text:
    RUTERBUSCH v. SUPREME COURT OF THE INDEPENDENT ORDER OF FORESTERS.
    1. Insurance — Joinder of Parties — Life Insurance.
    It is not a misjoinder, in an action on a life insurance policy payable in stated amounts to several beneficiaries, to join them as parties plaintiff.
    2. Same — Burden of Proof as to Suicide.
    The burden of proof in such action is on the defendant to show that the insured committed suicide, as a defense under the terms of the policy.
    3. Same — Appeal — Exhausting Remedies — Fraternal Beneficiary Society.
    Failure to give notice of the association’s decision as to a claim for insurance against a fraternal beneficiary association, until after the time had elapsed for taking an appeal to a higher tribunal of the order, waives the by-law limiting the time for appeal.
    A Appeal and Error — Saving Questions for Review.
    The point that such by-law had been amended so as to prevent the waiver cannot be raised for the first time in the Supreme Court.
    5. Insurance — Fraternal Beneficiary Associations — Exhausting Remedies in the Order.
    Where defendant had deprived plaintiff of his right to appeal within the order, by failing to give notice of its determination in time to permit an appeal under its by-laws, plaintiff did not lose his right to institute an action by attefnpting to obtain a hearing before the final tribunal of the association.
    Error to Bay; Collins, J.
    Submitted April 20, 1910.
    (Docket No. 123.)
    Decided July 14, 1910.
    Assumpsit by William Ruterbusch and others against the Supreme Court of the Independent Order of Foresters on a policy of insurance. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Affirmed.

      Stevenson, Carpenter & Butzel (Charles W. Hitchcock and Joseph S. McDowell, of counsel), for appellant.

      De Vere Hall, for appellees.
   Blair, J.

In March, 1904, the defendant upon the application of Leonora Ruterbusch, wife of the plaintiff William Ruterbusch, issued to her its benefit certificate whereby it did agree, among other things, “on the death of the said member being established to the satisfaction of the executive council, to pay to the beneficiary or beneficiaries designated hereon * * * a mortuary benefit of one thousand dollars.”

By indorsement on the certificate, Mrs. Ruterbusch directed that the mortuary benefit due at her death be paid to the following beneficiaries:

William Ruterbusch, husband.....................,..$200
Elsie Maud Ruterbusch, daughter..................... 150
Leonora Ruterbusch, daughter.......... 150
Helen Sophia Ruterbusch, daughter............. 150
Ruth Beatrice Ruterbusch, daughter.................. 200
Walter William Ruterbusch, son..............._......150

Mrs. Ruterbusch died April 10, 1905, from the effects of carbolic acid administered by herself, and, the defendant refusing to pay the mortuary benefit, William Ruterbusch brought this action in his own right and as next friend of the five infant children. Defendant demurred to' the declaration on the ground of a misjoinder of plaintiffs, the demurrer was overruled, the case tried by a jury, and verdict and judgment rendered for plaintiff.

Appellant groups the assignments of errors as follows:

“(a) There is a misjoinder of parties plaintiff and causes of action.
“(6) Under the constitution and by-laws of defendant society, if appellees are entitled to recover at all, they are only entitled to recover one-thirtieth of the amount of mortuary benefit held by decedent, or #33.34, she having come to her death by self-destruction within three years after her initiation into the order.
“(c) Under the constitution and by-laws of defendant society, it was the duty of appellees to appeal from the finding of the supreme chief ranger within 20 days after receipt of notice of his decision made October 18, 1905, and failure to do so barred any action or right to recover in this case.
“(d) Under the constitution and by-laws of defendant society, it was the duty of appellees to exhaust their remedy within the order, and failing to prosecute their appeal before the supreme court, they are foreclosed from suing in a court of law or equity on such benefit certificate.”

(a) In support of this point, counsel cite 4 Joyce on Insurance, § 3647; 11 Enc. Pl. & Prac. p. 402; 25 Cyc. p. 915; Keary v. Life Ass’n, 30 Fed. 359. The Keary Case is referred to in support of the text in Cyc., the Enc. of Pl. & Prac., and Joyce. The decision in the Keary Case was apparently based, to some extent, at least, upon “the practice which obtains and the rule laid down under the State code. ” Our attention has not been called to any statute of this State, nor are we aware of any such statute, which affects the question before us.

In Voss v. Insurance Co., 119 Mich. 161 (77 N. W. 697, 44 L. R. A. 689), it was held that one of two beneficiaries in an insurance policy could not maintain an action against the company to recover his proportion of the insurance without accounting for his failure to join the other beneficiary. If, in the present case, Mrs. Buterbusch had not specified the amount to be paid to each, the case would be ruled by the Foss Case. We do not think the use of fractions to designate the amount received should require that all should sue, when, if the corresponding shares were specified in cash, each must sue for his own share. Nor do we think that the fact that the fractional proportions are different should change the result. In its essence the contract provides that the interest of the beneficiaries in the policy is joint, and that the company is to pay one entire sum to be divided among the beneficiaries as joint owners of such fund in specified proportions. As was said in Castner v. Insurance Co., 46 Mich. 18 (8 N. W. 554):

“It can make no necessary difference to the insurance company in ,what way their interests are apportioned.”

See, also, Olson v. Morrison, 29 Mich. 395; Monaghan v. Insurance Co., 53 Mich. 238 (18 N. W. 797); Beebe v. Insurance Co., 93 Mich. 514 (53 N. W. 818, 18 L. R. A. 481, 32 Am. St. Rep. 519). We are of the opinion that the court did not err in holding that there was no misjoinder of plaintiffs.

(6) The burden of proof was upon defendant to show that the insured committed suicide. Ferris v. Court of Honor, 152 Mich. 322 (116 N. W. 448). We cannot say that the evidence, though strongly supporting defendant’s / contention, was conclusive upon this point. There was also testimony tending to show that Mrs. Ruterbusch might have taken the acid by mistake.

(c) The provision of defendant’s laws as to an appeal in force at the time of the member’s death was as follows:

“All appeals must be made within twenty days from the date of the decision, except from a decision of a high chief ranger, or from the decision of the supreme chief ranger, when the high court or supreme court, as the case may he, is in session, when an appeal must be taken forthwith and before any other business is begun.”

There was testimony tending to show that notice of the decision of the supreme chief ranger was not given to the beneficiaries until after the time for appeal had expired, and such failure to give the notice, if found by the jury, would constitute a waiver of the by-law. Steiner v. Supreme Court I. O. F., 149 Mich. 567 (113 N. W. 15).

But it is said that the law relative to appeals was amended by defendant in the session of July and August, 1905, after the death of Mrs. Ruterbusch, so as to provide, as follows: c ‘ An appeal must be taken within twenty days from the time written notice of the decision is given to or served upon the interested party,” etc.; and that this provision was in force at the time the beneficiaries actually received notice of the decision of the supreme chief ranger and they permitted more than 20 days thereafter to elapse before taking an appeal and thereby became bound by such decision. We find no proof in the record of the adoption of any such amendment. All that the record contains on the subject is the following:

“Mr. Hall: I wish to offer in evidence also, in view of the statement of counsel, that at the last meeting of the defendants, they changed the by-laws so that, they should always meet in Toronto. I offer in evidence the constitution and by-laws of the defendant enacted in July and August, 1905, being the last meeting before the suit was begun. The same was admitted in evidence, and is marked ‘Exhibit 6,’and is attached hereto. It is stipulated and agreed by and between the parties hereto, that for the sake of economy and brevity said Exhibit 6 may be omitted from the printed record.
“Counsel for plaintiffs called attention to section 5 at page 22, reading as follows:
“‘Session of the supreme court and regular and special sessions. The supreme court shall meet in regular sessions, triennially or quadrennially, as the supreme court shall determine from time to time at the headquarters of the order, in the city of Toronto, Can.”’

Although the offer of plaintiffs’ counsel included the entire constitution and by-laws, it is apparent that he was specifically offering section 5 at page 22 thereof. There is nothing in the record to indicate that defendant’s counsel directed the attention of the court or opposing counsel to an amendment of the by-law as to the time for taking an appeal, or claimed any benefit or legal right by virtue of it. It is not referred to in defendant’s requests to charge, nor mentioned in the charge of the court, and is only before us in defendant’s brief. Under such circumstances, we must decline to consider the effect of the amendment upon the rights of the parties.

(d) The jury have found that defendant deprived plaintiffs of their opportunity to appeal within the time prescribed in the by-laws and he, therefore, had—

“No right of appeal or any other remedy furnished by the laws of the order. Under this reasoning plaintiff had exhausted all the remedies of the order before bringing suit.” Steiner v. Supreme Court I. O. F., supra.

Although plaintiffs were under no obligation to take any further proceedings before the tribunals of the order, they did attempt to appeal to the executive council, but, after considerable delay, were notified that the council would not entertain their petition, for the reason that they had not taken their appeal within $0 days.

On April 24th, following, an appeal from the action of the executive council to the supreme court was taken, the petition therefor and the affidavit each containing a request that the supreme court convene in special session at some convenient place of reasonable access and entertain jurisdiction of the appeal, the affidavit accompanying the same setting forth that it would be necessary for plaintiff to secure the testimony of numerous witnesses to establish the justness of his claim, all of whom resided at Bay City, and that some of the witnesses declined to make voluntary affidavits concerning the matter, and that there was no process of law known by which he could compel such witnesses to testify outside of a court of law or equity; that plaintiff was advised that the next regular session of the supreme court would not be held until some time in the year 1909, which session might, under the laws of defendant, be held in any country where defendant had branches, including Europe and Australia, and that the appeal of plaintiff would thus be required to be brought on in such foreign countries, at an unreasonable distance from his residence and at an expense which would be prohibitive of the attendance of witnesses, and that substantial justice could not be done, unless the claim be heard speedily and at some place within reasonable distance from Bay City.

Under date of May 15, 1906, a communication was forwarded by the supreme secretary to counsel in which he stated:

“ Your appeal, and all other papers and correspondence in the matter, will be presented to the supreme court at its next session. With respect to the matter of your petition that the executive council order a session of the supreme court at some convenient place within a reasonable time to hear your appeal, the executive, at its recent meeting on the 7th instant, declined to order a special session of the supreme court. Your appeal will be presented to the supreme court at its next regular session.”

Thereupon, plaintiffs’ counsel advised defendant that suit would be instituted.

We do not think that the efforts of the plaintiffs to get a hearing of their claim by the courts of the order, after their release from any legal obligation to do so, should be held to affect their right to seek redress in the courts of law. The appeals which they were seeking were not required of them, but were prohibited to them by the laws of the order, and, if allowed, would only be by courtesy. The fact that the laws of the order, upon the failure of the supreme chief ranger to serve timely notice of his decision, prevented any appeal, clearly distinguishes this case from Conley v. Supreme Court I. O. F., 158 Mich. 190 (122 N. W. 567), and the cases therein cited.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Stone, JJ.; concurred.


source: Caselaw Access Project

author: Ostbandeb, J.

license: Public Domain

text:
    MICHIGAN CENTRAL RAILROAD CO. v. FERGUSON.
    1. Eminent Domain — Petition—Pleading.
    Objections to the sufficiency of a petition to take land by proceedings in eminent domain for railroad purposes are not sustainable, when it is alleged that the petitioner requires the premises for constructing and operating its road, that they are adjacent to its main line, that there is a public necessity for such taking, and that the corporation has duly attempted to acquire title by purchase.
    2. Same — Evidence—Presumptions—Necessity.
    No presumption prevails, in such proceeding, that the petitioner has determined to erect a passenger station on premises to be taken.
    3. Same.
    It is an indispensable prerequisite to acquiring land in condemnation proceedings, that the corporation shall determine by proper action that the land is required for corporate purposes, and that the purposes shall be such that the private right must yield to the larger public necessity.
    4. Same — Attempt to Purchase — Statutes.
    An attempt to purchase the premises to be acquired is not properly evidenced by a showing that a representative of the petitioner had no authority except to agree upon a price and secure an option thereon in favor of a trust company. 2 Comp. Laws, § 6242.
    Appeal from Wayne; Murfin, J,.
    Submitted April 20 1910.
    (Docket No. 102.)
    Decided July 14, 1910.
    Proceedings by the Michigan Central Railroad Company against Elizabeth Ferguson, Edwin Miller, and Burr Lob-dell to condemn land for depot purposes. From an order confirming the award of the jury, respondents Miller and Lobdell appeal.
    Reversed and proceedings dismissed.

      Brakie J. Orr, for appellant Lobdell.

      Albert McClatchey, for appellant Miller.

      N. E. Blaymaker (Gray & Gray, of counsel), for appellee.
   Ostbandeb, J.

Petitioner seeks to acquire title to two small parcels of land adjoining each other, fronting on Seventeenth street in Detroit; each parcel being 50 by 103 feet in size. It filed its petition, verified by its attorney, in which it is alleged that petitioner is the owner of and has a railroad constructed and in operation between the city of Detroit, in the State of Michigan, and the town of Kensington, in the State of Illinois, and requires “for the purpose of constructing and operating its railroad and appurtenances, the premises adjacent to its main line,” describing them; that the taking thereof is necessary for the public use; that it endeavored to acquire title to the premises by purchase; “that your petitioner has offered * *• * for said premises a sum in excess of what your petitioner believes is the fair value thereof, which offers have been refused.” A demurrer to the petition was overruled, and respondents Miller and Lobdell filed separate answers. There was a preliminary hearing, in which some testimony was introduced on the part of petitioner and which ended with an order granting the prayer of the petition. At this stage, proceedings were interrupted by the issuing out of this court of a writ of certiorari, which was afterwards dismissed without prejudice. New directions were then given for the summoning of a jury, and such proceedings were had that the jury determined that public necessity required the taking of the land in question by the petitioner and awarded as compensation for said land, to respondent Lobdell, as mortgagee, 18,000; to respondent Miller, owner of the fee, $1. Respondent Ferguson disclaimed any interest. Objections to confirmation of the award were overruled, and it was confirmed September 28, 1909; the order of confirmation specifying, also, that counsel for each of said respondents should be paid $150, that respondent Lobdell be paid $15.30, and respondent Miller $51.40 costs and expenses. Respondents have taken separate appeals. With the notice of appeal each respondent pointed out the errors and the objections taken to the proceedings upon which he relies.

As we are of opinion that some of the objections made by respondent Miller, the owner of the land, are good and require the dismissal of the entire proceedings, we proceed at once to consider them. It cannot be said, we think, that the petition is, upon its face defective. If the averments were admitted, an award would not be set aside for want of jurisdiction. The brevity and general nature of the averments are, however, calculated to attract attention when the nature of the case sought to be made by petitioner is considered. The case, briefly stated, is that the petitioner operates, and has for many years operated, a railroad from Detroit to Chicago. Its passenger depot in Detroit is at the foot of Third street. A tunnel is being constructed under the Detroit river, by means of which trains which have heretofore been transported to and from Canada by boats may be conveyed under the river. The mouth of this tunnel, in Michigan, will be at some distance from the present passenger depot and at- or about Fourteenth street. An economical and speedy service and public and private convenience require the construction of a new passenger depot with appurtenances, including necessary tracks, near the mouth of the tunnel. Plans have been made which contemplate the acquisition of the lands in a district, irregular in outline and dimensions, including the streets and alleys lying north of the right of way of petitioner and extending from Fourteenth street to Twentieth street. The parcels in question are so situated that it is practically imperative that they be controlled and used with surrounding property if the scheme and purpose referred to is carried out. The engineering department of petitioner has prepared maps showing the outlines of the district and plans, or studies, tentative in character as to details, of the passenger station and appurtenances laid out therein. These were submitted, with explanations, to the j ury. At some length witnesses stated the proposed methods of operating trains in the tunnel, the equipment required, the reasons for constructing a new passenger depot, the supposed resulting convenience to the public and- to the petitioner. One of the powers of petitioner is—

“To erect and maintain all necessary and convenient buildings, stations, depots, and fixtures, and machinery for the accommodation and use of their passengers, freight, and business, and to obtain and hold all the lands necessary therefor.” 2 Comp. Laws, § 6234, subd. 8.

If unable to agree for the purchase of any real estate required for the purpose of its incorporation, “it shall have the right to acquire title to the same in the manner and by the special proceedings prescribed in this act.” 2 Comp. Laws, § 6242; Act No. 266, Pub. Acts 1899.

It does not appear, affirmatively, that petitioner has ever determined to erect a passenger station and to acquire the lands in this district for that purpose. We are not permitted to indulge any possible presumptions in favor of such action. None arises from the filing of the petition and this proceeding to condemn. The petition indicates no such purpose and mentions only two small parcels of land, neither of which is, within any reasonable definition of the word or construction of the statute, “ adjacent ” to the main line of the railroad. It does not appear that petitioner has ever acquired any land in the district. It does appear, affirmatively, that the whole matter is tentative and indefinite. Streets and alleys must be vacated. So far as efforts to acquire land are concerned, it appears that options have been acquired and none of those to petitioner. This means that petitioner may buy, at a price fixed in the option, but need not buy. We are not concerned about the method adopted by petitioner to secure land by purchase. The point and ruling is that it is an indispensable prerequisite to acquiring land in con4emnation proceedings that the corporation shall determine by proper action that the land is required for corporate purposes, that the purposes shall be such that the private right must yield to the larger public necessity, that no such determination is indicated by the action disclosed.

What has been said supports also the objection that the testimony wholly fails to prove any attempt to purchase the land described in the petition. It is essential there should be evidence of an attempt to purchase — to agree for the purchase of the land — to support these proceedings. The testimony warrants but one conclusion, and that is that the representative of petitioner had no authority in the premises except to agree upon a price and secure a right of the Union Trust Company to buy at that price. No citizen is under obligations to treat with the corporation for a right to sell his land at the option of the corporation. It is said in the brief for petitioner that the general authority of the agent covered the taking of options which he reported; but in the particular case of Miller he had direct authority to make a cash offer of $6,000. This statement is not supported by the record. The agent in his testimony makes it very plain that he had no authority to sign for or to bind the petitioner, and that he had no other authority when he saw Mr. Miller than he had when he saw Mrs. Ferguson or any other property owner.

We are of opinion that petitioner cannot maintain this proceeding, and that an order should be entered dismissing it. Whether the contemplated improvement is not one which requires the making and certification of a map, and its approval and filing (2 Comp. Laws, § 6232), is a matter demanding serious consideration.

An order will be entered dismissing the proceeding, with costs of both courts to appellants.

Hooker, Moore, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    PEOPLE v. HENNARD.
    1. Assault and Battery — Criminal Law — Evidence.
    Where respondent was charged with assault with intent to do great bodily harm, less than murder, upon the person of his infant son, and the injuries and attendant circumstances, taken with admissions of the boy at the time, tended to prove the crime, the case was one for the jury, even though the son testified that he might have been kicked by a horse.
    2. Evidence — Criminal Law — Res Gestíe.
    What the boy said to a minister, to whose house he fled from the place of the assault, concerning the cause of his injuries, was competent as a part of the res gestae.

    3. Same.
    Evidence as to the appearance of the barn,'the curry comb, and the wounds, was admissible as tending to show whether or not the injury was produced by a horse.
    4. Same — Leading Questions.
    In the discretion of the circuit judge, leading questions may be properly put to hostile witnesses of the prosecution by the prosecutor.
    Exceptions before judgment from Bay; Collins, J.
    Submitted April 21, 1910.
    (Docket No. 138.)
    Decided July 14, 1910.
    Joseph Hennard was convicted of an assault with intent to do great bodily harm less than the crime of murder.
    Affirmed.

      Pierce & Kinnane, fo. appellant.

      John E. Bird, Attorney General, and Charles W. Hitchcock, Prosecuting Attorney, for the people.
   Stone, J.

The respondent was charged in the information with having, on the 18th day of March, 1909, in the county of Bay, made an assault upon Wilfred Hennard with intent to do him great bodily harm less than the crime of murder. The trial resulted in the conviction of the respondent of the offense charged. The case is here upon exceptions, and there are a number of assignments of error.

The principal point urged by respondent’s counsel is that the evidence did not warrant the trial court in submitting the case to the jury. It was claimed that the assault was committed in the barn of one Mrs. Walthy Tibado, who kept a general merchandise store at Fraser Center, in whose home Wilfred Hennard was living, and that the respondent was stopping there at the time of the alleged assault. The boy Wilfred was in the barn taking care of the horses between 9 and 10 o’clock of the morning in question. The father, the respondent, was there with him.

One cannot read the record without being impressed by the fact, as undoubtedly the trial court was, that the boy, Wilfred Hennard, and Mrs. Tibado, sought to shield the respondent, and that they were Very reluctant to testify against him. The case is an unusual one. The father and son were alone in the barn. The boy received a blow or blows upon the head described by the physician as follows:

“ I found one ‘cut on the right side of the forehead, just outside the eye, pretty near on the temple and just in front of the temple bone. It was more on the frontal bone. There were three other cuts on the top and back part of the head. One was on the top, and the others were back. The top one was not bad. It was really a bruise. The other was cut down to the bone so that it was necessary to put a stitch in it. After stitching the wound, stitching this one, I noticed the blood coming from the wound. He blew his nose, and I noticed that the air came from, this, so that there was, must have been, a puncture and wound of the bone at that point. * * * The finger of one hand — the nail was crushed and the finger crushed. There were some other small scratches on the head, but not of any significance.”

The boy testified: That he was rendered unconscious; that after he came to he asked his father, the respondent, what was wrong, and he was standing very nearly in the same position as when the boy went into the barn. ■

" He didn’t say nothing when I said, What is wrong ? ’
ieQ. Why did you run over to the preacher’s ?
“A. Why, I don’t know what struck me. I don’t know whether it was my father, or whether it was a horse, or what it was. I don’t know exactly what struck me, and I imagined at that time it was him struck me, but since I realize that it might have been the horse as well as my father. * * * I recall going over to the preacher’s. I ran over there, I guess. As I ran over I was hurt and bleeding. The preacher met me before I got to the house, and when I got there I sat down in a chair, and he washed my head off. Then he took me upstairs and laid me down on the couch.
“Q. Did you say anything to the preacher when you went over there ?
“A. Why, yes; I told him — he asked me what was .wrong, and I told him I thought my father struck me, and I told him my father struck me, as near as I could think at that time. I couldn’t say how it was.”

He further testified that when he gained consciousness he said: “Don’t, father. Oh!”

Mrs. Tibado testified that she heard the boy’s outcry, and started for the barn, and met the respondent coming from the barn.

“Q. What did he say to you ?
“A. I could not tell what he said to me.
ilQ. What is your best recollection of what he said ?
“A. He said something about Wilfred being hurt; but I would not attempt to swear whether — to just what he said or how he said it.”

After giving a number of evasive answers, she.testified to going to Mr. Butler’s, the minister’s, and finding Wilfred there; how the physician was called, the wounds dressed; and she remained there caring for him from Saturday, the day of the injury, until the following Thursday.

While the boy was being cared for, the respondent hitched up a horse and buggy and went away in the direction of Linwood, and sent the horse and buggy back. This was very remarkable conduct for the father of a boy who had been severely injured by the kicking of a horse, if everything was pleasant between them, as is claimed. The fact that the father and son were alone together when the boy was injured, in an unusual manner, coupled with the conduct of the father after the injury, leads the mind of an unprejudiced person to believe that these witnesses suppressed the truth when they testified that there had been no trouble, and that everything was of the pleasantest nature. Whether there was an assault, and, if so, who made it, and with what intent, were questions for the jury. The court did not err in overruling the respondent’s motion to direct a verdict of not guilty as claimed in the first assignment of error.

There was no error, as claimed, in the second and third assignments, in receiving and refusing to strike out the testimony of Wilfred as to what he said to the preacher, and what he said to respondent when he was struck. They were part of the res gestae within our repeated decisions.

The assignments of error relating to leading questions are without merit. The record shows that respondent’s counsel had stated to the court that he had advices that Mrs. Tibado and the son did not desire to urge the prosecution, and there was enough in the conduct of these witnesses to warrant the allowing of leading questions, in the discretion of the court.

There was no error permitting evidence relating to the appearance of the barn, the curry combs, and of the wounds upon Wilfred’s head. The location and appearance of the wounds were pertinent as bearing upon the question whether they had been inflicted by the horse, or not, as claimed.

The remaining assignments of error are, in our judgment, without merit. Some of them are too general for consideration.

The charge of the court is criticised; but we think that it was fair, and covered the law of the case. As we have said, the case is unusual in many respects. The respondent and his son were alone together in a barn. The son receives a blow, or some external injury, is knocked senseless, is bruised, wounded, and his skull is fractured, and he is covered with blood. The nature of the injuries is such as to render it improbable that they were inflicted by the kick of a horse, as was claimed.

The father does nothing to relievé the son, but walks unconcernedly away, and soon leaves the vicinity. The son, instead of going to the home, goes to a neighbor’s across the way, and there states that his father struck him. Because no third person saw the blows inflicted, it does not follow that all of the circumstances, taken together, may not be sufficient to warrant a jury, under the evidence, and in the exercise of their common sense, in saying that the respondent was guilty, notwithstanding the fact that the witnesses “did not desire to urge the prosecution.”

We find no error in the record, and the conviction is affirmed.

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


author: Moore, J. Ostrander, J.

text:
    PEOPLE v. BEDELL.
    1. Trial — Criminal Law — Argument.
    In a prosecution for violation of the local-option law, argument of the prosecutor that persons frequently met at the respondent’s room and made it a rendezvous, objected to by respondent’s attorney on the ground that the testimony referred to was stricken from the record, was not reversible error where it was withdrawn from the jury by the interposition of the court at the time and later in his charge.
    2. Intoxicating Liquors — Local Option — Giving Away Spirituous Liquors.
    It was not error to charge the jury, in a criminal proceeding for violation of the liquor law in a county which had adopted prohibition, that obtaining intoxicating liquor, keeping it on ice with intoxicants belonging to another in respondent’s bedroom, and permitting third persons to come and drink of it at will, constituted a violation of law. People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134), distinguished.
    Exceptions before judgment from Kalkaska; Lamb, J.
    Submitted April 22, 1910.
    (Docket No. 143.)
    Decided July 14, 1910.
    Frank Bedell was convicted of violating the local-option law.
    Affirmed.

      Gaffney & Miltner, for appellant.

      Ernest G. Smith, Prosecuting Attorney, for the people.
   Moore, J.

The information filed in this case charges that the respondent, Frank Bedell, on the 14th day of September, 1909, at the town of Boardman, in the county of Kalkaska, did give and furnish to one Judd Richardson a certain quantity of spirituous and intoxicating liquors, to wit, beer; said beer being then and there so given and furnished contrary to the local-option law in force in the county of Kalkaska. The respondent was convicted after a trial before a jury, and' brings the cáse to this court on exceptions before sentence. It is admitted that he was not a druggist nor a registered pharmacist. At the close of the testimony for the people, the court was requested to discharge the respondent for the reason that there was no evidence of any violation of the law. No evidence was offered on the part of the respondent. The court charged the jury, in substance, that if Bedell gave or furnished Richardson some of this beer in those rooms, the law was violated, and the verdict should be guilty as charged.

The errors assigned are stated by counsel in their brief as follows:

“The verdict should be reversed: First, because of the improper remarks of the prosecuting attorney; and,
“Second, Because the evidence introduced in the case does not show that the offense alleged was committed, and we further submit that the respondent should be discharged.”

As to the first of these propositions, the following occurred. The prosecuting attorney in his argument said:

“Those men met there that afternoon; that they met there often; that they made it their place of meeting; that it was their rendezvous.
“Mr. Gaffney: We object and except to that remark of the prosecuting attorney — this is not a charge of keeping a place where liquors are furnished or given away. The testimony concerning everything that took place there on the evening of the 14th of September was stricken from the record and counsel has no right to refer to it at all.
“The Court: I think you had better confine yourself to the testimony as admitted, Mr. Smith.
“Mr. Smith: I am simply mentioning, gentlemen of the jury, the statement that was made in open court at that time.
“Mr. Gaffney: We object to that remark as highly improper and we take exception to it.”

Mr. Smith, in closing his argument, said:

“And we will be satisfied, gentlemen, with your verdict, which, in this case, we believe, cannot be otherwise than a verdict of guilty.”

Not content with what was said at this time by the court, counsel for respondent asked the court to say to the jury:

“ I further charge you that there was some testimony of something occurring in respondent’s room on the evening of the 14th day of September, which was stricken , from the records, and I charge you that you must consider this testimony as never having been given. You are to give it no consideration, nor should you allow it to enter into your consideration of the case.”

This request was given. What occurred as to this feature of the case is not reversible error.

Should the trial court have directed a verdict for respondent ? Did he err in saying to the jury:

“Now, gentlemen, I charge you, as a matter of law, that if you find from the evidence in the case beyond a reasonable doubt, that the respondent, Frank Bedell, had liquor, to wit, beer, in his bedroom on the day in question, at the village of South Boardman, in the county of Kalkaska, and that he placed the can in which the beer was on ice, where it was accessible to persons who might frequent the room in question, and that, with his knowledge and consent, several men, including Mr. Richardson, came to the bedroom on the day in question, and that said Bedell knowingly allowed and permitted said Judd Richardson to partake of the liquor, to wit, beer, so procured by said Bedell and by him placed on ice in his bedroom, such a state of facts would constitute a giving and furnishing of liquor within the meaning of and in violation of the local-option law, as now in force in this county.”

It is claimed that respondent was in the exercise of an act of hospitality, and that the case is on all fours with the case of People v. Peterson, 156 Mich. 285 (120 N. W. 570, 21 L. R. A. [N. S.] 134). In this connection it is important to learn what is disclosed by the testimony: Judd Richardson, sworn for the people, testified as follows:

“ Am acquainted with Frank Bedell and is in the barber business and runs a shop in South Boardman. We were both living in South Boardman during the month of September of this year, at which time Bedell was running a barber shop on the same business street where the post office is. Was in Bedell’s barber shop September 14th last; first, about three o’clock in the afternoon. Bedell was there. Went in to set down and rest and stayed about fifteen or twenty minutes. Went back into the next room opening off the shop. He had some clothing, chairs, and one thing and another in there. Clothing hanging on the wall. Room was about 12x20 feet. Passed into the next room which led off from this one and which was his private room, in which there was a bed and some clothing. This room was about 10 feet square, in which was William Taylor and George Burdick. Be-dell went in with me. Burdick and Taylor were talking when I went in and were setting down, one on a chair and the other on the edge of the bed. Saw some liquor setting on the floor some time after I went in, in a quart •bottle, to which I helped myself and drank some and then set it back. Made no inquiries and did not learn whose liquor it was at the time. Just went in, saw the bottle, took it up and drank from it without being invited by any one. No one invited me in there in the first place. Followed Bedell in. He just opened the door and I followed him in. Never was in there before. Went in to talk with Bedell and did not know what his business was in the back room and couldn’t say that he was there when I drank the whisky. He went back in the barber shop. Drank some beer which set on the floor with the rest, to which I helped myself. Bedell was not there then; he had gone back into the shop. It was on the floor when I went in, by a can in which there was some ice. I followed Bedell into the room, where we stayed about five minutes and then went back. While Bedell was there Burdick, Taylor, and myself were just talking. I saw nobody drinking then, nor until after Bedell went out. I was there about one hour and took three or four drinks from one beer bottle. Bedell passed through at different times. Did not see him drink, nor was there anything said about it, nor did he say anything about drinking to me. Think he was working in the shop and occasionally came back where we were. Did not know there was any liquor before I went in and did not know where the liquor or beer came from, and did not find out. Testified before the justice of the peace in my cross-examination that George Burdick brought the liquor there, which was what I heard after I left the barber shop. Did not hear it at the time. I left the room first. While there I think Ben Allen and Ernest Murphy came in. They stated no business and came in to visit with the rest of us, and I think drank while there. They drank out of the bottles of beer on the floor, which was all that I saw. Think we all left about four o’clock, together.”

Upon the cross-examination witness testified as follows:

“ The defendant’s shop is the front end of the building at the north side of the street and faces west. It is partitioned off so that it can be entered from the barber shop through which you go back into a couple of rooms that he keeps for a bedroom. The shop door faces the east; to come in and set down and visit, which is customary, and on this day we went into the back room with Bedell and found Taylor and Burdick there, one setting on the bed and the other on a chair, and after being there a few minutes, noticed that there was a bottle of whisky on the floor. Took it up and took a drink out of it and placed it back upon the floor. Do not know whether Bedell was there at that time or not. Did not see him drink any whisky and said nothing to me about drinking liquor, nor called my attention to the liquor, nor said anything to anybody about drinking liquor in there. We were there about one hour, during which Bedell passed in and out through the room out of the back door three or four times.”

Upon redirect examination witness testified as follows:

“When I went in, did not know that Taylor or Bur-dick were there, nor that there was any liquor there. Just went in to talk with Bedell and stayed with the rest-of the boys. There were some clothes, overcoat, bed, and some other barber fixtures there. Saw no sweepings nor any great amount of empty bottles piled up. I seen some bottles in the room, but cannot say how many. Did not notice any barrels.”

There was much other testimony of a like character. As before stated, no testimony was offered on the part of respondent. A reference to the case of People v. Peter son, supra, will show it easily distinguishable from the case at bar. In the case of People v. Giddings, 159 Mich. 523 (124 N. W. 546), it was claimed that one Foster saw a small bottle of whisky on a table belonging to respondent, from which he poured a small quantity of whisky into a cup into which respondent poured some hot water, after which the witness drank the mixture. In disposing of the case Justice McAlvay, speaking for the court, said:

“ In view of a new trial which must be had, some other questions must be passed upon. One contention of respondent was that if liquor was furnished Foster by Giddings, it .was furnished to a guest and not unlawfully. There is nothing in the case which would warrant the court in giving a request to charge embodying that contention. This case is clearly distinguishable from the cases of this court relied upon by respondent. The court was not in error in refusing such request to charge.”

In the case of People v. Myers, 161 Mich. 40 (125 N. W. 701), where the respondent, who was a clerk in a hotel in a local-option county, had gratuitously, and for social purposes, furnished some dining room girls with beer in their rooms, it was held he had violated the law. In disposing of the case, Justice Blair, speaking for the court, said:

“ The Michigan act under consideration includes within its title a prohibition of the giving away of intoxicating liquors in local-option counties; the first section makes it unlawful for any person to give away such liquors, and the act has been repeatedly held constitutional in every respect. The general liquor law deals with the regulation of a legitimate business. The local-option law was intended, in my opinion, not only to wipe the business out of existence in the county, but to prevent the inhabitants of the county from obtaining liquor within the county. For the latter purpose, the act prohibits any person from giving away intoxicating liquor, and thereby heads off the numerous subterfuges which would interfere with the enforcement of the law. We have held that the statute was not intended to prohibit the individual use of intoxicating liquors, nor to invade the privacy of the home and interfere with the owner’s decent exercise of hospitality towards his guests, but we do not think the terms of the act warrant a further limitation of its operation.”

The facts disclosed by the record before us do not show a case of the exercise of a justifiable act of hospitality, but, on the contrary, show the conducting of what is vulgarly known as a “blind pig.” If what was done by the respondent was not a violation of the law, then it permits what the legislature never intended — a method by which a substitute for the saloon may be found, while exempt from the payment of taxes and without the regulations and restrictions which experience has shown to be necessary if intoxicating liquors are to be sold.

The exceptions are overruled, and the case is remanded for further proceedings according to law.

Hooker, Blair, and Stone, JJ., concurred.

Ostrander, J.

(concurring). The testimony, undisputed, discloses that on September 14, 1909, some one at respondent’s request purchased for him in another village, nine pint bottles of beer. The same person purchased for himself two bottles of whisky, and, upon his return to the village of Boardman, took the liquor to respondent’s sleeping room, arriving about noon. Respondent is a single man, boarding at a restaurant, and occupying rooms in the rear of his barber sho,p, where he sleeps and keeps his personal belongings. The beer was placed on ice, the whisky was in evidence, and in the afternoon there were gathered there a number of men who were drinking the liquor.

Under the circumstances disclosed by the testimony, the trial court was right in refusing to direct a verdict for respondent, and the conviction may be sustained. But I think it proper to say that in my opinion the rooms occupied by an unmarried man may be considered to be his home, in which, in a proper manner, he may be host to a friend or to friends. If the testimony were less conclusive in establishing the fact that this respondent, on this occasion, was permitting others to use his rooms for the purpose of drinking, not only his beer, but the whisky of another, I should regard the charge as faulty in not presenting to the jury the question whether the respondent was acting in good faith and exercising a decent hospitality. Former decisions of this court, which are referred to in the opinion of Mr. Justice Moore, recognize the distinction here pointed out.


author: Brooke, J.

text:
    MOORE v. YOUNG.
    1. Deeds — Reservation—Loos and Logging.
    A conveyance reserving to grantor’s wife the timber “now on” a portion of land, “with privilege to remove the same at any time,” did not reserve to her underbrush which grew upon the property after she had removed all the timber.
    2. Same — Construction.
    Any doubt existing as to what construction should be given the language used in the deed should be construed most strongly against the grantor.
    Appeal from Newaygo; Palmer, J.
    Submitted June 7, 1910.
    (Docket No. 20.)
    Decided July 14, 1910.
    Bill by Joseph H. Moore against Charles S. Young and Mary L. Young to enjoin the removal of certain timber. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      J. Claude Youdan, for complainant.

      John G. Anderson, for defendants.

      Complainant is the son, and defendant Mary L. Toung the daughter, of John Moore, who on October 15, 1887, was the owner of two farms, one in Montcalm county, and one in Newaygo county, separated only by a highway. On that day John Moore executed two deeds; one of the homestead farm in Montcalm county to his wife, Parizade Moore, and the other of the farm in Newaygo county to his three daughters; The latter deed contained the following reservation:
    “ Reserving therefrom the timber now on ten acres off the south end o£ said land to Parizade Moore, for a period of thirty years with privilege to remove the same at any time.”
    Complainant now owns the interest of his mother in the home farm and likewise any interest she may now have in the timber on the south 10 acres of the farm deeded to the daughters, growing out of the reservation in the deed above quoted. Defendants have acquired all the title to the Newaygo farm, conveyed by John Moore to his three daughters. During the years 1888, 1889, and 1890, Parizade Moore sold and removed from said 10 acres all the timber then growing thereon, first the large timber, then the smaller trees suitable for railway ties, and finally all the other timber except brush and undergrowth. During the 30 years which have elapsed since said land was denuded of the timber, the brush and undergrowth have grown, in places, into saplings. Lately defendants started to clear said 10 acres by cutting and removing the undergrowth and saplings, whereupon complainant filed his bill of complaint, praying for an injunction restraining defendants from cutting or carrying away any timber of any and every nature off of or from said land. Prom a decree dismissing the bill, complainant appeals.
   Brooke, J.

(after stating the facts). It is the contention of the complainant that the language of the reservation, construed in the light of the circumstances surrounding the parties at the time the deed was executed, should be held to mean that Parizade Moore took title, not alone to the timber then growing upon said 10 acres (all of which, it is conceded, she removed), but also to all timber that should grow thereon for a period of 30 years. It is pointed out that the homestead was without timber, and that it was doubtless intended by John Moore to provide that necessity for his wife for a period of 30 years. We find no difficulty in agreeing with complainant that this was probably John Moore’s motive in making the reservation; but, instead of using said timber as it was no doubt intended she should do, she chose, as she had a right, to go on and at once cut off everything except underbrush. The language of the reservation is clear and unequivocal, and refers in set terms to “the timber now on ten acres,” etc. It is conceded that all timber on the land, at the time the reservation was made, has been removed. The 30 years mentioned in the reservation refers distinctly to the period within which “ the same” — that is, the timber reserved — may be removed. If any doubt remained as to what construction should be given the language used — and there is none — still it should be construed most strongly against the grantor. Bolio v. Marvin, 130 Mich. 83 (89 N. W. 563).

Inasmuch as everything standing upon the land was cut except underbrush, it is unnecessary to again define what is meant by the word “ timber.” That was done by this court in the case of Huron Land Co. v. Davison, 131 Mich. 87 (90 N. W. 1034), and again in the recent case of Balderson v. Seeley, 160 Mich. 186 (135 N. W. 37).

The bill of complaint was properly dismissed, and the decree is affirmed, with costs to defendants.

Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    DAVIS v. DETROIT UNITED RAILWAY.
    1. Dismissal and Nonsuit — Trial—Right to Submit to Voluntary Nonsuit.
    A plaintiff is entitled to submit to a voluntary nonsuit at any time before the jury retires from the box to deliberate upon their verdict.
    3. Same — New Trial — Waiver.
    After a refusal to permit the plaintiff to submit to nonsuit, and on motion for a new trial, the amendment, at plaintiff’s request, of a conditional order granting the right to nonsuit, on payment of costs within a specified time, waives the objection that the plaintiff was technically entitled to a new trial.
    3. Street Railroads — Negligence—Contributory Negligence.
    Crossing a street car track when plaintiff’s view was obscured by a gust of wind and sleet, so that she could not see whether or not a car was approaching from one direction, is negligence contributing to an injury caused by a oar coming from that direction.
    Error to Wayne; Donovan, J.
    Submitted June 7, 1910.
    (Docket No. 21.)
    Decided July 14, 1910.
    Case by Roseltha J. Davis against the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Philip A. McHugh and William Henry Gallagher, for appellant.

      Corliss, Leete & Joslyn, for appellee.
   Blair, J.

This is an action on the case brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligent operation of defendant’s street car at a street crossing. After the court had announced his opinion, at the close of the proofs, that plaintiff could not recover, and had begun to instruct the jury to that effect, plaintiff asked leave to submit to a nonsuit. This request was refused and a verdict directed. Afterwards counsel for plaintiff made a motion for a new trial, on the grounds that the court erred in refusing to grant a nonsuit and in directing a verdict. Upon the argument of the motion, defendant’s counsel asked that the verdict be set aside and the motion for a nonsuit granted. Plaintiff’s counsel objected to such order being entered. Thereupon the following action was taken:

The Court: You may take this down. In order to grant a new trial this court would have to set aside the verdict in view of the doubt raised by the two cases cited. An order will be entered setting aside the verdict and en'■tering a verdict of nonsuit, provided the costs are paid within 10 days; otherwise the same verdict will stand.
“And thereafter counsel for plaintiff appeared and asked that the order be amended so as to provide that the costs be paid within 30 days, which amendment was granted, and subsequently on the 3d day of November, the following order was entered: * * *
“Upon hearing of the motion for a new trial on the part of the plaintiff in this cause, and upon consideration thereof and argument of counsel thereon, it is ordered that the said motion for new trial be denied, provided, however, that the said plaintiff shall have the right upon payment within 10 days from this date of the taxed costs of the defendant herein to enter judgment of nonsuit in this court; and
“ It is further ordered that upon default of the payment of said taxed costs within the time mentioned, and upon failure to enter judgment of nonsuit as above provided, there shall thereupon be entered judgment upon verdict of the jury heretofore rendered in favor of the defendant of no cause of action.”

The plaintiff was entitled to submit to a nonsuit at any time before the jury had gone from the jury box to deliberate upon their verdict. Cir. Ct. Rules 37 a, 34 d; Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126). However, the court having granted the right to a nonsuit, even if plaintiff was technically entitled to an order granting a new trial, she waived her right to object to the order by procuring its amendment extending the time for 30 days.

We are satisfied that plaintiff was not entitled to recover upon this record, and that the court properly directed a verdict, so far as the evidence was concerned. The accident happened in daylight on a stormy day with snow, sleet, and rain at intervals. Plaintiff was holding her umbrella close to her to protect herself from the sleet and towards the west. As plaintiff, going north on Farrar street, stepped off the curb onto Grratiot avenue, a car passed going east.

“When she stopped within a few feet of the track, she looked out from behind her umbrella westward to see if another car were coming. The sleet struck her in the eyes, interfering with her sight; but she thought she could see well enough to make sure there was no car coming. Observing none, and hearing no warning from any, she started on to cross the first pair of tracks, turning to look eastward for a west-bound car that might be coming upon the second pair of tracks. She had taken more than two steps, and was just upon the first track, when she saw the fender of an east-bound car in front of her. She tried to dodge back, but before she could do so was struck by the corner of the vestibule and thrown to the pavement.”

Plaintiff testified:

“Q. Now, after you looked and had the sleet in your eyes, you advanced a step and was struck by the car ?
“A. No, sir; I had looked a ways before I got to the track, and then started to go across, or I started on, I could not see, I did not see no car, I started on.
“Q. The reason you could not see was because you had this sudden gust and sleet ?
‘‘A. Yes, sir.
“Q. That is the reason you could not see ?
“A. Yes, sir. * * *
“Q. You gave up a car coming from the west when you were farther back ? ,
“A. I was looking; I could not see towards the west.
“Q. You could not see because your eyes were blinded ?
“A. Yes, sir.
“Q. Farther back?
"A. Yes, sir.
CiQ. You could not see because your eyes were blinded ?
“A. Yes, sir. I started on. I had given up the other car.”

If plaintiff could not see because of the sudden gust blowing the sleet in her eyes, she should have awaited the cessation of the gust, and it was negligence on her part to proceed to cross, relying upon such a view.

The judgment is affirmed.

Bird, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.


text:
    A. M. CAMPAU REALTY CO. v. CITY OF DETROIT.
    1. Boundaries — Lands Under Water — Riparian Rights.
    The boundary line between two adjoining riparian owners, as to the land covered by water, is not in any way dependent upon the direction of the lines on land, but the lines from the shore should run, as near as may be, perpendicular to the course of the stream.
    2. Appeal and Error — Prejudicial Error.
    On appeal from a decree which gave to appellant more than it was entitled to, no complaint may be made of the error.
    Appeal from Wayne; Murfin, J.
    Submitted June 7, 1910.
    (Docket No. 11.)
    Decided July 14, 1910.
    Bill by the A. M. Campau Realty Company against the city of Detroit and others to quiet title to certain land. From a decree for complainant, defendants appeal.
    Affirmed.

      William F. McCorlele (Beaumont, Smith & Harris, of counsel), for complainant.

      Richard I. Lawson (P. J. M. Hally, of counsel), for defendants.
   Stone, J.

The bill of complaint in this cause was filed to quiet complainant’s alleged title to a triangular parcel of land and dock frontage in the city of Detroit, on the Detroit river; also to remove a cloud arising from defendants’ claim of title thereto; also to permanently enjoin defendants from interfering with complainant’s possession of the disputed land, and from removing complainant’s buildings now standing thereon. The answer denies all material averments of the bill. It insists that the title to the disputed parcel is in the city, and that complainant is in wrongful possession thereof. Upon the hearing on pleadings and proofs a decree was entered for the complainant in accordance with the prayer of the bill,, and the defendants have appealed.

In this court the complainant contended that the decree of the circuit court should stand for either of two reasons:

(а) The west line of the disputed triangle is the correct westerly line of that portion of complainant’s lot 193.

(б) Or if this is not so, then complainant has acquired title to the disputed triangle by adverse possession.

It appears that the complainant is the owner of a parcel of land fronting on the Detroit river, bounded on the east by Randolph street, on the north by a public alley, and on the west by property belonging to the city of Detroit, and used by it for a public lighting plant. Complainant’s property is described as lots 193 and 27 (the latter north of the former) of section 4, of Governor and Judges’ plan of Detroit. This property is almost entirely covered by brick and sheet-iron buildings, which have been standing for many years. Upon the entire river front complainant and its predecessors in title have maintained a private dock, extending out into the river, with the same western boundary lines, for about 40 years.

The defendant city owns the property lying west of complainant’s property. It comprises lots 192 and 170 (the latter north of the former ) of said section 4, Governor and Judges’ plan. It also has a dock along the front of its land.

The parcel in dispute is a triangle which was originally wholly under water. It has its apex at a point where the lot line, on land, between lots 192 and 193, intersects the old shore or water line. The easterly line of this triangle is this lot line extended out into the river to the thread of the stream. The westerly line of the disputed triangle is a line, extending from the apex of this triangle on the old shore line, and running out into the river to, and at right angles with, the thread of the stream. The westerly line of complainant’s dock, and of a sheet iron shed standing on the dock, is identical with the westerly line of the disputed triangle.

The location of the disputed parcel can be seen from the following sketch, the lines A C and B C indicating the west and east lines of the triangle. C E D is a part of complainant’s dock, and is included in the disputed triangle CAB.

It is well settled in this State that the boundary line between two adjoining riparian owners, as to the land covered by water, is not in any way dependent upon the direction of the lines on land, but that the lines from the shore should run, as near as may be, perpendicular to the course of the stream. Clark v. Campau, 19 Mich. 325; Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); Rice v. Ruddiman, 10 Mich. 125; Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182; Maxwell v. Bay City Bridge Co., 41 Mich. 453, 466 (2 N. W. 639); Backus v. City of Detroit, 49 Mich. 110-114 (13 N. W. 380, 43 Am. Rep. 447); Webber v. Pere Marquette Boom Co., 62 Mich. 626-636 (30 N. W. 469); Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227 (60 N. W. 681, 25 L. R. A. 815, 47 Am. St. Rep. 516); Pittsburgh, etc., Iron Co. v. Lake Superior Iron Co., 118 Mich. 109-135 (76 N. W. 395).

We do not understand that defendants’ counsel disputes the above proposition, or its application to this case. We quote from his brief wherein he says:

“We are entirely satisfied, and agree with counsel for complainant, that the boundary line between adjoining riparian owners, as to the land covered by water, is not in any way dependent upon the direction of the lines on

land, but that the line from the shore should be run, as near as may be, perpendicularly to the course of the stream. Clark v. Campau, 19 Mich. 338. But the decree entered in the lower court in this case does not follow that rule of law, as a glance at the decree will disclose. At the bottom of page 6 of complainant’s brief it is said:
“‘The west line of the disputed triangle is a line running approximately at right angles to the thread of the stream.’
“ Why not run the line exactly at right angles with the thread of the stream, and have the decree so declare, if it is to stand ? No reason is given for the departure from the rule.”

Complainant answers this criticism of the decree by stating that if the west line of the disputed parcel ran exactly at right angles to the thread of the stream, it would be placed’still farther west than it is, and the undisputed evidence in the record supports this position. The witness George Jerome testified:

“ The westerly line of the property in dispute, the dock property, we projected to the harbor line to make nearly a right angle. It would be less than a right angle. In other words, if the line made is a right angle, it would have to be carried a little bit further west.”

Appellants would seem to have no reason to complain because of the line fixed by the decree.

Being of the opinion that the case is ruled by application, as between adjoining riparian owners, of the doctrine above stated, we do not consider the question of adverse possession.

The decree of the circuit court is affirmed, with costs.

Bird, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


author: Ostrander, J. Ostrander, J.

text:
    KAISER v. WAYNE CIRCUIT JUDGE.
    1. Exceptions, Bill of — Extending Time to Settle.
    After the denial of a motion for a new trial the moving party has twenty days in which to settle a bill of exceptions, and if more than eighty days have elapsed since the entry of judgment, the time may be extended on motion made and cause shown, so as to grant a reasonable time to settle the same* Cir. Ct. Rule 47; 3 Comp. Laws, § 10504.

      2. Same — Mandamus.
    Mandamus will issue to vacate an order made without a showing of cause, eighty-four days after judgment and twenty-two days after denial of a motion for a new trial, extending the time sixty days in which to settle a bill of exceptions.
    3. Appeal and Error — Time to Issue Writ.
    Neither 3 Comp. Laws, § 10504, nor the court nor any order of the court made pursuant thereto, may operate to extend the time limited by statute in which to take out a writ of error.
    Mandamus by Christopher E. Kaiser to compel George S. Hosmer, circuit judge of Wayne county, to vacate an order extending time to settle a bill of exceptions.
    Submitted July 1, 1910.
    (Calendar No. 24,086.)
    Writ granted July, 14, 1910.
    Rehearing denied October 10, 1910.

      Robert M. Dalton and William M. Mertz, for relator.
    Brennan, Donnelly & Van De Mark, for respondent.
   Ostrander, J.

The action is trespass on the case. A verdict for the plaintiff was rendered October 12, 1909. On October 15, 1909, an order was made staying proceedings for 20 days, extending the time to move for a new trial 30 days, and the time to settle a bill of exceptions 60 days. November 5, 1909, judgment was entered on the verdict. Orders succeeded each other thereafter as follows : November 19, 1909, time to move for a new trial extended 20 days more; January 6, 1910, motion for a new trial denied; January 28, 1910, time to settle bill of exceptions extended 60 days; April 2, 1910, motion to set aside the order of January 28th denied; April ?, 1910, bill of exceptions settled as of April 2, 1910; April 9, 1910, motion to set aside order settling bill of exceptions denied. The order of January 28, 1910, was made without cause being shown and without notice. The question presented by the petition is whether that order should be vacated.

We held in Harper v. Wayne Circuit Judge, 155 Mich. 543 (119 N. W. 913), that the provisions of the statute regarding the settlement of a bill of exceptions were to be construed in connection with the rule of the court (Cir. Ct. Rule 47) and with 3 Comp. Laws, § 10504, and that by construction appellant had a reasonable time after the denial of a motion for a new trial in which to'settle a bill of exceptions, and had 20 days after such denial as matter of right. In that case an application for an extension of time was made within 20 days, was denied, and a writ of mandamus was issued to compel the entry of an order giving the appellant a reasonable time in which to settle the bill of exceptions.

In the case at bar, the order of October 15, 1909, allowing a 60-day extension of time in which to settle a bill of exceptions, expired January 3, 1910, if we reckon from the date of entry of the order. Reckoning from November 5th, the day when judgment was entered, the 60 days expired January 4, 1910, and the date when the further order extending time in which to settle bill of exceptions was entered was 84 days after judgment, and 22 days after the motion for a new trial was denied.

Following Harper v. Wayne Circuit Judge, supra, we hold, upon the facts stated, that appellant had a right to settle a bill of exceptions at any time within 20 days after the denial of the motion for a new trial, and that within that time the court below had jurisdiction, upon motion and upon cause shown, to extend reasonably the time to settle a bill of exceptions. The court had no jurisdiction within said 20 days to extend the time to settle a bill of exceptions, except upon notice and for cause. It had no jurisdiction after the expiration of said 20 days, and after the expiration of 80 days from entry of judgment, to extend the time to settle a bill of exceptions for .cause.

The rule of practice is this: A party has 20 days after judgment, as matter of right, in which to settle a bill of exceptions. The court may extend this time for 60 days. The court may make no other or further extension of time for settling a bill of exceptions in any case, except upon notice and cause shown. A party has 20 days after denial of motion for a new trial in which to settle a bill of exceptions; the motion for a new trial having been seasonably made and brought on for hearing in a reasonable time. Within said 20 days the court may, upon notice- and for cause, grant a reasonable extension of the time. Neither the statute nor the rule, nor any order of the-court made pursuant thereto, may operate to extend the-time limited by the statute in which to take out a writ of error.

The order of January 28, 1910, should be vacated, as-well as the order settling the bill of exceptions. Relator will recover costs of this motion of the Detroit United. Railway.

Writ granted.

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

ON MOTION EOR REHEARING.

Ostrander, J.

A rehearing is denied, for the reason that the order of the court below extending the time in. which to settle a bill of exceptions was properly set aside. But in so far as the opinion limits the right of the court to at any time entertain a motion, supported by affidavits, after due notice to opposing counsel, to extend the time for settling exceptions, we think it should be modified. We are impressed that, in view of some former decisions of the court, a rule upon this subject should be announced only in the form of a rule to take effect in the future.

The opinion, therefore, will be considered as deciding only the precise question presented by relator’s motion.

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


text:
    KIRKPATRICK v. PHILLIPS.
    1. Intoxicating Liquors — Bonds—Statutes.
    The bond of a liquor dealer and his sureties running to the city of Kalamazoo, instead of to the people of the State of Michigan, as provided by 2 Comp. Laws, § 5386, omitting the recitals and covenants prescribed by the statute, and containing a differently phrased condition, is not a substantial compliance with the law.
    2. Same.
    It is the duty of a liquor dealer to see that a proper bond is given, and the same is a condition precedent to his conducting the business and avoiding criminal responsibility.
    3. Same — Civil-Damage Act — Irregular Bond — Liability by Estoppel.
    In an action on such irregularly executed bond, which contains a proviso that the principal shall conduct his saloon in conformity to the laws of the State, the defendants are es-topped, by acting on it and conducting the business, to deny their liability under its terms.
    Error to Kalamazoo; Knappen, J.
    Submitted June 7, 1910.
    (Docket No. 7.)
    Decided July 14, 1910.
    Case by Anna L. Kirkpatrick against George Phillips, principal, and Edwin Jaseph and John H. Burke, sureties, under the civil-damage act. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Barnard & Lewis and Earl L. Burhans, for appellant.

      Alfred J. Mills and E. M. Irish,, for appellees.
   Blair, J.

This is an action under the civil-damage law in which the plaintiff seeks to recover for loss of support, mental suffering, etc., growing out of the death of her husband in a runaway, which resulted from illegal sales of liquor made by the defendant Phillips. On the trial of the cause the plaintiff offered in evidence the bond given by the defendant George Phillips and his sureties, which said bond had been duly approved by the city council of Kalamazoo and filed with the county treasurer. The court held the bond irregular and' defective and directed a verdict, in favor of all the defendants, of no cause of action. Plaintiff contends that the judgment for the defendants rendered by the circuit court should be reversed, for the following reasons:

(1) The bond is a good statutory bond, and substantially conforms with the form of bond indicated in 2 Comp. Laws, § 5386.

(2) If not good as a statutory bond, it is enforceable as a common-law obligation, and plaintiff should have been allowed to go to the jury under the second count of the declaration.

(3) Because, as a matter of law, the parties defendant were estopped from raising the question of the validity of the bond.

(4) Because the court erred in directing a verdict in favor of all the defendants, i. e., in favor of both the principal and his sureties.

The bond in question is as follows:

“Know all men by these presents that we, George Phillips, as principal, and Edwin Jaseph and John H. Burke, as sureties, are held and firmly bound unto the city of Kalamazoo, a municipal corporation, in the sum of four thousand ($4,000) dollars lawful money of the United States of America to be paid to the said city of Kalamazoo or to its certain attorneys, heirs, executors, administrators or assigns and to which payment well and truly to be made we bind ourselves, heirs, executors and administrators and each and every of them firmly by these presents.
“Sealed with our seal, dated the 24th day of September, one thousand nine hundred eight.
“The condition of this obligation is such that whereas the said George Phillips desires to engage in the saloon business in the city of Kalamazoo, Mich., at 106 East Water street, in said city, now therefore if the said principal, George Phillips, shall conduct the said saloon in conformity with the laws of the State of Michigan, and the ordinances of the city of Kalamazoo relating to saloons, and save harmless the said city of Kalamazoo from all loss or damage in connection or growing out of the suing of said saloon at the place above mentioned, then this obligation is to be void; otherwise to remain in-full force.”

In connection with the bond, plaintiff made the following offer of proof:

“We offer, if the court please, to show that under this bond the principal, George Phillips, conducted this saloon and gave this bond for the purpose of conducting á saloon; that the bond was drawn by the city attorney of the city of Kalamazoo for that purpose; and that the two sureties knew that he was operating this saloon and selling liquor and signed and executed the bond for the purpose of enabling him to sell liquor as a saloon keeper under the general laws of this State.” '

A mere comparison of the bond with the form prescribed by the statute (2 Comp. Laws, § 5386) is sufficient to disclose that the bond in suit is not substantially in the statutory form. The bond was, however, intended to be the bond required by statute by the principal and sureties. It was the duty of the principal to see that a proper bond was furnished. Wolcott v. Judge of Superior Court, 112 Mich. 311 (70 N. W. 831).

The giving of the statutory bond was the condition precedent to the principal’s conducting the saloon business and avoiding criminal responsibility, as he and his sureties understood. They agree in their bond that the principal shall conduct the saloon in conformity to the laws of the State of Michigan relating to saloons, including the provisions of section 5386. By reason of this bond, Phillips was permitted to carry on the business and to accomplish the injury to plaintiff of which she complains, and we think that, under such circumstances, they should be held estopped to question the validity of the bond as a statutory bond. Brockway v. Petted, 79 Mich. 620 (45 N. W. 61, 7 L. R. A. 740); Schullherr v. State, 68 Miss. 227 (8 South. 328); Lyman v. Brucker, 56 N. Y. Supp. 767.

The judgment is reversed, and a new trial granted.

Bird, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.


author: Bird, C. J.

text:
    BENNETT v. MAURICE.
    1. Pleading — Bill oe Particulars — Variance.
    In an action for money loaned to defendant, a variance of a few days between the dates named in the bill of particulars and the dates shown by plaintiff's testimony,' was not fatal to plaintiff’s claim, where no objection was made to the admissibility of the evidence, and no opportunity given to amend the bill of particulars, and where no claim was made that defendant’s attorney was surprised or misled.
    2. Damages — Trial —Amount oe Verdict — Instructions to Jury.
    It was not error for the court to instruct the jury that if the plaintiff, by a preponderance of the evidence, had convinced them of the truth of his claim that he had loaned defendant at one time §2,000 and at another §8,500, and that he had subsequently agreed to accept a room in defendant’s house during his life and §7,000 in full satisfaction, then he was entitled to recover the §7,000 and interest, and such instruction did not amount to the direction of a verdict.
    Error to Wayne; Murphy, J.
    Submitted June 7,1910.
    (Docket No. 23.)
    Decided July 14, 1910.
    Assumpsit by Charles D. Bennett, executor of the last will and testament of Alvin S. Clark, deceased, against Grace Mary Maurice upon an account stated. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Charles Flowers, for appellant.

      Harry M. Lau and George M. Sayles, for appellee.
   Bird, C. J.

Plaintiff brought suit against the defendant in the Wayne circuit court and declared upon all the common counts in assumpsit, and filed a bill of particulars of his claim in compliance with defendant’s demand, the items of which were as follows:

“September 21, 1903, to cash loaned to defendant, $2,000.
“ January 6, 1906, to cash loaned to defendant, $8,500.”

It was the claim of plaintiff that he had loaned these amounts to defendant to enable her to purchase certain real estate in the city of Detroit. The real estate was purchased by her upon a contract, and the $2,000 loaned in 1903 was to enable her to make the first payment thereon, and the $8,500, loaned on January 6, 1906, was to enable her to make the final payment on the contract and get her deed. The deed was made January 9, 1906, and placed of record the following day. The defendant was desirous of obtaining a loan to make certain repairs and improvements upon the property, and the plaintiff gave this as a reason why he took no security for the loan. He also gave as a reason that he was well acquainted with her and had confidence in her honesty. The investment did not turn out as well as expected, and there was talk between them of making a sale of it. The plaintiff at that time agreed to accept $7,000 and the use of a room in defendant’s house for the rest of his life in payment- of the loan. The defendant denied that she owed plaintiff these sums or any sum, and denied that she ever borrowed any money from the plaintiff, save in some small amounts to pay her current expenses. The jury returned a verdict for plaintiff for $7,525.

The defendant’s counsel assigns error upon the refusal of the court to instruct the jury in accordance with following request:

That they would have to find that the moneys were loaned at the times specified in the bill of particulars, as testified to by plaintiff.”

The court refused to give this request and we think properly so. To say that, because plaintiff’s testimony disclosed a variance of a few days from the date named in the bill of particulars, he should fail in this action, would be laying down a rule stricter than the law demands. In 1 Green’s New Practice (2d Ed.), p. 512. It is said:

“ But as the object of this strictness in a bill of particulars is that the defendant may know what will be attempted to be proved against him at the trial and may prepare his evidence accordingly, a mistake in a particular not calculated to deceive or mislead him will not be regarded as material.”

In Sogge v. Schwartz, 116 Mich. 635 (74 N. W. 1000), an error was made in both the date and amount named in the bill of particulars, but this court held that, inasmuch as the defendant was neither surprised nor misled, the variance should be disregarded. If there were any variance in point of time between the dates named in the bill of particulars and plaintiff’s testimony, counsel for defendant should have objected to its admission when offered or subsequently moved to strike it out, at which time plaintiff’s counsel could have applied for, and secured, an amendment, if the variance was regarded material by the court. This not having been done and there being no claim upon the part’ of defendant’s counsel that he was surprised or misled on account of the variance, we think the court was not in error in refusing to give the request.

Error is also assigned upon that part of the charge wherein the court instructed the jury that—

“If the plaintiff, by a preponderance of the evidence, has convinced you of the truth of his claim, then he is entitled to a verdict at your hands in the sum of $7,000, plus interest at the rate of 5 per cent, per annum, which is stipulated here to be the sum of $525.”

Counsel contends that this instruction was “in effect a direction of a verdict; that if they found for plaintiff it left nothing for them to decide.” In other words, if the jury found that the plaintiff was entitled to recover, the amount of the verdict was foreclosed by the court. We do not so view it. It was the claim of plaintiff that he had loaned the defendant the two sums of moneyj and that subsequently he had agreed to accept $7,000 in payment of them. The court left it to the jury to say whether this claim was established by a preponderance of the evidence. If it was, it would necessarily follow that the plaintiff would be entitled to a verdict of $7,000, plus the interest. The jury could not well be convinced of the truth of plaintiff’s claim and then award him less than $7,000, plus the interest, because that was his claim. If the jury believed the truth of his claim, there would be no basis upon which they could render any other verdict.

The issues were all issues ■ of fact, and we think they were fully and fairly submitted to the jury.

The judgment is affirmed.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.