author: McAlvay, J.

text:
    STRINGER v. STEVENS’ ESTATE.
    1. Limitation of Actions — Implied Contract — Annuity—Charge on Land.
    Where land is devised subject to an annuity in favor of the testator’s widow, a claim against the estate of the devisee for unpaid installments of the annuity, upon the implied contract arising from his acceptance of the devise, is barred by the statute of limitations relating to implied contracts.
    2. Same — Form of Action.
    The form of action and not the cause of action determines whether an action is barred by limitations.
    3. Annuities — Unpaid Installments — Interest.
    Interest is allowable upon unpaid installments of an annuity charged upon land for the support of the testator’s widow.
    4. Appeal and Error — Assignments of Error — Sufficiency,
    Where, on the trial of a claim against an estate, there were but two questions litigated, viz., that limitations had run against' the claim and no recovery could be had, and that if the claim should be allowed it should not bear interest, an assignment that the court erred in directing a verdict in favor of claimant for the amount claimed is sufficiently specific.
    Error to Oakland; Smith; J.
    Submitted May 1, 1906.
    (Docket No. 128.)
    Decided October 29, 1906.
    Marshall L. Stringer, administrator de bonis non of the estate of Fanny Stevens, deceased, presented a claim against the estate of Thomas Stevens, deceased, for the payment of certain annuities. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.
    Affirmed on condition.

      James H. Lynch, for appellant.

      Thomas A. Gonlon, for appellee.
   McAlvay, J.

The appellee, Marshall L. Stringer, administrator de bonis non of the estate of' Fanny Stevens, presented a claim against the estate of Thomas Stevens to recover the sum of money bequeathed to said Fanny Stevens by her husband, Willis Stevens. Willis Stevens died'testate June 7, 1887, and by the second paragraph of his will made the following provision for his wife:

“Second. I give, devise and bequeath to my beloved son Thomas Stephens, the following described real estate to wit: [giving description] in Milford, Oakland county, State of Michigan, to him, his heirs and assigns forever, together with all the personal property left by me upon said farm, upon this express condition, that he furnish my beloved wife, Fanny Stevens, all her necessary fire-wood, prepared for the stove, together with all such products of said farm, including flour, meats, fruits, vegetables, butter and eggs that she shall require for her comfortable support, all to be delivered to her home in Milford, together with the sum of one hundred dollars in money yearly, so long as she may live, all the above to be and remain a lien upon said described farm, as long as my said wife shall live.”

This claim was for the money provided by this clause. The delivery of the produce was conceded. Thomas Stevens, the son, took possession of the land so devised to him under the conditions expressed, and continued to occupy them during his lifetime. Fanny Stevens continued to live at the home in Milford, and died there February 28, 1897, intestate. Her daughter, Mary J. Crippen, was appointed administratrix in May, 1897. On January 16, 1899, her final account was filed, and the estate on hand was distributed among the heirs. Thomas Stevens received his share. Thomas Stevens died intestate April 9, 1903. The appellee in the case at bar was appointed administrator de bonis non of the estate of Fanny Stevens, deceased, August 3, 1903, and as such filed this claim against the estate of Thomas Stevens, deceased. A judgment was rendered upon a verdict directed by the court in favor of said Marshall L. Stringer, administrator, in the circuit' court for Oakland county, against the estate of Thomas Stevens, for the full amount of the claim, with interest. The administrator of said estate requests this court to reverse said judgment, upon the ground that the trial court erred in directing a verdict in favor of plaintiff for the sum of $1,554.13.

Appellant contends:

1. That this entire claim is barred by the statute of limitations.

2. That if the statute of limitations is not a bar, claimant plaintiff was not entitled to interest upon the annual payments, and the verdict is excessive, and should have been for $900.

We must determine from the context of that part of the will under consideration the conditions of the devise and bequest accepted by Thomas Stevens. Provision is made for the comfortable support and maintenance of the widow during her natural life by furnishing fuel for household purposes, food to eat, and money annually. The evident intent of the testator was to make certain, by specific statement, the character and extent of the provision made for the widow, and to secure the performance of that expressed intention by making all the above provision a charge upon the premises devised. It is admitted that, where the devisee accepts property charged with the payment of an annuity, he becomes liable for the payment of such annuity, and an action can be maintained for the same. 2 Am. & Eng. Enc. Law (2d Ed.), p. 399; Gridley v. Gridley, 24 N. Y. 130; Fuller v. McEwen, 17 Ohio St. 288.

In this case it is not sought to enforce the lien against the land, but the claim is. presented against the estate of the devisee as a personal obligation against him. Therefore it is not necessary to determine or discuss the question as to the extent to which the property made a security for this annuity was chargeable with it, and construe the last clause of this paragraph of the will, “all the above to be and remain a lien upon said described farm as long as my said wife shall live.” The authorities cited by counsel appear to hold that the personal responsibility of the devisee arises- on account of an implied promise to pay the annuity, having accepted the devise on that condition. The question of the statute of limitations in this case must then be considered as being applied to a case of an ordinary action upon an implied contract, unless there appears, upon reason or authority, or both, ground for holding otherwise, because this is an annuity created by the provisions of a will. If claimant in a proper forum was seeking to enforce, the lien upon the land, we have no hesitancy in declaring that the rule of limitations applying to mortgages would control.

Although the annuity granted may be said to have been in lieu of dower, and was made a charge upon the real estate devised, the representative of the estate of the widow in this case is proceeding -upon the theory that this is a personal demand against the estate of the son, arising. upon an implied contract, and makes claim for it as such, not against a fund arising from a sale, but against the body of the estate. The authorities recognize a distinction between an action founded upon and created by a will or other specialty and one which, although incident to a specialty, yet rests upon an express or implied promise. In the former instance the statute invoked does not apply, while in the latter it does. Wood on Limitations (3d Ed.), § 35, and notes.

The many cases cited and relied upon by claimant in support of the contention that this statute of limitations does not apply are cases brought to enforce the charge upon the real estate devised or granted, or against a fund arising from a sale of land, or where an express trust has been created, or upon a specialty, or by some proceeding other than an action upon an implied promise to pay. Attention is again directed to the fact that this claim is based upon the implied promise of Thomas Stevens, and therefore is distinguishable from the cases relied upon by claimant.

We think the case at bar may be said to be analogous to a case where a promissory note is given, secured by a mortgage on real estate. If suit is brought on such note, the statute of limitations applying to promissory notes may be pleaded in bar of such action; but the fact that the statute has run against such a note does not destroy the lien of the mortgage, and if the party had elected his remedy by proceedings to foreclose his mortgage to satisfy the amount of indebtedness represented by the same note, he could have enforced his lien at any time within the limitations of the statute applying to mortgages. Michigan Ins. Co. v. Brown, 11 Mich. 265, and cases cited.

While it is true that the widow during her lifetime did not waive her lien upon the land charged with her annuity, yet she might have done so, and brought suit in assumpsit against her son, upon his implied promise, for each installment as it fell due, if not paid. Therefore her representative, beginning such suit upon the implied promise, and not claiming anything by reason of the lien, cannot claim any greater rights than his decedent would have had in a like proceeding.

We must conclude that the statute of limitations must be applied as in the case of an ordinary action upon an implied contract. The form of action, and not the cause of action, must determine whether the claimant’s action is barred. Christy v. Farlin, 49 Mich. 319; Stewart v. Sprague, 71 Mich. 50; Avery v. Miller, 81 Mich. 85. To determine whether the claim, or any part of it, is barred by the statute, it is necessary to compute the time which has elapsed since the right of action arose. The testator, Willis Stevens, died June 7, 1887. The first annual payment of money was due his widow June 7, 1888. A payment became due on June 7th of each year thereafter, to and including June 7, 1896. The widow died February 28, 1897. From the time of her death the running of the statute was suspended until May 31, 1899 —two years after the appointment of her administrator. Section 9737, 3 Comp. Laws; Field v. Loveridge, 114 Mich. 220. From that date the statute would run until ■the death of Thomas Stevens, April 9, 1903. This claim was filed in August, 1903. At the time of the widow’s death three of the payments due and unpaid for more than six years had become barred by the statute. Against the other payments, respectively, the statute had run as follows: fourth, 5 years, 8 months, 21 days; fifth, 4 years, 8 months, 21 days; sixth, 3 years, 8 months, 21 days; seventh, 2 years, 8 months, 21 days; eighth, 1 year, 8 months, 21 days; ninth, 8 months, 21 days. Adding to each of these periods the time elapsed from May 31, 1899, to April 9, 1903 (3 years, 10 months, 9 days), we find that all but the eighth and ninth payments were barred by the statute. For these two payments and interest claimant was entitled to recover. According to the computation presented by claimant, which is not questioned, this at the time of the trial amounted to the sum of $301.14.

It is urged that interest on this claim should not have been allowed. The authorities are in conflict upon the question of the allowance of interest upon arrearages of annuities. Where the annuity has been for the support and maintenance of a wife or child, interest has usually been allowed. The weight of the English authorities holds to this effect. Newman v. Anting, 3 Atk. 579; Litton v. Litton, 1 P. Wms. 541. In general, it may be said that in other cases interest is not allowed. In the United States the cases where interest has been allowed are all cases of the kind referred to, where the annuity was for support of widow.or child and a lien upon the land devised. Some of these cases hold that the allowance of interest for arrearages of an annuity is discretionary where it is for the support of widow. Beeson v. Elliott, 1 Del. Ch. 368; Addams v. Heffernan, 9 Watts (Pa.), 529.

The entire amount of the claim is for payments of the amounts provided by the will to be annually made to Fanny Stevens, together with interest thereon. Upon these unpaid installments she during her lifetime should have been allowed interest, and we know of no reason why the claim should cease to bear interest upon her death. The money was due to the widow annually. We think it but justice to require the legal rate of interest to be paid by the devisee in default, who was in the enjoyment of the estate upon which this claim was so charged. It is true that nearly all the authorities cited as in favor of allowing interest in these cases are chancery cases, where an enforcement of lien is sought. We think the same rule should apply in a case at law where the lien is waived, and recovery sought of the devisee or his estate upon an implied promise.

It is insisted that the assignment of error is not sufficiently specific, and does not comply with the rule. There were but two questions in the case, both of which were presented fully to the court below. These were, that the statute had run against the claim, and no recovery could be had; and that if the claim was allowed it should not bear interest. We think the assignment under the circumstances sufficient.

Our conclusion is that the court was in error in instruct-' ing the jury to find for claimant the entire claim, with interest. The instruction should have been for the amount above specified. The judgment may stand for that amount, with costs to appellant, provided the balance is remitted by claimant; otherwise the judgment is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Grant, J

license: Public Domain

text:
    BARTLETT v. SMITH.
    1. Vendor and Purohaser — Contract—Breach by Vendor — Measure oe Damages.
    Where the vendor in an unrecorded land contract conveys the land to a third person, the measure of the purchaser’s damages is the payments made and the reasonable value of improvements made in good faith, less the value of the use of the premises.
    2. Same — Naked Promise — Validity.
    A mere naked parol promise by the vendor in a land contract to extend the time of payment is not binding upon him.i
    3. Same — Covenants—Breach—Forfeiture of Contract.
    Where the vendor in a land contract covenants against incumbrances, and there is a mortgage on the land, he is not entitled to demand payment and forfeit the contract until the mortgage is discharged and he is in a position to perform the contract himself.
    4. Same — Contract—Breach by Vendor — Evidence.
    In an action by the purchaser in an unrecorded land contract for a breach by the vendor by conveying to a third person, it is error to reject evidence that the grantee took with knowledge of plaintiff’s rights and subject to them.
    5. Same — Possession by Purchaser — Effect.
    Where the purchaser in an unrecorded land contract is in possession of the land under his contract, such possession is notice of his rights, and he can suffer no injury by the vendor’s deeding away his title, since he can enforce his contract as well against his vendor’s grantee as against his vendor.
    Error to Benzie; Chittenden, J.
    Submitted June 7, 1906.
    (Docket No. 57.)
    Decided October 29, 1906.
    Assumpsit by Shirley Bartlett and another against G. Howard Smith for breach of a land contract. There was judgment for plaintiffs, and defendant brings error.
    Reversed.
    On April 18, 1902, plaintiffs and defendant executed a land contract, by which the defendant agreed to sell plaintiffs 40 acres of land for the sum of $400; $25 on delivery of contract, $50 per year for 6 years, and $75 the seventh year, with interest at 6 per cent., payable annually. That portion of the contract material to the issue reads as follows :
    “And that if any of the payments and conditions above set forth, on the part of said,parties of the second part to be made and performed, shall not be made and performed in conformity with the terms hereinbefore set forth, the payments previously made shall be forfeited, and the premises, with the buildings and improvements thereon, shall revert to said party of the first part, his representatives and assigns, and he may thereupon peaceably re-enter upon and take possession of the same. Or, if he shall so elect, the said party of the first part, his representatives and assigns, may enforce payment in law of the money due, and make conveyance, as aforesaid.”
    The cash payment was made, and also the payment and interest due the first year. The payment of $50 principal and $23 interest, due April 18, 1904, was not made. Plaintiffs claim that they secured an extension of 60 days. They, however, made no' tender within the 60 days. Plaintiffs testified that they made a tender on July 1st. There were no buildings upon the land, but plaintiffs went into possession, cultivated, and raised crops. On June 8, 1904, defendant sold the land to one Symons by warranty deed, which contained no reference to the land contract. Upon learning of this deed plaintiffs brought suit to recover the amount they had paid defendant. The court directed the jury to find a verdict for the plaintiffs for the full amount they had paid the defendant, less what plaintiffs “had received from the land over and above what they put onto it.” The jury found a verdict for the full amount claimed.

      Louisell & Nevius (Farm O. Gilbert, of counsel), for appellant.

      D. G. F. Warner, for appellees.
   Grant, J

{after stating the facts). 1. The plaintiffs had had the possession and use of the land for three years. They had made no improvements. The result of the instruction given by the circuit judge and the verdict of the jury is to deprive the defendant of the use of the property for three years, and to give the use thereof to the plaintiffs free of rent. Such an inequitable result finds no support in the law. If plaintiffs were entitled to recover, the rule is that they were entitled to recover the payments made, and the reasonable value of the improvements made in good faith, less the value of the use of the premises. 2 Sutherland on.Damages, § 586.

2. The promise to extend the time of payment, if made, was a mere naked promise, resting in parol, without any consideration, and was therefore of no validity. Ferris v. Johnson, 136 Mich. 227.

3. Defendant insists that time was of the essence of the contract, and that plaintiff had violated the contract by nonpayment, and therefore cannot maintain a suit at* law; while plaintiff urges that it was the duty of the defendant to give notice of his option to declare the contract forfeited, and that the execution of a deed without plaintiff’s knowledge or consent was a violation of the contract, and entitled him to recover back the money — citing Atkinson v. Scott, 36 Mich. 18; Davis v. Strobridge, 44 Mich. 157; Weaver v. Aitcheson, 65 Mich. 285. It is unnecessary to determine these questions, as plaintiff for another reason is entitled to maintain his suit. Defendant covenanted that the land was free from all incumbrances, and to give a warranty deed. The land was subject to a mortgage, which was not discharged until June 14, 1904. Defendant was not in position to demand payment or to forfeit the contract until he was in a position to perform it himself. Dwight v. Cutler, 3 Mich. 566; Getty v. Peters, 82 Mich. 661 (10 L. R. A. 465).

4. Defendant offered to show that the grantee to whom he conveyed the land was informed of the plaintiff’s land contract, and purchased subject to it. It was error to re-j.ect this testimony. Kreibich v. Martz, 119 Mich. 343.

5. In view of a new trial, it is well to state that the plaintiff testified that he was in the possession of this property at the time the sale was made. If he was in possession, he could not haye suffered damage by the act of the defendant in deeding away his interest in the property. Possession was notice to the purchaser of all his rights, and he could assert his contract against defendant’s vendee, as well as against the defendant.

Judgment reversed, and new trial ordered.

Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred.


author: Carpenter, 0. J.

text:
    CRANDALL v. McELHENY.
    Drains — Establishment—Proceedings—Review.
    A bill to enjoin the construction of a drain, on the ground of its illegality's properly dismissed where no certiorari was brought within the time limited by section 4346, 2 Comp. Laws, to test the legality of the proceedings.
    Appeal from Van Burén; Carr, J.
    Submitted June 8, 1906.
    (Docket No. 73.)
    Decided October 29, 1906.
    Bill by W. W. Crandall and others against Herbert E. McElheny, drain commissioner, to enjoin the construction of a drain. From an order sustaining a démurrer to the bill, complainants appeal.
    Affirmed.

      Samuel H. Kelley and Thomas J. Cavanaugh, for complainants.

      William 6r. Howard, Russel M. Chase, and Lincoln H. Titus, for defendant.
   Carpenter, 0. J.

It appears from complainants’ bill of complaint that defendant, the drain commissioner of the county of Van Burén, has taken steps under the laws of this State to establish a certain drain called the “ Paw Paw river drain.” Complainants question the legality of said drain, and the purpose of this suit is to perpetually enjoin its construction. Defendant demurred to the bill in the lower court. That demurrer was sustained, and a decree entered dismissing complainants’ bill. Complainants did not, within the time given them by law, review, as they might, the -drain proceedings by writ of certiorari. The drain law (section 4346, 2 Comp. Laws) provides:

“ If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”

Unless there is some constitutional objection to the application of this law to the case made by complainants (and no such objection is pointed out by counsel or perceived by the court), it prevents the maintenance of this suit.

It follows that defendant’s demurrer was properly sustained, and the decree dismissing the bill is affirmed.

McAlvat, Grant, Blair, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    PEOPLE v. SMITH.
    1. Municipal Corporations — Ordinances—Violation—Prosecution — Nature of Proceeding — Criminal Law.
    Prosecutions for violations of city ordinances are not criminal cases within the meaning of the term as used in the general laws of the State.
    2. Same — Appeals—Exceptions Before Sentence — Application of' Statute.
    The statute (section 11964, 3 Comp. Laws) allowing exceptions to be certified to this court before judgment, in criminal cases, does not apply to convictions under city ordinances.
    3. Same — Practice—Special Verdicts.
    While prosecutions for violations of city ordinances are not criminal in the sense that they are in enforcement of general criminal laws, they do so partake of the nature of criminal proceedings, including a verdict of guilty or not guilty, as charged, that the practice of securing by way of findings a number of special verdicts is unwarranted.
    4. Same — Mode of Review — Writ of Error.
    Where, after conviction in justice’s court of a violation of a city ordinance, there has been an appeal to the circuit court and a judgment there, error is the appropriate remedy to review that judgment.
    5. Same — Review on Merits.
    Exceptions before judgment not being appropriate to review a conviction of violation of a city ordinance, review on the merits cannot be had on such an appeal, especially where the bill of exceptions does not purport to contain all the evidence.
    Exceptions before judgment from Ionia; Davis, J.
    Submitted June 14, 1906.
    (Docket No. 100.)
    Decided October 29, 1906.
    Isaac J. Smith was convicted of violating a city ordinance. Proceedings dismissed, and court below advised to proceed to judgment.

      W. W. Wicker and George E. Nicholsfor appellant.

      Alfred B. Locke, City Attorney, for the people.
   Ostrander, J.

This case comes here on exceptions before sentence. Defendant was arrested upon a warrant. He appealed from a judgment of conviction in justice’s court, and in the circuit court a trial was had without a jury; the court making a finding of facts with conclusion that' defendant was guilty as charged. The charge is that the defendant violated an ordinance of the city of Ionia by going about the said city selling, and offering to sell, by sample, goods and property without having obtained a license. The record contains a bill of exceptions, in which is set out the testimony of various witnesses with various exhibits. It is not certified to contain all of the evidence produced at the trial. Exceptions were taken to the findings and to refusals to find as requested by defendant. Twelve errors are assigned, none of which are specifically relied upon or are mentioned in the brief for respondent; some of them relating to rulings upon the admission of evidence, some to the refusal of the court to find facts as requested, some to the final conclusion of the court. It is nowhere asserted that the findings are unsupported by evidence, or that the facts found do not support the verdict.

Two propositions are argued: One, that defendant was, through his principal, engaged in interstate commerce, and therefore not amenable to the ordinance in question; the other, that the ordinance is void because'in terms excepting from its operation persons selling vegetables, fish, meat, or farm produce, and bakers delivering bread and pastry to their customers at their dwellings in said city. Violations of the ordinance in question may be punished by fines of not less than $5 or more than $100, or by imprisonment in the county jail not more than 60 days, or by both fine and imprisonment, in the discretion of the court. No comment is made in either brief upon the practice pursued^ nor was any reference thereto made at the hearing. After the hearing, counsel were requested to furnish to this court briefs upon: (1) The use and ■effect in such proceedings of special findings of fact and law; (2) the authority for the review by this court in such cases of proceedings before sentence; (3) whether the record presents, properly, any question for review. We have received such briefs. As to the first question, counsel for the respondent say that, an appeal having been taken to the circuit court from the determination of the justice, the proceeding was subject, in that court, to disposition as a civil suit, and the provisions of Circuit Court Rule No. 26, relating to special findings by the court, are applicable. If this argument is approved, it necessarily follows that the statute provisions for exceptions before sentence cannot apply, since they relate to criminal proceedings only. 3 Comp. Laws, § 11964. Prosecutions for violations of city ordinances are not criminal cases within the meaning of the term as used in the general laws of the State. Jackson v. People, 8 Mich. 262; People v. Jackson, 8 Mich. 110; People, ex rel. Mixer, v. Board of Sup’rs of Manistee Co., 26 Mich. 422; People, ex rel. Fennell, v. Common Council of Bay City, 36 Mich. 186; Village of Vicksburg v. Briggs, 85 Mich. 502. It was expressly ruled in People v. Jackson, 8 Mich. 110, and City of Grand Rapids v. Roberts, 48 Mich. 198, that the statute allowing exceptions to be certified, to this court before judgment, in criminal cases, did not apply to convictions under city ordinances. It is true that City of Muskegon v. Zeeryp, 134 Mich. 181, and People v. Bunker, 128 Mich. 160, were heard and were determined upon exceptions before judgment; no question being raised as to the practice. It is manifest, however, that the practice should be settled and be uniform. It was not intended, in the later cases referred to, to question, the authority of City of Grand Rapids v. Roberts. And, while the proceedings are not criminal in the sense that they are in enforcement of general criminal laws, they do so partake of the nature of criminal proceedings (Village of Vicksburg v. Briggs, supra), including a verdict of guilty or not guilty, as charged, that the practice of securing by way of findings a number of special verdicts is unwarranted. Nor is it intended by this opinion to deny the right to a review in this court upon writ of error, where after a conviction in justice’s court there has been an appeal to the circuit court and a judgment there. Error is the appropriate remedy, in most cases, to review the final judgment of a court of law. The practice has been approved in cases like the present one. Kitson v. Mayor, etc., of Ann Arbor, 26 Mich. 325; Village of Vicksburg v. Briggs, 85 Mich. 502; People v. Baker, 115 Mich. 199. The judgment of this court, in Jackson v. People, 8 Mich. 262, in which it was held that error would not lie on a conviction in the recorder’s court of Detroit for an offense against a city ordinance, was based, it is apprehended, upon want of statutory authority to so review judgments rendered by that tribunal. It has no application to final judgments of circuit courts.

We are urged by respondent to determine the case upon the merits. We must decline to do so. There is no judgment. There is a verdict, a finding that the respondent is guilty. As has been stated, the bill of exceptions does not purport to contain all of the evidence.

The proceeding is dismissed, and the court below is advised to proceed to judgment. No costs will be awarded to either party.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


text:
    IRONTON CROSS TIE CO. v. EVANS.
    Saving Questions foe Review — Exceptions — Necessity to Review Findings.
    Where, in. a case tried to the court without a jury, no exceptions are taken to any of the findings, and it is not assigned as error, or contended, that the facts found do not support the conclusions of law, assignments of error in the admission and rejection of testimony, and the sufficiency of the evidence to support particular findings, cannot be reviewed.
    Error to Kent; Perkins, J.
    Submitted June 15, 1906.
    (Docket No. 7.)
    Decided October 29, 1906.
    Assumpsit by the Ironton Cross Tie Company against Howard E. Evans and John L. Retting, copartners as H. E. Evans & Company, for breach of a contract for the sale of certain ties. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Smedley & Corwin, for appellants.

      Smith & Ayer, for appellee.
   Ostrander, J.

The case was tried without a jury, and the court made findings of fact and of law. The record is certified to contain all of the evidence given upon the trial. Nineteen errors, fourteen of which relate to the admission or rejection of testimony, are assigned. • It is claimed, also, that there is no evidence to support the third, and no competent evidence to support the fourth, fifth, and sixth findings of fact. No exceptions were taken to any of the findings, and it is not assigned as error, or contended, that the facts found do not support the conclusion of law.

The judgment must be affirmed upon the authority of Weist v. Morlock, 116 Mich. 606; Stafford v. Crawford, 118 Mich. 285; Circuit Court Rule No. 26.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


author: Grant, J. Carpenter, C. J.

text:
    TOWNSHIP OF WEST BLOOMFIELD v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railroads — Franchise — Equipment — Sufficiency.
    Where the franchise granted by a rural township to a street railroad provides that its passenger cars shall be supplied with suitable appliances for a suburban railway, insuring the comfort, convenience, and safety of its passengers, a finding of failure to comply with its franchise in that respect is proper on evidence that, it has not provided its cars with toilet rooms and water tanks.
    2. Same — Tickets—Place of Sale.
    A provision -that family tickets shall be sold entitling the holder or any member of his family to 10 rides from any point in the township to a certain' city, and vice ver&a, means that such tickets shall be sold at any point at which such passengers have aright to take passage, i. e., on the cars; and placing them on sale at a store in the city named is not sufficient.
    3. Certiorari — Issuance of Mandamus — Questions Reviewable. .
    On certiorari to review the issuance of a mandamus by a circuit judge, the whole judgment is open for review, though, as to one of the questions involved, the judge deoided in favor of the relator, not on the merits, but because the case would find its way to the supreme court on the other questions in any event. Grant, J., dissenting.
    4. Carriers — Street Railroads — Franchises — Rates of Fare.
    A provision in a street railroad franchise, granted by a rural township, that the rate of fare from any point in the township to Detroit “shall at no time exceed the rate then charged by the"company from Pontiac to Detroit,” not only includes the company mentioned in the franchise, but includes any line which that company or its assignee may at any time build or purchase.
    Certiorari to Oaklánd; Smith, J.
    Submitted June 19, 1906.
    (Calendar No. 21,349.)
    Decided October 29, 1906.
    Mandamus by the township of West Bloomfield to compel the Detroit United Railway to comply with the provisions of its franchise. There was an order granting thp writ, and respondent brings certiorari. Affirmed.
    The relator, the township of West Bloomfield, granted a franchise to the Pontiac & Sylvan Lake Railway Company, a street railway corporation, its successors and assigns, to construct a road through the township. Among the conditions granted and accepted and which are involved in this case are:
    (а) All passenger cars to be used on said railway shall be of modern design, first class in every particular, and supplied with suitable appliances for a suburban railway, insuring the comfort, convenience, and safety of its patrons,
    (б) The rate of fare in said township was fixed, and it was provided “that there shall be-sold by said company, its successors or assigns, a family ticket entitling the purchaser or any member of his immediate family to 10 rides from any point in said township to and in the city of Pontiac, and vice versa, which ticket shall be sold for $1.”
    (c) “ Provided further that the rate of fare from any point in said township to the city of Detroit, and vice versa, shall at no time exceed the rate then charged by the company from Pontiac to Detroit, and vice versa.”
    Another road, known as the “ Detroit &' Pontiac Railway,” was then in operation from Pontiac to Detroit. The respondent’s road was on another route, and was a competing line with the Detroit & Pontiac. The respondent subsequently became the purchaser and successor of the Pontiac & Sylvan Lake Railway Company. The fare over the competing road from Pontiac to Detroit was 35 cents. The Pontiac & Sylvan Lake road was completed about December 1, 1899. The rate of fare to Detroit was 35 cents. This rate of fare was continued for about two years, until its purchase by the respondent, which continued the same rate for the period of about six months. Relator claimed that the respondent had violated its franchise or contract in three particulars:

      1. That it has not equipped its cars, which run through the township, with toilet closets, and water tanks for drinking purposes.
    2. That it has not kept on sale upon its cars and within its township the family ticket.
    3. That it has charged 35 cents fare to Detroit, and vice versa, instead of 25.
    Issues were duly framed and decided in favor of the relator, the jury finding that the respondent had violated its charter in the three respects named, and the court entered an order directing it to comply with these provisions. The case is now before us for review upon the writ of certiorari.

      M. F. Lillis {Clark, Jones & Bryant, of counsel), for • relator.

      James H. Lynch and Brennan, Donnelly & Van De Mark, for respondent.
   Grant, J.

{after stating the facts). 1. The jury, to whom the issues were submitted, found upon the evidence that the respondent’s cars were not of modern design, and were not supplied with suitable appliances for a suburban railway to insure the comfort and convenience of passengers, in that they had no toilet rooms or water tanks. The evidence fully sustains the finding. A car in a city, which one may take on emerging from his home, or after a few minutes walk, is different from a car running through the country, where its patrons often have to ride or walk an hour or more before entering the car. Facilities for attending to the demands of nature may be necessary in the one case, but not in the other.

2. The respondent placed on sale near its terminus, in a drug store in the city of Pontiac, the family tickets for which its franchise provided. This is not a compliance with its contract. It was not contemplated that the citizens of West Bloomfield should go to Pontiac to buy tickets. Every one had a right to purchase a family ticket at the place where he had a right to board the cars with his family for passage. These roads do not have ticket offices stationed through the country. They do their business on the cars, and, wherever passengers have a right to take the cars, there they have the right under the franchise to purchase these tickets. Sternberg v. State, 36 Neb. 307 (19 L. R. A. 570); City of Detroit v. Railway Co., 95 Mich. 456 (20 L. R. A. 79).

3. The third question is the one which perhaps presents the greatest difficulty. The learned circuit judge did not-pass upon it, but expressly stated that he expressed no opinion, that “the language could be read both ways,” and added:

“ The case is one that will find its way to the appellate court anyhow, unless a compromise is agreed upon by the parties. As the respondent must take the case there if not satisfied with the findings of this court upon the questions of the cars and sale of commutation tickets, it is as well to issue the writ as to all the contentions of the petitioner, and let all be taken there for settlement by the respondent.”

It is the duty of circuit courts to pass judgment upon cases presented to them for determination, and it then and then only becomes the duty of this court to review the conclusions reached by the circuit court. Circuit courts are not authorized by the Constitution and the law to sit and enter judgments solely that such judgments may be taken to the Supreme Court. Had this been the theory of the Constitution and the law the framers of the Constitution would have made provisions therefor. Suppose this were the only point in the case and the court had refused to hear and decide it, but had said:

“ It will go to the Supreme Court in any event, and I will therefore enter a judgment not based upon any conclusion or judgment of my own, but solely for the purpose of having it taken to the appellate court.”

Is this such a judgment as this court is called upon to consider and determine ? I think not. The judge might as well have flipped up a cent to determine what judgment should have been entered. In my opinion, this i» not such a judgment as this court is called upon to consider and determine. Where a judgment or decree involves several distinct claims, both parties may appeal where some are decided against each. My Brethren, however, are of the opinion that while the court should have passed upon all the issues, yet there is a formal judgment rendered against the defendant for which it is not responsible, and therefore it would not be just to send it back for a new trial. We must therefore determine the question.

The language of the provision that the rate of fare from any point in the township to Detroit “ shall at no time exceed the rate then charged by the company from Pontiac to Detroit, and vice versa,” is unambiguous. It referred to the company mentioned in the franchise, but it included any line which that company or its assignee might at any time build or purchase. Counsel for respondent in their brief say:

“The clear purpose of this provision was to provide that the township of West Bloomfield should get the benefit of such rate as might be brought about by competition between the companies operating between the two terminal points and thus, though not by virtue of location naturally entitled to the benefits of competition, yet, by express contract, obtaining the benefit of the competition which may exist as to the terminal points.”

There was then a competing line between Detroit and Pontiac, a shorter route by several miles than the one through the township of West Bloomfield, and the rate of fare was 25 cents. The fare over this line of the respondent was fixed at the same rate as that over the competing road, and was retained for about three years, until the Detroit & Pontiac Railroad was purchased by the respondent. There was afterwards no competition, the competing line belonging to the respondent, the assignee of the company mentioned in the franchise. If the respondent had built another line from Pontiac to Detroit it could not have charged a higher rate over the old line than it did over the new. The terms of the franchise must be construed strictly against the respondent. When it purchased the Detroit & Pontiac line it became a line of the company. The rate charged from Pontiac to Detroit over that line is now 25 cents. The respondent can charge no more over this line of its road. It cannot thus destroy the competition for which the relator in fact contracted.

The order of the court below is affirmed.

McAlvay, J., concurred with Grant, J.

Carpenter, C. J.

I agree with my Brother Grant that every judgment should be rendered in accordance with the deliberate convictions of the judge who announces it. But if it is not, the judgment is none the less valid and binding upon the parties, and it is therefore none the less the duty of this court to review it. In reviewing that judgment, we are called upon to determine whether it is or is not in accordance with law. We are not called upon to determine the correctness of the reasoning of the trial judge or the sincerity of his convictions. I therefore think it our duty to determine the third question discussed in the opinion of Justice Grant. Except as indicated above, I approve that opinion.

Montgomery and Ostrander, JJ., concurred with Carpenter, C. J.


author: Blair, J.

text:
    JACKSON, LANSING & SAGINAW RAILROAD CO. v. SOLOMON LUMBER CO.
    1. Taxation —State Tax Homestead Lands — Determination-Right to Attack — Limitations.
    Where lands have been bid in for the State for delinquent taxes, and the auditor general and commissioner of the State land office have filed their determination under the statute (sec tion 127, Act 206, Pub. Acts 1893, as amended by Act 107, Pub. Acts 1899) relating to abandoned lands, and more than six months have passed after such determination before any proceedings are begun to review it, so that the original owner is barred by limitations from making a direct attack thereon, he cannot call it in question in an action of replevin to recover timber cut from the land by a purchaser from the State.
    2. Same — Certificate of Error — Effect.
    After the determination by the auditor general and commissioner of the State land office that lands are abandoned within ■the meaning ■ of section 127, Act 206, Pub. Acts 1893, as amended by Act 107, Pub. Acts 1899, the auditor general has no further control over the lands, and his certificate of error issued thereafter is a mere nullity.
    3. Same — Redemption—Receipt of Money — Estoppel of State.
    Receipt by the auditor general of money to redeem lands sold for delinquent taxes, after the lands have passed out of control of the auditor general by reason of the filing of the determination by him and the commissioner of the State land office that the lands are abandoned, can have no effect to support an estoppel against the State or in any way affect its rights.
    4. Same — Deeds—Effect of Irregularities.
    The title of the State to abandoned State tax lands becomes absolute by the filing by the auditor general and commissioner of the State land office of the determination that they are abandoned, and the fact that the auditor general, in performing the ministerial act of executing the deed to evidence the title, deeds the land to the State by forties, instead of as an entire tract, as it was assessed, is immaterial.
    Error to Iosco; Connine, J.
    Submitted June 12, 1906.
    (Docket No. 89.)
    Decided October 29, 1906.

      Eeplevin by the Jackson, Lansing & Saginaw Eailroad Company against the Solomon Lumber Company. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      George L. Alexander, for appellant.

      Ward B. Connine, for appellee.
   Blair, J.

This is an action of replevin brought to recover possession of a quantity of saw logs. The right to the possession of the logs depends upon the ownership of the lands upon which they were cut, described as the N. i S. W. J section 1, town 25 N., range 1 W. The original title to the lands was conveyed to plaintiff by United States patent, May 8, 1873. Plaintiff failed to pay its taxes, and the entire section was returned as delinquent, sold and bid in to the State for the taxes assessed thereon in the years 1892 to 1900, inclusive. On September 23, 1902, the auditor general and the commissioner of the State land office filed their certificate of determination in the usual form, determining that the lands in question, among others, came “within the provisions of section 127 of Act No. 206 of the Public Acts of 1893, as amended by Act No. 107 of the Public Acts of 1899.” This determination was based in part upon the certificate of an examiner as to the character of the lands, etc., dated December 7, 1901, and of the county clerk, that there were no actions pending, dated January 18, 1902. On November 8,1902, the auditor general executed a deed to the State, reciting the proceedings culminating in the determination of September 23, 1902, of the following described lands: S. E. i N. W. £ section 1, containing 40 acres, more or less; N. E. J S. W. i section 1, containing 40 acres, more or less; N. W. ¿ S. W. £ section 1, containing 40 acres, more or less; S. W. i S. W. i section 1, containing 40 acres, more or less — town 25 N., range 1 W. On November 20, 1902, the auditor general and the land commissioner withdrew the lands in question from homestead entry, pursuant to Act No. 141, Pub. Acts 1901, and on January 24, 1903, gave notice of sale to be held on March 5, 1903. August 31, 1903, the land commissioner executed a deed to William Deeter of the N. W. £ S. W. i of said section 1, and on September 2d he deeded the N. E. £ S. W. i of said section to Harry Solomon. Deeter and Solomon conveyed their interests to the defendant.

Plaintiff, on the 7th day of 'November, 1902, wrote to the auditor general, making application to purchase and redeem the land, and inclosed the sum of $585 for such purpose. On November 10,1902, the auditor general replied, acknowledging receipt of the $585, and saying that it will require an additional remittance of $145.14, which should be sent immediately as the land is listed to be deeded to the State and will be deeded unless purchased within the next few days.” This additional sum of $145.14 was sent to the auditor general on November 12, 1902. On the 14th day of November, 1902, the auditor general, by John E. Wilkinson, his deputy, executed and delivered a conveyance of said land to the plaintiff. October 20, 1903, the deputy auditor general issued a certificate of error against the deed of the auditor general to the State of'November 8, 1902, for the reasons following:

“ The deed of said described land to the State of Michigan under section 127, Act 206, Pub. Acts 1893, as amended, was erroneously issued, for the reason that the entire section 1 of said town and range was returned delinquent, advertised for tax sale, bid to the State and held subject to purchase, redemption, and payment as one description for all of above years and was erroneously subdivided in said deed to the State of Michigan, also the taxes for all of above years were purchased, redeemed and paid from the auditor general.”

The circuit judge directed a verdict in favor of defendant, and plaintiff has removed the record to this court for review on writ of error, contending that verdict should have been directed in its favor.

In the brief for plaintiff counsel say:

“The principal question in this case is as to the legal effect of the proceedings taken by the auditor general and the commissioner of the State land office, of this State, terminating in the deed from the auditor general to the State of Michigan conveying to the State of Michigan the lands in contention in this case under what are known as the ‘State tax homestead laws.’ If these proceedings were not regular and legal and did not divest plaintiff of its title to the lands in question, plaintiff must prevail.”

More than six months had elapsed after the determination of the auditor general and the commissioner of the State land office before plaintiff instituted this suit, and since it was barred by the statute of limitations from making a direct attack upon the determination, it plainly could not call it in question in this suit. Semer v. Auditor General, 133 Mich. 569.

After the determination by the auditor general and the commissioner of the State land office the auditor general had no further control over these.lands, and his certificate of error was a mere nullity. Commissioner of State Land Office v. Auditor General, 131 Mich. 147.

It necessarily follows that the receiving of plaintiff’s money by the auditor general, after the determination, could not support an estoppel against the State, or in any way affect its rights.

The fact that the auditor general deeded the lands to the State by forties, instead of as one entire description is immaterial. The execution of the deed is a mere ministerial act to evidence the title. Eldridge v. Richmond, 120 Mich. 586. The title of the State having become absolute by the determination, whether .the auditor general deeded the lands by subdivisions or as an entire section did not concern the plaintiff. It is unnecessary to consider other questions, since w;hat we have said disposes of the case.

The judgment is affirmed.

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


author: Per Curiam.

text:
    REED v. AUDITOR GENERAL.
    1. Statutes — Titles—Tax Law.
    The provision of Act No. 229, Pub. Acts 1897, amendatory of Act No. 206, Pub. Acts 1893, providing six months’ grace to the original owner of lands sold to the State for taxes and conveyed to private parties, is germane to the title of the act of which it is an amendment.
    2. Same — Dual Title.
    The title of Act No. 206, Pub. Acts 1893, is not dual.
    3. Same — Amendments—Re-enactment op Sections Amended.
    Sections of a statute that are affected by an amendatory act not amending them in terms need not be re-enacted as amended.
    4. Constitutional Law — Vested Rights — Tax Titles.
    A statute giving original owners of lands sold for taxes and conveyed to private parties six months’ grace for redemption interferes with no private property right, since one who buys a conditional title is in no position to complain of the conditions.
    Mandamus by Oswald H. Reed to compel James B. Bradley, auditor general, to issue a tax deed.
    Petition filed August 17, 1906.
    (Calendar No. 21,937½.)
    Order to show cause denied October 29, 1906.

      Oswald Jff. Reed, in pro. per.
   Per Curiam.

The relator by this application brings in question the constitutionality of Act No. 229, Pub. Acts 1897, which by an amendment to the tax law provides in effect for six months’ grace to the original owner of lands sold to the State for taxes and conveyed to private parties. It is contended that the provisions of the amendatory act are not germane to the title of the original act. Act No. 206, Pub. Acts 1893. The title to the original act relates, not alone to the levy and collection of taxes, but to “the sale and conveyance of lands delinquent for taxes, and for the inspection and disposition of lands bid off to the State and not redeemed or purchased.” Unless this title is broad enough to admit of provisions authorizing a sale of State tax lands by the auditor general, the relator has and can acquire no title to the land which he claims to own. If, on the other hand, it is sufficiently broad for this purpose, a provision in an amendment which, fixes the terms of such sale, and characterizes the title acquired thereunder, is clearly germane to the title and subject dealt with.

The contention that the title is dual is answered by the same considerations.

The contention that certain sections of the original act which are affected by the sections added by the amendatory act should have been re-enacted as amended is fully answered by the two cases of People v. Wands, 23 Mich. 385, and Swartwout v. Railroad Co., 24 Mich., at page 399. There is no infringement of private property rights by this provision. The State may provide for this measure of protection to delinquent owners, and one who buys a conditional title is not in position to complain of the conditions. Monaghan v. Auditor General, 136 Mich. 247; John Duncan Land & Mining Co. v. Rusch, 145 Mich. 1.

The application is denied.


text:
    ALBERTS v. CITY OF MUSKEGON
    Municipal Corporations — Torts — Liability — Negligence of Officers.
    A city is not liable at common law for the destruction of private property by fire caused by sparks emitted from a steam road roller in use by the city’s officers repairing a public street pursuant to a duty imposed upon the city by the general law.
    Error to Muskegon; Russell, J.
    Submitted June 14, 1905.
    (Docket No. 10.)
    Reargued October 10, 1906.
    (Docket No. 3.)
    Decided October 29, 1906.
    Case by Abner Alberts against the city of Muskegon for the negligent burning of plaintiff’s barn. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.
    Plaintiff, the owner of a barn on premises abutting upon Olay avenue in the defendant city, sued the city in an action on the case for damages resulting from destruction of the barn and its content's by fire. It is charged in the declaration of the plaintiff that “the said defendant was operating a certain steam roller along Olay avenue in front of and adjoining the premises occupied by the plaintiff’s property * * * which said steam roller the said defendant had negligently and carelessly failed to equip with suitable devices for preventing the escape of sparks and fire therefrom and by reason thereof, in its operations on the said street, the said steam roller threw off large quantities of sparks and fire which ignited and set fire to the plaintiff’s said barn,” etc. It is further charged that the defendant city, in operating a certain steam roller in the said street, “managed and conducted the same carelessly and negligently without taking any precautions to prevent the escape of fire and sparks, * * * and thereby fire and sparks were emitted from said roller, and set fire to the plaintiff’s said property.”
    The testimony for the plaintiff tended to prove that the defendant city was engaged in repairing the street in question with crushed stone and, in the operation, was using a roller moved and operated by steam, having an upright boiler and a stack, into which steam was exhausted to create a draft; that the fuel used was soft coal; that there was no appliance to prevent the escape of sparks and fire from the stack; that, upon the occasion in question, the wind was blowing from the roller towards the premises of the plaintiff, in front of which the roller was run up and down the street; that fire escaped from the stack, igniting refuse outside the barn, spreading to and consuming the barn and its contents. It does not appear that all of the testimony introduced on the part of the plaintiff is returned. Such of it as is printed tends to prove' that, as it was equipped, the roller could not be •operated for the purpose for which it was employed without throwing out fire. When the case for the plaintiff was rested, there was a demurrer to the evidence, and a motion to direct a verdict for defendant, which motion was •overruled.
    On the day after the fire, the engineer in charge of the roller, without direction or authority from defendant, put a spark arrester on the stack. The common council has general supervision and control of the streets of the city and power, if the estimated cost of repairs and improvements exceeds $500, to perform the same by contractors. It also has power in case of such repairs as were being made to cause the same to be done. The council made no determination to do the work in question further than that it should be done by the city’s agents and employés. The work itself was under the personal supervision of the street commissioner, who is subject to the direction of the council. He employed the engineer, gave him the roller to use, and directed him when and where to use it.
    The jury were instructed, in substance, that the defendant city was bound to exercise the care which an ordinarily careful and prudent person should and would have exercised under the circumstances, both with respect to the equipment and the operation of the roller, failing in which, if it was found that the fire and loss resulted, the city was liable. Error is assigned upon the refusal of the court to direct a verdict for defendant, and upon a portion of the charge given, which is as follows:
    “The city of Muskegon has no more right than any private individual or private corporation to operate on its streets engines or machinery dangerous to adjoining property, without using proper precautions to prevent injury to such property.”

      James E. Sullivan, for appellant.

      William Carpenter, for appellee.
   Ostrander, J.

(after stating the facts). The position of counsel for appellant is that the duty of the city to keep the streets in repair is a public and not a private duty, in the performance of which, in the absence of a statute creating one, no liability arises for injuries resulting, directly or indirectly, to a citizen from the negligence of agents or servants, or from the use of apparatus employed.

On the other hand, counsel for plaintiff insists that defendant was not acting in a governmental capacity, and, if it was, the act complained about is of a character which no public authority can commit without making restitution for resulting damages.

It is clear that, so far as the repairs upon the street are concerned, the duty to make them is imposed by the general law. The demand of the plaintiff does not, however, arise out of a failure of the duty to repair the street or the character of the repairs made, nor is the injury complained about one necessarily resulting from a proper and skillful performance ' of general public duties. Conceding the duty to repair the street, and conceding the right of the city to make choice — involving discretion — of materials to be used and means to be employed in performance of the duty, the real question, which it is sought to have answered, arises upon the breach of a further alleged duty not to employ means certain or likely to involve, as a result of their use, and not to so use the means employed as to cause damage to private property.

Plaintiff complains of the invasion of a private right in no way dependent upon the duty imposed on the city to repair the streets; in which respects, it is obvious, the case differs from City of Detroit v. Blackeby, 21 Mich. 81, and like cases, upon the principle of which defendant mainly relies. In the case cited, the right upon which the plaintiff relied was the right, as one of the public, to use the way. The defendant city was charged with neglect to repair the way and not with active misconduct, nor with the invasion of any right of the plaintiff which was not common to all of the public having occasion to use the way. The doctrine that legislative action is required to create liability to private suit, for neglect to repair public ways, was established by that case, and has since been recognized. The alternative doctrine there pressed upon the court, and which received the indorsement of Mr. Justice Cooley, was supported by the argument that cities were to be distinguished from towns and counties for the reason that they were not like those quasi municipalities mere political subdivisons of the State, upon which, without their assent, duties were imposed by general laws, but were to be regarded as communities soliciting and obtaining from the legislature special privileges and powers which were attended with corresponding duties, involving the implied undertaking to perform the duties. The doctrine that political divisions of the State having duties imposed upon them by general law without their assent are not liable to respond to individuals in damages for neglect of those duties unless expressly made liable by statute is as well recognized in the minority as in the majority opinion in that case. There are many decisions of this and of other courts which deny the liability of municipal corporations to suits for injuries to private rights as distinguished from rights which the individual shares with or has as one of the public. Examples are to be found in those cases .in which the negligence or other misconduct of officers occasions the injury complained about, and it is found that such officers are not agents or servants of the municipality but are independent public officers performing public duties. See Murray v. Village of Grass Lake, 125 Mich. 2; Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601); Whitehead v. Board of Education of Detroit, 139 Mich. 490. It is equally well settled that cities may be liable for positive mischief produced by the active misconduct of the municipality itself. And this independent of the fact, sometimes regarded as controlling, that the city had, or had not, a private or proprietary, as distinguished from a mere public, interest in the doing of the act or in performing the work which occasioned the injury. It was said in Sheldon v. Village of Kalamazoo, 24 Mich. 383, in reply to the argument that the president and trustees of Kalamazoo acted in the capacity of public officers and not as municipal agents, that:

The injurious act complained of is not a public grievance, but is a wrong done to a private person. It is not a wrong arising from neglect, but is the direct operation of a willful trespass. * * * The doctrine is entirely untenable that there can be no municipal liability for unlawful acts done by municipal authorities to the prejudice of private parties. In this respect, public corporations are as distinctly legal persons as private corporations. There are officers who are corporation agents, and there are municipal officers whose duties are independent of agency and with distinct liabilities. But when the act done is in law a corporate act, there is no ground upon reason or authority for holding that if there is any legal liability 'at all arising out of it, the corporation may not be answerable. There is no conflict whatever in the authorities on this head. The only disagreement is concerning corporate responsibility in cases of alleged neglect of duty, and concerning the bounds of what may be termed their legislative discretion, as distinguished from their other action.”

So, in Ferris v. Board of Education of Detroit, 122 Mich. 315, it was held that a school district was liable for injuries resulting from snow and ice falling from a school building upon private property, the building having been so constructed that such precipitation upon plaintiff’s premises was inevitable.

The case at bar is not one of damages resulting from a direct trespass or from misfeasance of the city amounting to a trespass. It is a case of consequential injury resulting directly from the negligent conduct of the defendant’s agents. In this fact lies the distinction which, in view of former decisions of this court, must be- made, and, when made, is controlling. The basis of the liability asserted is negligence. It is the basis, substantially, of all legal liability, in this country, for damages caused by fire. See 1. Street’s Foundations of Legal Liability, 56. The case is therefore unlike Defer v. City of Detroit, 67 Mich. 346; Rice v. City of Flint, 67 Mich. 401; Ashley v. City of Port Huron, 35 Mich. 296; and other like cases. In the opinion in the case last cited, after extended reference to adjudicated cases, it is said:

“ It is very manifest from this reference to authorities, that they recognize in municipal corporations no exemption from responsibility where the injury an individual has received is a direct inj ury accomplished by a corporate act which is in the nature of a trespass upon him. The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. If the corporation send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable, and no more an actionable wrong, than the other. Each is a trespass, and in each instance the city exceeds its lawful jurisdiction.”

In the case at bar, it cannot be .said that the burning of plaintiff’s property was the necessary result of employing the roller as equipped upon the road. The machine and the agents of the city were properly employed in performing a public work. This employment involved no injury to plaintiff’s property. Between the performance of the work and the injury complained of were the alleged facts of improper equipment of the roller; direction and velocity of the prevailing wind; management of the machine. In some respects, the case may be regarded as closely resembling many in which municipal liability has been judicially affirmed. In essentials it belongs to the class of cases where the injury is the result of negligence of municipal agents employed in public work for which the municipality is not at common law liable.

The judgment is reversed, with costs of both courts to defendant. No new trial will be granted.

Carpenter, C. J., and McAlvay, Grant, Blair, Montgomery, Hooker, and Moore, JJ., concurred.


text:
    McWILLIAMS v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Trial — Reception of Testimony — Hearsay — Refusal to Strike — Discretion of Court.
    Where plaintiff, without objection, testifies to matters favorable to his case, which are objectionable as hearsay, and defendant, on cross-examination, brings out further details of the same matters, refusal by the court to strike such testimony is discretionary, it having been received without objection.
    2. Carriers — Passengers—Assault by Other Passenger — Duty of Carrier.
    Where a carrier has, or from known conditions should have, knowledge that the condition or actions of a passenger threaten the safety of other passengers, or that mischief is to be reasonably apprehended, the duty to exercise the highest degree of care to insure the safety of passengers arises, and the carrier is liable for failure to do so.
    3. Same — Negligence—Evidence—Question for Jury.
    In an action against a carrier for injury to a passenger by being shot on July 4th by a drunken passenger, evidence examined, and held, that whether the carrier, through its servants, exercised the proper care, under all the circumstances, for protection of its passengers, was a question for the jury.
    Error to Lenawee; Chester, J.
    Submitted January 5, 1906.
    (Docket No. 12.)
    Reargued October 3, 1906.
    (Docket No. 4.)
    Decided October 29, 1906.
    Case by Annie McWilliams against the Lake Shore & Michigan Southern Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      C. E. Weaver and Dallas Boudeman, for appellant.

      Fellows & Chandler, for appellee.
   Ostrander, J.

Plaintiff was a passenger on one of defendant’s trains on the evening of July 4, 1903, from Grand Rapids to Hudson, Mich. The case set out and attempted to be proved by her is a contract of carriage and a breach of the duty of defendant to protect her from an assault committed by a fellow passenger, who was, and by the servants of defendant was known to be, intoxicated, armed with and carelessly discharging a firearm on the train. Plaintiff’s case as to the cause of her injury and the attendant circumstances was made by her own testimony. Upon direct examination, without objection being made thereto, she testified:

“After these shots were fired, the conductor came through and asked me if I was hurt, and I said I guessed not very bad. He went right on through and came back immediately and asked me again, and I told him I was hurt worse than I thought for, and he said that the gentleman had been creating some disturbance in the smoker. ”

The subject does not seem to .have been further pursued by counsel for plaintiff. On her cross-examination, the plaintiff gave the following testimony:

“ I sat on the south side of the car when I left White Pigeon, and did not change my seat. I got asleep, quieted down immediately after I got on at White Pigeon. Don’t remember the train reaching Sturgis or Burr Oak or Bronson. I did not see this man with the revolver until he fired. I should judge he was a young man, 20 or 28. I didn’t see his face.

“Q. Where did you see him, when you first saw this man ?

“A. I saw him going out of the coach. He was pretty close to the door, trying to get to the door, trying to find the door, pretty close to the rear door of the coach. He was right by it, trying to find it. He fired twice. He fired by where I was. Then he walked on and fired again, between that place and the door. He only fired once opposite where I was. I didn’t see him approaching, because I was asleep, and did not hear any other firing than the time he fired close to me.

“Q. And then, of course, when he fired you woke up at once ?

“A. Yes, sir.

“Q. You turned around and saw him going toward, or got about to the door ?

“A. Yes, sir. * * *

“Q. When you first saw the conductor coming through the door, how far had this man gotten down toward the end of the car ?

“A. Why, not — why, down pretty close to the door. The conductor came into the car just as the shot, or just after — just shut the door as the first report was given.

“Q. Well, you didn’t know that he had just shut the door, because you were asleep ?

“A. Well, he said he had; of course,. I don’t know.

Q. Well, I want to get at what you saw.

“A. Well, I saw him just after—

Q. Just as the second shot was fired, didn’t you ?

“A. Yes, sir; just about the time the second shot was fired.

Q. That is, the time the second shot was fired ?'

“A. Yes, sir.

Q. Was that the first that you saw the conductor ?

“A. Coming in toward me.

Q. Then he was just inside of the door ?

“A. Yes, sir; and just coming toward me. * * *

‘ ‘ Q. Now, what do you say the conductor said to you first when he came along, and asked you whether you were hurt ?

“A. Asked me whether I was hurt.

Q. And you told him you thought you weren’t ?

“A. I wasn’t; yes, sir.

“ Q. Then he passed on through the car in the same direction the man had gone ?

“A. Yes, sir.

Q. And how long before he came back ?

“A. Immediately.

Q. Well, he went out of the car, did he, first ?

“A. He went just out of the car. * * *

‘ Q. What did he say to you then ?

‘A. Asked me if I was hurt bad, and I told him worse than I thought for. * * * He gave me his handkerchief, and I used it, and that was all. He went back then.

Q. Didn’t he talk to you any more than that ?

“A. Not any more than to say that the man was shooting his revolver in the smoking car, and he told him if he didn’t stop it he would have to put him off. * * * He

said he was drunk.

Q. How long before that did he say he had been shooting in the smoking car, and he told him he had got to quit or he would put him off ?

‘ ‘A. Why, from what — I should judge it was just before he came through the car that the man got up—

Q. Well, did he say so ? Did he say when it was that he had told him to quit ?

“A. Yes, sir; he said it was a few minutes ago. That was the remark he made.

Q. Did he tell you that he quit shooting then, when he told him that ?

"A. No, he didn’t say that he did or that he didn’t.

* * *

Q. What kind of a revolver did he have ?

“A. Blank cartridge; one of these that the boys and young men use the 4th of July. I don’t know how near he was to me when he shot, because I was asleep and was awakened by the shot. As I got to examining my face I found there was powder in it, blackened my face and went under the skin. I had the powder removed. the next day by Dr. Dodge. • I think he removed it all. I haven’t any marks now. I saw the pistol in this man’s hand. I saw it as I looked back.”

Upon concluding the cross-examination, counsel for defendant moved the court .to strike out the testimony of the witness as to what was said to her by the conductor the second time he came into the car, on the ground that it was hearsay, irrelevant, and incompetent. The motion was overruled and exception taken. This ruling, and exception, presents the question first to be discussed. It will be perceived that the facts that the passenger who did the shooting was, to the knowledge of the conductor, intoxicated, had been shooting in the smoking car, and had been told to stop shooting on pain of being put off the train, were called out by defendant’s counsel. It was hearsay, and, if it had been offered by plaintiff and seasonably objected to, the question whether or not the hearsay rule would have required that it should be, under the circumstances of this case, excluded, would have been before us for determination. It had a tendency to prove certain conditions, and knowledge of them on the part of the conductor, favorable to the theory and the interest of the plaintiff. It is true it was by way of a claimed admission of the agent, but it was an admission of facts, the existence of which it was proper for either party to prove, and plaintiff might have proved them at the trial by the conductor or by a bystander who saw and heard what occurred. Defendant was not bound to accept the statements of plaintiff, and it did hot do so. The conductor was a witness for defendant, and he denied the conversation testified to by plaintiff and all knowledge of the facts claimed to have been related by him in that conversation. Plaintiff having produced no other testimony upon the point, the jury were permitted to find: First, whether such a conversation took place; second, whether the facts existed, and, if they believed that the conversation occurred as related by plaintiff, to find the facts of knowledge and conduct of the conductor from the alleged admissions. The trial court was not requested to limit the effect of the plaintiff’s testimony. He did limit by saying to the jury that:

“She claims that the conductor admitted to her that this man was intoxicated, and that in the smoking car, in this condition, he had fired off this revolver a couple of times, and that he had told him if he did not stop he would stop the train and put him off. The plaintiff claims that from the admission of the conductor she has proven to you that he had knowledge and knew of the intoxicated condition of this person, and that he also knew that this person had fired this revolver. ”

No criticism of this statement of the position and claim of plaintiff is made, and no exception was taken to the charge upon any ground other than the one that the case should not have been submitted to the jury. It cannot be said that the testimony was elicited through inadvertence, or that it was volunteered by the witness. She was requested directly and repeatedly to state what the conductor said to her. Her answers were responsive to the questions put to her. No statute prohibits the introduction of the testimony. In such cases, the trial judge, in considering a motion to strike out testimony, is permitted a wide discretion, and we are of opinion that in this case there was no abuse of discretion. King v. Haney, 46 Cal. 560; East Tennessee, etc., R. Co. v. Turvaville, 97 Ala. 122; Dugger v. McKesson, 100 N. C. 1; Farmers’ & Traders’ Nat. Bank v.’Greene, 74 Fed. 439. The testimony must be treated as though received without objection.

It is contended that, assuming the truth of the facts stated by the conductor, as related by plaintiff, there is no evidence of defendant’s negligence or of failure to exercise due care for the safety of the other passengers. To state the position of counsel for defendant in his own language:

“There is no proof here that the conductor had, or could have had, any reasonable cause to believe that this party would fire his pistol after being told to desist, much less that he would go into some other car and fire it into the face of some other passenger.”

The negligence for which in such cases the carrier is responsible is not the tort of the fellow passenger or the stranger, but is the negligent omission of the carrier’s servants to prevent the commission of the tort. And courts have, in some cases, distinguished the liability of the carrier for torts committed by its servants and those committed by passengers or- by strangers. Tall v. Packet Co., 90 Md. 248 (47 L. R. A. 120). But the distinction made seems to go no further than this: that, while the liability to passengers carried for hire for tortious acts of servants is absolute, and that for the acts of strangers or fellow passengers is relative, contingent, and qualified, if the servant of the carrier has, or from known conditions should have, knowledge that the condition or actions of one admitted as a passenger threaten the safety of other passengers, or that mischief is to be reasonably apprehended, the duty to exercise the highest degree of care to insure the safety of passengers at once arises, failing in which the carrier will be held to answer for the damages sustained. See, generally, Hutchinson on Carriers (2d Ed.), § 546 et seq.; Putnam v. Railroad Co., 55 N. Y. 108; Pittsburg, etc., R. Co. v. Pillow, 76 Pa. 510; Ferry Cos. v. White, 99 Tenn. 256; St. Louis, etc., R. Co. v. Hatch (Tenn.), 94 S. W. 671; Mullan v. Railroad Co., 46 Minn. 474; Flint v. Transportation Co., 34 Conn. 554, 6 Blatchf. (U. S.) 158; Felton v. Railway Co., 69 Iowa, 577. The opinions in the cases herewith cited, and the many others which are referred to in the opinions, illustrate the application of the rule to various and widely differing facts. We are not called upon, in this case, no criticism being made of the charge given to the jury, to state a rule beyond this: We cannot say, as matter of law, that the con■ductor performed his full duty in the premises in threatening to eject the offending passenger if he did not desist from shooting his revolver.. The combination of the 4th of July, a crowded train, a revolver loaded with blank cartridges, in the hands of a drunken man, with a penchant for discharging it among the passengers, is threatening and likely to cause mischief. The agent of defendant, who knew the facts, possessed all of the powers of a sheriff on the train. Whether he was not required, in the exercise of proper care, to either disarm the man or keep him under such surveillance as would be likely to prevent ■mischief was, under all the circumstances, a question to be submitted to the jury.

The judgment is affirmed.

Carpenter, C. J., and Me Alva y, Grant, Blair, Montgomery, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    PASCIESZNY v. BOYDELL BROS. WHITE LEAD & COLOR CO.
    .1. Carriers — Passengers—Elevators—Landlord and Tenant-Care Required in Operation of Elevator. ■
    In an action against the owner of a building, by the servant of a tenant, for personal injuries, caused by the alleged negligent operation of the passenger elevator in the building, instructions relative to the degree of care required of the landlord in the operation of the elevator examined in connection with the evidence, and held, as favorable to defendant as it was entitled to.
    '2. Examination of Witnesses — Harmless Error.
    Where, at the time of sustaining an objection to a question put to plaintiff on cross-examination, the court said that the matter might become material at a later stage of the case, and, on the witness being recalled, defendant did not renew the question, the rejection of the question cannot be regarded as reversible error.
    3. Carriers — Passengers—Landlord and Tenant — Elevators —Negligence—Action—Evidence—Effect.
    In an action against the owner of a building for injury to the servant of a tenant, plaintiff claimed that the door of the elevator shaft was negligently left open when the elevator was not there, and that he was deceived thereby and fell down the shaft, while defendant claimed that plaintiff opened the door himself, supposing the ejevator was there, and produced evidence tending to show that plaintiff had on prior occasions so opened the door. Held, that an instruction that evidence of plaintiff’s prior acts in opening the door could be considered only as impeaching him, he having denied knowledge of the manner of opening the door, was too restrictive, such evidence being also competent to support an inference that he opened the door on the occasion of the accident.

    Error to Wayne; Rohnert, J.
    Submitted October 5, 1906.
    (Docket No. 12.)
    Decided October 29, 1906.
    Case by John Pasciészny against Boydell Brothers White Lead & Color Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Wilkinson, Post & Oxtoby (Clarence A. Lightner, of counsel), for appellant.

      Dohany & Dohany, for appellee.

       As to liability for injury to elevator passenger, see note to Edwards v. Manufacturers’ Building Co. (R. I.), 2 L. R. A. (N. S.) 744.

   Moore, J.

The defendant is the owner of an eight-story building which was ■ leased to various tenants, among whom, in July, 1904, was the firm for whom the plaintiff, John Pasciészny, worked. About 20 minutes before 7 o’clock in the morning of July 20, 1904, plaintiff was injured by falling through the door of the caging surrounding the passenger elevator on the ground floor, into the basement, receiving severe injuries. The passenger elevator is situated on the westerly side of the building at the end of a long hallway, which was dimly lighted, extending along the westerly side of the building from Fort street. The hallway is of an even width for a little more than half of the distance from the outside door to the passenger elevator, when it gradually widens as the elevator is approached. The passenger elevator is located between two brick fire walls. The stairway running to the upper floors of the building, as well as the freight elevator, is likewise located between these fire walls. In order to reach the elevator and the stairs, it is necessary to pass through a door in the first fire wall, which door was kept open, it being equipped with a fusible link so as to close automatically in case of fire. There is also a doorway in the second fire wall to the left of the elevator opposite the doorway in the first fire wall, equipped with fire doors. The door of the passenger elevator is opened from the inside by throwing a gravity catch. The passenger elevator is surrounded by a wire inclosure which extends from the basement to the top floor. When the outer fire door in the rear fire wall is closed there is a one-inch space between the elevator caging and the fire wall. When the fire door is swung back there is an additional space of inches. By pulling the fire door back a man could reach around inside'of the wire inclosure, a distance of 7f inches, and unlock the cage door by pushing the catch back.

The claim of plaintiff is stated in his declaration as follows : He averred that, on the morning of July 20, 1904, about 6:40 o’clock, he entered the corridor wheeling his bicycle at his right side, which bicycle he intended putting in position in front of the door leading into the elevator, so that, as soon as the elevator was ready to ascend to the- eighth floor, he could put his bicycle in. That in order to put his bicycle in proper position to enable him to readily place it in the elevator, it was necessary for him to place the front wheel at, near, or against, the closed door leading into the elevator, and then to raise the rear wheel of his bicycle about 2£ feet above the floor, so as to put it around the post of the banister of the staircase coming down into the hallway opposite the elevator. That he had always previously found the elevator door closed; that on the morning in question the hallway was so dark that he could not see whether or not the elevator was at the ground floor or whether the elevator was open or closed. That while in the act of elevating the rear wheel of his bicycle past the banister post, and while he had the front wheel of his bicycle near the elevator entrance, he stood with his back close to the elevator door, and suddenly pitched through the open door of the elevator shaft, together with his bicycle, downward and head-foremost upon the hard cement bottom of the elevator shaft, a distance of 16 feet. On the trial testimony was given tending to sustain the claim thus stated.

Defendant’s theory was that plaintiff himself opened the elevator door on the morning in question, by pulling back the fire door, putting his arm around the wire caging into the elevator and lifting the door latch; that the light in the hallway was poor, and coming into the corridor from the outside daylight plaintiff could not see clearly, and did not notice when he opened the elevator door that the elevator was at an upper floor, and when he attempted to enter, with his bicycle, what he supposed to be the elevator car, he fell into the basement, and was injured. The case was submitted to the jury which returned a large verdict in favor of plaintiff. A motion was made for a new trial,(which motion was overruled. The case is .brought here by writ of error.

Counsel for appellant say in their brief that eight questions are involved at this hearing. We think those that are important are embraced in the following claims of counsel: '

“1. Evidence that plaintiff knew how to open the elevator door was competent not only for purposes of impeachment, but also for the purpose of proving that plaintiff knew how to open the door, his knowledge being a link in the chain of circumstances tending to show that he opened the elevator door himself, as claimed by the defendant.

“2. Defendant’s counsel was entitled to fully cross-examine the plaintiff when on the stand as a witness in his own behalf as to his knowledge of how to open the elevator door from the outside.

“3. The defendant as the owner of a passenger elevator was not a common carrier with the liabilities of such, and the court should have charged the jury to that effect as requested by the defendant.”

We will deal with these questions in the inverse order.

The court charged the jury, in relation to the last of them, in part as follows:

“ If the plaintiff entered the corridor or hallway in question, on the invitation of the defendant, it became the duty of the defendant to use reasonable care and diligence, the care of an ordinarily prudent person, under the circumstances, to guard the plaintiff against injuries from any danger that existed in the corridor, or hallway. It became the duty of the plaintiff to use reasonable care and diligence to guard himself from injury, and from any danger that he knew of, or had reasonable ground to expect, and it was the duty of the defendant to use the care of an ordinarily prudent person, under the circumstances, to guard the plaintiff against injuries from any danger that existed in the corridor or hallway, when those dangers were within the knowledge of the defendant, or had existed for a sufficient length of time to make want of knowledge on the part of the defendant improbable. * * *

“ Just what constitutes care and diligence that an ordinarily prudent person would exercise depends entirely upon the circumstances of the case. Under certain circumstances, an ordinarily prudent person would exercise a very high degree of care, while, under other circumstances, an ordinarily prudent person would exercise a lesser degree of care, so it is for you to say, under all the circumstances in this case, considering the amount of light that there was in this hallway, or corridor, at the time the plaintiff entered it, and all the other circumstances as you find them, just how high a degree of care an ordinarily prudent person would exercise. * * *

If you find from the evidence, that the defendant, in the care and operation of the elevator in question, exercised that reasonable care which an ordinarily prudent person would exercise under similar circumstances, then defendant was not guilty of negligence, and your verdict will be for defendant.”

We think this was quite as favorable a charge as defendant was entitled to.

As to the second question. Defendant had cross-examined plaintiff at considerable length. The witness had testified that he did not know that any one but the person in charge of the elevator could open it, that he did not know that by opening the fire door first that one could reach inside and open the elevator door, and denied he had ever tried to do so, and denied that he had ever opened the door, when the following occurred:

Q. Don’t you know that the day watchman has gone to that elevator door at noon, and has found you sitting in that elevator cage ? (This was objected tó by plaintiff’s counsel as immaterial and irrelevant, and as having no connection with the issue.)

■ “ The Court: For the purpose of showing on.e incident in-a chain of incidents from which the jury might conclude that he opened the door. Of course, I do not know what the other incidents are. It may be at this stage of the case it is improper because it may be necessary that other incidents. or circumstances should be shown to connect up the chain of circumstances from which the conclusions might be drawn.

“Mr. Dohany: I ask that it be deferred until there is some testimony upon which they can base such questions.

The Court: I don’t know that the jury can draw a conclusion that he did open the door from the fact that he knew how.

“Mr. Dohany: I ask that your honor hold the matter and that the examination be postponed at the present time.

The Court: I will exclude it for the present time without prejudice to your renewing it, Mr. Lightner, at some later time in the case.

“Mr. Lightner: If I am entitled to it, I am certainly entitled to it on cross-examination. (Exception for defendant.)”

Later the plaintiff was again asked:

Q. Do you remember that the Monday before you were hurt you opened the elevator door before Porth, the watchman, got there, and put your bicycle in the elevator cage on the ground floor ? (Objected to as immaterial and incompetent.)

The Court: I will exclude it for the time being.

“Mr. Lightner: I desire an exception. I can’t see when this will be competent if it is not competent on cross-examination of this man. If I can’t ask him about it, I can’t introduce testimony to prove it.

The Court: My ruling will stand without prejudice to your renewing the question hereafter.

“Mr. Lightner: Do I understand that I should at some future stage recall this witness, and it may be admissible then ?

The Court: It may be. Note an exception.” ■

Afterwards the plaintiff was recalled, but counsel did not renew the question. We cannot say what occurred as to this phase of the case was reversible error.

We now come to the first question, which is one presenting more difficulties. The court permitted the defendant to put in what proof it could that plaintiff knew how to open the elevator door. A number of witnesses gave testimony tending to show that plaintiff knew how to open the door, and had opened it. As to the effect of this testimony, the jury were charged as follows:

“All of the testimony given by the witnesses showing that the plaintiff had at any time prior to July 20, 1904, opened the elevator door on the ground floor by means of putting his hands around the iron grating or into the elevator cage is immaterial and irrelevant, and in no way tends to prove or to disprove negligence on the part of defendant, nor prove or disprove contributory negligence on the part of the plaintiff; that is, I charge you that it is immaterial and irrelevant in attempting to show any negligence on the part of the plaintiff. But it may be considered by you in its bearing upon your detenmination of the question whether or not the plaintiff was telling the truth when he said he had no knowledge how to open the door. While you may not conclude from the fact that he opened the door on prior occasions that he opened it on this occasion, still he having testified that he had no knowledge how to open the door, if you find from the testimony of other witnesses that he did have knowledge how to open the door, it would tend to impeach his testimony on that point. So, I say that you may consider the fact that he did, on prior occasions, open the door; if you find that he did open the door, you may consider that fact as bearing upon whether he told the truth or not when he said he did not know how to open the door. But for no other purpose.”

We think this charge was too restrictive. The jury might very properly reason that, if the plaintiff was untruthful in his testimony as to knowing how to open the door, he was also untruthful when he testified upon, the much more important question of whether he did open the door at the time he was injured. They should have been allowed to use the testimony for that purpose, and for the further purpose of supporting an inference that he did in fact open the door on the occasion in question.

We think there was a case for the jury, and that the learned judge did not abuse his discretion in refusing a new trial upon the claim that there was no case for the jury.

For the reason stated, the judgment is reversed, and a new trial ordered.

Carpenter, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    NIXON v. WRIGHT.
    Divorce — Alimony—Award—Enforcement—Action at Law.
    A provision for alimony in a decree for divorce, being subject, at any time, to modification by the court which made it (section 8641, 3 Comp. Laws), and the court having full power to enforce it, is not such a judgment for money»that an action at law can be maintained upon it.
    Error to Eaton; Smith, J.
    Submitted October 9,1906.
    (Docket No. 26.)
    Decided October 29, 1906.
    Debt by Margaret Nixon against John L. Wright for the amount of a decree of alimony. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial .ordered.

      Frank A. Dean, for appellant.

      Alvan G. Fleury, for appellee.
   Hooker, J.

The complainant’s decree for divorce, made on December 30, 1895, contained a provision in her favor for $500, payable on or before October 1,1896. In December, 1905, an action at law was brought upon this decree. The defendant’s counsel demurred to the declaration upon the ground that an action at law cannot be maintained upon a decree for permanent' .alimony. The learned circuit judge overruled the demurrer, and rendered judgment for the plaintiff, from which defendant has appealed.

If it be conceded that an action at law will lie upon any decree in equity, which is for an ascertained and specific amount, and nothing more, it need not follow that an action will lie upon a decree for alimony, where, as in this State, the decree is subject to modification by the court which made it, at any time. See 3 Comp. Laws, §

8641. See Jordan v. Westerman, 62 Mich. 170; Perkins v. Perkins, 10 Mich. 425, and cases cited; Reynolds v. Reynolds, 115 Mich. 378; Moross v. Moross, 129 Mich. 27; Smith v. Smith, 139 Mich. 133; Creyts v. Creyts, 143 Mich. 375; Cole v. Cole, 144 Mich. 346. By the statute cited the legislature has given to the court of chancery the power to conserve the interests of the parties to divorce cases, by altering decrees regarding the wife’s support. A decree for alimony is not such an unalterable, definite, and fixed judgment for money—a debt—as will make an adjudication in bankruptcy a discharge. Many courts hold that it is not such an one as may be assigned. It would be anomalous to sustain the authority of a court of law to deprive the court of chancery of the opportunity of executing its statutory power, or, on the other hand, to sustain a jurisdiction of a court of law, in cases where its judgment would be practically nullified by subsequent orders of a court of equity, in a collateral proceeding. The weight of authority denies the jurisdiction asserted in this case. See opinion of Kent, C. J., in Post v. Neafie, 3 Caines (N. Y.), 34; Allen v. Allen, 100 Mass. 373; Knapp v. Knapp, 134 Mass. 353; Barber v. Barber, 2 Pin. (Wis.) 297; Barber v. Barber, 21 How. (U. S.) 582; Kempster v. Evans, 81 Wis. 247 (15 L. R. A. 391), and cases cited.

The judgment is reversed, with costs of both courts. There is no occasion for a new trial.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.

       See Fournier v. Glutton, post, 298.—Reporter.