text:
    COWDREY v. COWDREY.
    Divorce — Extreme Cruelty — Equity—Public Policy.
    In proceedings for a divorce instituted by tbe wife on the ground of extreme cruelty, where the record shows that she has been guilty of grave offenses against the marital relation, although not guilty of adultery, a divorce is not justified on the ground of public policy, and the decree of the court below dismissing the bill is affirmed, on appeal.
    On the question of charges of adultery as grounds for divorce, see notes in 18 L. R. A. (N. S.) 300; 34 L. R. A. (N. S.) 360.
    Appeal from Gratiot; Moinet (Edward J.), J.
    Submitted June 16, 1920.
    (Docket No. 22.)
    Decided July 20, 1920.
    Bill by Maude G. Cowdrey against Joseph E. Cowdrey for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Smith & Hunter, for plaintiff.
    O. L. Smith and Kelly S. Searl, for defendant.
   Brooke, J.

The parties to this action were married in the year. 1900. At that time, plaintiff was about 18 years of age, while the defendant was 15 years her senior. He was a widower, having one child. A short time after their marriage, they moved upon a 40-acre farm which had belonged to plaintiff’s parents, both of whom were dead at that time. She had some brothers and sisters, the interests of all- of whom were subsequently acquired by the parties hereto. Aside from her interest in the farm, plaintiff inherited another small property which realized some $275.

Defendant, at the time of his marriage, had $800 or $900 of his own; and inherited from his first wife the life use in $700 or $800 more. All the money received frbm any source by either party appears to have gone into the payment for the old homestead.

After about five years of life on this farm, it was sold for $2,200, and a farm of 60 acres a short distance east of Ithaca, Michigan, was purchased for the sum of $4,800. Here the parties continued to live until plaintiff filed her bill for divorce herein, in April, 1918. During the early part of her married life, plaintiff bore to defendant two children, both of whom died in infancy.

About the year 1911, defendant engaged the services of a young lad named Evit Dunn, to assist him in his farming operations. Dunn, at that time, was about 16 or 17 years of age; and from then to the end of the year 1917 was a member of the household of the parties hereto more than half the time. For one or more seasons he worked the farm on shares.

During the entire married life of the parties, it has been the defendant’s custom to be away from home a good share of the time. He was fond of hunting and fishing, making frequent excursions in pursuit, of such sport. Upon some of these occasions, when he was absent, Dunn remained upon the farm. The record discloses the fact that the relationship between these three people was of the most cordial and intimate character; Dunn, apparently, enjoying the confidence and affection of both parties. No trouble arose until late in the year 1917. Earlier in that year, Dunn had been called in the draft and defendant had made an unsuccessful effort to secure his. exemption upon the ground that he was necessarily engaged in agricultural pursuits. Thereafter, Dunn was sent to Camp Custer, in Battle Creek, Michigan, for training.

It seems that during all the time after Dunn became a member of the family and when absent for considerable periods, it had been customary for him to correspond with plaintiff and defendant, the letters usually being written to plaintiff. During the later years of their association, this correspondence between plaintiff and Dunn seems to have been carried on in a surreptitious manner, the plaintiff sending her letters to Dunn under cover of letters written by someone else, and receiving Dunn’s replies in the same way. None of the earlier letters are found in the record. Two (one dated December 18,1917, and the other, undated, but apparently of about the same date) are printed in the record. They are couched in language which demonstrates that Dunn had conceived for the plaintiff a highly romantic attachment. They also indicate that Dunn believed plaintiff was being illtreated and threatened by defendant. No letters from plaintiff to Dunn are found in the record, but plaintiff frankly admits that she carried on this correspondence with Dunn clandestinely for several years. She further frankly admitted that she was extremely fond of Dunn, but stoutly maintained that her relations with the young man had always been innocent.

About Christmas time, 1917, Dunn’s mother, who was visiting a daughter in Detroit, sent a telegram to plaintiff, asking her to meet her (Mrs. Dunn) in Battle Creek. It is undisputed that defendant knew' of' the receipt of the telegram; but he claims to have understood that plaintiff was to meet Mrs. Dunn in Detroit, rather than in Battle Creek. Early the following morning, plaintiff accompanied one of Dunn’s brothers to Battle Creek and there met the mother. All three of them saw Evit Dunn in barracks at the camp, and later went to Detroit together.

In the meantime, defendant discovered in his home the two letters from Dunn to plaintiff, and then, for the first time (according to his claim) he became suspicious that the relationship subsisting between Dunn and his wife was an improper one. He immediately went to Detroit, and, having learned that his wife and Evit Dunn and his mother would reach Detroit on a certain train, met them at the station. He took his wife away from her companions and to a hotel.

There is a sharp dispute in the record as to what occurred between the parties that night at the hotel. Plaintiff claims that defendant charged her with having committed adultery with D,unn, and demanded that she surrender her interest in the farm to him with the alternative that he would cause her arrest for adultery if she did not. The following morning, he returned to Ithaca with her, stopping for a few days at a hotel in that town, in order (as he says) that an opportunity might be afforded for Dunn to get back to camp before he and his wife should return to the farm. Early in January, 1918, they went home together, and remained there until the latter part of February, when plaintiff left him. Some time afterward, she filed this bill, charging the defendant with extreme cruelty!

It is her claim that about the year 1906 she suffered from vaginal cystic tumors; that, despite her condition and the fact that she informed the defendant that sexual intercourse was extremely distasteful and highly painful and that it was always followed by hemorrhage, defendant insisted upon gratifying his sexual demands to an abnormal degree; that this continued until about the year 1912, when a “growth” appeared in the vagina which gradually became enlarged until sexual commerce was impossible; that defendant was well aware of this condition and consented to and did, at length, desist from all attempts to perform the sexual act, though he frequently upbraided her for her condition and said that no man could live “that way.” After their return to the farm, in January, 1918, it is the claim of plaintiff that defendant continued to threaten her and to demand that she surrender to him her interest in the farm.

Defendant admits that many conversations were had during those weeks between the parties and that he urged her to place the title of the farm in his name; but contends that he never demanded that she should “sign off.”

Four or five days before her final departure, an episode occurred in the course of which (it is plaintiff’s claim) defendant attempted by force to have sexual intercourse with her. This defendant denies, but admits that he demanded that she should submit to a digital examination in order that he might assure himself that her claims as to incapacity were well grounded. Some personal violence was used on this occasion, the exact extent of which being in dispute.

The answer of the defendant is a denial of the allegations of the bill, and charges plaintiff with misconduct with Evit Dunn, but does not charge adultery. And many times, in the course of a long hearing, counsel for defendant distinctly disclaimed that a charge of adultery had been made or that defendant desired any affirmative relief.

The learned circuit judge, under the authority of Kellogg v. Kellogg, 171 Mich. 518, and kindred cases, dismissed plaintiff’s bill on the ground that she had been guilty of such misconduct as precluded her from relief in a court of equity.

While we are satisfied from a careful reading of this very voluminous record that plaintiff hp,s not been guilty of adultery with Evit Dunn, we cannot overlook the fact that, according to her own admissions, she has been guilty of very grave offenses against the marital relation. It goes without saying that no discreet wife would have engaged in a clandestine correspondence with one of the other sex, not related to her, no matter how intimate and innocent the relations between the parties happened to be; and it is hardly conceivable that a mere boy (such as the record shows Evit Dunn to have been at the time this correspondence was carried on) would have engaged in such an enterprise without encouragement, either active or passive, from the object of his passion.

We have given careful consideration to the claim advanced on the part of the plaintiff that this case falls within that line of cases, a good example of which is Weiss v. Weiss, 174 Mich. 431, and that a divorce should be decreed between the parties upon the ground of public policy; but we feel that, while the record discloses no such degree of -moral turpitude on the part of the wife as was evidenced in the case of Kellogg v. Kellogg, supra, to grant plaintiff relief in the case at bar would be to create a dangerous precedent which the court should avoid.

During the pendency of the action, this court allowed the plaintiff the sum of $400 on account of attorneys’ fees and expenses, and $5 per week alimony. She will recover in this court an attorney fee of $200, plus her taxable costs, in’ both courts, less the sum of $400, heretofore allowed.

The decree must be affirmed.

Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, C. J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    WILSON & CO. v. NIFFENEGGER.
    1. Evidence — Bills and Notes — Letters Authorizing Credit— Admissibility.
    Where plaintiff wrote several letters to a local bank stressing its financial responsibility and authorizing the bank to honor drafts on it with bills of lading or express receipts attached made by a certain buyer covering shipments of poultry, and defendants, learning of said letters and relying thereon, shipped a consignment of poultry to plaintiff which it received and accepted but repudiated the draft, claiming to have paid said buyer therefor, although defendants had followed plaintiff’s instructions, said letters held, admissible, in recoupment, to show that the consignment was secured by plaintiff on the strength of its credit.
    2. Bills and Notes — Unaccepted Draft — Estoppel.
    Although the payee of an unaccepted check or draft has no interest in the drawer’s funds, and cannot maintain an action against a drawee thereon, he does have a right of action against a drawee who by some recognition in writing may have estopped himself from deifying liability.
    3. Same — Acceptance.
    Any words amounting to a promise to pay constitute an acceptance.
    4. Same — Negotiable . Instruments — Acceptance Before Drawn.
    Under the negotiable instruments law (2 Gomp. Laws 1915, §§ 6176, 6179) a bill may be accepted before it is drawn and be deemed an actual acceptance in favor of every person, who, upon the faith thereof, receives it for value.
    Error to Van Burén; Des Voignes (L. Burget), J.
    Submitted June 8, 1920.
    (Docket No. 2.)
    Decided July 20, 1920.
    Assumpsit by Wilson & Company against Fred Niffenegger and others, copartners as Niffenegger Brothers, for goods sold and delivered. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      David Anderson, for appellant.

      Chandler & Bessey, for appellees.
   Steere, J.

Plaintiff is a corporation operating in bee'f and provisions, with packing houses in Chicago and other western points and branches at a number of leading cities, one of which is located at Grand Rapids, Michigan. Defendants are located in South Haven, Michigan, engaged in the meat business and had between February 16th and June 20, 1918, purchased of plaintiff bills of meat amounting to $463.66 on which was paid $321.83, leaving an unpaid balance of $141.83 which with legal interest to the time of the trial' amounted to $153.65. Owing to a counterclaim which they had against plaintiff, defendants refused to pay that balance and this suit was brought to recover the same in the circuit court of Van Burén county. Upon the trial plaintiff’s claim as above stated was admitted, the contention being over defendants’ claim of set-off.

The material facts in the case are practically undisputed. The court sustained defendants’ set-off and directed a verdict in their favor for $8.51, which, adding legal interest, exceeded plaintiff’s claim to that amount, and entered judgment accordingly. Defendants’ claim of set-off was for a consignment of 12 coops of chickens which they shipped by express, on December 28, 1916, .from South Haven to plaintiff at its branch office in Grand Rapids, Mich., and there delivered to plaintiff, but for which defendants have never been paid. Quantity, quality, price and receipt of same are not disputed. Plaintiff’s claim as to this shipment is that it had no contract relations with defendants, but bought the chickens from and paid for them to one Sauer.

The material circumstances in relation to the consignment of chickens, briefly stated, are as follows: On December 5, 1916, plaintiff sent a letter from its branch office to the Citizens’ State Bank at South Haven saying:

“It will be satisfactory for you to honor drafts made against us by Mr. F. M. Sauer covering shipments of poultry, provided drafts have bill of lading or express receipts attached, until further advice.”

On December 7th the bank replied stating it had not done business with Sauer along that line, and had no knowledge as to plaintiff’s standing — suggesting another method of taking care of such drafts; to which the plaintiff replied on December 9th stating in outline the magnitude of its undertakings, places of business, etc., with an offer to furnish references as to its financial responsibility, advising that its banking business in Grand Rapids was done at the Old National Bank.

On December 27, 1916, plaintiff again wrote the bank in part as follows:

“It will be satisfactory for you to honor drafts made against us by F. M. Sauer covering shipments of poultry, provided drafts have bill of lading or express receipts attached, until further advice.”

Sauer was operating in the vicinity of South Haven where he appears to have had some financial difficulties in former years as was known to defendants. On December 28, 1916, he approached and dealt with them in relation to 12 coops of chickens. Frederick Niffenegger, with whom he transacted the business, stated that, knowing Sauer’s reputation for honesty, he would not sell him anything nor give him any credit, but, having learned of “the arrangement that Wilson & Company had previously made with the bank,” went to the bank before dealing with Sauer, where the cashier told him of what assurances they had from plaintiff and showed him the correspondence. Thus assured, defendants took the draft from Sauer for the purchase price of the 12 coops of chickens within the limits specified in plaintiff’s letter and shipped them by express to plaintiff at Grand Rapids, turning in the draft by Sauer against plaintiff covering the shipment with express receipt attached to the Citizens’ State Bank of South Haven, receiving credit therefor. The draft and express receipt attached are as follows:

“$141.83
“South Haven, Michigan, December 28, 1916.
“At sight pay to the order of Niffenegger Brothers $141.83, twelve coops of poultry, 915 pounds, express receipts and invoice attached, value received, and charge the same to account of F. M. Sauer. To Wilson and Company, Ottawa avenue, Grand Rapids, Michigan.”

Attached to the draft is the following receipt:

“American Express Company, South Haven, 12-28-16.- Received from Niffenegger Brothers, subject to classifications and tariffs in effect on the date hereof, 12 coops of chickens value herein stated and warranted by shipper to be $141.83, consigned to Wilson and Company, Grand Rapids.”

Promptly in the regular course of business, on December 29, 1916, the bank sent the draft with express receipt attached to its correspondent in Grand Rapids for collection, where payment was refused by plaintiff on the ground that it had already paid Sauer for the chickens. Correspondence followed between the parties during which Albert Niffenegger sought to reach an adjustment by personal interview with the manager at Grand Rapids who delayed for a time under the excuse that he wished to look it up, but afterwards said that it was in the hands of the head office in Chicago where he advised defendant to go for an adjustment. When in Chicago some time later Niffenegger interviewed plaintiff’s manager there in regard to the claim and was referred back to the Grand Rapids branch as the proper authority to dispose of the claim. Thereafter defendants made purchases of meat from plaintiff as stated, paying the bills for same less the Sauer draft on plaintiff for the consignment of chickens as before related.

On return of the dishonored draft, and after some unsuccessful correspondence with plaintiff, the bank required defendants to take up the paper, which they did, endeavoring for some time by correspondence and personal interviews to induce plaintiff to adjust the claim. The Grand Rapids office insisted it was a matter for the Chicago office to look after and the Chicago office that it was entirely an affair of the Grand Rapids branch., On January 15, 1917, early in the correspondence on the subject, the Grand Rapids office in reply to a letter from defendants stated its reason and illuminated its refusal to honor the draft as proposed in its letter of December 27, 1916, “until further advice,” as follows:

“Referring to your letter of January 12th in regard to your draft being turned down for the 12 coops of poultry you shipped us, beg to advise that we paid Mr. F. M. Sauer for this poultry when he was in Grand Rapids. Our reason for doing this is to enable him to get money quickly. Mr. Sauer is not in our employ, but merely buys the stuff and we buy same of him. Believe Mr. Sauer- will send you the check direct for your chickens. Trusting this explains everything to your satisfaction and hoping to be favored with your shipments, and if ever you are in the market for beef, sheep, lambs, pork or provisions wish to advise you that we carry a full stock and will be glad to do some business with you.”

After getting the “money quickly” for defendants’ chickens Sauer did not send any check for the same, but did take the trouble to write plaintiff that he was sick and could not. Defendants did not act on the suggestion to favor plaintiff with further shipments,] but being “on the market” for some meats at a later time did some business with plaintiff in that line, paying all bills for their purchases, less their counterclaim of $141.83 involved here.

At conclusion of the proofs both parties requested a. directed verdict. Plaintiff’s contention, under its various assignments of error, .is in substance, that its claim is admittedly correct and defendants’ claimed set-off is not supported by any competent evidence,, no privity of contract being shown between the parties ; that the draft and correspondence relied upon by defendants were not competent evidence of liability and their admission for that purpose was error. Those points are thus stated in plaintiff’s brief:

“(1) The draft and letters show no liability of plaintiff to ■ defendants.
“(2) There is no evidence of a liability of plaintiff' to defendants on the basis of a sale and independent of the draft.
“(3) If there, is such evidence it only raised a question for the jury.”

It is undisputed that defendants knew Sauer’s record and would not “sell him anything nor give him any credit” on his own responsibility, as Fred Niffenegger testified. They did not deliver the shipment to him or give him any control over it. Actuated by and depending on information from the bank as to how they could collect their pay from plaintiff for the consignment, they cooped the chickens for transportation and shipped them to Grand Rapids in their own name as consignors direct to plaintiff as consignee, as they testify and the express receipt shows. Plaintiff there received from the express company and appropriated the property so sent .it by defendants. So far as disclosed by this record, there is force in defendants’ contention that Sauer only figured in the transaction as a convenient medium between the parties, acting for plaintiff in the purchase and issuing of the draft in payment for poultry solcLto or for it by defendants. Conceding the letters do not in themselves tend to show contract relations between the parties, they were fairly admissible to show the consignment was secured by plaintiff on the strength of its credit; that, knowing Sauer’s standing and lack of credit in that community, and desiring to purchase produce through him in that locality, plaintiff stressed its own financial responsibility through a local bank and promised to pay under specified conditions for any purchases negotiated by Sauer and shipped to it.

Touching the draft, plaintiff’s counsel urges, with supporting citations, that “under the law as settled in this State the payee of an unaccepted cheek (or draft) has no interest in the drawer’s funds and cannot maintain an action against the bank (or drawee) thereon.” As a general rule in the law of negotiable paper this may not be questioned where there is nothing else in the case which the holder of the draft can rely on, but the payee of an accepted draft (or check) does have a right of action against the acceptor, or a drawee who by some recognition in writing may have estopped himself from denying liability.

But a short time before this transaction plaintiff had twice written the South Haven bank accepting in effect “until further advice” drafts which it stated “Mr. Sauer will draw” against it on a stated basis of price, covering shipments of poultry to it, provided the drafts had bill of lading or express receipts attached. As the bank was not in the poultry business those letters were manifestly for the purpose of communicating to those who were, the information that plaintiff underwrote purchases shipped to it as specified, through a medium in which they had confidence, and such was the result. Relying upon it defendants cooped for shipment and expressed the poultry to plaintiff on the afternoon of December 28th, at once turning into the bank at South Haven Sauer’s draft on plaintiff for the consignment, within the price authorized, with express receipt attached and in the regular course of business the South Haven bank, on December 29th, forwarded the same to Grand Rapids for collection, all in strict compliance with the conditions specified in plaintiff’s letters. Having received the consignment plaintiff accepted and appropriated the poultry but repudiated the draft.

Whether Sauer beat the draft and chickens to Grand Rapids does not appear, but they would not in any event be available to him as evidence of ownership or control over the shipment. Plaintiff received the consignment from defendants, sent by express, while the draft and express receipt came to it for payment through a local bank. Its letter to defendants stating its reason for dishonoring the draft for the chickens admittedly received from them was that it paid Sauer when he was in Grand Rapids “to enable him to get money quickly,” if not self-explanatory can best be passed by without expository reflections. Plaintiff intended and well knew when it wrote the bank stating in substance that it would accept “until .further advice,” Sauer’s drafts for chickens shipped it, that the consideration to it for the drafts would come from the parties furnishing the chickens.

'.Any words amounting to a promise to pay constitute an acceptance. It is undisputed that the shipment of the consignment to plaintiff, the preparation and execution of the draft, and all steps taken in the transaction fully complied with the conditions laid ■down by plaintiff in its letter stating in substance that it would pay drafts when those conditions were complied with. It was the opinion of the trial court, in view of the undisputed evidence showing all conditions laid down by plaintiff had been observed, that this draft was at the time presented for payment an accepted draft upon which plaintiff had become liable to the holder. That view does no violence to the law of negotiable paper.

Under our negotiable instrument law, chapter 119, 2 Comp. Laws 1915:

“Sec. (6176): An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value.”
“Sec. (6179): A bill may be accepted before it is signed by the drawer, or while otherwise incomplete or when it is overdue,” etc.

The Supreme Court of the United States, speaking through Chief Justice Marshall, long since said:

“Upon a review of the cases which are reported, this court is of an opinion that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding upon the person who makes the promise.” Coolidge v. Payson. 2 Wheat. (U. S.) 66.

The course adopted by defendants in this transaction was suggested by plaintiff’s letter which they carefully complied with, taking the draft drawn by Sauer on the credit of the letter describing it in terms not to be mistaken. After receipt of defendants’ shipment, which was the consideration therefor, plaintiff dishonored the draft. Defendants were entitled to recover by way of set-off the undisputed value of the goods so furnished plaintiff under the facts disclosed by this record.

The judgment is affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Fellows, J. Per Curiam.

text:
    DETROIT MORTGAGE CORPORATION v. SECRETARY OF STATE.
    1. Corporations — Foreign Corporations — Board of Appeals —
    Authority to Act.
    Under 2 Comp. Laws 1915, § 9064, the only provision for an appeal from the decision of the secretary of State is where a portion of the tangible property of a foreign corporation is within, and a portion without, the State, and where all of the property of the corporation was within the State the board of appeals was without authority to act.
    2. Same.
    Said board of appeals is an administrative body, created to determine facts, but not vested with judicial powers and not authorized to settle legal questions.
    3. Same — Foreign Corporations — Admission in Michigan — Franchise Fee — Value of Stock.
    Under the law of the State of Delaware (chap. 113, Laws 1917) authorizing the issuance of stock having no fixed value, but providing that for the purpose of franchise fees such stock should be taken to be of the par value of $100 each, such provision is a part of the charter of all corporations organized thereunder, and when a corporation so organized seeks to do business in Michigan such valuation must be taken as the basis for the franchise fee to be paid
    _ by it under 2 Comp. Laws 1915, § 9067. .
    Mandamus by the Detroit Mortgage Corporation, a foreign corporation, to compel Coleman C. Vaughan, secretary of State, to issue a certificate of authority to transact business in this State.
    Submitted June 22, 1920.
    (Calendar No. 29,214.)
    Writ denied July 20, 1920.
    Re-argued January 18, 1921.
    Former opinion affirmed February 1, 1921.

      Stellwagen, MacKay & Wade, for plaintiff.

      Oliver Spaulding, for defendant.
    Plaintiff’s business is all conducted and its entire assets are located in the State of Michigan. It was incorporated May 5, 1917, under the laws of the State of Delaware with 250,000 shares of common stock of the par value of $10 each, and preferred stock of the par value of $2,500,000. It qualified as a foreign corporation to do business in this State. On June 9,1919, by an amendment duly filed in the office of the secretary of State of Delaware, it increased its preferred stock to the sum of $3,500,000, and provided that its common stock should be of no par value. The laws of the State of Delaware permit the issuance of stock having no par value. The act permitting this to be done among other things provides (Laws of Delaware 1917, chap. 113):
    “In any case in which the law requires that the par value of the shares of stock of a corporation be stated in any certificate or paper, it shall be stated, in respect of such shares, that such shares are without par value, arid wherever the amount of stock, authorized or issued, is required to be stated, the number of shares authorized or issued shall be stated, and it shall also be stated that such shares are without par value. For the purpose of the taxes prescribed to be paid on the filing of any certificate or other paper relating to corporations and of franchise taxes prescribed to be paid by corporations to this State, but for no other purpose, such shares shall be taken to be of the par value of one hundred dollars each.”
    After the amendment to its charter or articles of association plaintiff offered to pay to defendant secretary of State the franchise fee upon the increase of its preferred stock, but declined to pay any further franchise fee as a condition of the issuance of a new license to do business in this State. Defendant, upon the-theory that the laws of the State of Delaware became and were a part of plaintiff’s charter, declined to accept the franchise fee upon the preferred stock alone, but held that inasmuch as the State of Delaware where plaintiff was organized had fixed the sum of $100 per share for purposes of franchise fee assessment, payment of a franchise fee upon that basis must be tere made as a condition of doing business under the provisions of the act authorizing foreign corporations to transact business in this State (2- Comp. Laws 1915, § 9063, et seq.). Plaintiff not being satisfied with the views entertained by the secretary of State appealed to the board of appeal provided for in section 2 of the act (section 9064, 2 Comp. Laws 1915). This board sustained plaintiff’s contention, and at the same time ordered defendant to pay back to other foreign corporations which had paid under protest the franchise fees demanded by the secretary of State the excess beyond the amount the board’s ruling authorized. The secretary of State declined to accept the ruling of the board and this writ was applied for by plaintiff asking that defendant by mandamus be required to accept the sum of $500 as full payment due the State, to issue a certificate that it had complied with the act in question and is, therefore, entitled to do business in this State, directing the defendant to abide the decision of the board of appeal and to require him to desist from revoking plaintiff’s- license issued to it upon its first application before the amendment to its charter and which then authorized it to transact business in the State.
   Fellows, J.

(after stating the facts). It is apparent from the correspondence and other papers set out in this record that all of the parties including the board of appeal itself misconceived its functions. By section 1 of the act certain information is- required to be filed with the secretary of State. Sections 2 and 3 of the act are as follows:

“Sec. 2. From the papers so filed and the facts so reported and any other facts coming to his knowledge bearing upon the question, the secretary of State shall determine the proportion of the authorized capital stock of the company represented by its tangible property in Michigan. Any such corporation shall have the right on application, to be heard by the secretary of State touching the matter of the determination of the proportion of its capital stock represented by such property used in Michigan. Any, corporation aggrieved by the decision of the secretary of State, may, within ten days, appeal to a board of appeal, consisting of the auditor general, State treasurer and attorney general, whose decision in the matter shall be final.
“Sec. 3. Such company shall pay to the secretary of State a franchise fee of one-half a mill on each dollar of the proportion of its authorized capital stock represented by the tangible property owned and used in Michigan, determined as above provided. And in case such corporation has not at the time of application for admission carried on business at least six months outside of Michigan, it shall pay a franchise fee on its entire authorized capital stock, but such fee shall in no case be less than twenty-five dollars.”

It will be noted that under the concluding provision of section 3 foreign corporations situated as plaintiff is, which have not engaged in business outside of the State for six months, are required to pay the franchise fee upon their “entire authorized capital stock,” and that by the provisions of section 2 the determination of the secretary of State, which is reviewable by the board of appeal, is a determination of “the proportion of the authorized capital stock of the company represented by its tangible property in .Michigan.” The only provision for an appeal is where a portion of the tangible property is within and a portion without the State. In such case the decision of the secretary of State may be reviewed by this board of appeal, an administrative body, created to determine facts but not vested with judicial powers, and not authorized to settle legal questions. The proceedings of the board of appeal in the instant case were void. Plaintiff gained no rights under them, defendant was not bound by them.

The act in question was designed to regulate the admission of foreign corporations to the State, and to obtain a revenue by requiring as a condition to such admission the payment of a franchise fee. And in providing for the payment of a franchise fee the legislature quite carefully and specifically provided that the fee should be collected upon the authorized capital stock of the corporation. This is not a property tax and the value of the corporation’s assets do not in any way measure the amount to be paid except in those cases where a portion of the property is within and a portion without the State and then only in determining the “proportion” of its authorized capital stock represented by the tangible property within the State. Several States of the Union, Delaware included, have recently passed laws permitting corporations to issue stock having no par value. These laws have been passed since the act in question was originally enacted and we are informed since its last amendment. When one of the corporations so organized submits to defendant its papers, they show upon their face that the stock- had no par value; there is nothing upon the face of the papers showing the amount of the authorized capital stock. Defendant by the terms of the act could only grant license to do business here upon the payment of a franchise fee upon their authorized capital. He was therefore confronted with the proposition of refusing his certificate because our ¡statute did not authorize the admission of a foreign corporation so organized with no par value for its stock, leaving to this court the final determination of the correctness of his view, or of looking beyond the papers tendered ,to find a basis for determining the franchise fee. He chose the latter course. The question here involved is whether he was correct in his holding.

The State of Delaware could prescribe the terms and conditions under which corporations might be there organized. Such terms and conditions as it saw fit to prescribe regulated and controlled such corporations and became in effect a part of their charters. When by the provisions of the act of the legislature of that State corporations were permitted to issue stock with no par value, there was coupled with such right a proviso that for the purpose of franchise taxes such stock should be taken to be of the par value of $100 each. This provision was as effectively a part of the corporation’s charter as though written therein. And when such corporations came to this State seeking admission .here the secretary of State was authorized and required to examine all the provisions of their charters for the purpose of following the mandate of the legislature of this State that he collect, as a condition of here transacting business, a franchise fee upon their authorized capital stock. When he so examined such charters he found that the State of nativity of these corporations had fixed a value for taxation purposes of $100 per share. This made a basis for computing the franchise fee and is the only basis for such computation. Unless it may be used as a basis for such computation there is no authority to admit such corporations to do business in this State. We therefore hold that the no par value stock of corporations organized under the laws of Delaware must, for franchise fee purposes be taken to be of the par value of $100 each. The law of Delaware so provides. That law is a part of the charters of corporations organized under it.

In the instant case the plaintiff when originally incorporated in Delaware fixed the par value of its common stock at $10 per share; upon that par value it paid its franchise fee in this State. When it amended its articles of association to take advantage of the act of the Delaware legislature of 1917, it took with the advantages such disadvantages as ■ the act itself imposed. One of these disadvantages was fixing a value for taxation purposes of $100 per share. It therefore became amenable to section 5 of the act of this State under consideration (section 9067, 2 Comp. Laws 1915), and was required to pay the franchise fee therein provided for.

The writ will be denied.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.

On Rehearing.

Per Curiam.

We granted plaintiff’s application for a rehearing in this case. Additional briefs have been filed and the case has been argued orally. After again fully considering the case, we find no occasion to disturb our conclusion or the reasons underlying it.

The writ will be denied.

Brooke, J., did not sit.


author: Fellows, J.

text:
    THOMAS CANNING CO. v. PERE MARQUETTE RAILWAY CO.
    1. Appeal and Error — Pleadinq—Variance — Surprise — Harmless Error.
    In an potion by tbe consignee of a car load of beans against a railroad company for alleged damage to said beans by reason of tbe leaky condition of the car after arrival at destination, where the declaration counted on defendant’s liability as a common carrier, but on the trial and in his opening statement plaintiff’s counsel conceded that defendant’s liability was as a warehouseman, and defendant, whose defense was that its liability was that of a warehouseman, makes no claim of surprise, the action of the trial court in overruling defendant’s motion for a directed verdict because of the variance between the declaration and the proofs, JieM, not reversible error.
    2. Same — Amendments.
    Since the declaration might have been amended in the court below, and an amendment could be permitted in this court to save the judgment, this court will decline to reverse the judgment in favor of plaintiff because of the variance.
    3. Bailments — Liability oe Bailee — Burden oe Proof.
    In an. action against a railroad company for damage to beans, where the damage occurred after arrival at destination, and its liability is conceded to be that of a warehouseman, ah instruction by the trial judge that the burden of proof was upon the plaintiff to establish its case, and every element of it, including defendant’s negligence, by a fair preponderance of the evidence, but that, when plaintiff had shown that the beans were in good condition when delivered and upon arrival at destination, then the burden of proof was placed upon defendant to show that they were not damaged because of any want of care on its part, held, correct.
    4. Same — “Modern Rule” as to Bailee’s Liability.
    The tendency of the decisions of this court leads to the adoption of the so-called “modern rule,” that, where goods are delivered to the bailee in good condition, and are returned injured or in defective condition, or not at all, a presumption, of negligence on the part of the bailee at once arises, and the burden is upon him, if he would exonerate himself, to show due care.
    Error to Kent; McDonald (John S.), J.
    Submitted June 8, 1920.
    (Docket No. 9.)
    Decided July 20, 1920.
    Case by the Thomas Canning Company against the Pere Marquette Railway Company for damages to certain beans. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Norris, McPherson, Harrington & Waer (Shields, Merriam & Sleeper, of counsel), for appellant.

      Colin P. Campbell, for appellee.
   Fellows, J.

A car load of beans was shipped to plaintiff from Bay City May 14,1917, over defendant’s road. It arrived in Grand Rapids between May 17th and 20th. The beans were inspected before shipment and after their arrival in Grand Rapids and on both occasions were found to be in good, sound and dry condition. The car was also inspected both before the shipment and after its arrival in Grand Rapids and was found to be in good condition. Plaintiff left the beans in the car until July 8th when a considerable portion of them was found to be water-soaked and damaged. Plaintiff was charged and paid the usual demurrage charges. The plaintiff’s testimony tended to show that when it went to take possession of the beans, the roof of the car was leaking as were the ends and sides. This was denied by the defendant. In this action brought to recover its damages plaintiff counted on defendant’s liability as a common carrier. Defendant by way of notice under its plea of the general issue insisted that its liability must be measured by that of a warehouseman rather than that of a common carrier. Upon the trial plaintiff’s counsel conceded defendant’s liability was as a warehouseman and so stated in his opening statement. Its testimony was not objected to, there was no claim of surprise and not until the proofs were closed was any question made upon the declaration. At that time defendant moved for a directed verdict on the ground that the declaration having counted on liability as a common carrier, recovery could not be had as a warehouseman. This motion, which was overruled, presents the first question in the case. We are not impressed that there was reversible error in the ruling. The defendant received the beans as a common carrier. Its liability under the facts was reduced to that of a warehouseman; its defense was that its liability was only that of a warehouseman; it could not have been surprised, and its counsel did not claim surprise when plaintiff admitted the reduction of liability to that of a warehouseman. Defendant’s counsel made no objection to the admission of plaintiff’s testimony. The declaration might then have been amended, and we could permit an amendment here to save the judgment. Under these circumstances we decline to reverse this judgment for the variance between the declaration and the proofs.

The important question in the case grows out of defendant’s claim that the court erroneously instructed the jury as to the burden of proof and erroneously refused to give its request on the subject. The charge complained of is as follows:

“In this case the burden of proof is upon the plaintiff to establish its case and every element of it by a fair preponderance of the evidence. The burden of proof is upon the plaintiff to show that the defendant was negligent. When, however, the plaintiff has shown that the beans were in good condition when they were delivered for shipment in Bay City and were in good condition when they arrived in Grand Rapids, then the burden of proof is placed upon the defendant to show that the beans were not damaged because of any want of care on its part.”

The claim of defendant’s counsel appears in its sixth request which was as follows:

“The court instructs you that where liability is sought to be imposed on the carrier as warehouseman, the burden of proof is on the plaintiff to show that the carrier was guilty of negligence in the handling of the shipment. With reference to the bean car, therefore, the court instructs you that the plaintiff in this case cannot recover, unless it establishes by a preponderance of the evidence that the railroad company was guilty of negligence in the handling of the car after its arrival at Grand Rapids.”

It will be noted that the trial judge very clearly stated that the burden was upon the plaintiff to establish every element of its case, to establish defendant’s negligence, but he also stated that upon proof that the beans were in good condition when received by the defendant at Bay City and upon arrival' at Grand Rapids, -.the burden was upon defendant to negative its want of care. It should be borne in mind that we are not here dealing with a loss occasioned by an accidental fire or explosion, of unexplained loss, of leakage or theft. It is probably true that this court has not in express language gone as far as we are asked to go in this case to sustain this judgment, and it is probably true that the rule of the Federal courts is as contended by defendant. Southern Railway Co. v. Prescott, 240 U. S. 632 (36 Sup. Ct. Rep. 469); United Metals Selling Co. v. Pryor, 155 C. C. A. 621, 243 Fed. 91; Strauss v. Wilson, 17 Fed. 701. It is likewise true that there is much of authority to sustain defendant’s contention. Our problem, however, is to determine the tendency of our own holdings, the weight and persuasive force of the authorities from other States, in order that we may correctly solve the question before us. ' The defendant’s liability is that of a warehouseman, the relations those of bailment, the plaintiff being the bailor, the defendant the bailee.

Let us first consider the holdings of this court. In the early case of Beller v. Schultz, 44 Mich. 529, the plaintiff, an employee of defendant, loaned him a flag and helped him to hoist it. It was damaged by a hailstorm. It was held that the plaintiff could not recover without proof that defendant failed to use due care. But the subj ect of the bailment in that case, a flag, was an article designed for exposure to weather conditions and plaintiff assisted in hoisting it and in thus exposing it to damage by the elements. The case is not persuasive on the question herb involved.

In Knights v. Piella, 111 Mich. 9 (66 Am. St. Rep. 375), the loss was occasioned by theft. It was said' by Mr. Justice Hooker, speaking for the court:

“Upon this record, the defendant has established the fact and circumstances of the theft, without contradiction. There is no presumption of negligence from the mere fact of the loss or theft, and while there is much reason for the rule, adhered to in many States, that the defendant has the burden of proving the fact of loss, it does not necessarily follow that a presumption of negligence arises; and, if the facts shown in connection therewith do not fail to excuse, the onus is on the plaintiffs to shake defendant’s exculpation. This does not deny the proposition that when the bailment is proved, and a refusal to deliver is established, the plaintiff has made out a prima facie case, and the inference of wrong by the defendant follows, or that it is then for the defendant to explain the loss and exonerate himself, which he may do'by showing circumstances which prima facie excuse the failure to deliver. To this extent, and in this sense, a burden rests upon the defendant; but, if this question of fact becomes a disputed one, the evidence of the plaintiff must preponderate; and if the language of the charge, viewed abstractly, extends further, it cannot be said to have prejudiced the plaintiffs, under the established facts, the disputed question in this connection being whether or not the care exercised was equal to that to be expected from ordinarily prudent persons under similar conditions and circumstances.”

In Baehr v. Downey, 133 Mich. 163 (103 Am. St. Rep. 444), Mr. Justice Grant, who wrote the opinion, entertained the view that defendant’s liability was the strict one of an innkeeper. In this view the majority of the court did not concur. In determining the case in accordance with the view of the majority of the court, and with the concurrence of the entire bench, he said:

“My Brethren do not agree with me that the strict liability of innkeeper attached to the defendants. They are of the opinion that that relation ceased to exist, and that the defendants were ordinary bailees of the property. Under these circumstances, plaintiffs made out a prima facie case by showing the property in the defendants’ possession, and refusal or neglect to return on demand. The onus of exoneration was then upon the defendants. 3 Am. & Eng. Enc. Law (2d Ed.), p. 750. The rule as there stated is that, when the chattels are not returned at all, the law presumes negligence, and casts upon the bailee the onus of showing he was not negligent. This, undoubtedly, is the more modern and reasonable rule.”

In Wallace v. Railway Co., 176 Mich. 128 (Ann. Cas. 1915B, 631), the liability sought to be enforced was that of a common carrier; the defense was that the loss was occasioned by an act of God; considering the question of whether the verdict was against the weight of the evidence, it was said:

“The contention that these damages were so caused is a matter of affirmative defense, the burden of proof to establish which being upon the defendant, and, like the affirmative of any issue of fact, it is required to be established by a preponderance of the evidence.”

See, also, Donlin v. McQuade, 61 Mich. 275; Fraam v. Railway Co., 161 Mich. 556 (29 L. R. A. [N. S.] 834, 21 Ann. Cas. 96). An examination of the cases considered and cited demonstrates the tendency of this court to adopt what is called by textwriters and courts the modern rule. In 6 C. J. p. 1158, it is said:

“Older Rule. In some of the older decisions it was held that the loss or injury raised no presumption of negligence. The bailee is not an insurer of the goods, and when they are lost or damaged, it was said that the law which never presumes any man negligent would rather attribute the loss to excusable causes. It was not enough for plaintiff to prove the loss or injury, but it was held that he must go further and must show that the same had occurred by defendant’s negligence.
“Modern Rule. The rule adopted in the more modern decisions is that the proof of loss or injury establishes a sufficient prima fade case against the bailee to put him upon his defense. Where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes negligence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part.”

This is but a substantial repetition of what was said in 3 Am. & Eng. Enc. Law (2d Ed.), p. 750, cited with approval in Baehr v. Downey, supra. In 10 C. J. p. 246, it was said:

“Actions Against Carrier as Warehouseman. The storage of the goods does not create a new contract, and the action against the carrier for negligence in keeping the goods at their destination may be based on the contract of shipment. As the action against the carrier as warehouseman is founded on negligence, the burden of proving negligence is on plaintiff, and also of showing that such negligence was the proximate cause of the loss or injury complained of. But as in the case of other bailments, the unexplained failure to produce and to deliver the goods is generally sufficient to make out a prima facie case for plaintiff. The custody of the goods being shown to have been in the carrier, and their loss or the failure to produce them being established, the burden of showing that there was no negligence, or at least of explaining the loss in a- manner not prima facie negligent, is. usually held to rest on the carrier. This burden, it has been said, is not merely the burden of going forward with the evidence, nor a shifting burden, but a burden of establishing before the jury the absence of negligence.”

To the same effect see 6 Cyc. p. 462. Ruling Case Law (3 R. C. L. p. 150) thus states the rule:

“When considered from a general or abstract point of view the subject of presumptions and the burden of proof as to the care or negligence manifested by a bailee towards the property bailed presents serious difficulties. One great source of confusion is the different senses in which the phrase ‘burden of proof' is employed. Thus, when the court declares that the burden of proof as to negligence rests on one of the parties it may mean merely that it is incumbent on him to go forward with the evidence on that question, or it may mean that it is incumbent on him to establish negligence or the lack of it by a preponderance of the evidence. The difficulty arising from this source is one common to most questions regarding presumptions and burden of proof, and as the courts frequently fail to explain in which of the two senses the phrase is used, it is often necessary to determiné that point from the context, while in some instances it is extremely difficult to determine the question at all. In those cases which discriminate between the use of the term ‘burden of proof,’ and attempt to give it an exact meaning, the general rule, at least in the United States, seems to be that where a bailor alleges and proves simply the delivery of the property to the bailee and the latter’s failure to return it on demand, a prima facie case is made out against the bailee. The same is true if it is proved that the property was delivered to the bailee in good condition and was returned damaged in such a way as does not usually occur by the exercise of proper care, and in either case negligence will be presumed.”

In Davis & Son v. Hurt, 114 Ala. 146 (21 South. 468), it was said by Chief Justice Briekell, speaking for the court:

“Warehousemen are of the class of bailees bound -to ordinary diligence, and, of consequence, liable only for losses occurring from the want of ordinary care. When, however, upon demand made, the bailee fails to deliver goods entrusted to his care, or does not account for the failure to make delivery, prima facie negligence will be imputed to him; and the burden of proving loss without the want of ordinary care devolves upon him. Seals v. Edmondson, 71 Ala. 509; Prince v. State Fair, 106 Ala. 340 (17 South. 449, 28 L. R. A. 716); Claflin v. Meyer, 75 N. Y. 260 (31 Am. Rep. 467); Boies v. Railroad Co., 37 Conn. 272 (9 Am. Rep. 347). The rule is founded in necessity, and upon the presumption that a party who, from his situation, has peculiar, if not exclusive knowledge of facts, if they exist, is best able to prove them. If the bailee, to whose possession, control and care, goods are entrusted, will not account for the failure, or refusal to deliver them on demand of the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted, or may wrongfully detain them. Or if there be injury to, or loss of them during the bailment, it is but just, that he be required to show the circumstances, acquitting himself of the want of diligence it was his duty to bestow.”

In the case of Rustad v. Railway Co., 122 Minn. 453 (142 N. W. 727), it was said:

"Considerations of fairness put upon the warehouseman the burden of proving his own freedom from negligence. The goods are intrusted to him. He has charge and control of them. He determines the manner of keeping them. He is in possession of such evidence as there is as to the circumstances attending the loss. The bailor trusts the warehouseman and has no proof. It is not unjust to the warehouseman to require him to sustain the burden of proving its freedom from negligence. Where the burden of proof should rest ‘is merely a question of policy and fairness based on experience in the different situations.’ 4 Wigmore, Evidence, § 2486. We hold that when the liability of the carrier has become that of a warehouseman and the loss of the goods shipped is established, the burden of proof is upon it to show its freedom from negligence. This burden is not merely the burden of going forward with the evidence, nor a shifting burden, but a burden of establishing before the jury absence of negligence.”

And the. earlier case of Geo. C. Bagley Elevator Co. v. Express Co., 63 Minn. 142 (65 N. W. 264), so far as in conflict with this statement was overruled.

In the case of the Holt Ice, etc., Co. v. Arthur Jordan Co., 25 Ind. App. 314 (57 N. E. 575), the liability sought to be enforced was that of a warehouseman and the trial court, as here, had instructed the jury that under conditions similar to those in the instant case the burden was upon the defendant. It was there said:

“It seems the exact question presented by this instruction has not been decided in this State. Among the decisions in other jurisdictions there is a lack of uniformity. The general rule in negligence cases is that the complaining party must aver and prove negligence, and in a line of decisions this rule has been applied to a suit on a bailment contract, holding that as the case is founded on negligence the burden of proving it affirmatively rests throughout on the plaintiff. But the better reason underlies the doctrine, and it is supported by the weight of modern authority, that when a plaintiff has shown that the bailee received the property in good condition and failed to return it or returned it damaged, he has made out a prima facie case of negligence. An essential part of every bailment contract is the obligation to deliver over the property at the termination of the bailment. The bailor must prove the contract, the delivery of the goods to the bailee, and their return in a damaged condition. When he has done this the inference is deducible that the bailee is at fault and must answer, and especially is this true if the loss could not ordinarily have occurred without negligence. His failure to return the goods as delivered to him is inconsistent with what he agreed to do. The property was in his possession, under his care and oversight and away from that of the bailor, who, in most cases, could not know under what circumstances it was damaged. Generally speaking the onus probandi is upon the party who has to free himself from liability by proof of facts the knowledge of which is peculiarly within his own power rather than of his adversary.”

After citing a considerable* number of authorities, it was said:

“In some of the above cases the action was against the bailee for failure to deliver over the goods, and in others for. delivering them over in a damaged condition, but the rule above stated is applied to both classes of cases alike.”

In Yazoo, etc., R. Co. v. Hughes, 94 Miss. 242 (47 South. 662, 22 L. R. A. [N. S.] 975), it was said:

“It appears that.the ancient rule was that, in all cases where a bailee was sought to be held, no presumption of negligence arises on account of the loss of the goods, and the burden of proof is always on the plaintiff to establish that negligence was attributable to the bailee. But, by the weight of modern authority, this doctrine is substantially modified. It may now be said to be established that, when a bailor shows that goods are delivered to his bailee in good condition, and are lost or destroyed or returned in a damaged condition, this fact creates a prima facie presumption of negligence; and it thereupon devolves upon the bailee to absolve himself from negligence.”

The-Colorado court, in the case of Nutt v. Davison, 54 Colo. 586 (131 Pac. 390, 44 L. R. A. [N. S.] 1170), thus announces the rule (we quote the syllabus):

“Where goods are delivered to bailee in good condition, and are returned injured or in defective condition, or not at all, a presumption of negligence on the part of the bailee at once arises, and the burden is upon him, if he would exonerate himself, to show due care.”

See, also, Miller v. Miloslowsky, 153 Iowa, 135 (133 N. W. 357); Wintringham v. Hayes, 144 N. Y. 1 (38 N. E. 999); Fleishman, Morris & Co. v. Railway, 76 S. C. 237 (56 S. E. 974, 9 L. R. A. [N. S.] 519); Hildebrand v. Carroll, 106 Wis. 324 (82 N. W. 145); Lichtenhein v. Railroad Co., 11 Cush. (Mass.) 70; Cass v. Railroad Co., 14 Allen (Mass.), 448; Thompson v. Railway Co., 59 Mo. App. 37; American Brewing Ass’n v. Talbot, 141 Mo. 674 (42 S. W. 679); Marshall v. Andrews & Gage, 8 N. D. 364 (79 N. W. 851); Hoeveller v. Myers, 158 Pa. St. 461 (27 Atl. 1081); Note 22 L. R. A. (N. S.) 975.

Running through some of the cases treating this subject will be found criticism of the use of the term “burden of proof.” In this criticism some text and editorial writers join. Possibly the expression that the “onus of exoneration” rests on the defendant would be more correct, technically speaking. But the effect is the same. In the instant case, as we have noted, the trial judge charged that the burden of proof was upon the plaintiff to establish every element of its case, including defendant’s negligence, but that when certain facts were proven the burden was upon the defendant to show due care. We think this was the equivalent of using the more technical term “onus of exoneration,” and was probably better understood by the jury.

While we are impressed that the tendency of our decisions leads to the adoption of the so-called “modern rule,” the great weight of authority we think compels its approval. The bailee having the exclusive possession of the property has the exclusive means of showing what was done and what came of it. The charge in the instant case fairly submitted the issues in the case in a manner that could not have been misunderstood by the jury.

We find no reversible error and the judgment will be affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    WILHELM v. HERRON.
    1. Landlord and Tenant — Possession of Tenant Inures to Benefit of Landlord — Adverse Possession.
    Where the relation of landlord and tenant exists tfye possession of the tenant is the possession of the landlord.
    2. Adverse Possession — Tacking Possession.
    Possession of a strip of land by a tenant inured, to the benefit of his landlord, and could not be tacked on to his occupancy as owner, after his purchase from the landlord of adjoining land, for the purpose of establishing title by adverse possession.
    3. Same — Conveyances — Right to Grantor’s Possession Not Conveyed,
    Where the grantee relies upon his deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not conveyed by the deed.
    4. Same — Possession for Statutory Period — Evidence — Sufficiency.

      Held, that, if the description in plaintiff’s contract of purchase be deemed broad enough to include the disputed strip of land and he be, permitted to add the period of his grantor’s occupancy with that of his own, he still fell short of the full statutory period of 15 years.
    5. Boundaries — Line Fence — Establishment by Agreement.
    An agreement to rebuild a line fence on the old line and that if a later survey showed it to be off the true line it should be placed on that line, held, not to show such am actual dispute as to where the line was and an agreement for its adjustment as to render applicable the rule of established boundaries.
    6. Same — Rule—When Applicable.
    To render applicable the rule of established boundaries by agreement, there must have been an actual dispute as to where the line is, and an agreement for its adjustment.
    7. Adverse Possession — Quieting Title — Plaintiff to Prevail on Strength of Own Title.
    To entitle plaintiff to a decree quieting title to a strip of land to which, defendants have the 'record title, plaintiff must establish title in himself, and must prevail, if at all, upon the strength of his own title rather than upon the weakness of defendants’.
    8. Same — Evidence—Suottciencv.
    In said action, proofs held, insufficient to establish title in plaintiff!
    9. Appeal and Error — Damages Due to Injunction — Question.
    Not Decided Below.
    In proceedings to quiet title, defendants’ request in this court that the case be referred to a .commissioner to ascertain the damages they have sustained by reason of the issuance and continuance of an injunction must be denied where the decree of the court below makes no such provision and defendants have not appealed,, and there is no proof of any damages by reason thereof.
    Appeal from Ingham; Wiest (Howard), J.
    Submitted June 11, 1920.
    (Docket No. 68.)
    Decided July 20, 1920.
    Bill by Christopher Wilhelm against Richard C. Herron and another to quiet title to land and to enjoin a trespass thereon. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      F. L. Dodge (D. G. F. Warner and C. F. & E. T. Hammond, of counsel), for plaintiff.

      Jason E. Nichols, for defendants.
   Fellows, J.

Plaintiff seeks by this bill to quiet title to a strip of land 42 feet wide at the north end, 31 feet wide at the south end, and 1,963.5 feet long, situated on the west half of the southeast quarter of section 3 of Lansing township, Ingham county, and to restrain defendant from taking gravel therefrom or trespassing thereon. Sufficient facts are stated in the bill to sustain it as a bill to quiet title and to afford the other relief as incidental thereto. Defendant and his wife as tenants by the entirety hold the record title to the disputed strip and own land to the east thereof. Plaintiff’s sole claim of title is by adverse possession. In 1877 one Clayton W. Everétt owned both pieces of land. The record title of the parties appears from the following statement taken from the opinion of the trial judge:

“March 3, 1877, Clayton W. Everett became the owner of the southeast quarter of section three, and on August 21, 1878, he conveyed to Elizabeth K. Taylor the east twenty-four acres of the west 26.45 acres of that part of the southeast quarter of section three lying southeast of the center of the public highway and bounded on the east by a tract of twenty-two acres of land conveyed by him to Hiram Perkins and Charles D. Potter.
“Elizabeth K. Taylor died intestate, possessed of the land, and September 12, 1902, the probate court determined her heirs, among whom was Joseph A. Strowbridge, who later acquired the interests of his tenants in common.
“August 1, 1879, Everett conveyed to Edwin D. Allen'the west 2.45 acres of that part of the southeast quarter of section three lying south of the highway.
“November 12, 1880, the auditor general, by tax deed, conveyed to E. D. Allen the Taylor description of land for the delinquent taxes of 1878.
“November 18, 1882, Allen by quitclaim deed conveyed such tax title to Joseph A. Strowbridge, reciting in the deed that the object was ‘to release a tax’ title on said premises, and excepting the use of the premises until Strowbridge should sell the same, and excepting the fences of the lands and giving Allen the privilege of removing the same, Allen to pay the taxes/
“May 12, 1903, Strowbridge deeded Allen the east' 22% acres of the west 26.45 acres of the southeast quarter of section three ‘bounded east by the tract of 22 acres conveyed by Clayton W. Everett to Hiram Perkins and Charles D. Potter, excepting the fences around said piece of land/
“March 20, 1911, Allen deeded to plaintiff the west 24.95 acres off the west side of the quarter section in ■question,
"The record title to the portion of defendants’ land to which plaintiff claims title by adverse possession, was conveyed by Clayton W. Everett on October 4, 1877, to Hiram Perkins and Charles D. Potter and on November 2, 1888, by Perkins and Potter to James-H. Wellings and on January 7, 1912, by James H. Wellings to Richard C. Herron and Amy Herron.”

While the record does- not disclose the date of the-, death of Elizabeth K. Taylor, it must have been as early as 1882 as in that year Strowbridge acquired by quitclaim deed the interest of two of her heirs, and after the probate proceedings in 1902 and before he conveyed to Allen and presumably to clear up the title in anticipation of such sale he acquired another quitclaim deed from other heirs.

It will be noted that by the terms of the deed to Strowbridge Mr. Allen was to have the use of the land and was to pay the taxes for such use. We agree with the trial judge that the relations of landlord and tenant existed between Mr. Allen and Mr. Strowbridge and that where such relations exist the possession of the tenant is the possession of the landlord.' The testimony shows that during such tenancy Mr. Allen used and occupied land which included the disputed strip up to a certain fence to which we shall presently refer; but the testimony would not-justify us in finding that 'his use and occupancy of the disputed strip was in his own right for his own benefit or other than as tenant of Strowbridge until the time he purchased. So far as the record discloses all the lands he occupied except the 2.45 acres deeded to him in 1879 were occupied as Strowbridge’s tenant. We therefore do not determine the question stressed at the argument that Allen could acquire by adverse possession title to land not contemplated in his lease from Strowbridge as the record does not, we think, make such a case. So far as this record discloses Allen occupied the land his' landlord had occupied before the tenancy began and he occupied no other. Whatever use Allen made of the disputed strip was as tenant of Strowbridge and such use was in connection with the other lands he was using as such tenant. He does not appear to have asserted any claim in himself or to have had any occupancy hostile to Strowbridge, and so far as his occupancy was adverse to defendants’ predecessors in title, it was for the benefit of Strowbridge. We must hold upon this record that whatever benefit was derived by such use inured to the landlord, and Allen’s occupancy of the disputed strip as tenant could not be tacked on to his occupancy'as owner of the 22% acres after'he purchased that amount of land from Strowbridge.

When Strowbridge deeded to Allen on May 12, 1903, he deeded the east 22% acres of the west 26.45 acres, and its east boundary was the tract of 22’ acres conveyed by Clayton W. Everett to Hiram Perkins and Charles D. Potter, a quantitative description. If Strowbridge had acquired title to the disputed strip by adverse possession he did not convey such title to Allen, nor can Allen tack on to his possession after he purchased the possession by Strowbridge of lands not included in the description or apparently intended to be conveyed for the purpose of making up the statutory period of adverse possession. In the case of Sheldon v. Railroad Co., 161 Mich. 503, this question was fully considered and the authorities were collected in the majority opinion written by Mr. Justice Stone. That opinion so exhaustively considers the question that we forbear repetition. We there held (we quote from the syllabus) :

“Separate successive disseisins cannot be tacked so as to constitute one and a single continuous possession, unless there is privity of estate between the successive parties in possession, each coming in as the. transferee of the possessory rights of his predecessor.
“Where the grantee relies upon his deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not conveyed by the deed.”

See, also, Lake Shore, etc., R. Co. v. Sterling, 189 Mich. 366; Kushler v. Weber, 182 Mich. 224, 205 Mich. 400.

There is testimony in the case that when plaintiff bought of Allen he was shown the boundaries and fences including the fence to which we have referred and to which we shall presently again refer, and the contract between him and Allen was introduced in evidence. In this contract the premises were described in general terms and the description may be deemed broad enough to include the disputed strip. But these facts do not aid plaintiff because if he is permitted to add the period of Allen’s occupancy under his deed with that of his own prior to the filing of this bill, he will still be some 5 months and 20 days short of the statutory period of 15 years. Nor do we think plaintiff’s testimony shows that during all the period of his occupancy of the premises his possession was hostile. The parties bought their respective pieces of land about the same time. While there is some conflict in the evidence we are convinced that at the time of the purchase the fence had practically disappeared. The parties then agreed that the fence should be put up on the old line and if a later survey showed it to be off the true line it should be placed on that line. It is also established that the parties agreed to have a survey and abide-the result of the survey; the plaintiff employed the surveyor to make the survey but when he had gone far enough with the work to demonstrate that he would be the loser he stopped the work and took the surveyor back to town and did not have the survey completed. It is not claimed that these agreements are enforceable as against the objection of the statute of frauds but they may be considered upon the question of whether plaintiff’s possession was hostile during the time of his occupancy.

There has been a fence on the east line of the disputed strip for a great many years and numerous authorities have been called to our attention involving disputed boundaries and where to settle such disputed boundaries an agreement resting in parol has been entered into fixing the line, followed by the erection of a fence on the agreed line, and acquiescence in such line thereafter, and in which cases it has been held that long acquiescence in said line so fixed establishes it as the line even though the full period required to establish title by adverse possession had not run. But these cases are not applicable here. Not only is there a total absence of evidence of any agreement to fix a line before the original fence was constructed but plaintiff’s own testimony shows that this fence was in existence long before the two pieces were separated and when both were owned by the same person. One of plaintiff’s witnesses testifies unequivocally that the fence has been there “fifty years anyway.” The line of authorities cited is not applicable unless there has been an actual dispute as to where the line is and an agreement for its adjustment. Parsons v. Bills, 163 Mich. 415; Lake Shore, etc., R. Co. v. Sterling, supra; Phelps v. Brevoort, 207 Mich. 429. There is no testimony in the case bringing it within the authorities relied upon.

To entitle plaintiff to a decree quieting title, he must establish title in himself. Defendants have the record title to the disputed strip. As against that record title plaintiff must prevail if at all upon the strength of his own title rather than the weakness of defendants’. His proofs fail to establish title in himself and his action must likewise fail.

Defendants and appellees in their brief ask that the case be referred to a commissioner to ascertain the damages they have sustained by reason -of the issuance and continuance of the injunction. But the decree of the court below makes no such provision and defendants have not appealed, nor is there any proof of any damages by reason of the issuance and continuance of the injunction. Defendants’ request is denied. The decree as entered in the court below will be affirmed. Defendants will recover costs of this court.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    LIGNELL v. BRUHNS.
    1. Contracts — Breach—Oral Lease — Evidence—Sufficiency.
    In an action by a tenant for the breach of an oral contract for the lease of a farm, a verdict for plaintiff in some amount, held, to be supported by the preponderance of the proof. ,
    2. Appeal and Error — Sufficiency of Evidence to Support Verdict — Weight of Evidence.
    The Supreme Court is not the trier of the facts, and in the exercise of appellate jurisdiction it may reverse only when the verdict is manifestly against the clear weight of the evidence.
    3. Judgment — Conditional Judgment.
    Where a verdict for plaintiff for $300 is manifestly against the clear weight of the evidence, but the jury would have been justified in allowing him the sum of $207.84, under the evidence, the judgment will be reversed unless plaintiff within 30 days remit to the amount of $207.84, in which case judgment for same will be affirmed.

      Error to Livingston; Collins (Joseph H.), J.
    Submitted June 9, 1920.
    (Docket No. 26.)
    Decided July 20, 1920.
    Assumpsit in justice’s court by Florent Lignell against John Bruhns for breach of a contract of leasing. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      Louis F. Howlett and Frank B. De Vine, for appellant.

      Francis J. Shields, for appellee.
   Fellows, J.

Plaintiff worked defendant’s farm on'

shares the season of 1918 under an oral agreement. They do not differ as "to what the terms of their contract were, but disagree as to who breached it. Their prime cause of contention was the cows. By their agreement defendant was to keep ten cows on the place, and plaintiff was to have one-third of the milk checks and one-third of the increase. Ten cows were kept on the place until September when they were sold. Plaintiff claims they were sold without his consent and over his protest. Defendant insists that they were sold at plaintiff’s suggestion and request. Plaintiff had judgment in the sum of $300. Motion for a new trial was made on the grounds that the verdict was against the weight ,of the evidence and was in excess of the amount plaintiff’s proofs showed he was entitled to recover. This motion was overruled, and this ruling presents the only question upon the record. It is conceded that the trial judge correctly stated the law to the jury but it is claimed the jury disregarded his instructions and rendered an excessive verdict.

We are persuaded that the testimony clearly justifled a verdict for the plaintiff in some amount. The plaintiff’s owm testimony supported his claim; a disinterested. witness testified that defendant admitted to .him that he owed plaintiff $120 and said “he would let him sweat a while before he got it.” Defendant did not take the stand to deny this or any other testimony given in the case. While some members of defendant’s family contradicted some of the testimony given by plaintiff, we are not persuaded that the clear weight of the testimony upon the question of plaintiff’s right to recover is with the defendant. On the contrary, we are impressed that a verdict for the plaintiff in some amount is supported by the preponderance of the proof.

But a reading of the record convinces us that the amount awarded by the jury is not only against the weight of the evidence but is without support in the evidence, and that the instructions of the court which both parties seem to concede were correct, were not followed by the jury. We cannot detail the testimony bearing on each of the items of plaintiff’s bill of particulars or of defendant’s set-off. It will suffice to say that we think plaintiff’s testimony sufficiently established, at least as against the objections here urged, his right to recover for the following items: (a) balance of one-half of proceeds of beet crop, $110.84; (b) wood purchased, $4.00; (c) coal purchased, $20.00; (d) drawing gravel five days, $17.50; (e) cutting logs 1 days, $4.50; (/) cash deducted by defendant from plaintiff for broken mold board, $5.00; (g) 10 days’ work for defendant, $25.00; (h) work on defendant’s bean crop of previous year, $20.00; (i) paid for house rent, $20.00. The other item of plaintiff’s claim requires more detailed consideration. It involves the loss and damages occasioned by the sale of the cows. Plaintiff claims to have had some experience as a dairy farmer. He testifies to the income which should have"Been received from the milk of the cows during the remaining months of his contract after they were sold. He testifies that his damages for such loss was the sum of $150. While it is true as defendant claims that the cows during this period would have to be fed from undivided feed, and there are some figures in the record as to what that amount would be, we cannot say that an allowance to the plaintiff of the amount of this item of $150 in his bill of particulars for his damages (i. e., the amount he would have received over and above his outlay) is manifestly against the clear weight of the evidence. The testimony given on behalf of defendant on the subject of the cows was not aimed at combatting the amount of the damages but was directed to the question of whether the hows were sold at the instance of plaintiff or of the defendant. The total amount of the items of plain-' tiff’s claim which find support in the proof, as against the objection here urged, is $376.84. There is no proof which would support the allowance of any other items or any greater amount for these items.

A consideration of plaintiff’s testimony demonstrates that he admits, in some instances after hesitation, that defendant is entitled to the following credits: (&) two-thirds interest in one hog, $22.00; (5) one-third of feed of horses during the period after he left the farm, $30.00; (c) work done by defendant in haying, $15.00; (d) running binder two days, $6.00. He also admits that during the balance of the term he earned $96.00. The trial judge, on the theory that plaintiff was bound to minimize his damages, directed the jury to also deduct this amount from plaintiff’s claim. No claim is made by plaintiff that this instruction is erroneous. It is therefore obvious upon this record and upon plaintiff’s own admissions that the jury was bound to deduct from his claim the sum of $169. This would leave the sum of $207.84 as the amount the jury would be justified in allowing plaintiff, and the jury was not justified under the proofs in awarding any greater sum. It is doubtful that we would, if we were the triers of the facts, reach exactly the same result as did the jury on each of the items in plaintiff’s claim; but this is not the test. We are not the triers of the facts and in the exercise of appellate jurisdiction we may reverse only when the verdict is manifestly against the clear weight of the evidence. The verdict, to the extent of $207.84, is not manifestly against the clear weight of the evidence. Beyond that sum it is excessive and has no support in the testimony.

The judgment must be reversed and a new trial ordered unless the plaintiff shall within thirty days remit the judgment to the sum of $207.84. In such case it will be affirmed in that amount. In either event defendant will recover costs of this court.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Bird, J.

text:
    STAHL v. SOUTHERN MICHIGAN RAILWAY CO.
    1. Carriers — Street Railways — Negligence—Passengers Alighting — Duty of Railway.
    If passengers had the implied permission of defendant street -car company to alight at a place where the car stopped for the purpose of allowing the conductor to go forward to throw the switch, but the regular stopping place for the discharge of passengers was around the comer, the duty rested upon defendant to see that no passengers were in the act of alighting before starting its car.
    2. Same — Custom—Notice—Contributory Negligence — Evidence —Question for Jury.
    Where plaintiff, a passenger, had some knowledge of the custom of allowing passengers to alight at said place, it cannot be said that she was guilty of contributory negligence, as a matter of law, in attempting to leave the car at that point, although she knew that the regular stopping place was around the corner.
    3. Same — Negligence—Evidence—Question for Jury.
    Whether defendant omitted any duty it owed to plaintiff, held, under the evidence, a question for the jury.
    4. Negligence — Damages—Aggravation of Damages — Liability of Defendant.
    If a person receives an injury through the negligent act of another, and the injury is afterwards aggravated, and a recovery retarded through some accident not the result of want of ordinary care on the part of the injured person, he may recover for the entire injury sustained, as the law regards the probability of such aggravation as a consequent and natural result likely to follow from the original injury.
    5. Same — Aggravated Damages — Proximate Cause — Contributory Negligence — Question for Jury.
    Where plaintiff fell and aggravated the injury received by reason of defendant’s negligence, she was entitled to have the question submitted to the jury whether the negligence of defendant was the proximate cause of the second injury, with'the instruction that, if they so found, she was entitled to recover all of her damages if the second injury was not caused or contributed to by her want of ordinary care.
    6. Appeal and Error — Instructions.
    Where the charge of the court to the jury was less favorable to plaintiff than she was entitled to, defendant is in no position to complain of it.
    Error to Berrien; White (Charles E.), J.
    Submitted June 11, 1920.
    (Docket No. 72.)
    Decided July 20, 1920.

      Case by Hattie M. Stahl against the Southern Michigan Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      Charles H. Kavanagh, for appellee.
   Bird, J.

Defendant started its interurban car while plaintiff was in the act of alighting therefrom. In consequence thereof she was thrown to the ground and severely injured. The jury awarded her as compensation the sum of $3,500. Defendant assigns error and insists it should have had a directed verdict. The reason urged for a directed verdict was the claimed negligence of plaintiff. The case submitted to the jury shows, in substance, that plaintiff became a passenger on defendant’s car from South Bend to Niles, on the evening of November 17, 1918. The car arrived at Niles without incident and proceeded in a westerly direction down Main street. When nearing Second street the conductor announced: “Next stop Second, and Main streets.” That soon thereafter the car stopped and the conductor went forward to throw ijie switch to enable the car to pass around to the north on Second street. As the car was coming to a stop plaintiff, with other passengers, got up and started to leave the car, that just as she was stepping to the ground the car started with a jerk and threw her with considerable force to the ground and severely injured her left hip. The car arrived at Niles at about 7:30 o’clock in the evening. It was dark and the lights in the car and on the street were on. Plaintiff testified that she had left the car in safety at this point on previous occasions. Other witnesses familiar with the operation of the cars at that point testified that passengers left the car at the Main street stop as well as at the regular stop around the comer on Second street. Plaintiff admitted, upon cross-examination, that she knew there was a regular stop on Second street, and that she knew the conductor at that point went forward to do something in connection with the operation of the car. Her testimony also indicates that, by reason of the darkness, she was uncertain whether the stop was being made on Main street or on Second street, and that she was not cautioned by the conductor not to leave the car at that place. Much of the testimony establishing these facts was in conflict with the testimony of defendant.

Counsel argue from these facts that plaintiff was guilty of contributory negligence, as a matter of law, and much stress is placed upon the fact that plaintiff was somewhat acquainted with the situation, that she knew of the regular stop on Second street and knew the conductor was in the habit of going forward for some purpose. Counsel’s conclusion is that, knowing these facts, she took the chances of getting off in safety. The following cases are cited by defendant to'the 'effect that where a car makes a temporary stop before reaching the regular stopping place, the company is not liable for injuries incurred by passengers who attempt to alight at the temporary stop, even though; the station is announced before the temporary stop is reached: 3 Moore on Carriers, pp. 1671, 1672; Stevens v. Railway Co., 199 Mass. 471 (85 N. E. 571); McMelon v. Railroad Co., 126 La. 606 (52 South. 783); Benson v. Railway Co., 24 Del. 202 (75 Atl. 793); Dodge v. Steamship Co., 148 Mass. 207 (19 N. E. 373, 2 L. R. A. 83); Rolette v. Railroad Co., 91 Minn. 16 (97 N. W. 431); Nichols v. Railroad Co., 106 Mass. 463; Gilbert v. Railway Co., 160 Mass. 403 (36 N. E. 60); Blakney v. Electric Co., 28 Wash. 607 (68 Pac. 1037); Campbell v. Railway Co., 135 Cal. 137 (67 Pac. 50); Ohio, etc., R. Co. v. Schiebe, 44 Ill. 460; Smith v. Railroad Co., 88 Ala. 538 (7 South. 119, 7 L. R. A. 323); Mitchell v. Railway Co., 51 Mich. 236; Minock v. Railway Co., 97 Mich. 425.

We think these cases are distinguishable from the present one. Many of them are steam-road cases where the stopping place is usually indicated by an elevation or a platform on which to make an exit. Others are cases where passengers have attempted to leave the car while in motion. The thing which clearly distinguishes the present case from them is the fact that passengers had been in the habit of leaving the car at this temporary stop with the implied permission of defendant. The testimony on this question was open to a finding by the jury that passengers had the implied permission of defendant to alight at that place. If this ,were so, then the duty rested upon defendant to see that no passengers were in the act of alighting before starting its car. Plaintiff having some knowledge of this custom, it cannot be said, as a matter of law, that she was guilty of contributory negligente in attempting to leave the car at that place. The trial court was impressed that the testimony presented a question for the jury, and we concur in that view.

The contention is also made by counsel that the record does not show that defendant omitted any duty it owed the plaintiff. What has already been said on the preceding question will indicate the mind of the court on this one. If defendant had, by a course of conduct, permitted passengers to alight at that point for some considerable time, it was clearly its duty to see that no one was in the act of alighting before starting its car. Defendant disputed much of plaintiff’s testimony on this point. It, therefore, became a question for the jury to decide. See Richard v. Railway, 129 Mich. 458; Kirkpatrick v. Lighting Co., 195 Mich. 519.

Following plaintiff’s fall she was carried to her sister’s home, who lived nearby. A physician was called and after making a superficial examination he found an injury to the sciatic nerve, but was of the opinion that there were no fractures. She remained in bed for a time and suffered much pain. When partially recovered and while packing her suit case it fell against her and she lost her balance and fell to the floor, striking on the injured hip. Another physician was called who gave it as his opinion that the left hip was fractured. Later this diagnosis was confirmed by an X-ray. Defendant raised the question upon the trial that she was not entitled to recover for any injuries which she may have suffered in the suit case accident, and it is now made the basis of an assignment of error that defendant’s negligence was not the proximate cause of the suit case injury. If the suit case injury was the result of the injuries she received in the railway accident, and her own negligence did not contribute to it, she would be entitled to recover all of her damages against the defendant in this action. This rule is well stated in the recent case of Smith v. Railway Co., 79 Wash. 448 (140 Pac. 685), where it is said:

“If a person receives an injury through the negligent act of another, and the injury is afterwards aggravated, and a recovery retarded through some aeci-; dent not the result of want of ordinary care on the part of the injured person, he may recover for the entire injury sustained, as the law regards the probability of such aggravation as a consequent and natural result likely to follow from the original injury.”

This rule is supported by the following Michigan cases: Reed v. City of Detroit, 108 Mich. 224; Moore v. City of Kalamazoo, 109 Mich. 176; Zibbell v. City of Grand Rapids, 129 Mich. 659; Beauchamp v. Saginaw Mining Co., 50 Mich. 163.

Some question is raised that the case of Vander Velde v. Village of Leroy, 140 Mich. 359, does not support this rule. Without discussing the testimony in this case, as shown by the printed record,^ it will suffice to say that if it cannot, be distinguished on the facts, it must give way to the rule as above stated.

The same rule has also been applied in the following compensation cases: Cook v. Hoertz & Son, 198 Mich. 129; Reiss v. Manufacturing Co., 201 Mich. 90; Cramer v. West Bay City Sugar Co., 201 Mich. 500; Adams v. W. E. Wood Co., 203 Mich. 673.

Under this rule plaintiff was, entitled to have the question submitted to the jury whether the negligence of the defendant was the proximate cause of the suit case injury, with the instruction that if they so found, she was entitled to recover all of her damages, if the suit case accident were not caused or contributed to by her want of ordinary care.

The trial court permitted plaintiff to recover for the injury to the fractured femur in the event that the jury found that it was caused at the time she fell from the car, but he excluded from their consideration any question of damages which resulted from the fall which was occasioned by the suit case. It will be seen therefore that the charge was less favorable to plaintiff than she was entitled to, and we think defendant is in no position to complain of it.

The remaining assignments of error, including one upon'the refusal of the court to grant a new trial, have been examined without finding any reversible error therein.

The judgment must be affirmed.

Moore, C. J., and Fellows, Stone, Clark, and Sharpe, JJ., concurred.

Steere and Brooke, JJ., concurred in the result.