preferred by defendant:

“ If it is shown in the casé that the plaintiff has sustained an injury under such circumstances, in view of the instructions heretofore given • you, That the defendants should be held liable, and that it further appears to you that such injury might have been diminished or obviated at a moderate expenditure of money or labor, or by opening an old drain or constructing a new one from the house, then it was the plaintiff’s duty to have made the injury as light as possible,' and in no way to aggravate it.”

If it be true that, to lessen, the damages, plaintiff was under an obligation to construct'a drain on her own property, or do some similar affirmative act (and this has been denied. See Pixley v. Clark, 35 N. Y. 520), it is certainly true that she was bound to do’ no more than a person of ordinary prudence would have doné; She was not held to the high obligation required in said request; that is, she was not bound to make the injury as light as possible, even though, as a person of ordinary prudence, she could have discovered no way to dó so. .

There is no other complaint which demands discussion.

The judgment is affirmed, with costs.

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