text:
    CITY OF TRAVERSE CITY v. TOWNSHIP OF BLAIR.
    1. Municipal Corporations — Cities—Electricity—Power—Taxation — Public Utility. .
    An. electric light and power plant owned and operated by the city of Traverse City for the use and benefit of the public is exempt from taxation under section 3830, 1 Comp. Laws, as amended by Act No. 174, Pub. Acts 1911 (1 Comp. Laws 1915, | 4001).
    2. Same — Townships—Right to Tax Municipal Utilities — Exempt Realty.
    The plant, being located in defendant township beyond the boundaries of Traverse City, was not assessable for the alleged reason that exempting the property would unequally affect the amount of property subject to taxation in the township for the benefit of the other municipality. And the court has no power to correct any injustice that may result to the township because of the exemption, the determination of the legislature being conclusive on the courts in such matters.
    3. Same — Home Rule Act — Constitutions—Townships.
    Under the “home rule act” (1 Comp. Laws 1915, § 3304 et seq.) construing the relative words to refer to the nearest antecedent pursuant to the usual rule, only transportation properties are excluded from the exempt class: it being a rule of statutory construction that the last antecedent is the last which can be made an antecedent without impairing the meaning of the sentence.
    4. Same — Taxation.
    Although the power plant occupied hut 15 acres of 60 contained in the tract, leaving about 45'acres along the river which was not developed, the necessity of securing a reasonable amount of land as part of the plant to obviate injury to riparian owners and protect' plaintiff’s power rights, properly brings the entire acreage within the statutory exemption.
    Error to Grand Traverse; Mayne, J.
    Submitted October 22, 1915.
    (Docket No. 88.)
    Decided March 30, 1916.
    Assumpsit by the city of Traverse City against the township of Blair for the recovery of taxes paid under protest. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Coveil & Cross (Dallas Boudeman, of counsel), for appellant.

      Parm C. Gilbert, for appellee.
   Steere, J.

Plaintiff, an incorporated city, brought this action to recover the amount of taxes, paid by it under protest, which had been assessed for the year 1913 against its electric light and power plant located within the territorial confines of defendant township.

Plaintiff’s protest and right to recover are based upon subdivision 3 of section 3830, 1 Comp. Laws, amended in 1911, Act No. 174, Pub. Acts 1911 (1 Comp. Laws 1915, § 4001), which exempts from taxation “lands owned by any county, township, city, village, or school district and buildings thereon used for public purposes.”

The case was tried before the court without a jury on December 22, 1914. “Findings of the court” were filed upon that and the succeeding day, in each of which it is stated that the material facts are not in dispute, and both findings are devoted entirely to a discussion of the legal questions involved. On December 24,1914, defendant’s counsel filed proposed amendments of fact and law to the findings of the court, which were followed on January 2, 1915, by “amended findings of fact and law” devoted only, however, to a further discussion of the law, the facts apparently being taken for granted. On February 12, 1915, the proposed amendments previously filed by plaintiff’s counsel to the court’s finding were considered and passed upon by the court, some being refused, others granted, and still others modified. From these findings and the apparently undisputed testimony, in relation to which the court twice found the facts were ndt in dispute, the following summary of the case is sufficient for an understanding of the questions of law involved:

Traverse City purchased the electric plant in question in 1912 for $150,000 from the Queen City Electric Light & Power Company, a private corporation, which had then developed and was operating the plant. This company owned 60 acres of land lying along the Boardman river in defendant township, where it had constructed a dam, storage pond, and power plant, which it used for the purpose of generating electricity, furnishing light and power to the city of Traverse City and its inhabitants for- domestic and manufacturing purposes. Plaintiff purchased it ’ as a going concern and took over the entire property, together with all contracts which the Queen City Company had. The purchase included all property owned by the selling company, both real and personal. The dam and power plant are located about 6 miles from Traverse City, current being conveyed to the city by a transmission line of which about 100 rods extend through the defendant township and the balance through other territory. Shortly after the purchase of the plant in 1912 plaintiff took possession and assumed control of all the property so purchased, both inside and outside of its own municipal boundaries, arid proceeded to operate it as a municipally owned plant, doing its own public lighting and also supplying its inhabitants, selling electric current for light and power to all parties desiring to use the same. It appears from the evidence as to earnings and amount of current disposed of that about 70 per cent, of the income of this plant is derived from what is termed commercial business, or sales to private users, and the remaining 30 per cent, in meeting demands of the municipality itself. From the fact that a large proportion of the electric current furnished by this plant is sold to private consumers, the court concluded as a matter of law that the property in question was not used for public purposes, saying:

“The uses shown to have been made of the property in question in this case is not a public use within the meaning of the tax law exempting certain property from taxation.”

The authority of plaintiff to acquire this plant and operate it as a municipal public utility for the purpose and in the manner shown is not open to question. Its own charter (Act No. 424, Local Acts 1895) expressly authorized the city of Traverse City to construct or acquire by purchase electric lighting and power works, operate, maintain, and extend the same for the purpose of supplying the city and inhabitants thereof with electric light and power, and for any other purpose on such terms and conditions as its council may. direct, while sections 22 and 23, article 8, of our Constitution affirm and amplify this authority as follows:

“Sec. 22. Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety.
“Sec. 23. Subject to the provisions of this Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof; and may also sell and deliver water, heat, power and light without its corporate limits to an amount not to exceed twenty-five per cent, of .that furnished by it within the corporate limits.”

The scope of a city’s power under these provisions and the manner in which such a public utility may be operated has been recently discussed in Andrews v. City of South Haven, 187 Mich. 294 (153 N. W. 827, L. R. A. 1916A, 908). The right of a city to own,a power plant outside its territorial confines and, after supplying its direct municipal needs, sell light or power both to,its inhabitants and, within specified proportions, to customers without its corporate limits is no longer an open question of implied authority, but in plain words is brought within the limit of express power granted by the Constitution.

While in distinguishing the purely governmental powers of a municipality from its authorized business activities in supplying itself and its inhabitants with a certain class of utilities and conveniences for which in places of concentrated population there is a general need, and which it is recognized under present conditions of civilization public welfare demands, the latter are sometimes referred to as private business enterprises, perhaps because such wants may be and sometimes are supplied for profit by private parties; yet in the final analysis they are in no true sense private business or private property when operated and owned for public benefit by a municipality under constitutional or statutory authority. No question of private gain or private support is involved. The benefits, whether in direct profits or in protection of health, property, or life, accrue to and all losses fall upon the public generally. The only underlying support for all such public business activities is taxation, and taxation can only be for public purposes. Possible confusion of terms is cleared up and the real difference pointed out in the recent case of Wood v. City of Detroit, 188 Mich. 547 (155 N. W. 592), as follows:

“The distinction between powers governmental in character and those private in character, as exercised by municipal corporations, does not involve the abrogation of the distinction between private municipal activity and private individual activity. To employ a seeming paradox, private municipal activities are all of them public. What has been called private in municipal activity is, nevertheless, public when contrasted with purely private enterprise and adventure. * * ” * There is not, and there cannot be, any merely local power to tax persons or property, and municipal activity may still be, and it is the command of the Constitution that it shall be, restricted, limited, by the limitation of the power to tax, to borrow money and to exploit the municipal credit.”

That after supplying its own direct, municipal needs the city furnished light or power to private parties and received a revenue therefrom, in no way detracts from the municipal or public purpose for which such authorized public utility was owned and operated. Neither is it of importance whether the enterprise was in itself profitable or unprofitable; it remained public property, owned and operated as an authorized public utility for municipal purposes and the general welfare, dependent for its credit and existence upon public support by taxation to whatever extent its necessities required.

That this plant, owned and operated by the city to supply itself and its inhabitants with light and power, is used for public purposes not only finds support in text-books and decided cases from other jurisdictions, but is, we think, settled law under decisions of this court rendered prior to the more recent and radical constitutional provisions and legislation adopted in this State authorizing municipal ownership of public utilities.

In the early case of People v. Salem, 20 Mich. 452 (4 Am. Rep. 400), in which it was held by a divided court that to pledge the credit of a municipal corporation in aid of a contemplated railroad to be constructed by a private corporation was an incipient step in the exercise of the power of taxation, and, not being for a public purpose, legislation authorizing the same could not be sustained, it is stated as a general proposition in the majority opinion written by Justice Cooley that:

“Where the State itself is to receive the benefit of the taxation, in the increase of its public funds or the improvement of its public property, there can be no doubt of the public character of the purpose.”

Touching the purpose of a municipal use or ownership the court said:

“We perceive, therefore, that the term ‘public purposes,’ as employed to denote the basis for which taxes may be levied, has no relation to the urgency of the public need, or to the extent of the public benefit which is to follow. It is, on the other hand, merely a term of classification, to distinguish the object for which, according to settled usage, the government is to provide, from those which, by the like usage, are left to private inclination, interest, or liberality.”

In harmony with modern development along those lines, legislation and constitutional provision have strengthened and defined the authority of cities to provide public utilities like the one in question and recognized them as within the scope of public affairs distinct from pure municipal trading, and the burden of such municipal activities for public good has been assumed and borne by municipalities until it can well be said to have become a settled usage.

In Mitchell v. City of Negaunee, 113 Mich. 359 (71 N. W. 646, 88 L. R. A. 157, 67 Am. St. Rep. 468), proceedings were brought by taxpayers to restrain the expenditure of public money in developing a public municipal lighting plant, it being contended that it was a private business enterprise in which electric current was to be furnished to private purchasers for profit, in competition with private capital, whereas taxes could only be imposed for a public and not a private purpose. This court there rejected such contention and held that it was within the province of the legislature to confer upon municipalities, under proper restrictions, the right to install plants for municipal lighting and to furnish light to their citizens, sustaining the tax, which could only be for a public purpose, and adopting the views of the Massachusetts court in Opinion of Justices, 150 Mass. 592 (24 N. E. 1084, 8 L. R. A, 487). In the latter case it is said, among other things:

“We have no doubt that, if the furnishing of gas and electricity for illuminating purposes is a public service, the performance of this service can be delegated by the legislature to cities and towns for the benefit of themselves and their inhabitants, and that such cities and towns can be authorized to impose taxes for this purpose upon their inhabitants, and to establish reasonable rates which the inhabitants who use the gas or electricity can be compelled to pay.”

As to the constitutionality of such legislation the court said:

“If the legislature is of opinion that the common convenience and welfare of the inhabitants of cities or towns will be promoted by conferring upon the municipalities the power of manufacturing and distributing gas or electricity for the purpose of furnishing light to their inhabitants, we think that the legislature can confer the power.”

It is particularly urged by defendant that the exemption in question does not and was not intended to apply to property owned by a municipality located outside of its territorial limits which, without any compensating benefits, would unfairly lessen the taxable property of one municipality for the benefit of another. We are impressed that the earnest argument made against the unfairness and injustice of such a law is more properly for consideration of the legislature than of the court. The right of the legislature either to tax or exempt such public property is not open to question. Whatever views may be entertained upon this contention, “the judiciary has no general authority to correct the injustice of legislative action in matters of taxation, and the weight of authority clearly is that, as regards these cases, the determination of the legislature is conclusive.” Cooley on Taxation (3d Ed.),p. 247.

The exempting language of the general statutory provision is plain, without distinction as to location, and we find no rule of construction -authorizing the court to read into the act any exceptions based on territorial boundaries. As it reads it clearly applies to ' such public property used for public purposes wheresoever located. In the absence of some plain and direct exception, other courts, when called upon to consider the question, have as a rule denied their authority to restrict the legislation by adding such a test. In the following cases exemptions of like import'with the one under consideration have been construed as unaffected by territorial limitations, and it is held that property of one municipality located within the boundaries of another is included within the exemption: Town of West Hartford v. Water Commissioners, 44 Conn. 360; City of Somerville v. City of Waltham, 170 Mass. 160 (48 N. E. 1092); Reading v. Berks County, 22 Pa. Super. Ct. 373; State v. Township of Verona, 59 N. J. Law, 94 (34 Atl. 1060); Wayland v. Middlesex County, 4 Gray (70 Mass.), 500; People, ex rel. Mayor, etc., of City of New York v. Board of Assessors, 111 N. Y. 502 (19 N. E. 90, 2 L. R. A. 148); State v. Conover, 63 N. J. Law, 191 (42 Atl. 838); City of Rochester v. Town of Rush, 80 N. Y. 302; City of Perth Amboy v. Barker, 74 N. J. Law, 127 (65 Atl. 201); City of Toledo v. Hosler, 54 Ohio St. 418 (43 N. E. 583); In re Town of Orillia, 7 Ont. Law Rep. 389.

To review these cases and the many others which may be found dealing with this subject in all its aspects would be a work of supererogation, but it can be stated without fear of successful contradiction that the best reasoned and great weight of authority fully sustains plaintiff’s contentions on the general propositions here involved.

It is further contended, however, that subdivision (i) of section 4 of the so-called “Home Rule Act” has modified the scope of the general provision in the tax law which exempts realty of municipalities devoted to public purposes, and discloses a legislative intent to except from the general exemption public utility property of municipalities when located outside their corporate boundaries. The home rule act, first enacted in 1909, has been amended at each regular succeeding session of the legislature. Up to 1913 a city was only authorized by it to own and operate transportation facilities within its limits, and then only if its population had reached 25,000 inhabitants according to the next preceding United States census. As to this particular municipal activity the legislature, in distinction from other kinds of municipal property in public use, saw fit from the beginning to provide that upon it a city must p'hy State and county taxes, in that particular ranking street car lines, or property used exclusively for transportation, as in a different class and less entitled to consideration as distinctly of public concern and need than cemeteries, hospitals, almshouses, public water, light, heat, etc.

The amendment of 1913 enlarged the rights of a city to extend its transportation lines as far as 10 miles beyond its boundaries, and in that connection subdivision (i) of section 4 (Act No. 5, Pub. Acts 1913) was amended, authorizing cities to incur indebtedness, among other things—

“for the purchase or condemnation of the franchises, if any exist, and of property used in the operation of companies or individuals engaged in the plank road, cemetery, hospital, almshouse, electric light, gas, heat, water and power business, and in cities having not less than 25,000 inhabitants the purchase of the franchise, if any, and the property of street railway and. tram railway companies; State and county taxes shall, be paid upon such transportation property so purchased and owned by any such city; also local taxes, on any portion of such property lying outside of city-limits the same as would be paid by private corporations.”

It is contended that the closing provision imposing local taxes on any portion of “such property lying outside the city limits” was intended to and does include, all property before enumerated.

Bearing in mind the distinction, previously made between street car lines and other municipal utilities and applying the unquestioned rule of grammar, which has been crystallized into a legal maxim, that relative words must ordinarily be referred to the next antecedent where the intent, upon the whole instrument, does not appear to the contrary, we think the conclusion is unavoidable that the word “such” in the connection used refers only to transportation property to the exclusion of that more remotely mentioned.

“The word [‘such’] is descriptive, .and is a relative word, and as such must be referred to the last antecedent, unless the meaning of the sentence would thereby be impaired. * * * This construction is not only in subordination to the maxim, ‘Ad proximum antecedens nisi impediatur sententise,’ but is in perfect harmony with both the preceding sections of the act.” Summerman v. Knowles, 33 N. J. Law, 202.

The last antecedent is the last word which can be made an antecedent, without impairing the meaning of the sentence. Broom’s Legal Maxims [7th Am. Ed.], p. 680. Had it been the intention of the legislature to subject to taxation all those paramount public necessities and activities before almost universally recognized as exempt, such as cemeteries, hospitals, almshouses, water, electric light, etc., we cannot assume that so radical legislation would have been thus obscurely expressed, in disregard of grammatical rules, legal maxims, and well-established principles of construction. Further light is thrown upon this inquiry by the amendment of said subdivision (i) in Act No. 210, Pub. Acts 1915, which elaborates the subject more fully. After authorizing the purchase or condemnation of franchises and property enumerated as before, it makes provision for an election upon the proposition, and in case of adoption requires a sinking fund to be provided and civil service to be inaugurated, finally in a separate sentence taking up the matter of taxation as follows:

“When a transportation utility is so acquired, State and county taxes shall be paid thereon as if privately owned, also local taxation on any portion of such property lying outside of city limits.”

The most reasonable and natural construction of said subdivision ((i), as found both in the amendments of 1913 and 1915, is that transportation utilities owned and operated by a municipality, whether inside or outside of its limits, are taxable — that part within the limits for State and county taxes only, and that part extending beyond its limits for all purposes — as if owned by private parties. To construe it as contended for by defendant would sweep into the net all public utilities and activities mentioned in said subdivision, including cemeteries, hospitals, and almshouses, charitable or eleemosynary institutions, universally held as exempt from taxation when publicly owned, giving rise to confusion and numerous inconsistencies.

The exemption clause under consideration, re-enacted as late as 1913, is not confined to property within the bounds of the municipality which owns it. By the established rules of construction which certainty and uniformity demand for the interpretation of legal instruments or public acts; said subdivision (i) must be construed as taxing one class of public utilities belonging to cities to the exclusion of the rest. The wisdom or justice of this is a legislative, and not a judicial, question.

It is contended that this property is not all used for public purposes, because it appears that the dam, buildings, and mill pond occupy but about 15 acres of the 60-acre tract. It is shown that the Boardman river, upon which the plant is located, runs irregularly through the whole 60 acres, the dam and power house being on the lower 20, with the pond extending upstream to the farther limits of the upper 40, affecting to a greater or less extent the entire tract through which it meanders. The property was purchased for and devoted to an hydraulic development, the dam of which raised the water upon and necessarily affected the character of the property for the entire length of the river within its limits. Aside from its use for water power the value of the property is relatively small. Without the ownership and control of a sufficient shore acreage along the river beyond the land actually covered by water, such a' development would not be practicable.' The advisability and necessity of securing a reasonable amount of land as an integral part of the plant to obviate injury to adjacent owners and protect the project is illustrated by the experience of plaintiff’s predecessor with this very property, as appears in Morrison v. Light & Power Co., 181 Mich. 624 (148 N. W. 354). Under the circumstances shown the subdivisions acquired by plaintiff cannot be considered unnecessary or excessive for the protection and successful operation of the plant, but can fairly be regarded as an essential part of it, devoted to and used for public purposes. Aside from this, no finding was requested, or made by the trial court, that only a portion of the property was necessary or used for the purposes of the plant, and the court’s decision does not appear to be based upon or take into consideration such conditions.

Upon this record under the present condition of the law we are constrained to sustain the contention of plaintiff that the property in question is within the meaning of the tax law used for public purposes, and exempt from taxation.

The judgment is reversed, and a retrial granted.

Stone, C. J.-, and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    CITY OF TRAVERSE CITY v. TOWNSHIP OF EAST BAY.
    Taxation — Municipal Corporations — Power Rights — Exemption.
    Where a city purchased of au existing power company a plant and a quantity of real estate used therewith, and in addition a tract of 960 acres connected with a waterfall which would be likely to prove useful in the future for lighting and power purposes, the 960-acre tract, which was not in use as a part of the plant for public lighting, etc., was not employed for public purposes within the meaning of the exemption statute (1 Comp. Laws 1915, § 4001), and plaintiff city was not entitled to recover back a tax on the tract paid under protest.
    Error to Grand Traverse; Mayne, J.
    Submitted October 22, 1915.
    (Docket No. 89.)
    Decided March 30, 1916.
    Assumpsit by the City of Traverse City against the Township of East Bay for the recovery of taxes paid under protest. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Coveil & Cross, for appellant.

      Parm C. Gilbert, for appellee.
   Brooke, J.

This is a companion case to the case of City of Traverse City v. Township of Blair, ante, 313 (157 N. W. 81), to which reference is made.

It appears that when the plaintiff city purchased from the Queen City Electric Light & Power Company its dam, power plant, and transmission line, located in the township of Blair, it likewise purchased from the said Queen City Company 960 acres of land located in the defendant township of East Bay. Taxes amounting to 8119.51 for the year 1913 were assessed by the defendant township against the said lands owned by the plaintiff city therein. These taxes were paid in due time, but under the following protest:

“Because the said above-described lands, and the buildings thereon, are owned by the said city of Traverse City, a municipal corporation, and are used for public pprposes, and are exempt from taxation under the laws of the State of Michigan, and said taxes and assessments are illegal and void.”

Thereafter plaintiff brought this action against the defendant township to recover the amount of the taxes so paid. It is the contention of the plaintiff that said lands in the hands of the plaintiff are exempt from taxation under subsection 3 of section 7 of Act No. 174, Pub. Acts 1911 (1 Comp. Laws 1915, § 4001), which is as follows:

“The following * * * property shall be exempt from taxation. * * * Third, lands owned by any county, township, city, village or school district and buildings thereon, used for public purposes.”

' At the hearing, which was had before the court without a jury, in referring to the lands in question, counsel for the plaintiff said:

“It is not being used, we admit that it is undeveloped now, but being held for the purpose of future development — Of developing additional power in the future, the same as it was held by the predecessor of the city, with that in view, we don’t claim that it is part of the present plant, but simply land that is held with a view of developing additional power when the city needs it. There is a good waterfall there, and we expect to develop it or use it when the business of the city demands it. We hold this as a reserve and we claim it as exempt; and, when developed, it will all be used together, but nothing at all has been done yet toward developing it.”

Mr. Crotser, one of the commissioners of the plaintiff city, gave testimony to the effect that the plant located in the township of Blair ■ produced, or was capable of producing, power considerably in excess of the present demands therefor. He testified that of the power used in the city about 30 per cent, was used for city lighting, while 70 per cent, was sold to inhabitants of the plaintiff city. He further testified that the municipal plant had only about one-third of the commercial business of the city, the other two-thirds being in the hands of a competing private company. He stated that the lands in the township of East Bay were practically valueless, except for power purposes, and that they were in the hands of the city at present undeveloped, as they had been in the hands of the Queen City Company prior to the sale to the city. He further testified r

“Q. There has been no attempt on the part of that former company or the city to improve or change the natural conditions of it?
“A. No; no change.
“Q. And it was purchased in the first place and is held now purely as a prospective site or for future use as may be needed ? ■
“A. Ye§, sir; that is how it is held.
“Q. So at this time there is no special use being made of it?
A. No immediate use. * * *
“Q. Do you know whether the city officials have anything in view looking toward the development of that?
“A. It has been talked over by the commission a good many different times in their committee meetings, but it never has resulted in any definite plans for construction, not definite plans for putting it before the people or getting it in shape so it could be done.”

He further testified:

“Q. The plant, now, has been able to furnish all the power and light that has been called for?
“A. Yes; we have had all the power that anybody has wanted up till this time.
“Q. So that this upper property in East Bay is purely a matter of prospective or future use as occasion may require?
“A. Mr. Gilbert, you understand that the city property or the city lighting plant has not over one-third of the business of the city?
“Q. I know that would be true; if it would be a case where they got more business, then it would need more power?
“A. .Yes, sir.
“Q. But according to the business it has now, the city plant has power enough?
“A. Yes; and it could carry considerable more than it has now.”

The court rendered a verdict against the plaintiff upon the ground that electrical lighting and power plants owned by municipalities outside their corporate limits were not exempt from taxation in the municipality in which they are situated. That question we have determined adversely to the contention of the defendant in the companion case of the City of Traverse City v. Township of Blair, supra.

There remains, however, for determination the question whether this large tract of land purchased and owned by the plaintiff for the purpose of ultimate development as an adjunct to its plant located in the township of Blair is exempt from taxation under the statute quoted above, which provides for the exemption of all lands owned by a city “used for public purposes.”

Can it be said in any proper sense, and within the meaning of the language of the statute, that these lands belonging to the plaintiff in the defendant township are “used for public purposes?”

The evidence above set forth distinctly negatives this proposition. The lands not only are not used for any public purpose, but they are not used for any purpose. They lie in a state of nature and no attempt has, to the present time, been made to utilize them for the development of power, which is the only use of value that can be made of them.

The point is made by counsel for defendant that it is beyond the power of the plaintiff corporation, under the law, to purchase and own the lands in question. It is unnecessary to consider or determine that question. It is sufficient to say that, assuming the power of the plaintiff to legally acquire the lands, we are of opinion that the use which warrants exemption mentioned in the statute is a present use, and not an indefinite prospective use.

The judgment is affirmed.

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


text:
    LASKOWSKI v. PEOPLE’S ICE CO.
    1. Damages — Pain and Stjeeering — Lost Earnings.
    Three thousand five hundred dollars for very severe Injuries to the person of plaintiff, a female, by a runaway horse, including bruises over the entire body, two collarbones and ribs broken, chest crushed, shoulder dislocated, and various strains and hurts, was not excessive, upon testimony showing permanent impairment of plaintiff’s earning capacity.

    2. Same — Charge—Negligence—Animals.
    Error was not committed by the trial court in refusing a request of defendant to the effect that if plaintiff was nervous and the condition was not the direct effect of the , accident, but was brougM on by her actions or by change of life, no damages should be awarded, where the court instructed the jury that, in order to entitle plaintiff to recover, they must find that defendant was negligent, that plaintiff was free from contributory negligence, and that the injuries were the proximate- result of defendant’s negligence: that the jury should take into consideration in fixing the amount of the damage all the consequences of the injury, future as well as past, including the bodily pain, etc., the rights of defendant being carefully protected by the charge.
    Error to Wayne; Perkins, J., presiding.
    Submitted October 20, 1915.
    (Docket No. 163.)
    Decided March. 30, 1916.
    Case by Anna Laskowski against the People’s Ice Company, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Berger & Milburn, for appellant.

      Charles T. Wilkins, for appellee.

      As to excessiveness of verdicts in actions for personal injuries other than death, see note to L. R. A. 1915F, 30.

   Brooke, J.

In this case plaintiff seeks to recover damages for injuries received by her in being knocked down, and run over by a horse and wagon owned by the defendant company.' She was injured in the same accident which caused the injury to one Mrs. Dyer, who recovered a judgment against defendant, which was affirmed by this court. Dyer v. Ice Co., 188 Mich. 203 (154 N. W. 135). Reference to that opinion obviates the necessity for an extended statement of facts in the case at bar.

As the runaway horse dashed across the curb and into Mrs. Dyer’s yard, the plaintiff, who was upon the sidewalk accompanied by her young daughter, seems to have sought refuge in the yard, when the frantic horse knocked her down, and one or both wheels of the delivery wagon passed over her body. The plaintiff recovered a verdict of $3,500. A'motion for a new trial was made and denied, and, unlike the situation in the case of Dyer v. Ice Co., supra, the record in the case at bar shows an allowance of an exception to the denial of a motion for a new trial.

In this court appellant seeks a reversal upon the following grounds:

(1) Because the verdict is against the great weight of the evidence; (2) because the verdict is grossly excessive; (3) because the court erred in the admission of certain testimony; (4) because of the failure of the court to give an instruction requested by the defendant.

We will discuss these various questions in the order named.

Counsel for defendant earnestly request that this case be considered upon its own merits, and aver that the record here presented is' essentially different from that presented in the Dyer Case. We have therefore carefully examined the testimony, and, where necessary, we have compared it with that contained in the record of the Dyer Case. While in some respects the record in the case at bar is somewhat fuller than was that in the earlier case, it does not essentially differ therefrom.

Upon the question of defendant’s negligence which grows out of the alleged fact that the horse which ran away was an unruly, nervous, and somewhat fractious animal, easily excited, and liable to get beyond the control of its driver, there can be no doubt that the evidence introduced on behalf of plaintiff was ample to raise a question for the determination of the jury.

It is equally true with reference to the claim of the plaintiff that at the time of the accident the horse was being driven with a bridle too large, and which ordinarily was used upon another, horse. While it is true that defendant placed upon the stand a greater number of witnesses who testified as to the quiet character of the horse than the plaintiff produced as to its unruly-character, still we are of opinion that it cannot be said as a matter of law that the verdict was against the weight of the evidence in that sense which requires the appellate court to set it aside for that reason.

Is the verdict grossly excessive? The physician who examined plaintiff within a few minutes after the injury testified as follows:

“I made an examination of her at that time, and found that she was in a semiconscious condition. She could not answer all the questions, was moaning, and seemed to be just partially conscious. She gave all indications of pain; she could hardly breathe; she had been crushed. I ascertained from my examination that she had several bones broken, both collar bones, two ribs, shoulder dislocated, her neck was hurt, and her head and one of her knees. It was the third and fourth ribs on the right side, and her right shoulder was dislocated. Her head was bruised and her jaw, and her neck had been wonderfully strained, and she could Nardly move her head. I noticed other bruises about Ter body; she was hurt all over. I found the woman .nearly dead. Her chest had been crushed. Some heavy substance had passed over her chest, probably the wheel of the wagon, fracturing both collar bones, dislocating the right shoulder, fracturing two ribs, and •injuring her head and neck and one of her knees. I 'bandaged her up, reduced the dislocated shoulder, and bandaged up her chest and applied, the necessary dressings. This condition would certainly cause pain, very severe pain; a fractured bone is usually painful.”

The plaintiff was confined to her bed for many weeks after the accident. At the time of the trial, some two ■ years later, she claimed to be suffering from traumatic neurasthenia. Evidence was introduced tending to show loss of earnings, and permanent loss of capacity to earn in the future. This element of damage alone, if the jury believed the evidence, was sufficient to support a larger verdict than was rendered. But, if there had been no evidence of loss of earnings, or of the loss of capacity to earn, we are of opinion that the verdict could not be held to be grossly excessive in view of the physical injuries and the pain and suffering which would inevitably follow. -,

Several assignments are based upon alleged erroneous rulings touching the admission or exclusion of testimony. For the main part these questions arose in the Dyer trial and were discussed by Mr. Justice Stone in our opinion in that case. We find no reversible error in the conduct of the trial in this respect.

Error is assigned because of the refusal of the court to give defendant’s thirtieth request to charge, which is as follows:

“If you believe that the plaintiff is nervous, and that the condition is not the direct result of the accident, but is brought on by her own actions, or is the material condition liable to women at about her age— change of life — then no damages can be allowed for that condition if you should find for the plaintiff.”

It is claimed that the refusal of the court to give this request amounted to a refusal to present to the jury the defendant’s theory of the case. In this connection defendant presented the evidence of Dr. Spitzley, who examined plaintiff during the trial, and gave expert testimony, as to her condition and as to his theory of the causes producing or contributing thereto. It was his belief that the highly nervous condition in which he found the plaintiff was not attributable to the traumatism, but that it was more reasonable to believe that it resulted from the menopause, or change of life, which comes to all women at or about a certain age, which age he believed plaintiff had attained. It is worthy of note that the record, so far as it speaks upon the subject, tends to establish the fact that this physiological change had not at the time of the trial come to the plaintiff. But, even if the contrary were true, we are disposed to the view that the court properly safeguarded the defendant’s rights in his charge, as appears from the following excerpts:

“The defendant further claims, as I understand it, that the 'plaintiff was not permanently injured. It claims that the injuries she actually received have been practically repaired by the usual processes of healing, and that she has recovered from the direct and immediate consequences of the injuries received on this occasion. That she is not now suffering from traumatic ■neurasthenia as a result of the injuries received on that occasion, "but, as a matter of fact, simulating many of her symptoms, pretending to be more seriously injured than she really was. * * * • It must appear also, in order to entitle the plaintiff to recover: First, that the defendant was negligent; second, that the plaintiff was free from contributory negligence; and, third, that the injuries complained of were the proximate result of the defendant’s negligence. That is the direct result of the defendant’s negligence. * * *
“I have said that the negligence alleged in this case must have caused the injuries complained of. * * *
“In conclusion, therefore, gentlemen, if you find under the evidence and these instructions that the plaintiff is entitled to recover, then in fixing the amount of damage you will take into account all the consequences of the injury, future as well .as past, including the bodily pain which is shown by the evidence to be reasonably certain to have naturally resulted from the injuries. * * *
“If you find for the plaintiff, you cannot allow any damages except for such injuries, as. are shown to be the direct result of the accident.”

We have examined the assignments of error not here discussed, and find them without merit.

The judgment is affirmed.

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


author: Steere, J.

text:
    MICHIGAN INDEPENDENT TELEPHONE & TRAFFIC ASS’N v. MICHIGAN RAILROAD COMMISSION.
    1. Telegraphs and Telephones — Corporations—Sale of Assets.
    Statutes and decisions of this State recognize the right of one incorporated telephone company to sell all or any portion of its property rights, franchises, and privileges to another company.
    2. Same — Michigan Railroad Commission — Lease—Transfer.
    In a suit to enjoin the railroad commission from authorizing a transfer of the assets of a telephone company to another and for an exchange of assets and division of territory between the two corporations, including the lessee’s rights by virtue of a lease from the complainant to the Michigan State Telephone Company, in which was a clause that provided that the rights and duties specified should apply to the successors and assigns of each, and that “no sale or transfer shall operate as a consideration for the cancellation or annulment of this agreement except as assented to in writing,” the lessor’s interest was assignable and could not be treated as of such a personal nature as to preclude a sale; the contract itself contemplating a possible transfer of rights obtained under it.
    3. Same — Parties.
    And in the absence of any averments representing that the rights of the lessor, which were expressly saved and recognized by the order of the commission authorizing the transfer, had been impaired, the assignment must be . treated as subject to the lessor’s rights and interest, and, hence, the complainant could not interfere by a restraining order.
    Appeal from Kent; McDonald, J.
    Submitted October 28, 1915.
    (Docket No. 165.)
    Decided March 30, 1916.
    Bill by the Michigan Independent Telephone & Traffic Association against the Michigan Railroad Commission to set aside an order of defendant permitting the sale or interchange of certain properties in which complainant was interested. From an order sustaining the demurrer of defendant, complainant appeals.
    Affirmed.

      William A. Bahlke and Edwin H. Lyon, for complainant.

      Grant Fellows, Attorney General, for defendant.

      Boudeman & Adams and L. C. Palmer, for Southern Michigan Telephone Co.

      Thomas G. Long (Stevenson, Carpenter, Butzel & Backus, of counsel), for Michigan State Telephone Co.
   Steere, J.

Complainant filed its bill in the circuit court of Kent county, to obtain an injunction restraining further action and a decree vacating an order of the Michigan Railroad Commission, which approved and permitted the consummation of a tentative contract, entered into between the Michigan State Telephone Company and the Southern Michigan Telephone Company for an exchange and sale to each other of certain telephone property and a division of territory between them within certain portions of the counties of Branch and St. Joseph. Each of said contracting companies owns and operates a telephone system, and is duly incorporated for that purpose under Act No. 129, Pub. Acts 1883, entitled “An act for the organization of telephone and messenger service companies,” and acts amendatory or supplemental thereof. Complainant is incorporated under the same act, but does not appear to itself own or operate any telephone line, its corporate activities, s'o far as disclosed, being confined to transmission of toll or long-distance messages, and the conduct of a so-called “interchanged business” carried on under leases, or contracts, with telephone companies or persons owning and operating telephone lines. Some time previous to the hearing before the railroad commission which resulted in the order sought to be vacated, complainant had entered into a contract in the nature of a lease with the Southern Michigan Telephone Company, whereby complainant was leased or granted the use of certain wires, circuits,, and other facilities for. transmission of long-distance messages and the conduct of its interchanged business. Claiming that its rights thus obtained were involved in and prejudiced by the contract which the commission was asked to approve, complainant asked and was granted leave to intervene, file objections, and be heard in the proceedings before the commission. Objections were filed by it with the commission, followed by a hearing. Subsequently the order complained of was made, and this suit thereafter begun by complainant “as a party in interest,” to review, “vacate, and set aside” said final order of the commission as being prejudicial to and not in accordance with its rights. A preliminary injunction was granted, the defendant railroad commission duly entered its appearance by the attorney general, and a demurrer was later filed to complainant’s amended bill.. After a hearing upon the issue thus framed the Kent county circuit court in chancery sustained defendant’s demurrer and dismissed complainant’s bill.

In the subject-matter, course pursued, proceedings had, and questions raised, this case is, in many- respects, analogous to the case entitled Home Telephone Co. v. Railroad Commission, reported in 174 Mich. 219 (140 N. W. 496). In that case certain telephone companies which had agreed upon a contract eleminating competition and in effect providing for a merger by purchase and sale of properties between them, petitioned the railroad commission for approval of their contract. The complainant there claimed to have rights which would be adversely affected by an order of the commission permitting such contract of merger, and was given leave to intervene before the commission. There, as here, the petition of the contracting parties was approved by the commission, and complainant ¡filed a bill in the chancery court against the commission, praying for an injunction and decree setting aside its order, followed by a hearing in that court upon demurrer to complainant’s bill resulting in its dismissal. Various propositions common to the two cases which might otherwise demand attention here have been carefully considered and passed upon in that case. The distinctions between the two cases, as claimed and urged by complainant’s counsel, are that in the former case there was no averment any of the companies involved were contemplating or doing an interstate business, while this bill distinctly alleges an interstate business, and in that case the bill neither defines the kind of contract complainant had, which it claimed involved rights to be affected by the order objected to, nor was it alleged complainant would be affected in any manner other or different than the public generally, while in this case the bill avers complainant’s “private rights are interfered with and violated in a manner distinct from the wrong to the public at .large as hereinafter more fully set forth,” and not only are they fully set forth, but a copy of the contract itself out of which the rights which will be prejudiced by the order arise is identified (Exhibit E) and set up as an exhibit in the bill.

The first question which naturally presents itself in the order of investigation is whether, and in what way, complainant’s rights under its contract with the Southern Michigan Company (Exhibit E) are legally affected or violated by the order of the railroad commission. If its rights under this contract still exist as before, it is not a legally interested party, nor entitled to file this bill under the statute relied on, and the various other questions raised and argued at length become irrelevant here. The indicated scheme of complainant’s contract (Exhibit E), briefly stated in outline, is a lease of certain telephone facilities of the lessor to the lessee for carrying on a long-distance telephone business, granting “the use of so many long-distance circuits as may be required by the lessee for the conduct of the so-called interchanged business as hereinafter determined,” it being recited, amongst many other things:

“That this lease is not intended to affect any business whatsoever originating upon or terminating upon the lines of the lessor, such business being known as ‘local business.’ ”

The instrument is a somewhat lengthy and detailed document, with numerous descriptions, provisions, and conditions as to the rights and duties of the contracting parties between themselves, over the construction of which various questions are raised. The question involved here does not call for a determination of the rights of the contracting parties between themselves, or a construction of their contract beyond a consideration of whether defendant’s rights under it are invaded by the order of the commission. Amongst other provisions of this contract we find the following, not elsewhere qualified so far as we are able to discover:

“Seventeenth. That all the rights and duties specified in this lease as vesting in either party hereto, or being required from either party to the other, shall be held to apply to the successors and assigns of each, and that no sale or transfer of the property of either party of its title or ownership shall operate as a consideration for the cancellation or annulment of this agreement except as specifically assented to in writing by the lessee, and the right to claim specific performance of this contract regardless of any change in the ownership or the control of the lessor, or any changes which may be effected in the title of its property.”

The right of one incorporated telephone company to sell all or a part of its property rights, franchises, and privileges to another incorporated telephone company is settled by statutory authority and sustaining decisions. Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502 (80 N. W. 383, 47 L. R. A. 87, 80 Am. St. Rep. 520); Home Telephone Co. v. Railroad Commission, supra. Under such authority the contract approved by the commission was entered into, and, mindful of the Southern Michigan Telephone Company’s outstanding contract with complainant, they sought to guard the rights of all parties interested by providing in their contract, submitted to the commission and allowed by it, as follows:

“It is understood by the contracting parties hereto that nothing in this agreement is to abrogate or interfere with the arrangements now existing between the Southern Company and the Michigan Independent Telephone & Traffic Association and the transfer to the Michigan Company of lines in any way affected by such agreement with said Traffic Association is accepted with full knowledge of its provisions.”

By this it is made plain that the Michigan State Telephone Company agreed to take over the property of the Southern Michigan Telephone Company, for which it contracted with full knowledge- of and subject to complainant’s agreement, or lease.

The railroad commission, with these contracts before it, in approving the contract between the two operating companies, took cognizance of and sought to protect intact, not only complainant’s contract but all other outstanding contracts which either of the contracting petitioners had made, by comprehensive provisions in its order of approval, which are- in part as follows:'

“It is further ordered that all telephone companies iwithin the State of Michigan, the interveners in this ¡proceeding and all their associated companies and their successors, and the successors, lessees and assigns of any telephone company within the State of Michigan, jointly, severally, and in any combination, shall hereafter have, possess, and enjoy for their subscribers and patrons all of the facilities both as to quantity and efficiency necessary for connection and transmission of messages to and from all of the subscribers that are now or may hereafter be connected with the toll lines of exchanges of the said Southern Michigan Telephone Company, the Three Rivers Telephone Company, the properties conveyed by the said Charles K. Esler, and with any extension or additional lines that may be hereafter connected with said facilities by said Southern Michigan Telephone Company, its successors, lessees, and assigns, and likewise with the lines, exchanges, and facilities conveyed by said Southern Michigan Telephone Company to the Michigan State Telephone Company, and with any exchanges and lines of said Michigan State Telephone Company at points where property is now conveyed by the Southern Michigan Telephone Company to the Michigan State Telephone Company, and any extension or additional lines that may be hereafter connected with said facilities by said Michigan State Telephone Company, its successors, lessees, and assigns, within the territory of the property transferred, it being the intent ánd purpose of this order to give access to all persons, associations, and companies rendering telephone service within the State of Michigan and to their respective successors, lessees, and assigns, jointly, severally, and in any combination, to all of the facilities within said territory, both as to quantity and efficiency necessary for the transmission of telephonic messages between the patrons of such persons, associations, or companies affording telephone service and the patrons which are now or may hereafter be added to the lines and facilities of the Southern Michigan Telephone Company through the purchase of the various properties herein mentioned, or through the extension and addition of lines and other telephonic facilities, with a like access to the facility for communication with patrons upon the lines and exchanges conveyed by said Southern Michigan Telephone Company to the Michigan State Telephone Company, and with any additional subscribers and patrons that may be added thereto through the extension, enlargement, and combining of such facilities. * * *
“It is further ordered that it is not the intent of this order to change, modify, qualify, direct, or pass upon any question of rates or charges for telephone service for transmission of telephonic messages, either for local or long-distance service, or for toll service of any kind, nor to affect, qualify, disturb, or pass upon the question of validity of any contracts which may exist between any of the petitioners, or either of them, with any other telephone company,” etc.

' Complainant cannot enlarge its fights as fixed by its contract (Exhibit E) by the allegations in its bill. This lease contract recognizes the right to sell or assign and contemplates that there may occur a “sale or transfer of the property of either party of its title or ownership” and provides that in any such event the rights and duties vesting in the party who sells or transfers its property shall be held to apply to its successors and assigns, and the agreement be enforced as to property to which it relates. In this case the contract, not separately assigned as a distinct thing, followed and passed with the property's an incident of its transfer.

We are unable to recognize'the force of complainant’s contention that the contract was not assignable because personal. Not only does the contract itself contemplate that the property to which it relates may change hands, and the contract necessarily go with it as an incident of transfer, but the contracting parties were public utility corporations, having but an artificial entity, destitute of any natural personality, the persons composing their officers and members subject to change without affecting their corporate existence or the powers conferred by the statute under which they were organized. There is nothing of a personal nature in a public service corporatión which can be recognized as applying to or restricting its powers to alienate or contract. If such were the law, authority of the railroad commission to control and regulate them might easily be evaded by the so-called personal contracts of those corporations entered into for that purpose. In principle and by authority such corporations cannot by private^ contracts between themselves, defeat the power of the State, through its legally constituted agencies, to regulate and control public utilities by such reasonable orders, made under legislative authority, as public convenience and necessity justify or demand.

Counsel for complainant, having contended and argued at length in their original brief that Exhibit E was “designed and intended to be executed by th'e cooperation of companies in sympathy with each other and with like co-operation of companies having similar leasehold contracts,” that this personal character was “understood between the parties when it was entered into by them,” and that “leases and other contracts which involve a personal liability, and a relation of personal confidence, or call for the skill or experience of one of the parties, are nonassignabíe,” citing numerous authorities, subsequently state in their supplemental brief that it is not denied “but what the properties could be sold subject to the lease,” and insist that their position has been misunderstood or avoided by opposing counsel in claiming complainant did not. have possession and control of the properties under the leasehold agreement, while complainant’s position is:

“That the effect of the proceedings before the commission is not to sell the toll line circuits subject to the lease, but that the proceedings complained of operate upon and take the possession and control of the properties from complainant and place them in the Michigan State Telephone Company.”

We can discover no foundation for this contention unless it is based upon the correctness of complainant’s proposition, as urged in the original brief, that its lease contract was not assignable because personal, and therefore, although the properties could be sold, they could not pass subject to the lease because it could not be assigned. As already indicated, there can be no personal contract qualities in Exhibit E which operate to prevent it passing‘with the transferred property to which it related, as an incident of the transfer, under the general and well-recognized principle of law that a corporation, or individual, owning property which it is at liberty to sell may dispose of such property, whether personal or real, in whole or in part, but if such property is incumbered by a lease, mortgage, or any other contract, the property, when sold and transferred, remains subject to those burdens as before, whatever they may be, where no question of innocent purchaser arises.

In this case the order made by the commission dis-affirms in distinct terms any attempt or intent to affect, qualify, disturb, or pass upon Exhibit E, and the contract it approves recognizes the same as in force, unabrogated and unaffected by the proposed transfer. If complainant was in actual or constructive possession of the, transferred property before the contract was entered into between the two companies and approved by the commission, or had a right to be, under Exhibit E, its legal position and rights remained unaffected in that particular.

We find no reason for disturbing the decree of the lower court sustaining the demurrer and dismissing complainant’s bill because its legal rights under the contract upon which it plants its claim (Exhibit E) remain to it as before, undetermined and unaffected by the order complained of, and, not having shown by its bill that it has been injured in that particular, it is not, under the statute relied upon, entitled, as a “party in interest,” to maintain this suit against the railroad commission to vacate its order.

It is therefore not necessary nor the intent to here pass upon the various other legal questions raised and argued in the several briefs filed by counsel herein.

The decree is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


author: Moore, J.

text:
    PINEL v. CAMPSELL.
    1. Appeal and Error — Abatement—Overruling Plea — Judgment.
    An appeal may be taken from an order overruling a plea in abatement which set up the defense that a suit was pending in- the Federal courts involving the rights of the same parties to the land affected by the proceedings in the State court, which were partition proceedings.
    2. Courts — Abatement oe Suit — Pleading.
    Complainant alleged in his bill of complaint that he was executor of the estate of a decedent who in his lifetime was the owner in common with one of the defendants of certain real estate, subject to a mortgage, etc., that their respective titles were derived from the father of the defendant under his will. .The bill described the realty and asked for a partition and for an accounting. Defendants filed a plea in abatement alleging the pendency of a suit in the Federal courts involving the same interests and subject matter. Held, that, as it appeared by the proceedings all the rights of both parties could be settled in the pending cause, the plea was good and ought to have been sustained.
    Appeal from Macomb; Tappan, J., presiding.
    Submitted October 12, 1915.
    (Docket No. 46.)
    Decided March 30, 1916.

      Bill by Thomas F. Pinel, individually, and as executor of 'the estate of Edgar E. Pinel, deceased, against Rachel Campsell, for an accounting and partition. From a decree for complainant, defendant appeals.
    Reversed.

      Lynn M. Johnston, for complainant.

      Devine & Snyder, for defendant.
   Moore, J.

January 30, 1914, a bill of complaint was filed in the Federal court for the Eastern District of Michigan. Herman H. Pinel and Sarah Slyfield were complainants. They brought their bill of complaint against Thomas F. Pinel individually, and also as special administrator of the estate of Edgar E. Pinel and Rachel Campsell. They averred in substance :

“That on and for some time prior to the 26th day of June, 1888, one Charles T. Pinel, the father of your orators, and also of the said defendants, was possessed in fee simple of a certain farm (describing it).
“That on or about the 26th day of June, 1888, the said Charles T. Pinel died leaving a last will and testament which said last will and testament was duly admitted to probate,” and describing the disposition of the property in the will. * * *
“ (4) That the said Charles T. Pinel failed to provide in his will for your orators and one Charles W. Pinel, one of their brothers, and your orators allege and charge the fact to be that such omission from the said will and testament was not intentional on the part of the said Charles T. Pinel, but was made by a mistake or accident.”

Then follow many details as to the law of Michigan in such case, and the family relations of deceased.

“(9) That by reason of the premises hereinbefore set forth, and the death of the said Bessie Pinel, complainant, Herman Pinel is entitled to an undivided one-eighth interest and complainant Sarah Slyfield to an undivided two-eighth interest, or in all both complainants together to an undivided three-eighths interest in the aforesaid property, which said interests are of the value of $4,500 and upwards over and above all incumbrances.
“(10) That your orators were away from home at the time of the death of their father and were not present in the State of Michigan when the will was admitted to probate, and in fact were not advised that they had any right in the premises whatsoever,, and your orators allege and charge the fact to be that they did not learn of the fact that the omission to provide for them in the will was made by mistake or accident until about nine months ago. * *
“(11) That the defendants deny the right of the complainants to an undivided three-eighths interest in and to the aforesaid real property and refuse to deed unto your orator^ their respective shares in and to the said property, but on the contrary claim to be the sole and legal owners of the whole of the aforesaid premises. * '* *”

Many other averments follow, and the prayer is:

“First.' That your orators may be decreed to be the lawful owners of an undivided three-eighths interest in and to the premises herein described in the first paragraph of this bill of complaint, free and clear of any and all claims of the said defendants. * * *
“Third. * * * And that your orators may.cause said decree to be recorded in the . office of the register of deeds for Macomb county, Mich., and that when the said decree is duly recorded it may have the same force and effect as if a release to an undivided three-eighths interest had been duly made and delivered unto your orators by the said defendants.
“Fourth. That your orators may have such further, other, or different relief in the premises as shall be agreeable to equity and good conscience and to this honorable court shall seem meet.”

The bill of complaint in the case now before us was filed October 9, 1914, in the circuit court for Macomb county, in chancery. The commencement is:

“Complaining, your orator Thomas F. Pinel, individually and as executor of the estate of Edgar E. Pinel, deceased, of the county of Macomb and State of Michigan, brings this suit, his bill of complaint against Rachel Campsell defendant herein, and thereupon your orator respectfully shows the court:
“ (1) That Edgar E. Pinel in his lifetime and Rachel Campsell were owners in fee as tenants in common, subject to the life estate of Rachel Pinel, and a read estate mortgage, hereinafter described of all those certain pieces or parcels of land situate in said county of Macomb and in the township of Clinton, described as follows.”

Then follows a description of the same lands described in the suit in the Federal court.

“(2) And that the title of your orator and the said Rachel Campsell is derived- from the will of Charles T. Pinel, the father of your orator and said Rachel Campsell, under the clause of said will which was duly admitted to probate as follows:
“ ‘The remainder of my farm in Clinton I give and devise to my son Edgar and my daughter Rachel to have and to hold after the death of -wife.’
“This, will was duly admitted to probate and the estate closed.”

Here is a reference to the probate files and records and a description of the incumbrance on the property, and the taxes and the payments made on the mortgage and of the taxes, and the possession of the farm and other details.

“(5) And your petitioner further represents that no person or persons other than your orator and the said Rachel Campsell have any interest or title , to the said described lands. * * * Your orator and said Rachel Campsell are each entitled to an equal one-half part of said above-described land subject to said mortgage above referred to and any amount that may be found due from said Rachel Campsell to your orator on an accounting between them, which should be a lien upon the said share of said defendant, Rachel Camp-sell.
“(6) Your orator is desirous that an accounting be had between your orator and said defendant, and that a division and partition of the said above-described lands (said sixty acres, or thereabouts) be made between your orator and said defendant, Rachel Camp-sell, according to their respective rights and interests therein. * * *
“Your orator therefore prays: * * *
“(2) And the several and respective shares, rights, and interests of your orator and of the said defendant of, in, and to the said land, and each and every part and parcel thereof, may be settled and determined by the decree of this honorable court, and that an account be taken. * * *
“ (3) And that a just and equitable division and>partition of the said lands and premises may be made between your orator and the said defendant according to their several respective rights and interests therein * * #
“(4) And your orator may have such further or such other relief as shall be agreeable to equity and good conscience.”

The defendant pleaded to the second suit in abatement thereof the pendency of the suit commenced in the Federal court. The trial court overruled the plea and gave the usual time to answer. The defendant did not answer, but appealed the case here, claiming her plea was a good one, and should have been sustained.

The first question is: Was the order so final as to permit an appeal? The record shows a case in that regard on all fours with Hagar v. Schliess, 183 Mich. 610 (149 N. W. 1058), and the many cases therein cited.

Was the court wrong in overruling the plea in abatement? It has been said under the head of pleas in abatement in general:

“There may be certain matters of fact connected with the bringing of the suit, which though not affecting the merits of the action are yet, if substantiated, a good defense to it as at present prosecuted, as for instance it may have been brought * * * during the pendency of another action for the same cause. * * * And such a plea is called a plea in abatement because it goes to abate the plaintiff’s action; that is, to put it off or suspend it for the present.” 1 Green’s Mich. Prac. (3d Ed.) p. 489.

See, also, Chancery Rule 8, Stevens’ notes; 1 Enc. Pl., & Pr. p. 768; 16 Cyc. p. 289.

In Emry v. Chappell, 148 N. C. 327 (62 S. E. 411), it is said:

“The general principle of the law is that the pendency of a prior suit for the same thing or, as is commonly said, for the same cause of action between the same parties in a court of competent jurisdiction will abate a later suit, because the law abhors a multiplicity of suits and will not permit a debtor or a defendant to be harassed or opposed by two actions, if even substantially alike, to recover the same demand, when the plaintiff in the second action can have a complete remedy by one of them. 1 Cyc. 20, 21; Alexander v. Norwood, 118 N. C. 381 [24 S. E. 119]; McNeill v. Currie, 117 N. C. 341 [23 S. E. 216]; Harris v. Johnson, 65 N. C. 478. The principle is based upon the.supposition that, if the first suit is so constituted as to be effective and available, and also to afford an ample remedy to the plaintiff in the second, the latter is unnecessary and should be dismissed. Smith v. Moore, 79 N. C. 82. The positions of the respective parties on the record in the two suits, whether plaintiffs or defendants, is not material, if full relief can be had in the one first commenced. Gray v. Railroad, 77 N. C. 299; Wallace v. Robinson, 52 N. H. 286. * * * And if there were other parties in the first suit not included in the subsequent one, it would not necessarily prevent the pendency of the former action from being a defense to the latter, nor would the fact that the parties, plaintiff and defendant, were reversed in the two suits prevent the defense, if the issue in the two were the same, and the same relief attainable.”

See, also, Van Vleck v. Anderson, 13,6 Iowa, 366 (113 N. W. .853).

The case of Haas v. Righeimer, 220 Ill. 193 (77 N. E. 69), is much like the case before us, and a reading of the opinion will be helpful.

We have not quoted literally the language of the bills of complaint in the two cases, but have contented ourselves with stating the substance of them by which we think it is made clear that if the averments of the bill in the Federal court are established, that a decree cannot be entered in the case now before us along the lines prayed for therein, but it would be possible under the averments and the prayer of the bill of complaint in the first case to settle the rights of all the respective parties. We think the plea should have been sustained. ,

The decree is reversed, with costs, and the case remanded for further proceedings.

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