author: Kuhn, J.

text:
    MAYO v. VILLAGE OF BARAGA.
    1. Municipal Corporations — Negligence—Sidewalks—Snow and Ice — Drainage.
    No liability as for negligence was chargeable to a village in failing to provide drains to carry off water that flowed from a higher adjacent lot upon a concrete sidewalk causing an accumulation of ice and snow in a ridge, upon which plaintiff slipped and fell.

    2. Same — Accumulation of Ice from Natural Causes.
    Municipalities are not liable for failure to protect pedestrians from dangers caused by the natural accumulations of ice or snow upon sidewalks.
    Error to Baraga; O’Brien, J.
    Submitted November 13, 1913.
    (Docket No. 109.)
    Decided December 20, 1913.
    Case by Stella Mayo against the village of Baraga for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.-

      Hubert A. Brennan, for appellant.

      A. W. Kerr, for appellee.

      The liability of a municipality for permitting water to accumulate and freeze on sidewalk to the injury of travelers, generally, is the subject of notes in 21 L. R. A. 265; 58 L. R. A. 321; and 20 L. R. A. (N. S.) 656; 7 L. R. A. (N. S.) 933; 13 L. R. A. (N. S.) 1105 and 45 L. R. A. (N. S.) 75.

   Kuhn, J.

This action Is brought to recover damages for injuries sustained by the plaintiff as a result of falling on a ridge of ice and snow on the sidewalk on the northerly side of Ontonagon street, in the village of Baraga. Ontonagon street, which is also known as State street, runs in an easterly and westerly direction and is intersected by Superior avenue, which runs in a northerly and southerly direction. On the northwest corner of these streets there is a store building, and to the west of it is lot 10, which is vacant, opposite which, it is alleged, the accident occurred. This lot slopes gradually from a height of about four or five feet to the grade of the walk. The owner of the building adjoining lot 10 had caused the sidewalk in front of his building to be cleared of ice and snow as far as the corner of the lot, but the snow and ice had not been cleared in front of lot 10, as the sidewalks in the village were not cleared of these accumulations in the winter season except when property owners wished to clear them. It is the claim of the plaintiff that the defendant was negligent in the building of the concrete walk at the place of the accident, contending that a drain should have been placed under the walk to draw the surface water from lot 10; that, because of the failure of the village to provide this drainage, the water formed by rains or melting snow or other water flowing toward the walk in its natural course would flow over the walk and, when the weather was cold, form ice. The accident occurred on March 10, 1911, and there was snow on the ground. It had melted the day before, turned cold during the night, and ice had formed. The case was submitted to the jury, and a verdict in the sum of $500 was rendered for the plaintiff.

There are 21 assignments of error, but the only one we shall consider is whether a verdict should have been directed in favor of the defendant, because the sidewalk was not shown to be defective and no negligence is shown attributable to the defendant. We are of the opinion that, under the previous decisions of this court, the municipality cannot be held liable under the facts in this case. The case which seems to us to be controlling is the case of Gavett v. City of Jackson, 109 Mich. 408, at page 412 (67 N. W. 517, 32 L. R. A. 861). In the opinion written by Mr. Justice GEANT, he said:

“Many, and probably most, houses, are built higher than the sidewalks, with sloping yards in front. Under the rule sought to be established in this case, municipalities would be liable for the natural flow of the water from such buildings over the yards to the sidewalks. Such is the doctrine in Pomfrey v. Village of Saratoga Springs [104 N. Y. 459]. Such holding is not consistent with the former decisions of this court.”

Mr. Justice Hooker, in a concurring opinion (page 412, of 109 Mich. [67 N. W. 517. 2 L. R. A. 861]), said:

“Unless we are to say that it is the duty of the owners of all lots that are higher than the adjoining highways to prevent the flow of water therefrom, or promptly remove any ice that may form by reason of the escape of water from their buildings upon the adjoining highways, and further, that the city must at its peril see that such duties are performed, we must hold that the plaintff should not be permitted to recover in this cause. If a liability exists, it is because of a defect in the highway; and, if ice frozen upon a sidewalk is a defect when it is caused by water flowing from a roof, why should it not be when it flows from a vacant lot, or when it falls upon the walk, or is caused by the melting of snow upon or adjoining such walk? If the liability of a city for damages resulting from a failure to keep its highways in a reasonably safe condition for travel extends to cases where such condition is not ascribable to defects in the construction and maintenance of the way, or to the action of the officers of the city or their negligence in the performance of a duty, it may be contended that cities must cause the streets to be patroled, in search of bricks or coals that fall from wagons, for the treacherous banana peel, upon which the unwary are sure to slip, and for tacks or bits of glass or other rubbish, which puncture the tires of bicycles. I think such are not defects in the highway.”

In the case of Navarre v. City of Benton Harbor, 126 Mich. 618 (86 N. W. 138), where the question of the negligence of the city was submitted to the jury, there was a depression in the walk — “a place where the walk had settled down” — where ice had been accustomed to form for a considerable period before the injury, and a large garbage tank was located on premises adjacent, which leaked, and for a period of three years flowage from the garbage tank followed the depression in the sidewalk, which had frozen in cold weather. The court, in distinguishing the case from Gavett v. City of Jackson, said, at page 620 of 126 Mich. (86 N. W. 139):

“In that case a majority of the court was of the opinion that there was no improper flowage of water across the sidewalk in question, which was itself in good repair, and not so laid as to cause water to accumulate and form ice. That cannot be said of the present case. The jury would be justified in inferring that the depressed condition of this walk was such as to induce the formation of ice in unusual quantities, and it certainly would be justified in finding that an improper flowage of the wastage from the garbage tank was permitted by the city, and continued for a long period.”

In the instant case, no claim is made that the sidewalk itself was not p-roperly constructed or was defective. To hold that wherever water would naturally flow over a sidewalk because of adjacent sloping or elevated property it becomes incumbent upon municipalities to provide drainage under the walks would, it seems to us, place a burden upon them which is not warranted by authority in this State or good reason. It was the ordinary, usual, open, and exposed sidewalk, and in its original condition was not unsafe or dangerous. It was made so by the accumulations of snow and ice. We have often held that the municipality is not negligent if it omits to protect pedestrians from dangers to life and health which are caused by the accumulations of ice and snow on sidewalks from natural causes. Hutchinson v. City of Ypsilanti, 103 Mich. 12 (61 N. W. 279); Wesley v. City of Detroit, 117 Mich. 658 (76 N. W. 104); Pringle v. City of Detroit, 152 Mich. 445 (116 N. W. 362); Jefferson v. City of Sault Ste. Marie, 166 Mich. 340 (130 N. W. 610).

A verdict should have been directed for the defendant, and the judgment is reversed, and no new trial granted.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    HEIKKALA v. ISAACSON.
    1. Appeal and Error — Motions—New Trial — Saving Questions por Review — Exceptions.
    On error, exceptions to the denial of a motion for new trial are necessary to review the ruling.
    2. Intoxicating Liquors — Civil-Damage Action — Intoxication.
    Intoxication of the plaintiff is not a ground of defense to a civil-damage action brought for injuries done to plaintiff’s eye by an intoxicated man who had bought liquor from defendant saloonkeeper.
    3. Same — Proximate Cause — Unlawful Sales.
    The question of proximate cause is not involved as an issue, if the tort feasor was in fact intoxicated and caused the injury of which the plaintiff complains: the statute fixes liability upon the liquor dealer who furnished liquor that produced such intoxication.

    4. Same — Evidence.
    And it was not error to charge that plaintiff’s alleged intoxication had no bearing in the case except upon the weight to be given to his testimony.
    Error to Baraga; O’Brien, J.
    Submitted November 13, 1913.
    (Docket No. 110.)
    Decided December 20, 1913.
    Case by Daniel Heikkala against August Isaacson and the Michigan Bonding & Surety Company for injuries sustained at the hands of an intoxicated person. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      H. A. Brennan and A. F. Bunting, for appellants.

      Albert T. Streeter, for appellee.

      As to the necessity to sustain a recovery under civil-damage act, that the intoxication be the proximate cause of the injury, see note in 13 L. R. A. (N. S.) 1158.

   Stone, J.

This action was brought to recover damages under the statute regulating the liquor traffic. By section 5398, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5074), it is provided that:

“Every wife, child, parent, guardian, husband, or other person, who shall be injured in person or property, or means of support or otherwise, by any intoxicated person or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors, to any person, shall have a right of action in his or her own name, against any person or persons who shall, by selling or giving any intoxicating or malt liquor, * * * have caused or contributed to such injury, and the principal and sureties to the bond * * * shall be liable severally and jointly with the person or persons so selling,” etc.

The declaration, among other things, alleges that at the village of Baraga, Baraga county, on April 7, 1912—

“The said defendant, August Isaacson, by himself, and by his bartender, his servant and agent, unlawfully did sell, furnish, give, and deliver spirituous, malt, brewed, and fermented liquors, to wit, beer and whisky, to one Henry Lund, an adult person, who was then and there intoxicated; and that the said liquors, so unlawfully sold, furnished, given, and delivered by the said defendant, and by his said agent and servant, caused and contributed to the intoxication of the said Henry Lund. And thé said Henry Lund, while so intoxicated, * * * made an assault upon said plaintiff and struck the said plaintiff in and upon the left eye of said plaintiff with such, violence as to injure and destroy the eyeball and utterly destroy the sight of that eye.”

The suit was brought against the dealer and his surety, the Michigan -Bonding & Surety Company. The plea was the general issue.

There was evidence tending to show that on the day named, Sunday, April 7, 1912, both the plaintiff and the said Lund were drinking intoxicating liquors in the saloon of defendant Isaacson, and that said Lund became intoxicated there, and that intoxicating liquors were there sold to the said Lund by the said defendant and his bartender while said Lund was intoxicated, and that while so intoxicated said Lund struck the plaintiff in the left eye with a beer glass and destroyed the eye so that it had to be removed. The evidence also tended to show that the plaintiff was somewhat intoxicated at the time of the injury. The case was submitted to the jury, and the trial court in its charge, among other things, said:

“If you find from the testimony by a fair preponderance of the evidence that the defendant Isaac-son, by himself or by any person in his employ, furnished any liquor to the man who inflicted the injury, and you further find that such injury was inflicted after such person inflicting the injury had become intoxicated and while he was intoxicated, and that the liquor furnished by the defendant Isaacson contributed to the intoxication, your verdict should be for the plaintiff, and you should give such damages as will fairly compensate him for the injury. The plaintiff is not required to prove, and you should not speculate upon the probabilities, whether intoxication was the natural cause of the act which caused the injury. The act itself by a person intoxicated, to whom liquor had been sold after his intoxication, fixed the liability for the damage upon the person furnishing the liquor which caused ©r contributed to the intoxication. * * * Now, on account of the range that some of the arguments have taken, I feel it is my duty to say to you that the intoxication of Heikkala has no bearing upon the case, except upon the weight to be given to his evidence. You may consider his condition, in passing upon the weight to be given to his evidence, but the fact that he was intoxicated is no defense to this case. I want to say to you further along this line that the fact, if you so find from the evidence, that any actions on the part of Heikkala during the time he was intoxicated in that saloon may have aggravated Henry Lund would not be a defense in this case, and no juror has a right to consider it in any way as a defense to this case.”

There was a verdict for the plaintiff in the sum of $750, and judgment was duly entered thereon.

There was a motion for a new trial, alleging many errors. The trial court filed a written opinion giving reasons for denying the motion for a new trial. A review is sought of the court’s rulings denying the motion. No exceptions were taken to the finding of the court denying the motion, and the errors relied upon in the motion, if any, must be deemed to have been waived. This court has frequently called attention to the necessity for such exceptions. Knop v. Insurance Co., 101 Mich. 359 (59 N. W. 653); Pearl v. Benton Township, 136 Mich. 697 (100 N. W. 188); Culver v. Railroad Co., 144 Mich. 254 (107 N. W. 908, 109 N. W. 256); Moffet v. Sebastian, 149 Mich. 451 (112 N. W. 1120); Comstock v. Taggart, 156 Mich. 47 (120 N. W. 29); In re Bender’s Estate, 159 Mich. 108 (123 N. W. 601).

The case has been brought here for review by the defendants upon writ of error, and the only assignments of error which can be considered are the first and second, as the others all relate to alleged errors in the refusal to grant defendants a new trial, which cannot be considered for the reason above stated.

The first assignment of error relates to the admission of testimony and the refusal to strike the same out. We think this assignment has no merit.

The second assignment of error, and the only one which we can consider, is the alleged error in the charge of the court contained in the foregoing excerpt from the charge. Such questions as it may be said are here presented we will consider.

It is the contention of appellants that plaintiff has no right of action because there was testimony tending to show that he himself was intoxicated. An examination of the declaration shows that it contains no allegation alleging the intoxication of the plaintiff. There is testimony in the record tending to show that both plaintiff and the said Lund were intoxicated at the time of the injury complained of. Upon this question counsel for appellants rely upon the case of Brooks v. Cook, 44 Mich. 617 (7 N. W. 216, 38 Am. St. Rep. 282). That decision was under the act of 1877, giving “every wife, child, parent, guardian, husband or other person” a right of action against the liquor seller for injury done the plaintiff by reason of the intoxication of any person; and it was held that it did not give the intoxicated person a right of action against the dealer for money stolen from him while drunk. And it was said that where a statute, after enumerating specific cases, uses a general term to cover others, the latter are understood to be of the same general character, sort, or kind as those specified. There the action was brought, it will be noted, by the intoxicated person himself to recover damages, and it was said that the statute evidently contemplated three parties, seller, receiver, and injured party, in all cases. It will be borne in mind that the declaration in this case alleges that the injury was inflicted upon the plaintiff by a person who was then and there intoxicated, and that the liquors unlawfully sold or furnished by the defendant Isaacson caused and contributed to the intoxication of the said Henry Lund. We think that the case is brought directly within the provisions of our present statute, which we have quoted above. It will be noted that we have here the three parties, the seller defendant, Isaacson, the receiver, Lund, and the injured party, the plaintiff.

The case of Brooks v. Cook, supra, was followed by the case of Flower v. Witkovsky, 69 Mich. 371 (37 N. W. 364), where it was held that, under the statute giving a right of action to “every wife, child, parent, guardian, husband, or other person” injured by an intoxicated person, the words “or other person” were intended to cover the persons so injured. In that case the action was brought by a plaintiff who averred that his horse and buggy were lawfully in the public street in charge of a competent driver, and that a person, while intoxicated, drove his horse and vehicle upon and against the horse and buggy of the plaintiff and drove one of the thills of said vehicle into the body of plaintiff’s horse, thereby killing it. The action was against the dealer who contributed to the intoxication. In that case Justice MORSE, speaking for this court, said:

“It is argued that the statute does not contemplate an action by any other person than one holding a relationship of the same general character, sort, or kind as those specifically mentioned in the statute as the persons to whom a right of action is given; and that the plaintiff cannot be regarded as holding any such relationship.”

After quoting the language of the statute, the opinion proceeds in the following language:

“The words ‘or other person’ seem to have been intended by the legislature to cover all persons injured in person or property by intoxicated persons. In Brooks v. Cook, 44 Mich. 617 [7 N. W. 216, 38 Am. St. Rep. 282], it was held that this statute did not give a right of action to a person injured by his own intoxication, and good reason is there given for such holding. It is intimated, however, on page 619, that a traveler, injured by an intoxicated person passing him on the street, would have an action under the statute against the person selling or giving the liquor to such intoxicated person. In English v. Beard, 51 Ind. 489, under a similar statute to ours, such right of action is given to one beaten and wounded by an intoxicated person. We have no doubt of the intention of the legislature to cover just such a case as the one at bar.”

As we have already said, the present case is not founded on the intoxication of the plaintiff. The testimony tended to .show that Lund was intoxicated; that unlawful sales were made to him after he was intoxicated by defendant Isaacson; and that the blow was struck while Lund was intoxicated. We think the verdict established these facts.

It is next urged by appellants that, unless the intoxication was the proximate cause of the injury, there can be no recovery. We think that, where the evidence shows that the injury was inflicted by an intoxicated person, the rule contended for by appellants does not apply. Where, as here, recovery is sought for an injury inflicted by “an intoxicated person,” the question of proximate cause is not considered; the courts holding that all that is essential is that it appear that the person inflicting the injury was intoxicated. Such is the rule in this State.

In Brockway v. Patterson, 72 Mich. 122 (40 N. W. 192, 1 L. R. A. 708), this court held that, under the statute giving a right of action for injury occasioned by an intoxicated person, it was not for the injured party to produce proof, or for the jury to speculate upon the probabilities whether the intoxication was the natural cause of the act which caused the death; that the act itself fixed the liability for the damage upon the person selling or furnishing the liquor which caused the intoxication. See, also, Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088); Doty v. Postal, 87 Mich. 143 (49 N. W. 534). In view of these decisions, there was no question before the jury whether the intoxication of Lund was or was not the natural cause of the act which caused the injury. The act itself by a person intoxicated, to whom liquor has been sold unlawfully, fixes the liability for the damage upon the person furnishing the liquor which caused or contributed to the intoxication.

We think the court did not err in charging the jury that the claimed intoxication of the plaintiff had no bearing in the case, except upon the weight to be given to his testimony.

We find no error in that portion of the charge complained of by the second assignment of error. There being no other questions raised by the assignments of error which we can consider, the judgment of the circuit court is affirmed.

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


author: Brooke, J.

text:
    COLWELL v. ALPENA POWER CO., LTD.
    1. Appeal and Error — Setting Aside Verdict — New Trial.
    On motion for a new trial, it is the duty of the trial court, and, on error, of the Supreme Court, to set aside a verdiet which is manifestly against the great weight of the evidence.
    2. Waters and Watercourses — Flooding Lands — Dam—Damages.

      Held, that there was evidence supporting a verdict of $914 for flooding plaintiff’s premises and injuring his timber by means of a dam.
    3. Appeal and Error — New Trial — Motions.
    It was, also, too late to raise the objection, upon defendant’s motion for a new trial, that plaintiff had failed to show valid title.
    Error to Alcona; Connine, J.
    Submitted November 5, 1913.
    (Docket No. 70.)
    Decided December 20, 1913.

      Case by George W. Colwell against the Alpena Power Company, Limited, for flooding plaintiff’s lands. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry, for appellant.
    /. H. Cobb and O. H. Smith, for appellee.
    Plaintiff brings his suit against defendant to recover damages, which he claims have accrued to him by reason of defendant’s unlawful act in flooding his (plaintiff’s) lands, which lie on or near the shores of Hubbard Lake. At the outlet of said lake defendant maintains a dam. As originally constructed the dam was intended to hold the water in the lake only for the purpose of sluicing out sawlogs and other forest products. After it came into possession of defendant, the dam was rebuilt so that it was capable of maintaining a head of 6% feet. It has, of late years, been the purpose of defendant to hold the water back in Hubbard Lake and release it as it is needed below for the operation of defendant’s power plant. The lake, which is eight miles long by six miles in width, is thus converted into a storage reservoir. Defendant does not deny that its purpose has been to maintain a higher mean level of the waters in said lake than is natural, nor does it deny that, to some extent, it has accomplished that purpose. The facts so far as they relate to the maintenance of the dam in question are identical with those recently considered by this court in Holcomb v. Power Co., 175 Mich. 500 (141 N. W. 534). Plaintiff secured a judgment for $914. Defendant reviews that judgment in this court by writ of error.
   Brooke, J.

(after stating the facts). Two principal contentions are urged by defendant: First, that the verdict and judgment are against the weight of the evidence, and, in any event, grossly excessive; and, second, that the verdict and judgment are against the law because of the alleged failure of plaintiff to show a perfect title to all the lands, claimed by plaintiff to have been damaged.

With reference to the first question the record discloses a very familiar situation. The plaintiff, a man of considerable experience as a lumberman, made a personal examination of his lands, claimed to have been damaged by the high water, and estimated the injury to the timber alone at $3,000. He further testified that the land itself, through erosion along the shore line, was damaged to the extent of $500. A further claim was made that a so-called meadow, which had formerly produced marsh hay, had, on account of the high water, become worthless for that purpose, being now grown up with bullrushes. Plaintiff’s claims were supported to some extent (perhaps not very convincingly) by the evidence of others. On the other hand, defendant introduced the evidence of three expert timbermen, who made an examination of the lands in question. One of these estimated the damage to the timber at $250, another at $30, and still another at practically nothing. The jury heard the testimony of all these witnesses, and apparently became convinced that the extreme claims of neither party were sustained. The verdict is about one-fourth of the amount claimed by plaintiff, and nearly four times the amount fixed by any witness for defendant.

We recognize the rule contended for by defendant, that it is the duty of the trial court and, upon appeal, the duty of this court, to promptly set aside a verdict which is manifestly against the great weight of the evidence. We are, however, not convinced that this is a case in which the rule should be applied. The probative value of the expert evidence introduced by defendant was determinable, and was determined by the jury. They apparently did not fully credit it, though they did permit its influence to greatly reduce the somewhat vague and, perhaps, exaggerated claim of plaintiff. After a careful perusal of the record, we are unable to say that the verdict was either against the great weight of the evidence or grossly excessive.

Relative to the second point, we find that it was not raised upon the trial. It is true defendant introduced an unsigned deed covering a portion of the lands involved, together with certain tax deeds covering other portions thereof. But no requests to charge were preferred, and upon the trial nothing was claimed for these deeds or any of them.

Upon a motion for a new trial, one ground set up was that “the verdict was against the law.” We gather from the remarks of the trial judge in denying the motion that the claim that plaintiff had not shown a good title was then for the first time made. It was then too late. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073).

The first 10 assignments of error are based upon allegations of error in receiving or excluding certain items of testimony. These have been examined, but we are satisfied that in this respect no prejudicial error was committed.

The judgment is affirmed.

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


text:
    UNION TELEPHONE CO. v. INGERSOLL.
    1. Appeal and Error — Assignment oe Error — Trial Without Jury.
    Usually an assignment of error that the facts found do not support the judgment of the trial court, sitting without a jury, is necessary to review the finding of the court, but in a case where the assignment was that the findings of fact did not support the findings and conclusions of law, and where the only finding of law was that plaintiff was entitled to judgment, this court may treat the assignment of error as sufficient.
    2. Telegraphs and Telephones — -Constitutional Law — Public Policy — Contracts—-V aeidity.
    In an action by a telephone company for rental due from a subscriber under its written contract of service, the defendant could not defeat plaintiff’s recovery by the contention that plaintiff had not procured a franchise from the township, as required- by Art. 8, § 28, of the Constitution; only the public is entitled to raise the objection.
    Error to Clinton; Davis, J., presiding.
    Submitted November 12, 1913.
    (Docket No. 92.)
    Decided December 20, 1913.
    Assumpsit by the Union Telephone Company against Eric Ingersoll. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      Dean W. Kelley and Charles M. Merrill, for appellant.

      Lyon & Moinet, for appellee.
   Brooke, J.

The controversy here involved may be fully understood from a perusal of the findings of fact and law filed by the learned circuit judge, who heard the case without a j ury. They follow:

“(1) That on or_about April 2, 1909, the parties made and entered into a contract in writing, dated April 2, 1909, by which the plaintiff agreed to install and maintain at the residence of defendant in the township of Greenbush, in said county of Clinton, one telephone for the period of five years upon a rental of $20 per year in quarterly payments, and subject to a rebate of 50 cents per quarter if paid at the company’s office, in St. Johns, on or before the middle of the first month of each current quarter, a copy of which said contract is set out in the declaration in this cause.
“(2) That afterwards, and some time during the fall of the year 1909, plaintiff installed a telephone at the residence of the defendant in accordance with the provisions of the contract referred to, and the instrument was connected with the St. Johns exchange of the company, and ready for service on December 24, 1909.
“(8) That prior to January 1, 1909, plaintiff was maintaining a telephone exchange at St. Johns and a telephone system along the highways throughout Clinton county, including said township of Greenbush, wherein it then had upwards of 40 miles of poles and wires thereon along the public highways. And that to install the telephone in question the company was required to build, and built of new construction, about a mile and a quarter of telephone line east along the public highway from the residence of John Krepps, in said township, up to which point on that highway the company already and prior to January 1, 1909, had an existing line, and had a telephone installed. The company also had telephones to the number of 50 to 100 installed and in use to the west, north, northeast, east, and south of defendant’s residence prior to Jan-, uary 1, 1909, including quite a number of the village of Eureka to the north and east of defendant’s residence.
“(4) That upon constructing said line to defendant’s residence, it continued south along the highway one-half mile (and about 10 or 15 rods further south, to reach a subscriber) and thence east along the highway one-half mile (and south about 20 rods to reach a subscriber), and thence north one-half mile along the highway, and thence further north about 20 rods, to reach the residence of A. L. Tripp. Nine telephones were originally installed on this line so constructed upon five-year contracts, at the same rate as defendant agreed to pay. And later the line was extended from Tripp’s to connect with other portions of plaintiff’s system.
“(5) That plaintiff has maintained said telephone at the residence of defendant in accordance with the terms of the contract continuously since said instrument was installed.
“(6) That plaintiff company reduced • its rates to rural subscribers to $15 per year rental, on or about January, 1912, and at some time during that month offered to enter into a new contract with defendant in lieu of the existing contract, to terminate at the same time as the existing contract, but to be at the rate of $17 per year, payable quarterly, and subject to rebate, as provided in the existing contract and the other contracts, and that defendant declined to avail himself of that offer of plaintiff, and stated to plaintiff’s district manager that the existing contract was good enough for him.
“(7) That afterwards, and on January 29, 1912, defendant notified plaintiff company to remove the telephone from his residence, on the 1st of April, 1912.
“(8) That later, and on April 27, 1912, defendant notified the district manager of plaintiff, at St. Johns, in writing, that it had not yet removed his telephone as ordered, that it had neglected it, and he was done paying for it, and that it should remove the telephone at once, as he would not use it after that date.
“(9) That plaintiff did not remove the telephone, but maintained it and afforded defendant proper opportunity to use the same in accordance with the terms of his contract until and after July 1, 1912.
“(10) That upon the installation of the telephone in question the rental was paid and adjusted, so that the quarterly payments came due on the 1st of January, April, July, and October of each year.
“(11) That after July 1, 1912, plaintiff requested defendant to pay the rental for the quarter commencing April 1, and ending July 1, 1912, which was conceded by defendant in open court, and also that the rental was not paid.
“(12) Plaintiff did not have or obtain any franchise from the township of Greenbush for the maintenance of its telephone system within said township as constructed prior to January 1, 1909.' Nor did it have or obtain any such franchise for the construction of the line in question. Nor did it obtain the consent of the lawful authorities of said township to use the highways for its poles and wires prior to January 1, 1909, nor thereafter.
“(13) Plaintiff brought its action in justice’s court to recover the rental for the quarter in question; and the case comes into this court on appeal by defendant from a judgment recovered against him in justice’s court.
“(14) From the foregoing facts I conclude and find that the plaintiff is entitled to a judgment for $5 rental for the period in question, and 18 cents interest, and award plaintiff a judgment for that amount and its taxable costs, including an attorney fee of $25/’

Defendant filed the following assignments of error:

“(1) Because the findings of fact made by the trial judge in the foregoing proceedings do not support the findings and conclusions of law made by the said circuit judge as aforesaid.
“(2) And because the contract upon which the action herein is founded was and is illegal and void, so that no action could or can be founded thereon, and the same will not sustain a recovery in this cause.
“(3) And because the claim of the plaintiff and appellee, as appears in the proceedings had in said cause, was and is void as against public policy.”

At the outset it is urged by appellee that the judgment should be affirmed because there is no assignment of error that the facts found do not support the judgment. Technically this position would seem to be correct, as the first assignment of error is that the findings of fact “do not support the findings and conclusions of law,” no reference being made therein to the judgment. An assignment of error practically identical with this one was considered in McMillan v. Cheese Factory, 23 Mich. 544, and a review of the judgment refused. See, also, Weist v. Morlock, 116 Mich. 606 (74 N. W. 1012). But in the case at bar the only conclusion of law reached by the learned circuit judge was that plaintiff was entitled, under the facts found, to a judgment. We think the ends of justice will be better served by treating the first assignment as alleging that the facts found do not support the judgment rendered. This course is in line with that taken by the court in Hubbard v. Garner, 115 Mich. 406 (73 N. W. 390, 69 Am. St. Rep. 580), where leave was granted to appellant to include an assignment which would raise the question.

Prior to the adoption of the new Constitution which became the fundamental law of the State on January 1, 1909, telephone companies had the right to occupy public highways within the State without first obtaining from the municipality a franchise (Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 [80 N. W. 386, 47 L. R. A. 104]), subject, however, to the right of the municipality to impose reasonable rules and regulations governing the erection and maintenance of poles and wires. Village of Jonesville v. Telephone Co., 155 Mich. 86 (118 N. W. 736, 130 Am. St. Rep. 562, 16 Am. & Eng. Ann. Cas. 439), and cases cited. The Constitution, § 28, art. 8, provides :

“No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”

Briefly stated, the contention of appellant appears to be that the plaintiff, because it failed to secure a franchise from the township of Greenbush after the new Constitution went into effect and before the contract sued upon was entered into, should be denied the use of the courts to enforce said contract. The contract itself is not attacked as unfair or in any manner discriminatory.

The further claim of appellant that the contract is void because entered into in violation of the statute (Act No. 72 of the Public Acts 1883, as amended by Act No. 301 of the Public Acts 1909) may be dismissed, as the amendatory act did not become law until after the execution of the contract.

The meritorious point presented by the record is that involving defendant’s right to raise the constitutional question. We are of opinion that defendant has no such right, but that it must be raised by the State or one of its agencies. It must be presumed that, at the time the contract was executed, defendant knew the law, nevertheless he engaged with plaintiff in an undertaking involving, on the part of plaintiff, the expenditure of a considerable sum of money, the beneficial results of which have been enjoyed by defendant. Section 2 of the schedule of the new Constitution provides that the “rights of individuals, and of bodies corporate, * * * which shall not have been heretofore forfeited or become subject to forfeiture shall continue,” etc. How far this provision protects plaintiff in the right to prosecute its business, already established, it is unnecessary to determine if we are correct in holding that defendant cannot question that right. If plaintiff, in making the extension required to be made under the contract, has violated the law, either statutory or constitutional, that fact may afford a reason for the forfeiture of its charter at the instance of the governmental authorities, but it does not invalidate the contract. Fifth Nat. Bank v. Pierce, 117 Mich. 376 (75 N. W. 1058). See, also, Butterworth & Lowe v. Milling Co., 115 Mich. 1 (72 N. W. 990); Wyandotte Electric Light Co. v. City of Wyandotte, 124 Mich. 43 (82 N. W. 821, and cases cited); and International Harvester Co. v. Eaton Circuit Judge, 163 Mich. 55 (127 N. W. 695, 30 L. R. A. [N. S.] 580, Ann. Cas. 1912A, 1022).

The judgment is affirmed.

Steere, C. J., and McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. MOORE, J., did not sit.


author: Moore, J.

text:
    MASSACHUSETTS MUTUAL LIFE INSURANCE CO. v. BOARD OF TRUSTEES OF MICHIGAN ASYLUM FOR THE INSANE.
    Evidence — Witnesses—Records —• Privileged Communications — Confidential Relations — Physician and Patient.
    An insurance company, which claims that a policy holder committed fraud in procuring insurance and that he was suffering from paresis at the time he applied for his policy, is not entitled to inspect the records showing his mental and physical condition made by a physician of a public asylum in which decedent was confined when he died; the evidence was privileged under 3 Comp. Laws, § 10181, as amended by Act No. 234, Pub. Acts 1909 (5 'How. Stat. [2d Ed.] § 12826), upon a showing that the records contained information necessary for the proper care and treatment of inmates. -

      Mandamus by the Massachusetts Mutual Life Insurance Company and Charles W. Pickell against the board of trustees of the Michigan asylum for the insane at Kalamazoo. Allie B. Willey and others filed an intervening petition.
    Submitted November 18, 1913.
    (Calendar No. 25,930.)
    Writ denied December 20, 1913.

      H. E. Spalding and James H. McDonald, for relators.

      Grant Fellows, Attorney General, Thomas A. Lawler and L. W. Carr, Assistant Attorneys General, for respondent.

      Charles H. Chase (Edwin H. Lyon, of counsel), for interveners.

      As to whether hospital records are within the privilege extended to communications between physician and patient, see note in 14 L. R. A. (N. S.) 565.

   Moore, J.

This is a petition for a writ of mandamus to compel the board of trustees of the Michigan asylum for the insane, at Kalamazoo, to permit the relators to inspect the records of the asylum containing information concerning the mental and physical condition of one Vernon J. Willey, who was a patient in the asylum from July, 1910, until his death in December, 1912.

On August 6, 1910, relators began a suit in the circuit court for the county of Wayne, in chancery, against Vernon J. Willey and others for the cancellation of certain policies of life insurance which had been issued by the insurance company, one of the relators, to Willey in April, 1910, and in which the other defendants and Willey’s estate were named as beneficiaries. After the commencement of the suit, Willey died, and the suit is now pending against his administratrix and the other defendants.

It is the claim of the complainants in said suit that the issuance of the policies was induced by certain false and fraudulent representations by Willey in his application for insurance that he was in good physical condition, when he was in fact suffering from general paresis. In July, 1910, a few months after the issuance of the policies, Willey was admitted to the Michigan asylum for the insane, at Kalamazoo, and remained there until his death in December, 1912.

It is claimed that the information sought is necessary to prepare for the trial of the above-mentioned lawsuit.

In the return of the respondents is the following:

“Respondent admits that relators made application to the board of trustees on the 18th day of July, 1913 for permission to inspect the records of said asylum showing the condition of said Vernon J. Willey for the purposes set forth, and admit that on the 5th day of August, 1913, the respondent board denied such request; that the following is the action taken by said respondent:
“‘The communication of Messrs. Walker and Spaulding, of Detroit, under date of August 18, 1913, asking that they he permitted to inspect the records of this institution in order that they, as attorneys for the Massachusetts Mutual Life Insurance Company, may secure information to be used in a suit now-pending against the heirs of Vernon J. Willey to set aside certain life insurance contracts, and the board being advised that the information contained in such records was obtained by physicians in their professional character, and was necessary to enable them to prescribe for said Vernon J. Willey, and that said physicians have once declined to permit an examination of such records or disclose any information so obtained.
“ ‘Resolved, that we hereby approve of the action of the medical staff in refusing an inspection of such records, and declining to disclose any information secured in the manner aforesaid, and the aforesaid request is therefore declined, and the secretary instructed to forward a copy of this resolution to the attorneys for said insurance company.’
“VI. Answering paragraph 6, respondent states and shows unto the court that the said records contain information essential and necessary for the proper care and treatment of the insane patients confined in said asylum, and such records are for the purpose of determining the proper treatment to be given such patients as are inmates of said asylum, and that the records of said asylum with reference to the said Vernon J. Willey were made for the purposes herein enumerated. Said board respectfully denies that such records are public documents, and denies that the relators are entitled to inspect them, and respectfully submit that it is not the duty of the respondent to permit relators to inspect said records for the purposes set forth in said petition, or for any other purpose.”

Counsel for relators contend for two propositions:

“(1) The records of the asylum are open to the inspection of the relators under the terms of Act No. 76 of 1903.
“(2) The relators, as parties to the suit pending in the Wayne circuit court, have the right at common law to inspect the records of the asylum for the purpose of obtaining information necessary to enable them to prepare for the trial of such suit.”

We quote from the brief of counsel:

“The records of the State asylum at Kalamazoo are made and kept by officers and employees of the State in the discharge of official duties. As public records they are open to the inspection of the public under the terms of Act No. 76 of 1903.”

Act No. 76 provides as follows:

“The officers having the custody of any county, city, township, town, village, school district or other public records in this State shall furnish proper and reasonable facilities for the inspection and examination of the records and files in their respective offices, and for making memoranda or transcripts therefrom, during the usual business hours, to all persons having occasion to make examination of them for any lawful purpose: Provided, that the custodian of said records and files may make such reasonable rules and regulations with' reference to the inspection and examination of them as shall be necessary for the protection of said records and files and to prevent the interference with the regular discharge of the duties of such officer; and provided further, that such officer shall prohibit the use of pen and ink in making copies or notes of records and files.”
“Under this act, it was held, in Kalamazoo Gazette Co. v. Kalamazoo County Clerk, 148 Mich. 460 [111 N. W. 1070], that records of marriage licenses and returns showing marriages in the office of the county clerk are public records, and open to the inspection of those who have occasion to inspect them. A writ of mandamus was, therefore, held properly granted by the circuit court requiring the respondent to permit relator’s reporters to examine such records.”

Many other cases are cited to this proposition.

The attorney general calls attention to the title of Act No. 76, and suggests that the words “or other public records in the State” must be limited to the public records of those municipalities mentioned in the title, and that the statute does not apply to the records mentioned in relator’s petition. The title of the act, so far as it is important, is as follows:

“An act to facilitate the inspection of the records and files in the offices of the county, city, township, town, village, and school districts in this State, amending section 1 of an act to facilitate the inspection of the records and files in the offices of county, city and township officers in this State.” (1 How. Stat. [2d Ed.] §1449).

In reply to this contention, counsel for relators say (we again quote from the brief):

“In the view I take of the case it is unnecessary to consider the objection raised with reference to the title of the statute. The reply to the second and important proposition is this: The general and well-settled rule is that all public records are open to the inspection of all persons, who show an interest therein, and irrespective of whether the records are such as could be introduced in evidence, and also of whether the matter recorded concerns a single person, a number, or the public at large.”

This proposition is urged with much earnestness, and many authorities are cited in favor of it. Some of them are cases directly within the terms of the statute in relation to inspection. Others relate to the common-law right of inspection of public records. None of them are directly in point, though, if no question of privilege was involved in the case, it might be said they were persuasive.

Of the cases cited but three of them relate to the use of records for the purpose of showing physical or mental condition.

In the case of Hempton v. State, 111 Wis. 127 (86 N. W. 596), Mr. Hempton was on trial for murder. His defense was that he was insane. He sought to have the records of the insane hospital introduced to establish that fact. He was not asserting a privilege; on. the contrary, he was waiving it. Clearly not the instant case.

Another case cited is the Inhabitants of Townsend v. Inhabitants of Pepperell, 99 Mass. 40. The patient was not a party to the litigation. It was a contest between the two towns as to where the woman patient was settled while she was insane. No question of privilege was presented.

The third case, and one upon which much stress is laid, is Krapp v. Insurance Co., 143 Mich. 369 (106 N. W. 1107, 114 Am. St. Rep. 651). In that case the proofs of death were permitted in evidence because there was a provision in the policy as follows:

“The proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company.”

The certificate of death was allowed in evidence because it was made under a general law of the State, which in express terms provided:

“All certificates of death, local registers, or county records authorized under this act, or certified copies thereof, shall be prima facie evidence in all courts and for all purposes of the facts recorded therein.” See section 4617, 2 Comp. Laws.

Clearly that is not the instant case. We shall refer to this case later.

The statute (section 10181, 3 Comp. Laws, as amended by Act No. 234, Public Acts of 1909; 5 How. Stat. [2d Ed.] § 12826), so far as its provisions are material here, reads:

“No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient, in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”

This language has frequently been construed by this court. Many of the cases may be found in the note to the compiler’s section. The construction has been invariably to preserve the privilege granted by the language of the statute. Similar statutes have also been before this court. See Shinglemeyer v. Wright, 124 Mich. 230 (82 N. W. 887, 50 L. R. A. 129); People v. Pratt, 133 Mich. 125 (94 N. W. 752, 67 L. R. A. 923); Dick v. International Congress, 138 Mich. 372 (101 N. W. 564).

In Thomas v. Byron Township, 168 Mich. 593 (134 N. W. 1021, 38 L. R. A. [N. S.] 1186, Ann. Cas. 1913C, 686), a physician was allowed to testify to the conditions he found as the result of an autopsy. In the opinion Justice McAlvay, speaking for the court, said:

“In a case where a physician has been allowed to testify as to the communications privileged by the statute, Mr. Justice Cooley, speaking for the court, said:

“ ‘This evidence ought not to be passed over without remark. It is surprising evidence for many reasons. One of these is that the physician had no business to give it. (The statute is cited and quoted.) Every reputable physician must know of the existence of this statute, and he» must know from its very terms, as well as from the obvious reasons underlying it, that it is not at bis option to disclose professional secrets. A rule is prescribed which he is not to be “allowed” to violate; a privilege is guarded which does not belong to him, but to his patient, and which continues indefinitely, and can be waived by no one but the patient himself.’ Storrs v. Scougale, 48 Mich. 387 (12 N. W. 502), and cases cited.
“ * * * From the examination of this witness we conclude, by the questions asked, the answers to which were excluded as privileged, that he had during the lifetime of the patient made such an examination of her person, and received such information, as was necessary to diagnose her case and prescribe for her, and also that he had disclosed to defendant’s attorney such facts. We must conclude from the record that on account of this relation, which existed between the witness and deceased, it was possible for him to proceed within a few hours after her death to hold an autopsy.”

It will be noticed that the statute goes farther than to forbid giving testimony. Its language is:

“No person duly authorized to practice physic or surgery shall be allowed to disclose any information,” etc.

In Davis v. Knights of Honor, 165 N. Y. 159 (58 N. E. 891), in discussing the question of privilege, it was said:

“The defendant’s counsel then produced the records of the board of health of Brooklyn, which were identified by the clerk of the department, and offered to prove by the original certificate filed therein by the attending physician the cause of death of the deceased member’s two aunts above referred to by the certificate of the respective attending physicians on the occasion of their last illness. The court inquired if the evidence was offered to prove the cause of death, and the defendant’s counsel replied that it was. The court thereupon excluded the record, and the defendant’s counsel excepted. Thus it will be seen that the question involved in this exception was the right of the defendant’s counsel to prove by the certificate of the physician in attendance during the last illness of the deceased’s aunts the cause of death or the particular disease from which they died. It was admitted that the physician had no knowledge on that subject except such as he acquired in his professional capacity and when the relation of physician and patient existed. That testimony of this character is expressly prohibited by section 834 of the Code cannot be denied. ■ That the proof offered and excluded was inadmissible, I may assume to be a proposition too clear for argument, unless the prohibition contained in the section of the Code referred to has been repealed. This court has held that the statements of the attending physician, for the purpose of establishing the cause of death either of the insured himself or of his ancestors or their descendants, although not parties to nor beneficiaries under the contract, were not admissible. They are excluded, not only for the purpose of protecting parties from the disclosure of information imparted in the confidence that must necessarily exist between physician and patient, but on grounds of public policy as well. The disclosure by a physician, whether voluntary or involuntary, of the secrets acquired by him while attending upon a patient in his professional capacity naturally shocks our sense of decency and propriety, and this is one reason why the law forbids it. The form in which the statements are sought to be introduced is of no consequence, whether as a witness on the stand or through the medium of an affidavit or certificate. All are equally under the ban of the statute. Grattan v. Insurance Co., 80 N. Y. 281 [36 Am. Rep. 617]; Renihan v. Dennin, 103 N. Y. 573 [9 N. E. 320, 57 Am. Rep. 770]; Redmond v. Benefit Ass’n, 150 N. Y. 167-172 [44 N. E. 769]; Westover v. Insurance Co., 99 N. Y. 56 [1 N. E. 104, 52 Am. Rep. 1]; Nelson v. Village of Oneida, 156 N. Y. 219 [50 N. E. 802, 66 Am. St. Rep. 556]; Buffalo Loan, etc., Co. v. Mutual Aid Ass’n, 126 N. Y. 450 [27 N. E. 942, 22 Am. St. Rep. 839]. * * *
“But the contention of the learned counsel for the defendant is, as of course it must be, that the prohibition contained in section 834 of the Code, as construed by these adjudications, has been repealed, not by any amendment to the Code, or by any general law, but by an obscure provision of the charter of the city of New York. * * *
“It is by the use of this latter vague expression, found among numerous provisions in a local and special law, enacted solely for the government of a city, that a general rule of evidence, which is part of the Code of Civil Procedure, and which has been in force in some form for more than half a century, has been repealed, if at all. This is really what the contention of the learned counsel for the defendant amounts to, and, unless it can be successfully maintained, it is clear that the evidence offered was properly excluded. It should be noted, also, that it was not offered to prove the fact of death, since there was no issue on that question, but solely to prove the cause of death, and that, too, not in any local matter over which the health department had jurisdiction, but in a controversy concerning the enforcement of a contract obligation between private parties in a court of general jurisdiction. This local statute, when reasonably and properly construed and understood, and limited to the purpose for which it was enacted, does not, in my opinion, abolish any part of the Code, or affect any general rule of evidence applicable throughout the State at the time of its enactment.”

Counsel for relator says that in the Krapp Case, supra, this court considered the above case, and expressly declined to follow it. If reference is made to the opinion in the Krapp Case, it will appear that the Davis Case was distinguished from the one then under consideration, for the reason that the record offered in evidence was not made under a general law of the State, but under the provisions of a' city charter. It could well be said that it was not in point in the Krapp Case, for the reasons stated in the opinion; while it is quite as certain that it is in point in the case we are now considering, for the reason that the records which it is sought to reach here are not kept under any general law of the State, nor does any statute make them “prima facie evidence in all courts and for all purposes of the facts recorded therein.”

In Sovereign Camp v. Grandon, 64 Neb. 39 (89 N. W. 448), where it was sought to use a record made under the provisions of an ordinance, the court said:

“There is another reason, which, in our opinion, makes it incompetent. If signed by a physician, it contains matter relating to his patient which the physician is not allowed to disclose as a witness upon the trial against the objection of his patient or those representing him. That a record of this character, reciting privileged communications, may be used in evidence against a party where the testimony of the physician making it could not be received, is a proposition so inconsistent with reason and natural rules of justice that we cannot give our consent thereto. The court properly refused to allow the certificate in evidence.”

See, also, Buffalo Loan, etc., Co. v. Mutual Aid Ass’n, 126 N. Y. 450, 458 (27 N. E. 942, 22 Am. St. Rep. 839).

In this connection the language used in Smart v. Kansas City, 208 Mo. 162 (105 S. W. 709, 14 L. R. A. [N. S.] 565, 123 Am. St. Rep. 415, 13 Am. & Eng. Ann. Cas. 932), is germane. The records of a city hospital kept in accordance with the ordinances of the city were sought to be introduced in evidence in the trial court, upon the ground that they were public records, but were excluded. In affirming the case, the court said:

“The .defendant’s next contention is that the court erred in excluding the evidence of Dr. Frederick. He was one of the attending physicians at the city hospital, and was the keeper of and had charge of the records of the institution, which were required to be kept by the ordinances of the city. The defendant offered to prove by him the diagnosis of plaintiff’s case, as shown by said official record, when she was in the hospital in the years 1895, 1896 and 1898, the latter when her leg was amputated. The plaintiff objected to the evidence offered, because the entries made were privileged communications, first made to the attending physicians in order that they might correctly diagnose her case and to properly treat her. The diagnosis of the case was made by an examination of the patient and by interrogating her regarding the complaint. This is necessary to be known by the physician in order that he may prescribe the proper treatment, and when he once acquires that information the law declares it to be confidential communications, and disqualifies the physician from divulging the same upon the witness stand. * * *
“This is undoubtedly the rule as announced by all the authorities, and that being so, it seems that it must follow as a natural sequence that when the physician subsequently copies that privileged communication upon the record of the hospital, it still remains privileged. If that is not true, then the law which prevents the hospital physician from testifying to such matters could be violated both in letter and spirit and the statute nullified by the physician copying into the record all the information acquired by him from his patient, and then offer or permit the record to be offered in evidence containing the diagnosis, and thereby accomplish, by indirection, that which is expressly prohibited in a direct manner.”

In Price v. Insurance Co., 90 Minn. 264 (95 N. W. 118), it was said:

“At the trial an objection was made and overruled to the introduction in evidence by the defendant of the register of patients kept at the Northwestern hospital, with the entries therein relating to the insured. These entries were made by the superintendent in charge, who was a female physician, in the usual course of business at the hospital, and showed when the patient entered, when he departed therefrom, and the nature of the disease from which he was said to be suffering. This superintendent produced the register, and testified that the entries concerning the insured were made after Dr. Kimball, the physician in charge, had observed the case long enough and knew sufficiently about the patient to state the kind of disease, and were based wholly upon information received by her from the doctor. The witness had no personal knowledge of the patient, and had no recollection of the case, apart from the record. Therefore the entries amounted to nothing more or less than what the superintendent wrote in the register what the attending physician told or reported to her concerning Price’s illness.
“To permit these entries to be introduced in evidence was to disregard in a very noticeable manner the rule forbidding the introduction of hearsay testimony, as well as the spirit of the statute which prohibits the examination of a physician as to certain matters, without the consent of his patient (G. S. 1894, § 5662), although this last objection does not appear to have been made at the trial. The information communicated by Dr. Kimball to the superintendent of the hospital was acquired by the former while attending the patient, and was necessary to enable him to prescribe or act for him. Dr. Kimball would not have been allowed to make any such disclosure, and the statutory restriction upon him could not be evaded by introducing in evidence testimony of a third party as to what the doctor said about the case. But the entries did not even rise to the dignity of a repetition of what the doctor said to a third party, for the superintendent remembered nothing, except that she made the entries. This testimony should have been excluded.”

We are constrained to hold the action of the trustees is justified.

The writ is denied, but without costs.

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


author: Ostrander, J. McAlvay, J.

text:
    McDONALD v. FLEMING.
    Partnership — Voluntary Association — Joint Venture — Intent.
    Where complainant and 69 others joined together as a farmers’ union, an unincorporated, voluntary organization, to promote the interests of its members as farmers, and although the association was not authorized to engage in a mercantile business, the members met and unanimously determined to open a store, each contributing $10 or his note for that amount, and electing a board of directors to supervise the conduct of the business, and where none of the parties intended to form a partnership or to obligate themselves for more than the sum which they contributed, and where the union entered into a contract with the complainant to manage the store upon ten per cent, commission, and it was contemplated that some of the members should furnish money and some should not, that the membership would change from time to time, no partnership existed which would entitle complainant, one of the joint adventurers, to recover sums advanced by him to continue the business.
    McAlvay, J., dissenting.
    Appeal from Saginaw; Gage, J.
    Submitted April 8, 1913.
    (Docket No. 3.)
    Decided December 20, 1913.
    Rehearing denied June 4, 1914.
    Bill by Angus J. McDonald against William Fleming and others for the dissolution and winding up of an alleged partnership. From a decree for defendants, complainant appeals.
    Affirmed.

      F. E. EmericJc (E. L. Beach, of counsel), for complainant.

      Weadock & WeadocJc (Miles J. Purcell, of counsel), for defendants.
   Ostrander, J.

It is pointed out by Mr. Meehem (Elements of Partnership, § 42) that the question whether a partnership has in fact been created may and often does arise, as in the case at bar, between the alleged partners themselves, when an enterprise has proved disastrous, and one or more, alleging partnership, seek to enforce contribution as partners from the others, who deny that any such relation existed. Complainant claims to have put into an enterprise $1,500 of his own money, and that he is entitled to commissions of 10 per cent, upon the amount of goods which, as manager of the enterprise, he sold. Besides this, and as an indirect result of the enterprise, the bank at Merrill holds some $2,000 of paper indorsed, some or all of it, by members of a committee. Complainant names some 69 persons who, with himself, embarked in the enterprise, and he seeks contributions from them. Forty-one of the defendants answered, denying that any partnership relation existed. As to some of the others, the bill was taken as confessed, while some were not served with process, and were brought in by publication. The circuit judge who heard the case, in an exhaustive opinion which appears in the record, analyzes the testimony, and concludes that there is no evidence of an express contract of partnership, and little or none supporting the claim that conduct of the parties was such as to create a partnership.

“I can find,” he says, “no testimony in this case which indicated that any of the parties subscribing $10 contemplated or intended that there should be a partnership, and that each individual should be responsible- for the entire indebtedness created by Mr. McDonald, or this so-called committee, without their individual sanction.”

An examination of the record and briefs has led me to the conclusion that the circuit court was right in •dismissing the bill. I shall attempt no analysis of the testimony, but shall briefly state the reasons for my conclusion.

It must be kept in mind that complainant is not a creditor, to whom the concern has held itself out as a partnership, but that he was one of the adventurers and the manager of the business. The so-called contract of May 24, 1902, cannot, upon any theory, be held to bind, as a body, the local union of the International Farmers’ Union of North America, or to bind any person not directly contracting, and those who should thereafter, upon the terms stated, join with the promoters. The writing itself is not a contract of partnership. On the contrary, it contemplates that some of the members of the union will furnish money to buy goods, and that some will not. Read with the resolution and bond, which are set out in the opinion of Mr. Justice McAlvay, the so-called contract, unless every member of the union is bound by it, binds no particular member, unless it be those signing it, and contemplates a change of membership from time to time. It cannot be learned from the writings who the associates were. The resolution, bond, and contract, read together, contemplate only a stated contribution to the enterprise by those who should conclude to make a contribution. The construction here indicated is the practical one, adopted by those who had occasion to consider the matter at all. And if merely contributing to the fund and buying goods at the store constituted a contributor a partner, then one who came in late would be equally liable with the first contributor, and any contributor had the right to withdraw from the enterprise.

If there was no express contract for a partnership, how was a partnership created? There could be but one way, if indeed there could be, as to complainant, any way. That would be by the acts of the parties— by the joint acts of all of them, or by the acts of some of them, known and assented to by the others. I do not find in the record evidence of any joint, or of any individual, action, the true purport and meaning of which complainant had the right to rely upon, or did rely upon, as creating a partnership. The evidence that each contributor understood that his contribution limited his liability is overwhelming. Some, a very few, of those at all interested raised money, from time to time, to carry on the business. Complainant managed the business, with some direction it is true, and himself, he says, contributed money from time to time. He must all of the time have known that, except as they made themselves personally liable, no one connected with the association intended to become, or supposed he had become, personally liable for any of its debts. It is idle to suppose that these defendants supposed, and that complainant understood, that the credit of these defendants was involved in the business.

“If parties intend no partnership, the courts should give effect to their intent, unless somebody has been deceived by their acting or assuming to act as partners; and any such case must stand upon its peculiar facts, and upon special equities.” Beecher v. Bush, 45 Mich. 188, 193 (7 N. W. 785 [40 Am. Rep. 465]).

And in the same case it is said:

“Except when one allows the public or individual dealers to be deceived by the appearances of partnership when none exists, he is never to be charged as a partner unless by contract and with intent he has formed a relation in which the elements of partnership are to be found.”

The case of Carter v. McClure, 98 Tenn. 109 (28 S. W. 585, 36 L. R. A. 282, 60 Am. St. Rep. 842), cited by my Brother McAlvay, is not in point because in that case the question of partnership did not arise between associates, but between an association and creditors who were not members. My dissent from the conclusion he has reached is based upon the fact that this suit is between one who claims to be a partner and his associates who deny the relation; that there is no express contract • of partnership; that it was not the intention of contributing members to be associated as partners; and that complainant knew he was not dealing with a partnership.

The decree dismissing the bill must be affirmed, with costs to appellees.

Steere, C. J., and Moore, Brooke, Stone, and Bird, JJ., concurred with Ostrander, J.

McAlvay, J.

(dissenting). Complainant has appealed from a decree entered in the circuit court for Saginaw county, dismissing his bill of complaint against defendants, which was filed by him against them for the purpose of an accounting between the parties and a settlement between them of the affairs of a certain mercantile enterprise, entered into by the parties as a voluntary association, and to ascertain and decree the amount of all of its indebtedness, and also the amount claimed by him to be owing from said defendants for money advanced and services rendered by him as manager of said business.

The parties to this suit were all farmers who united' together and as charter members received a charter from the International Farmers’ Union of North America, and on February 24, 1902, accepted such charter and organized a local union called, "The International Farmers’ Union of Merrill, Mich., No. 12.” This was an unincorporated, voluntary organization to promote the interests of its members as farmers, and was not, as an organization, authorized to engage in mercantile business. Officers were elected, including a president, secretary, and treasurer, dues were collected, and official books were opened and the keeping of same undertaken. The membership of the union at the time the mercantile venture out of which this litigation arose was undertaken included complainant and the persons who are named as defendants in this suit. The matter of establishing a store had been discussed considerably by the members óf the organization, with the result that at a regular meeting of the union, held at Merrill, May 16, 1902, the said members named as defendants unanimously decided to engage in and operate a mercantile business. They elected a committee to oversee and control its affairs, and adopted the following resolution:

"International Farmers’ Union of Merrill, Mich., No. 12.
"May 16th, 1902.
"James Barrett, Chairman.
“Board of Directors:
“A. J. McDonald,
"Thomas Wall,
"Geo. Hardy,
"John A. Murphy,
"Patrick O’Toole,
"John Shannon.
"It is hereby resolved that we shall start a store in the following described manner: Resolved, that the said store shall be contracted by the members of the I. F. U. Resolved that we should put up the money to buy the goods. Each member to put up ten dollars in money, or a good legal note, or as much as each member may see fit. The money is given to go into the general fund of the I. F. U., providing always that if a member shall be moving away and is a good, honorable member, he shall be entitled to get his fee back in the whole worth and interest. Resolved, that we shall require the member, who is to receive the money, and run the store, to give a bond to the I. F. U. to the amount of $3,000, for the present, and it is understood that it is subject to be raised according as the committee of the I. F. U. may see fit.”

After considering the matter of the selection of a place of business and the matter of entering into a contract with some person to conduct such enterprise, these members, acting through the “board of directors” named in the foregoing resolution, agreed upon the complainant, and, pursuant to such resolution, on May 21, 1902, he furnished the following bond:

“Know all men by these presents, that we, Angus J. McDonald, principal; James Barrett, John Madden, Patrick Kalahar, Thomas Wall, Thomas Kennedy and John Murphy, of Saginaw and Midland counties, Michigan, are held and firmly bound unto International Farmers’ Union Local Number 12, of Merrill, Michigan, in the sum of three thousand dollars, lawful money of the United States of America to be paid to the said International Farmers’ Union, Local Number 12, of Merrill, Michigan, or to their certain attorneys, heirs, executors, administrators or assigns, to which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators, and each and every of them firmly by these presents.
“Sealed with our seals, dated the 21st day of May, 1902.
“The condition of this obligation is such that the said Angus J. McDonald, as custodian of any and all funds of said association which shall in any manner come into his hands, and under his control at all times when called upon, pay out and expend the same in the manner provided by said association, and all proceeds from the same, and keep just and true account of the same at all times, and also that said Angus J. McDonald shall at all times do and perform all agreements and requirements entered into by virtue of a contract entered into with said International Farmers’ Union No. 12, Local, Merrill, Michigan, then this obligation to be void, otherwise to remain in full force.
“Andrew (Angus) J. McDonaldj [Seal.]
his
c “John X Madden. [Seal.]
mark
“James Barrett. [Seal.]
“Thomas M. Kennedy. [Seal.]
“Thomas Wall. [Seal.]
“John A. Murphy. [Seal.]
“Patrick Kalahar. [Seal.]
“Signed, sealed and delivered in presence of J. O. Cunningham.”

On May 24, 1902, the parties entered into the following contract:

“Merrill, Mich., May 24, 1902.
“It is hereby contracted and agreed between the I. F. U. of Local No. 12, of the village of Merrill, and county of Saginaw, and State of Michigan, party of the first part, that they shall proceed to open up a general merchandise store in the following described manner, to wit: That the said I. F. U. has hereby agreed to furnish storeroom to the amount of what room there is in the lower floor of the building situated on the south half of lot two (2), block twenty (20), of the said village of Merrill, to be used by the said Angus McDonald for general merchandise business, free of charge, only that the said Angus J. McDonald make good any damage done by him or help, ¡and when leaving said building yield and deliver up the same in like condition as when taken. Reasonable use and wear thereof and damage by the elements excepted. The terms and conditions of said agreement between the said I. F. U. and the said Angus J. McDonald is such that it will continue just so long as the said Angus J. McDonald shall do that what is just and honorable. And does what he can towards the building up of the said I. F. U. Furthermore the said I. F. U. agrees to put in the money to buy the goods and allow the said Angus J. McDonald 10 per cent, on the dollar for what he sells, said commission fee, subject to change in three months, according to the discretion of the board of directors belonging to and contracting the business of the said I. F. U. Furthermore it is agreed that the selling of said goods shall differ in accordance to standing of members, those members who put in the money in the general fund of the union shall be entitled to buy the goods in said store at the wholesale price with the ten per cent, commission fee allowed, and those who do not put in the money towards the general fund, shall be entitled to buy the goods according to their standing. This contract is accepted as far as written and is left open to be acted on as the committee may see fit.
“It is further agreed that Angus J. McDonald, anything that was over one cent was to go to the five cents, or over six was to go to the ten cent mark; that we raise seven hundred dollars for to buy boots and shoes and dry goods for which he shall charge the I. F. U. 20 per cent, and outsiders 25 per cent. The butter and eggs all farm produce was to be handled for 5 per cent.; that sixty days from the time that A. J. McDonald notify the board of directors that he wants to quit business that the board does want the same privilege.
“Angus J. McDonald, “James Barrett,
“John A. Murphy,
“John Shannon, “Thomas Wall,
“Board of Directors for the Farmers’ Union Store.”

And on the same day at a meeting of Union No. 12, the foregoing bond and contract were considered, accepted by the members, and the record of this meeting shows that the treasurer of Union No. 12 then turned over to the committee which was selected to control and superintend this mercantile venture, and was called a “Board of Directors,” the money in his hands to the amount of $430, from moneys paid to him by the members of the Union who entered into this enterprise, and which committee gave the money to complainant. The records kept at the time also show a list of the members who had given a note or paid cash. This list gives the names of 66 members, including complainant, who each had paid either in cash or a note the sum of $10, to be used to carry on said business.

The complainant, under the direction and supervision of the board of directors, at once entered upon the active conduct of this business, and a small stock of groceries to the amount of about $600 was bought. The capital at the time was $400 in cash, and the notes of members, amounting altogether to about $600. This was all furnished by the members whose names appear on the list of full paid members. About two months afterwards it was decided, according to the terms of the contract between the parties, to raise $700 to buy boots, shoes, and dry goods, which was done by notes payable to complainant, signed by a member of the board and indorsed by several of the defendants, including some members of the board. These notes were discounted, and the goods were purchased at Grand Rapids, all under the direction of and with the consent of the board of directors. This business was called “The Farmers’ Union Store,” and continued under that name to be managed by complainant until in 1907, when, at a meeting of the members, it was determined to close it out and sell the balance of the merchandise at auction. This was done, and the receipts applied upon the indebtedness. During all of this time this board of directors was active in looking after the interest of the business and making reports of its doings to the union. The business was not successful, and a considerable amount of indebtedness accrued. The notes discounted at the bank were renewed from time to time during the continuance of the business. Some of the creditors were pressing for payment, and a mortgage was given upon the stock. It is the claim of complainant that from time to time he advanced from his own money small amounts for the purpose of paying debts and expenses incurred in this business, in all to the amount of $1,600, none of which has been paid to him. It also appears that some of the board of directors indorsed the notes to pay the indebtedness of the enterprise, which were discounted at the Merrill Bank and renewed. Some of these notes were finally paid, either out of the receipts of the business or by the indorsers.

The records kept by the union of its meetings and transactions also contain the acts and doings of the members relative to this mercantile business, including the resolution, bond, and contract, above quoted, and the transactions of the meetings of this board of directors, ana the reports of its doings to the meetings of the members. The record of the case is quite voluminous. It would be of no benefit to give a digest of it. There is no dispute but that the records made at the time introduced in evidence contained a truthful statement of the facts as they occurred.

The contention on the part of complainant and appellant is that, by entering into this venture or association to carry on this business with its members and the public in the manner as herein stated, each of the members individually, and all collectively, incurred a liability for all of the indebtedness of the enterprise; that the evidence in the case shows it was not the individual undertaking of the complainant, but that he acted as manager, under the direction and control of a committee called the “board of directors,” appointed by the members who entered into this undertaking, and he seeks in this litigation an accounting of the affairs of this business and a determination of the entire amount of its indebtedness, including the amount due him for services and for money paid by him as above stated.

The main proposition, as to whether this was the enterprise of the complainant or the voluntary undertaking of all of these parties in a common venture depends largely upon the construction of the undisputed writings and agreements entered into, as shown by the record, which are given in this opinion.

The first step taken by the parties to this suit looking toward entering upon this venture appears in the resolution first quoted, which is taken from the records of the International Farmers’ Union of Merrill, Mich., No. 12, made at the time when all these parties were present. This’record is perhaps crude and inartificial, but by its terms it is clear that the intention was to “start a store;” that the building should be rented by the union, and that the members should put up the money to buy the goods; “each member to put up $10 in money, or a good legal note, or as much as each member may see fit,” and “the money is given to go into the general fund of the I. F. U.;” also that the member “who is to receive the money and run the store” should give a bond to the International Farmers’ Union “in the sum of three thousand dollars for the present,” subject to be increased as the committee of the International Farmers’ Union may see fit. It is clearly a declaration by this body of men, individually and collectively, to establish a mercantile enterprise, and required that whoever was chosen as manager should give a bond to account for his stewardship; it is also clear that the committee; who were to manage this enterprise, called,the “Board of Directors,” had already been appointed. Following this, a few days later, the bond and contract with complainant were entered into and accepted by the members who went into this enterprise, consisting at least of 66 members, including the complainant; that the treasurer of the union thereupon turned over funds in his hands to complainant. A condition of the bond shows that complainant as “custodian of any and all funds of the association which shall in any manner come into his hands,” was to pay out and expend the same in the manner provided by said association and keep true account of the same, and to do and perform all the agreements and requirements entered into by virtue of the contract with this Farmers’ Union No. 12, which was named as obligee in the bond.

The initial agreement in the contract entered into between the parties and under which they procéeded for the entire term during which this business was carried on is, on the part of this local union as of the first part, “that they shall proceed to open up a general merchandise store, in the following described manner.” A further agreement is as follows:

“Furthermore, the said I. F. U. agrees to put in the money to buy the goods and allow the said Angus J. McDonald ten per cent, on the dollar for what he sells, said commission fee, subject to change in three months, according to the discretion of the board of directors belonging to and contracting the business of said I. F. U.”

And, further, “that we raise $700 for to buy boots and shoes and dry goods.” Also a provision for notice of sixty days in case either party desired to withdraw from the contract. The contract was executed by complainant and four of the defendants, who signed as “Board of Directors for the Farmers’ Union Store.” The only reasonable construction of this resolution, bond, and contract is that this was a joint enterprise of these members for the purpose of entering into a mercantile business, and that they employed complainant as manager of this business for them, under the direction and control of the board of directors selected by them. The testimony of the chairman and three other members of this board of directors is in entire accord with this construction.

The testimony relied upon by the defendants in support of their contention that no partnership relations existed between the members is to the effect that nothing was said at the time they undertook to establish this store as to any liability which they would assume by reason of their connection with its operations. There is no denial but that they were parties to the undertaking, and that it was intended to establish this store. The crucial question in the case is a question of law and not of fact; that is to say, whether the acts and doings of these defendants in instituting this mercantile enterprise and carrying on the same as herein stated created a liability against them, and each of them, to pay the indebtedness which accrued in the conduct of this business the same as in a partnership.

This was a voluntary association to carry on a mercantile business with its members and the public generally for profit. They agreed to sell to members at 10 per cent, above cost, and to sell to the public at 25 per cent, above cost. It was understood that for butter and eggs the store would pay cash at going market rates. It was expected that profits would be realized from the business to go into the general fund. The testimony of defendants themselves shows that they did buy goods from the store cheaper than elsewhere, and the record shows that most of them sold butter and eggs to the store for cash at prices which were profitable.

It is claimed on the part of defendants that because of the fact that goods were bought by complainant in .his own name, and also that a chattel mortgage was given by him on the stock in the store to creditors, and that he borrowed money in his own name, this was his individual enterprise. As to the chattel mortgage, the record shows that the chairman of the board of directors of the store knew of this at the time, and advised McDonald to give the mortgage. The fact that he borrowed money with which to pay indebtedness was well known to the board of directors. The money paid by the members and given to complainant for the purpose of buying goods was used by him only for that purpose, and, when making the first purchase, he stated to the seller that it was a stock for this farmers’ union store. It was at the seller’s instance that the account was made out in his name. This stock all went into the store, and was examined and approved by the board of directors, as were all goods which came into this store during the time it was being conducted, and the record shows reports of the board of directors from time to time to the members at their meeting as to stock purchased and other matters incident to the business. The directors testified that complainant always followed the instructions of the board, and always reported what he had done in the conduct of the business. These transactions having been approved and ratified by this association, through its committee, did not in any manner contradict or disprove the overwhelming evidence in the case that this was a voluntary association of these defendants. The law is well settled that the liability of the members of voluntary associations for commercial purposes, and operated for pecuniary profit, is the same as that of partners, and such associations in that respect are considered as partnerships. 25 Am. & Eng. Enc. Law (2d Ed.), pp. 1130, 1131 and cases cited.

This indebtedness incurred by complainant in purchasing goods and paying therefor under his contract in the conduct of the business cannot be distinguished from the indebtedness to any other creditor. The individual members, therefore, are liable for all the indebtedness of such association which may arise in the prosecution of the business engaged in, and this is so whether or not in entering the undertaking the members contemplated a partnership, and each supposed all he risked in the enterprise was the amount paid in by him. Farnum v. Patch, 60 N. H. 294 (49 Am. Rep. 313); Hodgson v. Baldwin, 65 Ill. 532; 25 Am. & Eng. Enc. Law (2d Ed.), pp. 1136, 1137, and cases cited; Carter v. McClure, 98 Tenn. 109 (28 S. W. 585, 36 L. R. A. 282, 60 Am. St. Rep. 842), and cases cited.

In this last case the court said:

“It is, no doubt, true that the defendants did not contemplate a partnership, and each supposed that he was simply taking a share in the joint stock enterprise, in which all he risked was the small sum paid for such share, yet it is for the law to determine, on the facts already given, whether a partnership was created, with all its attending liabilities.”

It follows that the complainant should be entitled to a decree in his favor, according to the prayer of the bill. The decree of the circuit court should be reversed, and the case remanded to the circuit court for the purpose of an accounting, to ascertain and determine the amount due and owing to complainant from defendants for services rendered and for money furnished by him in the conduct of the business, upon which a decree may be entered in his favor against "defendants, with costs of both courts, on such accounting to be taxed.

Kuhn, J., did not sit.


text:
    LOOMIS v. LOOMIS.
    1. Witnesses — Matters Equally Within Knowledge of Deceased.
    Testimony of one of the complainants in a suit to set aside a deed to one son, executed hy the mother of the parties, to take effect after her death, was incompetent to prove that decedent had indicated by her declarations or statements while she was alive that she intended to keep control of the conveyance, under 3 Comp. Laws, § 10212,'* as amended (5 How. Stat. [2d Ed.] § 12856), excluding testimony of a party as to matters equally within the knowledge of decedent.
    2. Escrows — Delivery of Deed — Control.
    By depositing a deed with a person who is not a party to it, to be held until the grantor’s death and then delivered to the grantee, no dominion or control being reserved in the grantor, a valid delivery is thereby accomplished and an immediate estate vests subject to a life estate in the grantor.

      3. Same — Evidence—Agency.
    The fact that the depositary testified that he would probably have surrendered the deed to the grantor if she had called for it in her lifetime, did not change the effect of the transaction, because the evidence was merely a conclusion of the witness.
    Appeal from Tuscola; Beach, J.
    Submitted November 17, 1913.
    (Docket No. 136.)
    Decided December 20, 1913.
    Bill by Francis W. Loomis and Josephine L. Reed against Charles W. Loomis for the cancellation of a deed. From a decree for defendant, complainants appeal.
    Affirmed.

      Cyrenius P. Black (J. H. Westover, of counsel), for complainants.

      Quinn, Wixson & Quinn (Hall, De Foe & Hall, of counsel), for defendant.

       On the question of delivery of deed to third person or record by grantor, as a delivery to the grantee, see notes in 9 L. R. A. (N. S.) 224 and 38 L. R. A. (N. S.) 941.

   Brooke, J.

The bill of complaint in this cause is filed to set aside a deed of a farm of 160 acres, dated October 31, 1904, made by Arvilla Loomis, grantor, to her son Charles L. Loomis, grantee. The deed in question reserved a life estate in the grantor and was drawn by one Charles W. Stacey, an employee or officer of a local bank. The grantor instructed the scrivener, Stacey, to retain possession of the deed, “and that if anything occurred to her, happened to her, to deliver this deed to Charles Loomis.” No further instructions were given by the grantor, and Stacey kept the deed until after her death, which occurred November 5, 1910, when he delivered it to Charles L. Loomis, by sending it for registration at Loomis’ request.

The bill of complaint sets out three reasons why che deed should be held to be void:' Want of consideration, fraud and undue influence, and nondelivery. Upon the hearing the first two grounds were abandoned. The last only, therefore, remains for consideration.

The complainants are a son and daughter of Arvilla Loomis. They seem to have left home when quite young, while defendant remained with his father and mother and worked for and with them from the time he was 12 years of age until they died, a period of 40 years. The father lived to be 92 years old, and for several years prior to the date of his death was an invalid. He had been unable to perform manual labor of any account for a great many years. During all this period defendant (and his two sons, as they grew into manhood) worked and improved the farm and added to its acreage; the title being taken in the name of the .mother, Arvilla. The equities of the case lie very strongly upon the side .of the defendant. These, however, are not considered. In our opinion defendant’s position is impregnable from a strictly legal point of view. The testimony of the scrivener is supported by the evidence of several other disinterested witnesses, who testified that Arvilla Loomis told them that she had made a deed of the farm to her son Charles, and had left it with Stacey to be delivered at her death.

The only testimony in the record, which in any way tends to contradict that offered by defendant, was given by one of the complainants, who testified to conversations had with his mother from which it might be inferred that she intended to retain control over the deed during her life. This testimony was received over the objection of defendant and was incompetent. Beadle v. Anderson, 158 Mich. 483 (123 N. W. 8), and cases there cited.

This court has consistently held that, where a grantor makes a deed to another and deposits the deed with a third party to be held by such third party until the grantor’s death and to be then delivered to the grantee named in the deed, the grantor reserving no dominion or control over the deed during his lifetime, a valid delivery is thereby made, and an immediate estate is vested in the grantee subject to a life estate in the grantor. Hosley v. Holmes, 27 Mich. 416; Wallace v. Harris, 32 Mich. 380; Latham v. Udell, 38 Mich. 238; Thatcher v. St. Andrew’s Church, 37 Mich. 264; Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291); Brown v. Stutson, 100 Mich. 574 (59 N. W. 238, 43 Am. St. Rep. 462); Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201); Meech v. Wilder, 130 Mich. 29 (89 N. W. 556); Young v. Young, 157 Mich. 80 (121 N. W. 264); Hoagland v. Beckley, 158 Mich. 565 (123 N. W. 12); Cooper v. Cooper, 162 Mich. 304 (127 N. W. 266); Wagner v. Kirchberg, 166 Mich. 411 (131 N. W. 1114).

We are of opinion that the evidence clearly establishes the fact that Arvilla Loomis deposited the deed in question with Stacey with instructions to deliver it to the grantee at her death, and that she retained no control over it thereafter. The fact that Stacey testified that, if she had called for it during her lifetime, he would probably have surrendered it to her, has no bearing upon the question. That conclusion of the witness was based upon nothing that was said by her at the time the deposit was made. From what she said at that time the witness understood (and, we believe, rightly understood) that she was making a final and irrevocable disposition of the property in the deed.

The decree is affirmed, with costs.

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