text:
    PEOPLE v. ROGULSKI.
    1. Criminal Law — Trial—Instructions—Presumption of Innocence.
    In a prosecution for murder, the respondent is presumed to be innocent until the presumption is overcome by testimony which establishes his guilt beyond a reasonable doubt; and it is the duty of the trial court to so instruct the jury, in substance, or in exact words, if the respondent so requests.
    2. Same — Burden of Proof — Evidence.
    Where the trial court directed a verdict for respondent, on the questions of murder and voluntary manslaughter, leaving to them the question of involuntary manslaughter, assault and battery or assault, under the information, and he instructed the jury that there was no presumption that respondent committed manslaughter unless the crime was proved, and the burden of proof was on the prosecution to show, beyond a reasonable doubt, that the respondent was guilty, and that defendant was entitled to every reasonable doubt, cautioning the jury at length as to this phase of the case, the court did not commit error, in the absence of a request for more specific instructions as to the presumption of innocence.

      3. Same — Homicide—Involuntary Manslaughter.
    Respondent was charged with murder. The evidence showed that he killed the victim, a young man who was hunting and trespassing on a farm; that respondent had been offered a sum of money for every gun which he should bring in, by an employee of the owner of the premises; that he attempted to take the gun from decedent who tried to recover it and was shot, some of the testimony tending to prove that respondent purposely fired the weapon. The court did not submit the murder charge to the jury, or permit them to find that respondent was guilty of voluntary manslaughter, but charged the jury that they might find him guilty of involuntary manslaughter or the lesser offenses included in such charge. Held, that no error was committed in charging that he had no legal right to take the gun from the boys, and if he was in the act of taking the gun from the boys when he shot decedent, even accidentally, he was guilty of involuntary manslaughter.
    4. Same — Evidence.
    If the jury found that respondent obtained possession of the gun either by a ruse or by violence, with the wrongful intention to permanently deprive the owner of it and convert it to his own use or deliver it to another for a reward, his act amounted to larceny, if not robbery. If he intentionally but without malice aimed or pointed the gun at decedent, designing no mischief, and by its discharge death resulted, he was guilty of a careless use of firearms in violation of statute and the offense was manslaughter. 3 Comp. Laws, § 11511 (5 How. S'tat. [2d Ed.] § 14560). Also, negligence in the use of firearms may, at common law, render the possessor liable to a charge of manslaughter.
    5. Same — Information.
    Under the short form of information for murder, a conviction for involuntary manslaughter was not unauthorized.
    Error to Wayne; Van Zile, J.
    Submitted April 23, 1914.
    (Docket No. 170.)
    Decided July 24, 1914.
    Stephen Rogulski was convicted of. manslaughter.
    Affirmed.

      Hugh Shepherd, Prosecuting Attorney, George A. Kelly, Assistant Prosecuting Attorney, Grant Fellows, Attorney General, and Samuel D. Pepper, Assistant Attorney General, for the people.

      Thomas J. Mahon and Thomas W. Thompson, for respondent.
   Steere, J.

Respondent was convicted of the crime of manslaughter in the circuit court of Wayne county, on February 18, 1913, under an information for murder which, in simple form under section 11912, 3 Comp. Laws (5 How. Stat. [2d Ed.] §15083), charged in one count that:

Respondent “on the 29th day of December, in A. D. 1912, at said township of Dearborn in said county, feloniously, wilfully, and of his malice aforethought, did kill and murder one Walter Dahlman, contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the State of Michigan.”

The errors assigned in respondent’s bill of exceptions and relied upon relate entirely to the charge of the court. They are stated by his counsel in their brief as follows:

“It is contended that the court committed grievous error in failing to charge that respondent was entitled to the presumption of innocence; that the court erred in permitting the jury to find the respondent guilty if death ensued as a result of the careless use of firearms; and in permitting the jury to find that respondent in The keeping of the gun and the carrying of it’ would be guilty of an unlawful act such as would make him guilty of manslaughter in an accidental discharge of the gun.”

It is undisputed that Dahlman was killed, at the time and place alleged, by a shot fired from a gun held in respondent’s hands. It was claimed on the part of the defense that the shooting was unintentional, in which view the prosecution and court apparently acquiesced, and the court instructed the jury that respondent could not be convicted of either murder or voluntary manslaughter under the testimony, but might be convicted of involuntary manslaughter, or “assault and battery, or even an assault.”' The record shows respondent was found “guilty of manslaughter” —whether voluntary or involuntary is not stated. He was sentenced to serve not less than two years and not more than five years at Jackson State prison.

On the trial six witnesses were sworn by the prosecution, two companions of Dahlman named Leitz and Woitha, Dr. Bell, who examined the body of Dahlman in the morgue, a game warden named Daniel, and two men named Bryant and McDonald, employees of Henry Ford, owner of the demense upon which the shooting occurred; the three last named having come upon the scene shortly after the shooting, while his companions were carrying away Dahlman’s remains.

No testimony was introduced or offered by the defense.

Defendant was in Ford’s employ. The nature of his employment is not shown. The only testimony relative to his employment is that of Bryant, who testifies:

“He was working for the Ford people at the time of the shooting. * * * He started to work for Ford about three weeks before the shooting. I knew nothing about the man before he started to work for us.”

On the morning of this tragedy, Dahlman and his two companions went out from Detroit to Dearborn together, taking with them a single-barreled shotgun belonging to Dahlman. They were friends and neighbors living in Detroit. Leitz was 20 years old. The ages of the others are not given. Leitz and Woitha worked in factories in Detroit. The record gives no information as to deceased’s avocation, age, or size. They are called boys by witnesses and the court. They purposed to and did call upon a family named Jubs, living near Dearborn, where Leitz was acquainted. They asked for George Jubs, apparently a younger member of that family, who was not at home. The three then left their coats in the Jubs barn, walked together across a field towards the River Rouge carrying Dahlman’s gun, and on the way they fired it two or three times at a mark. In their rambling they crossed the river when one of them saw a field mouse run under a brush, and they all then devoted themselves to trying to find and get it. While they were so engaged, respondent came up and greeted them, asking what they were looking for. Having been informed, he in apparent good nature joined in the hunt for a few minutes, and finally inquired the kind and name of the gun they had, which at that time Leitz was carrying. Leitz, in response, said he did not know, but would tell as soon as he looked, and just as he was giving the information respondent took the gun from his hands. Of what then occurred Leitz testifies:

“Just as I said that he pulled the gun out of my hands. Then he says to the three of us, ‘Now you will have to come along with me.’ I says to him, ‘What is the matter?’ He says, ‘Never mind, you will have to come along with me.’ Just as he says that, Walter stepped, made a kind of step, and says, ‘Please Mister, give me my gun.’ Just when he said that he fired and killed him. * * * After Walter was shot, he says, T am shot,’ and he fell. Rogulski then walked away without looking at the boy who was shot. He had the gun with him and walked up the hill. When Walter fell and Rogulski started up the hill, we ran about 20 yards or so from the River Rouge. Before we ran I looked around and saw a man standing up on the hill about 500 yards away. I could not tell whether he had a gun or not. While running I heard a shot. Where the shot came from I could not tell. It sounded as though it came from above the hill. * * * - Al Woitha stayed in the center of the field, and I went back to the house and asked Mr. Jubs to come along with me. I told him that my friend was shot. * * * He said he was sick so he could not go along with me. I asked him if it would be safe for me to go across and get him. He says yes, he thought it would be all right. So we both went across and got Walter, my friend Al and myself. We found him lying on his face where he fell. ' He was shot just below the heart and was dead. We picked him up and carried him across the Rouge.”

In its general outlines Woitha’s testimony as to what occurred is substantially the same as Leitz’s, though he does not appear to be as intelligent a witness.

They were the only eyewitnesses who testified, and were closely questioned as to respondent’s manner of holding and handling the gun at or about the time it was discharged. Witness. Daniel testified that one of them, in detailing the occurrence later, said the gun was cocked when respondent took it, and that it was handed to him. Leitz testified that the gun was not cocked while he was carrying it, that he did not know how it was when respondent took it, and he did not subsequently say that it was cocked when he gave it to respondent, who “grabbed it just like that, right in between me. Q. In between your hands he put his hands? A. Yes.” When asked how respondent was carrying the gun, he replied:

“He was carrying it this way (indicating).

“Q. Meaning the barrel pointed up?

“A. The barrel pointed at us, sir.”

Woitha testifies:

“I was looking for the field mouse, ano I see him take the gun. * * * The gun was hanging down towards the ground. When he fired it he held it straight, under his arm, with one hand on it, and he was. facing Walter. Walter cried, T am shot, shot,’ and fell right down. * * * I don’t know whether Mr. Leitz gave him the gun or whether Rogulski took it. I saw Rogulski take the gun away from Dahlman. Rogulski was moving off backward when I saw him. * * * Rogulski said nothing, nope of us had hold of the gun. He raised the gun with one hand; his left hand hanging by his side. Then the gun went off, Walter fell crying T am shot.’ ”

Respondent took the gun to witness McDonald and told him “that somebody had been shot.” McDonald telephoned to Bryant, and they together visited the scene of the shooting. They found tracks and blood marks which they followed up until they found the dead body of Dahlman. Looking around, they, saw Leitz and Woitha, running away through a field. Upon being called, they went back. Bryant testifies:

“The fact that their friend was dead did not seem to bother them a great deal. They talked to me in a perfectly calm manner and related, I presume, the whole incident.”

McDonald testifies:

“The boys seemed pretty well frightened, highly excited and very nervous.”

Daniel, the game warden, who had been notified by telephone, also came upon the scene and examined the body. He testified that the wound was about the size of a quarter of a dollar, on the left side under the nipple. Dr. Bell testified to death by a gunshot wound, to the right of the left nipple, which probably a quarter would cover; the wound missing the heart, ranging from front backward and slightly upward.

It is contended that the court committed prejudicial error in failing to charge that respondent is entitled to the presumption of innocence. It must be conceded a well-settled rule of law in criminal prosecutions' that the defendant is presumed innocent until that presumption is overcome by testimony establishing the contrary beyond a reasonable doubt, and that it is the duty of the court to so instruct the jury in substance, or in exact words if so requested. Respondent did not present any requests upon that subject, and the court did not so charge in exact language. In support of their contention that this is reversible error, counsel for respondent cite People v. De Fore, 64 Mich. 693 (31 N. W. 585, 8 Am. St. Rep. 863), and the late case of People v. Karamol, 173 Mich. 354 (139 N. W. 1). The charge of the court contains much strong language cautioning the jury as to the burden of proof and rights of respondent, in that connection even taking from the jury, and directing a verdict for respondent on, all questions of murder in either degree and voluntary manslaughter, impressing upon them, we think, by the directions given and substance of the language used the thought embodied in the rule of presumption of innocence, saying:

“There is no presumption that there was manslaughter committed on the part of the defendant, unless it has been proved, and the burden of the proof is that the people must show beyond a reasonable doubt that the defendant is guilty of the offense charged, or of the lesser offense that you may find him guilty of. * * * If your minds then, after considering all the testimony in the case, are in such a condition that you cannot say to a moral certainty that the defendant is guilty, a reasonable doubt exists in your minds, and you should acquit him. * * * He is here simply as the defendant, and it is the duty of the prosecution to prove him guilty beyond a reasonable doubt. * * * Now, it is for you gentlemen to say. In determining these questions, and in weighing all this evidence, the defendant is entitled to every reasonable doubt as I have already said. And should you find in this case that there is a reasonable doubt as to whether this defendant was at that time engaged in this unlawful act, and the shooting was the result of the unlawful act, if there is a reasonable doubt as to that, then you should find for the defendant, not guilty.”

It cannot be said here, as in People v. De Fore, supra, that:

“The charge of the court entirely overlooks this presumption and nothing was said upon the subject.”

In People v. Karamol, supra, respondent directly presented a request in writing that the court charge:

“In this case, as in all criminal cases, the defendant is presumed, or held, to be innocent until he is proved guilty, and, before a conviction can be had, he must be proved guilty beyond a reasonable doubt. He is not called upon to prove his' innocence; that being presumed without proof.” -

This was refused. It was held that the charge as given was not the equivalent of the request, and, counsel having especially made the request in writing, it was error to refuse it. We conclude that under the situation presented here, in the absence of any request upon that subject, the charge is sufficient and can be sustained by previous decisions of this court. People v. Graney, 91 Mich. 646 (52 N. W. 66); People v. Smith, 92 Mich. 10 (52 N. W. 67); People v. McWhorter, 93 Mich. 641 (53 N. W. 780); People v. Ostrander, 110 Mich. 60 (67 N. W. 1079). In the latter case it is said:

“It is next argued that the court neglected to charge the jury as to the presumption of'innocence. The attention of the court was not called to this point. The court, however, did very fully instruct the jury that they must be convinced, by the evidence, óf the guilt of the accused, beyond any reasonable doubt. This point is ruled by People v. Graney, 91 Mich. 646 [52 N. W. 66]; People v. Smith, 92 Mich. 10 [52 N. W. 67].”

Counsel for the defense state in their brief:

“Respondent was caretaker of the Ford farm at Dearborn, in Wayne county. Many trespassers had •been accustomed to invade the farm and shoot there regardless of notices posted thereon forbidding such conduct.”

We find no evidence in the record supporting either of these statements. Bryant does testify that “on this farm is posted ‘No shooting allowed on private property/ ” and the only evidence of what property Dahlman was killed on is that of Leitz, who on cross-examination said:

“I did not know whether I was on private property when I got across the river, and I did not shoot after I crossed the river. I know now that the property we were on is Ford’s farm.”

We have already stated all that is disclosed of respondent’s employment and duties. We find no evidence in the record of any person or persons trespassing and shooting upon the Ford farm before the day in question, beyond a remote inference from the testimony of Bryant that once, in a conversation with respondent regarding people hunting on the premises, he promised respondent “a bushel of corn or something similar for every gun that he brought in. * * * He wanted to buy oats and hay for his horse, and the question came up in a joking way, and I told him I would give him five bushels of oats.” And McDonald’s testimony that Rogulski told him an inspector offered him $5 for getting a gun, and he went after it. It is claimed in his behalf that a desire to obtain the offered reward made respondent especially anxious to get possession of this gun, and when, having secured it, he was in the act of carrying it away, it was accidentally discharged. The court submitted this theory to the jury and said:

“The prosecution claims he was there for the purpose of getting this gun, and that he desired to get hold of this gun for the purpose of exchanging it for a prize that he understood had been offered him for guns that he might collect; that Mr. Ford, the owner of the farm, and his tenants had given out that he would not allow any hunting or shooting upon the farm, and this was one of the means, as it is claimed by the prosecution, that the defendant understood they were taking to prohibit and to avoid having shooting upon the place. * * * ”

The court also said:

“And so, the whole matter more or less rests upon this particular situation. On this occasion was this a friendly conversation that they were having? Was it entirely agreed to upon the part of the young man and the defendant? Or if, on the occasion in question, he was raising that gun up for the purpose of giving it back to the boys, as has been suggested by counselj and, in such case, he would not be guilty.”

We find scant evidence in the record to support such a theory. On the contrary, the only witnesses to the transaction testify unequivocally that, after securing possession of the gun, either by a ruse or forcibly taking it, respondent, facing them, ordered them to “come along with me,” repeating the order when they hesitated and inquired what was the matter, and, when deceased made the step and asked for his gun, shot him dead, accidentally it is said and found by the jury under direction of the court.

Under the circumstances shown, the question of accidental shooting might well be urged as an issue for the jury. It is undisputed that respondent stood facing deceased and his. companions, clear of them, untouched by them, suddenly at variance with them, holding the gun in his hand pointed towards them, and practically -at the heart of deceased when it was discharged ; and that it was discharged by some act of his there can be no question — guns do not discharge themselves. In support of a theory that this gun was unusually liable to accidental discharge, the testimony of Daniel that it was a cheap gun, not made of good steel, liable to explode, and he would not use it for $50, is urged. The fact that it might be more liable to explode, or burst, when discharged, than some other guns, has no tendency to support such theory. It did not burst; it was simply discharged. There is no evidence it was out of order in any way, nor whether the trigger pull was light or heavy.

Assuming, as his counsel urge, that respondent was caretaker of the property on which he found these boys trespassing and on which he had heard them shooting, that it was his duty to prevent trespassing, that persons had frequently before ignored notices and invaded those premises to shoot there, and in the performance of his duties he went where they were either to drive away or arrest them, it further appearing that when he took their gun and ordered them to go with him, repeating it and they did not obey, deceased at the same time indicating a disposition to repossess himself of the gun, it could well be argued that such facts tended to rouse a hostile impulse, ill feeling, and motive on his part toward deceased resulting in his intentionally using the weapon. It is due to the court to state that the apparent invasion of the province of the jury in instructing them as a matter of fact that respondent fired the shot accidentally was approved by the prosecution.

In submitting the question of involuntary manslaughter to the jury, the court instructed them that if respondent was at the time engaged in an unlawful act, not1 amounting to a felony, which resulted in the killing, even though death was not intended, he would be guilty of manslaughter, saying among other things:

“Now, I charge you that this man had no business, he had no legal right, to take this gun from these boys. It was a matter that it was not for him to correct, if they were there even as trespassers upon that farm; that even Mr. Ford himself, who was the owner of the place, and had he forbidden persons to go upon that farm and do shooting, would have no right to go down there and take this boy’s property from him, and if he did that by force he would be engaged in an unlawful act. And so, in this ciase, if this man went there for the purpose of taking this gun away from these boys, and he was in the act of taking the gun from them, against their will, taking it way from them, and in the taking it away from them and in the keeping of it and in the carrying of it he even accidentally shot this boy, he is guilty of involuntry manslaughter.”

It is claimed by respondent that this portion of the charge is erroneous on two grounds: First, that under the single, short count of the information filed in this case charging murder a conviction for involuntary manslaughter cannot be had; second, because the court' erroneously said to the jury that respondent had no business to take the gun from the boys, and he would be guilty of involuntary manslaughter if he accidentally shot the boy while keeping and carrying away the gun. Such excerpts from the charge must be considered in connection with the evidence in the case and the charge taken as a whole. So considered, we cannot regard them as misleading. The evidence was plain and conclusive that the shooting immediately followed respondent’s taking the gun from Leitz, he had not separated from them, but had just stepped back three or four feet, and, facing the three boys, ordered them to come along with him. The entire transaction covered but a very short space of time.

If the evidence showed that respondent obtained possession of this gun from Leitz either by a r.use or by violence, with a wrongful intention'to permanently deprive the owner of it and convert it to his own use, by delivering it to Bryant for a reward, or otherwise, his acts would amount in effect to larceny, if not to robbery. If he intentionally but without malice aimed or pointed the gun at Dahlman designing no mischief, but by its discharge death resulted, he was guilty of a careless use of firearms in violation of the statute upon that subject, and the offense was manslaughter. Section 11511, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14560). Aside from this, it is a general principle of the common law that any one in possession of and using a dangerous agency, particularly firearms, must observe all reasonable caution, and, if by his failure to do so and negligent use of the same, death results, he may be convicted of manslaughter. Taken as a whole, we think the charge of the court was very moderate and extremely favorable to the accused.

In support of the contention that respondent could not be convicted of involuntary manslaughter under the statutory, short form information for murder, counsel, cite Wharton on Homicide, p. 876, and People v. Olmstead, 30 Mich. 431. Our statutes do not recognize grades or degrees of manslaughter, they neither define nor grade it. There is but one offense of manslaughter in this State. Tyler v. People, 8 Mich. 320. While in the discussion of that offense voluntary and involuntary manslaughter are often reviewed and the distinctions pointed out for a better understanding of what homicide may amount to manslaughter, and the formal charge and conviction, there is no legal classification or distinction in this State. The jury in this case rendered a plain verdict of “manslaughter.” Adjectives would have been surplusage.

It has been held in only a special class of statutory offenses involving consequential homicide, not directly resulting from assaults or acts of violence (such as administering drugs for unlawful purposes), that the peculiar facts of the offense must be more fully charged than in the statutory information. People v. Olmstead, supra; People v. Aikin, 66 Mich. 460 (33 N. W. 821, 11 Am. St. Rep. 512). The principle there involved and reason stated therefor being that an innocent person charged under the short form of information would not be sufficiently advised by it of the peculiar and special circumstances necessary to be proven in that class of cases to understandingly prepare to meet them; but in that connection it is said that he can be “fairly assumed bound to prepare himself to meet a charge of manslaughter by direct violence or assault.” This subject is further elucidated in People v. Stubenvoll, 62 Mich. 329 (28 N. W. 883), and People v. Sauer, 143 Mich. 308 (106 N. W. 866). In the latter case respondent was charged with the murder of an officer, acting under a writ , of replevin, and claimed that his gun was accidentally discharged while he was trying to frighten deceased off from the premises. This conviction of manslaughter was sustained under a- statutory information for murder, which an examination of the original record discloses was practically the same as that used here.

We think the information was sufficient to sustain the verdict and find no reversible error in the case.

The conviction and judgment of sentence are affirmed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    JACQUES v. BOSMAN.
    Taxation — Limitation of Actions — Quieting Titee — Five-Yeak Statute of Limitations — Retroactive Effect.
    The five-year limitation, fixed by Act No. 58, Pub. Acts 1907 (1 How. Stat. [2d Ed.] § 1843), requiring notice to redeem to be served within five years after obtaining a tax deed, does not apply to deeds issued before the act took effect.

      Appeal from Newaygo; Davis, J., presiding.
    Submitted April 20, 1914.
    (Docket No. 34.)
    Decided July 24, 1914.
    Bill by William M. Jacques against George W. Bosnian to remove a cloud from complainant’s title to lands. From a decree for defendant, complainant appeals.
    Affirmed.

      George Luton (Arthur G. Day, of counsel), for complainant.

      Fred R. Everett (Dunham & Dunham, of counsel), for defendant.
   Steere, J.

Complainant filed this bill to remove a cloud from his title to section 4, town 15 N., of range 13 W., being a wild, uncultivated, and unoccupied tract of land in Newaygo county, consisting of 640 acres.

The cloud sought to be removed consists of a tax deed, and the record thereof, issued by the auditor general of this State to defendant on August 19, 1907, covering the delinquent taxes assessed against said land for the years. 1889 to 1903, inclusive.

Complainant is the last owner in the recorded chain of title by mesne conveyances under a patent issued by the United States government in 1868. He acquired the same by two deeds, dated October 26, 1912, and January 23, 1913, given him by one Nancy Runnels, who acquired title in 1904 by mesne conveyances from Eber B. Ward, who secured title by patent from the United States government.

Neither complainant nor his predecessors in title have paid any taxes upon said land since 1889. Defendant, at the time of hearing this case, had paid in the purchase of his tax title and for subsequent taxes, including those of 1912, the sum of $2,356.17.

On March 8, 1913, defendant served on complainant the notice relative to reconveyance, etc., required to enforce redemption, or perfect a tax title, under Act No. 229 of the Public Acts of 1897, and amendments thereof in force at the time he obtained his tax deed, and also at the time such notice was served, except that-Act No. 58 of -the Public Acts of 1907 (1 How. Stat. [2d Ed.] § 1843), had fixed a limit of five years from the time of obtaining a tax deed in which to serve such notice. This act took effect September 28, 1907. The notice was served over five years after he had obtained his tax deed; but the tax deed was obtained before said act became operative.

Complainant claims that defendant served his notice too late, and all his rights are cut off by his failure to move within the 'five years’ limitation prescribed by said act. The controlling and only question here involved is whether Act No. 58 applies to a tax deed issued prior to the time said law took effect.

When this case was appealed, and briefs filed herein, the question had not yet been decided by this court; but we think it is now foreclosed by the recent case of Holmes v. Soule, 180 Mich. 526 (147 N. W. 621), also a case in which complainant filed a bill to quiet an original title, alleged to be clouded by a tax title issued prior to September 28, 1907. While other questions were involved, complainant also urged that defendants were barred by this statute from claiming a lien upon the land because no valid notice to redeem was given within fivé years after purchase of the tax title. Upon this point it was there said:

“No other or additional right accrued to him [complainant] by virtue of Act No. 58, Pub. Acts 1907, because the act has no application. In the first place, the intention of the legislature that the act passed in 1907 shall have retroactive effect is not clear, and,' in the second place, the tax deeds established between the purchaser and the State contract relations which it will not be presumed the State' intended to violate or to change. A third reason may be stated', which is that a general statute of limitations must operate uniformly, and the statute invoked would not do so if it were applied to titles acquired before the law was passed.”

The question was ably briefed and argued,,, in that case, as it is here, and was then carefully considered by the court. It is unnecessary to again review it. Said Act No. 58 does not apply to tax deeds issued prior to the time it went into effect. The public records are always available to holders of original titles to ascertain if any taxes are delinquent or tax deeds outstanding, and they can redeem at any time prior to the expiration of six months after service of the legal notice required by statute.

The decree of the Newaygo county circuit court, in chancery, dismissing the bill of complaint filed herein, is affirmed, with costs.

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


author: McAlvay, C. J.

text:
    DEAN v. DEAN.
    Divorce — Extreme Cruelty — Neglect—Nonsupport.
    Evidence that defendant’s husband, who filed a bill for divorce, was shiftless, lazy, and that he neglected to provide support and clothing for his family, consisting of a wife and two children; that his farm was small and he did not properly work it, the roof of the house leaked and it was unfit for habitation; that he used profane language in the presence of his wife and children; that defendant was compelled to leave him and teach school, earning at that occupation enough to support herself and children, justified the court in granting defendant a decree of divorce upon her cross-bill.

    Appeal from' Alpena; Emerick, J.
    Submitted April 16, 1914.
    (Docket No. 49.)
    Decided July 24, 1914.
    Bill by Warren C. Dean against Harriet Dean for divorce. From a decree for defendant, granting a divorce on her cross-bill, complainant appeals.
    Affirmed.

      Joseph H. Cobb, for complainant.

      Fred P. Smith, for defendant.

      Tbe question of failure to furnisb support as ground of divorce or separation is treated in a note in 43 L. R. A. (N. S.) 255.

   McAlvay, C. J.

Complainant filed his bill of complaint against his wife in the circuit court for the county of Alpena, in chancery, on the ground of extreme cruelty, asking for a decree of divorce and for the custody of two minor children, the issue of said marriage. Defendant answered, denying all the allegations of cruelty set up in the -bill of complaint, and asked affirmative relief, charging complainant with' extreme cruelty in refusing and neglecting to provide suitable food and clothing for her and the two children; also praying for divorce and the custody of these children. , '

Upon the hearing proofs were taken in open court. A decree was later granted defendant on her answer and cross-bill, giving her certain alimony and the custody of the two children. Complainant asks this court to reverse such decree.

The parties to this suit were married at the city of Alpena, in January, 190B, and lived together as husband and wife until October, 1910. After the marriage 'they lived with complainant’s, father for a short time, and then moved upon a farm of about 80 acres located across the road from that place. There was a mortgage of about $300 upon this farm at the time it was purchased. Here they made their home and continued to live until they separated.

The cruelty charged by complainant against his wife is that after the marriage she repeatedly left their home in the township of Alpena and' went to the city of Alpena to remain with her parents for from one day to two weeks at a time, leaving him on the farm to do his work, cook his meals, and take care of the house; that she paid no attention to his remonstrances at such conduct, and that it continued until October, 1910, when she left his home, taking a portion of their personal effects and the two children to the city of Alpena and then to Long Rapids, where she has since remained teaching school, leaving the children with her parents. He also alleges that he visited her for the purpose of inducing her to give up her school and return to him, without success; also that he was always kind and indulgent to his wife, furnished her with a home, clothing and support, to the best of his ability, and that she left him without warrant, or provocation on his part.

In her cross-bill defendant charges that complainant neglected and refused to provide necessary clothing and support for her and the children, and that he would use vile and profane language toward her because of lack of provisions. She alleges that she worked on the farm, making a garden by which vegetables were furnished the family; that complainant refused to furnish wood, and she was obliged to pick up wood from the farm and at the roadside wherever she could find it, to cook the meals; that when he occasionally hauled some logs to the house, he would not cut them up, and she was required to take a crosscut saw and, with the help of her sister, cut them up and split them into stove wood; that he never provided suitable clothing for the children, and she relied upon the generosity of her parents and others for such clothing; that during three years of their married life he refused to let her go to visit her parents, and she only visited them during that time in case of sickness or death; that he swore at her and called her vile names and used personal violence upon her; that he was of a sullen disposition, and some nights would walk the floor with his gun and frequently pointed it at her, sometimes threatening to shoot her; that the house was old, out of repair, and dilapidated, and the roof leaked badly, and was not repaired until six months after she left him.

She asked for the custody of the children, and charges that he has threatened and attempted to obtain possession of them, and for alimony and an injunction to restrain him from selling the farm, or interfering with defendant and her custody of the minor children.

To rehearse the testimony in this case would be of no benefit. It is apparent from the record that complainant is not an industrious, thrifty farmer, and that he has spent a large part .of his time during the years of his married life in hunting and fishing, and has raised very few crops upon the 30 acres of cleared land, except hay, which has required little or no attention other than cutting and securing it. In the matter of his proofs of his wife’s extreme cruelty in going from him during the first three years of their. married life, there is practically none, except his own' statement.

His solicitor says in his brief that on the hearing in the circuit court he stated that neither party upon the proofs in this case was entitled to a divorce, and he urges this proposition before this court. From an examination of the record we are satisfied that this position is correct as far as proofs presented by complainant are concerned. It remains to be determined whether the evidence in the case warranted the trial court in granting her relief as prayed.

Defendant was not 18 years of age when she married complainant, who at the time was 28 years old. The children, at the time of the hearing in February, 1912, were a boy and a girl, respectively of the ages of 6 and 2 years. She had taught school before she married, and had little or no experience of life on a farm.

Of the improvements on this farm very little appears in the record, except as to the house, which has already been described. The value of the property seems not to be disputed. Both parties state it to be $800.

Since the marriage the mortgage has been paid, toward which the efforts of the wife appear to have in a large part contributed. The record shows she worked hard, not only at her housework, but in the field, performing all kinds of menial service in the fields and about the farm, including taking care of some sheep and the few head of cattle they owned, and cleaning the stables. This she did both when complainant was away from home and when he was there. It is established by the testimony that he was not a worker, and that he was a man who used profane language in the presence of his wife and children, and was harsh in punishing the boy; that this house was hardly fit to live in by reason of the poor roof, which leaked so badly it was necessary during a rain to move the bed to keep it dry. The record shows that the man was shiftless, lazy, and neglected to properly support and clothe his family.

She left him at the end of seven years, secured a school to teach, leaving her children with her parents, at which employment she has been able to earn $55 a month. Since she left he has contributed very little, if anything, to the support of the children, except what has been ordered by- the court during the pendency of this suit.

We are satisfied that the evidence in the case warranted the trial court in granting defendant her relief, and that the alimony is reasonable and justified.

The decree of the circuit court is in all respects affirmed, with costs of both courts to defendant, Harriet Dean. The case will be remanded to that court for such further order and decree as may from time to time be necessary.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Brooke, J. Moore, J.

text:
    FIFELSKI v. GRAND RAPIDS GAS LIGHT CO.
    1. Master and Servant — Negligence—Elevators.
    Where plaintiff was caught by the freight elevator from which he was attempting to alight at the second landing, and it was not shown that the method of inclosing the shaft had anything to do with the injury or was an improper method, the court should- have directed a verdict for the defendant, although it was the contention of the plaintiff that the shaft was not sufficiently inclosed, in violation of section 12, Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4020).
    2. Same — Personal Injuries — Evidence,
    It was erroneous to exclude testimony of experts, offered by, defendant, tending to show that the method of inelosure was sufficient.
    3. Same.-
    Even the breach of a statutory duty is not actionable unless such breach causes injury either proximately or concurrently.

      Error to Kent; Brown, J.
    Submitted April 28, 1914.
    (Docket No. 41.)
    Decided July 24, 1914.
    Case by Joseph Fifelski against the Grand Rapids Gas Light Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Travis, Merrick & Warner, for appellant.

      Lombard, Hext & Washburn (John Smolinski, of counsel), for appellee.
   Brooke, J.

Plaintiff was injured while in the act of stepping out of an elevator shaft owned and operated by defendant. The shaft in question was about 9 feet square, built of heavy timbers at the corner, and supported at intervals by planks 2x6, running at right angles to each other in the shape of an X, and fastened to the corner posts. The shaft was about 25 feet in height, and tightly boarded up on its east and west sides, and upon the north and south sides, except for the necessary openings. There is one opening in the shaft on the ground level. The next opening is upon the north side of the shaft about 12 or 15 feet from the ground, and connects with the tramway leading to the ash hopper. There is another opening on the south side of the shaft about 4 feet above the one last described. And at the top of the shaft there are two others, one on each side practically opposite each other. All openings were equipped with automatic gates or bars. The cage operated in this shaft was about 9 feet square, and was boarded up on its east and west sides to the height of 4 or 5 feet. The north and south sides of the cage were not inclosed, as it was necessary to wheel coke and ashes on and off from those directions. On the day of his injury plaintiff, with a fellow workman, left his work on the upper tramways and went to the ground. Desiring to regain the tramway and resume his work, he, with his fellow workman, entered the cage at the ground level. They found it occupied by a fellow-servant with a wheelbarrow full of coke who was about to elevate it to the tramway. Plaintiff took his position near the north edge of the cage in the middle, while Krieger, his companion, stood near the north edge in one corner. The elevator was operated by the third man, who was taking up his wheelbarrow load of coke. When the platform of the elevator was even with the second landing (opening to the north), it stopped. This opening was of somewhat peculiar shape. It was opened practically the full width of the cage up to a distance of 4 or 5 feet, at which point the 2x6 cross supports were fastened. In the center the opening was some 8 or 9 feet high. When the elevator came to a stop at this point, plaintiff turned around and was in the act of stepping off, when the elevator suddenly started, and he was caught at about the highest point of the cross, timbers, forming the top of the opening; his shoulder coming in contact therewith. The operator immediately stopped the elevator, but not until the injury was inflicted, which consisted in a broken collar bone and two fractured ribs.

The sole negligence relied upon by the plaintiff is an alleged breach of statutory duty. Section 12 of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4020), provides:

“It shall be the duty of the owner, agent or lessee of any manufacturing establishment where hoisting shafts- or wellholes are used, to cause the same to be properly inclosed and secured.”

After eliminating all other alleged acts of negligence on the part of the defendant, the court upon this point charged the jury as follows:

“Now, i-n this case, as I have said, the plaintiff claims negligence on the part of the defendant in the particulars that I have explained to you; that is, that the elevator shaft was not properly inclosed and secured. There has been some argument here by counsel that ‘inclosed’ meant that the inclosure or the material for the inclosure should be on the outside of the shaft. I will say that you are not bound by that. If it is necessary to make a shaft reasonably safe and secure for the reasonably safe use by laborers, to ceil it or to incase it on the inside, then that is for you to say, as a matter of law, whether or not it should have been inclosed and ceiled on the inside of the framework of the shaft. You will take the facts in the case and say whether or not it was properly inclosed. It might be possible that you would find where it was boarded on the outside, entirely boarded, so that from the outside it was perfectly smooth, and yet under the facts in the case you might find that it was in such a condition on the inside that it was not properly inclosed. And that word ‘inclosed’ does not mean separated away from the elements, that is, from the rain and the weather; but it means so inclosed by proper encasement, either on the inside of the framework, material or otherwise, that it was rendered safe, reasonably safe, for the employees working inside.

“Now, in this case, if you should find that this plaintiff came to his injury solely by reason of the elevator being started, and that no matter if the shaft had been ceiled up on the inside, or, if you shall find, whether it was properly inclosed or not, if the sole cause of the injury was the starting of the elevator, and if you should find it lacked suitable and proper inclosure, but you should find that the failure to have a suitable inclosure did not contribute to the injury, was not a proximate or concurring cause of the; injury, then the plaintiff could not recover, because, if you find that the sole cause of the injury was the other fellow starting the elevator, that would be a fellow-servant act, and the plaintiff could not recover where the injury would be solely caused by a fellow-servant act. But if you find that the act of a fellow-servant started the elevator, and then you should further find that the elevator was not properly in-cased or inclosed and secured as the statute , says to make it reasonably safe in there, and that the failure to inclose the elevator and the negligent act of the fellow-servant both together, at the same time, cooperated in producing the injury, then they are concurrent acts and both proximate and efficient causes* bringing about this injury, and the plaintiff would be then entitled to recover, if he is not guilty of any negligence himself in the situation.”

It seems to have been the contention of plaintiff’s counsel that a proper construction of the statute would require the defendant, not only to inclose the elevator shaft, but to line it. Of course it is obvious that, even had the shaft been lined, ■ provision must have been made for the openings, otherwise the shaft would have been useless. No evidence was introduced on the part of the plaintiff tending to show what the term “properly inclosed” meant. Nor was any evidence introduced tending to show that a different method of inclosure than that employed would have rendered the shaft safer in so far as the injury to plaintiff went. The instruction aboye quoted permitted, if it did not invite, the jury to find that the defendant was guilty of a breach of its statutory duty in the absence of any testimony whatever as to what would have constituted a compliance with the statute. It likewise permitted the jury to find, in the absence of,all testimony upon the question, that such breach, if it occurred, was a concurring cause of plaintiff’s injury. The instruction was clearly erroneous. Defendant offered evidence of the deputy State factory inspector as to the customary way of inclosing similar shafts, which testimony was excluded.

It is defendant’s contention that a verdict should have been directed in its favor upon the ground that no negligence had been shown. We have examined this record with care, and are unable to see how a breach of the statutory duty, even if there was one in the respect charged, had anything to do with the accident and injury to plaintiff. The elevator had come to a standstill at the opening. That opening was 9 feet wide, 4 feet high on each side, and 8 or 9 feet high in the center. If plaintiff’s contention is warranted, and a compliance with the statute required the lining of the shaft on the inside, it is yet true that, in order to permit him to make his egress from the cage, that lining would have to be temporarily removed, leaving the opening exactly as it was when he attempted to step out of the cage. We think it unnecessary, then, to determine what the term “properly inclosed” used in the statute means. It is, however, clear that the term is a relative one, and that in any given case it must have reference to the use to which the instrumentality is to be put. State v. Rodgers, 175 Ind. 25 (98 N. E. 223); Chicago Packing & Provision Co. v. Rohan, 47 Ill. App. 640.

Such being the case, evidence as to what would be á proper inclosure should have been admitted if the character of the inclosure had any causal bearing upon the injury. It is, of course, elementary that even the breach of a statutory duty is not actionable, unless such breach causes injury, either proximately or concurrently.- The breach, if there was one in the case at bar, had no bearing upon the accident.

A verdict should have been directed in favor of defendant. The judgment is reversed, and there will be no new trial.

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

Moore, J.

I concur in the reversal, but think a new trial should be granted.

Bird, J., concurred with Moore, J.


author: Brooke, J. Kuhn, J.

text:
    HOYT v. GILLEN.
    1. Gifts — Equity—Delivery—Gifts Inter Vivos.
    A valid gift of a mortgage or other chose in action may be made by manual delivery without a written assignment.
    2. Same — Mortgages—Choses in Action.
    Evidence tending to show the delivery of a mortgage and note as an intended gift from decedent to defendant, held, to warrant a finding that the gift was executed as claimed.
    MoAlvay, C. J., and Kuhn, Stone, and Ostrander, JJ., dissenting.
    Appeal from Washtenaw; Kinne, J.
    Submitted April 17, 1914.
    (Docket No. 64.)
    Decided July 24, 1914.
    Bill by Gideon L. Hoyt, as administrator of the estate of Matthew Shittenhelm, deceased, against Ella' Gillen and another for the recovery as a part of said estate of a note and mortgage. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Cavanaugh & Burke, for complainant.

      Arthur Brown, for defendants.
   Brooke, J.

The bill in this case is filed by the administrator of the estate of Matthew Shittenhelm for the purpose of securing possession of a certain note and mortgage for $1,600, made by defendant Egbert Gillen to complainant’s intestate. The said note and mortgage are claimed by the defendant Ella Gillen as a gift inter vivos from complainant’s intestate. Defendant Ella Gillen files a cross-bill praying that she be declared to be the lawful and absolute owner of said note and mortgage. The record shows that Matthew Shittenhelm died on the 8th day of August, 1913, being at that time about 75 years of age; that he had lived in the household of defendant Ella Gillen for a great many years prior to his death. Though unrelated to her, he appears to have occupied a position in the family somewhat akin to that of a member of the household. He, however, paid board to her at the rate of $3.50 per week. In the summer of 1913 he fell ill, and it is the claim of the defendant Ella Gillen that on a day about two or three weeks prior to his death the note and mortgage in question were given to her by the complainant’s intestate in part payment for the care she had bestowed upon him during the latter years of his life. The evidence of the gift is confined to the testimony given by Ruth Gillen, a young woman 21 years of age, and a daughter of the defendant Ella Gillen. It is as follows:

“Q. Some time previous to his having died, do you remember of his giving your 'mother any papers?

“A. One afternoon,

“Q. Do you remember the occasion?

“A. Oh, yes; I remember the occasion.

“Q. Do you remember when it was, about how long before he died?

“A. It was about two or three weeks; I don’t remember the exact date.

“Q. And where had he been? Where were you sitting?

“A. I was sitting in the sitting room. Mother and I were busy sitting there sewing, and Matt was sitting in the rocking chair in the bay window, where he always sat, and he got up and went upstairs, and when he came back he had some papers in his hand.

“Q. Do you know what the papers were?

“A. No; I didn’t see them. They were all together, and he handed them to Ma. I noticed they were yellow papers, but that is all.

“Q. What did he say?

“A. He said, ‘Take those papers; I want you to have them.’ I don’t remember exactly, but he said something about their never having been put on record. ‘Take these; I want you to have them.’

“Q. And what time of the day was that, about?

“A. It was along after dinner, about 2 or 2:30, somewhere along there.

“Q. And where did he go to get these papers?

“A. He left the room and went upstairs.”

On cross-examination the witness testified:

“Mr. Shittenhelm died in August, 1913. I do not know the date. This paper, the abstract, and other papers were delivered two or three weeks before his death. My mother and I and Mr. Shittenhelm were the only parties present at that time. He said to her that he wanted her to have those papers. He stated they were not on record. I do not remember his words. My mother took them. I saw them after she had them two or three days. Mr. Shittenhelm paid his board to my mother. He didn’t work any for about, I guess it was, three or four years; he had the whooping cough, and after that he had not worked at all.' He worked around to amuse himself around the house. He was a thrifty man, and the only thing I ever heard him say about giving the papers to Mrs. Gillen is what I have said.' -

“The Court: It seems to me that you do not repeat the language exactly, but you repeat it in substance. What was said when he handed these papers to your mother?

“A. I don’t remember the exact words, but he brought them out and told her he wanted her to have them now, and said something about their not being on record.”

The record shows that complainant’s intestate was accustomed to keep his valuables, papers, money, etc., in an unlocked trunk located in the closet of his bedroom in' the Gillen house. After his death an examination of this trunk was made by his brother and othersj and there was discovered therein a certificate of deposit for about $1,700 and something like $600 in cash. ' This property afterwards came into the possession of the complainant administrator, and, according to the inventory filed in the probate court, amounted to $2,797.98; this sum being exclusive of the $1,600 note and mortgage in question. The decree of the court below dismissed complainant’s bill and confirmed the title to said note and mortgage in defendant and cross-complainant, Ella Gillen, according to the prayer of her cross-bill. From this decree, complainant appeals.

In his principal brief complainant raises but one question, which is stated in the following language:

“In the present case, assuming that a manual delivery of the papers was actually made, it is admitted that no assignment was ever made of the mortgage and no indorsement upon the note. Therefore the element of the delivery of the legal title is absent. Also, under the evidence in this case, the donor might have revoked the gift at any time before his death; and further, as a matter of record and without the intervention of a decree of a court, it was not a gift executed, but required the contingency of a decree to give it even semblance of a legal transfer.”

We are satisfied that the position of the complainant upon this point is untenable. There is no doubt that a valid gift of a chose in action may be made inter vivos without writing. In the case of Kimball v. Green, 148 Mich. 298 (111 N. W. 761), cited and relied upon by complainant, the evidence was examined and held to be insufficient to establish the gift, but the opinion does not hint that a written assignment of the mortgage or indorsement of the note in writing was necessary.

In Shepard v. Shepard, 164 Mich. 183 (129 N. W. 201), Mr. Justice Stone, speaking for the court, says:

“All that is necessary to constitute a valid transfer of property by parol is an expression to that effect by the donor, accompanied by a delivery of the thing to the donee.”

See, also, Grover v. Grover, 24 Pick. (Mass.) 261 (35 Am. Dec. 319); Hackney v. Vrooman, 62 Barb. (N. Y.) 650; Watson v. Watson, 69 Vt. 243 (39 Atl. 201); Travelers’ Ins. Co. v. Grant, 54 N. J. Eq. 208 (33 Atl. 1060); Rinard v. Lasley, 143 Ill. App. 450; Brown v. Crafts, 98 Me. 40 (56 Atl. 213); Commonwealth v. Crompton, 137 Pa. 138 (20 Atl. 417). Many other. authorities to the same effect could readily be cited.

In his supplemental brief complainant raises for the first time the question that, as a matter of law, the evidence fails to establish a gift. That evidence we have already quoted. The rule as laid down in Cyc. is as follows:

“To constitute a valid gift inter vivos, the purpose of the donor to make the gift must be clearly and satisfactorily established, and the gift must be complete by actual, constructive, or symbolic delivery, without power of revocation.” 20 Cyc. p. 1193.

The question to' be determined; then, is whether the evidence of the gift is such as to warrant the decree made.

In the case of Kimball v. Green, supra, an examination of the record in this court discloses the fact that the.evidence of the gift was much stronger than it is in the case at bar. There were, however, other circumstances in that case which tended to throw doubt upon the credibility of that testimony, chief among which was the fact that the person claiming the gift herself made application for the appointment of an administrator for the estate of the donor, in which she stated that the donor was at the time of his death possessed of personal property to the amount of $500 and upwards, and it appeared that, exclusive of the property claimed as a gift, the donor died possessed of less than $50. The decree- of the court below in that case did not sustain the gift, and that decree was affirmed in this court. In the instant case the evidence of Ruth Gillen, inexact as it is, stands undisputed by any other testimony in the case or any fact or circumstance which, would tend to cast doubt upon its credibility. The history of complainant’s decedent likewise lends color to- the verity of her testimony. The learned chancellor who heard her testimony evidently gave it full credence, and with him we are disposed to agree.

The decree is affirmed.

Bird, Moore, and Steere, JJ., concurred with Brooke, J.

Kuhn, J.

I am unable to agree with the conclusions reached by Mr. Justice Brooke in this case. A careful examination of the testimony of Ruth Gillen, the only witness sworn as to the gift, leads me to the conclusion that under the authority of Kimball v. Green, 148 Mich. 298 (111 N. W. 761), it is insufficient to establish a gift inter vivos. Assuming that she testified absolutely truthfully, there is yet a lack of certainty in her evidence, which, in my opinion, is fatal. Nowhere in her testimony does she identify the mortgage and note in question with the papers delivered by complainant’s intestate to her mother, and nowhere does she say that said intestate used language which necessarily imported a gift. In one place in her testimony she states the language of said decedent to have been: “Take these; I want you to have them.” In another place she says, in answer to the court: “I don’t remember the exact words, but he brought them out and told her he wanted her to have them now, and said something about their not being on record.” In my opinion, neither statement necessarily implies a gift from complainant’s decedent to Ella Gillen. While the circumstances surrounding the case are such as to perhaps indicate the truthfulness of Ella Gillen’s claim, it should be remembered that the complainant’s decedent kept the papers in question and all his other valuables in an unlocked trunk in his room, to which any member of the family had ready access. It is unnecessary to impute dishonest motives to Ella Gillen or her daughter in this case, but I am of opinion that to hold a gift inter vivos was made out by the very meager, unsatisfactory, and inconclusive testimony of the single witness Ruth Gillen under the circumstances of this case would be to set a precedent extremely dangerous.

I think the decree of the court "below should be reversed,, and a decree entered in this court granting the prayer of complainant’s bill.

McAlvay, C. J., and Stone and Ostrander, JJ., concurred with Kuhn, J. .


author: Brooke, J.

text:
    NORTHVILLE STATE BANK v. DETROIT SILVER REFINING CO.
    1. Bills and Notes — Corporations — Secretary — Negotiable Paper.
    No valid authority to execute negotiable paper of a corporation was conferred on the secretary by a resolution granting power to the secretary to indorse checks, drafts, bills of exchange, certificates of deposit, etc., and receipt for the same and to receive and receipt for the cash or negotiable bills of exchange.
    2. Same — Board of Directors — Resolution.
    And the trial court did not err, in an action on a promissory note of the corporation, in excluding from the evidence a paper purporting to be a resolution of the company, signed by its president and secretary, which authorized the making of the note sued upon, where the - evidence did not show when it was adopted and it appeared that the president who signed it had resigned' shortly before tbe note was executed and that none of tbe money obtained on tbe note reached tbe treasury of tbe defendant, and a verdict was properly directed for tbe defendant corporation on tbe ground tbat proper authority to execute tbe paper was not shown.
    Error to Genesee; Wisner, J.
    Submitted April 21, 1914.
    (Docket No. 100.)
    Decided July 24, 1914.
    Rehearing denied December 19, 1914.
    Assumpsit by the Northville State Bank against the Detroit Silver Refining Company on a promissory note. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Oscar M. Springer (E. L. Bray, of counsel), for appellant.

      Lee & Parker, for appellee.
   Brooke, J.

Plaintiff brought suit against defendant upon a promissory note. The note was for $2,000, dated December 14, 1909, due three months after date. It was signed: “Detroit Silver Refining Company, by E. G. Rognon, Secretary." It was indorsed by seven gentlemen interested as officers or stockholders in the defendant company. Certain payments were thereafter made upon the note, so that at the time of the hearing in the court below the amount due, with interest, was $1,391.23. The defendant, under a plea of the general issue gave notice that it would show that the note in question was not the note of the defendant, and that no consideration had ever passed from the plaintiff to the defendant on account of said note. In support of its plea defendant filed the affidavit of its president, George Flanders, denying the execution of the instrument sued upon. It appears that when the note fell due on March 14, 1910, it was not paid or renewed, but that two of the indorsers gave to the bank a new note as security for the payment of the paper sued upon. The defendant company is a foreign corporation. Its principal asset at the time it was organized seems to have been a secret process_ for the removal of silver from silver-bearing ore. Its earlier activities seem to have taken place in the city of Detroit and vicinity, where most of its stockholders and directors were located. It seems that in the fall of 1909 certain residents of the city of Flint became interested in the proposition, and ultimately took over the control of the company. On November 25th a meeting of the board of directors was held in the city of Detroit, at which the following resignations were accepted: Vern E. Matteson, director; Percy M. Scott, director; E. F. Matteson, treasurer; John B. Eldert, president. At the same meeting George Flanders was elected president and director, and W. E. Martin director and treasurer. So far as the records of the defendant corporation show, there was no further meeting until December 23, 1909, when a meeting was held in the city of Flint. At that meeting the resignation of E. G. Rognon as secretary was accepted. Mr. Thomas B. Stevenson was elected secretary pro tem., and George E. Eckert was elected director to fill vacancy. The minutes recite further that, as Mr. Flanders had no stock in the company on November 25, 1909, when he was elected president, his election was irregular, and John B. Eldert was elected president to fill vacancy if any existed.

Prior to all these happenings, and on September 11, 1909, the duties of the secretary had been defined in the following resolution:

“Be it resolved that the secretary of this corporation, E. G. Rognon, is hereby authorized to indorse all checks, drafts, bills of exchange, certificates of deposit, etc., made payable to this company, to receive and receipt for the same and to receive and receipt for the cash or negotiable bills of exchange for the same, also to receive and receipt for the cash or checks payable to the company from the sales of treasury stock or from any other sources of revenue.”

It is clear from the foregoing that Rognon, as secretary, had no authority from the corporation to execute commercial paper in its name. It was the claim of the plaintiff, however, that such authority was given him by a meeting of the board of directors held either shortly before or after the meeting of November 25, 1909.

No record was produced of such action by the board, although John B. Eldert, one time president of the defendant company, gave testimony tending to show that the board of directors had authorized Rognon to execute the note in question. This note seems to have been negotiated with the plaintiff bank by one George E. Eckert. Eckert, though later made a director of that company, at that time seems to have been its legal advisor. He was a stockholder in the company, and was assisted in negotiating the note by G. D. Spencer. Both of them indorsed the note. It is undisputed that the money raised upon the note was placed in the hands of Eckert, and never reached the treasury of the company. Eckert used some portion of the money in the purchase of silver ore, which was turned over to the company, but this ore was paid for by the company to the amount of $300, and that money was by Eckert paid to the plaintiff and indorsed upon the note. As bearing upon the question of the authority of Rognon to execute the note in question binding the defendant company, at the conclusion of the case plaintiff offered the following paper:

“Whereas, this company is desirous of purchasing about three thousand dollars worth of silver ore for treatment in its silver refining plant, and it is not desired to sell stock to raise money for such purpose.

“Be it resolved that the secretary, E. G. Rognon, is authorized to borrow for ninety days on the credit of the company, and execute a company note for the above amount, or any part thereof, and pledge security the stock of this company, at the-rate of ten cents per share, that George E. Eckert as trustee is authorized to deliver said stock, as collateral to the note, and to receive payment of such borrowed money.

[Signed] “John B. Eldert, President.

“E. G. Rognon, Secretary.”

—stating that counsel had learned of its existence only that morning. The court bélow declined to receive the paper in question. It will be noted that this paper is undated, and, as before stated, there is no official record of any meeting at which such a resolution lyas passed by the board of directors of the defendant company. Moreover, it purports to be signed by John B. Eldert, president. If it was signed by Mr. Eldert at or near the time of the making of the note (December 14, 1909), it is clear that he was not, in fact, president, because his resignation had been tendered and accepted on November 29th.

The learned circuit judge directed a verdict for the defendant upon the ground that all the indorsers upon the note were joint makers with the defendant, and that the plaintiff could not maintain its action against one only of those liable. • It is unnecessary, in our opinion, to determine whether this ground for direction is sound. We are of opinion that, under all the evidence in the case, there is no sufficient showing of the authority of Rognon to execute a piece of commercial paper which would bind the defendant company. Gould v. W. J. Gould & Co., 134 Mich. 515 (96 N. W. 576, 104 Am. St. Rep. 624, 2 Am. & Eng. Ann. Cas. 519).

The verdict was properly directed for the defendant company, and the judgment is affirmed.

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


text:
    REID v. CHURCH BALANCE GEAR CO., LIMITED.
    Corporations — Stockholders’ Suits — Trusts.
    Complainants were stockholders in a corporation which controlled and owned the license to manufacture certain patents. One Hyde was also trustee under an agreement providing that Hyde should hold in trust the stock of a subsidiary corporation organized to operate under an assignment of the said license. It was provided by the trust instrument that upon Hyde selling any preferred stock of the subsidiary company he should convey or make over to the corporation in which complainants were stockholders, a number of shares of the common stock equal to the shares of preferred stock sold, and that the purpose of the trust arrangement was to assure to the said corporation an equal number of the shares of stock which might be issued to purchasers. By a subsequent resolution of the corporation in which complainants were members, the directors instructed the trustee to sell two shares of common stock in his hands with the preferred stock offered by him up to a stated amount. The common stock was fully paid up by the grant of a license to the subsidiary corporation. The resolution further provided that the shares of common stock so sold or issued should he taken from the number held by the majority stockholder, who consented to the arrangement. Held, that demurrer was properly sustained to a bill charging mismanagement and breach of trust.
    Appeal from Kent; Brown, J.
    Submitted April 24, 1914.
    (Docket No. 130.)
    Decided July 24, 1914.
    Bill by James Reid and others against the Church Balance Gear Company, Limited, and others, for the enforcement of a trust and to set aside the transfer of certain corporate stock. From an order sustaining a demurrer to complainants’ bill they appeal.
    Affirmed.

      George Hollway, for complainants.

      Myron H. Walker, for defendants.
    The complainants are stockholders in the defendant the Church Balance Gear Company, Limited, which company was organized in July, 1903, under the title, Holson Motor Patents Company, Limited. The capital stock of the Holson Motor Patents Company, Limited, was fixed at $500,000, $250,000 preferred and $250,000 common. Of this stock there was issued to Melvin B. Church all of the common stock and $50,000 of the preferred stock. Four qualifying shares of the preferred stock were likewise issued to four individuals, one of whom was Wesley W. Hyde. In consideration of the stock issued to Church he transferred to the company certain patents, supposed to be of great value. The course of this company from 1903 to 1905 is not disclosed by the record. But in June, 1905, it executed an exclusive license to Wesley W. Hyde to manufacture motor vehicles under the following contract:
    “Memorandum of agreement made and entered into on this 7th day of June, A. D. 1905, by and between the Holson Motor Patents Company, Limited, party of the first part, and W. W. Hyde, party of the second part.
    “Whereas, the said Holson Motor Patents Company has this day granted to the said W. W. Hyde, as trustee, an exclusive license under the following mentioned patents [Here follows a description of the patents] ; and whereas, Wesley W. Hyde, as trustee, has subscribed for 4,995 shares of the capital stock of the Couple-Gear-Freight-Wheel Company, of the par value of $499,500, and has in full payment for said stock granted to said Couple-Gear-Freight-Wheel Company a similar exclusive license under the patents above mentioned, and there has been issued and delivered to said W. W. Hyde, as trustee, the said 4,995 shares of stock of the said Couple-Gear-Freight-Wheel Company: Now, therefore, this agreement witnesseth: Said Wesley W. Hyde is to hold said 4,995 shares of stock of the said Couple-Gear-Freight-Wheel Company, as trustee, and to offer the same for sale, in such amounts and at such times as he shall be directed by the directors of said Couple-Gear-Freight-Wheel Company.
    “Whenever any share or shares of stock of said Couple-Gear-Freight-Wheel Company is sold by said trustee, at par, he is to transfer from the stock so held by him as trustee to the purchasers thereof, the number of shares so sold, and thereupon, forthwith, the said trustee shall transfer, or cause to be transferred from the stock so held by him as trustee, a like number of shares of stock of the Couple-Gear-Freight-Wheel Company to the Holson Motor Patents Company, Limited.
    “The proceeds of the stock sold to others by the said trustee shall be paid into the treasury of the Couple-Gear-Freight-Wheel Company, Limited, by said trustee.
    “The object for which this trusteeship is created is to insure that the amount of stock of the Couple-Gear-Freight-Wheel Company held by the Holson Motor Patents Company, Limited, is at all times equal to the_ amount of stock sold to other purchasers.
    “It is further expressly agreed and understood that the stock to be issued by the said trustee to the Holson Motor Patents Company, Limited, shall be common stock, and the stock offered for sale and sold to others by the said trustee shall be preferred stock, bearing six per cent, cumulative dividends and certain other benefits expressed in the by-laws of said company and on the face of said certificates.”
    Thereupon a corporation known as the Couple-Gear-Freight-Wheel Company was organized for the purpose of manufacturing motor vehicles under said exclusive license. The capital stock of said company was fixed at $500,000; $250,000 common and $250,000 preferred. Of this stock all of the common and all but five shares (issued as qualifying shares to individuals) of the preferred were issued to Wesley W. Hyde as trustee in payment for and transfer by him to the corporation of the exclusive license before named. Mr. Hyde accepted the trust in the following instrument:
    “Know all men by these presents, that in accordance with a certain agreement between the Holson Motor Patents Company, Limited, and myself, as trustee, a certain written assignment of rights under certain patents from said Holson Motor Patents Company, Limited, to me as trustee and a certain transfer of said rights to the Couple-Gear-Freight-Wheel Company in exchange for 4,995 shares of the capital stock of said last-named company, all of said writings being of date June 8, A. D. 1'905.
    “I hereby declare, that I hold said stock in trust for the benefit of the Holson Motor Patents Company, Limited, and the Couple-Gear-Freight-Wheel Company in conformity with the contract and assignments aforesaid, and the by-laws, of said Couple-Gear-Freight-Wheel Company.”
    By-laws of the Couple-Gear-Freight-Wheel Company giving effect to the contract between Hyde and Holson Motor Patents Company were adopted as follows:
    “Section 1. The capital stock of this company is five hundred thousand dollars, divided into two classes, as follows:
    Common stock, 2,500 shares___________$250,000 00
    Preferred stock, 2,500 shares__________ 250,000 00
    “Sec. 2. Wesley W. Hyde, trustee, holds all the common stock of the company and all of the preferred stock except five shares, under a certain trust agreement, between himself and the Holson Motor Patents Co., Ltd., by the terms of which he is to offer for sale the said preferred stock, or parts thereof, in amounts, upon the terms and at the times directed by the board of directors of this company.
    “Sec. 3. The proceeds of such sales of preferred stock shall be turned over to the treasurer of this company, and a like amount of common stock shall, at the time of such sale be issued to the Holson Motor Patents Co., Ltd. The intention being that there shall, be simultaneously issued to the Holson Motor Patents Co., Ltd., an amount of stock equal to the amount or amounts sold by the said trustee to others.”
    Under this declaration of trust about $118,000 of the preferred stock was sold at par by Hyde and the proceeds thereof turned into the treasury of the Couple-Gear-Freight-Wheel Company. An equal amount of common stock of the company was by him transferred to the Holson Motor Patents Company. The Couple-Gear-Freight-Wheel Company proceeded to manufacture and vend freight automobiles under the aforesaid license. The business continued until in November, 1907, when at a meeting of the board of directors of the Couple-Gear-Freight-Wheel Company it was determined that it was necessary to raise, the sum of $14,000, whereupon the following resolution was adopted:
    “Resolved, that to carry on the business of this company, it is necessary to raise $14,000.00 and to raise the same the capital stock of this company be sold as follows: $14,000 par value of preferred stock and $42,000 par value of common stock, and that one share of preferred stock and three shares of common stock be sold at the par value of one share of preferred stock, $100.00.”
    “Resolved, that the stockholders of this company be allowed to subscribe for as much stock, so offered, as they see fit, but that in case of an oversubscription thereof, that this board shall have the power to prorate the share of each subscriber in proportion to his present holding.
    “Resolved, that this offer of stock is subject to the assent of the Holson Motor Patents Company to the modification of the contract between said companies in relation to the common stock proposed to be offered.”
    Notice of this resolution and a copy of it was immediately given to the Holson Motor Patents Company, and said last-mentioned company was asked to act upon the question promptly, and if possible assent to the proposition. A meeting of the board of directors of said last-mentioned company was held on the 5th of November, and the following preamble and resolution was passed:
    “Whereas, the Couple-Geai*-Freight-Wheel Company has represented to this company that it is in pressing need of money to carry on its business; and has decided to sell one share of its preferred stock, and three shares of its common stock for $100 to the extent of 140 shares of preferred stock and 420 shares of common, and has asked this company to agree to surrender 280 shares of common 'capital stock now held by it, and to consent that 140 shares of additional common stock of said company may also be issued to such proposed purchasers; whereas, Melvin B. Church has consented in writing that the said 420 shares may be taken from his interest in the common stock of the Couple-Gear-Freight-Wheel Company held by this company; whereas, it appears to this board that inasmuch as the prosperity of this company depends in very large measure upon the successful prosecution of the business of said company, and that it is therefore good business policy to assent to said proposition: Therefore be it resolved, that the chairman and secretary of this company be, and they are hereby directed and empowered to assign to the future purchasers of 140 shares of the preferred capital stock of the Couple-Gear-Freight-Wheel Company, two shares of the common capital stpck of said company now held by this company, as fast as and when one share of such preferred stock is sold at par, and that this company hereby consents that one share of the common stock of said company be issued to such purchaser for every share of preferred stpck so sold,. in addition to the two shares of common for one of preferred sold as aforesaid; provided, that no more than 280 shares of the common stock of said company held by this company be surrendered, and no more than 140, shares of common stock in addition be issued by said company to such purchasers. Provided, further, that this arrangement shall terminate in ninety days from this date, and all said 420 shares of common stock unsold shall become and be the property of this company under said contract. And that this arrangement shall in no wise affect the provisions of said contract, except as to said 420 shares of common stock, or such part thereof as shall be sold within the time above limited.”
    The assent of the Holson Motor Patents Company having been thus obtained to the sale of the stock, preferred stock of the Couple-Gear-Freight-Wheel Company to the amount of $14,000 was sold by Mr. Hyde to certain individuals for $14,000 in cash, which sum was covered into the treasury of the Couple-Gear-Freight-Wheel Company. To each purchaser of one share of this preferred stock there was given three shares of the common stock of the Couple-Gear-Freight-Wheel Company, in all 420 shares.
    These complainants, besides being stockholders in the Holson Motor Patents Company, are all owners of preferred stock in the Couple-Gear-Freight-Wheel Company. They filed their bill against all of those who purchased the $14,000 preferred stock last mentioned, and received therewith $42,000 of the common stock, and they make both companies defendants pro forma. They state in their bill that:
    “They bring this bill of complaint against the above-named defendants in their own right as stockholders of the Couple-Gear-Freight-Wheel Company for the benefit of themselves and of such other stockholders in said Couple-Gear-Freight-Wheel Company as may care to join in this suit.”
    Many charges are made against certain of the defendants as officers of the Couple-Gear-Freight-Wheel Company. Among others they are charged with mismanagement of the corporate funds, violation of their duties as directors, and abuse of trust, but the only relief sought is to avoid the alleged sale and purchase of said 420 shares of common stock of the Couple-Gear-Freight-Wheel Company to the defendants who purchased them, and that said certificates be delivered up to be canceled. They next pray that said certificates for 420 shares of the common stock of the Couple-Gear-Freight-Wheel Company may be ordered and decreed to be issued and delivered in accordance with the original contract ánd trust agreement to the beneficiary therein named.' To this bill of complaint a demurrer was interposed by the Church Balance Gear Company (formerly the Holson Motor Patents Company), the Couple-Gear-Freight-Wheel Company, and all the individuals who received any portion of the 420 shares of the common stock aforesaid. The grounds of said demurrer are as follows:
    “(1) That it appears upon the face of said bill that it is filed by said complainants -in their capacity and right as stockholders in the Couple-Gear-Freight-Wheel Company only, and riot otherwise, and as such said complainants are not entitled to any relief in a court of equity.
    “(2) That it does not appear in and by said bill of complaint and in the allegations thereof, that said complainants, or any of them, subscribed for or purchased stock in or became stockholders of the Holson Motor Patents Company, Ltd., named in said bill at or after the organization of said defendant, the Couple-Gear-Freight-Wheel Company, or at the time of, or after the making of, the alleged contracts, agreements in trust, or otherwise between the said Holson Motor Patents Company, Ltd., and the said defendant the Couple-Gear-Freight-Wheel Company, set forth in said bill of complaint, or the alleged trust created thereby, or that the said complainants became such, either with knowledge of, or in reliance upon the same, or that the said complainants subscribed or paid for their stock in the said Holson Motor Pat-tents Company, Ltd., either in reliance thereon, or had or obtained any rights or equities irrevocable or otherwise in or under said alleged trust or other agreements.
    “ (3) That it does not appear that the said complainants as stockholders of the said Holson Motor Patents Company, Ltd., were in any wise wronged, or that their_ legal or equitable rights as such were in any wise impaired, injured, or imperiled by the said defendants in any manner whatsoever.

      “ (4) That it appears by said bill of complaint that said complainants have no grievance or remedy whatsoever, either legal or equitable, as stockholders in said Holson Motor Patents Company, Ltd., in or because of any of the matters alleged in said bill of complaint, and such grievance and remedy, if any, are against the said defendant Melvin B. Church, and' not in any wise against these defendants or any of them.
    “(5) It does not appear in or by said bill of complaint that the said trust agreement, so-called, or the other alleged agreements, between said Holson Motor Patents Company, Ltd., and the said defendant the Couple-Gear-Freight-Wheel Company, were or are irrevocable, or that they could not be and were not lawfully modified, changed, or waived in the manner alleged and set forth in said bill of complaint.
    “(6) That it does not appear that'the said complainants as stockholders of said defendant the Couple-Gear-Freight-Wheel Company, or otherwise, were in any wise wronged, and that their legal or equitable rights have been in any wise impaired, injured, or imperiled by said defendants, or any of them, and that on the contrary, it appears that the said complainants have been benefited thereby.
    “(7) That it does not appear in and by said bill of complaint that the said complainants have been in any wise damaged or wronged by said defendants, or suffered loss by reason of them, or their actions therein complained of.
    “(8) That it does not appear in and by said bill of complaint that the said defendants, or any of them, have violated any of the rights, either legal or equitable, of the said complainants.
    “(9) That it appears in and by said bill of complaint that said complainants have been and are guilty of laches in the filing of their bill of complaint, and in asking relief in and from a court of equity therein, and have not therefore any right or claim whatsoever to any equitable relief.
    “(10) That it appears in and by said bill of complaint that said defendants invested and paid their money to the said defendant the Couple-Gear-Freight-Wheel Company, and purchased the preferred and common stock thereof in reliance upon the waiver or modification of said alleged trust agreement and other contracts, and that they would not otherwise have bought and paid for said stock or invested and paid in their money to said defendant the _ Couple-Gear-Freight-Wheel Company, and that said defendant, the Couple-Gear-Freight-Wheel Company, and said complainants as stockholders thereof have had the use and benefit of defendants’ said investment and money, and are now having the use and benefit thereof, and that if said change or modification of said alleged trust and other agreements and said purchase and sale of said stock to and by said defendants is rescinded and the said stock restored to the said Holson Motor Patents Company, Ltd., or otherwise, that the said defendants cannot and will not be restored or put in statu quo by said complainants, or otherwise, wherefore the said defendants pray that said bill be dismissed for want of equity, with costs to these defendants.”
    The demurrer having been sustained by the court below, complainants appeal.
   Brooke, J.

(after stating the facts). We are of opinion that the bill does not state a case for equitable relief. All of the stock of the Couple-Gear-Freight-Wheel Company was fully paid and was issued by it to the trustee, Mr. Hyde, to be disposed of by him under the terms of the trust. - The preferred stock was to be sold by him as directed by the board of directors from time to time, and the common stock was to be turned over to the Holson Motor Patents Company in payment for the exclusive license, which, at the time of the organization, constituted the only assets the Couple-Gear-Freight-Wheel Company possessed, except $500 paid in for qualifying shares. It will therefore be noted that the Couple-Gear-Freight-Wheel Company had received value in full for all of its common stock at the time of its organization. It is true that it was contemplated that that common stock should be transferred by the trustee to the Holson Motor Patents Company only in amounts equal to the preferred stock sold by the trustee. But the beneficial ownership of said stock was under the contract at all times in the Holson Motor Patents Company. At the time of the sale of the $14,000 preferred stock, only $14,000 common stock in the hands of Mr. Hyde was issued, and $28,000 of the common stock theretofore issued under the terms of the trust to the Holson Motor Patents Company was used to make up the entire sum of $42,000 common stock. How this transaction could in any wise injure a stockholder in the Couple-Gear-Freight-Wheel Company we are unable to discern. It certainly could not injure the corporation itself, because from the moment of organization it had for a valuable consideration parted with its entire issue of common stock. It will be noted that complainants filed their bill, not as stockholders of the Holson Motor Patents Company, but as stockholders of the Couple-Gear-Freight-Wheel Company. But it is not apparent from the record that, even as stockholders in the Holson Motor Patents Company, they were injured, because the resolution authorizing the sale of the three shares of common stock with one share of preferred stock passed by the Holson Motor Patents Company recites that the 420 shares are to be taken from the individual interest of Melvin B. Church, and that he had consented thereto in writing. So far as the record discloses, Mr. Church was the holder of three-fifths of the entire stock of the Holson Motor Patents Company, and his interest was ample to protect his undertaking.

We are of opinion that it is unnecessary to determine whether the contract by which the Holson Motor Patents Company agreed to take stock in the Couple-Gear-Freight-Wheel Company in payment for the exclusive license was legal or not. It is enough to determine that neither the trustee in selling, nor the individual defendants in buying, nor the Holson Motor Patents Company in consenting to the transaction, did anything which could, in our opinion, afford complainants any ground for legal or equitable relief.

The order sustaining the demurrer and dismissing complainants’ bill is affirmed.

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