author: Moore, J. Grant, J.

text:
    LORIMER v. LORIMER.
    1. Common-Law Marriage — Evidence.
    Evidence that plaintiff lived with decedent for many years as his wife, and that he spoke of and introduced her as such, was sufficient to go to the jury on the issue of a common-law marriage between them, although it appeared that they had at one time lived together in a state of concubinage, that no marriage ceremony was ever performed, that she was known by, and received and executed conveyances in, her maiden name, and that he executed conveyances describing himself as a bachelor. Grant, J., dissenting.
    2. Same.
    An agreement to live together as husband and wife, though intended to be carried out, unless acted on by the parties actually living together and cohabiting as husband and wife, is not sufficient to constitute a common-law marriage.
    3. Same — Estate of Alleged Husband — Ejectment by Wife-Plaintiff as Witness — Competency.
    An action of ejectment by one claiming as the common-law wife of a decedent, against his heirs and the tenants of his ad ministrator, all of whom deny the marriage, is within 3 Comp Laws 1897, § 10212, forbidding the opposite party, in a suit defended by the heirs of a deceased person, from testifying to matters which, if true, must have been equally within the knowledge of decedent.
    4. Same — Attorney and Client — Privileged Communications.
    Where the marriage of plaintiff with a deceased person is in issue, an attorney cannot testify to statements by the deceased concerning his relations with plaintiff, made in the course of a consultation in regard to making provision for her.
    5. Trial — Examination of Witnesses — Testimony on Former Hearing — Copies.
    The practice pursued at the trial of permitting counsel for plaintiff to hand to plaintiff’s witnesses, without any apparent necessity or reason, a copy of their testimony as given on a former hearing, and thereafter to direct their attention to the subject-matter covered by the copies, was disapproved.

      6. Same — Stipulation—Questions Foreclosed.
    Defendants in ejectment cannot be heard to object that the lands described in the declaration are in the possession of several different persons, where an attorney for defendants agreed before commencement of suit that the question of possession would not be raised.
    Error to Wayne; Donovan, J.
    Submitted June 5, 1900.
    Decided September 18, 1900.
    Ejectment by Emily Lorimer against David Lorimer and others. From a judgment for plaintiff, defendants bring error.
    Reversed.

      James H. Pound, for appellants.

      Flowers & Moloney, for appellee.
   Moore, J.

This is an action of ejectment brought by the plaintiff, who claims to be the widow, by virtue of a common-law marriage, of Thomas Lorimer, deceased. From a verdict in her favor, the defendants, who represent the estate of Thomas Lorimer, appeal. It is the claim of defendants that the testimony, construing it most favorably for plaintiff, does not show a marriage between the parties, and that the court should have directed a verdict in favor of defendants for that reason.

The plaintiff was sworn as a witness. Her testimony shows that prior to 1882 she was a woman of the town, and that Lorimer had illicit relations with her. She says, in substance, that in 1882 Mr. Lorimer said that he was tired of the way in which they were living, and proposed that they should live together as husband and wife, to which she assented. She says that no marriage ceremony was performed, but that they lived together as husband and wife, she keeping the house, and he furnishing it, until the time of his death, in 1895; that they regarded each other as husband and wife; and that Mr. Lorimer from that time introduced her as his wife, and they treated each other as husband and wife. Many witnesses were sworn whose testimony tended to corroborate her in relation to the manner in which they lived, and the representations made by Mr. Lorimer as to their relations. Testimpny was introduced on the part of the defense tending to show that plaintiff, up to the time of the death of Mr. Lorimer, went by the name of Bellmore, and was so known in the city directory; that she took a deed of land in that name, and signed a conveyance, not long before the death of Mr. Lorimer, by the name of Bellmore; that Mr. Lorimer, who dealt largely in real estate, described himself in the various conveyances he made as a bachelor.

It is insisted on the part of the defendants that the relationship was simply one of- qoncubinage; citing Clancy v. Clancy, 66 Mich. 202 (33 N. W. 889). It was long ago decided in this State that a marriage ceremony was not necessary to constitute a valid marriage. In Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), Justice Cooley, speaking for the court, said:

“But, had the supposed marriage taken place in this State, evidence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and cooperation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts, the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it. Fenton v. Reed, 4 Johns. 52 (4 Am. Dec. 244); Jackson v. Winne, 7 Wend. 47 (22 Am. Dec. 563); Starr v. Peck, 1 Hill, 270; Rose v. Clark, 8 Paige, 574; In re Taylor, 9 Paige, 611; Clayton v. Wardell, 4 N. Y. 230; Cheney v. Arnold, 15 N. Y. 345 (69 Am. Dec. 609); O’Gara v. Eisenlohr, 38 N. Y. 296; Pearson v. Howey, 11 N. J. Law, 12; Hantz v. Sealy, 6 Bin. 405; Com. v. Stump, 53 Pa. St. 132 (91 Am. Dec. 198); Overseers of Poor of Newbury v. Overseers of Poor of Brunswick, 2 Vt. 151 (19 Am. Dec. 703); State v. Rood, 12 Vt. 396; Town of Northfield v. Town of Vershire, 33 Vt. 110; Duncan v. Duncan, 10 Ohio St. 181; Carmichael v. State, 12 Ohio St. 553; State v. Patterson, 2 Ired. 346 (38 Am. Dec. 699); Town of Londonderry v. Town of Chester, 2 N. H. 268 (9 Am. Dec. 61); Keyes v. Keyes, 2 Fost. (N. H.) 553; Bashaw v. State, 1 Yerg. 177; Grisham v. State, 2 Yerg. 589; Cheseldine’s Lessee v. Brewer, 1 Har. & McH. 152; State v. Murphy, 6 Ala. 765 (41 Am. Dec. 79); Potier v. Barclay, 15 Ala. 439; Dumaresly v. Fishly, 3 A. K. Marsh. 368; Graham v. Bennet, 2 Cal. 503; Case v. Case, 17 Cal. 598; Patton v. Philadelphia, 1 La. Ann. 98; Holmes v. Holmes, 6 La. 463 (26 Am. Dec. 482); Hallett v. Collins, 10 How. 174.”

In Peet v. Peet, 52 Mich. 464 (18 N. W. 220), it was said:

“ But an actual ceremony of marriage is not essential to the establishment of the relation of husband and wife. It is sufficient that a man and woman of due competency, and in respect to whom no impediment exists, consent to take each other as husband and wife, and actually cohabit as such. The case of Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), determines this for this State, and refers to many decisions in other States to the same effect.”

See People v. Girdler, 65 Mich. 68 (31 N. W. 624).

In Williams v. Kilburn, 88 Mich. 279 (50 N. W. 293), the wife, pending a suit for divorce, but before decree, married again. After the decree was obtained, the parties agreed that they should live and cohabit together as man and wife, and did so, though no marriage ceremony was again performed. The court said:

‘ ‘ The facts set forth show that, after plaintiff obtained her divorce, it was agreed that they should live and cohabit together as man and wife, which they continued to do for three years thereafter. The formal marriage ceremony may be treated as evidence, with what subsequently occurred, of the nature of the relation which they assumed and occupied. These facts' establish a valid marriage, and plaintiff’s rights grow out of that relation. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Peet v. Peet, 52 Mich. 464 (18 N. W. 220). Her remedy is that of a married woman against a deserting husband.”

See, also, People v. Loomis, 106 Mich. 250 (64 N. W. 18); People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326).

The testimony was conflicting, but we think there was sufficient of it to justify its submission to a jury.

It is claimed that the judge did not properly instruct the jury in relation to what was sufficient to constitute a valid marriage. He used the following language in his charge to the jury:

“This plaintiff comes before you, in court, claiming to be the lawful wife of the late Thomas Lorimer. On her is the burden of proof of showing that she is the lawful wife, there being no marriage certificate and no marriage ceremony. On her is the burden of showing that her mind and the mind of Thomas Lorimer once met,— met at the time that she said that they agreed to take each other for husband and wife, and to live in relations as such; that they made a bargain about it. And, in stating that, I say, if they did in their minds fully meet, — if they did come to a full understanding, — and you should find that, then, under the law of this State, they were married. That is the whole test of the matter. ”

We think this charge was too restricted, and that it was not cured by any other portion of the charge. Our courts have gone a good way to sustain the validity of a marriage where an agreement to live and cohabit together as husband and wife has been made and acted upon. But at no time has it been said that, in the absence of a valid marriage ceremony, a simple agreement to live together, even though the parties intended to carry out the agreement, is sufficient to constitute a valid marriage, unless acted upon by living together and cohabiting as husband and wife.

The plaintiff was allowed to testify in relation to matters that were equally within the knowledge of Mr. Lorimer, and it is said that this is contrary to the provisions of section 10212, 3 Comp. Laws 1897. Counsel for plaintiff say:

“This section of the statute has been repeatedly construed by this court, and it has uniformly been held that the testimony of the parties to the litigation is competent in suits of this nature, where the estate itself cannot be depleted or increased by the result of the litigation, and where the claim made is not one against the estate, but is a controversy between the heirs themselves. The judgment in this case does not affect the estate proper, but simply determines who are the heirs of Thomas Lorimer, deceased. There was no error committed in the admission of the testimony of the plaintiff. Brown v. Bell, 58 Mich. 58 (24 N. W. 824); McClintock’s Appeal, 58 Mich. 155 (24 N. W. 549); Lautenshlager v. Lautenshlager, 80 Mich. 285 (45 N. W. 147); Lake v. Nolan, 81 Mich. 115 (45 N. W. 376); McHugh v. Fitzgerald, 103 Mich. 21 (61 N. W. 354); City of Marquette v. Wilkinson, 119 Mich. 413 (78 N. W. 474, 43 L. R. A. 840).”

We do not think that this claim can be sustained. The defendants are either the heirs at law of Thomas Lorimer, deceased, or are tenants under the administrator of his estate. The property in controversy belongs to the estate of Mr. Loi’imer. The plaintiff claims the right to the possession of the property by virtue of her contract of marriage with Mr. Lorimer, about which he must have had as much knowledge as she possessed. If she had presented a claim for services as housekeeper for the time which she lived with him, there could be no question but that she would be incompetent to testify as to what the contract was. Campan v. Van Dyke, 15 Mich. 380; Cook v. Stevenson, 30 Mich. 242; Van Wert v. Chidester, 31 Mich. 207; Schratz v. Schratz, 35 Mich. 485; Hart v. Carpenter, 36 Mich. 402; Harmon v. Dart, 37 Mich. 53; Howard, v. Patrick, 38 Mich. 795; Eccard v. Brush, 48 Mich. 3 (11 N. W. 756); Foster v. Hill, 55 Mich. 540 (22 N. W. 30); Pendill v. Neuberger, 67 Mich. 562 (35 N. W. 249); Taylor v. Bunker, 68 Mich. 258 (36 N. W. 66); Buffum v. Porter, 70 Mich. 623 (38 N. W. 600); Barker v. Hebbard, 81 Mich. 267 (45 N. W. 964); Penny v. Croul, 87 Mich. 18 (49 N W. 311, 13 L. R. A. 83). In this case, instead of seeking to enforce a claim for services because of a contract of hire, she seeks to obtain one-half of the estate of the deceased, basing her right to do so upon a contract of marriage, which must have been equally within the knowledge of the deceased. The case comes within the express provisions of the statute. See Mundy v. Foster, 31 Mich. 313; Chambers v. Hill, 34 Mich. 523; Bachelder v. Brown, 47 Mich. 366 (11 N. W. 200); Youngs v. Cunningham, 57 Mich. 153 (23 N. W. 626); Schuffert v. Grote, 88 Mich. 650 (50 N. W. 657, 26 Am. St. Rep. 316); In re Lambie’s Estate, 97 Mich. 49 (56 N. W. 223).

Before his death, Mr. Lorimer consulted professionally with Mr. Radford, an attorney, in relation to making provision for the plaintiff, and advised with him as to what he had best do to accomplish that purpose, and made statements to him with reference to his relations with the plaintiff. Mr. Radford gave him advice, which was not acted upon. Mr. Radford was sworn as a witness on the part of the plaintiff. His testimony was objected to for the reason that it was a privileged communication between attorney and client. The objection was overruled. In the case of Chirac v. Reinicker, 11 Wheat. 294, Mr. Justice Story stated:

“ The general rule is not disputed that confidential communications between client and attorney are not to be revealed at any time. The privilege, indeed, is not that of the attorney, but of the client, and it is indispensable for the purposes of private justice. Whatever facts, therefore, are communicated by a client to counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose, and the law holds their testimony incompetent.”

See Hamilton v. People, 29 Mich. 173; Passmore v. Passmore, 50 Mich. 626 (16 N. W. 170, 45 Am. Rep. 62); People v. Hillhouse, 80 Mich. 584 (45 N. W. 484); Riley v. Conner, 79 Mich. 504 (44 N. W. 1040); Erickson v. Railway Co., 93 Mich. 418 (53 N. W. 393). See, also, 1 Wait, Act. & Def. 468, and cases cited; Jenkinson v. State, 5 Blackf. 465.

Counsel cite, in support of the admission of this testimony, Greenough v. Gaskell, 4 Term R. 753. We do not find the case cited, but the case of Wilson v. Rastall, 4 Term R. 753, so far as it is applicable to the case at all, is against the admission of the testimony. The case of Russell v. Jackson, 9 Hare, 387, is also cited. This case holds that a privilege given for the protection of the client cannot have the effect of excluding evidence of a trust which he had intended to create, and thus defeat a claim by the parties who accepted the trust to hold the trust property beneficially; but the court also held as follows:

“In cases where the rights and interests of the client, or of those claiming under him, come in conflict with the rights and interests of third persons, there can be no difficulty in applying the rule. If it was not applied in such cases, the client could never with safety state to his solicitor the true position of his case. He would be driven to speculate as to what it would be for his interest to divulge. ”

The case of Blackburn v. Crawfords, 3 Wall. 175, is also cited. In that case the attorney had drawn a will for his client, making certain persons legatees in the will. The testimony* related to what his client said about the persons who were made the objects of his bounty by the terms of the will. The court was of the opinion (following in that respect Russell v. Jackson, supra) that, in the case of a testamentary disposition, the foundation on which the rule of privilege proceeds is wanting, and that it cannot be for the interest of the client to exclude any testimony in support of what he solemnly proclaimed and put on record by his will. The case here is very different. No will was ever made by Mr. Lorimer. The evidence received was not in support of a testamentary disposition of his property. The knowledge possessed by Mr. Radford was obtained in his professional capacity. The case is directly within the rule, and not among the exceptions to the rule.

Two witnesses on the part of the plaintiff gave testimony who had also given testimony in some other proceeding. While they were upon the stand, without any apparent necessity for so doing, they were handed copies of the testimony given by them, which they were told to read, and after doing so the counsel for the plaintiff directed their attention to the subject-matter covered by the copies of the testimony which had been handed them. This is said to be error. As the case is to he reversed for other reasons, we will not decide whether this was reversible error or not, .but will content ourselves with saying that the practice is not to be commended.

It is urged by counsel for defendants that several pieces of property were mentioned in the declaration, the possession of some pieces being in some persons, and other pieces in other persons, and that because of this the action cannot be maintained. The record discloses, it is claimed on the part of the defendants, that all the property which is involved in this litigation belongs to the estate of Mr. Lorimer. It is claimed that, before the suit was begun, Mr. Conely, an attorney representing the estate, agreed with the attorney for the plaintiff, by writing him a letter to that effect, that, if the ejectment suit was commenced, the question of possession would not be used as a defense in the trial. If this agreement was made and was duly authorized, we do not think the question can now be raised.

Judgment is reversed, and new trial ordered.

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

Grant, J.

I do not think the facts in this case justify the conclusion that there was a common-law marriage between the plaintiff and Thomas Lorimer. Their intercourse was purely one of sexual commerce. She was a common prostitute, and kept a house of prostitution, and he was a libertine. It is not claimed that when this intercourse began there was any understanding or thought of entering into the marriage relation. It,may be true that afterwards he sometimes spoke of her as his wife. If he did, this was evidently prompted by a desire to cover up their shameful and illicit relation. Their deliberate acts, about which there is no dispute, during their entire intercourse, directly contradict any marriage relation. She went by her maiden name, gave her name as such to be inserted in the city directory, and received and executed papers by her maiden name, while he, a real-estate dealer, made all his conveyances as an unmarried man. Under these circumstances, I think it makes no difference what representations they made to others to cover up their actual relation. In Clancy v. Clancy, 66 Mich. 202 (33 N. W. 889), the parties signed an agreement “ to live as man and wife, but each party retains the right to buy, sell, and transfer their respective properties without question of the other party;” and this court held that their relation was purely one of concubinage. In the present case there is no evidence of an agreement to be man and wife, and the solemn acts of the parties, in my judgment, show that no such relation existed. In other respects I concur in the opinion of my Brother Moore.

       1 Mylne & K. 98.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    MANN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Master and Servant — Defective Appliance — Promise to Repair — Assumption of Risk — Question for Jury.
    An employé was injured by a defective valve in a steam-pipe. The employer, having been advised of the defect, promised to repair it as soon as his workmen, who were about to go away, should return. The repairs were not made, and, about 30 days after the promise, such employé was injured. Held, that whether the employé had the right to rely on the promise to repair at the time he was injured was for the jury.

    3. Same — Contributory Negligence.
    An employer promised an employé in charge of a pump to repair- a defective valve in a steam-pipe, which permitted steam to escape into the cylinder of the pump, as soon as his workmen should return. At this time a new pump was being erected. The valve was not repaired, and, about 30 days after the promise, the employé, while reaching his arm between the spokes of the balance-wheel to adjust an appliance, was injured by the unexpected starting of the pump. The escaping steam, while sufficient to start the old pump, had not started the new one until the occasion of the injury to the employé. Held, that whether such employé was so reckless as to preclude him from asserting a reliance on the promise to repair was for the jury.
    Error to Lenawee; Chester, J.
    Submitted June 6, 1900.
    Decided September 18, 1900.
    Case by Hiram Mann against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      G. IS. Weaver (George G. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Watts, Bean & Smith, for appellee.

       As to the rights of a servant who continues work on the faith of his master’s promise to remove a specific cause of danger, see Illinois Steel Co. v. Mann, (Ill.) 40 L. R. A. 781, and note.

   Montgomery, C. J.

The plaintiff was in the employ of defendant for many years. For some years prior to 1893 his duties consisted, in part, in running a steam pump at Hudson. This steam pump was located in a large well, about 30 feet below the surface, and steam was transmitted to the cylinder of the steam pump through a small iron tube. The pump was set in motion a number of times a day. To start the pump, it was necessary to go down a flight of stairs, to the platform on which the pump rested. In the last of February, 1893, a change had been made in the pump. At this time the platform was so arranged that the floor had to be cut, to allow the balance-wheel to clear the floor and revolve. The testimony on behalf of the plaintiff tended to show that the throttle-valve on the steam-pipe had become worn to such an extent that, when closed it leaked steam into the cylinder of the pump; that the cylinder-cock was closed by raising the lever of the plug to a perpendicular, and opened by dropping the lever; that the cylinder plug had become worn, so that the lever would jar down, and so open the cock and let the steam out of the cylinder; that on the 26th of March, 1893, he heard the steam escaping into the well, and went down to attend to it; that he reached his arm through the spokes of the fly-wheel to tighten the nut on the end of the plug of the cylinder-cock; that, because of the defective condition of the throttle-valve, steam escaped into the cylinder in sufficient quantities to start the pump going; that his arm was caught by the spokes of the fly-wheel, and his hand held against the cylinder and badly burned. The testimony also tended to show that the defendant’s agent in charge of the work had, on the occasion of putting in the new pump, promised to remedy the defect in the throttle-valve; that he stated that the men who were engaged in putting in the new pump had to go to Detroit, and as soon as they returned he would have a new throttle-valve put in. The testimony also tended to show that, while the steam escaping through the defective throttle-valve had been sufficient to start the old pump, the new had not (possibly because the castings were new) been so started until the occasion in question. The defendant contends that the plaintiff was guilty of contributory negligence, and that, knowing the condition of the pump and the valve, he assumed the risk. The plaintiff contends that he had the right to rely on the promise to repair.

It is clear that the plaintiff assumed the risk of injury, unless it be held that, under the evidence, it was proper to submit to the jury the question whether he had the right to rely on the promise to repair, and whether, as an ordinarily prudent man, he, in view of that promise, was justified in continuing to perform the service in the manner in which it was performed. Indeed, the learned counsel for the plaintiff apparently concede this. In determining the effect of this promise, two questions are prominent:

First. Was the condition which presented itself to plaintiff so obviously a dangerous one that an ordinarily prudent man would not, even in reliance on the promise of defendant to repair, attempt what he attempted?

Second. Had the plaintiff the right to rely upon the promise at the time he received his injury?

Considering the second question first, it becomes important to learn just the nature of the promise to repair. Frank Mann, the plaintiff’s son, testified to this conversation as follows:

“Just repeat what your father said to him about it, and what Mr. Toullerton’s reply was.

“A. Why, he told him .that the throttle-valve ought to be fixed; it was leaking badly, and it was not safe; that he wanted a new one. Mr. Toullerton says: ‘ The boys have got to go to Detroit tomorrow; they must go; and as soon as they get back we will have it fixed up,— xed up right away.’”

On cross-examination he testified as follows:

“What did Mr. Toullerton say to that?

“A. He told him that the boys would have to go to Detroit tomorrow, and they must get it to work, in order to get to pumping, and as soon as they came back he would have it put in, and fixed right up. I don’t remember that he gave any time as to how long the boys would be gone to Detroit.”

Leonard Howard, called by plaintiff, testified as follows:

“I happened in there when they were having their conversation about the valve. I heard Mr. Mann tell him that the valve was in bad shape, and that they ought to have a new valve; and the old 'man told him that they had to get pumping as soon as they could, and that the boys had got to go away,— I think, to Detroit, — and as soon as they could get back they would fix it up.”

A period of about 30 days elapsed after this promise, and before the injury. It is contended that it should be held, as matter of law, that the plaintiff had, at the time of the injury, no right to rely upon the promise of defendant to repair. The period during which an employé may continue his service in reliance upon a performance by the master of a promise to repair is generally held to be a reasonable time. Some cases construe this to be the time reasonably necessary to make the repairs. Harris v. Hewitt, 64 Minn. 54 (65 N. W. 1085). But the better class of cases construe a reasonable time to mean such a period after the promise as would preclude all reasonable expectation that the promise might be kept, or, stated in another way, the time which would elapse while the servant is reasonably expecting the promise to be performed. Hough v. Railway Co., 100 U. S. 213; Counsell v. Hall, 145 Mass. 468 (14 N. E. 530). The question is in most cases for the jury. We think the present case no exception. The length of time’ the defendant’s workmen were to be detained at Detroit is not known. The plaintiff testified that he daily expected their return; and we are not prepared to hold, as matter of law, that he may not have reasonably expected a performance of the promise any time up to the date of the injury.

Nor do we think we should hold, as matter of law, that the course of the plaintiff was so reckless as to preclude him from asserting a reliance on the promise to repair. The new machine had not been set in motion by escaping steam prior to the time of the accident, and the danger was not so obvious that we can characterize the plaintiff’s attempt to tighten the nut as reckless.

Other questions are presented in the brief of counsel. The foregoing discussion is controlling of the main features of the case, and answers most of the defendant’s contentions. The assignments of error have all been considered, anff no error is discovered.

The judgment is affirmed.

The other Justices concurred.


text:
    PEOPLE v. SHURLY.
    Public Health — Report of Contagious Diseases — Consumption-Question for Jury.
    Whether consumption is a disease dangerous to the public' health, within 2 Comp. Laws 1897, § 4453, imposing a penalty on physicians for failure to report to local health officers cases of small-pox, cholera, diphtheria, scarlet fever, ‘ or any other disease dangerous to the public health,” is a question for the jury.
    Error to Wayne; Donovan, J.
    Submitted June 12, 1900.
    Decided September 18, 1900.

      Assumpsit by the People of the State of Michigan against Ernest L. Shurly to recover the statutory penalty for an alleged violation of Act No. 158, Pub. Acts 1895, relating to the reporting of contagious diseases. Prom a judgment for defendant on verdict directed by the court, the people bring error.
    Reversed.

      Horace M. Oren, Attorney General, Allan H. Frazer, Prosecuting Attorney, and William H. Turner, Assistant Prosecuting Attorney, for the people.

      William P. Lane (8. M. Outcheon, of counsel), for appellee.
   Montgomery, C. J.

This is an action to recover a penalty for the violation of section 44 of Act No. 158, Pub. Acts 1895 (being section 4453, 2 Comp. Laws 1897), which reads as follows:

“Whenever any physician shall know that any person whom he is called to visit, or who is brought to him for examination, is infected with small-pox, cholera, diphtheria, scarlet fever, or any other disease dangerous to the public health, he shall immediately give notice thereof to the health officer of the township, city, or village in which the sick person may be, and to the householder, hotel-keeper, keeper of a boarding house, or tenant within whose house or rooms the sick person may be. The notice to the officer of the board of health shall state the name of the disease, the name, age, and sex of the person sick, also the name of the physician giving the notice; and shall, by street and number or otherwise,' sufficiently designate the house or room in which said person sick maybe. And every physician, and person acting as a physician, who shall refuse or neglect immediately to give such notice, shall forfeit for each such offense a sum not less than ten nor more than fifty dollars: Provided, that this penalty shall not be enforced against a physician if another physician in attendance has given to the health officer, or other officer hereinbefore mentioned, an immediate notice of said sick person, and the true name of the disease, in accordance with the requirement of this section.”

On the trial it was agreed by counsel for the respective parties that the only question involved is whether consumption is covered by this section. The court ruled, for the purposes of this case, that the statute was not intended to cover consumption, and ruled out testimony offered to show that consumption is a disease dangerous to the public health. From this decision the people bring error.

The position of defendant’s counsel, as stated in the brief, is that the general clause, “or any other disease dangerous to the public health,” was intended to include other diseases of the same degree of infectiousness or danger to life, though not specifically naming them; that the general clause would include yellow fever, leprosy, bubonic plague, and typhus fever, for,' it is said, it is common knowledge that those diseases partake of the same violent degree of infectiousness as those mentioned in the statute. The rule is correctly stated 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. Brooks v. Cook, 44 Mich. 617 (7 N. W. 216, 38 Am. Rep. 282). This rule has been frequently recognized in this State; but it does not determine this case, for the reason that, if consumption is a disease dangerous to the public' health, it is of the same general character, sort, or kind as those specifically enumerated in the sense in which the legislature characterized those diseases, i. e., diseases dangerous to the public health. If there was a distinct dividing line of danger, of which the courts might take judicial notice, a different view might be held, but there is no such line. The court cannot j udicially- know what are the varying degrees of infectiousness of different diseases. State v. Tenant, 110 N. C. 609 (14 S. E. 387, 15 L. R. A. 423, 28 Am. St. Rep. 715); Rudd v. Rounds, 64 Vt. 432 (25 Atl. 438). There is no line which can be drawn, other than the line between diseases dangerous to the public health and those which are not. The question whether consumption is a disease dangerous to the public health was to be determined on evidence, and should have been submitted to the jury.

Judgment reversed, and a new trial ordered.

Moore, Long, and Grant, JJ., concurred with Montgomery, C. J. Hooker, J., took no part in the decision.


author: Moore, J.

text:
    RENAUD v. STATE COURT OF MEDIATION AND ARBITRATION.
    1. Court of Arbitration — Constitutional Law.
    Th6 State court of mediation and arbitration, created by 1 Comp. Laws 1897, §§ 559-568, and empowered by that act to hear and determine differences arising between employers and employes in certain cases, is authorized by article 6, § 23, of the Constitution, which provides that the legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law.
    2. Same — Appointment of Members.
    The statute creating such court is not unconstitutional in providing for the appointment of the members of the court, instead of their election.
    3. Same — Rehearings.
    Such court has no power to grant a rehearing of a cause determined by it.
    4. Same — Appeal—Writ of Prohibition — Mandamus.
    No provision being made for an appeal from the decisions of such court, its attempt to review a decision on rehearing may be restrained by writs of prohibition and mandamus.

    Petition by George A. Renaud and others against the State court of mediation and arbitration for writs of mandamus and prohibition to vacate an order .granting a rehearing, and to restrain further proceedings by respondent.
    Submitted July 3, 1900.
    Writs granted September 18, 1900.

      James H. Pound and George F. Monaghan, for relators.

      Botven, Douglas & Whiting, for respondent.
   Moore, J.

Pingree & Smith are engaged in the business of manufacturing boots and shoes in the city of Detroit, and have a good many men and women in their employ. Prior to December 16, 1899, differences arose between the employers and employed over the scale of wages. December 16, 1899, an agreement was signed by Pingree & Smith, on the one side, and Timothy O’Connor and Ernest A. Allen, on the other side, representing the employed, reading in its material part as follows:

“Being unable to agree on prices of the following work, we hereby jointly request an arbitration of the same by your honorable board, agreeing to abide by your decision. Prices to remain in force until May 1st, 1900.”

A hearing was had before the court. The taking of testimony was completed March 9, 1900, and the case was argued by the counsel for the respective parties. On March 31st the court made a decision in writing, and filed the same in the office of the county clerk of Wayne county April 19, 1900. Pingree & Smith were dissatisfied with the decision of the court, and on April 6th moved for a reheai’ing of the case. June 23, 1900, the court granted the motion for a rehearing. The relators ask for a writ of prohibitioxx or a writ of mandamus, or other appropriate writ, to prevent the respondent from rehearing the controversy.

It is the claim of the relators that, when the court rendered its decision, it exhausted its powers, and had no authority to grant a rehearing. Three questions are involved in this proceeding:

First. The existence of the court of mediation and arbitration.

Second. Its power to grant a rehearing after it has once decided a controversy submitted to it.

Third. Have the relators sought a proper remedy ?

The existence of the court is attacked by the attorneys who argue the case axxd submit briefs in the interest of Pingree & Smith upon constitutional grounds. We cannot s'tate their position more clearly than by quoting from bxúef of counsel:

“The act under which this court of mediation and arbitration was organized is unconstitutional. By section 1 of article 6 of the Constitution, the judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities. By section 23 of article 6, the legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law.

“The general scheme of the Constitution, as far as it relates to judicial officers, is for their election, and not for their appointment, as shown by article 12, which provides for impeachments and removals from office. Section 4 of that article provides that no judicial officer shall exercise, his office, after an impeachment is directed, until he is acquitted; and section 5 of that article provides that the governor may make a provisional appointment to fill a vacancy occasioned by the suspension of an officer, until he shall be acquitted, or until after the election and qualification of his successor. Chandler v. Nash, 5 Mich. 409.

“Section 23, art. 6, of the Constitution, provides for the establishment of courts of conciliation; and by ‘courts,’ here, as well as elsewhere in the Constitution, is meant a permanent organization for the administration of justice, and not a special tribunal provided for by law, that is occasionally called into existence by particular exigencies, and that ceases to exist with such exigency. Streeter v. Paton, 7 Mich. 341; Shurbun v. Hooper, 40 Mich. 503; Risser v. Hoyt, 53 Mich. 185 (18 N. W. 611). If the administration of justice embraces the enforcement of the orders or decrees of courts, the court of mediation and arbitration, being deficient in authority given by the legislature to do this, is not such a court as is meant by section 23 of article 6; for, by the act of its creation, it can do nothing but render a decision on subjects submitted to it in a particular way, and file its decision with the county clerk. The Constitution provides for the formation of a court of conciliation, while the act provides for the establishment of courts of mediation and arbitration, which are not courts of conciliation. * * * Under the act there is no authority given to the judges or members of the court to compel the appearance of either party, nor is there any method of composing the differences or questions in dispute by turning over the parties to a court with authority to enforce its decrees. From the terms of the act, it is clear that whoever drafted it had in mind the definition given above of ‘arbitration,’ which, as that definition says, usually implies a tribunal without power to compel attendance.”

It is true that as to the members of the supreme court, the circuit judges, judges of probate, and justices of the peace, the Constitution provides that they shall be elected; but we think it is not open to question that, if the Constitution did not require these judicial officers to be elected, but authorized the legislature to establish these courts and prescribe their powers and duties, it would be entirely competent for the legislature to do so. This is just what is done by section 23, art. 6, of the Constitution. The act does not fail because the legislature, in creating the court, did-not provide' its members should be elected.

We are, then, confronted with the question, Is the court of mediation and arbitration a court of conciliation ? When the constitutional convention met which framed our present Constitution, in 1850, courts of conciliation had been in practical-operation in Norway for more than 50 years. They had accomplished most excellent results in the way of harmonizing differences between parties who were otherwise likely to resort to litigation. The purpose of these courts was to create an inexpensive and speedy tribunal, before whom parties between whom differences had arisen in civil cases must go before resorting to the courts of law for relief. The parties were required to appear personally and without counsel, and state their differences, and present such proofs as they could in support of their respective claims. It was the duty of the court to advise with the parties, and, if possible, to bring about an amicable settlement of their differences, and have them depart as friends, and not enemies. If an amicable settlement was agreed upon, a judgment was entered, which would have the same effect as a judgment in any court. As these courts were first constituted, if the parties did not agree upon an amicable settlement they were left to their remedy in the courts of law; but, as we shall see later, further powers were afterwards conferred upon them.

Interesting descriptions of courts of conciliation are to be found in 68 Atlantic Monthly, 402, and 72 Atlantic Monthly, 671. Courts of a like character had also been in operation with most satisfactory results in France and Sweden, and possibly in some other countries of Europe. It is possible that, because of the results attained by these inexpensive and speedy tribunals, the framers of the Constitute were led to incorporate in it section 23, art. 6, which reads, “The legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law.” This language is simple and clear, and would seem to give the legislature abundant authority to create courts of conciliation, and to clothe them with as little or as great power as to the legislature seemed proper. At an address made at Michigan’s semicentennial celebration, Justice Campbell called attention to this constitutional provision. He had no doubt of the authority of the legislature to create these courts, .and expressed regret that the legislature had not brought them into existence. In 1889 an act was passed by the legislature entitled “An act to provide for the amicable adjustment of grievances and disputes that may arise between employers and employés, and to authorize the creation of a State court of mediation and arbitration.” The act is a brief one, containing but 10 sections, and is very general in its provisions. 1 Comp. Laws 1897, §§ 559-568. It is in marked contrast with the edicts or statutes calling these courts into existence in some of the countries of the old world. The Norwegian law of 1824 relating to courts of conciliation is a carefully-drawn statute, of 87 sections. It has been amended at various times. In 1869 the functions of this tribunal were considerably enlarged. These courts were primarily instituted for the purpose of being peacemakers in civil causes, and had no authority to enter judgment, except by the consent of- the parties. As a rule, resort must be had to them in civil cases before the aid of the law courts could be invoked. By the later amendments, in case the parties do not agree to an amicable settlement after listening to the advice of the court, the court is authorized, by the consent of the parties, to arbitrate, the differences between them, and, in cases involving small amounts, may adjudicate the controversy at the request of either party.

In the decision of this case we áre not aided by precedents. The constitution of the State of Louisiana makes it the duty of the general assembly “to pass such laws as • may be proper and necessary to decide differences by arbitration.” Const. art. 165. A law was passed calling into existence a board of arbitration, conferring upon it powers of a very similar character to those with which the court of mediation and arbitration is clothed.- The action of this board was invoked in a matter of difference arising between the employés of a railroad company and their employer. The railroad company sought to have the board of arbitration enjoined from proceeding with the hearing. This the court refused to do. In disposing of the case, it used the following language: “It is in place here to state that the board is not vested with judicial functions. It sits as a court of conciliation, with the authority to formulate a decision and to have it recorded.” New Orleans, etc., R. Co. v. Board of Arbitration, 47 La. Ann. 879 (17 South. 418).

It is to be regretted that the law passed by the legislature is not a more perfect one, but we think it very clear that the power conferred upon the respondent, if exercised, is calculated to bring about conciliations between those employers and employed between whom differences have arisen, and that the law was enacted, as suggested by its title, to provide for the amicable adjustment of grievances and disputes that may arise between employers and employed. The act does not apply to all classes of cases, and the aid of this tribunal is not a prerequisite before bringing an action in a court of law, as is required in Norway and in some other countries, but the provisions of the act are intended to bring about amicable adjustments of differences. "We are not concerned with the extent of the power conferred by the legislature upon this court, nor with the effect of its decisions. Those are questions we reserve until they are properly before us. The act does not undertake to confer power or impose duties in relation to all classes of civil cases, but such power as it does confer is within the constitutional right of the legislature. '

We now come to the second question: Has the court a right to grant a rehearing after it has once rendered its decision ? From what has already been said, it is apparent that the purpose to be served by the establishment of this court is to have a speedy and inexpensive disposition of the differences submitted to it. It was not the purpose of the legislature to create what we ordinarily understand by a court of law. The Constitution provides that these courts shall have such powers and duties as shall be prescribed by law. The law which called this court into existence is the limit of its power. The act nowhere authorizes the court to grant a rehearing. When its decision has been rendered and filed, it has exhausted its power in a given case. Some question is raised by counsel as to the effect of the decision rendered by the court, and the method of its enforcement; but we do not regard tjiat question as properly before us in this proceeding, and do not pass upon it.

We now come to the final question: Have the relators sought a proper remedy? We have already stated that the court had no authority to act further in the proceeding. The statute does not provide for an appeal from the action of the court of mediation and arbitration. It has been repeatedly held that, unless the statute expressly or by plain implication provides for an appeal, none can be taken. See Sullivan v. Haug, 82 Mich., at page 555 (46 N. W. 795, 10 L. R. A. 263), and the many cases there cited. Section 191, 1 Comp. Laws 1897, provides when the Supreme Court shall have general superintending control over all inferior courts, and for the issuance of various writs,- — among them, writs of prohibition and writs of mandamus. Section 9977, 3 Comp. Laws 1897, provides when writs of prohibition shall issue. This section of the statute was construed in Maclean v. Wayne Circuit Judge, 52 Mich. 257 (18 N. W. 396). In that case a mandamus was ordered to vacate a restraining order improperly made, and a writ of prohibition was ordered to stay further proceedings in a case where the court attempted to exercise jurisdiction improperly. See, also, 2 Green, Prac. p. 827, and the cases there cited. The writ of mandamus will be granted, to vacate the order granting a rehearing; and the writ of prohibition, staying any further proceedings in the cause by the respondent.

The other Justices concurred.


author: Long, J. Montgomery, C. J.

text:
    CLONEY v. CITY OF KALAMAZOO.

    Municipal Corporations — Excavation in Street — Injury to Pedestrian — Contributory Negligence.
    Where plaintiff in an action against a city for injuries sustained by falling into an excavation in a street, at a crossing, knew that the street was being torn up near the crossing, and approached the crossing in the night-time, when there was sufficient light to have seen the condition of the street, but walked off the sidewalk without looking, the court should have directed a verdict for defendant, since plaintiff was guilty of contributory negligence. Montgomery, C. J., dissenting.
    Error to Kalamazoo; Buck, J.
    Submitted June 5, 1900.
    Decided September 24, 1900.
    Case by Morgan Cloney against the city of Kalamazoo for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      L. N. Burke and Dallas Boudeman, for appellant.

      N. H. Stewart and E. M. Irish, for appellee.

       Rehearing denied November 19, 1900.

   Long, J.

It appears that the defendant city, in the summer of 1896, contracted with certain parties to pave Burdick street. That street crosses Main street at right angles, and is 66 feet wide. Main street is 100 feet wide. Prior to September 1, 1896, the pavement had been completed up to the north line of Main street, leaving only the intersection of the streets to complete the pavement. Burdick street had formerly been paved with cedar blocks, and, in doing the work of ’ repaving, the contractors took up those blocks and a few inches of dirt, and filled the space with about 6 inches of broken stone and 2 inches of sand, and upon that foundation laid the brick. Labor Day came on the first Monday of September, and, the authorities being desirous of completing the work before that time, it was arranged that the contractors should continue to work day and night to complete the balance of the paving. On September 2d the contractors began tearing up the intersection of the streets. This work continued during the day and until 10:30 o’clock that night. It is the claim of the plaintiff that about 8:30 o’clock that evening, as he was walking west on the north side of Main street, and as he started to cross Burdick street, he stepped into an excavation caused by tearing up the pavement on the street, and was severely injured thereby, and the result thereof was to produce a double inguinal hernia. This suit was brought to recover damages, and on the trial he received a verdict for $5,000. Defendant brings error.

The main contention of defendant’s counsel is that the evidence shows that plaintiff was guilty of contributory negligence, and that therefore the court should have directed a verdict in favor of defendant. It appeared that plaintiff was a merchant doing business on Burdick street. The pavement had been laid past his store before the accident. He saw the work going forward, knew it was being done, and must have known that, in order to do the paving, the street would have to be excavated to some depth. On the evening in question he passed down Burdick street to the corner of Main street. McDonald’s drug-store is situated on the corner. Plaintiff turned east on Main'street a few rods to visit a place of business, and a short time thereafter he returned westward along Main street. Arriving at the corner of Burdick and Main streets, he attempted to continue directly across Burdick street. The pavement had been torn up at that crossing, as it was a part of the street that was to be finished that night. It was dug and plowed up and excavated to some depth close to the curb, and plaintiff, at once on stepping beyond the curb, fell into the excavation. At that time two arc lights were burning. One was 56 feet north. of the place of the accident, and one was hanging over the center of that part being paved. Lights were also burning in McDonald’s drug-store. Plaintiff testified as follows:

“Q. You then came down to the corner, to the east side of Burdick and Main, to McDonald’s drug-store ?

“A. Yes, sir.

“Q. And did you notice that they were working there in the street when you got down there to the store [meaning McDonald’s drug-store] ?

“A. Yes; I noticed Taft plowing out there in the center of the street. ■ That’s all the men or teams I saw there. He was plowing dirt up by the bricks on Main street, about opposite to McDonald’s, — somewhere south of McDonald’s, on Main street. The team, I think, was on the cross-walk leading from McDonald’s south towards the First National bank. The team was headed east when I saw them.

“Q. Did you stop and look at them awhile ?

“A. Yes; I stopped and looked at them, and saw the team working over there. That was before I went up to the Building & Loan. I might have stood there looking at them working in the street five minutes. I stood in front of McDonald’s drug-store, east of the corner of Main street.

“Q. They had taken out some dirt, had they, in the street ?

“A. I didn’t notice whether they had or not. I know they were plowing it up. I didn’t notice whether they had drawn out any or not.

Q. You noticed they had the whole corner ripped up there, didn’t you ?

“A. I didn’t pay any attention to it; I was looking at the team.

“Q. You could have seen that, all right ?

“A. Probably I could if I went and examined it. I was looking at the team. I didn’t pay any attention to anything else.

“Q. You could not help, when you saw the team— What were you looking at the team for ?

“A. They were plowing. They were not drawing any dirt, I think.

“Q. Was there anything singular about the team, that called your attention to it ?

‘'A. Yes, sir; there was.

“Q. What was it?

“A. They worked so steady over those tiles, and among that iron and track; that’s what I was looking at.

“Q. You could see that the whole corner at the intersection was disturbed, couldn’t you ?

‘A. I didn’t pay any attention to it ?

“Q. Why didn’t you ?

“A. Because I wasn’t looking at it; I was looking at the team.

“Q. There wasn’t anything to prevent you seeing it ?

‘A. I don’t know whether there was or not.

“Q. What was there, if anything, to prevent your seeing exactly what condition the street was in ?

“A. I don’t know as there was anything, if I had looked at it, but I didn’t take any pains to look out that way; all I was looking at was the team.

“Q. Didn’t have any difficulty in seeing the team there ?

“A. No, sir; they were a gray team.

“Q. You didn’t have any difficulty in seeing the man who was driving the team, did you ?

“A: No, sir. • * * *

“Q. When you came down the street, what did you do ?

“A. I started to go right up to Cobb & Hunter’s.

“Q. Did you stop at the corner there at the time?

“A. No, sir; I went straight on.

“Q. Did you look around to see what they were doing at the street then ?

“A. I did not; no, sir.

“Q. You didn’t pay any attention then; you just—

“A. [interrupting]. I went right on.

“Q. Where were you looking?

“A. Well, I was — • I don’t know where I was looking. I was looking ahead, I presume. I don’t think it was quite as light when I came from the Building & Loan Association up to the corner: It was getting darker all the time, — some darker. I was probably down there 5 or 10 minutes. There were people standing there on the corner when I came up from the Building & Loan Association. I didn’t notice who they were. They were not standing near to this cross-walk.

“Q. As you came along up to the corner on the east side of that street, near this cross-walk, didn’t you look to the south, to see Taft’s team working there ? .

“A. No, sir; I don’t think I did.

“Q. Did you look over towards where the team was working ?

“A. Don’t think I looked that way at all.

“Q. What makes you think you didn’t ?

“A. Because I was going right up there. I starred up there, and I went right along through there.

“Q. Was that the only reason that makes you think you didn’t look at them ?

“A. That’s the only reason, — because I had my mind fixed on going there, and I went there.

“Q. Your eyesight was good at that time ?

“A. Yes; better than it is now.

“Q. It was dark that night ?

“A. Yes, sir; fair. It was dusk, — not as bright as day, not by any means.

“Q. Well, it was light enough so anybody could see what was going on there, — see the street and the people ?

“A. The people standing on the walk, you could see them; yes.

“Q. And you could see people in the street, couldn’t you ?

“A. I didn’t notice anybody in the street.

“ Q. You could have seen;—

“A. [interrupting]. If I was looking that way, I might; yes.

"Q. And you could see whether the street was torn up ?

“A. Well, I didn’t pay any attention to the street.

“Q. You stepped on the curbstone, did you?

“A. I don’t know whether there was a curbstone there or not.

“Q. What?

“A. I didn’t step on any curb, as I know of.

Q. Wasn’t there one there ?

“A. I don’t know whether there was a curb there or not; I didn’t notice any.

“Q. Where did you go from McDonald’s walk onto this cross-walk?

“A. I went straight west. .

“Q. Well, were you, or were you not, about in the center of the cross-walk ?

“A. I should judge about in the center.

“ Q. There was nothing there that obstructed your view at all as you came up to the corner of McDonald’s drugstore? You could see where this cross-walk once had been or was ?

“A. If I was looking for it, I might; yes. But I always propose to walk about in the center of the sidewalk/’

The plaintiff testified further that he did not know of any change in the condition of the crossing until he fell into the excavation, and that he did not see any light at the time he fell. He also gave evidence tending to show that an arc light was suspended over the middle of the cross street, but it was swung down very low that night, to light the workmen in the middle of the square, and that objects easily came between it and the crossing, so as to throw the walk into shadow; that at times it did not burn evenly, but sputtered and threw shadows.

The court below, on the plaintiff’s own testimony, should have directed the verdict in favor of defendant. Counsel for plaintiff, however, contend that the case is governed by Dundas v. City of Lansing, 75 Mich. 509 (42 N. W. 1011, 5 L. R. A. 143); Argus v. Village of Sturgis, 86 Mich. 344 (48 N. W. 1085); Brezee v. Powers, 80 Mich. 172 (45 N. W. 130); Finn v. City of Adrian, 93 Mich. 507 (53 N. W. 614); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561).

The circumstances of the injury in each of those cases were very different from the present case. In Dundas v. City of Lansing it appeared that the plaintiff was not thinking of the hole in the walk. The night was dark and stormy, and a slight snow or mist was falling. It was there said,, however:

“Many cases are reported where, under the circumstances attending the transaction, courts have rightly held that the party was not entitled to a recovery where the danger was apparent and known, and the injury resulted from his own carelessness and inattention.”

In Brezee v. Powers it appeared that the night was quite dark. There was nothing to call the plaintiff’s attention to the fact of the opening into which he fell. In Finn v. City of Adrian it appeared that the plaintiff knew, eight days before the accident, that the walk had been partially torn up, and that the street was being paved. That was held not sufficient to charge her with contributory negligence in attempting to cross the walk, as she had the right to assume, in the absence of any danger signal, that the walk had been placed in good condition. In Graves v. City of Battle Creek the theory of the plaintiff was, and she gave testimony tending to show, that, just before she stumbled over the plank in question, she heard a whistle, and became frightened and hurried on. It was said:

“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 the present case the plaintiff knew that the street was being paved. He saw the teams and men there at the very time (although it was in the night) doing the work of grading, and he says that, when he went down, he stopped and looked at the team plowing; and, being asked if he “noticed that they had the whole corner ripped up,” he answered, “I didn’t pay any attention to it; I was looking at the team.” In a few moments afterwards he returned. He was asked if on his return he could see if the street was torn up, and replied: “Well, I didn’t pay any attention to the street.” He was asked if he stepped on the curbstone, and answered: “I don’t know whether there was a curbstone there or not. ■ I didn’t step on any curb, as I know of. I didn’t notice any.” It is apparent from the testimony of plaintiff that, had he looked, he could have seen that the street was torn up. He did know that it was being torn up, and that the men were working there. , He' attempted to cross without giving any attention to the condition of the street, or taking any precaution to avoid injury. It was held in Irion v. City of Saginaw, 120 Mich. 295 (79 N. W. 572), that one who had in mind the bad condition of the cross-walk leading from the street curb to the sidewalk, and knew that if she went over it she must exercise great care, and take the chances of going over in safety, and who, by stepping aside a few feet, could pass along without going on the walk, was barred by contributory negligence from recovering for injuries received in crossing it. In Church v. Village of Howard City, 111 Mich. 298 (69 N. W. 651) 66 Am. St. Rep. 396), it was held that a pedestrian, perfectly familiar with existing conditions, was, as matter of law, guilty of contributory negligence, precluding a recovery for injuries sustained by falling from the side of a walk, unguarded by a rail, into an excavation, during the nighttime, where, instead of guiding himself by a rail on the other side, he directed his course by a light which proved not to be the one he supposed it to be. In Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844), it was held that one who in the daytime attempted to pass over stones which she saw scattered over the sidewalk assumed the risk of injury. While the present case does not present the exact state of facts presented in those cases, it does present facts which lead us to the conclusion that, had the plaintiff exercised the least care, he would not have met with the accident complained of. He walked heedlessly into danger, knowing that the street was being torn up.

The judgment must be reversed, and no new trial ordered.

Hooker, Moore, and Grant, JJ., concurred with Long, J.

Montgomery, C. J.

(dissenting). The concurrence of my brethren in the view that there was no case for the jury would lead me to doubt my judgment, were it not for the fact that the supreme court of Massachusetts has but recently dealt with a case which in principle is not to be distinguished from the present. In O’Neil v. Hanscom, 175 Mass. 313 (56 N. E. 587), the court uses this language:

“Assuming, according to the sixth request, that there were around and at or near the trench sufficient lights, horses, and barriers to warn the plaintiff of danger, and the plaintiff saw them and did not heed them, it cannot be said, as matter of law, that he thereby assumed the risk of falling into a trench of whose existence, so far as appears from the instruction requested, he was, or might have been, ignorant.”

In the present case it is true that the fact that the plaintiff knew that the authorities were working in Bur-dick street and in Main street may furnish ground for a strong inference that he knew that the crossing of Burdick had been removed; but does it conclusively show that he knew it? I think not. He testifies that, when he last knew the fact about it, the crossing was intact. I do not think it should be held, as matter of law, that, because he knew that teams were at work on the opposite side of Main street, he must be assumed to have known, or bound in law to have known, that the cross-walk had been removed and left in a dangerous condition. No barrier was erected, and no direct warning given. I think the case was one for the jury.


author: Grant, J.

text:
    PEOPLE, ex rel. VALENTINE, v. BERRIEN CIRCUIT JUDGE.
    Constitutional Law — Commission Men — License and Bond.

      A law requiring merchants who sell farm produce upon commission to execute a bond, in the penal sum of §5,000, conditioned for the faithful performance of their contracts, and to pay a license fee, is unconstitutional.

      Mandamus by the People of the State of Michigan, on the relation of George M. Valentine, prosecuting attorney, to compel Orville W. Coolidge, circuit judge of Berrien county, to vacate an order quashing an information.
    Submitted June 5, 1900.
    Writ denied September 24, 1900.
    One William B. Thompson was arrested, charged with a violation of Act No. 851 of the Public Acts of 1899, because he had filed no bond and received no license to solicit farm produce for a firm in Chicago. The court quashed the information, holding the law to be unconstitutional. The act is entitled ‘ ‘An act to license and regulate commission men and brokers.” The first section of the act reads:
    “That every person who shall solicit to receive for sale, for himself or another, or who shall receive for sale, or offer for sale, for another, for hire, or cause the same to be done, any grain, fruits, vegetables, live stock, meats, or poultry, and all other kinds of farm or dairy produce, shall execute a bond in the penal sum of five thousand dollars, running to the people of the State of Michigan, to be approved by the judge of probate in the county where his principal office may be, except as hereinafter provided, with two or more sureties, or by an indemnity company authorized by law to do business in this State, conditioned for the faithful performance of the trust reposed in him as a commission man or broker, and to pay over all moneys to the proper parties coming into his hands by virtue of his agency or trusteeship, by virtue of his receiving the goods and produce aforesaid, which shall justly belong to any person. Such bond, when approved, shall be filed with the county clerk of the county where such commission or broker man shall be engaged in business and where he shall have his principal office: Provided, that the provisions of this act shall apply only to persons, firms, and corporations who hold themselves out as commission men, brokers, agents, or merchants, and their agents.”
    Section 2 makes every such commission merchant or broker liable on his bond for all moneys received by him upon the sale of goods and produce committed to his care, and for the faithful performance of his duties. Section 3 prohibits the doing of business without having a certificate from the' county clerk or secretary of state, and provides for requiring a new bond when the first shall be deemed insecure. Section 4 provides a penalty of fine or imprisonment, or both, for soliciting goods or produce without such bond and certificate. Section 5 makes it the duty of the sheriff to investigate every complaint made under the act, and to make complaint for violations thereof. Section 6 requires the payment of a fee of five dollars upon making application for a certificate. Section 7 makes every person soliciting without the certificate liable to the owner for the goods and produce for which he has contracted for his principal. Section 8 provides for bringing a suit in any county in the State where the aggrieved person may be, and constitutes the secretary of state the lawful agent of nonresidents for service of process.-
    • The learned circuit judge held the act unconstitutional and void, for the following reasons:
    “1. That the title of the act does not express its object.
    “2. That "the act makes the solicitor liable for the default of the principal.
    ‘‘3. That the act is indefinite, uncertain, and vague, and the meaning of it cannot be interpreted.
    “4. Class legislation.
    ‘5. Its provisions are inconsistent.
    “6. That it is repugnant to the interstate commerce law.

      “7. That the penalty is so onerous and burdensome that it is in restraint of trade and unjust.”

      George M. Valentine, in pro. per.

      Hammond & Hammond, for respondent.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). Acts of this character, when valid, must find a reason for their existence in the police power of the State. The act is not aimed at brokers, in the ordinary meaning of that word. It is not aimed at commission merchants generally. It is aimed solely at commission merchants who engage in the business of selling farm produce for producers upon commission. It provides 'that such a merchant shall pay a fee and execute a bond, as conditions precedent to doing business. The condition of the bond is the honest and faithful performance of his contracts. The business of buying and selling on commission has existed ever since commerce began. There are and always have been dishonest men engaged in it, as there are and always have been in every other branch of business. There are and always have been dishonest sellers, who will pack their produce in such a manner as to deceive. It would be as reasonable to require the latter to give bond to properly pack their produce. In every such case the common law provides an ample remedy for redress to the injured party for breach of contract. There is no more reason why a commission merchant should pay a license fee, and execute a bond to pay his debts and to do his business honestly, than there is that any other merchant should pay a like fee, and file a like bond to properly do his business and pay his debts. The business requires no regulation, any more than any other mercantile pursuit. There is nothing in it hostile to the comfort, health, morals, or even convenience, of a community. It is carried on by private persons in private buildings, and in a manner no different from that in which the merchant selling hardware or groceries or dry-goods carries on his business. The law can find no support in the police power inherent in the State. It is not like the liquor traffic, which, under the decisions of every court, is subject to the police power, because of the injury it does to the health, morals, and peace of the community, and may be prohibited altogether. Neither is there anything in it requiring regulation, as do hack-drivers, .peddlers, keepers of pawnshops, and the like. The legislature of this State is not empowered by the Constitution to regulate contracts between its citizens who are engaged in legitimate commercial business, or to require any class of persons to pay a fee for the right to carry on business, or to give a bond to perform their contracts which other parties may choose to make with them. The Constitution guarantees to citizens the right to engage in lawful business, unhampered by legislative restrictions, where no restrictions are required for the protection of the public. We are compelled to hold this law void, because (1) it is class legislation, and (2) it is an unjustifiable interference with the right of citizens to carry on legitimate business.

It is unnecessary to discuss the other questions raised. The writ is denied.

The other Justices concurred.


author: Hooker, J.

text:
    BELDEN v. BLACKMAN.
    1. Limitation or Actions — Amendments.
    A suit by an amended bill is not barred by limitations if the original bill was filed in time, and the amendment introduces no new cause of action.
    2. Same — Foreign Judgment — Burden or Proor.
    One whose suit to enforce a foreign judgment is barred by limitations unless taken out of the statute by the absence of the debtor from the State has the burden of establishing the exception by showing such absence.

      3. Equity Pleading — Demurrer—Admissions.
    While a statement of fact in a demurrer to a bill of complaint may be considered for the purpose of determining the sufficiency of the bill, it cannot supply a deficiency in the complainant’s proofs.
    Appeal from superior court of Grand Rapids; Newnham, J.
    Submitted June 18, 1900.
    Decided September 24, 1900.
    Bill by William P. Belden against R. Amelia Black-man, executrix of the last will and testament of Ezekiel Jewett, deceased, and George W. Barker, to obtain satisfaction of a judgment. From a decree for complainant, defendant Blackman appeals.
    Reversed.

      Burlingame & Belden, for complainant.

      C. H. Gleason, for appellant.
   Hooker, J.

The complainant is assignee, for collection, of a judgment rendered on the 8th day of December, 1877, by the supreme court of the State of New York, in favor of Ira W. Watkins, against one George Barker. This is a proceeding said to be of the nature of a creditor’s bill, and is an attempt to reach a legacy to said Barker in the hands of the executrix of the will containing the bequest. The case has been before us once upon demurrer (see 118 Mich. 448 [76 N. W. 979]), and some of the questions raised upon this record are concluded by our former opinion. After the former hearing an amended bill was filed, and it is now urged that the statute of limitations ran against the New York judgment before said amended bill was filed, and that the proceeding is therefore barred. If it was not barred when the original bill was filed, this defense depends upon whether the amended bill is to be considered as introducing a new cause of action, in analogy to the case of Gorman v. Newaygo Circuit Judge, 27 Mich. 138. Several later cases apply the rule clearly laid down in the Gorman Case, viz., that the action is barred only when a new and different cause of action is introduced by the amendment, and never when it can fairly be said to be the same cause of action as that originally set up. Wingert v. Wayne Circuit Judge, 101 Mich. 397 (59 N. W. 662, 45 Am. St. Rep. 417); Johnston v. Insurance Co., 106 Mich. 98 (64 N. W. 5); Pratt v. Montcalm Circuit Judge, 105 Mich. 501, 502 (63 N. W. 506); Loranger v. Davidson, 110 Mich. 607 (68 N. W. 426); Smalley v. Terra-Cotta Co., 113 Mich. 149 (71 N. W. 466). There was no new cause of action introduced by the amendment.

The point is also made that this suit is barred under the Michigan statute. The record shows that the suit was begun about 19 years after the rendition of the New York judgment, and under the Michigan statute (3 Comp. Laws 1897, § 9734) it was necessary to bring an action upon it within 10-years. Home Life Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334). The lapse of 19 years before suit, which appears on the face of the bill, is necessarily fatal to complainant’s suit, unless it is saved by section 9736, which is as follows:

“If, at the time when any cause of action mentioned in this chapter shall accrue against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor after such person shall come into this State; and if, after any cause of action shall have accrued, the person against whom-it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.”

Under the case of Ayres v. Hubbard, 71 Mich. 599 (40 N. W. 10), the burden is upon the complainant to show such exception. See, also, 2 Greenl. Ev. § 431, note 1. There is no proof in this case, to which our attention is called, that shows that Barker ever resided in Michigan. Counsel for defendant so asserts in his brief, and complainant’s counsel content themselves with saying :

“Appellant argues that continuous nonresidence of Barker was not proved.' Such proof was unnecessary. Complainant showed that he was a nonresident at a certain time, and that he is now. This raises a presumption of continuous nonresidence, until it is rebutted by proof to the contrary by appellant. It was not claimed by the appellant at the hearing below that Barker ever resided in Michigan, and in fact she has obligingly informed us in her demurrer to the original bill that he never has resided in this State.”

They do not point out this proof.

The demurrer is not before us, and we are not, therefore, advised of its contents; but, if it were, we could not take it as an admission of the fact mentioned. It was apparently so taken upon the former hearing for the purpose of determining the sufficiency of the bill of complaint, but it can be considered an admission for no other purpose. A demurrer is said to admit all of the allegations of the bill, but that is not for the purpose of a trial of the merits; it is only for the determination of the sufficiency of the paper demurred to. If it were otherwise, it'might be claimed that it was unnecessary to prove any of the statements of the bill, because they were admitted by the demurrer. Under our former decision, proof of nonresidence was admissible under the bill, but the necessity of proof was not dispensed with. There was some hearsay testimony that Barker lived in Arkansas, and an opinion sxpressed that he never lived in Michigan; but this was taken under objection, and should be given no weight. It was, however, shown that he lived in Tioga county, N. Y., “until the spring of 1878,” when the testimony clearly implies that he left there. We have not found testimony tending to prove that he has not ever since resided in Michigan. We must therefore hold that the complainant has not shown the case to be within the exception of the statute. This is fatal, and it is unnecessary to discuss other questions raised.

The decree is reversed, with costs of both courts.

The oth§r Justices concurred.


author: Long, J.

text:
    DOTY v. HURD.
    False Imprisonment — Void Warrant — Liability oe Complainant — Advioe oe Prosecutor. ■
    Where defendant stated to a justice of the peace facts concerning an assault committed by the plaintiff, and thereafter the justice informed defendant that he had consulted with the prosecuting attorney, who believed that plaintiff could be prosecuted under an ordinance, and the justice drew up a complaint, which defendant signed, but did nothing further looking to plaintiff’s arrest, he was not liable for false imprisonment, though the complaint and warrant were defective, in that they did not contain averments sufficient to make a case under the ordinance.
    Error to Lapeer; Smith, J.
    Submitted June 8, 1900.
    Decided October 2, 1900.
    Case by Edward E. Doty against Charles J. Hurd for malicious prosecution and false imprisonment. From- a judgment for plaintiff, defendant brings error.
    Reversed

      Geer, Williams & Halpin, for appellant.

      Stickney & Reed, for appellee.
   Long, J.

In July, 1897, the defendant made and swore to a complaint, in which it was charged that the plaintiff in this case did willfully and maliciously disturb the peace of the village of Metamora, Lapeer county. A warrant was issued upon this complaint by a justice of the peace, and placed in the hands of an officer, and upon which the plaintiff was arrested, and confined in the Metamora jail for a brief period. On a trial before the justice he was discharged. He then brought this action for malicious prosecution and false imprisonment against the defendant here, and recovered a verdict and judgment for $25. Defendant brings error.

On the trial the court below held that the only question in the case was one of false imprisonment, as the complaint and warrant were void, and afforded no protection to the officer making the arrest. It appears that the defendant was a member of the village council, and that there was an ordinance of the village for punishing persons guilty of disturbing the peace by quarreling and fighting on the public streets. It also appears that, in June previous to the arrest, the plaintiff had an altercation with one Rev. William H. Flint, a Congregational minister of the village, and, after exchanging a few words with him, struck him, and then turned and ran away. The defendant was an eye-witness to the affray, and, as the plaintiff turned to run away, the defendant caught him, and asked the marshal of the village to take him before a justice of the peace, which he did, and the justice fined the plaintiff $10 and costs for assault and battery, and the fine was' paid. Following this, the defendant made the complaint out of which the present case grew, and upon which the plaintiff was arrested. The defendant’s connection with the affair was testified to by the plaintiff and by the justice who issued the warrant. The justice testified that the defendant stated to him the facts which he claimed constituted the offense under the village ordinance; that he said to the defendant that he was going to Lapeer, and would lay the matter before the prosecuting attorney; that he did so, and then told the defendant he would take the complaint, as the prosecuting attorney said that the fine in the first case would go to the county, and that there was an action for violating the village ordinance separate from that if they saw fit to prosecute it; that he then took the complaint in writing; that the village attorney was not there, and he drew up the complaint. The justice also testified that, after the complaint was made, he issued the warrant, and handed it to a constable for service, and that the defendant had nothing to do with serving the warrant, to his knowledge; that, when the case was called, it was conceded that the complaint and warrant were defective, and he discharged the plaintiff; that subsequently a new complaint was made by defendant, and warrant issued, the plaintiff arrested, and on the second trial was convicted by a jury.

The plaintiff was permitted to put in some testimony which he claimed tended to show a conspiracy on the part of defendant with others to imprison him, and drive him out of the community. The defendant offered no evidence in the case. His counsel, after the close of the testimony, asked the court to direct the verdict in favor of the defendant. This was refused.

There was no testimony tending to show a conspiracy to imprison the plaintiff, and all the defendant did was to make the complaint. We think the request should have been given. The testimony is conclusive that the plaintiff had been guilty of willfully and maliciously disturbing the peace. He had pleaded guilty to’ an assault and battery on Mr. Flint oh the same occasion. It is also conclusively established by the evidence that defendant had nothing to do with the arrest of the plaintiff except making the complaint. It is true that the complaint and warrant did not contain sufficient averments to make a case under the ordinance; but the defendant had nothing to do with drawing them up. The justice did that after consulting with the prosecuting attorney; and, after he had told the defendant that the prosecuting attorney was of the opinion that the facts stated by defendant to the justice were sufficient, the defendant signed the complaint. The warrant, when issued, was delivered to a constable, and was served by him. The defendant, so far as appears by the record, did not suggest the putting of the plaintiff in the lockup. That was done because of the absence of the justice. When the justice returned, and the plaintiff was brought before him, he let him off on his own recognizance. The case is very similar to the case of Murphy v. Walters, 34 Mich. 180. It was there held that ono who, in making a criminal complaint, merely states the facts and circumstances to the prosecuting attorney, and swears to the complaint drawn by the latter embodying such facts, is not liable in an action of false imprisonment, though the facts sworn to fail to make out a criminal offense. See, also, Thurston v. Wright, 77 Mich. 102, 103 (43 N. W. 860).

The judgment must be reversed, and a new trial granted.

The other J ustices concurred.