text:
    FLYNN v. BACHNER.
    Landlord and Tenant — Lease—Term—Waiver.
    Where the lessor of a building consented during the first part of the term to the tenants’ subletting a portion of the premises in pursuance of a condition requiring his consent contained in the lease, which was for three years with the privilege of two more years at the lessee’s option, the permit as to subleasing extended over the entire term of five years, upon the tenants’ exercising their privilege.

    Error to Wayne; Rohnert, J.
    Submitted November 24, 1911.
    (Docket No. 179.)
    Decided February 10, 1912.
    Summary proceedings by William H. Flynn against Nathaniel E. Bachner and another for the possession of leased premises. From a judgment for defendants, complainant appealed to the circuit court which affirmed the order of the commissioner. Complainant brings error.
    Affirmed.

      May & Dingeman, for appellant.

      Charles F. Welsh, for appellees.

       Enforcement of landlord’s consent to sublet or assignment of lease, see note in 25 L. R. A. (N. S.) 1173.

   Blair, J.

Plaintiff is the owner of a four-story brick building located at 112 Farmer street, Detroit. The lower portion of the building is devoted to stores, one of which was on the 14th day of October, 1907, let to defendants under terms contained in a written lease. The portions of the lease pertinent to this inquiry are as follows:

“ Portion leased: The first floor and rear of the basement as partitioned * * * for the term of three years from and after the first day of November, 1907, with the privilege of two years more at the expiration of said first three years, making, if said privilege of two years more is exercised, a total of five years, on the terms and conditions hereinafter mentioned, to he occupied for a glove store. * * *
‘ ‘ Monthly payments: And the said parties of the second part do hereby hire the said premises for the term of three years as above mentioned, and do covenant and promise to pay to the said party of the first part, his representatives and assigns, for rent of said premises the sum of one hundred and twenty-five dollars per month always in advance for said term of three years, and at the rate of one hundred and fifty dollars per month always in advance for the said term of two years, if the same is taken. Said parties of the second part further covenant that they will not assign nor transfer this lease, but can sublet if the business is satisfactory to the party of the first part.”

The other usual covenants of a printed lease were contained in this instrument. After defendants had entered into possession of the premises, they sublet a portion of them to one Darr, in which to manufacture and sell ladies’ belts. Plaintiff, claiming a violation of the covenants with reference to subletting and the use to which the premises were to be put, instituted summary proceedings to obtain possession of the premises, and obtained a judgment for restitution, which judgment was appealed from by defendants to the circuit court. The said appeal came on to be heard on October 17, 1910, at which trial the lessor claimed that the leased premises were being used by a sublessee, contrary to the terms of the lease. The lessees contended that plaintiff had verbally consented that the sublessee might use part of the leased premises. The issues as then framed were submitted to the jury under the charge of the court, and a verdict rendered in favor of the defendants. The defendants on the 4th day of October, 1910, served upon plaintiff, Flynn, a notice of their intention to avail themselves of the provision in the lease entitling them to an additional two-year term. Defendants continued to sublet a portion of the premises to Darr for the purpose of manufacturing and selling belts. Plaintiff then, on the 15th day of November, 1910, gave defendants written notice of a claimed forfeiture of the terms of the lease, and again instituted summary proceedings for possession of the premises. The matter came on for hearing December 6, 1910, at which time the defendants interposed, and the commissioner sustained, the plea of res adjudicata, which had been so interposed by defendants and therefore dismissed the proceedings. Plaintiff again appealed to the circuit court, where said matter, by consent of counsel, was brought on for hearing before Hon. Morse Rohnert, circuit judge, without a jury, on the 11th day of January, 1911, at which time said circuit judge made an oral finding in favor of defendants. A formal judgment was subsequently entered thereon by George P. Codd, circuit judge, successor to Morse Rohnert, deceased.

Plaintiff contends that the provision for an additional two years constituted an agreement to renew the lease if the lessee desired to have it renewed, and not an agreement to extend the term of the lease at the option of lessee. Defendants contend that the agreement amounts to a present demise for the term of five years at the option of defendants. If the defendants’ contention is correct, it necessarily follows that the plaintiff’s consent to the subleasing covered the term of five years. The circuit judge so held and sustained the plea of res adjudicata. In this conclusion we concur. Delashman v. Berry, 20 Mich. 292 (4 Am. Rep. 392), and cases cited by Justice Ostrander in Stendor v. Kerreos, 156 Mich. 507 (121 N. W. 258); Kramer v. Cook, 7 Gray (Mass.), 550; Kimball v. Cross, 136 Mass. 300; Stone v. Stamping Co., 155 Mass. 267 (29 N. E. 623); De Friest v. Bradley, 192 Mass. 346 (78 N. E. 467).

The judgment is affirmed.

Moore, O. J., and Steers, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    POWELL v. PIERCE.
    1. Process — Foreclosure of Mortgages — Service by Publication — Affidavit—Jurisdiction.
    In a suit to foreclose a mortgage on realty, an affidavit for an order of substituted service conferred jurisdiction where it averred that affiant was the solicitor for complainant, a nonresident, and was informed by his client and believed that the defendants resided in Chicago, Illinois. 1 Comp. Laws, § 485.
    S. Equity — Practice — Confirmation of Sale — Enrollment— Foreclosure of Mortgages — Laches.
    Where a decree of foreclosure was rendered in 1891, the premises sold and the sale reported by the circuit court commissioner in 1892, the court, upon the petition of complainant’s heir at law, had authority to confirm the report, after complainant’s death, by a conditional order in 1910 and to enroll
    . the decree.
    3. Same — Practice—Nunc Pro Tunc Order.
    The court had power under 1 Comp. Laws, § 557, to enroll the decree nunc pro tunc.

    4. Ejectment — Defenses.
    In ejectment, plaintiff must recover on the strength of his own title, not on the weakness of defendant’s.
    5. Same — Taxation.
    Defendant in ejectment who purchased his title of a tax purchaser by warranty deed had no right of entry upon the lands until a sufficient notice was served. 1 Comp. Laws, § 3961.
    6. Same — Improvements—Taxation.
    Being without color of title, he may not recover for alleged improvements under the provisions of section 3927, 1 Comp. Laws; being a trespasser his rights are not affected by section 10995, 3 Comp. Laws, authorizing compensation for improvements in ejectment, to the extent that they have increased the value of the land.

      7. Same.
    Plaintiff could not recover possession of unoccupied and uncultivated land in ejectment without tendering to the register of deeds the amount of taxes for which the property was twice sold to the State.
    8. Same — Savins Questions for Review.
    By an assignment of error that the court erred in holding that plaintiff was the owner of the premises, entitled to possession thereof, the point was properly raised on error, though the correct reason was not presented to the trial court. ,
    Error to Muskegon; Sessions, J.
    Submitted December 13, 1911.
    (Docket No. 128.)
    Decided February 10, 1912.
    Ejectment by George H. Powell against Minnie Singer Pierce. Judgment for plaintiff: defendant was awarded the value of certain improvements made upon the premises, and remitted part of the verdict. Both parties appeal.
    Reversed.

      Cross, Vcmderwerp, Foote & Boss, for plaintiff and appellant.

      Charles E. Ward, for defendant and appellant.

       Right of holder of tax deed to take possession, see note in 28 L. R. A. (N S.) 398.

       Right of one holding under invalid tax deed to be reimbursed for improvements, see note in 34 L R. A. (N S.) 549.

   Ostrander, J.

It is conceded that plaintiff has the original or government title to the land if certain foreclosure proceedings, to be later referred to, were regular. The land was sold for the taxes levied thereon in the years 1896, 1897, 1898, 1899, and was held as State tax lands. Defendant’s asserted title is based upon certain tax deeds given by the auditor general to one Wheeler and upon a warranty deed from Wheeler. The tax deeds are dated, respectively, October 2, 1902, and August 22, 1903. In December, 1902, the tax title holder attempted, but ineffectually, to give the statutory notice to the owner or owners of the land. With the plea of the general issue the defendant filed a claim for compensation for improvements made upon the land, describing them, and asserting that she and the person through whom she claimed the title had peaceably occupied the land for six years before the suit was begun, under color of title and in good faith. In the trial court, judgment passed for plaintiff, as to the title, and for defendant for the value of the improvements. Upon a motion for a new trial, it was granted unless defendant remit one-half the amount of the damages fixed by the verdict. Defendant elected to remit. Both parties have assigned errors. The practice pursued by defendant in this behalf is not discussed in the briefs; indeed, does not appear in the printed record beyond the fact that errors are assigned.

As to the Mortgage Foreclosure. The mortgage was given in 1886. Forty acres are involved in this suit, being a portion of 320 acres described in the mortgage. In 1891, pursuant to the prayer of a bill in equity, filed by one William H. Powell, who charged that he was assignee of the mortgagee, a decree of foreclosure and sale was entered. In January, 1892, the circuit court commissioner made his deed of the premises to said Powell and filed a report of sale. Mr. Powell died intestate August 1, 1896. Plaintiff is his son and only heir at law. Personal service of subpoena was not obtained in the foreclosure proceeding, and defendants were brought in by publication. The affidavit of the nonresidence of defendants was made by one of the solicitors for complainant, who stated therein that his information, which he believed to be true, was derived from his client, the complainant. In brief, the affidavit stated that complainant lived in Chicago, 111., and had told affiant that he knew the defendants and that they resided in Chicago. There was no appearance of defendants. The objection which is made is that the affidavit presented no evidence — was not proof —of the fact of nonresidence of defendants, and the order for appearance and the subsequent proceedings were wholly invalid. The governing statute is 1 Comp. Laws, § 485. Counsel have reviewed the decisions of this and of other courts touching the subject. We content ourselves with saying that the affidavit was some proof of the fact necessary to be established, and the court was therefore not without jurisdiction to make the order. Pettiford v. Zoellner, 45 Mich. 358 (8 N. W. 57); Colton v. Rupert, 60 Mich. 318 (27 N. W. 520).

It does not appear that an order confirming the report of sale was entered, or that the decree was enrolled, until 1910, when upon the petitions of the plaintiff, and upon ex parte hearings, an order was directed to be entered nunc pro tunc, enrolling the decree. An order nisi confirming the said report of sale was also entered. In entering the order nisi the names of the original solicitors for complainant were signed thereto; the firm having been long before dissolved.

It is said by defendant that the previous death of the complainant in the foreclosure suit, the lapse of time, and the death of one of the original solicitors, are facts which forbade the granting of the orders. We need not upon this point indulge in extended argument or review the numerous decisions to which we are referred. Conceding, for the purposes of argument, that confirmation of the sale was a necessary prerequisite to the vesting of the title in the purchaser at the sale, we perceive no reason for saying that the order nisi which was entered is not effectual. It was an order to which, originally, the complainant in foreclosure was entitled as of course. Mere lapse of time — no other reason being asserted — ought not to deprive the complainant, and those claiming under him, of a record fair upon its face.

And as to the order for enrolling the decree nunc pro tunc, the authority to grant it is undoubted. 1 Comp. Laws, § 557. See Newton v. Newton, 166 Mich. 421 (132 N. W. 91).

It must be borne in mind that defendant is not concerned in the matter beyond this: that in ejectment plaintiff must recover upon the strength of his own title — must show title. The defendant has, or has not, a good title and right to possession under tax' deeds which, if valid, cut off entirely the title asserted by the plaintiff. We hold, affirming the court below, that plaintiff’s decedent acquired title to the land through the foreclosure proceeding.

Defendant’s Title. As has been stated, defendant has a warranty deed from one who held title by two deeds issued to him by iihe auditor general; the land being then held by the State as State tax land. The validity of these deeds is not questioned. This court has repeatedly held that the effect of regular sales of land to the State for delinquent taxes vests title in the State after the time to redeem from the tax sales has expired. But upon the sale of its title by the State the purchaser takes the title of the State upon a condition, and, until the condition is performed, has no right of entry. On the contrary, the tax title purchaser is forbidden by the statute to make an entry before performance of the condition and the lapse of six months. 1 Comp. Laws, § 3961.

Meantime he has not even a colorable right of entry, and, if he enters and makes improvements, may not, upon being dispossessed, recover the value thereof under the provisions of 1 Comp. Laws, § 3927. Corrigan v. Hinkley, 125 Mich. 125 (83 N. W. 1020). See, also, Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756); White v. Dunsmore, 167 Mich. 542 (133 N. W. 523).

It is provided in 3 Comp. Laws, § 10995, that whenever, in an action of ejectment, the plaintiff shall recover, the defendant shall be allowed compensation for improvements on the premises, made by him or by the person under whom he claims, to the extent that such improvements shall increase the present value of the premises, when the defendant, or the person through whom he claims title, has been in actual, peaceable occupation of the premises recovered for six years before the action was begun, and, also, when the premises shall'have been so occupied for a less time than six years under a color of title and in good faith. Defendant’s grantor entered upon the land in May, 1903. He conveyed it to defendant in April, 1906. This suit was begun in May, 1910. It is the contention of defendant that, although her grantor had no right to possess the land — was a trespasser thereon — she, because holding by a warranty deed, had color of title within the meaning of this statute and may recover for the improvements, or some of the improvements, made upon the land. Something is claimed, too, in this behalf, for the fact that her grantor undertook to give the statute notice, but failed to give a proper notice. Much has been, and much may be, said about the duty of landowners to pay taxes and to discover, within a reasonable time, whether the land is in the possession of a trespasser or of one having some apparent right to occupy it, and reasons may be found for asserting that the landowner ought not to profit by his own default and laches.

In ejectment proceedings, strict legal rights are involved. The legislature has defined the relative rights of owners of land and of those who purchase them as State tax lands in a law intended primarily to secure contributions by property owners to the public revenues. Courts must accept plain legislative definitions of rights and enforce the law as they find it. In respect to the point under discussion, the legislative purpose is not doubtful. The tax title holder is forbidden to make an entry upon the land described in his deed until he has given a certain notice and has thereafter waited a certain time. All persons dealing with him are bound to know this limitation of his rights. To hold that his grantee may enter without reference to the imposed condition is in effect to nullify the statute. To ground legal rights opposed to the terms of the statute upon ineffectual attempts to obey the statute is to introduce confusion and to make legal titles uncertain. We are of opinion that the defendant was unlawfully in possession of the land and had not a colorable right to possession. In so deciding we do not mean to determine whether the statute invoked (3 Comp. Laws, § 10995) has application in any case arising between an owner of the original, or government, title and a tax title holder under the present tax law. See 1 Comp. Laws, § 3937. We hold that, if it has application, defendant is not within its terms. Having no right to possess the premises because of the express legislative prohibition, neither defendant nor her grantor may assert a right to recover in this action for the improvements made upon the land.

There is a further question, not raised or determined in the trial court, which is suggested by the facts, to which question we have called the attention of counsel, who have discussed it in briefs filed since the hearing. It involves the right of the plaintiff to recover the land in this proceeding; it appearing that the State has twice acquired title to the land in tax proceedings which are not assailed, and it not appearing that, before defendant’s grantor entered, the land was other than unoccupied and uncultivated. See White v. Dunsmore, supra.

It is said in behalf of plaintiff, and is true, that it does not appear whether plaintiff has paid to the register in chancery the amount necessary to secure a reconveyance of the land. But it cannot be said that the point is not raised by the record. It is assigned as error that the court decided that plaintiff was owner of the premises and entitled to the possession of them. The court did so decide. Upon the record presented we think the ruling of the trial court was erroneous, but for a reason not urged to the trial court. White v. Dunsmore, supra.

The judgment is in all respects reversed, and, as it cannot be said that upon the points decided either party has prevailed, neither will recover costs of this court.

Moore, C. J., and Steers, Brooke, and Stone, JJ., concurred.


author: Brooke, J.

text:
    CASE v. LONGYEAR.
    Appeal and Error — Demurrer in Equity — Special Demurrer —Multieariousness.
    A demurrer for multiplicity, inconsistency, and insufficiency of a bill to declare certain conveyances given as security for a debt and to redeem therefrom is a special demurrer; and an order overruling it is not appealable.
    Appeal from Dickinson; Flannigan, J.
    Submitted December 11, 1911.
    (Docket No. 185.)
    Decided February 10, 1912.
    Bill by Sophie L. Case against John M. Longyear and another to declare certain conveyances mortgages and to redeem from them. From an order overruling a demurrer to the bill of complaint, defendant Longyear appeals.
    Affirmed.

      S. W. Shamil (S. F. Douglass and Benton Hanchett, of counsel), for complainant.

      M. J. Sherwood (Dan H. Ball and Allen F. Bees, of counsel), for defendant J. M. Longyear.
   Brooke, J.

This is an appeal from an order overruling a demurrer interposed by defendant Longyear.

The complainant in her bill of complaint sets out a series of transactions between her husband, Julian M. Case (now deceased), herself, and the defendant. It would seem (though we do not now so determine) that the legal effect of all of the averments taken together is to charge that the defendant Longyear now has the legal title to certain lands which he holds as security for the payment of certain moneys advanced by him to Julian M. Case in his lifetime; that he has disposed of certain other lands conveyed to him as security for said loan, the products of which should be credited thereon.

Complainant prays for an accounting and for permission to redeem. To this bill defendant Longyear demurred for the following reasons:

“ (1) The said bill is multifarious.
“(2) The allegations of the bill are repugnant to each other.
“ (3) The bill of complaint is a bill with a double and inconsistent aspect.
“(4) The bill of complaint is inconsistent with itself.
“ (5) That part of the bill of complaint which alleges and states that the transactions set forth in the bill of complaint between defendant John M. Longyear, Julian M. Case, and the complainant, Sophie L. Case, constituted mortgages or securities for a debt, and that part of the bill stating and alleging a right in the complainant to purchase the interests in lands described in the bill of complaint are inconsistant with each other.
“ (6) That part of the prayer of the bill of complaint which asks for relief by way. of redemption from the mortgages alleged in said bill to exist is wholly inconsistent with that part of the prayer of the bill of complaint seeking specific performance of the alleged contract to convey.
“(f) That part of the prayer of the bill of complaint asking for specific performance of any alleged contract to convey is wholly inconsistent with the case made by the bill.
“(8) The allegations in the bill alleging that the defendant, John M. Longyear, holds title to the interest in the lands set forth in the bill of complaint as security or under a conditional sale, are inconsistent with and repugnant to the allegations of an alleged valid contract to sell the interest in the said lands to the complainant.
“(9) The allegations of the bill of complaint are insufficient to entitle the complainant to the relief prayed, or any part thereof.”

We must hold under the authority of Kerr v. Rupp, 144 Mich. 269 (107 N. W. 1059), and cases there cited and discussed, that the foregoing demurrer is special, and not general, and therefore that no appeal lies from an order overruling it. Mr. Justice Ostrander, speaking for the court, there said:

“The power to dismiss bills for multifariousness has always been sparingly exercised. It is proper practice to raise the objection, in the court of original jurisdiction, by demurrer. The matter of proper relief is so completely within the control of the court on final hearing that no hardship is likely to arise from answering over and proceeding to the merits of the controversy, or in standing upon the demurrer and appealing from the final decree.”

The order overruling the demurrer is affirmed, with costs to the complainant. Defendant will be be allowed 20 days in which to answer the bill of complaint.

Moore, C. J., and Steers and Stone, JJ., concurred. Blair, J., concurred in the result.


author: Steere, J.

text:
    BROOKS v. CULVER.
    1. Fraud — Stock and Stockholders — Deceit—Sales—Injunction — Pledge — Buyer’s Failure to Show Reliance on Statements.
    Where complainant purchased of defendant stock in a corporation of which complainant later, in pursuance of the design with which he bought the stock, became manager, in defendant’s stead, in a suit in equity to enjoin the foreclosure of the stock pledged to defendant to secure a part of the purchase price, the complainant was not entitled to relief upon a record showing that he did not place reliance on the representations of defendant as to the amount of assets, liabilities, and as to the financial condition of the corporation, but acted upon a full investigation and information obtained by other means.

      2. Same — Burden of Proof — Evidence.
    The burden of proof being on complainant to show fraud by clear and conclusive testimony, complainant was not entitled to damages for deceit which he endeavored to establish by his own unsupported testimony, denied by defendant.
    Appeal from. Marquette; Flannigan, J.
    Submitted December 11, 1911.
    (Docket No. 49.)
    Decided February 10, 1912.
    Bill by Arthur Brooks against Rush Culver for an injunction and other relief. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Ball & Ball, for complainant.

      William P. Belden and W. S. Hill, for defendant.

       Duty of purchaser of corporate stock to verify statements made as to its financial condition, see note in 14 L. R. A. (N. S.) 1176.
      Fraud as a ground of relief from subscription to stock after insolvency of corporation, see note in 31 L R. A. (N. S.) 900.

   Steere, J.

The bill of complaint is filed in this cause to enjoin defendant from, selling certain stock in the Northern Lumber Company, pledged by complainant as collateral to his note for $5,833.33, given September 22, 1909, in part payment for said stock; and to obtain a reduction in the amount of said note on the ground that misrepresentations were made by defendant as to the value of the stock for which the note was given.

The Northern Lumber Company is a corporation engaged extensively in logging and the manufacture and sale of lumber at and around Birch, in Marquette county, Mich. It had a capitalization of $300,000, divided into shares of $100 each. It was organized with $200,000 of stock issued and $100,000 of treasury stock. Subsequently about $50,000 of its treasury stock was sold. At the time of.the events which resulted in this litigation, the stock was mostly owned by Mr. Miller, Mr. Packer, and Mr. Owlett, of Wellsboro, Pa., and defendant Culver, of Marquette, Mich. Defendant owned 600 shares and was president and general manager of the company, Mr. Owlett was secretary, and Mr. Miller, treasurer. These gentlemen, with a Mr. Townsend, constituted the directors. The Pennsylvania stockholders held a controlling interest in the company. They had become dissatisfied with defendant’s management of the business and contemplated a change. To that end they negotiated with complainant, a West Virginia lumberman, to buy an interest in the business and take the management.

It may aid in a better understanding of the case to state that the complainant, Brooks, is a practical lumberman who, previous to his connection with this company, had carried on a similar business in Painesville, W. Va. Messrs. Owlett and Packer are lawyers living at Wellsboro, Pa.; defendant Culver is a lawyer at Marquette, Mich. Mr. Packer, aside from his law practice and his connection with the Michigan company, was also a member of some company doing business in West Virginia; his interests there being, for the most part, looked after by a partner, O’Connor by name. Complainant had slightly known Packer for five or six years from his occasional visits to West Virginia in connection with his interests there. Pursuant to telephone communication from Mr. Packer (presumably from Pennsylvania) and a personal interview the following day with O’Connor at Painesville, W. Va., in which the proposition of becoming business manager of their Michigan lumber interests was “put up ” to him, complainant, in June, 1909, made a visit to Birch, Mich., “to see whether he would care to go there.” Mr. Owlett, Mr. Packer, and Mr. Miller timed their visit to Birch to be contemporaneous with complainant’s. This was the first that complainant had met any of the parties except Mr. Packer. Complainant made a stay of five or six days, looking over the stumpage, the plant, the financial conditions, outside operations,” and general details, getting all the information he could in order to determine whether he should accept or reject the proposal of the Pennsylvania stockholders to buy stock and take charge as general manager. As a result of the visit, he concluded to purchase $10,000 of the treasury sto'ck, with an option of $30,000 more by the first of the year, all at par. The money for this $10,000 of stock was sent by complainant to Mr. Owlett, the secretary, the following 1st of August, and the transfer was made at the time of his second visit to Birch in September. At that time complainant went to Birch expecting to supersede defendant and take charge of operations pursuant to an understanding previously reached with the Pennsylvania stockholders.

In April, 1908, Mr. Miller, who was a business man and skilled accountant, went to Birch, in the interest of the Pennsylvania stockholders, where he remained about six months, taking charge of the office, personally going over the books and accounts, and investigating the financial affairs of the company. Messrs. Miller, Packer, and Harrison, who was a partner of Packer, had made periodical trips to Birch, looking after the financial status of the company, and for three years a regular bookkeeper, Claude Ingalls, had been employed, who had entire charge of the books and accounts. Ingalls testifies that Mr. Harrison had been up there in August, 1909, and “was in the office right along three or four days working on the books, making memoranda, taking notes, and asking me questions. I understood he came there to go through the books himself.” Mr. Owlett testifies:

“We found a great deal of complaint by people who were dealing with Mr. Culver. There was complaint made that he would sell lumber to parties and degrade it, and we found a good many matters coming up continually that we didn’t know anything about, and general loose management. We thought Mr. Culver was a better lawyer than he was a lumberman.”

After the transactions of the parties in June, affairs remained about in statu quo until the middle of September following, when, as Mr. Packer testifies—

“I and the other Wellsboro stockholders had reached the conclusion that it would be advisable to make Mr. Brooks general manager, if he would assume it.”

Mr. Owlett, secretary of the company, and a witness for complainant, testifies that, based on the general conditions as they had previously found them at Birch, the eastern stockholders had reached the conclusion that it was desirable to make a change in the management; that complainant went there with the idea of assuming the management of the company and taking a large interest in the business if things were as he expected to find them. Defendant was not informed of the proposed change until some time after the arrival of the eastern stockholders at Birch in September, 1909. He objected to resigning unless he sold his stock in the company, and the change of management was postponed for some time while negotiations to that end were going on between defendant and Packer and Owlett. Matters dragged until complainant concluded the change was not likely to take place. He testifies he—

“ Told Mr. Packer I didn’t think they would go on and change managers. I thought it would be embarrassing for them, the way the thing looked, and they didn’t want to do it; they kind of hated to do it, I .thought.”

Defendant insisted that the whole of this stock should be taken, and Packer and Owlett were trying to adjust the matter amicably by agreeing to take one-half. It was finally arranged that one-half of defendant’s stock would be bought at that time. Defendant claims, and testified, that they agreed to take all his stock — one-half then, when he would resign as manager, and the balance within one year. They deny that it was agreed to take more than 200 shares. Be that as it may, defendant resigned the management, and complainant was installed as his successor, complainant taking 100 shares, and Owlett and Packer each 50 shares. Owlett looked after the transfer of the stock. Defendant claims that he sold the stock to Owlett and Packer and did not know how they were to distribute it until the transfer was made after all negotiations were completed.

Complainant claims that he personally negotiated for the 100 shares of stock and bought the same from defendant, who made various misrepresentations as to the indebtedness of the company and the prices they were getting for lumber, upon which he relied, and by which he was induced to buy the stock. The price paid for this stock was slightly above par. Defendant received through Owlett complainant’s check for $5,000, and his note for $5,833.83 payable in three months, with a certificate for the 100 shares of stock, which defendant had assigned to complainant, attached, as collateral security. The note becoming past due and unpaid defendant took steps to sell the stock and realize on the security, whereupon this bill was filed.

The following questions of law and fact are presented by the record: Did defendant negotiate the sale of the 100 shares of stock with complainant, or with Owlett and Packer ? Did he make false and fraudulent statements to complainant as to the indebtedness of the company and the prices it was getting for lumber ? If so, was complainant, relying on them, deceived and misled and thereby induced to buy the stock ? If so, what is the measure of damages ?

That there were protracted negotiations between Owlett and Packer and defendant relating to a change of management and a purchase of defendant’s stock, is clearly shown. Owlett testifies:

“I told him (Culver) I would talk to Mr. Packer and Mr. Brooks, which I did, and then Mr. Packer and I went and talked to him and told him that Mr. Brooks would buy $10,000 of his stock, Mr. Packer would take $5,000, and that I would take $5,000.”

Complainant arrived at Birch on September 15th and says he agreed to take the stock in question on September 22d, just a week later. In the meantime he had been on the ground, familiarizing himself with the situation. He had previously bought $10,000 worth of stock at par and taken an option on $30,000 worth, as the result of his previous investigations and his associations and dealings with the Pennsylvania stockholders, with whom he was allied and with whom he was co-operating to depose defendant from his position as manager of the business. He knew that these stockholders lacked confidence in defendant and were seeking to get rid of him; that, in order to accomplish such result, they were soliciting complainant to buy this stock,- the ultimate result of which would be his engagement as manager, in the position vacated by defendant.. The significance of this situation of affairs is not only a lack of faith in defendant but a distrust of him.

Assuming that defendant did make the false representations claimed by complainant, it is difficult to believe that, relying upon them, he was thereby deceived and induced to make the purchase. All the surrounding facts and circumstances and relations of the parties naturally, and we think quite clearly, suggest that complainant was led to purchase this stock by his own investigations, supported by the confidence he had in the Pennsylvania stockholders, with whom he had already dealt, and who had shown their confidence by selecting him as their manager, and by his desire to assist them in getting defendant out of the way so that he himself might secure a good position as manager in charge of a large business in which he was already financially interested.

The gist of complainant’s right to recover is grounded on the proposition that he was fraudulently induced to purchase this stock through false representations made to him by defendant as to the indebtedness of the company, the amount of its assets, and the condition of its business; that he believed them to be true; that thus believing and relying on them he was thereby deceived and induced to purchase the stock. His testimony in that particular is directly contradicted by the testimony of the defendant. So far as the record discloses, the parties are equally truthful and equally interested.

The burden of proof is upon complainant. When relief is sought on the ground of fraud, it must be proven clearly and conclusively. It is not lightly inferred, and the defrauded party must have made prompt complaint when the facts came to his knowledge. Buck v. Sherman, 2 Doug. 176; Bumpus v. Bumpus, 59 Mich. 95 (26 N. W. 410).

“It is an elementary principle that he who impugns a transaction as fraudulent, which may or may not be so, is not sustained by his own assertion alone in case he is disputed, but has the burden on him to make his allegation good by independent evidence; for he who alleges that a transaction was fraudulent must prove it.” Hutchinson v. Poyer, 78 Mich. 337 (44 N. W. 327).

We think the inference from the independent evidence in this case is that complainant was led to purchase the stock by his own investigations, his desire to become manager of the business, and the representations and overtures of the eastern stockholders with whom he was associated, rather than by anything said or done by defendant. In this view of the case other questions raised by the record become unimportant.

The decision of the circuit judge dismissing complainant’s bill is affirmed, with costs.

Moore, C. J., and Brooke, Stone, and Ostrander, JJ., concurred.


author: Moore, C. J.

text:
    JOHNSON v. SERGEANT.
    1. Automobiles — Highways and Streets — Police Power — Negligence — Motor-Vehicle Law.
    In the exercise of the police power the legislature is authorized to regulate the operation of automobiles on the public highways.
    2. Constitutional Law — Motort-Vehicle Law.
    The title of Act No. 318, Pub. Acts 1909, being “an act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State,” is sufficiently broad to warrant the provision contained in the law rendering an owner liable for the negligent acts of the operator of his car.

    3. Same.
    And it was not beyond the power of the State to make the owner absolutely liable.
    4. Same — Actions—Conditions Precedent.
    The statute does not contemplate that an action should be brought and judgment obtained against the driver of the automobile before the commencement of proceedings against the owner.
    Certiorari to Kalamazoo; Knappen, J.
    Submitted December 8, 1911.
    (Docket No. 200.)
    Decided February 10, 1912.
    Case by Delos Johnson against George Sergeant and Lewis Sergeant for personal injuries. An order overruling a demurrer to plaintiff’s declaration is reviewed by defendant Lewis Sergeant on writ of certiorari.
    Affirmed.

      Cole & Goembel, for plaintiff.

      Osborn & Mills, for defendant.

       Liability of owner for negligence of borrower or hirer of automobile, see note in 33 L. R. A. (N. S.) 81.
      Responsibility of owner when automobile in charge of another, or when put in operation by another, see note in 1 L. R. A. (N. S.) 235.
      Duty and liability of person operating automobile on public street or highway, see note in 4 L. R.. A. (N. S.) 1130.

   Moore, C. J.

In 1909 the legislature passed an act entitled “An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles.” Act No. 318, Pub. Acts 1909.

Subdivision 3 of section 10 thereof is as follows:

“Subd. 3. Liability of owners. — The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation by any person of such motor vehicle, whether such negligence consists in violations of the provision of a statute of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require; but such owner shall not be so liable in case such motor vehicle shall have been stolen.” Act No. 318, Pub. Acts 1909.

In section 1 of the act the word “ owner ” is defined as follows.

“ The term ‘owner’ shall also include any person, firm, association or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days.” Act No. 318, Pub. Acts 1909.

The plaintiff bases his cause of action on the provisions of said act. The defendant interposed a demurrer to plaintiff’s declaration. This demurrer was overruled.

The claim of the defendant is:

“ (a) That subdivision 3 of section 10 of the act is unconstitutional.
“ (6) That the title of the act is insufficient to sustain the constitutionality of subdivision 3 of section 10 of the same.
“(c) That the liability attempted to be created by subdivision 3 of section 10 is beyond the authority of the legislature.
“(d) That if the act is valid and constitutional, no action or liability arises thereunder, as against the owner of a motor vehicle, until liability for negligence has been established as against the operator of the vehicle.”

The diligence of counsel has failed to call our attention to another similar statute. We also haye consulted such text-books upon the automobile as are in the State law library, and do not find a similar statute.

It is well recognized that the automobile upon the highway in the hands of an incompetent or a reckless driver may result in great injury to persons and property. Because of this fact, the State, in the exercise of its police power, may pass statutes in relation to the ownership of automobiles and the running thereof. Section 32, Berry’s Law of Automobiles; section 29, Davids’ Law of Motor Vehicles; Huddy on Automobiles (2d Ed.),p. 9; section 26, Babbitt on Law applied to Motor Vehicles; Commonwealth v. Kingsbury, 199 Mass. 542 (85 N. E. 848, 127 Am. St. Rep. 513); People v. Schneider, 139 Mich. 673 (103 N. W. 172, 69 L. R. A. 345).

It is said the statute is penal. We again quote from the brief:

“ The act is a penal enactment. Public Acts of 1909, 780-782. People v. Steel Co., 151 Mich. 619, 620 [115 N. W. 705]. The creation of the civil liability attempted by it is not' a mere regulation of the use of motor vehicles or of the operators of such vehicles upon the public highways of this State, and the title is, under familiar decisions and considerations, so defective as to render subdivision 3 unconstitutional. It is sometimes true, of course, that the imposition of the civil liability is in the nature of a regulation. This is not true where the statute is penal in its character. The absolute liability of owners of motor vehicles for the negligence of others is not germane to the subject expressed in the title of the act, and, of course, if this is correct, the enactment, so far as it affects that subject, is unconstitutional.”

Wé think this contention is not well taken. It has been held that the omission from the title of an act, which is passed for the purpose of prohibiting or regulating a business, of a statement that a penalty will follow a violation of the act does not render the act invalid. Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485 (38 N. W. 474); People v. Miller, 88 Mich. 383 (50 N. W. 296). See People v. Snowberger, 113 Mich. 86 (71 N. W. 497, 67 Am. St. Rep. 449). In Westgate v. Township of Adrian, 161 Mich. 333 (126 N. W. 422), many authorities are gathered hearing upon the subject of titles to acts. In that case it was said:

“ It will be noted that the original title contains the word ‘regulate.’ Under that term, very broad powers may be exercised. • It means both government and restriction ” — citing several authorities.

The title to the act before us has the words “ regulation of motor vehicles operated upon the public highways of this State and of the operators of such vehicles.” This language certainly suggests to an automobile owner that the provisions of the act were likely to interest him.

The legislature has gone a long way in this statute in fixing the liability of the owner, even though he may not be in fault. We do not think, however, it can be said to have exceeded its authority under the police power. See People v. Snowberger, supra; People v. Grocer Co., 118 Mich. 604 (77 N. W. 315); People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404); Burrows v. Transportation Co., 106 Mich. 582 (64 N. W. 501, 29 L. R. A. 468).

It is said judgment ought to be obtained against the driver of the automobile before bringing action against the owner of the vehicle. No authority is cited upon this proposition. There is no suggestion of that kind in the statute itself, and no good reason has been suggested to us why it should have such a construction.

The judgment of the court helow is affirmed, with costs, and defendant is given 15 days after service of notice of this judgment to plead to plaintiff’s declaration, if he so desires.

Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Ostrander and Bird, JJ., did not sit.


text:
    LAXTON v. PATRONS’ MUTUAL FIRE INSURANCE CO. OF MICHIGAN, LIMITED.
    Insurance — Mutual Benefit Associations — Waiver of Breach of Insured.
    Where plaintiff, a member of a mutual fire insurance association, organized to insure members of a grange order in good standing, withdrew from the local grange and ceased paying dues, forfeiture of the policy of insurance according to the strict terms thereof was waived by the insurer which took no action to cancel the polioy and continued to receive assessments upon the policy after notice to its secretary of the status of insured.
    Error to Ingham; Wiest, J.
    Submitted December 11, 1911.
    (Docket No. 186.)
    Decided February 10, 1912.
    Assumpsit by Arthur H. Laxton against the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      JEJ. C. Chapin and G. C. Liebrand, for appellant.

      Tuttle, McArthur & Dunnebacke, for appellee.
   Moore, C. J.

The defendant is a Michigan corporation, organized under the provisions of Act No. 262, Pub. Acts 1895 (2 Comp. Laws, §§ 7287 et seq.), entitled “An act to provide for the incorporation of mutual fire insurance companies, limited, and defining their powers and duties.”

On December 20, 1905, the plaintiff applied for insurance on certain personal property. He was then a member of the order Patrons of Husbandry, in good standing in. Grange No. 874. On January 17, 1906, a policy was delivered to him. The rule as to membership is stated in article 2 of the articles of association as follows:

“ This company is formed for the mutual protection of its members who are members in good standing in the order Patrons of Husbandry, for the purpose of mutual insurance of their property against loss by fire or damage by lightning, which property to be insured may comprise grange halls, dwelling houses, etc., belonging to members of said company.”

At some date after the policy was issued, probably about two or three years before the fire, the plaintiff took either a demit or withdrawal card from said Telephone Grange, and from then on, and up to the time of his fire, he did not present his demit to any other grange, and paid no grange dues.

Mr. Yan Auker was appointed collector of the local grange, and had knowledge of what was done by the plaintiff; and it was the claim of the plaintiff that Mr. Yan Auker communicated his knowledge to the secretary of the company. The defendant denies the latter contention. The plaintiff continued to pay his assessments to the defendant company, including one assessment after the fire which resulted in a loss to the plaintiff, for which this suit is brought. The fire occurred July 28, 1909. After the fire, some correspondence occurred between the plaintiff and the secretary. Later a personal interview was had between them, when the secretary advised the plaintiff that the defendant would not pay his loss, because the insured had not paid his dues to the grange at the time of the fire.

The defendant retained all the. assessments paid to it, and still retains them, except the assessment which was made and paid about two months after the fire, and after defendant knew all the facts. As to this assessment, the defendant sent a check for the amount thereof to the plaintiff on November 8, 1909. Upon the trial, this check was tendered back to the attorney for the defendant, who declined to receive it.

This suit was brought December 10, 1909. Mr. Lax-ton’s policy was canceled in January, 1910. The case was tried before a jury, which returned a verdict in favor of the plaintiff. The case is brought here by writ of error.

It was the claim of defendant that, because plaintiff had taken a demit from the local grange, and had not paid dues to the grange for more than six months before the fire occurred, this avoided the policy. The plaintiff makes two answers to this contention: First, that the defendant, through its secretary, had knowledge of what was done by the plaintiff, and did not cancel the policy. Second, that, after this knowledge came to it, the defendant assessed plaintiff, collected the assessments, and still retains them. It was the idea of the trial judge that these various contentions presented questions for the jury.

The first claim of defendant demanding attention is as follows. We quote from the brief:

“Onthe direct examination of plaintiff, he testified he had paid assessments every year since he received his policy. This is not disputed; but there is no evidence in the case, or any claim made, that the plaintiff ever advised the defendant of his withdrawal from the grange and nonpayment of grange dues.”

This claim is somewhat anomalous, in view of what was done upon the trial when defendant asked the trial court to submit to the jury a special question, which, with its answer, reads as follows:

“Was Mr. Holden notified by Mr. Van Auker that Mr. Laxton had withdrawn from the grange ?
“Answer: Yes.”

It would do no good to set out in detail the testimony bearing upon this question; but we shall content ourselves with saying that it presented an issue for the jury, which found against the claim of defendant.

It is now urged that the secretary of the company could not waive the forfeiture. It is hardly necessary to set out verbatim the provisions which apply to this phase of the case. The fact is not in dispute that after it is claimed the policy became void, and after, according to the finding of the jury, the secretary had notice of the facts, that assessments were made and collected, which assessments are yet retained by the defendant. Under these circumstances, we think the judgment should stand under the following authorities: Olmstead v. Insurance Co., 50 Mich. 200 (15 N. W. 82); Towle v. Insurance Co., 91 Mich. 219 (51 N. W. 987); Lord v. Protective Society, 129 Mich. 335 (88 N. W. 876); Hogadone v. Insurance Co., 133 Mich. 339 (94 N. W. 1045); Reimold v. Insurance Co., 162 Mich. 69 (127 N. W. 17).

Judgment is affirmed.

Steers, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Ostrander and Bird, JJ., did not sit.


author: Moore, 0. J.

text:
    EARLY v. INGHAM CIRCUIT JUDGE.
    Execution— Arbitration— Recall or Process— Equity— Setting Aside Award — Mandamus.
    On motion to recall execution issued upon a judgment entered after an award in arbitration proceedings, which the defeated party had attempted to set aside in equity by bill for an in junction and other relief, it was not an abuse of discretion to refuse to recall the process; the causes may be permitted to proceed collaterally, although the proceedings at law may be set aside by decree in the chancery oase.
    Mandamus by Thomas Early and another against Howard Wiest, one of the circuit judges for the county of Ingham, to compel respondent to recall an execution issued upon a judgment in arbitration proceedings.
    Submitted December 8, 1911.
    (Calendar No. 24,777.)
    Writ denied February 10, 1912.

      Tuttle, McArthur & Dunnebacke, for relators.

      Thomas, Cummins & Nichols, for respondent.
   Moore, 0. J.

This case has been here before. It is reported in 166 Mich. 517 (131 N. W. 1104). A reference to that opinion will make a long statement here unnecessary. The opinion was handed down July 5, 1911. On July 17, 1911, the award was confirmed, and a judgment entered thereon. August 24, 1911, an execution was issued and placed in the hands of the sheriff for collection. The relators then made an application to the respondent, asking that the execution be recalled until the chancery case should be heard. The respondent denied the motion, and it is this action which is sought to be reviewed by mandamus.

The argument of counsel may be summarized as follows:

‘ ‘ (1) That every court has the inherent right and authority to control its own process, in order to prevent an abuse thereof.
“ (2) That the issuance of an execution upon the judgment, and the threatened levy upon relators’ property, was an abuse of process.
“ (3) That respondent was therefore guilty of an abuse of discretion in refusing to recall the execution, which refusal ought to be relieved against by the issuance of a writ of mandamus.”

Counsel are agreed upon the first of these propositions; but the other two are not acceded to. It is insisted by counsel for respondent there was no abuse of process or of discretion which calls for action by this court. We do not think any new principle of law has arisen in the case since it was here before. As the case now presents itself, we think it might have been well for the court below to delay confirmation of the award, entry of the judgment, and issuance of the execution until the chancery case was heard; but for reasons which doubtless appealed to him he did not do so. What was said by Justice Ostrander when the case was here before is still true:

“However, there appears to be no legal objection to the prosecution of proceedings, on the one side to enforce, and on the other to set aside, an award, although manifestly action at law to enforce the award is at peril of having the award set aside in equity. It is not made to appear that relators, complainants in equity, will suffer injury if the award is confirmed. We may assume that proceedings will be so controlled that neither party will be damaged.”

The writ is denied.

Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Ostrander and Bird, JJ., did not sit.


author: Stone, J.

text:
    STANTON v. FOLEY.
    1. New Trial — Judgment—Weight of Evidence — Civil-Damage Action.
    Where plaintiff was entitled to a verdict for some amount, by the great weight of the evidence, in a oivil-damage action, the court exceeded its authority in denying a new trial in case defendant should pay the costs and an attorney’s fee to plaintiff.
    2. Same — Intoxicating Liquors — Evidence.
    The verdict being contrary to the clear weight of the evidence, plaintiff was entitled to have a jury pass on the amount of damages, even though the testimony as to the same was meager.
    Error to Cass; Des Voignes, J.
    Submitted January 10, 1912.
    (Docket No. 41.)
    Decided February 10, 1912.
    Case by Ella M. Stanton against Bart Foley and another for unlawful sales of intoxicating liquors to plain-Plaintiff tiff’s husband. Judgment for defendants, brings error.
    Reversed.

      Carr & JSJby, for appellant.

      Thomas J. Cavanaugh and James H. Kinnane, for appellees.
   Stone, J.

This is an action on the case, under the statute, in which the plaintiff, a married woman, seeks to recover damages against Bart Foley, a saloon keeper, and the Michigan Bonding Company, his surety, for the selling, giving, and furnishing of spirituous and intoxicating liquors to her husband, by said Foley, between the 1st day of May, 1909, and the 1st day of May, 1910; the plaintiff claiming that her husband was then a person in the habit of getting intoxicated, and that whisky and beer were sold, furnished, given, and delivered by said Foley personally, in his saloon and in other places, while plaintiff’s husband was intoxicated, and after said defendant was verbally forbidden so to do; also, that liquor was furnished by Foley’s agents and bartenders. There was a good deal of evidence offered and received tending to support the declaration. There was evidence that on one occasion the plaintiff found her husband very drunk in Foley’s saloon, and saw Foley furnish him with liquor while in that condition; that the plaintiff interfered and knocked the glass out of her husband’s hand; that, in the presence of a number of persons, her husband swore at her and made an assault upon her; and that he was grabbed and held by a person present, which prevented the husband from getting hold of her. This is one of the many instances testified to by the plaintiff and other witnesses. The defendants claimed that plaintiff’s husband had been a hard drinker during all of his married life. This was denied by the plaintiff, who claimed and testified that her husband had reformed prior to going on the Foley farm in the spring of 1908, and that she did not observe that he was drinking again until the fall of 1908. There was a good deal of conflict in the testimony. The case was submitted to a jury by the trial judge under a very full charge, and a verdict was returned for the defendants. There was a motion for a new trial by the plaintiff, in which, among other things, it was claimed that the verdict was contrary to the evidence and contrary to the law and instructions of the court. In denying the motion for a new trial the circuit judge said, in part:

“There was abundant evidence upon the question of unlawful sales. But it must be conceded that likewise the evidence bearing upon the damages sustained was vefy meager. The evidence submitted in this case might impress any fair jury as being weak upon the element of damages, and, had the jury returned a verdict of six cents damages, I would not feel like disturbing the verdict. The unlawful sales were shown without doubt and clearly beyond cavil. So patent was the weight of the evidence on this issue to defendants’ counsel that in their arguments to the jury they practically admitted ‘ that plaintiff wap entitled to a judgment of six cents, but contended that under the evidence it should not exceed that sum.’ The plaintiff was required by this court to give security for costs upon a motion made by the defendants’ counsel about the time the ease was instituted. She is a poor woman, having no property aside from the little home in which she lives. Under the weight of evidence, plaintiff was entitled to a verdict in at least the sum of six cents, thereby carrying costs of the case. I am therefore of the opinion that a new trial should be granted, and the same is hereby ordered, provided the defendant may within 30 days from and after the filing of this opinion elect to and file in writing a disclaimer and satisfaction for all costs incurred on his behalf herein, and pay to the clerk of this court for use and benefit of plaintiff an attorney fee of $30, witness fees of $15, the jury and stenographer’s fees of $3, and a clerk’s fee of $6, or a total of $54, and thereupon no further or other proceedings may be had hereon.”

The defendants within the 30 days filed a written disclaimer and satisfaction with the clerk of the court, in accordance with the order of the circuit judge denying the motion, and also tendered to the attorneys for the plaintiff $54, which was refused. Thereupon said amount was paid to the clerk of the court for the plaintiff. A judgment having been entered for the defendants, the plaintiff has brought the case here upon a writ of error, assigning many errors in the rulings relating to the admission of testimony, refusals of the court to charge as requested, the charge of the court, and the denial of the motion for a new trial.

An examination of the record fails to disclose any reversible error in the rulings relating to the admission of evidence.

While there is some apparent conflict between some of the defendants’ requests to charge as given, and the general charge of the court, especially as to defendants’ sixth and seventh requests, we are of opinion that this will be avoided upon another trial, and we do not think it necessary to make further reference thereto.

We are all of opinion, however, that the court should have granted the motion for a new trial, and that the disposition made of the motion was improper, and was without authority for the reasons pointed out in the cases of Lorf v. City of Detroit, 145 Mich. 265 (108 N. W. 661), and Goldsmith v. Railway, 165 Mich. 177 (130 N. W. 647).

We are also of opinion that the verdict was against the clear weight of the evidence, as found by the circuit judge. The plaintiff has the right to insist that the jury shall assess her damages.

The case is reversed, and a new trial ordered.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    CLARK v. DETROIT UNITED RAILWAY.
    Street Railways — Negligence — Carriers — Alighting from Car — Highways and Streets — Contributory Negligenoe.
    A passenger who, on alighting from a west-bound oar and crossing the first of the defendant’s double tracks, looked west and saw no oar, but stepped upon the second or east-bound track without again looking and was struck by a car coming from the west which there was nothing to prevent her from seeing except the car from which she alighted, was guilty of contributory negligenoe as a matter of law.

    Error to Wayne; Donovan, J.
    Submitted January 10, 1912.
    (Docket No. 35.)
    Decided February 10, 1912.
    Case by Sarah Clark 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.

      J. Emmet Sullivan, Alex C. Bishop, and Thomas J. Mahon, for appellant.

      Corliss, Leete & Joslyn (A. B. Hall, of counsel), for appellee.

       Duty to stop, look, and listen after entering on first track, see note in 17 L. R. A. (N. S.) 505.

   Ostrander, J.

Plaintiff’s testimony (no other was introduced ) tended to prove that she alighted from a westbound street car at the corner of Michigan avenue and Fifth street in the city of Detroit, passed in the rear of the car across the street, and was struck and injured by an east-bound car running on a parallel track. The tracks are separated by a space of five feet. She alighted on the north side of the north, or west-bound, track. She stood there until the car from which she had alighted had proceeded some distance — she at first testified that it was 3 or 4 feet, and, later, 15 feet — when she looked to the west, was able to see down the track about 125 feet, saw no approaching ear, and thereupon, without again looking for a car, proceeded to cross the street.

“Q. Just before you stepped on the track you did not look west ?

“A. I looked west before I started to cross the first track.

“Q. But when you came to go across the south track, when you came to the south track, you were not looking west; if you had you would have seen the car, would you not?

“A. Certainly .1 would.

“Q. So that just before you stepped on the south track you were looking right straight ahead ?

“A. Yes, sir.

“Q. And if you had looked west you would have seen the other car as the other person did ?

“A. If they had rung the bell.

“Q. If you had looked west before you stepped on the track, you would have seen the car, so that you were not looking that way ?

“A. I was not looking west.

“Q. If you had looked west just before you stepped on to the south track, you would have seen the car ?

“A. Certainly I would. * * * When I got right into the second track some persons hollered, and I looked over my shoulder, and the car was on top of me, and I stepped back to save me from getting under the car.”

There was nothing obstructing her view to the west except the car from which she had alighted. Assuming that defendant was negligent in the operation of the car, it is clear that plaintiff failed to exercise ordinary care for her own safety. McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631); Davis v. Railway, 162 Mich. 240 (127 N. W. 323). See Manos v. Railway, ante, 155 (130 N. W. 664).

The court below properly directed a verdict for defendant, and the judgment for defendant is affirmed.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird J., did not sit.


text:
    BRASCH v. BRASCH.
    1. Divorce — Estate by Entirety — Husband and Wife — Jurisdiction to Award Alimony.
    While the court in a divorce suit has authority to award alimony out of real property owned by the entirety, the interest of the wife cannot be diminished. 3 Comp. Laws, § 8640.
    2. Same — Decree—Statutes.
    A sum in excess of the value of the wife’s interest will be presumed to have been awarded íd lieu of dower under Act No. 259, Pub. Acts 1909.
    3. Same — Alimony—Sufficiency.
    Twelve hundred dollars awarded to the wife in gross is not inadequate out of property of the husband and out of the joint estate to neither of which had the wife contributed, where the entire property was worth about $5,000, was subject to certain mortgages aggregating $900, and where the husband was much older than the wife and had six children dependent on him.
    4. Same — Decree—Lien—Mortgage.
    But it was not a proper method to secure the payment of alimony to decree that the husband execute a second mortgage, maturing in three years at six per cent, interest, upon the joint estate; in lieu whereof it is ordered that the alimony be  paid in sixty days, and that it constitute a lien on all the real and personal property.

    Appeal from Wayne; Donovan, J.
    Submitted January 10, 1912.
    (Docket No. 29.)
    Decided February 10, 1912.
    Bill by Siegmund C. Brasch against Charlotte Brasch for divorce. Upon a cross-bill filed by defendant a decree of divorce was awarded her and from the alimony fixed she appeals.
    Modified and affirmed.

      H. H. Greenberg and Geo. X. M. Collier, for complainant.

      Slomcm & Sloman, for defendant.

       Validity of provision in decree for alimony declaring a lien on husband’s personalty, see note in 30 L. R. A. (N. S.) 1062.
      Money decree for permanent alimony or separate maintenance as lien on real property, see note in 25 L. R. A. (N. S.) 132.

   Brooke, J.

This is a divorce case in which defendant and cross-complainant secured a decree upon the ground of extreme cruelty. She has appealed from that portion of the decree fixing alimony, which is as follows:

“And it is further ordered, adjudged, and decreed that the said Siegmund C. Brasch pay to the said Charlotte Brasch the sum of $1,200 in manner following: He shall execute at once a second mortgage to be paid on or before three years from date, with 6 per cent, interest, payable semi-annually, and the said Siegmund C. Brasch shall have the right to pay the entire sum at any time before said three years at his option. Said second mortgage shall be given upon the real estate now owned by complainant and defendant jointly, described as follows: Lot No. 12 of J. W. Johnson’s subdivision of Brevoort farm north of Michigan avenue, being the eastern five-twelfths part-of private claim No. 20, being in the city of Detroit, Wayne county, Mich.”

The parties were married in August, 1908. Within one month the wife left, or was compelled to leave, her husband, and remained away from him nearly three months, during which time she filed a bill for divorce against him. This cause was adjusted between the parties, and she returned to her husband in December, 1908, and marital relations were resumed. At the time of her return her husband caused the title to a certain piece of real estate, located upon Michigan avenue, to be placed in the names of himself and wife as tenants by the entirety. The parties lived together on this occasion until July, 1909, a period of about six months, since which time they have been separated. The entire estate owned by the husband at the time of the decree had been accumulated by him prior to his marriage with the cross-complainant. It was found by the circuit judge (and with this finding we agree) to consist of the following items: (a) The Michigan avenue property, the title to which was held by the entirety, worth $3,000 and subject to two mortgages, aggregating $900. (6) A contract interest in a house and lot on Henry street upon which complainant had paid $1,800; (e) Personal property of the value of $232.

Deducting the amount of the mortgage from the value of the Michigan avenue property, a balance of $2,100 is found, in which the wife has a one-half interest, which may not be diminished in this proceeding. Brown v. Brown, 144 Mich. 654 (108 N. W. 288); Delor v. Delor, 159 Mich. 624 (124 N. W. 544).

The court had authority to deal with the property held by the entirety under 3 Comp. Laws, § 8640. Jeske v. Jeske, 147 Mich. 367 (110 N. W. 1060).

There being a sum included in the decree in excess of the value of the estate owned by the wife in the realty, it. may be presumed that that sum was added in lieu of dower, in accordance with the provisions of section 1, Act No. 259, Pub. Acts 1909.

It is urged by counsel for appellant that the provision made in the decree is grossly inadequate. We are of opinion that it is a just award when due consideration is given to all the facts. In the first place, the wife in no wise contributed to the accumulation of any part of the estate; secondly, she is still a young woman unincumbered by children, thirdly, the husband is much older and has dependent upon him for support six children, all minors. Cummings v. Cummings, 50 Mich. 305 (15 N. W. 485).

While the amount of the award is not open to criticism* the time of its payment and the method of securing it adopted by the court should, we think, be changed. A decree will be entered in this court fixing the title to the Michigan avenue property in the husband alone. The award of $1,200 shall be paid within 60 days from the entry of the decree, and the amount thereof shall constitute a lien upon all the real and personal property of the complainant. A solicitor’s fee of |35 in addition to taxable costs is allowed to appellant.

Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


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    McINTIRE v. CARR.
    Appeal and Error — Correction op Bill op Exceptions — Motions — Supreme Court — Practice—Mandamus.
    The proper practice to review the action of the circuit court in refusing to include in a bill of exceptions matter desired by-appellant is by proposing an amendment to the bill as settled and reviewing by mandamus the refusal of the judge. It is not a correct method to move to remand the record for correction after the issuance of a writ of error.
    Assumpsit by Arthur F. Mclntire against Henry W. Carr. On motion of appellant to remand the record for amendment and correction.
    Submitted January 19,1912.
    (Calendar No. 24,867.)
    Motion denied February 10, 1912.

      John A. McKay, for the motion.

      Beach, O'Keefe & Rockwith, contra.

   Brooke, J.

A motion is made in this case by the appellant to remand the record for correction and amendment in certain specified particulars

It appears that in settling the bill of exceptions the circuit judge omitted to include therein certain matter which counsel for appellant believed to be material. To this action of the court appellant excepted, but took no steps to review such action. He caused the bill of exceptions, as settled and signed by the judge, to be printed and the record to be filed in this court. He now asks us to remand that record for amendment. We do not understand this to be proper practice. A party aggrieved by the action of the circuit judge in settling a bill of exceptions should make a motion in the court below that the bill be amended in the desired particulars. Upon the denial of such motion, the action of the circuit court may be reviewed in this court by mandamus. Crane v. Wayne Circuit Judge, 24 Mich. 513, 3 Cyc. p. 52, and cases cited in note 48. If this course is followed, this court, upon consideration of the return to the order to show cause, is enabled to act intelligently, otherwise such action is not possible.

Touching the present application, from an examination of the proposed amendments in connection with the printed record now on file in this court, it would seem that the omitted matter, if it had been included in the bill of exceptions, would in no respect aid this court to a proper understanding of the questions involved.

The motion is denied, with costs.

Moobe, C. J., and Steebe, McAlvay, Blaib, Stone, and Osteandeb, JJ., concurred. Bibd, J., did not sit.


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    OSTERHOUS, ex rel. VANDER VEEN, v. VAN DUREN.
    1. Quo Warranto — Public Officers — Justices of the PeaceTime to Institute Proceedings.
    Proceedings in the nature of quo warranto to test title to public office should be commenced before the term has expired or is near the time of expiration, although if commenced seasonably the action may be prosecuted to final judgment after the term has expired, for the recovery of damages or costs claimed by relator.
    3. Same.
    Since the court will exeroise its discretion to proceed to final judgment after the term of office, only in case public interests require it, a demurrer to an information in the nature of quo warranto was rightly sustained where respondent’s term of office as justice of the peace expired July 4, 1911, and the proceeding was not instituted until June 32, 1911.
    Error to Ottawa; Padgham, J.
    Submitted January-12, 1912.
    (Docket No. 56.)
    Decided February 10, 1912.
    Information in the nature of quo warranto by Louis H. Osterhous, prosecuting attorney of Ottawa county, on the relation of Engbertus Vander Veen, against Arthur Van Duren to test the title of respondent to the office of justice of the peace. An order sustaining a demurrer to the information is reviewed by relator on writ of error.
    Affirmed.

      M. A. Sooy (Lillie & Osterhous, of counsel), for appellant.

      Diekema, Kollen & Ten Gate, for appellee.
   Stone, J.

This was a proceeding by information in the nature of a quo warranto to inquire by what right the respondent held the office of justice of the peace. The information was filed and summons issued on June 2, 1911.

The information alleges:

First. That Arthur Van Duren, of the city of Holland, for the space of 25 months last past, had held, used, and exercised, and still did hold, use, and exercise, the office of justice of the peace without any legal election, appointment, warrant, or authority whatsoever therefor.
Second. That at the election of 1907 said Arthur Van Duren was duly elected to said office of justice of the peace, which office he duly accepted, and duly qualified and exercised the functions thereof.
Third. That on the first Monday in May, 1909, said respondent was elected by the common council of the city of Holland to the office of city attorney, which office he accepted, and that on May 1, 1910, he was again duly elected to said office, and again qualified, and exercised the functions of said office until the first Monday of May, 1911.
Fourth. That said Arthur Van Duren again assumed the functions of said office of justice of the peace, and that since the first Monday of May, 1911, he had usurped, intruded into, and unlawfully held and exercised the functions of said office of justice of the peace. Respondent’s term of office as justice of the peace expired on July 4, 1911.

To this information, on June 22, 1911, the respondent demurred upon the following grounds:

(1) That relator had been guilty of such laches and such unreasonable delay in. filing an information as to be barred from the relief he seeks.
(2) Because the relator has waited with the filing of his information until a time when the right of respondent to hold the position of justice of the peace in the city of Holland has so nearly expired that the inquiry would be of no effect, the term of office of said respondent as such justice expiring on July 4, 1911.
(3) That no substantial benefit would inure to relator by the granting of the petition, and the term having expired, or nearly so, the information is filed simply to try the abstract title to the office.
(4) Because it appears from the said information that respondent was duly and legally elected as a justice of the peace in 1907, and no legal act is shown whereby he has forfeited his right to said office.
(5) Because the office of city attorney of the city of Holland is not incompatible with the holding of the office of justice of the peace, nor does the information allege that the office of justice of the peace was vacated by reason of accepting the said office of city attorney.

The case was heard before the circuit court in August, 1911, after the term of office of said respondent as justice of the peace had expired, and the demurrer was sustained, and the information was dismissed. The relator has brought the case here by writ of error.

It will be noticed that the information does not aver that the relator or any other person was claiming the office of justice of the peace, but the proceeding purports to have been instituted in the public interest for the sole purpose of ousting respondent.

Ordinarily proceedings to try title to a public office cannot be brought after the term has expired, or when it is so nearly expired that the inquiry would be of no effect; but an action commenced during the term of office may be prosecuted to final judgment after the expiration of the term, for the recovery of damages or costs which relator has sustained or incurred by the wrongful assumption of authority. 32 Cyc. p. 1432, and cases cited, including People v. Hartwell, 12 Mich. 508 (86 Am. Dec. 70). But nothing of that nature is claimed here.

Where no substantial benefit would inure to the relator, the proceeding will not as a general rule be continued after the term has expired merely to try the abstract title to the office. State v. Porter, 58 Iowa, 19 (11 N. W. 715). In the cited case, when it came on for hearing in the district court, it was suggested to the court that the term of office in dispute had expired. The court thereupon dismissed the case. The supreme court held that, the term of office having expired, no relief should be granted, and said:

” Courts are not organized for the purpose of determining mere abstractions. The court ought not to be required to spend its time in the accumulation of a bill of costs, for no other purpose than that of determining which party should pay them. As no vital question remained for determination, the further ' prosecution of the case would have been vexatious and unjust.”

This court has held that in the case of an intrusion upon an office the court has discretion to proceed to judgment or not according as the public interests do, or do not, require it, and will not do so where no good end will be sub-served by it. People v. Nappa, 80 Mich. 484-488 (45 N. W. 355); Vrooman v. Michie, 69 Mich. 42 (36 N. W. 749). We think that this is a case for the application of the above-stated rule, and the judgment of the circuit court is affirmed, with costs against the relator, Vander Veen.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander. JJ., concurred. Bird, J., did not sit.


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    CLAIR v. BATTLE CREEK JOURNAL CO.
    1. Libel and Slander — Justification—Privilege—Negligence —Newspapers.
    In an action for libel, defendant, a newspaper, was not privileged on the ground that it made inquiry before publishing the objectionable article in which plaintiff was charged with murder and marital infidelity; it appearing that inquiry was made of the looal police officials who knew nothing about the facts.
    2. Same.
    .The article was actionable per se.

      8. Same — Damages—New Trial — Excessive Verdict.
    The court, on appeal, will not set aside a verdict on the ground that it was excessive unless satisfied that the result was reached as a consequence of gross error, passion, bias, or corruption.
    4. Same — Words Libelous Per Se.
    General damages for injury to plaintiff’s reputation, feelings, etc., are allowable without proof of special injury from words libelous per se, and as bearing on the amount the recklessness or care of defendant in publishing the statements complained of was a proper subject of consideration by the jury.
    5. Same — Good Faith — Mitigation of Damages.
    Defendant’s alleged good faith did not affect plaintiff’s right to compensation for injury to feelings and reputation.
    6. Same.
    And a verdict of §1,500 was not so excessive as to require the granting of a new trial.
    Error to Calhoun; North, J.
    Submitted January 34, 1913.
    (Docket No. 45.)
    Decided February 10, 1912.
    Case by Myrtle Clair against the Battle Creek Journal Company for libel. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      D. G. Salisbury and Burritt Hamilton, for appellant.

      James M. Powers and Palmer & Palmer, for appellee.
   Stone, J.

This is an action on the case for libel, in which the plaintiff recovered a verdict for $1,500, of which $500 was for damages to the plaintiff’s feelings, and $1,000 for damages to plaintiff’s reputation.

There was a motion by defendant for a new trial, one ground of which was that the verdict was excessive. The motion was denied by the circuit judge, who stated in his reasons filed that in his opinion the verdict was not excessive in amount. This refusal was duly excepted to by the defendant. Upon a judgment having been entered for the plaintiff, the defendant has brought error.

The only assignment of error urged in this court by defendant in its brief and in the oral argument of counsel is:

“That the trial court erred in denying defendant’s motion for a new trial, and in holding that the verdict rendered by the jury was not excessive in amount.”

The article published by the defendant in the Battle Creek Journal of December 1, 1908, and complained of, is as follows:

“ Marshall Murderess. Had Checkered Career. Woman Arrested in Los Angeles for Killing Street Car Conductor Known. .Wanted to Marry Him. Secures a Divorce for That Purpose and Very Much Disappointed.
“-The news of a double tragedy in which a former Marshall girl committed a double crime was received here Sunday. Mrs. Myrtle Clare, aged twenty-six and formerly Miss Myrtle Colby, of Marshall, shot and mortally wounded John L. Lambert, a street'car conductor, then killed herself in a rooming house in Los Angeles, Cal., Thanksgiving Day. Lambert was taken to a hospital where he died. Miss Colby lived in Marshall about ten years ago. She came to that city from Springport, and was a rather attractive young woman. She worked for Chas. A. Kilboume, who conducted a restaurant in a building now occupied by Jarius Raub, and resided in a West State street building. From there she went to Jackson. She was married to Ira Clare of Ooldwater, Mich., and a few years ago and soon after the couple went west, where Mr. Clare secured a position with the Los Angeles Ice and Cold Storage Co. It is said that their married life was not as happy as it might have been and Mrs. Clare became acquainted with Lambert, a married man who had separated from his wife. Mrs. Clare applied fora divorce from Clare, intending to marry Lambert. Her sentiments were not reciprocated very cordially by the Street Car Conductor, and it is believed the deed was inspired by desperation over the marital complications. It is said Lambert had a divorce, and that Mrs. Clare could not secure one, hence the crime.”

The defendant gave notice, under its plea of the general issue, that at the time of the publishing of said article it was its duty to gather and publish items of news and interest, and that in the regular course of its business said news item was clipped and taken from an article appearing in the Marshall Chronicle, a newspaper published at the county seat of Calhoun county, the then home of said plaintiff, as other articles are clipped from other papers of said defendant’s exchange list throughout the State, in its regular course of business; and that said defendant published the same in good faith, without malice toward the plaintiff or any other person, and in pursuance of a duty owing to the public at large; that the plaintiff did not, before bringing suit, give notice to the defendant to publish a retraction, and did not allow the defendant a reasonable time to make such retraction, and make such amends as were reasonable under the circumstances of the case.

It appeared upon the trial that similar articles had been published in a California newspaper and in six other Michigan newspapers, including the Marshall Daily Chronicle. It also appeared that the article published by the defendant differed in many respects from the article published by the Marshall paper, especially in that the article published by the defendant gave correctly the age of the plaintiff, and correctly stated that plaintiff came from Springport. No retraction was ever demanded by the plaintiff, and defendant’s attention was not called to the matter until a year after the publication, when this suit was commenced. The plaintiff spells her name “ Clair ” and never went under the name of “ Clare.” She is the divorced wife of Marshall A. Clair, and never knew any such person as Ira Clare. She was never employed by, and never knew, Chas. A. Kilbourne. Her maiden name was Myrtle Colby. She was born in Springport, Mich., and resided thereuntil she reached the age of 17 years. She then went to Marshall, where she remained about one year. She afterwards resided in Jackson, Detroit, Battle Creek, and Coldwater, in this State. At the last-named place, she was married to Marshall A. Clair in February, 1907, and the same spring they moved to Monrovia, Cal., where they lived until about July 15, 1907, when they separated, and plaintiff’s husband returned to Michigan. In September, 1907, she went to Los Angeles, Cal., where she worked in a laundry until about the 1st of April, 1908, when she went to Tonopah, Nev., where she worked until about the 1st of August, 1908, when she went to Seattle, Wash., where she had resided with her mother and stepfather down to the time of the trial. Plaintiff secured a divorce from her husband at Seattle, Wash., in January, 1910, on the grounds of nonsupport and desertion. At the time of the publication complained of, plaintiff was at her stepfather’s ranch near Aberdeen, Wash.; she had been away from Los Angeles upwards of seven months. During the greater part of the time since leaving Springport, the place of her birth, she has been a wage-earner in various industrial pursuits, principally in laundries.

The plaintiff testified that she intended to make Seattle, Wash., her permanent home. She received a clipping containing the article complained of; it was sent to her by mail. She received letters from friends in Michigan and Wisconsin, relating to the article. She testified:

“ My feelings were somewhat shattered when I read this article. At that time, I was visiting at my stepfather’s ranch, and I told my friends and acquaintances about it, and showed them the clipping. It wasn’t the article I cared so much about, as it was the imputation that I had committed a crime. * * * I was affected in my feelings upon receiving those letters and the information from the public of this article complained of, of course. I could not state just exactly how I felt. I was at first very much surprised, and then, of course, I felt that I never would care to come back here while it was talked about, and while it was charged to me.”

She testified that she never knew anybody in Los Angeles by the name of John Lambert, a street car conductor.

The article in question charged the plaintiff (if she was the person intended, which was a question for the jury), not only with the heinous crime of murder, but that she became acquainted with Lambert, a married man who had separated from his wife; and that plaintiff applied for a divorce from her husband, intending to marry Lambert. Other witnesses testified that they read the article in the Battle Creek Journal, and that they discussed it and believed it, and that they believed that it referred to the plaintiff. The issue containing the article complained of had a circulation of 2,279 copies, principally in Calhoun county. A few copies went into adjoining counties; and there was a limited exchange of newspapers throughout the State of Michigan. It must be conceded that the words complained of are actionable per se.

Counsel for defendant claim that the publication was an honest mistake, made in an honest attempt to enlighten the public, and that in such a case damages should be reduced to the minimum, and they cite the cases of Bailey v. Publishing Co., 40 Mich. 251; Finnegan v. Free Press Co., 78 Mich. 659 (44 N. W. 585).

In view of this reference to “an honest attempt to enlighten the public,” we cannot overlook the testimony of the city reporter of the defendant, who furnished the article in question, which in the publication was not credited to any other paper. This city reporter testified as follows:

“We try to print the truth. I don’t know as I devoted two or three hours to the investigation of the truth of this item. I should judge half an hour, possibly more. I remember I made as complete an inquiry in regard to the item as I could through the local police officials here. * * * I went in person to the police department, and my impression is I saw the desk sergeant; he said he knew nothing about it, and I inquired of the chief, too,, and he did not know anything about it. And with the statement that they knew nothing about it, well, it was published.”

In these days of telegraph and telephone communication, the inquiry might well have gone further.

It is admitted that the law presumes damages where the words are actionable per se; and that the amount of these damages rests primarily in the sound discretion of the jury, under a proper charge from the court. No error is assigned upon the charge. The jury were instructed that the damages recoverable were compensatory only, and that no exemplary or punitory damages were claimed or recoverable in the suit.

Although there is no fixed measure in dollars, applicable in such a suit, since the damages must vary according to the circumstances of each case, yet the damages awarded ought to be reasonably proportionate to the injury done; and hence a verdict is open to inspection and revision by the court, for the purpose of determining whether the jury were guided by a sound discretion in fixing damages.

The jury were charged that under the pleadings and evidence the plaintiff was entitled to recover actual damages for such injury to her feelings and reputation as was shown by the evidence. This language, while criticised by counsel, is not made the basis of any assignment of error. In the connection in which it was used, it was not erroneous. A reviewing court should not set aside a verdict on the ground of excessive damages, unless it is satisfied that it is the result of gross error, passion, bias, corruption or prejudice. 25 Cyc. p. 557, and cases cited.

Where the words of an alleged libel are actionable per se, the jury may be allowed to bring in general damages, though no special damages have been alleged or proved. Simons v. Burnham, 102 Mich. 189 (60 N. W. 476).

To the point that the defendant is liable for all actual damages sustained, including injury to the feelings and reputation of the person libeled, and as bearing on this element of damages, the recklessness, carelessness, or negligence of its employés in respect to the publication may be considered by the jury. See Long v. Printing Co., 107 Mich. 207 (65 N. W. 108).

Without proof of injury from the words, the plaintiff was entitled to recover the actual damages to her reputation and feelings which the law presumes will flow from the commission of the act. And good faith in the publication of a libelous charge in no way affects the defendant’s liability to compensate the plaintiff for her actual damages to reputation or feelings. Schattler v. Daily. Herald Co., 162 Mich. 115 (127 N. W. 42).

In this case the plaintiff, a young woman of good character, without justification, was paraded in a sensationally composed newspaper article as a “ murderess,” her chastity at least called in question, and illicit love attributed as the motive for her crime. We cannot say that the damages were excessive.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steers, Mo Alva y, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.