text:
    LAUDER v. TOWNSHIP OF ST. CLAIR.
    1. Personal Injuries — Bicycle Rider — Accident at Highway Bridge — Absence of Side Rail — Duty oe Township — Negligence and Contributory Negligence — Questions eor Jury.
    Plaintiff, a young woman, when riding a bicycle after dark, with a lighted lamp, southward along an.unfamiliar highway, approached a bridge spanning a ravine. The bridge was 16 feet wide, and the roadbed practically level therewith, but the center of the bridge was placed so far west of the center of the traveled part of the highway that the east wagon track was but 18 inches from the east edge of the bridge, which on that side had no railing to protect it, and was obscured by the shadow of the trees. Warned by her companions, who preceded her, to avoid some cinders spread in front of the bridge, she inclined her wheel to the left of the east wagon track as she passed onto the bridge, of the existence of which she was not before aware, and rode off, and was injured. Held, that the questions of the township’s negligence in failing to maintain a railing, and of plaintiff’s contributory negligence, were properly left to the jury.
    2. Appeal — Argument oe Counsel — Exceptions—Assignments oe Erro'r.
    Assignments of error based on exceptions taken to language used in the closing argument of counsel, noted by the reporter but not called to the attention of the court, will not be considered.
    Error to St. Clair; Vance, J.
    Submitted June 8,1900.
    Decided January 29, 1901.

      Case by Agnes Lauder against the township of St. Clair for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Lincoln Avery (Seward L. Merriam, of counsel), for appellant.

      Atkinson, Wolcott & Moore, for appellee.
   Moore, J.

This case was tried by a jury, who rendered a verdict in favor of the plaintiff. It is brought here by writ of error. The plaintiff is a young woman about 22 years old. It is her claim, and she offered testimony tending to support it, substantially as follows: One evening in August, 1896, about 7 o’clock, she left Port Huron with three companions to ride to St. Clair upon their bicycles, intending to return to Port Huron by boat. It was the first time the plaintiff had been over the road. She had ridden a wheel long enough to be a good rider. The highway runs nearly parallel with the St. Clair river, and is nearly a north and south highway. The party had proceeded about 10 miles, when they came to a bridge spanning a ravine 13 feet wide and 15 feet deep. The planks of the bridge were 16 feet long. At a distance variously estimated by the witnesses from 35 to 50 feet before reaching the bridge, the highway turns slightly to the west. It then proceeds in a straight course about the same distance south of the bridge, when it makes another slight turn to the Avest. The roadbed at each side of the bridge was practically level with the planks upon the bridge. The plaintiff had a lighted lamp upon her wheel. Before the party arrived at the bridge, the moon began to shine quite brightly. There were trees growing near the bridge, which threw their shadows over the east end of it. The center of the bridge was placed so far west of the center of the traveled portion of the highway that the east wagon track was but 18 inches from the east end of the bridge. There Avas a rail at the west end of the bridge. There had been one at the east end, but it had been gone something more than a year, and its absence was- known to the highway officers. For the purpose of making some repairs in the highway, some coal cinders had recently been put upon each side of the bridge. One young man and a young woman preceded the plaintiff. When the young woman got to the cinders, sbe called out to the plaintiff to look out for them. The plaintiff testified that she was riding slowly, just inside the east wagon track, with her wheel under control, and, to avoid the cinders, she turned into the east wagon track, when at once she came upon the bridge (which was the first time she knew a bridge was there), and rode off the end of the bridge into the ravine below, receiving injuries from which she will never recover.

It is plaintiff’s claim that the absence of a rail on the end of the bridge was the proximate cause of her injury, and that the defendant was negligent in not having a railing upon the bridge.

The counsel for defendant requested the trial judge to direct a verdict in favor of the township for the following reasons:

1. Municipalities are not liable in damages for injuries sustained by persons traveling on bicycles.
2. Under all the evidence, plaintiff was guilty of contributory negligence precluding a recovery.
3. Under all the evidence, the highway, including the bridge or culvert, at the place of the accident, was reasonably safe and fit for bicycle travel, conducted with reasonable care and caution.

The court declined to direct a verdict, and also declined to give the written requests preferred by counsel, but gave a lengthy general chárge, the part of which that is material here being as follows:

“The statutes of this State make it the duty of townships to keep their bridges and highways in a condition reasonably safe and fit for public travel at night as well as in the daytime. At the time that statute was passed, bicycles were not in general use, and it has lately been held by our Supreme Court that the legislature at that time did not contemplate to impose upon the townships the duty of keeping their bridges and highways in a condition reasonably safe and fit for bicycle travel; that the only duty imposed upon the township was that they should keep the bridges and highways in a condition reasonably safe and fit for travel by wagons, carriages, carts, pedestrians, horseback riders, and such as was the common way of traveling at that time; and that when a township keeps its bridges and highways in a condition reasonably safe and fit for travel by those means, that they have performed all the duties to travelers that the law requires, and,, if a traveler is then injured on the highway, he. has no remedy as against the township.
‘ ‘ There are a great many things in this case that are practically undisputed. It is undisputed that it was a moonlight night; it is undisputed that this bridge from east to west across the highway was 16 feet wide; it is undisputed that the bridge lengthways with the road, as the travel passed over it, was about 12 feet wide; it is undisputed that there was a railing on the west side of the bridge, and that there was no railing on the east side; and it is undisputed that this ravine was about 15.feet deep.
“Now, it is the law in cases of this kind that a person traveling over the highway, in whatever kind of a vehicle he may choose to ride in, must exerciso reasonable care, caution, and prudence, and that if he fails to do so, and is injured in consequence, he has no remedy against the township, even though the highway may be defective. It must be borne in mind always that a township is not liable simply because the road may be defective or not in good condition to travel on; they are only liable when that defect is the direct cause of this injury, and the party who is injured is without negligence on his part. The rule is settled beyond all question in this State that a person cannot recover for an injury upon the highway if they themselves have done anything which contributes to that injury; in other words, if they are guilty of contributory negligence. It therefore becomes an important fact for you to determine in the outset whether this bridge on the night in question was reasonably safe and fit for travel by wagons, carriages, carts, pedestrians, horseback riders, and such as were traveling at the time the statute was passed, in 1887. They were not required to keep it reasonably safe and fit for bicycle travel. Now, if you should be of the opinion, from all the evidence, that that bridge was reasonably safe and fit for public travel, without the railing on the east side, just as it was that night, then your duty would be to render a verdict for the defendant. There could be no liability on the part of the township if they furnished a bridge that was reasonably safe and fit for travel. If, on the other hand, you should be of the opinion that that bridge was not reasonably safe and fit for travel as I have defined it, then it becomes necessary for you to determine whether the defect, and the only defect, that is complained of, the want of railing on the east side, was the direct cause of the plaintiff’s injury. In other words, was that the proximate cause which brought about her injury f
“In determining that matter, you must take into consideration all the testimony that throws any light upon the surrounding circumstances. If, for instance, the plaintiff was riding on her wheel that night, and undertook to ride through the cinders that were at the north side of the bridge, and they caused the speed of her wheel to slacken, and she lost control of her wheel, and, by reason of the loss of control of her wheel, she lost her balance and fell over the bridge, it may be that the railing would have saved her, but the want of a railing would not be the proximate cause of the injury; it would be the cinders that stopped her progress, and overbalanced her; and under these circumstances the township would not be liable, because the cinders, it is conceded on both sides, was not a defect in that highway, and were things that were properly put there to repair it. That will illustrate to you what I mean by the proximate cause of the injury.
“Now, if you should be of the opinion that the want of the railing was the proximate cause of her injury, and that the bridge was not reasonably safe and fit for public travel without that railing, then it is necessary for you to determine whether she was guilty of any contributory negligence. And by contributory negligence I mean simply this: Whether she did something there which aided and assisted in bringing about that accident. Negligence is defined in this way in the law: It is the doing of something which an ordinarily prudent, careful, and cautious person would not do under like circumstances, or the failing to do something which an ordinarily prudent, careful, and cautious person would have done under like circumstances. In determining that question, you must take into consideration the width of that bridge; the con. dition of the atmosphere, and the extent of the moonlight, on that night; the surrounding circumstances as they appeared to this girl as she was riding along there; the shadows, if any, that were cast by the trees upon the bridge; the opportunity that she had to pass in the moonlight safely over the bridge; the fact that, instead of doing that, she passed into the shadow, where she claims she could not see, and attempted to cross it there; and all the other surrounding circumstances, — and from those determine whether or not she was guilty of contributory negligence. In other words, whether she did anything there that a careful, prudent, and cautious person would not have done, or did she omit to do anything that a careful, prudent, and cautious person would have done? If she did, she is guilty of contributory negligence, and she cannot recover in this action.
‘ ‘ There has been some considerable discussion here about the fact that this young lady was riding a bicycle on that night. While the statute does not require the township to keep its highways in a condition reasonably safe and fit for bicycle travel, there is nothing that forbids a person riding a bicycle on the public highway,- and a person is not outlawed because they are riding a bicycle upon the public ways. It is a means of travel which a person has a right to use, and when they are using it they have no greater rights than if they were using a buggy, carriage, or wagon, or on foot or on horseback. You have a right to take into consideration, in determining whether the accident was caused wholly by the want of the railing or by some other cause, — you have a right, I say, to take into consideration whether this girl was in the exercise of reasonable care and caution in the use of the bicycle on which she attempted to ride across that bridge. Now, it may be, and I think sometimes undoubtedly it ’would be, true, that a bridge might be safe for foot passengers or for bicycles, and not be safe for a team to go across; and if you find that this bridge, at the time she attempted to cross it, was reasonably safe and fit for travel by bicyclists who were in the exercise of reasonable cafe and caution, then it would be your duty to render a verdict for the defendant. * * *
The burden of proof is on the plaintiff throughout the case. She must satisfy you, in the first place, that that bridge was not reasonably safe and fit for public travel on the night in question, in the manner I have defined it. She must satisfy you that the defect or want of railing on the east side of that bridge was the proximate cause of her injury. She must satisfy you, by a fair preponderance of evidence, that she was without negligence that in any way contributed to that injury. She must satisfy you that these injuries actually exist, and that they are of as great extent as she claims them; and, before you would be justified in finding that any of the injuries were of a permanent nature, she must satisfy you that they are of permanent character. The burden, in other words, is on h.er throughout the entire case. Unless she satisfies you of these things by a fair preponderance of evidence, it would be your duty to find a verdict for defendant.”

The counsel discuss at length, and with much ability, the questions which are covered, in a general way, by the reasons which they gave the judge when they requested a "verdict should be directed in favor of defendant. "We do not deem it necessary to discuss in detail the various propositions urged by counsel. We do not think* it can be said, as a matter of law, that it either was or was not the duty pf the township to maintain a rail upon the east side of this bridge, if it would avoid liability for such an accident as occurred to the plaintiff. Under the proofs which appear in the record, we think the question became one for the jury, under the following authorities: Malloy v. Township of Walker, 77 Mich. 448 (43 N. W. 1012, 6 L. R. A. 695); Gage v. Railroad Co., 105 Mich. 335 (63 N. W. 318); Shaw v. Township of Saline, 113 Mich. 342 (71 N. W. 642); Perkins v. Township of Delaware, 113 Mich. 377 (71 N. W. 643); Bratfisch v. Township of Mason, 120 Mich. 323 (79 N. W. 576).

It is claimed that plaintiff was guilty of contributory negligence because she'turned to the left, into the shadowy portion of the bridge, instead of turning to the right, where she would have been entirely safe; counsel citing, in support of this proposition, Bratfisch v. Township of Mason, supra; Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014); Church v. Village of Howard City, 111 Mich. 298 (69 N. W. 651, 66 Am. St. Rep. 396); and other cases. We do not think these cases are controlling in this case. In each of them the plaintiff knew of the danger before incurring the risk. In the case at bar the plaintiff did not know of the absence of the railing. She did not know that the bridge was so placed with reference to the wrought portion of the road as to bring the east wheel track near the end of the bridge. We think it cannot be said, as a matter of law, that when, to avoid the unpacked cinders, the plaintiff, intending to turn into the east wheel track, turned a little too far, she was guilty of contributory negligence, but think this, too, was a question for the jury, under proper instructions.

Error is assigned upon the argument of counsel. The argument was near the border line. The record does not disclose that the attention of the judge was challenged to this argument in such a way as to call for any action upon his part. It is stated in the brief of counsel that the attention of the court was not called to the argument, but the reporter noted an exception without the court knowing it, and that error cannot now be assigned. If the statement in the brief is true, the conclusion is also true. Bedford v. Penney, 65 Mich. 667 (32 N. W. 888). But, conceding the record is in a condition to raise the question, we are not prepared to say the case should be reversed because of the argument.

We do not deem it necessary to discuss any other of the questions raised.

Judgment is affirmed.

Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: Hooker, J. Grant, J.

license: Public Domain

text:
    UNION TRUST CO. v. WAYNE PROBATE JUDGE.
    1. Taxation — Property—Ad Valorem Taxes — Uniformity.
    A tax on property at a valuation fixed by assessors must conform to the rule of uniformity, since it cannot be considered a specific tax.
    2. Same — Inheritance Tax — Privilege.
    A succession tax is a tax not on property, but on the privilege of inheritance.
    3. Same — Basis of Assessment.
    Succession taxes may be based on the value of the property which is the subject of.the privilege.
    4. Same — Due Process of Law — Notice of Assessment.
    An act creating a succession tax, to be based on ¿e valuation of the property, is not unconstitutional, as taking private property without due process of law, in not providing for personal notice and an opportunity to resist the assessment, since it does not take the property of the legatee, but merely imposes a condition on his right to acquire it.
    5. Same — Collection — Probate Court — Distribution of Powers.
    Act No. 188, Pub. Acts 1899, providing for a tax on inheritances, is not unconstitutional, as conferring powers not judicial upon the probate court; the imposition and collection of the tax, as prescribed in the act, being necessarily incident to the settlement of the estate.
    6. Same — Statutes—Reference to Other Laws.
    The fact that the inheritance tax law (Act No. 188, Pub. Acts 1899) provides (section 1) that the tax shall be imposed upon persons or corporations “not exempt by law from taxation on real or personal property,” and (section 11) that the value of estates dependent on any life shall be determined by the mortality rule employed by insurance commissioners in ascertaining the value of life policies, does not render it obnoxious to article 14, § 14, of the Constitution, requiring every tax law to state distinctly the tax and the object to which it is to be applied, without referring to any other law to fix such tax or object.

      7. Same — Provisions for Collection — Sufficiency.
    The law clearly prescribes the method of enforcing collection of the tax, and the fact that there is no established practice of the probate court in like cases for the service of citations out of that court, and the hearing thereon, and the enforcement of the order of the court (section 14), does not affect the validity of the act.
    8. Same — Specific Taxes. — Application — Unconstitutional Provision.
    Under Const, art. 14, § 1, requiring all specific taxes to be applied in paying the interest on the primary school fund, etc., so much of Act No. 188, Pub. Acts 1899, as provides for the payment of fees, expenses, and cost of possible litigation in collection out of the tax collected, is unconstitutional.
    9. Same — Validity in Part.
    That the provision for the payment of such fees, etc., out of the fund is unconstitutional, will not affect the validity of the remainder of the act.
    10. Same — Ascertainment—Progressive Rate — Uniformity.
    That the progressive rate is adopted in ascertaining the amount of the tax does not render the act invalid on the ground of nonuniformity.
    Application by the Union Trust Company, Mary E. Smith, and James C. McCaul, executors of the last will and testament of Martin S. Smith, deceased, for a writ of prohibition to restrain Edgar O. Durfee, probate judge of Wayne county, from enforcing the provisions of the inheritance tax law.
    Submitted June 12, 1900.
    Writ denied January 29, 1901.

      Moore & Goff and Russel & Campbell, for relators.

      Horace M. Oren, Attorney General, and Roger I. Wyltes, for respondent.
   Hooker, J.

The legislature has made two attempts to impose a tax upon legacies and inheritances. The first of its enactments was passed in 1893, and was held unconstitutional. See Chambe v. Wayne Probate Judge, 100 Mich. 112 (58 N. W. 661). Upon the argument of that case it was conceded by the attorney general that, if the act imposed a tax upon property, it violated section 11 of article 14 of our Constitution, which provides that “the legislature shall provide an uniform rule of taxation, except on property paying specific taxes;” but it was claimed that the tax prescribed was a specific tax, and therefore one within the exception of the section. The act provided (section 20) that:

“All taxes levied and collected under this act shall be paid into the treasury of the State for the use of the State, and shall be applicable to the expenses of the State government, and to such other purposes as the legislature shall by law direct.” Pub. Acts 1893, Act No. 205.

We held that, if it could be regarded a specific tax, it was in violation of section 1 of article 14 of the Constitution, requiring a different application of specific taxes than that prescribed; and it is perhaps a fair inference that it was the opinion of the court that, if it were not to be so regarded, it must be taken as a general tax upon property, void for want of uniformity. We may remark in passing that the interpretation given of this decision in Dos Passos on Inheritance Tax Law, p. 51, wherein it. is said that “in Michigan, however, a statute was held void for failure to distinctly state, the tax, and the object to which it was to be applied,” is erroneous. Instead of omitting to state the application to be made of the fund, tho law stated it with fatal accuracy. The author states the decision correctly on page 45. The court had previously held that an omission to state the object of a special tax was unimportant, as it would be presumed that it was the intention that the fund should be applied in conformity to the requirements of the Constitution. See Walcott v. People, 17 Mich. 68.

In 1899 the legislature passed the second act imposing a tax upon legacies and inheritances. Act No. 188, Pub. Acts 1899. This act is now before us on an application for a writ of prohibition to restrain the probate court for the county of Wayne from applying and enforcing its provisions in the matter of an estate pending therein.

As before, the attorney general seems to concede that, if this is a tax upon property, it is in violation of section 11 of article 14, unless it can be called a specific tax upon property, and therefore within its exception; a concession (if we are right in understanding it to be made) which is, in our opinion, justified by the Case of Chambe and the later case of Pingree v. Auditor General, 120 Mich, 95 (78 N. W. 1025). The latter case has settled the rule that an ad valorem tax upon property must conform to the uniform rule for the general taxation of property, and that such is not a specific tax, which will be found unequivocally stated in each of the opinions filed in that case. The chief justice (Grant) said:

‘ ‘ A tax based upon the assessed cash value of the property assessed is not a specific tax. It is an ad valorem tax, and any enactment by a legislature that it is a specific tax does not make it so; otherwise, the legislature could determine what was meant by the use of terms in the Constitution which have a well-defined meaning. The fact that, in imposing a specific tax, the value of the thing taxed is taken into consideration in determining the amount of it, does not change the nature of the tax.”

Mr. Justice Montgomery’s opinion begins with the statement:

“Ijhinfe it cannot be maintained that a tax on property based on assessment is a specific tax. The definition of ‘specific tax’ stated by Judge Cooley is a tax which ‘imposes a specific sum by the head or number, or by some standard of weight or measurement, and which requires no assessment beyond a listing and classification of the subjects to be taxed.’ ”

And it quotes approvingly the language of the Massachusetts court in Com. v. Hamilton Manfg. Co., 12 Allen, 302, that:

‘“The statute does not require that there should be any return made of the personal property held by corporations to the board of commissioners who are to fix the amount on which the assessment is to be reckoned; nor is’ there any valuation or estimate of such property to be made in order to arrive at the amount of the excise or duty.’ In the same opinion the court say: ‘It certainly cannot be contended that the legislature can legitimately impose a tax on property in the name or under the guise of levying an excise or duty. Such legislation would be a palpable evasion of a distinct and clearly-defined constitutional restriction, and would substitute an unequal and arbitrary system of taxation upon property for one which was intended by the constitution to be equal and proportional.’ In no case to which my attention has been calledL has a tax imposed on the property of a corporation at a valuation fixed by assessors been treated as a tax on a franchise, as distinguished from a tax on property.”

This reduces the most prominent point in the case to the question whether or not this law imposes an ad valorem tax on property. If it does, it is not a specific tax, and therefore not within the exception of section 11. Counsel for the relators contend that this tax is such a tax. Kespondent’s contention is that it is a tax upon the transfer of property, and is basen upon the proposition that inheritance is not a natural right, but a creature of the statute and the bounty of the public. The conclusion that this statute imposes an ad valorem tax upon property can only be avoided by saying that it is not a tax upon the property, and that, therefore, the ad valorem feature, which, so far as assessment upon the value is concerned, is certainly present, is wanting, because it is not an assessment upon the value of the property taxed. In short, the claim of the respondent is that this is a tax upon a privilege, viz., the privilege of succession, and that there is a legal distinction between a tax upon the property itself, assessed upon the basis of its value, and a tax upon this privilege, assessed upon the basis of its value, which is measured by the value of that which is the subject of the privilege, viz., the property. Unless this is a distinction without a substantial difference, the respondent is right.

The power of the State to tax civil rights as privileges is undoubted. It extends so far as to cover occupations and sales. Every laborer or farmer, merchant, mechanic, or professional man may be taxed for the privilege of pursuing his calling (Cooley, Tax’n [ 2d Ed.], 570 et seq.; Webber v. Virginia, 103 U. S. 344; Shepperd v. Sumter County Com’rs, 59 Ga. 535 [27 Am. Rep. 394] ); and every merchant who sells goods, or farmer who raises and sells cattle, may be required to pay a tax for the privilege of selling (Cooley, Tax’n [2d Ed.], 31, 177, 578, 602). “ The legislature may raise revenues by capitation taxes, by special taxes upon carriages, horses, servants, dogs, franchises, and upon every species of property, and upon all kinds of business and trades.” People v. Mayor, etc., of Brooklyn, 4 N. Y. 419 (55 Am. Dec. 266); Stuart v. Palmer, 74 N. Y. 183 (30 Am. Rep. 289); People v. Equitable Trust Co., 96 N. Y. 387; President, etc., of Portland Bank v. Apthorp, 12 Mass. 252; In re McPherson, 104 N. Y. 306 (10 N. E. 685, 58 Am. Rep. 502); 1 Desty, Tax’n, 316. These are not taxes upon property, and have not usually been called such. They are held to be taxes upon privileges or civil rights held and exercised by sanction of law. Among civil rights sanctioned by law is the right of succession of property, and many cases hold that such a tax is a tax upon a privilege^ and not a tax upon property, and that such taxes are not usually prohibited by the provisions of State constitutions requiring uniformity of taxation, because taxes on property are alone referred to in such provisions. Among the cases cited by counsel are the following: Strode v. Com., 52 Pa. St. 181; Scholey v. Rew, 23 Wall. 331; Mager v. Grima, 8 How. 490; Tyson v. State, 28 Md. 587; Eyre v. Jacob, 14 Grat. 438 (73 Am. Dec. 367); U. S. v. Perkins, 163 U. S. 629 (16 Sup. Ct. 1073); State v. Alston, 94 Tenn. 674 (30 S. W. 750, 28 L. R. A. 178); State v. Ferris, 53 Ohio St. 314 (41 N. E. 579, 30 L. R. A. 218); State v. Hamlin, 86 Me. 495 (30 Atl. 76, 25 L. R. A. 632, 41 Am. St. Rep. 569); Maryland v. Dalrymple, 70 Md. 294 (17 Atl. 82, 3 L. R. A. 372); Knowlton v. Moore, 178 U. S. 41 (20 Sup. Ct. 750); Magoun v. Sav ings Bank, 170 U. S. 288 (18 Sup. Ct. 594); Walcott v. People, 17 Mich. 68, 83; Youngblood v. Sexton, 32 Mich. 413 (20 Am. Rep. 654). There are cases which hold a succession tax to be a tax upon property. See In re Cope’s Estate, 191 Pa. St. 1 ( 43 Atl. 79, 45 L. R. A. 316, 71 Am. St. Rep. 749); State v. Ferris, 53 Ohio St. 314 (41 N. E. 579, 30 L. R. A. 218); State v. Gorman, 40 Minn. 232 (41 N. W. 948, 2 L. R. A. 701); Curry v. Spencer, 61 N. H. 624 (60 Am. Rep. 337). And see State v. Switzler, 143 Mo. 287 (45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653). Many other cases might be cited in support of the proposition that it is a tax upon the privilege, rather than upon property, which will be found by consulting some of the cases above cited. We are of the opinion that the overwhelming weight of authority supports it.

It being assumed that it is not a tax upon property, it is said that neither is it a specific tax, because it has the ad valorem feature, in that its amount is not arbitrary, but is based on the value of the property which is the subject of the privilege; and it is said that it was held in the case of Pingree v. Auditor General, 120 Mich. 95 (78 N. W. 1025), that such element could not enter into a specific tax. In the case of Chambe v. Wayne Probate Judge, 100 Mich. 112 (58 N. W. 661), it was held that a succession tax was void because it was a specific tax, and that its application to purposes set forth in the act was contrary to the provisions of the Constitution. The case was disposed of on that ground. The Case of Pingree, subsequently decided, involved a tax upon property, and the discussion of the subject therein was limited to specific taxes upon property, although other specific taxes — such as taxes upon occupations and privileges — were recognized. Our attention is called to several provisions of this law which it is said fix upon it the nature of a property tax; but we think they should not be conclusive. The act, as a whole, indicates its character to be a succession or privilege tax, and not a tax upon property.

It is said that the act is void because it does not provide for a personal notice, and opportunity to resist the assessment, and that it therefore takes private property without due process of law. This loses sight of the fact that it is not taking the property of the legatee, but is imposing a condition upon the acquisition of property.

We are of the opinion that there is no force in the point that duties not judicial are imposed upon the judge of probate. These duties, as held in the cases of State v. Gloucester Circuit Judge, 50 N. J. Law, 585, 611 (15 Atl. 272, 1 L. R. A. 86), and In re McPherson, 104 N. Y. 306 (10 N. E. 685, 58 Am. Rep. 502), are necessarily incident to the settlement of estates, and may be performed by the judge of probate. See, also, Locke v. Wayne Circuit Judge, 62 Mich. 408 (28 N. W. 917).

It is said that reference is necessary to other acts to determine what persons and property are exempt from the operation of the act, and in what manner values in certain cases shall be determined. Thus, section 1 provides that the tax shall be imposed upon persons or corporations “not exempt by law from taxation on real or personal property.” Section 11 provides:

“The value of every future or contingent or limited estate, income, interest, or annuity dependent upon any life or lives in being shall be determined by the rule, method, and standard mortality and value employed by the commissioners of insurance in ascertaining the value of policies of life-insurance companies.”

Section 14 of article 14 of the Constitution provides:

“Every law which imposes, continues, or revives a tax shall distinctly state the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object.”

We think this is hypercritical. The tax is clearly defined, and no other law is referred to, either to fix the tax or its object. It is imposed upon everybody who is not exempt. If the provisions of the general law were incorporated, it would not any the more clearly state the tax. It would only make clear, without looking elsewhere, who should be relieved from its burden through exemption. The same may be said of the other section. It does not change the rule of taxation, or modify it, but only prescribes a rule of estimating values by the tables of mortality.

The practice prescribed to enforce collection seems clear enough, and the fact that there is “no established practice of the probate court in like cases made and provided for the service of citations out of that court, and the hearing •and determination thereon, and its enforcement, so far as the same may be applicable,” if it be a fact, should not make the law unconstitutional. If the administrator or executor performs the duty prescribed, as it is to be presumed he will, there will be no necessity for. such proceedings. If he does not, the method usual in such cases should doubtless prove efficacious.

The point is made that the act is unconstitutional because, if a specific tax, the money cannot be lawfully applied to the payment of fees, expenses, and cost of possible litigation. Our Constitution (article 14, § 1) provides that “all specific State taxes * * * shall be applied in paying the interest upon the primary school fund,” etc. The same section provides that “the legislature shall provide for an annual tax, sufficient, with other resources, to pay the estimated expenses of the State government, the interest of the State debt, and such deficiency as may occur in the resources.” We are of the opinion that such expenses cannot be taken from the gross sum collected, but that the entire tax collected must be paid to the prescribed fund, and such expenses ’must be otherwise provided for. This is in accord with the practice hitherto. This provision of the law must, therefore, be held unconstitutional; but we think that the remainder of the act is not so dependent upon it as to require us to hold the entire act void.

It is contended that this tax is not uniform; but, as we have seen, it need not be uniform with other methods of taxation, and there is as much authority to make exemption from this tax as any other. The progressive rate is objected to upon the ground of nonuniformity, and in this point there is more force, as will be seen from an examination of the dissenting opinion in the case of Magoun v. Savings Bank, 170 U. S. 301 (18 Sup. Ct. 601). The federal income tax was imposed upon this principle; and these provisions have been sustained in several of the States, among them New York and Illinois. The subject was exhaustively discussed by the majority opinion in the case already cited of Magoun v. Savings Bank, supra.

The writ will be denied, with costs.

Montgomery, C. J., Moore and Long, JJ., concurred with Hooker, J.

Grant, J.

(concurring). Counsel for relators do not appear to contend that an inheritance tax — i. e., a tax upon the privilege of inheriting property or receiving it as a legacy or gift — is unconstitutional. Their contention is devoted mainly to a discussion of the proposition that the act does not provide for an inheritance tax, but in fact for a tax upon property, and is, therefore, in conflict with section 11 of article 14 of the Constitution. If this were a new question, I should have no hesitancy in pronouncing this a tax upon property, and therefore void under our Constitution. It cannot be sustained as a tax upon property, or as a specific tax, under the decision of Pingree v. Auditor General, 120 Mich. 95 (78 N. W. 1025). The tax is assessed upon the market value of the property as established by an appraiser or by the court. The character of a thing is not to be determined by the name given it, but by its inherent qualities. But the weight of authority in support of such taxation is so great, and its continuance so long, that I am compelled, contrary to my judgment, to sustain the legislation.

The decisions are practically unanimous that, in the absence of constitutional provisions inhibiting such method of taxation, it is valid. Its injustice, when applied to lineal descendants, — widows and children, — is recognized by nearly every legislature, and it is almost universally confined to collateral heirs and legatees. This act, however, imposes a tax upon all personal property in excess of $5,000 upon lineal descendants. All other transfers specified in the act are assessed at 5 per cent, of the market value. To sustain the act sustains the right of the legislature to impose the same tax upon lineal descendants. If it may impose 5 per cent., it may impose 10, or any other, percentage. "Where is the limit? One authority says that the taxation must be reasonable, and not amount to confiscation. The tax can only be justified under the necessities and needs of the government. Under a constitution which requires all property to be taxed to support the government, and taxed equally, I find some difficulty in understanding bow the necessities and needs of the government require this species of taxation. If this act provided for a tax upon transfers to lineal descendants, and if a man, having paid his tax under the general law on the 1st day of December, the day when taxes are payable in this State, died the next day, devising his property to his widow, she, in order to take it, would be compelled to pay 5 per cent. more'. She might die within the month, devising the property to their children-, and they must pay another 5 per cent, upon the market value of the property left. I am unable to see any justice in such taxation. A law similar to this was before the supremo court of New Hampshire in Curry v. Spencer, 61 N. H. 624 (60 Am. Rep. 337). By the constitution of that State the power to tax was expressly limited “to proportional and reasonable assessments, rates, and taxes upon all the inhabitants of, and residents within, tho said State, and upon all estates within the same.” Their bill of rights also provided that every inhabitant is bound to contribute only his share of the common burden. The tax was held to be in violation of both the constitution and the bill of rights, and the court said that under them—

“It [the tax] is simply extortion in the name of taxation, and it can, therefore, never be sustained invthis jurisdiction so long as equality and justice continue to be the basis of constitutional taxation.”

Speaking for myself, I fully indorse this language as applicable to this case.

The following cases, while recognizing the validity of inheritance taxes when not prohibited by a constitution, afford instances where the law was held to be in violation of the State constitution: In re Cope’s Estate, 191 Pa. St. 1 (43 Atl. 79, 45 L. R. A. 316, 71 Am. St. Rep. 749); State v. Ferris, 53 Ohio St. 314 (41 N. E. 579, 30 L. R. A. 218); State v. Switzler, 143 Mo. 316 (45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653). See, also, State v. Gorman, 40 Minn. 232 (41 N. W. 948, 2 L. R. A. 701). In State v. Switzler the tax was held to be not a succession or inheritance tax, but a tax upon property, because it was levied upon the appraised value of the whole estate, and not upon the separate legacy or share of each recipient.

Such tax is sustained upon the theory that, the title of the owner being extinguished by his death, the right to take by inheritance or devise depends upon the statute law, is purely a creature of the statute, and therefore the State may impose any condition it pleases upon the privilege of inheriting or taking by devise. This principle is stated in Magoun v. Savings Bank, 170 U. S. 288 (18 Sup. Ct. 594), in which, after citing the authorities, the court say:

“ It is not necessary to review these cases, or state at length the reasoning by which they are supported. They are based on two principles: (1) An inheritance tax is not one on property, but on the succession. (2) The right to take property by devise or descent is the creature of the law, and not a natural right, — a privilege; and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the States may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions; and are not precluded from this power by the provisions of the respective State .constitutions requiring uniformity and equality of taxation.”

While such a tax does not commend itself to my judgment, and is an evasion of the just principles of taxation, yet, as already stated, it has become too firmly established to now question its constitutionality. We are cited to no authorities, nor have I been able to find any, which hold such a tax to be invalid, except upon the ground that it is inhibited by constitutional provisions.

Having decided that an inheritance tax may be imposed under our Constitution, the chief remaining question is whether the act provides for a tax upon property, or an excise tax. The intent of the legislature, as appears in the title and the body of the act', must control. It expressly defines the tax to be one “ of inheritances, transfers of property by will, by intestate laws, by deed, etc., in contemplation of death.” It fixes such excise tax at 5 per cent. A percentage upon values is the only just method of fixing the tax, if any is to be imposed. It is entirely consistent with the nature of an excise tax, or a tax upon the privilege of inheriting. I concur in the opinion of my Brother Hooker.


author: Montgomery, C. J.

text:
    VERGIN v. CITY OF SAGINAW.
    1. Personal Injuries — Defective Sidewalk — Knowledge of Defect — Contributory Negligence.
    That a person stepping into a hole in a sidewalk, which was filled with snow and ice, knew of the defect, does not show her guilty of contributory negligence as matter of law, where she did not have the defect in mind at the time.
    2. Same — Married Woman — Medical Services.
    A married woman, in an action for personal injuries, may recover for medical services, the credit for which is shown to have been extended solely to her.

      3. Same — Witnesses—Failure to Call — Instructions.
    Refusal to charge that the jury might consider the failure of plaintiff, suing for personal injuries, to call as witnesses th& doctors who examined her shortly after the injury to ascertain her physical condition, is error.
    Error to Saginaw; Wilber, J.
    Submitted October 4, 1900.
    Decided January 29, 1901.
    Case by Mary Yergin against the city of Saginaw for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Henry E. Naegely, for appellant.

      F. E. Emerick, for appellee.
   Montgomery, C. J.

The plaintiff recovered a judgment of 1730 for injuries received on a defective sidewalk.

The plaintiff, at the time of her injury, was a married woman, 45 years of 'age, living with her husband and family at 1023 Bond street N., between Bristol and Brewster. Bond street runs north and south, and is paved with cedar blocks, and with stone curbing. Bristol street is the street just north of plaintiff’s house, and runs east and west, and intersects Bond. Brewster street is-the first street south of Bristol. Then there are Miller, Throop, and Clinton streets south in the order named. Porter street runs parallel with Bond, and is one block east of it, and intersects all the streets named, the same as Bond. A Mrs. Fellows lives at the corner of Porter and Clinton streets, and on the evening of April 6,1899, plaintiff, with her daughter, who is a music teacher, left home for the purpose of going to Mrs. Fellows’ house. The corner of Porter and Clinton streets is about four blocks from where plaintiff lives. It is three blocks south and one block east. The plaintiff frequently passed over this walk during the previous summer, fall, and winter in going to the grocery and meat market. She knew the condition of the walk on which she was injured. She was interested in the walk, and in the summer of 1898 she notified Mr. Shefnecker, the alderman of the ward, to have this particular place where she was .injured repaired. The walk in front of plaintiff’s house, and south of there, and at the point of injury, was about four feet wide. The distance from the outside edge of the walk to the’ street curb was ábout six feet, and both the walk and this ground between this curb and the walk were covered with snow and ice. Between the sidewalk proper and the curb of the street there is a space of several feet in that block. There were no trees between the sidewalk and the curb, and there were no obstructions of any kind, and there were no holes in the space between the sidewalk and the curb in that block at the time plaintiff was hurt. It was smooth and level between the sidewalk and the curb, except as the snow scraper had thrown up ridges of snow on either side, and except in one place where there was a ditch at the corner of plaintiff’s walk extending out to the curb. The snow on each side of the path was probably a foot and a half deep. Plaintiff and her daughter, on the night of the accident, left the house, and walked to the street sidewalk, when they turned south. The daughter walked ahead in this narrow path, the mother following her. When they had gone about 10 feet, the plaintiff stepped into a hole, and fell, and injured herself. The hole in which she fell was filled with snow and slush, so that the hole was concealed, and the plaintiff could not see it. The snow had not been cleaned off the walk on this lot where she was injured. The walk on the south side of Bristol street between Bond and Porter streets in April and the spring of 1899, and the walk on Porter street from Bristol to Clinton at this time, were good and safe for travel.

Defendant’s counsel contends that on this testimony it should be held that the plaintiff was guilty of contributory negligence as matter of law. The argument is that the plaintiff, knowing the defect, was at fault in negligently using the defective sidewalk; that the only excuse which she offers is that she did not have the defect in mind at the time of the injury; and it is contended that this excuse is not sufficient.

We have had frequent occasion to consider the effect of previous knowledge of a defect in a way or sidewalk as. bearing on the question of contributory negligence. In Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517), it was said:

“A person is not necessarily precluded from recovering for an injury caused by a defect in a highway simply for the reason that he was aware of such defect; but this fact, with all others, is proper to be taken into consideration by the jury in determining whether, under all the facts and circumstances, he was guilty of such carelessness or negligence without which he would not have been injured.”

In Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457), it is said:

“It is doubtless true, as plaintiff testified, that, had she been at the time on the lookout for this hole in the walk, she might have seen and avoided.it; but the question is, Was she negligent, under all the circumstances and surroundings, in not seeing and avoiding it ? The darkness of the night, the storm, her anxiety to get home, are all circumstances that should be weighed as bearing upon her conduct upon that- occasion. The question is not free from doubt, and, when it is not, it should be submitted to the jury.”

In Whoram v. Township of Argentine, 112 Mich. 20 (70 N. W. 341), .the plaintiff, who had previous knowledge of the defect, but supposed it had been repaired, testified :

“After I got into the road, I started the mare into a trot, and was trotting when I got to this hole. I was thinking about my errand — about my business — when the accident happened. I didn’t think about this hole. My mind was intent upon my business.”

It was held that the question of the plaintiff’s contributory negligence was for the jury.

In each of the three cases of Black v. City of Manis tee, 107 Mich. 60 (64 N. W. 868), Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844), and Irion v. City of Saginaw, 120 Mich. 295 (79 N. W. 572), in which the plaintiff was held guilty of negligence as matter of law, the defect was in the mind of the plaintiff at the very time of the injury. In Grandorf v. Railway Co. the distinction is noted. In that case it was said:

“If this had been a defect of which the plaintiff simply had had previous knowledge, and which knowledge was not in her mind at the time, or if her attention had been diverted from the obstruction, there would be ground for the plaintiff to stand upon.”

The circuit judge committed no error in submitting the question of plaintiff’s contributory negligence to the jury.

Error is assigned on a ruling admitting testimony as to the value of the services of the attending physician, the plaintiff being a married woman. The testimony tended to show that the credit was extended to the plaintiff solely. The ruling is sustained by Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745).

The defendant’s counsel presented the following request :

“It appears from the testimony that Drs. Sample and McGregor made examinations of the plaintiff a short time after, she claims to have been injured. Dr. Sample made one examination, and Dr. McGregor made two examinations. These were for the purpose of ascertaining her physical condition. The plaintiff has not called these witnesses. Her failure to produce them may be given such weight by you as you see fit.”

The record discloses that the facts are correctly stated in the request. The refusal to give the request was error, within the ruling of Cooley v. Foltz, 85 Mich. 47 (48 N. W. 176). For-this error the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    BARLUM v. BERGER.
    1. Landlord and Tenant — Verbal Lease — Statute of Frauds —Full Performance — Holding Over.
    Where a tenant, after the expiration of five years, for which the premises had been verbally leased, the rent being payable monthly, held over, and the landlord accepted rent, the tenancy was from month to month, since, the contract of leasing having been performed, it could not be regarded as a void one, creating a tenancy from year to year.

      2. Same — Notice to Quit.
    Under 3 Comp. Laws 1897, § 9257, declaring the time of notice to terminate a tenancy at will to be sufficient if equal to the interval between the times of payment of rent, where payments were monthly, and notice was given July 10th, and proceedings for recovery of possession commenced August 10th, the notice was sufficient.
    Error to Wayne; Carpenter, J.
    Submitted October 4, 1900.
    Decided January 29, 1901.
    Summary proceedings by John J. Barium and William B. Thompson, copartners as Barium & Thompson, against Simon Berger, to recover the possession of leased premises. Prom a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Sloman & Groesbeclc, for appellant.

      William S. Sheeran, for appellees.
   Long, J.

This case was tried before the court without a jury. Defendant filed a request for special findings, which the court made.- Defendant also filed a request after the findings were made to amend the findings of fact and law. This was refused, and counsel then filed exceptions thereto.

The court found that prior to the 1st day of June, 1894; a verbal agreement was made between the parties to this suit by which the defendant leased of plaintiffs the property in controversy for five years from June 1, 1894; that the terms of the tenancy required him to pay $15 per month rental, and also to pay in advance the sum of $150, which was to be additional rent for the entire five years; that early in the month of June, 1899, and after the expiration of the lease, the plaintiffs served upon the defendant a notice requiring him to vacate; that on the 6th day of June proceedings to obtain possession of such property were instituted by the plaintiffs against the defendant before a circuit court commissioner. Complaint having been made, a summons was served, returnable June 10th. These proceedings were discontinued by the plaintiffs because the defendant promised them he would surrender possession of the property in question, and accept in lieu the stall next adjoining. That later defendant notified plaintiffs’ janitor that he would not vacate, and another notice was served on him the 10th day of July; that plaintiffs accepted from defendant rent during the months of June and July, and instituted these proceedings on the 10th day of August, 1899. As a conclusion from the foregoing facts, the court found that there was no intention on the part of the plaintiffs to permit the defendant to continue to occupy the premises in question after the 10th day of August; that defendant did not suppose there was any such intention; that plaintiffs were entitled to a judgment in the case.

The defendant requested the court to amend his findings of fact and law as follows:

“1. Under the testimony of the case, it does not appear by a fair preponderance of evidence that there was any agreement on the part of the defendant to vacate the premises in June, 1899.
“2. The acceptance of rent by the plaintiffs from defendant, and defendant’s continued possession, after June 1, 1899, operate as a renewal of the lease to the defendant, and he consequently continued to be a tenant from year to year, the same as he had been under the original arrangement. “3. It appears that the notice to quit was given by the plaintiffs to defendant on June 10, 1899. The rent was payable June 1, 1899, and each month thereafter. Consequently the notice of June 10th would not operate as a-valid or binding notice to quit until September 1, 1900.”

The defendant also requested the court to find in his conclusions of law, from the above facts, as follows:

“1. That the plaintiffs have no cause of complaint; that these proceedings were wrongfully instituted, as they were not entitled to possession of the premises at the time' of making complaint before the commissioner.
“2: That, under the facts, the tenancy was one from year to year, and could not be terminated except by a year’s notice.”

These findings were refused, and defendant excepted to such refusal.

This was not a tenancy from year to year. It was a tenancy continuing five years from June 1, 1894, and terminating June 1, 1899. While the agreement was not in' writing, yet it was fully performed by the parties, and therefore cannot now be treated as a void lease. The rent was payable monthly, and the contract of leasing cannot be treated, after the expiration of five years, in any other manner than as a tenancy or lease from month to-month.

3 Comp. Laws 1897, § 9257, provides: “The time of such notice shall be sufficient if it be equal to the interval between the times of payment.” The only question, therefore, is whether sufficient notice was given for the termination of the lease. The court found that the notice to quit had been given defendant sometime in the early part of June, but that proceedings under that notice were discontinued. That notice shows, at least, that the plaintiffs were no longer willing that the tenancy should continue. Another notice was served on July 10th. This notice is dated July 10, 1899, and reads:

“S. Berger.
“Dear Sir: We hereby notify you to vacate stall No. 20, now occupied by you in the Central Vegetable and Fish Market.
[Signed] “Barlum & Thompson.”

These proceedings were commenced August lO.th. The question is whether there is sufficient time intervening between the service of notice and the commencement of proceedings before the commissioner. Is it equal to the interval between- times of payment ? The times of payment were from month to month. It is therefore apparent that from the 10th of July to the 10th of August the time is equal to such interval.

We think no other questions need be discussed in the case. The judgment must be affirmed.

The other Justices concurred.


text:
    PROUTY v. BROWN.
    Justices of the Peace — Docket Entry — Jurisdiction.
    Where a justice’s docket recited that an attachment was issued returnable at his office in a certain village at a specified hour on a stated day, that the case was called on the return day at the hour specified, and was adjourned to another date “at same hour and place,” and on the adjourned day was called, plaintiff appearing personally and defendant specially by attorney to object to the bond, a contention that the docket showed on its face that the justice lost jurisdiction, in that it did not show the hour and place to which the case was adjourned, or at which it was called on the adjourned day, or that plaintiff appeared within one hour after the time to which it was adjourned, was without force.
    Error to Ionia; Dodds, J., presiding.
    Submitted October 4, 1900.
    Decided January 29, 1901.
    Replevin by Ezra Prouty against J. Prescott Brown. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      F. 8. Fuller and George Bennett ( W. D. Fuller, of counsel), for appellant.

      B. A. Hawley, for appellee.
   Long, J.

Edward H. Allen recovered a judgment in justice’s court in an action of assumpsit commenced by-attachment against the plaintiff, and the defendant, who is a deputy sheriff of Ionia county, levied the execution issued on said judgment in the attachment case on the attached property, then in his possession under the original seizure, and plaintiff replevied the property. On the trial of the replevin case the defendant sought to justify under his said execution levy, and offered in evidence the proceedings in the attachment suit. He also produced the original execution under which he seized the attached property before service on him of the writ of replevin. As a part of his case, defendant offered the justice’s docket showing the proceedings in the attachment case leading up to the rendition of the judgment. This docket was objected to for various reasons, which will be stated later. After stating the court and cause, the docket reads:

“Affidavit for attachment filed September 11, 1899; also bond. Attachment issued September 11, 1899, returnable September 20, 1899, at 9 o’clock in the forenoon of said day, at my office in the village of Lyons, in said county. Attachment and inventory returned personally served on the said defendant in said county of Ionia September 12, 1899, by J. Prescott Brown, deputy sheriff.
“September 20, 1899, 9 o’clock a. m. Cause called. Written stipulation filed adjourning case to September 25, 1899, at same hour and place, without áppearance of parties, and without prejudice to either party.
“On said adjourned day the cause was adjourned by consent to September 27, 1899, at same hour and place, without appearance and without prejudice.
“September 27, 1899. Case called. Plaintiff appeared personally and by George Bennett, his attorney. Defendant appeared specially by R. A. Hawley, and moved to dismiss for following reasons: (1) Because the property attached belongs to that class of property which is exempt to a certain specified amount under the statute, and no appraisal was made of such property by the officer levying the attachment, and no opportunity given by the officer to the defendant to select his exemption from such property; (2) because of only one surety to ,the attachment bond.
“Plaintiff’s attorney objected to the consideration of this motion at this time, claiming that defendant had waived the claimed defect by his stipulation and consent to adjournment, which last motion I overruled. Plaintiff denied that said attached property was exempt from attachment, and defendant made no proof on the subject, whereupon I overruled the motion to dismiss for the first reason. Plaintiff asked leave to file a new bond, which I granted, and thereupon said new bond was filed, and the motion to dismiss denied. Plaintiff declared on all common counts in assumpsit, and specially on a note, which he filed with the court; also as assignee of the following claims: * * * Damages $300, or under.
“After hearing the proofs and allegations of the parties, judgment is hereby forthwith rendered in favor of the said plaintiff, Edward H. Allen, and against the said defendant, Ezra Prouty, for the sum of $70.38 damages and the said plaintiff’s costs of this suit, taxed at the sum of $8.05.
“September 27, 1899. Execution issued and placed in the hands of Deputy Sheriff Brown. * * *
“Ernest S. Puller, Justice.”

After the proofs were closed in the present case, plaintiff’s counsel made the following objections to the justice’s docket, claiming that it- showed upon its face that the justice had no jurisdiction, because:

1. The transcript shows that the case was adjourned September 20, 1899, to September 25, 1899, but does not show at what hour and place the adjournment was to be; it saying “the same hour and place.”
2. The docket shows that on said adjourned day the case was adjourned to September 27, 1899, but does not state to what hour and place.
3. The docket does not show at what hour and place the adjournment of September 25th was called, or whether it was called at all, and does not state with whose consent the case was adjourned to September 27th.
4. It does not appear at what hour or place the case was called on September 27, 1899, or at what time the plaintiff appeared.

The court charged the jury that the justice lost jurisdiction, as appeared from his docket, and, the defendant claiming to justify under that execution, and having no other defense, the verdict must be for plaintiff.

The defendant was permitted by the court to have the justice called and sworn as to the minutes he kept on the trial. He testified that, when he wrote up the docket, the minutes were taken out of the files, but that he had a distinct recollection of what they were. He was asked: “State whether or not on September 27, 1899, your minutes showed that the case was called at 9 o’clock in the forenoon, and that the plaintiff -appeared.” This was objected to as incompetent, and the objection sustained, and exception taken. Defendant’s counsel also offered to prove by the attorney for the defendant in the attachment proceeding that on September 27th — the day the judgment was rendered — the case was called at 9 o’clock in the forenoon, and that he and plaintiff were both present at that time. This was objected to, the objection sustained, and exception taken.

Whether or not the court was in error in refusing to receive this testimony we need not discuss or determine, as we think the court was in error in ruling that the docket showed upon its face that the justice lost jurisdiction of the case. We think the docket itself shows that the case was called on September 27, 1899, at an hour and place known to the parties. It shows that the -case was called on that date, that the plaintiff appeared, and that defendant appeared specially. There was no claim at that time by defendant that the justice had lost jurisdiction. He appeared specially to make certain motions: First, on the ground that no exemptions had been set aside to him; second, on the ground that the attachment bond had but one surety. These objections were overruled; and the docket states that, after hearing the proofs and allegations of the parties, judgment was rendered for the plaintiff. It is inconsistent with the claim now made that defendant’s counsel should appear specially before the justice, make his motions, and have them heard and decided by the justice before rendition of judgment, and not raise the question here presented; that is, that the case had not been called within one hour after 9 o’clock, the time to which it was adjourned. We think the plain inference from the docket is that the case was called within the proper time. Dockets of justices of the peace must receive a fair and reasonable interpretation. It is true they must disclose jurisdiction, which we think this docket does upon its face. This is not like the case of Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297). In that case the defendant did not appear at all, and it was held that, as the docket did not show that the plaintiff appeared on the return day of the summons, and within one hour after the time fixed therein,.the justice lost jurisdiction. Here the defendant appeared, although specially, and was heard upon his motions, and, the motions being overruled, the justice proceeded immediately to the hearing of the case.

We think the court below was in error. The judgment m ust be reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    KING v. TOWNSHIP OF COLON.
    Defective Highway — Contributory Negligence.

      K., a girl 14 years old, had passed a hole in the public highway for several weeks twice a day; knew its existence; had avoided it every time she passed it previous 'to the accident; stepped into it in broad daylight. There was nothing to hinder her from seeing it, and she testified that if she had been looking she would have seen it. Held, that she was guilty of contributory negligence, and could not recover.

      Error to Kalamazoo; Buck, J.
    Submitted October 4, 1900.
    Decided January 29, 1901.
    Case by Mary J. King, an infant, by David King, her next friend, against the township of Colon, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    On June 1, 1889, plaintiff, then 14 years of age, on her way home from school stepped into a hole in the public highway, by reason of which she claims to have received injury. Nearly 5 years afterwards she instituted this suit, through her father, to recover damages therefor. At the place of the accident the land was low. It had been filled in, and a tile put through the fill to allow the passage of water. In the north wheel track the tile had been broken in, leaving a hole about 18 inches deep. This had existed for some months. Plaintiff testified that she was walking forward when she stepped into the hole. A schoolmate testified that she and plaintiff were running a race backward when she stepped in. She walked home, a mile and a half, after the accident, without difficulty. It is claimed by the defendant that the injury from which she suffered was caused afterwards, by a horse stepping upon her foot. This claim is sustained by several disinterested witnesses, but denied by plaintiff, Her own testimony as to the manner of the accident is as follows:

      ‘1 The hole in the tile was broken through in the fall or early spring of ’88 or ’89. It might have been before that time. I noticed the hole some time before I stepped into it, having passed it twice each day during the school days. I went to school in the morning and came home in the afternoon of that day, and the hole was perfectly visible, and I had no difficulty in seeing it was there, and I had no difficulty in seeing where the wagon tracks were. On this day the school let out at 4 o’clock in the afternoon, and I started home as soon as it was out, and it was probably 15 or 20 minutes after 4 when I got to the place where the hole was in the tile. It was some time the latter part of May or in June, and it was broad daylight. There was nothing to hinder me from seeing the hole, and if I had been looking down at the ground I would have seen it, as I had known that it was there for a long time; and there was plenty of room to go around the hole. I had walked around it day in and day out as I passed. There might have been some difficulty if I had followed directly in the wagon tracks in passing the hole, as there was a mud puddle; and there would have been no difficulty about getting by there without getting into the hole. * * * I was paying absolutely no attention to where I walked. I do not know as I thought about the mud puddle being there.”

      Hoioard, Boos & Howard and H. P. Stewart, for appellant.

      Alfred Akey and D. L. Akey, for appellee.

      PIead-note by Grant, J.

   Grant, J.

(after stating the facts). I have examined all the negligence cases decided by this court — and they are many — against townships and cities for defective highways and sidewalks. I find none which presents the exact question now before the court. Plaintiff knew of the defect. It was apparent to any one. Travelers by carriage had made a new wheel track around it. She had passed it twice nearly every day for weeks. She was a girl of sufficient age and intelligence to, and did, appreciate the danger, and the necessity of avoiding the hole. She knew she was in the vicinity. She knew that a single glance would show her where it was, and that there was not the slightest difficulty in avoiding it, as she had always done before. If plaintiff’s contention be the law, then the familiar rule that what one can, by the exercise of the slightest prudence or care, see, he must be held to have seen, does not apply to persons traveling in our public highways and streets. No excuse is given, except that she did not look. Is there no duty imposed upon travelers to look when they are traveling upon the public highways, in the very presence of known defects and danger ? The court charged the j ury that:

“It-was the duty of Mary King, in passing along, to use ordinary care and prudence, and this care and prudence must be commensurate with the fact that she knew the hole was in the road; and if, by the exercise of ordinary care and prudence, she could have avoided it, she could not recover.”

Where can a jury find acts of care and prudence where one walks into a known dangerous place without looking ?

The court further said to the jury:

“ The defendant claims that the plaintiff was not in the exercise of ordinary care; that she knew of the defect in the highway; that she paid no attention to it; that she was running a foot-race backward at' the time she stepped into this hole. If you find that the claim of the defendant is true, then, however negligent the township may have been, she could not recover.”

The first two facts referred to in the above instructions, viz., that she knew of the defect and paid no attention to it, were admitted. The third alone was denied. Under this branch of the charge, the jury would have been justified in finding that, if she was not running a foot-race backward, she was entitled to recover. What is the difference in result or in principle between walking backward into a known and apparent danger, and walking forward into the same danger without a thought or a look ? What is the difference in result or in principle between walking forward into the same danger with one’s eyes shut, or open without looking ? The only theory upon which this verdict can be sustained is that it is not negligence to walk on a public highway, in the presence of a known dangerous defect, without thinking and looking. This, in fact, was the theory of the charge. Why should it be negligence to walk backward ? This is one of the common sports of children even older than plaintiff. And, if she had walked into this hole while reading a book, — and reading books while walking is no uncommon thing, — would this have excused her? If, instead of this hole, one or two planks had been removed from a bridge to-prevent teams from passing over it on account of a defect, but persons could safely pass over upon the stringers or a single plank laid over the hole, could a person recover damages for falling into such hole in broad daylight, upon the statement that he was aware of the opening, but did not think of it? There is no decision in this State which leads to such a conclusion. If there is, it ought, in my judgment, to be overruled. In all the cases there are circumstances surrounding the transaction to excuse the act of the plaintiff in getting upon the dangerous place.

Plaintiff relies largely upon Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457). The accident in that case happened in the night-time. It was held that the darkness of the night, the storm, and her (plaintiff’s) anxiety to get home were all circumstances that should be weighed by the jury as bearing upon her conduct. No such excusatory circumstances exist in this case.

In Graves v. City of Battle Creek, 95 Mich. 266 (54 N.W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561), the accident occurred in the night-time. Plaintiff, a woman, as an excuse for stumbling over a loose plank, which she might have seen, testified that, just before she stumbled, she heard a whistle, and became frightened and hurried on. It was held that the court should have submitted to the jury the question of whether this circumstance, coupled with the fact that it was in the night-time, was sufficient to excuse her immediate attention to the walk at the exact time of the injury.

In Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517), the accident happened on a dark and misty night, while plaintiff was walking along the highway. He knew of the defect, — a hole about a foot square, —and had it in mind. Held, that the question of contributory negligence was for the jury, under all the facts and circumstances.

The rule is well stated by Justice McGrath in Dittrich v. City of Detroit, 98 Mich. 245, 248 (57 N. W. 125):

“While contributory negligence is not to be presumed from the knowledge of the existence of the defect, such knowledge enjoins upon a party 'a degree of care commensurate therewith.”

In Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844), plaintiff was held to have assumed the risk in passing over paving stones which she saw scattered across the walk. Could she have recovered had she testified that she did not see them, though it was broad daylight ? Would she have been excused by testifying that she was not thinking of the situation, and therefore did not look ?

We might comment upon many other cases decided by this court, but do not deem it necessary. An examination of them will show how they differ in their facts from this case. Dillon thus states the rule :

“The ordinary rules as to contributory negligence, and its effect upon the right of recovery, apply to cases such as we are now considering. Adverting in this place to the subject in a general way, it may be stated that; if the person injured knew of the defect or obstruction, and ought reasonably to have avoided it by going outside or around it, and did not, he cannot recover.” 3 Dill. Mun. Corp. (4th Ed.) § 1007.

In Casey v. City of Malden, 163 Mass. 507 (40 N. E. 849, 47 Am. St. Rep. 473), a boy 9 years old stepped backward into a manhole in the street. The hole was. in plain sight, if the plaintiff had looked. Held, that he voluntarily adopted a dangerous method in crossing a public street, and his injury was a natural consequence of his carelessness. Would he not have been equally negligent if he had walked forward into the hole without looking ?

In Dale v. County of Webster, 76 Iowa, 370 (41 N. W. 1), plaintiff, while crossing a defective bridge at night, reading a letter by the use of his lantern, fell from the bridge. He was held guilty of contributory negligence. The negligence would certainly have been as great had he walked into the defect in the daytime while reading.

The law does not excuse one for not looking when he knows of the danger, and may.by a glance see it and avoid it. It would be a dangerous doctrine that one injured in the public highway in broad daylight may excuse himself by saying: “It is true that I knew of the dangerous place; that I was in close proximity to it; that I might have seen it had I looked. But I did not think of it, and therefore did not look.” I find no case which lays down such a rule of law.

Judgment reversed, and, inasmuch as no different case can be made upon a new trial which would not be wholly inconsistent with plaintiff’s case as here made, none will be granted.

The other Justices concurred.