text:
    MOILANEN v. WASHINGTON IRON CO.
    1. Pleading — Variance—Appeal and Error.
    In the absence of a motion for a directed verdict or any objection to the evidence, on the ground that there was a variance between the declaration and proofs, the point will not be considered on writ of error.
    2. Same — Inspection—Trial—Instructions to Jury — Mines and Mining.
    Where defendant, in an action for personal injuries, sustained in its mine by the falling of rock, claimed that the premises had been adequately inspected two weeks before the fall, but the testimony showed that blasting was done every day in the mine and it had a tendency to loosen the rock, the court properly refused to charge, as requested by defendant’s attorneys, that if the place was inspected at the time and in the manner customary in mines of the kind defendant conducted, and such inspection failed to disclose the loose condition of the rock, plaintiff could not recover.
    3. Appeal and Error — Weight oe Evidence — Verdict.
    A verdict will not be set aside on error if the contention of the prevailing party was supported by affirmative testimony which, if the jury believed it, would sustain the finding.

      4. Damages — Excessive Verdict.
    Five thousand dollars damages for loss of two fingers and injuries partially disabling the others, held, too large, and reduced to three thousand dollars.
    Error to Marquette; Flannigan, J.
    Submitted January 23, 1913.
    (Docket No. 43.)
    Decided July 18, 1913.
    Rehearing denied November 3, 1913.
    Case by Aaro Moilanen against the Washington Iron Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.

      C. F. Button (E. A. Macdonald, of counsel), for appellant.

      O’Brien & Le Gendre (George O. Driscoll, of counsel), for appellee.
   Moore, J.

The plaintiff was injured while in the employ of the defendant in its mine. He sued, and recovered a judgment for $5,000. The case is brought here by writ of error.

The mine consisted of a single shaft, going down in the ore vein following the dip of the vein, which was at an angle of about 55 degrees. The vein extended north from the shaft, and consisted of a body of ore about 30 feet wide, lying between two well-defined walls, the upper of which was called the hanging, and the lower the foot, wall. Several levels had been driven along the vein from the shaft, overlying each other about 50 feet. The 650-foot level was sometimes called the eighth level. The 700-foot level is 50 feet below the eighth level, and is sometimes called the fourteenth level. Originally these levels were practically tunnels about 7 feet high and 10 or more feet wide. The plan of taking out ore between the eighth and fourteenth levels was to commence on the fourteenth level and excavate a hole, called a “raise,” about 10 feet square up through the ore and into the eighth level above; then to drive horizontal drifts north and south along the vein out of the sides of the raise; the ore removed from the drifts was sent to the level below, where it was conveyed to the main shaft for hoisting.

Some time prior to the accident the ore lying between the eighth level and the level above had been extracted, leaving a room, or “stope” so called, extending along the vein about 60 feet and about 30 feet wide, and because of the slope or dip of the walls, from 30 feet high in the lowest part to 50 feet in the highest part. Some time prior to the accident the defendant commenced removing the ore between the eighth and the fourteenth levels, and one of the questions of fact is how far this had progressed at the time of the accident. It was the claim of the plaintiff that an opening nearly if not quite 50 feet long had been made between the two levels by taking out the ore, while defendant claims that a raise only about 10 feet square had been opened between them.

The accident was the result of a fall of rock weighing about three tons, from the roof of the room on the eighth level, to the floor of the eighth level, where it broke into two or more pieces, one of which found its way to the fourteenth level, where plaintiff was working, and injured him. It was the claim of plaintiff that there was a failure to inspect the roof of this stope or room, as should have been done. This was denied by the defendant. The testimony upon every phase of the case was as conflicting as it could well be. There was no request for a directed verdict at the close of the testimony.

The record contains three and only three requests to charge on the part of the defendant. They are as follows:

“(1) If you find that the place from which this rock fell was inspected by the employees of the defendant company, in the manner and at the times usual and customary in mines of that character, and that said inspections failed to disclose this rock as loose, then your verdict should be for the defendant.
“(2) If you find that the rock in question fell because of the existence of two intercepting seams ,or slips so called, and that the place from which this rock fell was examined about two weeks prior to accident by all the customary means of examining places of that character in similar mines, and that such examination failed to disclose the presence of such seams, then your verdict should be for the defendant.”
“(4) If you find in this case that the mine of defendant was not opened from the eighth level to the fourteenth level so as to leave no protection from the rock which fell, and that the rock fell upon the floor of the level and rolled or jumped into this raise, then the plaintiff cannot recover.”

These were not given except as covered in the general charge.

A motion for a new trial was made for many reasons. This motion was overruled, and in doing so the trial judge filed a very elaborate opinion, to some portions of which we shall take occasion to refer later.

The errors assigned and argued by counsel are as follows:

(1) Plaintiff did not recover upon the case made by his declaration.

(2) The undisputed testimony is that the rock which injured plaintiff fell from the hanging wall because of the presence of two intersecting seams, which were not discoverable, and were not discovered by examination. Therefore, the court erred in refusing to give to the jury defendant’s request to charge No. 2, and erred in refusing to grant a new trial on the same ground.

(3) The verdict was against the weight of evidence, and the court should have granted a new trial on this ground.

(4) The verdict is excessive.

Each of these propositions was presented to the trial judge on the motion for a new trial, and are referred to by him in the opinion to which reference has been made.

1. This proposition is argued at great length by counsel. The position of counsel is succinctly stated in this extract from the brief:

“The gist of the declaration, consisting of one count, is that the defendant was negligent because it substantially mined out all the ore between the eighth and fourteenth levels, without leaving pillars or having timbers or other obstructions to prevent rock from above the eighth level falling to the fourteenth level, and because of this condition in failing to inspect above the eighth level, and take down rock found loose. By his testimony the plaintiff attempted to prove that the ore had been removed as claimed for a distance of about 60 feet along the vein to the extent of half or more of the floor of the eighth level on the hanging wall side, leaving a bracket-shaped piece of ground along the footwall, and that the rock struck this part of the floor left, and bounded westerly into this large excavation, leading directly to the fourteenth level, where the plaintiff was.
“The defendant denied that the ore had been mined out, either as claimed by the declaration or as attempted to be shown by plaintiff’s testimony, and gave testimony to show that the floor of the eighth level was a flat one, and was intact with the exception of the raise; that it was a part of its mining plan to have the floor so remain, as a protection to those below it, to the latest possible moment; that the rock which fell was a very large one, weighing about three tons; that this rock fell upon the solid floor of the eighth level, about 10 feet north and along the vein from the mouth of the raise, and was there stopped in its downward descent; that in its contact with the floor the rock broke into two or more pieces, and one of the pieces jumped, or in some way found its way southerly and laterally into the mouth of the raise, down which it fell to the injury of the plaintiff below in the fourteenth level.”

Counsel quoted freely from the declaration of the plaintiff, but omitted to quote many parts thereof. The following appeared in the declaration:

“That on the 21st day of August, A. D. 1910, this plaintiff was working as aforesaid in the discharge of his duties as a trammer, to wit,- at the fourteenth level of said mine, and to wit, about 150 feet north of the shaft of said mine, and while he, the said plaintiff, was prudently and carefully engaged in the discharge of his duties, and without any fault, negligence, or want of care whatever on his part, and by reason of the said negligence and carelessness of the said defendant, and while this plaintiff was shoveling rock into a car at said fourteenth level, in the ordinary discharge of his duties as such employee of the said defendant, a large piece of rock, ore or other matter fell from the sides, roof, or hanging wall of said mine, to wit, at or near the eighth level in said mine, and thereupon said rock, ore, or other matter rolled with great force and violence down to said fourteenth level of said mine, and upon and against this plaintiff.”
Again:
“And also to exercise reasonable and ordinary care, skill, and diligence to inspect, maintain, prop, brace, timber, and secure each and every other place in said mine from which said rock, ore, or other matter was liable to fall upon and roll down to the place where plaintiff would so be, remain, or pass, while engaged in and about the performance of his duties; that it was, furthermore, the duty of the said defendant to use and exercise reasonable and ordinary care, skill, and diligence in and about the pinching, barring down, or otherwise removing any and all loose ore or other loose matter, or any rock, ore, or other matter liable to fall down in any stope or other place in said mine and down to the level at, upon, or near which this plaintiff was at work, and to use and exercise like care, skill, and diligence to remove any pieces of rock, ore, or other matter, which was liable to fall upon or against said plaintiff, and to maim or injure him while engaged in and about the discharge of his duties as such servant or employee of the said defendant.”
Again:
“That the said defendant failed and neglected to use and exercise like care, skill, and diligence in and about the inspecting, maintaining, propping, bracing, timbering, supporting, securing and protecting each and every place in said mine in or about which defendant ordered, directed, required, suffered, permitted, or expected the plaintiff to work, pass, be, or remain, while he was employed by the defendant as aforesaid, in that the said defendant wholly failed and neglected to inspect, maintain, prop, brace, timber, support, secure, and protect the roof and sides of said mine in and about the place where the said plaintiff had to work, and in and about other places from which rock was likely to fall upon, and roll down to, upon, and against the said plaintiff; that the said defendant failed to and neglected to inspect, prop, brace, timber, and secure such other places in said mine from which rock, ore, or other matter was liable to fall upon, and roll down to the place or places where plaintiff would so be, remain, or pass, while engaged in and about the performance of his duties as such employee of defendant; that the said defendant failed and neglected to exercise reasonable and ordinary care and diligence in and about the pinching, barring down, or otherwise removing any and all loose rock, ore, or other matter, or any ore, rock, or other matter liable to fall down in any stope or room, or any other place in said mine, and down to and upon the level at, upon, or near the place this plaintiff was or would be at work, and allowed and permitted several places in said mine from which rock was liable to fall to the place where plaintiff was so employed from time to time, in an unsafe and dangerous condition, in that the roof and sides thereof were loose, and the superincumbent ore, rock, or other matter was liable to fall from said roof, and roll down said mine to the place where plaintiff was so working as aforesaid.”

It is true that the plaintiff and defendant do not agree as to the situation in the mine of the opening between the eighth and fourteenth levels; but they do agree about where the plaintiff worked when he was hurt, and that he was hurt by the falling of a mass of rock which came from the roof of the eighth level; the plaintiff claiming that the roof was not properly inspected, and the defendant claiming that it was.

In respect to this contention the trial court said in the opinion to which reference has been made:

“The position of the defendant is that the plaintiff, by his declaration and opening statement to the jury, confined himself to the theory respecting the manner of the accident that the ore was mined out between the eighth and fourteenth levels about 50 feet lengthways the vein and from foot to hanging, except a bench of ground on the footwall side of the raise; that the piece of ore or rock which injured the plaintiff fell from the back of the eighth level directly into the raise and against the plaintiff; and confined himself to the claim of negligence, in the manner of excavating the ore, in not providing a cover or obstruction of some kind to prevent ore and rock falling in the raise from the eighth level, and in not inspecting the back of the stope in view of such open and uncovered excavation.
“The defendant further insists the plaintiff should not have been permitted to abandon the foregoing theory as to the manner of the accident, and recover on the other theory that the rock fell from the back to the floor of the level, that it then broke, and a part of it rolled or bounded into the raise; that the defendant, in the exercise of reasonable and ordinary care and diligence, should have anticipated that if the rock fell from the back to the floor it would break, and part of it roll or bound into the raise; that it was the duty of the defendant to use reasonable and ordinary diligence to inspect and test the place from which the rock fell, and by continued inspection and testing of such place, at such intervals as the reasonable conduct of its business of mining, in view of all the circumstances disclosed by the evidence required; and that it failed in the performance of such duty.
“The dimensions of the raise or opening, whichever it may be called, between the eighth and fourteenth levels is not material. Whether the opening was 10 feet square or 50 feet square is beside the question. That there was an opening there not only large enough to admit the rock which injured the plaintiff, but large enough to admit a rock large enough to kill 20 men, must be conceded.
“The plaintiff was about his regular work, conducting himself prudently and without negligence, at the lower end of the opening, and whether the opening was 10 or more feet square, it was the duty of the defendant to protect the plaintiff against rock falling therein, either by properly covering the opening or vigilant inspection of all ground from which material might reasonably be expected to fall, and falling, find its way into the raise.”

The important question is, Was the declaration full enough to advise the defendant, so that there might be a full trial upon the merits? There was no objection by the defendant to the admission of testimony on account of variance. There was no suggestion made to the court at the close of the testimony that he direct a verdict because plaintiff had not made the case stated in his declaration. The defendant entered fully into a trial upon the merits. The testimony was conflicting; it was submitted to the jury, which found against defendant. See Stone v. Covell, 29 Mich. 359; Merkel v. Bennington Township, 68 Mich. 133 (35 N. W. 846); Plumb v. Hecla Co., 157 Mich. 562 (122 N. W. 208); Hunter v. Township of Dwight, 157 Mich. 634 (122 N. W. 267).

2. We now come to the second proposition. Did the court err in not giving defendant’s second request to charge? A reference to that request which we have quoted herein will show that it proceeds upon the assumption that, if an adequate inspection was made two weeks before the accident, defendant would be relieved of liability. The testimony is that blasts were made every day, and that the tendency thereof was to dislodge rock in the hanging wall. While the judge did not, and we think very properly, give the second request, he charged the jury as follows:

“But, gentlemen, the defendant is not responsible to the plaintiff for defects not discoverable by ordinary, reasonable, and prudent inspection and testing; and the defendant in this case was not bound to inspect or test more often, or more minutely, or in any manner other than would an ordinarily prudent person engaged in the same business inspect or test under similar circumstances and conditions.
“Again, gentlemen, if the dangerous condition of this rock could not have been discovered upon an ordinary, careful, and prudent inspection or test, then the defendant is not liable for the injury which resulted to the plaintiff.
“Again, gentlemen, if the dangerous condition of the rock might have been discovered by inspection or test, yet if the defendant did use reasonable and ordinary diligence to inspect and test the place from which the rock fell, and did inspect and test the same as often, and as minutely, and in the usual and customary manner as would ordinarily prudent persons engaged in similar business inspect and test under similar circumstances and conditions, then the verdict must be for the defendant. You understand from this, gentlemen, that the defendant is not bound at the peril of liability for an accident to absolutely discover a defective condition of that wall, but it is bound and was bound to use ordinary and reasonable care and diligence to discover the defect in that rock. If it did not perform that duty, it is liable to this plaintiff; and if it did perform that duty, even though the accident resulted, it is not liable to the plaintiff.”

There was a sharp controversy upon the question of inspection which raised a question of fact, which we think was properly submitted. Scendar v. Copper Co., 169 Mich. 665 (135 N. W. 951).

3. Was the verdict so against the weight of evidence that we ought to set the result aside?. Counsel for plaintiff say this question is not open to defendant because not presented to the trial court, or if presented was not urged as appears by his opinion. Waiving this contention for a moment, we are prepared to say that unless we are to enter upon the province of the jury in determining controverted questions of fact, where the differences between the parties is supported by affirmative testimony which, if believed by the jury, would sustain the verdict, we ought not to set this verdict aside.

4. Is the verdict excessive? In disposing of that question the trial judge said, in part:

“It is true, as the doctor said, the plaintiff can do manual labor, and earn about the same wages as before the accident, provided he is always able to obtain labor a man can do with a right hand such as his. The difficulty lies in the fact that he will not be able to perform as many kinds of manual labor as formerly. He has lost a choice of employment. He must now seek what he can do, not what he would prefer to do. His ability to obtain employment in the future is impaired because he is not, like a man with two good hands, able to do all kinds of common work. In addition, there is the pain he has already suffered, and the humiliation he has and always will suffer, owing to the deformity, humiliation of the kind that will prompt him to offer his left hand as often as he meets a friend. * * * While the verdict was liberal, the testimony furnishes no basis for saying it was clearly excessive.”

Not much space is given in the record to a description of the injury of the plaintiff. The mining doctor was called as a witness on his behalf. His testimony impresses us with its fairness. He describes the injury as follows:

“I found the condition of his hand was a fracture of the second and third fingers and a fracture of the metacarpal bones back of the first finger; and the blood supply to the first two fingers being destroyed by the smashing force of the injury, it was necessary to amputate. There was no blood left for the healing of these fingers. They were all splintered up, and I had to amputate the second and third fingers. The condition in which the . other two fingers was left by the operation and the injury combined was that there was a compound fracture of the metacarpal bones back of the first finger, and there was about one-half inch of denuded bones, the periosteum destroyed; and I had to remove from a quarter to a half inch of the bone in that finger. The vacant space in between the two has been filled with new bones and callous, and the healing was made complete in that metacarpal bone. That left him with the little finger and thumb not injured in any way; it left the index finger somewhat deformed, and with some stiffness in same. The little finger and thumb are uninjured. The third finger was broken. It is not only an amputation of the finger, but amputation back of the finger. The second finger is amputated at the first joint. The index finger is uninjured so far as the finger is concerned. At the time of the accident, the index finger was denuded of skin for a ways; new skin has now grown in and drawn over from the other side. The injury went clear through the hand, and came out and up the middle of the palm. I removed from a quarter to half an inch of dead bone from the index finger, leaving a limited action in that finger. These injuries are permanent as far as amputation of the two fingers are concerned. My belief is that the stiffness of the index finger will become better as time goes on. I would not say that the hand is useless. I think he could use it for any ordinary laboring work. There would not be as much strength in the hand with the two fingers amputated as there was before. I believe the plaintiff can do manual labor with that hand, and earn about the same wages as he did before. I don’t think he could do tramming. I imagine he could do rock picking though; he could do rock picking with that hand; he has got the grasp of that thumb and forefinger. For the first years the scars are more tender, but they get tougher with time.”

The plaintiff’s own testimony shows that he has since worked and earned $1 a day and upwards. It is not a question of what one would take to have such an injury done. The question is, The injury having been done, what is fair compensation for the injury? We recognize the advantage the trial judge has from having seen the injured party and seen and heard the witnesses in determining a question of this sort; but a reading of the record constrains us to say that we think the amount of the verdict and judgment is too large.

Unless the judgment is remitted to the sum of $3,000 within 20 days from the filing of this opinion, the case will be reversed, and a new trial ordered. If this remission is made, the case will stand affirmed for that amount, with costs to defendant.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GANSSER v. VANDERVEEN.
    1. Municipal Corporations — Village Attorney — Appointment— Public Officers.
    Unless the common council of a village organized under the general law (1 Comp. Laws, § 2700, 3 How. Stat. [2d Ed.] §5919), creates or establishes the office of village attorney by resolution or by ordinance, the village president has no authority to appoint an attorney: the sole power of employing an attorney is in the council.
    2. Same — Compensation—Mandamus.
    Where the president of the village of East Grand Rapids announced to the council that he did not deem it necessary to hire a village attorney by the year, and the council thereupon adopted a motion to employ relator for the year 1912 at a salary, no village attorney having been provided for by ordinance or resolution, relator was entitled to the writ of mandamus to compel the president and clerk to sign an order on the treasurer for his compensation.

      3. Costs — Mandamus—Municipal Corporations.
    On mandamus proceedings to compel tlie president and, clerk of a village to sign an order for the salary of an attorney, employed hy the village, costs will he allowed only against the president who refused to sign the order, not as against the clerk who had signed it.
    Certiorari to Kent; Perkins, J.
    Submitted February 18, 1913.
    (Calendar No. 25,442.)
    Decided July 18, 1913.
    Mandamus by Emil B. Gansser against Harry Vanderveen, president, and Charles F. Sargeant, clerk, of the village of East Grand Rapids, to compel respondents to sign and deliver to relator an order on the village treasurer. An order granting the writ is reviewed by respondents on writ of certiorari.
    Affirmed.

      Emil B. Gansser (Charles E. Ward, of counsel), in pro per.

      Smedley, Linsey & Lillie, for respondents.
   Per Curiam.

Respondents by writ of certiorari bring this case here to review and reverse the action of the Kent circuit court in certain mandamus proceedings had before it. The facts in the case are stipulated.

The dispute arises between relator, who claims that he was employed as attorney for the village of East Grand Rapids for the year ensuing May 20, 1912, and respondents Vanderveen, president, and Sargeant, clerk, of said village, in relation to the refusal of respondents to sign and deliver to relator an order upon the treasurer of said village for pay for his services for three months as such village attorney. ,

The village of East Grand Rapids was, by operation of law, reincorporated under the provisions of the general act for the incorporation of villages in this State, being Act No. 3 of the Public Acts of 1895, and has since continued in the exercise of its powers and privileges under said act. The legislative authority of the village is vested in the council, consisting of a president and six trustees, elected thereto, and the village clerk is clerk of the council. Relator had acted as village attorney for this village for several years prior to 1912. May 15, 1907, he was employed by the council for one year as attorney for the village at a specified salary. In the four years following, when the village presidents presented their choice of appointments for office to the council, as required by law, the relator was also designated for village attorney, which designation was adopted, confirmed, and ratified by the council.

The statute in question providing for the appointment of officers by presidents of villages, being section 2700, 1 Comp. Laws (3 How. Stat. [2d Ed.] §5919), reads as follows:

“The president shall, by and with the consent of the council, appoint a village marshal and a street commissioner, and such other officers as shall be provided for by resolution or ordinance of the council, and the council may, from time to time, provide by ordinance or resolution for the appointment of such other officers, whose election or appointment is not herein specially provided for, as they shall deem necessary for the execution of the powers granted by this act, and the powers and duties of such officers shall be prescribed by the council.”

The act does not provide for the office of village attorney,. and the village council has not created or established such office, either by ordinance or resolution.

At a meeting of the council held May 20, 1912, respondent Vanderveen read the following communication:

“Inasmuch as it is not necessary for the village to be at the expense, of hiring a village attorney, hired by the year, I deem it for the public interest that Emil B. Gansser be removed from said office, and under the authority of the statute, I do therefore remove said Emil B. Gansser from the office of village attorney.
[Signed] “Harry Vanderveen,
“President.”

After this communication was read, the following motion was made by one of the trustees and duly supported :

“Moved that Emil B. Gansser be employed for the year 1912 as village attorney and the salary be fixed the same as the past year.”

This motion was put by respondent Vanderveen, who presided, and four trustees voted in favor of it. Thereupon respondent declared the motion carried. This respondent claims he put this motion under protest, and after he declared it carried he gave notice that he would not appoint relator.

At the council meeting held August 18, 1912, relator’s bill for services for the months of May, June, and July was presented to the council and a motion to pay the bill, duly supported, was made by one of the trustees, put by respondent Vanderveen, and four trustees voted in favor of it. The said respondent declared it carried, after which he would not sign the order for it because relator was not attorney for the village. Upon request by relator respondents each refused to sign the order. It appears that later respondent Sargeant, as village clerk, signed it. After-wards relator began proceedings before the circuit court for Kent county, in mandamus, asking for an order to show cause why a peremptory writ should not issue against these respondents, and that they be compelled to issue the order and sign it in their official capacities.

Respondents contend before this court that the court below was in error in granting such writ for the following reasons:

(a) That relator was never appointed village attorney in East Grand Rapids; (b) that the action of said village council in attempting to appoint relator as village attorney was illegal and void; (e) that under the laws of the State of Michigan relator could only be appointed by the village president with the consent of the council of said village.

The principal and only question necessary to be considered is the last one relied upon by respondents. The statute quoted is not ambiguous. It makes provision that—

“The president shall, by and with the consent of the council, appoint a village marshal and a street commissioner, and such other officers as shall be provided for by resolution or ordinance * * * from time to time.”

It is admitted that the village council has not created or established the office of village attorney, either by resolution or ordinance. It follows that the statute gives to the village president no authority to appoint a village attorney. The services of a village attorney could be secured for the village of East Grand Rapids only through the action of its council.

The action which the council took immediately following the communication of the president that he had removed the relator from his office was regular, and by it the relator was employed as attorney for the village for the period indicated. Whether the action of the president in announcing the removal by him of relator as village attorney was regular or not is not a question for us to consider. The fact that for the four years next preceding 1912 the then president each year presented relator’s name for appointment as village attorney, or that he put the motion by which relator was employed under protest, is of no consequence. In each instance his employment was effected by the village council, the only body having authority to act in the premises. Under such employment he was entitled to the compensation fixed by the council. The circuit court was not in error in granting a peremptory writ of mandamus, and its action is affirmed.

In view of the fact that respondent Sargeant has signed the order in question, the costs of this court will be allowed only against respondent Vanderveen.


author: Brooke, J.

text:
    HOWE v. BENEDICT.
    Specific Performance — Estates of Decedents — Evidence.
    Complainant and his family who resided in Texas came to Michigan in reliance on the promise of his stepmother to give him her farm at her death, in consideration of his caring for her and running the farm. During ten years and upwards complainant carried out the arrangement, evidenced by letters and other competent proof. Decedent made a will in pursuance of the conditions of the agreement, but it was not found at her death. By a prior will, which was probated, deceased left a life estate in the farm to complainant. There was evidence of a substantial performance of the contract. At the time of her death, decedent was 86 years of age. Held, that the contract should be specifically enforced.
    Appeal from Ionia; Davis, J.
    Submitted June 5, 1913.
    (Docket No. 36.)
    Decided July 18, 1913.
    Bill by Martin L. Howe against Alfred Benedict and others for specific performance of a contract of Rhoda A. Howe, deceased. From a decree for complainant, defendants appeal.
    Affirmed.

      R. A. Hawley, for complainant.

      F. C. Miller, James Scully, and Fred L. Warner, for defendants.
   Brooke, J.

The bill of complaint in this cause is filed for the purpose of compelling specific performance of a contract alleged to have been entered into between complainant and one Rhoda A. Howe. It appears that complainant was a stepson of said Rhoda A. Howe (now deceased). Her son, Ernest C. Howe, a half-brother of complainant, inherited from his father 40 acres of the land in question. To this farm he added by purchase until, at his death in 1897, he owned 95 acres. Dying intestate, Ernest’s sole heir was his mother, Rhoda. She made a lease of the farm for three years to Alfred Benedict, a son of her only brother. This lease expired March 1, 1900. At this time Rhoda was 76 years old. She had made a will in 1897 by the terms of which all her estate, both real and personal, was devised and bequeathed to complainant and his wife, Leona, so long as either of them should live, with 'remainder over to her brother, Leander A. Benedict, if living, and if not, then to his heirs.

Prior to the fall of 1899 complainant had lived many years in Texas, where, with his wife and family, he was engaged in farming. During the summer and fall of 1899 Rhoda A. Howe wrote many letters to complainant urging him to come North with his family and undertake the management of the farm and the care of herself. In these letters she repeatedly promised that in case he would come he should have the farm at her death, and in one dated June 22, 1899, she said:

“I have arranged so after I am gone the place will be yours. It is a good home, and I want you to have it.”

Again, under date of July 26, 1899, she said:

“I hope I may live to see you here and settled; it is all I have to live for. I have done all I could to make it all right with you.”

Aside from these letters there is an abundance of evidence of a contract between Rhoda A. Howe and complainant to the effect that if he would move onto the farm and care for her during the remainder of her life he should have the farm. It is established, too, that some time in the year 1899 she actually made a will, leaving her entire estate unconditionally to complainant. This will was not found at her death, but the earlier one of 1897 was found and was admitted to probate.

Relying upon the contract, complainant came North in the fall of 1899 and went upon the place in the spring of 1900; his family following him shortly thereafter. Rhoda A. Howe lived until September 23, 1910. At the time of her death she was upwards of 86 years of age, and for more than 10 years had been the beneficiary of the contract she had made with complainant. The record contains no evidence tending to show that during all these years complainant failed in his duty, under his contract, towards this very old lady, who at times was somewhat unreasonable and hard to get along with.

There is no doubt, as insisted by appellants, that contracts of this nature must be established by competent evidence. Kimball v. Batley, 174 Mich. 544 (140 N. W. 915).

Complainant in the case at bar has shown with unusual clarity the contract, its acceptance and performance by himself, and the enjoyment of its beneficial provisions by the deceased during a long series of years. Under such circumstances equity demands its specific performance. Root v. Snyder, 161 Mich. 200, 213 (126 N. W. 206), and cases cited.

The decree is affirmed, with costs.

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


author: Stone, J.

text:
    SILVERSTONE v. LONDON ASSURANCE CORPORATION.
    1. Venue — Motions—Change of Venue.
    Change of venue for the convenience of parties or witnesses is discretionary with the trial court, and an order denying the motion may only be reviewed in case of a clear abuse of discretion.
    2. Same.
    Accordingly, it was not reversible error to deny a motion for change of venue from St. Clair to Wayne county, in an action on certain fire insurance policies, upon defendant’s showing that its witnesses were in the city of Detroit, that plaintiff resided there, and the expense of bringing the witnesses to the St. Clair circuit would be considerable, where plaintiff filed a showing that defendants had made threats to delay the case, to annoy plaintiff, and that in the Wayne circuit, a year or upward would elapse before the cause could be reached, that many of defendant’s witnesses were insurance men who were away from home much of the time and could easily attend a trial in St. Clair county.
    3. Insurance — Trial—Burden of Proof — Instructions.
    In an action for a loss under insurance policies covering plaintiff’s stock of merchandise, which defendant claimed and produced evidence tending to show plaintiff had set on fire, it was erroneous to charge that “unless the defendant has produced proof that clearly convinces you that plaintiff purposely caused the fire,” the defense was not established.
    4. Same.
    Where there was evidence of suspicious circumstances surrounding the fire, and plaintiff was the last person in the store before the fire broke out, and there was testimony of plaintiff’s financial embarrassment, and excessive claim of loss, it was a question of fact for the jury to determine whether he caused the loss.
    5. Evidence — Burden of Proof — Preponderance of Evidence.
    The jury need not be clearly convinced that plaintiff started a fire which caused a loss on his insured property; he is not entitled to recover if defendant establishes its defense to an action, on the policy by a preponderance of the evidence.
    6. Trial — Charge—Contradictory Instructions.
    If conflicting instructions are given to the jury, it will be presumed that they may have followed that which was erroneous, and the verdict will be set aside, on error.
    7. Fraud — Cross-Examination—Limitation.
    In cases involving a charge of fraud, wide latitude should be allowed on cross-examination of the party charged with the unlawful conduct.
    8. Trial — Requests to Charge — Instructions.
    The trial court is not required to give requests to charge that single out a particular transaction or the testimony of a particular witness; if the matter is covered by a general charge which brings the entire evidence upon the given subject to the attention of the jury, the appellant may not complain.
    Error to St. Clair; Tappan, J.
    Submitted June 6, 1913.
    (Docket Nos. 12, 13, and 14.)
    Decided July 18, 1913.
    Assumpsit by Morris M. Silverstone against the London Assurance Corporation. Actions against the Northern Assurance Company, Limited, of London, and against the Sovereign Fire Assurance Company of Canada were consolidated by stipulation and tried with said cause. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Bernard B. Selling and James A. Muir, for appellants.

      Walsh & Walsh, for appellee.
   Stone, J.

Writs of error in the above-named cases were sued out to review judgments for the plaintiff for the full amount insured in the several policies involved in the circuit court for the county of St. Clair. The three cases were by stipulation tried together. The amount of insurance involved here is $5,000; $4,600 on stock in trade and $400 on fixtures. This insurance was divided as follows: The London Assurance Corporation, $1,600 on stock and $400 on fixtures. Policy issued April 11, 1911. The Sovereign Fire Assurance Company of Canada, $1,000 on stock. Policy issued September 30, 1911. The Northern Assurance Company, Limited, of London, $2,000 on stock. Policy issued September 30, 1911.

The stock (millinery, hair goods, notions, etc.) and fixtures covered by the policies were contained in the downstairs of the store building 450 Gratiot avenue, city of Detroit. The upstairs was occupied by third persons as a dwelling. The fire occurred on Saturday, January 13,1912, at about 11:10 p. m. No question is raised upon the pleadings. The defenses asserted by the defendants are: (a) Wilful burning by the insured; and (b) wilful false swearing.

The evidence shows that the plaintiff resided in the city of Detroit and that he first commenced business in that city in the spring of 1908, renting a store at 378 Gratiot avenue. About a year after, he moved into the upper story of the last-mentioned building and resided there with his family. There was a barn upon the premises, which the plaintiff claims he used for the purpose of storing his goods, and that some were stored in the dwelling above the store. Plaintiff opened the additional store, called the “New Store,” 450 Gratiot avenue, in the month of April, 1911, and from that time on until the fire in question he occupied and ran both stores.

The testimony in the cases is very voluminous and covers the entire period in which the plaintiff was engaged in business in the city of Detroit. During this period the plaintiff made numerous statements to the banks with which he dealt and to commercial agencies with reference to his financial condition, especially while conducting the store at 378 Gratiot avenue. It was the claim of the plaintiff upon the trial that previous to the opening of the store at 450 Gratiot avenue he had goods stored in the barn upon the premises at 378 Gratiot avenue and upstairs in the dwelling, varying in value from $2,500 to $4,000, and that these goods were not embraced in any of the above-mentioned statements. This stock he called his “reserve stock;” that after the opening of the store at 450 Gratiot avenue he moved into it the reserve stock which had been stored in the barn and dwelling house above referred to and bought other goods; and he gave evidence to show that the value of his stock at 450 Gratiot avenue at the time of the fire was upwards of $7,000, exclusive of the fixtures.

After the defendants had entered the plea of the general issue, with notice thereunder of special matter, they made a motion for a change of venue to the Wayne circuit court. This motion was based upon affidavits showing that the defendants were foreign corporations; that the plaintiff was a resident of the city of Detroit; that the witnesses in the cases, both for plaintiff and defendants, were residents of the city of Detroit; and that the expense of bringing witnesses to the St. Clair circuit would be large. The plaintiff filed an affidavit in opposition to the motion, in which, among other things, he swore that soon after the fire representatives of the defendants had threatened to cause the plaintiff trouble and annoy.ance, and also that they had threatened his arrest, and had circulated reports concerning plaintiff which had resulted in injuring his credit and standing in the city of Detroit; that they threatened that if he did not settle for a small amount they would delay the cases he might commence so as to keep him out of his money as long as possible, and had stated that they would keep the cases in court for several years. The affidavit further stated that it took fully a year after the commencement of a case in the Wayne circuit court before it could be reached, and that generally a case was not tried theije within a year and a half after its-commencement; that plaintiff had employed counsel residing at Port Huron, where the St. Clair circuit court was held, and where the condition of the docket was such that the cases could be reached within a few months after being commenced there, and that Port Huron was a place easy of access from Detroit; that many of the witnesses of defendants were insurance men, and, while some of them made Detroit their headquarters, still they were away from home much of the time and could attend the trial in St. Clair county without inconvenience, and that plaintiff’s financial condition was such that a speedy trial was important to him. This affidavit was met by an affidavit of the defendants showing that cases were frequently advanced for trial in the Wayne circuit court, and many other circumstances tending to show that trials in the Wayne circuit court could be seasonably reached. This motion was submitted to the circuit court and denied. Exception was taken by defendants, and it is made the basis of the first assignment of error.

1. This matter seems to us to have been one within the fair judicial discretion of the trial judge, and, unless it can be said that that discretion was abused, this action of the circuit judge should be affirmed. It will be noted that this motion was made after the defendants had pleaded in bar to the declarations, and that all of the defendants are nonresidents of the State of Michigan.

We need but cite the .cases of Haywood v. Johnson, 41 Mich. 598 (2 N. W. 926); Atkins v. Borstler, 46 Mich. 552 (9 N. W. 850); and Cofrode v. Wayne Circuit Judge, 79 Mich. 332 (44 N. W. 623, 7 L. R. A. 511), to show that the provisions of section 10216, 3 Comp. Laws (5 How. Stat. [2d Ed.] §12869), does not apply to the instant cases.

In the case of People v. Swift, 172 Mich. 473 (138 N. W. 662), it was said:

“In the early case of Greeley v. Stilson, 27 Mich. 153, it was said:
“ ‘A motion for change of venue is, unless where otherwise provided by law, a matter which rests in discretion, and is not a subject for review.’-
“It is, however, now recognized that where rulings on such motions are a clear abuse of discretion, manifestly subversive of justice, they may be reviewed and corrected on writ of error.”

And we also said in Johnson v. Burke, 167 Mich. 349-354 (132 N. W. 1017), referring to Haywood v. Johnson, supra, that it appeared in that case the question was raised by motion supported by affidavit before pleading; arid that, after a defendant in a transitory action had pleaded in bar of the action and submitted himself to the jurisdiction of a court of general jurisdiction, he must be held to have waived the question of jurisdiction of the person. Can we say, as matter of law, that here was a clear abuse of discretion manifestly subversive of justice?

The convenience of the parties, as well as of their witnesses, is to be considered by the court in such a case. It would appear that even in the State of New York, where the court passes upon the question as a primary one, and not simply upon the ground of abuse of discretion, it has been held that the question of delay in trial is a proper question to be considered in a motion for change of venue, and that the convenience of witnesses is not entirely subserved by the consideration of accessibility, and that the condition of the calendar and the duration of the terms are equally relevant. King v. Vanderbilt, 7 How. Prac. (N. Y.) 385; Archer v. McIlravy, 86 App. Div. (N. Y.) 512 (83 N. Y. Supp. 727). We cannot say that there was here an abuse of discretion; and, in our opinion, the court did not err in overruling the motion for change of venue.

2. We cannot undertake to quote at length from the testimony in these cases; neither is it necessary to do so in order to consider the meritorious questions presented by the assignments of error.

It was the claim of defendants that the evidence tended to show that there were many suspicious circumstances surrounding the fire; that it was impossible that the quantity of goods claimed to have been burned could have been contained in the place covered by the fire; that there was evidence tending to show that the plaintiff’s business was a losing one; that he was embarrassed in his financial circumstances and in urgent need of money at the time of the fire; that the bank with which he dealt had refused to loan him money; that he had no such quantity of goods in stock as claimed; that he sent his sole employee away from the store on the night of the fire much earlier than usual; that he followed her to the other store, and then later returned to the store at 450 Gratiot avenue, where the fire occurred; that the fire started in a remote part of the store, away from the stove, and that the plaintiff was the last person in the store before the fire; and that the fire was in a place not accessible to any one but the plaintiff at that time. It was further claimed that the plaintiff had had some difficulty with his wife, and there were many other circumstances in evidence which, it was claimed, threw suspicion upon the plaintiff and his conduct.

The circuit judge submitted the question of wilful burning to the jury in the following language:

“In considering these questions of fact I do not deem it necessary for me to particularize the proofs of the parties that may tend to support the claims of each. These have been presented to you during the trial and on the argument, and much of the material proof has thus been presented many times over. As to the question whether the plaintiff himself set fire to the building or stock, as claimed by the defendant company, you are instructed that there being no direct proof that plaintiff caused the fire the fact can only be established by circumstantial evidence. You will recall all of these circumstances as detailed by the evidence. This includes, of course, the financial condition of the plaintiff, the statement made to the commercial agencies, the amount of stock actually in the store at the time of the fire, and all the circumstances concerning the closing of the store on the night of the fire as detailed by the evidence. In order to find that plaintiff purposely caused the fire and the consequent loss, you must be convinced that the greater weight of this circumstantial evidence establishes this fact. Unless the defendant has produced proof that clearly convinces you that plaintiff purposely caused the fire for the purpose of collecting the insurance in question, this defense has not been established. If such fact has been established by the proofs, then the case is at an end and your verdict must be for the defendant.”

There was a motion for a new trial, and one of the grounds of the motion was that the court erred in instructing the jury that—

“Unless the defendant has produced proof that clearly convinces you that the plaintiff purposely caused the fire for the purpose of collecting the insurance in question, this defense has not been established.”

The motion for a new trial was denied and exceptions duly entered, and the same question is raised by the assignments of error.

In his opinion overruling the motion for a new trial, the learned circuit judge in part said:

“The question as to plaintiff’s setting fire to the stock in question was finally submitted to the jury despite the fact the court had concluded that the proof did not warrant it. At the close of the proofs and on discussion of the requests to charge, the court informed counsel for both parties that he did not consider the proofs sufficient to raise a question of fact for the jury on this issue. Counsel for plaintiff stated that, while he was of the same opinion, yet it might be best to submit this question to the jury, together with all other facts and issues raised. While doubting the propriety of thus submitting a question upon which the proofs raised no issue, the matter was finally submitted. It is now my conclusion that there were no proofs received that would warrant the jury in finding that plaintiff set fire to the stock of goods as alleged, and that it is therefore wholly immaterial whether or not the instruction given correctly stated the law as to the proof required to establish the charge of arson.”

After a careful reading of this entire record, we are unable to agree with this statement of opinion of the trial judge. There was, in our opinion, sufficient in the evidence to carry this question to the jury; the charge being one of fraud and misconduct on the part of plaintiff. The evidence presented peculiarly a question of fact for the jury. Without characterizing these circumstances, as claimed by the defendants, we think that they were matters to be addressed to the jury, who saw the witnesses and heard the testimony. It cannot be said that the testimony did not tend to prove the wrong claimed. Peoples v. Evening News Ass'n, 51 Mich. 11-17 (16 N. W. 185, 691); Barnett v. Insurance Co., 115 Mich. 247 (73 N. W. 372).

It therefore being proper to submit this question to the jury, we are constrained to say that the court was in error in requiring a greater weight of proof than the ordinary preponderance of evidence and in requiring that the defendants should produce proof which would clearly convince the jury that plaintiff purposely caused the fire. This court said in an early case:

“There is no rule of law which adopts any sliding scale of belief in civil controversies.” Elliott v. Van Buren, 33 Mich. 52 (20 Am. Rep. 668).

The following cases will be found to be controlling upon this subject: Watkins v. Wallace, 19 Mich. 57-77; Elliott v. Van Buren, supra; Peoples v. Evening News Ass'n, supra; Monaghan v. Insurance Co., 53 Mich. 238-255 (18 N. W. 797); Ferris v. McQueen, 94 Mich. 367 (54 N. W. 164); Gumberg v. Treusch, 103 Mich. 543-555 (61 N. W. 872); Hoffman v. Loud, 111 Mich. 156-158 (69 N. W. 231); McNaughton v. Smith, 136 Mich. 368 (99 N. W. 382); Arnold v. Harris, 142 Mich. 275-278 (105 N. W. 744); Walsh v. Taitt, 142 Mich. 127-132 (105 N. W. 544); J. H. Worden Lumber, etc., Co. v. Railway Co., 168 Mich. 74-77 (133 N. W. 949); Madill v. Currie, 168 Mich. 546-560 (134 N. W. 1004).

But it is contended by plaintiff’s counsel that the entire charge, when taken together, stated the law correctly, and our attention is called to the following excerpt:

“To establish these defenses, or either of them, the defendant company is in duty bound to produce a preponderance or greater weight of evidence and such proofs as convince your minds that plaintiff is guilty of such fraud and burning as voids the policy and prevents recovery.”

If it were to be conceded that the rule is here stated correctly, this court has frequently held that when conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may have followed that which was erroneous, and the verdict will be reversed. Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152-154 (10 N. W. 179); Madill v. Currie, supra. We are constrained to hold that the portion of the charge covered by the exception and assignment of error above referred to constituted prejudicial error, for which the cases must be reversed.

3. We have examined the assignments of error relating to the cross-examination of witnesses and are of opinion that the trial court applied too strict a rule in the cross-examination of the plaintiff and his wife by defendants’ counsel, relating to plaintiff’s conduct. Where fraud is charged, a great latitude in cross-examination should be allowed. Barnett v. Insurance Co., supra. We refer particularly to assignments of error 14, 15, and 23.

4. While the trial court refused to give certain of the requests of defendants’ counsel which are complained of in the assignments of error, an examination of the entire charge shows that the questions covered by the requests were fairly submitted to the jury, and we do not think it was the duty of the court to single out a particular transaction, or the testimony of a particular witness in the case, but that it is better practice to challenge the attention of the jury carefully to the entire evidence upon the subject. This seems to have been done by the trial court. We find no other reversible error in the record.

For the error in the charge above pointed out, the judgment in each case is reversed, and new trials are granted.

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


author: McAlvay, J. Ostrander, J.

text:
    EIKHOFF v. CHARTER COMMISSION OF THE CITY OF DETROIT.
    1. Statutes — Construction.
    It is a well-established rule of statutory construction that where powers are specifically conferred they cannot be extended by implication: it is to be inferred that no other or greater power was given than that which the statute specifies.

      2. Municipal Corporations — Detroit Charter Commission.
    Charter commissions elected pursuant to the provisions of Act No. 279, Pub. Acts 1909, as amended by Act No. 203, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 5442 et seq.), are not legislative bodies, but are independent of and distinct from the common council, which is the sole legislative agency of the municipality.
    3. Same — Expulsion of Member — Appointment.
    The charter commission of the city of Detroit has no jurisdiction to expel a member of the commission duly appointed for the unexpired term of a member who has resigned. The writ of prohibition will issue to restrain an attempted exercise of power to expel.
    4. Prohibition — Office of Writ — Public Officer — Charter Commission.
    Prohibition is the proper remedy to restrain the attempt of the Detroit charter commission to oust a member of the body from his office, after a hearing and determination that were void for want of jurisdiction.
    Ostrander and Kuhn, JJ., dissenting.
    Petition by Henry J. Eikhoff against the charter commission of the city of Detroit for writ of prohibition to restrain respondent from proceeding to oust petitioner from his office as a member thereof.
    Submitted June 17, 1913.
    (Calendar No. 25,759.)
    Writ granted July 18, 1913.

      Proctor K. Owens, for petitioner.

      Richard I. Lawson, for respondents.
   McAlvay, J.

Upon the application of petitioner a writ of prohibition issued against respondents, who were required to show cause to this court on its return day why said writ should be vacated, and said matter has been submitted to the court upon briefs and oral arguments. The respondent charter commission of the city of Detroit is a body authorized and created under and by virtue of the provisions of Act No. 279, Pub. Acts 1909, as amended by Act No. 203, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 5442 et seq.), and, as its name implies, it is a body created for the purpose of formulating and submitting a municipal charter to the qualified electors of the city of Detroit.

Under this legislation proceedings were taken and members of respondent charter commission were duly elected and qualified. Very soon afterward a vacancy occurred in said charter commission by the resignation of William T. Dust, one of its members. On June 2, 1913, following such resignation, petitioner Henry J. Eikhoff was, by virtue of the statute, duly elected by said charter commission to fill such vacancy, and immediately after such election he qualified as a charter commissioner by taking the oath of office as prescribed by law, and entered upon its duties. Afterward, without notice to petitioner, and without any charges being preferred against him for any cause or misconduct whatever, and without any hearing had, a resolution was introduced and taken under consideration by said charter commission proposing to vacate the seat of petitioner, to which he had been chosen and elected by said charter commission. Thereupon, pending action under said resolution to oust him as a member of said charter commission and summarily deprive him of all his rights therein, petitioner made application to this court for its writ of prohibition to restrain and enjoin such action. Pending the consideration of such application by this court, and before said writ issued, the said charter commission proceeded to and did pass such resolution declaring the seat of petitioner vacant, and ousting him from membership in said charter commission. The case has been considered by this court, and evidently also by counsel for the charter commission in its status as of the time of filing of the petition.

The answer and contention of the respondent charter commission to the order to show cause is based upon the grounds that said commission is a legislative body in its essential and component parts, with inherent power to pass upon the qualifications of its own members, and that its action in this regard is not reviewable, but final and conclusive; that the power to fill vacancies in its membership carries with it the power of removal.

Section 20 of Act No. 279, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5442), as amended, provides as follows:

“The charter commission shall convene on the second Tuesday after the election, at the place designated therefor. The city clerk shall preside at the first meeting, shall administer the oath of office to the members-elect, and shall act as clerk of the commission. It shall be the sole judge of the qualifications, elections and returns of its own members, choose its own officers, except clerk, determine the rules of its proceedings and keep a journal. A roll call of its members on any question shall be entered on the journal at the request of one-fifth of its members, or less if it shall so determine. It may fill any vacancy in its membership, and it shall fix the time for the submission of the charter to the electors. No member shall receive compensation for more than 90 days and only for actual attendance. A majority of all the members shall constitute a quorum and its sessions shall be public.”

The foregoing is the section upon which this respondent relies as conferring the powers and authority claimed by it in its contention that the action taken, looking towards ousting petitioner, was justified and legal.

Without giving any extended statement of the provisions of this legislation, it is proper to say that it was enacted for the purpose of providing a body which would formulate new charters for cities in this State, or amend charters already in existence, to be submitted to the electors for acceptance or rejection. The question of its constitutionality is not before the court. It contains other provisions from which may be determined the status of the charter commission as a body, the functions it may exercise, and the limitation of its powers and authority. Until recent years the incorporation of cities in this State has been accomplished by special legislation, or what have been known as “Local Acts.” Without doubt one of the principal reasons for the legislation now under consideration was to harmonize municipal government in the different cities, and also apply the principle of local self-government,, which has always been favored in this State. The creation of charter commissions was intended to facilitate the preparation of charters to be submitted to the consideration of the electors.

Provision is made by the machinery of this statute for the selection and election of members of said, charter commissions. The power and duties of these commissioners are all fixed by this statute, and ar.e confined to the limits of the municipality in which they are elected. They are therefore local officers elected for the sole purpose of framing and proposing charters to be submitted to the electors within such municipality for acceptance or’ rejection, at an election to be held upon a date to be fixed by the charter commission. The date on which the charter commission shall convene after its election and proceed to its duties is fixed by this statute, as is also the time when the charter to be framed shall be completed; this latter period being limited to 90 days after the commission convenes, as provided by sections 15 and 20, which must be construed together. The provision of section 15 is as follows:

“The charter commission shall convene within ten days after election and frame a charter for said city within ninety days thereafter” — while section 20 provides that: “The charter commission shall convene on the second Tuesday after election at the place designated therefor,” etc., as already quoted.

This section fixes with absolute certainty the date when the commission shall convene, clearly showing the legislative intent to make no change as to the time within which the work of the commission is to be completed, by leaving the time unchanged and enacting the provision that “no member shall receive compensation for more than ninety days, and “only for actual attendance.”

We have stated all of the powers and authority specifically conferred upon charter commissions by this legislation. It is a well-established rule of statutory construction that where powers are specifically conferred they cannot be extended by inference, but that the inference is that it was intended that no other or greater power was given than that specified. It may be further said that the legislature recognized in this statute that the legislative body of each municipality is its aldermen or common council, which are specifically described as such in sections 18 and 19.

It is not contended on the part of this respondent that the charter commission of the city of Detroit was given express authority to oust any member from his office, but it is urged that, because of the following provisions quoted from section 20: “It shall be the sole judge of the qualifications, elections and returns of its own members,” and “it may fill any vacancy in its membership” — the inference to be drawn is that it is a legislative body, with full authority to act, and it is compared with a State constitutional convention in that respect. We think that the matter of inference has already been disposed of, and that the only possible comparison between its powers and the powers of a constitutional convention lies in the words which make the charter commission “sole judge of the qualifications, elections and returns of its own members.” The question as to whether a constitutional convention is a legislative body is not involved in the case.

This respondent is not a body created by the State Constitution, nor do we find that there is anything in the statute under consideration which makes it a legislative body, and the powers granted making it the sole judge of the qualifications and elections of its members and to fill vacancies do not per se make it such. Our attention has not been called to any legislative acts which it has been given power to perform, nor have we, from an examination of the entire act, found that it contains any such delegation of power. None of the acts permitted or required under this law by charter commissions can be construed or defined as legislative acts in the sense in which the word “legislative” is used when we speak of the three recognized branches of our republican form of government. The legislature by this statute created charter commissions as instruments, under its specific terms, to prepare charters for cities to be submitted to the electors, and to become the fundamental law of such municipalities only when accepted by a majority voting thereon. Our conclusion, therefore, is that we cannot agree with the main contention of respondent that these charter commissions are legislative bodies.

The next question to be considered is whether this statute confers upon charter commissions the power to oust one of their members. It is not contended that such power is specifically granted by this statute.

Whether or not members of these charter commissions are city officers within the meaning of that term as ordinarily understood and interpreted we need not determine. But we do conclude that, when elected, they constitute a legally authorized body distinct from and independent of the common council, which is made the sole legislative agency of the municipality.

In the instant case a vacancy was created by the resignation of a member, and petitioner was duly appointed by respondent charter commission to fill such vacancy. He accepted such appointment, and entered upon the duties of his office. The weight of the authorities holds that in such a case the appointment is made for the unexpired term. 23 Am. & Eng. Enc. Law (2d Ed.), p. 418, and cases cited; Speed v. Detroit Common Council, 97 Mich. 198 (56 N. W. 570); and Speed v. Detroit Common Council, 98 Mich. 360 (57 N. W. 406, 22 L. R. A. 842, 39 Am. St. Rep. 555).

Respondent charter commission has assumed the power and authority to remove petitioner and oust him from his office as a member of such commission, and has in fact actually passed a resolution to that effect. Such action was without authority of law, as was distinctly held in the cases of Speed v. Detroit Common Council, supra.

In view of our conclusions upon the principal question involved in this case, it will not be necessary to consider other questions discussed.

Respondent charter commission having failed to show cause why the writ of prohibition issued by this court should be vacated, and it appearing to the court that all the acts and doings of. the said respondent taken in the premises to declare the seat of petitioner as a member of said commission vacant and ousting him from his office were without jurisdiction and void, said writ of prohibition is hereby declared and ordered to be and remain in full force and effect, without costs to either party.

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

Ostrander, J.

(dissenting). The writ, issued June 10, 1913, served June 11, 1913, prohibits and enjoins respondent from taking further proceedings against Henry J. Eikhoff relative to holding his office as member of the charter commission of the city of Detroit. His seat was declared vacated before the writ was served, perhaps before it was granted. The writ also prohibits interfering with the “free access of said petitioner * * * in and about the execution of his duties as a member of said charter commission.” It is alleged in the petition that a committee of the respondent body held a public meeting to discuss, and in which was discussed, the advisability of a charter provision for the nonpartisan election of office holders, citizens present taking part in the discussion. Petitioner appeared in this meeting “and discussed said question from the standpoint of a private citizen, and not as a member of the charter commission.” He said, among other things, “I have heard several persons remark that the charter commission is a ‘joke.’ ” This remark he says was incorrectly reported through the press and otherwise, and, as reported, incensed and enraged various other members of the commission, who at once conspired together to oust petitioner from his position as member of the commission. The public meeting mentioned was held on the evening of June 2d, and on June 3d a resolution was introduced by á member of the commission, during its sitting, that “the seat now occupied by Henry J. Eikhoff as a member of this body be, and the same is hereby, declared vacated.” This resolution, under the rules of procedure, lay upon the table. It was adopted on the morning of June 10th. It seems that no charges were preferred against petitioner, and there was no trial or examination during which he was called upon, or had opportunity, to defend himself.

The answer of respondent says that, being a member of the charter commission, petitioner publicly stated, at the meeting referred to, that the charter commission was a joke, with the purpose of bringing public ridicule and disgrace upon the commission, to belittle and humiliate the commission and the members thereof. It is further stated in the answer, and is not traversed, that, conceiving he had a remedy by injunction against action upon the aforesaid resolution, petitioner filed a bill in the circuit court for Wayne county, in chancery, charging therein that—

“Some of the members of said commission, realizing that your orator could not be influenced to vote on any and all amendments to said charter which they desired, and realizing that in all probabilities he would be the means of obstructing some of the arbitrary amendments to the charter of the city of Detroit which would be detrimental to the citizens and favorable to the favored few, they were threatening to start and did start proceedings to hinder and interfere with your orator in the performance and execution of his duties as a member of the charter commission, and threatened to oust him out of his office as a member of the charter commission of the city of Detroit, and threatening to declare the office vacant in which your orator had been elected and duly qualified, and unless restrained by injunction * * * will * * * vacate said office, to the damage of your orator in the sum of upwards of $100,” also working injury to his reputation.

These public charges, the answer sets out, were made before the passage of the resolution ousting the petitioner. It is broadly averred by respondent that petitioner’s remarks in the public committee meeting were correctly reported, and that it was after investigation that the action ousting petitioner was taken.

The writ of prohibition is preventive rather than remedial process, and the history of its use discloses few, if any, instances in which it has been employed to control or prevent action not judicial in character. Mr. Stevens, in his work on Michigan Practice [v. 2, §475], says that:

“The Michigan statute upon the subject seems to contemplate that the writ is applicable to judicial proceedings only; and there is no reported case in Michigan where the writ has been granted to stay other than judicial proceedings.”

His work was published in the year 1900, and the footnotes do not refer to Speed v. Detroit Common Council, 98 Mich. 360 (57 N. W. 406, 22 L. R. A. 842, 39 Am. St. Rep. 555), decided in 1894. In that case, the writ was issued to prevent the common council of Detroit from investigating charges preferred by the mayor of the city against the city counselor, whom he asked the council to remove from office. In sustaining the right to employ the writ, this court said:

“Under the Constitution-, the legislature may provide for the removal of municipal officers. It certainly has never been regarded in this State that the officer or body upon whom this power is conferred acts in a purely political, administrative, or legislative capacity. Such officer or body acts, and must of necessity act, in a quasi judicial capacity, and the method of procedure must be of a quasi judicial character. Stockwell v. Township Board, 22 Mich. 341; Dullam v. Willson, 53 Mich. 392 [19 N. W. 112, 51 Am. Rep. 128]; Clay v. Stuart, 74 Mich. 411 [41 N. W. 1091, 16 Am. St. Rep. 644]; Fuller v. Attorney General, 98 Mich. 96 [57 N. W. 33]. Such officer or body then becomes an inferior tribunal, amenable to the writ of prohibition when acting in excess of the jurisdiction conferred. In such cases it is of little consequence what name is given to the power conferred. The name cannot relieve it of its essential character. It would be a reproach to the law if it did not provide a speedy remedy by which such tribunals can be prohibited from the exercise of an excess of authority, or- of an authority which they do not possess. We are of the opinion that the writ lies in the present case. State v. Common Council [53 Minn. 238], 55 N. W. 118 [39 Am. St. Rep. 595]; People v. Cooper, 57 How. Prac. [N. Y.] 463; 1 Dill. Mun. Corp. §191 (4th Ed. §253).”

It appears therefore that in that case the writ was issued to prevent threatened action which, if taken, would have been quasi judicial in character; the .power to take the action being denied. Action of respondent vacating the seat of petitioner cannot be prevented. The writ has not performed, and cannot perform, any proper office, and therefore it ought to be vacated. The prohibition, in form a continuing one, against interference with petitioner in the performanee of his duties as member of the commission is dependent upon, and an elaboration of, the prohibition against taking action to unseat him. To compel the commission to recognize as a member one whom it has already unseated is in effect to set aside the judgment of the commission by a writ of prohibition.

; The writ should be vacated.

Kuhn, J., concurred with Ostrander, J.


author: Moore, J.

text:
    SNYDER v. BERRIEN CIRCUIT JUDGE.
    Continuance — Witnesses—Mandamus—Affidavits.
    An affidavit for continuance, on the ground that a material witness is absent from the jurisdiction, is not met by a counter-affidavit in opposition thereto showing that the alleged absent witness is the husband of plaintiff, who does not consent to his giving testimony against her; since the husband’s testimony may be competent within the exceptions of 3 Comp. Laws, § 10213 (5 How. Stat. [2d Ed.] §12857).
    Mandamus by Margaret Snyder against George W. Bridgman, Berrien circuit judge, to compel respondent to vacate an order granting a continuance in a cause in which petitioner was plaintiff and one William F. Stine defendant.
    Submitted June 10, 1913.
    (Calendar No. 25,743.)
    Writ denied July 18, 1913.

      O’Hara & O’Hara, for relator.

      Gore & Harvey, for respondent.
   Moore, J.

We quote from the brief for the relator:

“This is an application for a mandamus to compel the respondent to set aside an order made by him on May 19, 1913, continuing a cause pending in his circuit, in which relator was plaintiff and one William F. Stine was defendant, over the April term unto the September term, 1913, of the circuit court for the county of Berrien, and to reinstate said cause on the docket for trial at the present (April) term of said court.”

The case had been set for trial. We again quote:

“On May 16, 1913, defendant’s attorneys filed an affidavit and motion for a continuance over the April term, on the sole ground that an alleged witness named William Snyder was out on the Pacific coast, and that he was a necessary and material witness, without whom defendant could not safely proceed to trial, etc., and that he expected to have said Snyder or his deposition at the next term of said court.”

The application was for a first continuance, and was contested. We again quote:

“On May 17, 1913, relator made an affidavit, which affidavit was filed in said circuit court on May 19, 1913. In this affidavit she sets up that the alleged witness William Snyder is her lawful husband, they being married some 13 years, and that about April 15, 1913, her husband went to the Pacific coast to locate, and that it was the intention of relator and her husband for her to move the family out to the coast and permanently reside there as soon as the husband was located there. That her husband would not be a witness for defendant, and under the laws of this State could not if he would, without her consent, and she alleged in said affidavit that she would not consent. * * * Plaintiff thereupon applied to this court for a writ of mandamus to compel the said circuit judge to vacate his order continuing the cause over to the September term of said circuit court, and to reinstate said cause upon the docket for the present term of said circuit court for trial.”

A reference to the affidavits shows that the one filed by defendant made a prima facie case for continuance. The affidavit filed on the part of the relator sets up the fact of the marital relation existing between the witness Snyder and the affiant, and closes as follows:

“Affiant further says she is advised by James O’Hara, one of her counsel herein, that under the laws of this State a husband cannot be examined as a witness against his wife without her consent, and while she knows that her said husband would not and could not testify to anything against her right to recover in this action, she hereby notifies the court, counsel, and other party to this suit that she does not consent to his testifying at all.”

It does not appear in this affidavit upon what subject the witness will testify, nor is such a statement of facts shown as to take the case .out of section 10213, 3 Comp. Laws (5 How. Stat. [2d Ed.] §12857), as construed by this court in Hunt v. Eaton, 55 Mich. 362 (21 N. W. 429). The case of Geddis v. Wayne Circuit Judge, 151 Mich. 122 (114 N. W. 874), if not controlling, is at least suggestive.

The writ is denied, with costs.

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